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Loiselle, J. The plaintiffs own a 1.1-acre parcel of land in Southbury which is improved by two separate commercial buildings. One building, two stories in height, is located on the front portion of the lot near the highway; the other structure, one and one-half stories in height, is located in the rear of the lot. The lot has a 200-foot frontage abutting routes 6 and 67. The defendant commissioner made a determination in 1969 that a widening of route 6 would require the acquisition of .06 of an acre of the plaintiffs' land. The result of such taking would reduce the setback of the plaintiffs' front building from twenty-five feet to fifteen feet from the highway line. The Southbury zoning regulations explicitly require a minimum twenty-foot setback from the highway line to qualify a building for use in a business zone. On April 2, 1970, the defendant commissioner, without permission and contrary to the wishes of the plaintiffs, filed an application with the South-bury zoning board of appeals for a variance from the twenty-foot setback requirement. On July 7, 1970, the zoning board of appeals unanimously approved the application and, "pursuant to Sec. 48-24 of the 1969 Supplement to the General Statutes," granted a setback variance of five feet to become effective July 13, 1970. The plaintiffs did not appeal the granting of the variance. The property of the plaintiffs was condemned on February 5, 1971, and the plaintiffs appealed from the fixing of the damages. The referee to whom the matter was assigned increased the assessment of damages, and from this judgment the defendant has appealed. In his assessment, the referee considered as an element of damages that "[t]he reduction by five feet of the required front yard as a result of the taking together with the granted setback variance in the light of the existing circumstances creates a reasonable probability of rendering all or a part of the two-story front building nonconforming, which, if so, would subject it to the limitations of enlargement and casualty connected with nonconformities under the zoning regulations." The defendant has assigned as error the court's including as an element of damages the probability that the plaintiffs' front building was rendered nonconforming by the issuance of the variance by the zoning board of appeals and by the subsequent taking which left a fifteen-foot setback from the street line. At the trial on the issue of the assessment of damages, the plaintiffs claimed as a matter of law that since the required minimum front yard distance from the street line is twenty feet, the effect of the taking rendered the front building nonconforming and the effect of the variance was to allow only the continued use of the structure. The plaintiffs argued that the variance does not render the front building conforming in the sense that the setback variance would be equivalent to a zoning regulation to this effect for that property. They claimed that as the front building does not conform to the setback requirements of the ordinance, the enlargement and casualty provisions of the ordinance pertaining to nonconforming structures would be applicable to the structure in question, thereby decreasing its value on the open market. On the other hand, the defendant claimed that the variance rendered the structure a conforming use and, therefore, the enlargement and casualty provisions of the ordinance pertaining to nonconforming structures would not apply. As the town of Southbury, its zoning commission, and its board of appeals were not parties to the action, the court refused to make a determination of the legal claims advanced by the parties but only considered whether there was a reasonable probability that the front building would be held to be a nonconforming structure and thereby affect the value of the plaintiffs' remaining property. The trial court was correct in not making an academic ruling which would not in any way bind the town of South-bury. Gillotti v. Food Fair Stores of Connecticut, Inc., 148 Conn. 412, 418, 171 A.2d 415; Brennan v. Russell, 133 Conn. 442, 445, 52 A.2d 308; Ackerman v. Union & New Haven Trust Co., 91 Conn. 500, 508, 100 A. 22. The court was also correct in considering the effect of zoning regulations as a factor affecting value; Budney v. Ives, 156 Conn. 83, 88, 239 A.2d 482; Stanley Works v. New Britain Redevelopment Agency, 155 Conn. 86, 102, 230 A.2d 9; and in including the reasonable probability of a zoning classification with regard to nonconformity within that consideration. See Budney v. Ives, supra. It was necessary, therefore, for the trial court to make a decision as to the reasonable probability of a legal construction regarding the granted variance which any willing buyer and seller would consider in assessing the value of the plaintiffs' land. General Statutes § 8-6 does not allow a board of appeals when granting a variance to make a new ordinance for a particular property; the statute only allows the board to vary the application of the existing ordinance in enumerated instances. Thus, a variance does not create a change of zone for a particular parcel; Plumb v. Board of Zoning Appeals, 141 Conn. 595, 599, 108 A.2d 899; but authorizes the landowner to use his property in a manner prohibited by the regulations. Carlson v. Zoning Board of Appeals, 158 Conn. 86, 90, 255 A.2d 841; Service Realty Corporation v. Planning & Zoning Board of Appeals, 141 Conn. 632, 636, 109 A.2d 256. The defendant claims that the effect of the variance granted in this instance was to make the front building on the plaintiffs' property remaining after condemnation a "permitted structure" rather than a nonconforming one. "In the determination whether a particular use is permitted or nonconforming, the question is one of expressed intent as stated in the zoning regulations, which are basically legislative enactments, and such intent must be found from the intent expressed in the regulations construed as a whole." Melody v. Zoning Board of Appeals, 158 Conn. 516, 519, 264 A.2d 572; Garbaty v. Norwalk Jewish Center, Inc., 148 Conn. 376, 381-82, 171 A.2d 197. Under the general provisions of the regulations, section 1.1, "Jurisdiction," reads as follows: "Within the Town of Southbury, no land, building or other structure shall be used and no building or other structure shall be constructed, reconstructed, enlarged, extended, moved or structurally altered except in conformity with these Regulations." The section relating to nonconformity in the general provisions reads as follows: "Nonconformity: any use, building or other structure or lot, which existed lawfully, whether by variance or otherwise, on the date these Regulations or any amendment hereto became effective, and fails to conform to one or more of the provisions of these Regulations or such amendment hereto, may be continued subject to the provisions and limitations of Section 11." Section 11, entitled "Nonconformity," contains the usual provisions that nonconformities are to be changed to conformities as quickly as "the fair interests of the parties permit," that no enlargements are permitted, and that in the event of casualty in excess of 80 percent of assessed value, the use must return to compliance with the provisions of the ordinance. The definition of nonconformity in this section is substantially the same as that in the general provisions. This definition of nonconformity is not the definition usually found in zoning regulations in that it states that a nonconformity may be any use, building or other structure or lot which existed by virtue of a variance at the time the regulations were adopted or of any amendment thereto. This definition by itself is confusing as ordinarily there would be no variance granted prior to the adoption of zoning regulations. The Southbury zoning regulations were adopted April 28,1966. It is judicially noted that at some time prior to this date there were zoning regulations for the town of Southbury. They were construed in part in Hinman v. Planning & Zoning Commission, 26 Conn. Sup. 125, 214 A.2d 131, which was decided in 1965. When it is considered that valid zoning regulations existed prior to the adoption of the present regulations this provision takes on meaning. The defendant claims that the word "variance" as used in the definition relating to nonconformity in the zoning regulations is merely descriptive of the legal status of a use or building existing on the effective date of the regulations or any amendment thereto. Even if this is so, the specific inclusion of "variance" in this definition indicates an intent that under the South-bury regulations the status of a use or building which is acquired by the granting of a variance is not insulated from the general requirements of conformity as expressed in § 1.1 or from the conditions to which nonconformities are subject under § 11. When the purpose and effect of the granted variance are considered in light of the intent expressed in the Southbury regulations under the general provisions and under §11, entitled "Nonconformity"; Melody v. Zoning Board of Appeals, supra; it cannot be said that the court was in error in considering that "there existed a high and reasonable probability that the Southbury Zoning Board of Appeals would consider or would reasonably hold and find that the two-story building located near the new highway together with the granted variance would be legally nonconforming within the meaning of the zoning regulations, or at least insofar as the offending front five feet of the building are involved." Since the effect of a reasonably probable construction of a zoning ordinance would have an effect upon the value of premises on the open market, the court was not in error in considering this in its valuation of the premises of the plaintiffs. See Budney v. Ives, supra. There is no error. In this opinion the other judges concurred. The defendant's claim that he did not make application for the variance under General Statutes § 48-24 need not be considered as it has no effect on the disposition of this action. In Industrial Lessors, Inc. v. Garfield, 119 N.J. Super. 181, 290 A.2d 737, cert. denied, 61 N.J. 160, 293 A.2d 390, relied upon by the defendant, a distinction is made between a variance and a nonconforming use. In allowing a reconstruction of a building destroyed by Are which had been built by virtue of a variance previously granted, it is stated that the use of the structure allowed by variance became a conforming use. It is noted, however, that the purpose of the variance was still existing and that the court was careful to limit the reconstruction to a duplication of the structure in existence pursuant to the variance and not to allow enlargement. "[Southbury Zoning Kegs.] Sec. 11.2 Definitions: A nonconforming use, building or other structure, or lot is one which existed lawfully, whether by variance or otherwise, on the date these Begulations or any amendment hereto became effective, and which fails to conform to one or more of the provisions of these Begulations or such amendment hereto."

The defendants' request for an order directing the trial court to file a finding to complete the record in the appeal from the Court of Common Pleas in Hartford County is granted and the trial court is directed to file with this court a finding, such as circumstances permit, setting forth the basis for its ultimate conclusion, including any claims of law made together with its conclusions thereon.

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

Loiselle, J. The defendant is an attorney at law. The plaintiff, his client, whom he represented in a Circuit Court criminal proceeding, brought this action for malpractice, alleging in her complaint that the defendant was negligent in disclosing to the court his belief that the plaintiff was insane. It is further alleged that the court thereupon set bail and ordered the plaintiff placed in a mental institution and that the defendant negligently failed to advise the plaintiff of bail procedures whereby her release could be secured. For these alleged actions and their alleged consequences, the plaintiff sought damages. At the time the present action was commenced and at the time of the occurrences pleaded in the complaint, the defendant was a public defender in the Circuit Court and had been appointed to defend the plaintiff. The attorney general entered a special. appearance in behalf of the defendant and filed a plea in abatement alleging immunity from suit. The plea was sustained, and the court dismissed the action. The plaintiff has appealed from that judgment. The issue to be decided on this appeal, whether an attorney occupying the position of public defender and assigned to represent an indigent defendant enjoys immunity from liability for professional malpractice, is one of first impression. Three grounds have been advanced by the state for the public defender's immunity: judicial immunity, common-law sovereign immunity which extends to public officials, and the statutory immunity of public officers and state employees. The state argues that the doctrine of judicial immunity, long recognized in this state; Phelps v. Sill, 1 Day 315, 329; should be extended to public defenders on the ground that the policy supporting immunity for judges and officers exercising a judicial function is applicable to the public defender. It is pointed out that the immunity rule is designed to promote "principled and fearless decision-making" by removing a judge's "fear that unsatisfied litigants may hound him with litigation charging malice or corruption"; Pierson v. Ray, 386 U.S. 547, 554, 87 S. Ct. 1213, 18 L. Ed. 2d 288; and that this policy has been applied in extending immunity to a prosecuting attorney; Fanale v. Sheehy, 385 F.2d 866, 868 (2d Cir.); for acts done in "his official capacity" on grounds that "his office is vested with a vast quantum of discretion which is necessary for the vindication of the public interest. In this respect, it is imperative that he enjoy the same freedom and independence of action as that which is accorded members of the bench." Bauers v. Heisel, 361 F.2d 581, 589-90 (3d Cir.), cert. denied, 386 U.S. 1021, 87 S. Ct. 1367, 18 L. Ed. 2d 457. "The key to the immunity . . . held to he protective to the prosecuting attorney is that the acts, alleged to have been wrongful, were committed by the officer in the performance of an integral part of the judicial process." Robichaud v. Ronan, 351 F.2d 533, 536 (9th Cir.); see also Hilliard v. Williams, 465 F.2d 1212, 1217 (6th Cir.) and cases cited therein on the qualified nature of a prosecuting attorney's immunity from liability. The state's argument is that a public defender is appointed by the judiciary to a judicial office and that in performing his functions he is, as is a state's attorney or prosecutor, "in the performance of an integral part of the judicial process." This argument sweeps too broadly for it encompasses any privately retained attorney who is representing a criminal defendant. In this state, attorneys admitted to practice are all officers of the court; Heiberger v. Clark, 148 Conn. 177, 186, 169 A.2d 652; they are all, when they undertake a criminal case, "in the performance of an integral part of the judicial process"- — -the defense of the accused and the protection of the innocent. But they are in no sense judicial officers. Yudkin v. Gates, 60 Conn. 426, 429, 22 A. 776. Concededly, there is a public interest aspect to the public defender system in that it functions to fulfill the constitutional requirement that indigents be ensured competent representation, but a public defender, unlike a state's attorney who is a "representative of the state"; State v. Zimnaruk, 128 Conn. 124, 128, 20 A.2d 613; and who is under a duty to see that impartial justice is done to the accused as well as to the state; State v. Moynahan, 164 Conn. 560, 568, 325 A.2d 199; upon assignment to an indigent client is the representative of that client; see Merwin v. Richardson, 52 Conn. 223, 234; his role is that of an adversary and his function does not differ from that of a privately retained attorney. See State v. Jackson, 162 Conn. 440, 294 A.2d 517, cert. denied, 409 U.S. 870, 93 S. Ct. 198, 34 L. Ed. 2d 121. The function of the public defender or of any other attorney in representing a defendant does not afford a basis upon which the cloak of judicial immunity may be extended. Nor does the policy behind the doctrine of judicial immunity require that it be applied to a public defender, who is like any other attorney whose duties as an officer of the court and to an individual elient and "whose principled and fearless" conduct of the defense are not deterred by the prospect of liability. But see John v. Hurt, 489 F.2d 786 (7th Cir.); Brown v. Joseph, 463 F.2d 1046 (3d Cir.), cert. denied, 412 U.S. 950, 93 S. Ct. 3015, 37 L. Ed. 2d 1003. It is also argued that the common-law doctrine of sovereign immunity which extends to public officials applies in this action and that, unless the state has authorized or consented to suit, the court is without jurisdiction to entertain the suit or to render judgment binding on the state. The doctrine of sovereign immunity is well established in this state. Simmons v. Parizek, 158 Conn. 304, 306, 259 A.2d 642; Anderson v. Argraves, 146 Conn. 316, 319, 150 A.2d 295; Somers v. Hill, 143 Conn. 476, 479, 123 A.2d 468. Although the present action was brought against the defendant in his personal capacity, the state is correct in asserting that "[t]he fact that the state is not named as a defendant does not conclusively establish that the action is not within the principle which prohibits actions against the sovereign without its consent. . . . The vital test is to be found in the essential nature and effect of the proceeding." Somers v. Hill, supra, 479. The Somers case (p. 480) laid down the following criteria for determining whether "the suit is, in effect, one against the state and cannot be maintained without its consent": (1) a state official has been sued; (2) the suit concerns some matter in which that official represents the state; (3) the state is the real party against whom relief is sought; and (4) the judgment; though nominally against the official, will operate to control the activities of the state or subject it to liability. It is questionable whether any of these elements exist in the present action, but this need not be decided because the first element — = that a state official has been sued — is not satisfied. A public defender-in representing an indigent is not a public official as that term has been defined by this court. The essential characteristics of a "public office" are (1) an authority conferred by law, (2) a fixed tenure of office, and (3) the power to exercise some portion of the sovereign functions of government. Kelly v. Bridgeport, 111 Conn. 667, 671, 151 A. 268; Mechem, Public Officers § 1. A key element of this test is that the "officer" is carrying out a sovereign function. Even though the state must ensure that indigents are represented by competent counsel, it can hardly be argued that the actual conduct of the defense of an individual is a sovereign or governmental act. The principle that the state cannot function both as prosecutor and defender is so deeply rooted in our system of justice as to require no citation. The public defender when he represents his client is not performing a sovereign function and is therefore not a public or state official to whom the doctrine of sovereign immunity applies. The third ground of immunity raised by the state is § 4-165 of the General Statutes which provides that "[n]o state officer or employee shall be personally liable for damage or injury, not wanton or wilful, caused in the performance of his duties and within the scope of his employment. Any person having a complaint for such damage or injury shall present it as a claim against the state" under the provisions of chapter 53, § 4-141 to 4-165 of the General Statutes. General Statutes § 4-141 defines state officers and employees as including "every person elected or appointed to or employed in any office, position or post in the state government, whatever his title, classification or function and whether he serves with or without remuneration or compensation." With the passage of chapter 53, the General Assembly established a mechanism by which to resolve claims against the state: "There shall be a commission on claims which shall hear and determine all claims against the state except: . . . [the exceptions' are omitted since they are ¡not relevant here]." §4-142. "Claim" under chapter 53 means a petition for the payment or refund of money by the state or for permission to sue the state. § 4-141. "When the commission deems it just and equitable, it may authorize suit against the state on any claim for more than twenty-five hundred dollars which, in the opinion of the commission, presents an issue of law or fact under which the state, were it a private person, could be liable. . . . The rights and liability of the state in each such action shall be coextensive with and shall equal the rights and liability of private persons in like circumstances." § 4-160. Within that statutory framework, where the state is liable for the acts of its employees under § 4-160, the employees are immune from suit under § 4-165. Stated differently, the statute, while affording a person the potential right to sue the state, denies that person his right of action against the state's employees. Chapter 53, then, derogates the sovereign immunity of the state, extends an immunity not previously enjoyed by state employees, and thereby abrogates the previously existing rights of persons to seek redress against those employees. The provisions of chapter 53 aire subject to strict construction upon the principle that statutes in derogation of private rights should be strictly construed; Postemski v. Watrous, 151 Conn. 183, 187, 195 A.2d 425; Torrington v. Messenger, 74 Conn. 321, 325, 50 A. 873; and upon the principle that "[s]tatutes in derogation of sovereignty should be strictly construed in favor of the state, so that its sovereignty may be upheld and not narrowed or destroyed . Among the statutes in derogation of sovereignty and subject to the rule requiring strict construction in favor of the state are those allowing suits against the state or its representative, creating a claim against the state or waiving its immunity from liability." 82 C.J.S. 936, Statutes, § 391. See Murphy v. Ives, 151 Conn. 259, 196 A.2d 596; 2A Sutherland, Statutory Construction (4th Ed.) § 58.04. The manifest legislative intent expressed by chapter 53 is that an employee is immune where and because the state may be sued, and that the state may be sued in instances where a private person would be liable. See § 4-160 (a). This would includes the vicarious liability of a private person for the acts of his employees arising out of the scope of their employment under the doctrine of agency or respondeat superior. The intent to limit the liability of the state to that of a private person is inconsistent with the broad definition of "employees" in § 4-141, which would include even the status of independent contractor, for whose torts a private employer, as a general rule, is not liable. See Wright v. Coe & Anderson, Inc., 156 Conn. 145, 151, 239 A.2d 493; Lawrence v. Shipman, 39 Conn. 586, 588; Restatement (Second), 3 Torts § 409-29; Prosser, Torts (4th Ed.) § 71. In construing legislation, courts are required to reconcile apparently inconsistent provisions so far as that can be done. Dostmann v. Zoning Board of Appeals, 143 Conn. 297, 300, 122 A.2d 19. There is a rule of statutory construction that when an ambiguity exists, manifest legislative intention must prevail over the literal meaning of the words used. Dostmann v. Zoning Board of Appeals, supra, 300-301. As indicated above, the manifest intent of the statute is to limit the liability of the state to acts of its employees arising out of the employer-employee relationship. Thus, the pivotal issue to be determined for the purpose of this appeal is the nature of the relation ship between the state and the public defender once he has been appointed to represent a particular client, and whether that relationship is an "actionable agency relationship, that is, an agency relationship sufficient to impose liability under modern respondeat superior concepts or under any other theory of agency." Mitchell v. Resto, 157 Conn. 258, 260, 253 A.2d 25. Specifically, is the public defender, acting in the context of the attorney-client relationship, an employee or servant of the state for whose acts the state, were it a private person, would be vicariously liable? The legal incidents of the relation between an employer and an employee or independent contractor are well established. Lassen v. Stamford Transit Co., 102 Conn. 76, 79-80, 82, 128 A. 117. "In Alexander v. R. A. Sherman's Sons Co., 86 Conn. 292, 297, 85 A. 514, we adopted the definition that [a]n independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer, except as to the result of his work.' This definition has been amplified in subsequent cases but at no time has the basic principle been altered. See Francis v. Franklin Cafeteria, Inc., 123 Conn. 320, 324, 195 A. 198. . . . The fundamental distinction between an employee and an independent contractor depends upon the existence or nonexistence of the right to control the means and methods of work.' Beaverdale Memorial Park, Inc. v. Danaher, 127 Conn. 175, 179, 15 A.2d 17; see Kaliszewski v. Weathermaster Alsco Corporation, 148 Conn. 624, 628, 173 A.2d 497; Bourgeois v. Cacciapuoti, 138 Conn. 317, 320-21, 84 A.2d 122; Norwalk Gaslight Co. v. Norwalk, 63 Conn. 495, 524, 28 A. 32." Darling v. Burrone Bros., Inc., 162 Conn. 187, 195-96, 292 A.2d 912. It is true that a public defender may be told when he is to work and within what area, that he may be assigned to a requisite number of clients and to a particular client, and that he may be required to file reports and undergo training, but these elements of control are indicia of the master-servant relationship and incidents of a public defender's employment which are not within the scope of the attorney-client relationship. A person may be a contractor as to part of his service and a servant as to another part. Scorpion v. American-Republican, Inc., 131 Conn. 42, 45, 37 A.2d 802; Clough v. Estate of Malley, 126 Conn. 379, 382, 11 A.2d 398. The question of status, in the absence of controlling circumstances, is one of fact; Francis v. Franklin Cafeteria, Inc., 123 Conn. 320, 324, 195 A. 198; but when the decisive principles are applied to the present parties, it is clear as a matter of law that the status of the public defender, once the attorney-client relationship attaches, is that of an independent contractor rather than that of an employee. See Darling v. Burrone Bros., Inc., supra. The Connecticut public defender system derives its existence from our statutes, but these in no way attempt to control or otherwise influence the professional judgment of a lawyer who acts as a public defender. Once assigned, the public defender is free to act in behalf of his client as if he had been employed and retained by the defendant whom he represents. The source of his compensation is different but otherwise the relation of attorney and client is the same when a public defender appears for one accused of crime as would be the relation between privately employed counsel and client. In re Hough, 24 Cal. 2d 522, 528-29, 150 P.2d 448. See Espinosa v. Rogers, 470 F.2d 1174 (10th Cir.) " 'An attorney's allegiance is to his client, not to the person who happens to be paying him for his services.' Martyn v. Donlin, 151 Conn. 402, 413-14, 198 A.2d 700." Novella v. Hartford Accident & Indemnity Co., 163 Conn. 552, 573, 316 A.2d 394. That principle of general application is of particular force herein. The independence of the public defender and his freedom from entanglement with the state is a key constitutional underpinning of the Connecticut public defender system. It would be incongruous to say on the one hand that public defenders are insulated from "improper pressures or influences from any source, political or otherwise . to insure that they may fearlessly . . . defend . . . regardless of the public temper of the moment, or the power, influence or connections of the parties involved"; State v. Reid, 146 Conn. 227, 236, 149 A.2d 698; and on the other hand to give the state the right to interfere with the control of that defense in any greater degree than with the conduct of a defense by a privately employed attorney. While it need not decide if and to what extent a public defender enjoys immunity as an "employee" of the state, this court must conclude that the immunity conferred and the liability assumed by the state under chapter 53 was not intended to extend to the acts and omissions of a public defender which arise during the course of the attorney-client relationship and over which the state has no right of control. The defendant public defender in this case enjoys none of the immunities upon which the court below sustained the plea in abatement. There is error, the judgment is set aside and the case is remanded with direction to overrule the plea to the jurisdiction and then to proceed in accordance with the law. In this opinion the other judges concurred. Under General Statutes §54-80 — 54-81b (effective at the time of this action) the public defender system applied to every court in the state having criminal jurisdiction, and the judges of the Superior Court and the Circuit Court were respectively authorized to appoint as many assistant public defenders as they determined necessary. In addition, § 54-81 and 54-81a expressly authorized the appointment of counsel to serve, at state expense, as special public defenders when, for any reason, for example, a conflict of interest between two accused, there was any real question of the propriety or effectiveness of the public defender's acting for an accused. General Statutes § 54-80 through 54-81b have been repealed by 1974 Public Acts, No. 74-317. See chapter 887 of the General Statutes (Eev. to 1975), entitled "Public Defender Services," § 51-289—51-300. Article first, § 8 of the Connecticut constitution reads: "In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel . . . ." That right was secured to criminal defendants in this state long before the mandate of Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799, for the "roots of the Connecticut public defender system may bo said to go back at least as far as 1872." Mars, "Connecticut Public Defenders," 33 Conn. B.J. 297. For a history of the public defender system see State v. Hudson, 154 Conn. 631, 635, 228 A.2d 132 ("This state was the first to adopt the public defender system. Public Acts 1917, c. 225"); Wilbourne, "The Developing Bight to Counsel: Its Impaet on the Connecticut Public Defender System," 39 Conn. B.J. 221, 225-35; Mars, loc. cit. Chapter 53 was passed in 1959 after the constitution was amended as follows: "Claims against the state shall be resolved in such manner as may be provided by law." Conn. Const., art. eleventh, § 4. The legislative history of chapter 53 buttresses the conclusion that the grant of immunity to employees and the imposition of liability on the state was not intended to extend beyond the limits of a private person's liability. It was House Bill 4003 of the 1959 session of the General Assembly that ultimately became chapter 53 of the General Statutes. When the bill was reported to the Committee on Appropriations on May 20, 1959, the member of the council who reported it stated in part: "[A]t the direction of the General Assembly, the Legislative Council considered the question of claims against state officers and employees arising from their employment. After studying several alternatives, the Council recommends that the present tort liability attaching to state employment be extinguished and that any person having a claim against a state employee be directed to present it to the Commission as a claim against the state. Were the state liable in law for its torts, it would be liable in the same fashion and to the extent as its employees for damage or injury caused by such employees in the course and within the scope of their employment." Hearings before' the Joint Standing Committee on Appropriations, Pt. 3, 1959 Sess., pp. 919, 922. The court takes judicial notice of this transcript of a committee hearing. Although "[w]e have uniformly held that occurrences at such hearings are not admissible as-a means of interpreting a legislative act, any more than are the private reasons of individual members for supporting it; Litchfield v. Bridgeport, 103 Conn. 565, 573, 131 A. 560; Peck v. Fanion, 124 Conn. 549, 553, 1 A.2d 143 . . . ; [wjhere however, a report of a special commission or committee to the governor or General Assembly is presented to it, we consider it upon the assumption that its contents are generally known to the members of that body, at least in determining the general intent of the legislature. Institute of Living v. Hartford . . . [133 Conn. 258, 265, 50 A.2d 822]." State ex rel. Pettigrew v. Thompson, 135 Conn. 228, 233-34, 63 A.2d 154. This conflict is most glaring in the case of the private attorney appointed to serve as special public defender. He clearly functions as an independent contractor, but under the broad definition of § 4-141 he would be an employee of the state who would be immune from suit and for whose acts the state could be subject to suit. "Nor can an indigent accused without good reason refuse the services of a public defender and. compel the state to engage and compensate counsel of his own choice. State v. Nash, 149 Conn. 655, 661, 663, 183 A.2d 275, cert. denied, 371 U.S. 868, 83 S. Ct. 130, 9 L. Ed. 2d 104; State v. Taborsky, 147 Conn. 194, 201, 158 A.2d 239; State v. Reid, . . . [146 Conn. 227, 235, 149 A.2d 698]." State v. Hudson, 154 Conn. 631, 637, 228 A.2d 132. The judicial branch of government has the inherent power to determine qualifications necessary for the practice of law and to discipline and regulate the conduct of attorneys who are officers of its courts. Heiberger v. Clark, 148 Conn. 177, 169 A.2d 652. It should be noted in this context that the conduct of attorneys is in part regulated by tbe Code of Professional Besponsibility. The Canons and Disciplinary Buies contained in tbe Code of Professional Besponsibility as adopted by the American Bar Association and as recommended by the House of Delegates of the Connecticut Bar Association for adoption were approved, and the Ethical Considerations were approved in principle, by the judges of the Superior Court effective October 1, 1972. See Practice Book, 1974 Cumulative Supplement, note, p. 1. Disciplinary Bule 6-102, "Limiting Liability to Client," states: "A lawyer shall not attempt to exonerate himself from or limit his liability to his client for his personal malpractice." Ethical Consideration 6-6 states in part: "A lawyer should not seek, by contract or other means, to limit his individual liability to his client for his malpractice. A lawyer who handles the affairs of his client properly has no need to attempt to limit his liability for his professional activities and one who does not handle the affairs of his client properly should not be permitted to do so."

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

MacDonald, J. The issues raised by these two reservations, one from the Superior Court and one from the Court of Common Pleas under the same name, are identical and involve the constitutionality of § 7-433c of the General Statutes entitled "Benefits for policemen or firemen disabled or dead as a result of hypertension or heart disease." The relevant facts, as stipulated by the parties, are as follows: The plaintiff, Muriel Grover, is a dependent of Leo Grover, hereafter Grover, who died on September 7, 1971, from a coronary occlusion and who, at the time of his death, was employed as a regular paid member of the police department of the defendant town of Manchester. When first employed as a policeman, Grover successfully passed a physical examination which revealed no evidence of hypertension or heart disease. He did not sustain any accidental injury arising out of and in the course of his employment or suffer any repetitive trauma or acts which caused or contributed to his death, nor did he suffer from any occupational disease. His death was not compensable within the meaning of chapter 568 of the General Statutes, the Workmen's Compensation Act, and the commissioner, at a hearing, denied offers of the defendant town of Manchester to prove the foregoing facts concerning the cause of death. The commissioner also declined to decide the constitutional questions raised by the defendant town, and these questions, by stipulation, have been reserved to this court under the provisions of § 31-324 for reservations from the Superior Court, and § 31-301 for reservations from the Court of Common Pleas, in workmen's compensation appeals. The two questions thus reserved are as follows: (1) Does § 7-433c of the General Statutes deprive the town of Manchester of property without due process of law in violation of the due process clauses of the United States and Connecticut constitutions? (2) Does the class preference created by § 7-433c contravene § 1 of article first of the Connecticut constitution? Section 7-433c recently was before us in Grover v. Manchester, 165 Conn. 615, 353 A.2d 719, raising a procedural issue which was decided without a resolution of the two collateral constitutional questions raised here. It was enacted in its present form in 1971, as set forth in full in the footnote, within two weeks of our decision in Ducharme v. Putnam, 161 Conn. 135, 285 A.2d 318, which, declared unconstitutional a predecessor statute, Public Acts 1969, No. 380 § 1 (§ 7-433a), which had attempted to provide benefits identical to those of the statute now before us by raising a conclusive presumption. In Ducharme, we did not consider the merits of the legislature's intended purpose but only the method employed to attain that purpose. In other words, onr legislature promptly acted to do what this court could not do and refused to do in Ducharme and it rewrote the statute by simply providing special compensation, or even an outright bonus, to qualifying policemen and firemen. As we stated recently in Whitfield v. Empire Mutual Ins. Co., 167 Conn. 499, 507, 356 A.2d 139: " ' [A] plaintiff who attacks a statute on constitutional grounds has no easy burden.' . . . 'When 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. . . . It is a rule of statutory construction . . . that courts are bound to assume that the legislature, in enacting a particular law, did so upon proper motives and to accomplish a worthy objective.' " Although the statute under consideration is not regulatory, it does impose upon a town a financial obligation which, like restrictive regulations, is justified in the interest of promoting public safety, and does not deprive a town of property without due process of law. It is difficult to call to mind any field of activity more closely related to the public safety than that which seeks to encourage qualified individuals to seek employment as firemen and policemen. It is evident from the preamble to § 7-433c that the legislature took into consideration the peculiar problems and unusual risks attendant upon these occupations in determining that they properly occupy a different status from other municipal employees. No other group has to withstand the abuses and attacks of the oppressed and frustrated of our modern society or carry with them a constant apprehension that they may he the target of maniacal revenge; no other municipal employees are called out from the security of their homes to ensure the security of the homes of others; no other municipal employees are required to make immediate decisions which are the subject of debate and deliberation in our courts. This is, indeed, class legislation somewhat analogous to the veterans' bonus legislation which passed the constitutional tests applied in Lyman v. Adorno, 133 Conn. 511, 514, 52 A.2d 702, and we refer to the extensive collection of authorities cited in the opinion in that case. We conclude that the statute under consideration serves a proper public purpose and that, accordingly, the fact that it incidentally confers a direct benefit upon a certain class of individuals does not render it invalid as creating a class preference which contravenes § 1 of article first of the Connecticut constitution. For the foregoing reasons, each of the two questions submitted to us by reservation from the Court of Common Pleas in No. 7591 must be answered in the negative. Since the same two questions have been raised by reservation from the Superior Court in No. 7606, it would appear to serve no useful purpose and only to create unnecessary duplication of procedure and expense to require rendition of judgment in that court based upon identical answers. The reservation from the Court of Common Pleas was filed pursuant to § 31-301 of the General Statutes, which provides that all appeals from an award by a workmen's compensation commissioner shall be taken to the Court of Common Pleas. As originally adopted in 1961, this section provided for such appeals to be taken to the Superior Court, but it was amended in 1972 (Public Act No. 108, § 6, effective September 1, 1972) by the substitution throughout of "Court of Common Pleas" for "Superior Court." At that time, no action was taken specifically to amend or repeal § 31-324, which then provided, as it does now, for reservation by the Superior Court to this court, "[w]hen, in any case arising under the provisions of this chapter, the superior court is of the opinion that the decision involves principles of law which are not free from reasonable doubt," and, further, that a pro forma award be made by the commissioner pending the opinion of this court on such reservation/ The reference to "any case arising under the provisions of this chapter" identifies such a case as falling within the broad spectrum covered by § 31-301, and the conclusion is at least logical, if not inescapable, that it was only through oversight that § 31-324 was not either expressly repealed or amended by substituting "Court of Common Pleas" for "Superior Court" wherever the latter appears therein. In addition to that consideration, the provisions of Public Act No. 74-183, effective December 31, 1974, for appellate sessions of the Superior Court for the review of cases on appeal from the Court of Common Pleas, lead us to the conclusion that the reservation from the Court of Common Pleas was the proper procedure to follow and that the reservation from the Superior Court should be and hereby is dismissed for lack of jurisdiction. No costs will be taxed in this court in favor of any party. In this opinion the other judges concurred. "[Public Acts 1971, No. 524 § 1; General Statutes] Sec. 7-433c. BENEFITS FOB POLICEMEN OB FIREMEN DISABLED OB DEAD AS A RESULT of hypertension OB 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 sueh 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 sueh 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 sueh service, which examination 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 sueh 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 sueh examination shall be required as evidence in the maintenance of a claim under this section or under sueh 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." We employ the exact terminology of the statute rather than the more recent references to "firepersons" and "policepersons." The relevant portions of § 31-301, at all times pertinent to this action read, and presently read, as follows: "At any time within ten days after entry of such award by the commissioner or after a decision of the commissioner upon a motion, either party may appeal therefrom to the court of common pleas for the county in which the injury occurred . The procedure in appealing from an award of the compensation commissioner shall be the same as the procedure employed in an appeal from the court of common pleas to the supreme court." Section 31-324, at all times pertinent to this action read, and presently reads, as follows: "reservation op cases por the supreme court. When, in any case arising under the provisions of this chapter, the superior court is of the opinion that the decision involves principles of law which are not free from reasonable doubt and which public interest requires shall be determined by the supreme court, in order that a definite rule be established applicable to future cases, said court may, on its own motion and without any agreement or act of the parties or their counsel, reserve such ease for the opinion of the supreme court. Upon a reservation so made, no costs shall be taxed in favor of either party, and no entry fee, record fee, judgment fee or other clerk's fee in either court shall be taxed. If the commissioner finds that a claim before him involves a doubtful question of law, which the public interest requires should be finally and definitely determined, he may find the facts as in other cases and make his award, indicating that it is pro forma. A pro forma award shall be of the same effect as an award in ordinary cases except in the following particulars: On the filing of a pro forma award, the question shall come before the superior court as though an appeal had been taken, and said court shall thereupon reserve the case for the opinion of the supreme court in the manner herein indicated; but if, in the opinion of the superior court, the principles of law involved in the decision are in fact free from reasonable doubt and the public interest does not in fact require that they be determined by the supreme court, the superior court may, in its discretion, hear and determine the controversy as in other cases."

House, C. J. After a hearing, the defendant, commissioner of motor vehicles, notified the named plaintiff, Robert DiBenedetto, hereinafter the plaintiff, that his motor vehicle operator's license would be suspended for a period of one year. The suspension followed a finding and conclusion of a motor vehicle department adjudicator that the plaintiff caused or contributed to the death of Peter Jauernig which resulted from his negligence and carelessness in that he failed to keep a proper lookout for pedestrians of whose presence he was aware. See General Statutes § 14-1 (8), 14-4a, 14-111 (c). Pursuant to § 4-188 of the General Statutes (a part of the Uniform Administrative Procedure Act), the plaintiff, by way of petition, sought in the Court of Common Pleas a judicial review of the defendant's decision. The court dismissed the plaintiff's appeal and from that judgment the plaintiff appealed to this court. The sole issue raised on the petition for review to the Court of Common Pleas and on the appeal to this court is whether the evidence presented at the hearing supports the conclusion that the plaintiff failed to keep a proper lookout and that this failure constituted negligence and carelessness which caused or contributed to the death of Peter Jauernig. It is not the function of this court nor was it the function of the Court of Common Pleas to retry the case or substitute our or its judgment for that of the defendant. Balch Pontiac-Buick, Inc. v. Commissioner of Motor Vehicles, 165 Conn. 559, 563, 345 A.2d 520; see General Statutes § 4-183 (g). "The commissioner's function is that of an administrative agency, although he acts in a quasi-judicial capacity. To render a decision, he must weigh evidence and reach conclusions. See Dan M. Creed, Inc. v. Tynan, 151 Conn. 677, 679, 202 A.2d 239; Brookledge, Inc. v. Public Utilities Commission, 145 Conn. 617, 619, 145 A.2d 590; Conley v. Board of Education, . . . [143 Conn. 488, 492, 123 A.2d 747]; Adam v. Connecticut Medical Examining Board, 137 Conn. 535, 537, 79 A.2d 350." Balch Pontiac-Buick, Inc. v. Commissioner of Motor Vehicles, supra. The conclusion reached by the defendant must he upheld if it is legally supported by the evidence. Demma v. Commissioner of Motor Vehicles, 165 Conn. 15, 17, 327 A.2d 569; Conley v. Board of Education, 143 Conn. 488, 492, 123 A.2d 747; see Jaffe v. State Department of Health, 135 Conn. 339, 353, 64 A.2d 330. The credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency, and, if there is evidence printed in the appendices to the briefs which reasonably supports the decision of the commissioner, we cannot disturb the conclusion reached by him. Hart Twin Volvo Corporation v. Commissioner of Motor Vehicles, 165 Conn. 42, 49, 327 A.2d 588. The evidence included in the appendices to the briefs supports a finding of the following facts: On February 7, 1973, at approximately 8:25 p.m., the plaintiff was operating a motor vehicle in a westerly direction on route 80 in the town of North Branford. Accompanying him as a passenger was a friend, Regina Southerton. Route 80 runs in an east-west direction and has two traffic lanes, one running in each direction. Each traffic lane is about ten feet wide and there are paved shoulders five feet wide on both sides. A white line separates the traffic lane from the shoulder. The highway is straight and level, fairly well illuminated and with a posted speed limit of forty-five miles per hour. On the date of the accident, the weather was clear and the roadway dry.' At approximately the same time and place, Peter Jauernig was walking in a westerly direction on the shoulder of route 80. He was accompanied by four other persons who were walking with him. As the group reached a point across from Doody's Totoket Inn on route 80, Jauernig was about ten to fourteen inches north of the northerly edge of the vehicular-traveled portion of the highway. As the plaintiff was proceeding toward Jauernig and his companions, Regina Southerton, the passenger in the plaintiff's motor vehicle, shouted to him, "Look at the kids" or "Look out for the kids." Regina Southerton first saw Jauernig and his companions when the. plaintiff's automobile was about thirty feet away from them. The plaintiff then slowed down to forty miles per hour, swerved his vehicle to the left and heard a loud bang. An examination of the motor vehicle operated by the plaintiff disclosed that Peter Jauernig was struck by the right front fender of the car. His body was knocked into the air and thrown a distance of forty to sixty-five feet and came to rest partially on the grass adjacent to the shoulder of the highway and partially on the shoulder. The plaintiff did not apply his brakes before or immediately after he struck Jauernig. There were no tire or skid marks on the highway at the point of impact. After striking Jauernig, the plaintiff continued on for approximately 115 to 150. feet. At the time of the accident, neither Jauernig nor his companions were involved in horseplay, and at no time were any of them off the shoulder of the road. The brakes and tires on the plaintiff's automobile were in excellent condition. All lights on the vehicle were operational and the headlights were on at the time of the accident. Peter Jauernig died as a result of the injuries sustained in the accident. From the foregoing, which is only a portion of the evidence presented at the hearing and printed in the appendices, the defendant could reasonably conclude that the plaintiff did cause or contribute to the death of Peter Jauernig and that it did result from the plaintiff's negligence and carelessness in that he failed to keep a proper lookout for pedestrians of whose presence he was aware. There is no error. In this opinion the other judges concurred.

Per Curiam. The plaintiff applied for a writ of habeas corpus to test the legality of his arrest under a warrant issued by the governor of Connecticut pursuant to the authority of § 54-163 of the General Statutes and upon a demand for extradition made by the governor of California, all in accordance with the provisions of the Uniform Criminal Extradition Act. General Statutes, c. 964. The court denied the writ and the plaintiff brought the present appeal from that judgment. We find no merit whatsoever in the plaintiff's appeal. The finding of the court, which is not subject to any material correction, discloses a proper extradition request from California to extradite the plaintiff for the crime of forgery committed by the plaintiff in that state and that the plaintiff was in California at the time of the offense alleged. The plaintiff admitted depositing $40,000 worth of stolen checks and money orders in his personal savings account in California, leaving that state and driving to Connecticut where he was arrested for larceny when he attempted to transfer funds from the California savings account to a Connecticut bank. The court concluded that the plaintiff was present in California at the time of the commission of the alleged crime, that he fled from there and is a fugitive from that state, that California has made the appropriate written demand specified by the Uniform Criminal Extradition Act, that the plaintiff would not be deprived of his constitutional rights by being returned to California, and that returning him to that state would not be injurious to his health and would not endanger his life. The latter two findings, while of doubtful relevance to the extradition proceedings, were included because of the plaintiff's claim that he acted under duress in California and that returning him to that state would seriously endanger his health. In any event, whether the plaintiff's assertions were true presented questions of fact for the determination of the trial court. His lengthy criminal record was obviously a material circumstance in determining what credibility, if any, should be given to his testimony. We have recently reviewed the law applicable to extradition cases. See Glavin v. Warden, 163 Conn. 394, 311 A.2d 86; Reynolds v. Conway, 161 Conn. 329, 288 A.2d 77; Mandarano v. Tierney, 151 Conn. 155, 195 A.2d 48; McPheters v. Pollard, 146 Conn. 509, 152 A.2d 632. It would serve no useful purpose to repeat what we have so recently restated. We find no error in the judgment of the trial court which denied the plaintiff's petition for a writ of habeas corpus. There is no error.

The defendant's motion for an extension of time in which to refile her motion for judgment in the appeal from the Superior Court in Hartford County is dismissed as unnecessary.

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

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

It appearing that the defendant in the above-entitled case 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 unless the defendant files his brief on or before June 17, 1975. Walter D. Flanagan, assistant state's attorney, for the plaintiff (appellee). Donald F. Zezima, for the defendant (appellant). Argued May 6 decided May 6, 1975

Bogdanski, J. The plaintiff, Guillermo Aillon, was found guilty of three counts of murder after a jury trial. In November of 1973, the plaintiff learned from certain newspaper articles that the judge who presided at his trial had engaged in an ex parte conversation with a juror after the case had been submitted to the jury. The plaintiff thereupon filed a petition for a new trial pursuant to § 52-270 of the General Statutes. After a hearing on that petition, the court concluded that a new trial should be granted and from the judgment rendered the state has appealed to this court. The state has assigned error in the court's refusal to find material facts claimed to be admitted or undisputed, in finding certain facts without evidence, in finding facts of doubtful meaning, in the conclusions reached, in rulings on evidence, and in the overruling of its claims of law. The finding discloses that the voir dire of prospective jurors for the plaintiff's trial began on May 18, 1973. On June 26, 1973, the selection of twelve jurors and two alternates was completed. The actual trial commenced on July 5, 1973, and the presentation of evidence, including the testimony of sixty witnesses, lasted until August 22, 1973. On August 27,1973, the jury heard the closing arguments and, the next day, the court charged the jury. The two alternates were then dismissed and the jury began its deliberations. Those deliberations lasted until 8:20 p.m. on August 28, 1973, and continued on the next two days from 10:00 a.m. until 10:10 p.m. and from 10:00 a.m. until 10:55 p.m., respectively. On Friday, August 31, the jury again resumed their deliberations at 10:00 a.m. and at 7:45 p.m. were recalled to the courtroom after the jury foreman had written a note to the trial judge which stated that the jury was unable to "come to a unanimous decision." The trial court then gave the jury supplemental "Chip Smith" instructions; see State v. Smith, 49 Conn. 376, 386; concluding with the following charge: "Ladies and gentlemen of the jury, I now ask you to return to the jury room and to return a verdict if at all possible, whether tonight, tomorrow or the next day, but to continue your honest deliberations, as you have in the past and try to arrive at a conclusion." Counsel for the plaintiff objected to the giving of the "Chip Smith" charge, but he raised no objection to the resumption of deliberations by the jury. Two hours later, there was a discussion in the jury room concerning whether the jurors should remain and continue their deliberations or whether they should adjourn and return the next day. The procedure used by the jury on previous evenings to determine when they would adjourn was to reach an informal consensus, rather than to take a formal, written vote. One of the jurors, Kathleen Read, who had moved to Massachusetts during the course of the trial, wished to continue deliberations that evening in the hope of reaching a verdict so that she might return home to her family. At 10:00 p.m. she asked to see the judge and the jury foreman wrote a note stating that one of the jurors wished to speak with him "with regard to a personal matter." A short time later, the trial judge, accompanied by the sheriff, appeared at the doorway of the jury room, and juror Read 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 Read, 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 Read 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 Read responded, in the presence and hearing of the other jurors, "We 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. On the basis of the foregoing, the court concluded that any communication between a trial judge and members of a jikry in the absence of an accused and his counsel is ah extraneous influence which is presumptively prejudicial to the accused unless the state can overcome the presumption by showing that the communication was "harmless beyond a reasonable doubt." In determining that the state had failed to meet its burden of proof, the court stated its ultimate conclusion as follows: "Considering the length of time the jury had been deliberating, the reference to deliberating the following day and the next in the supplemental instructions, the lateness of the hour and the obvious weariness and strain some of the jurors must have felt, the court was not satisfied beyond a reasonable doubt that the conduct of the judge did not lead the jury to follow a course which was prejudicial to the plaintiff." The state has assigned error in those conclusions, claiming that not all communications between the trial judge and the jury in the absence of the accused are presumptively prejudicial. The state argues that the judge merely repeated his previous instructions to the jury that they should continue their deliberations, and that any error in so doing was harmless. It has long been the law of this state that jurors shall not converse with any person, not a member of the jury, regarding the cause under consideration; Bennett v. Howard, 3 Day 219, 223; Tomlinson v. Derby, 41 Conn. 268, 274; and that no person may be present with or speak to the jurors when they are assembled for deliberation; Cook v. Miller, 103 Conn. 267, 273, 130 A. 571. General Statutes § 51-245. Those rules are of vital importance to assure that the jury will decide the ease free from external influences that might interfere with the exercise of deliberate and unbiased judgment. "Nor can any ground of suspicion that the administration of justice has been interfered with be tolerated." Mattox v. United States, 146 U.S. 140, 149, 13 S. Ct. 50, 36 L. Ed. 917. It has thus become a universally accepted principle that communications between a judge and a jury, especially after the jury have begun deliberations, should be made only in open court in the presence of the parties. See 75 Am. Jur. 2d, Trial, § 1001; annot., 41 A.L.R.2d 227. In a criminal trial this rule takes on constitutional dimensions since the accused has a right to be present at every stage of the trial and to have the assistance of counsel for his defense. U.S. Const., amend. VI, XIV; Illinois v. Allen, 397 U.S. 337, 338, 90 S. Ct. 1057, 25 L. Ed. 2d 353; United States v. Wade, 388 U.S. 218, 226, 87 S. Ct. 1926, 18 L. Ed. 2d 1149; State v. Ralls, 167 Conn. 408, 419, 356 A.2d 147; see Shields v. United States, 273 U.S. 583, 588, 47 S. Ct. 478, 71 L. Ed. 787. Moreover, the accused's right to a fair trial in a fair tribunal is the very foundation of due process. "[T]he requirement of due process of law in judicial procedure is not satisfied by the argument that men of the highest honor and the greatest self-sacrifice could carry it on without danger of injustice. Every procedure which would offer a possible temptation to the average man . to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law." Tumey v. Ohio, 273 U.S. 510, 532, 47 S. Ct. 437, 71 L. Ed. 749; Estes v. Texas, 381 U.S. 532, 543, 85 S. Ct. 1628, 14 L. Ed. 2d 543. To preserve those rights of the accused, some jurisdictions have held that any communication between the trial judge and a deliberating jury in the absence of the accused and his counsel requires a new trial, whether or not the communication was prejudicial. See, e.g., Hoberg v. State, 3 Minn. 262, 269-70, 3 Gil. 181, overruled, Oswald v. Minneapolis & N.W. Ry. Co., 29 Minn. 5, 11 N.W. 112; State v. Murphy, 17 N.D. 48, 61, 115 N.W. 84; 58 Am. Jur. 2d 316, New Trial, § 110, and cases cited therein. See also State v. Werring, 111 Ariz. 68, 523 P.2d 499; State v. Cowman, 212 N.W.2d 420, 424 (Iowa). In other jurisdictions the accused must show that he was prejudiced in order to obtain a new trial. See, e.g., People v. Lee, 38 Cal. App. 3d 749, 755, 113 Cal. Rptr. 641; People v. Davis, 516 P.2d 120, 121 (Colo.); People ex rel. Walker v. Pate, 53 Ill. 2d 485, 505, 292 N.E.2d 387; State v. Schifsky, 243 Minn. 533, 543, 69 N.W.2d 89. In this state, an improper act of a judge does not automatically justify a new trial unless there has been prejudice to the unsuccessful party; Wood v. Holah, 80 Conn. 314, 316, 68 A. 323; and ordinarily the burden of establishing that an error of the trial court is harmful rests on the appellant. State v. L'Heureux, 166 Conn. 312, 323, 348 A.2d 578; State v. Vennard, 159 Conn. 385, 393, 270 A.2d 837, cert. denied, 400 U.S. 1011, 91 S. Ct. 576, 27 L. Ed. 2d 625. In this case, however, we are dealing with an intrusion into the constitutional rights of an accused. Thus, the accused is not required to show that the constitutional error was harmful; rather, the state must show that it was harmless heyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705. We conclude that the court applied the proper rule of law, and that it was incumbent upon the state to rebut the presumption of prejudice created by the trial judge's ex parte communication with the jury. See United States ex rel. Tobe v. Bensinger, 492 F.2d 232, 238 (7th Cir.); Bustamante v. Eyman, 456 F.2d 269, 273 (9th Cir.); State v. Pokini, 526 P.2d 94, 105, 107 (Hawaii); State v. Saul, 258 Md. 100, 108, 265 A.2d 178; State v. White, 191 Neb. 772, 774, 217 N.W.2d 916; State v. Brugger, 84 N.M. 135, 137, 500 P.2d 420; Badgwell v. State, 418 P.2d 114, 118 (Okla. Crim. App.). Whether the state met its burden of showing that the communication was harmless beyond a reasonable doubt is a close question on the facts of this case. We need not, however, decide whether the court properly exercised its discretion in ordering a new trial for the plaintiff, since certain rulings on evidence, assigned as error by the state, excluded testimony that had a direct bearing on the state's burden of proof. At the beginning of the hearing on the plaintiff's petition for a new trial, the state objected to any testimony being received from the jurors as to what had transpired in the jury room on the ground that such testimony was inadmissible to upset the verdict. The state's objection was based on this court's early approval of the rule adopted by Lord Mansfield in Vaise v. Deleval, 1 T.R. 11 (K.B. 1785), that evidence of juror misconduct or mistake could not be received from a juror to set aside his own verdict. State v. Freeman, 5 Conn. 348, 350, 352. Accord, Valentine v. Pollak, 95 Conn. 556, 558-59, 111 A. 869; Haight v. Turner, 21 Conn. 593, 596; Meade v. Smith, 16 Conn. 346, 356. After reviewing briefs submitted by the parties on that issue, the court stated that it "agrees with the State that there is a long line of early Connecticut cases holding the testimony of jurors cannot be received to set aside a verdict on the ground of mistake or misconduct on the part of the jurors. However, the court feels that that line of cases should be and is distinguished from taking testimony as to the fact of extraneous influences, although not evidence as to the effect on the deliberations or influence on the mental process of the jurors. . . . The court will accept testimony from the jurors as to the facts of extraneous influence but it will not receive evidence as to the effect that this influence may have had on the deliberations or on the mental process of any individual juror or group of jurors. The court feels that it must apply an objective test, assessing for itself, whether or not, there is a likelihood that that influence would affect a jury outcome. On that basis the objection of the State is overruled." Insofar as that ruling abandoned the extension of Lord Mansfield's rule that a juror is always incompetent to testify in impeachment of his verdict, it was correct. As noted in State v. Freeman, supra, 351-52, the various policies behind the rule were to give stability to the verdicts of jurors, to minimize the temptation for jury-tampering, and to prevent inquisition into the arguments and reasoning of the jurors that go into their ultimate verdict. Those policies are served equally as well by a narrower rule "which excludes, as immaterial, evidence as to the expressions and arguments of the jurors in their deliberations and evidence as to their own motives, beliefs, mistakes and mental operations generally, in arriving at their verdict." McCormick, Evidence (2d Ed.) § 68, p. 148. That rule has been aptly described as applying the parol evidence rule to a jury's verdict, so that their outward verdict as finally and formally made, and not their prior and private intentions, is taken as exclusively constituting the act. 8 Wigmore (McNaughton Rev.), Evidence §2348, 2349. On the other hand, the rule does not prohibit juror testimony regarding the failure to obey certain essential formalities of juror conduct, i.e., irregularities and misconduct extraneous to the mental operations of the jury. See, generally, Wigmore, op. cit., § 2352, 2353, 2354; 76 Am. Jur. 2d, Trial, § 1219-1229. See, also, Mattox v. United States, 146 U.S. 140, 149, 13 S. Ct. 50, 36 L. Ed. 917. Thus, any conduct in violation of § 51-245 of the General Statutes may he established by the testimony of a juror. As early as 1866 it was recognized "[t]hat affidavits of jurors may be received for the purpose of avoiding a verdict, to show any matter occurring during the trial or in the jury room, which does not essentially inhere in the verdict itself, as that a juror was improperly approached by a party, his agent, or attorney; that witnesses or others conversed as to the facts or merits of the cause, out of court and in the presence of jurors; that the verdict was determined by aggregation and average or by lot, or game of chance or other artifice or improper manner." Wright v. Illinois & Miss. Tel. Co., 20 Iowa 195, 210. And, as Justice William J. Brennan, Jr., stated: "Evidence of the actual effect of the extraneous matter upon jurors' minds can and should be excluded, as such evidence implicates their mental processes, but receiving their evidence as to the existence of the condition or the happening of the event . . . supplies evidence which can be put to the test of other testimony (and thus sound policy is satisfied) and at the same time the evidence can serve to avert . a grave miscarriage of justice, which it is certainly the first duty of a court of conscience to prevent if at all possible." State v. Kociolek, 20 N.J. 92, 100, 118 A.2d 812; see Perry v. Bailey, 12 Kan. 539, 544. There was, then, no error in receiving juror testimony regarding the ex parte conversation between the trial judge and juror Read and juror Read's statements upon her return to the jury room. That testimony did not implicate the mental processes of the jurors as long as they were prevented from giving evidence of the actual effect that it had on their minds. Subsequent to the court's ruling on the reception of juror testimony, the state established, during cross-examination of juror George Kudasch, that the procedure used by the jury to determine whether they would adjourn their deliberations was to reach an informal consensus, and that no formal vote was taken. The court accepted that statement in its findings of fact. The state then asked juror Kudasch whether there had been a consensus among the jurors regarding adjournment at the time juror Bead went to speak to the trial judge. Juror Kudasch answered, "We were talking about that, whether we should adjourn and come back the next day, but the general feeling was to finish it — finish the job that night — or that morning." The state then asked if it was the general feeling of the jurors to remain, to which juror Kudasch responded, "Yes." The plaintiff's counsel then objected and moved to strike the answer as "incompetent within the framework of your Honor's ruling." The court agreed, ruling that the question and answer went to the mental processes of the jurors. The state took no exception to that ruling. Later in the hearing, during direct examination of juror Gerard Boy, the attorney for the state asked if the conversation between juror Bead and the judge could be heard inside the jury room. Juror Boy responded, "No, sir, because, of course, everybody was mumbling and talking and we were still discussing what we were talking about before, whether we should stay or go home." The plaintiff's counsel then objected; the court sustained the objec tion because the answer was "getting into the deliberations of the jury"; the answer was stricken; and the state took exception to the ruling. Since the state took no exception to the exclusion of juror Kudasch's testimony, it has not assigned that ruling as error. The state has, however, assigned error in the restriction of juror Roy's testimony. The state claims that once the court ruled that juror testimony was permissible to show the occurrence of an irregularity, it should have permitted the state to show the existence of a condition that would mitigate the prejudicial effect of that irregularity. As that claim relates to the evidence excluded in this case, we must agree. The excluded testimony dealt only with whether the jurors had reached a consensus to remain or adjourn before juror Read returned from her ex parte conversation with the trial judge. The decision to continue deliberations, if it had been made, is one that does not "inhere" in the verdict or implicate the arguments of the jurors. It does not in any way bring forth the motives, beliefs or mental operations of the jurors in arriving at their verdict. Rather, one juror's testimony that a consensus had been reached to remain or to adjourn is an objective, controvertible fact that can be put to the test of the other jurors' testimony. The harmfulness of the ruling is apparent. In its ultimate conclusion the court stated that it was "not satisfied beyond a reasonable doubt that the conduct of the judge did not lead the jury to follow a course which was prejudicial to the plaintiff." The court was concerned with the lateness of the hour, the length of jury deliberations and, implicitly, with the coercive effect that the ex parte conversa tion may have had on the jurors. See Rice v. United States, 356 F.2d 709, 717 (8th Cir.). That concern might well have been reduced if the state had been able to establish that the jurors had reached a consensus to continue their deliberations before juror Bead returned from her conversation with the judge. Whether the evidence would show that a consensus had been reached, or whether such a showing would have led the court to a different conclusion, is not for this court to decide. It is enough that the evidence sought to be elicited by the state was improperly excluded and that that evidence had a direct bearing on the state's burden of proof. Because of that erroneous ruling on evidence, we are constrained to order a new hearing on the plaintiff's petition for a new trial. There is error, the judgment is set aside and the case is remanded for further proceedings in accordance with this opinion. In this opinion the other judges concurred. While the state has taken great care to preserve for our review most of its assignments of error directed at the finding of facts, a thorough examination of the appendix to its brief leads us to conclude that no additions or corrections are warranted. The requested corrections are directed at findings that are both supported by the evidence and clearly understandable; and the requested additions to the finding are not "admitted or undisputed" facts or are not material in that they will not affect the result. See Practice Book § 628; Anderson v. Pension & Retirement Board, 167 Conn. 352, 353 n.1, 355 A.2d 283. It is true that the trial judge did little more than repeat his earlier instructions that the jury should continue deliberations, but it is not so clear how juror Read repeated those instructions. See Ah Fook Chang v. United States, 91 F.2d 805, 808 (9th Cir.). Nor is it so clear what course of action would have been taken if the plaintiff and his counsel had been advised that juror Read had raised a question about .the length of deliberations. See United States v. Dellinger, 472 F.2d 340, 377-80 (7th Cir.), cert. denied, 410 U.S. 970, 93 S. Ct. 1443, 35 L. Ed. 2d 706. "Accordingly, it is today universally agreed that on a motion to set aside a verdict and grant a new trial the verdict cannot be affected, either favorably or unfavorably, by the circumstances: that one or more jurors misunderstood the judge's instruction; or were influenced by an illegal paper or by an improper remark of a fellow juror; or assented because of weariness or illness or importunities; or assented under an erroneous belief that the judge would use clemency or have the legal right to vary the sentence; or had been influenced by inadmissible evidence; or had decided upon grounds which rendered newly discovered evidence immaterial; or had omitted to consider important evidence or issues; or had miscalculated accounts by errors of fact or of law; or had by any other motive or belief been led to their decision." (Emphasis omitted.) 8 Wigmore (McNaughton Rev.), Evidence § 2349, and cases cited therein.

Longo, J. The plaintiff board of aldermen (hereinafter board), acting as the zoning commission, denied the Bridgeport Community Antennae Television Company (hereinafter BCATC) permission to erect a tower facility for receiving off-the-air tele vision and FM radio signals and retransmitting signals via microwave. BCATC appealed the decision of the hoard to the public utilities commission (hereinafter commission). After a public hearing the commission modified the decision of the board which denied BCATC's application and authorized the construction of a tower facility in Shelton to serve the towns of Bridgeport, Stratford, Milford, Orange and Woodbridge. The board appealed the commission's decision to the Court of Common Pleas. The court reviewed the record of the proceedings before the commission and dismissed the appeal. From that decision the board has appealed to this court. In its finding the commission concluded (1) that BCATC had made reasonable efforts to find alternate locations for the best site for the needed tower; (2) that none of the opponents of the application had offered an alternate site or alternate methods of receiving off-the-air television signals which were as available and as technically sufficient as the proposed site; (3) that the site proposed by BCATC best serves the public convenience and necessity, and meets the required standards of public health, safety and welfare; and (4) that compared to the greater public interest, any inconvenience to residents below the hill on which construction of the tower is proposed will be minimal. The board has assigned error as to each of the above conclusions, claiming that the commission acted arbitrarily, illegally and in abuse of its discretion in arriving at its decision. Further, the board claims error in the failure of the commission to require the presentation of expert evidence as to (1) the allegation of radio and television interference, and (2) whether property values would be reduced because of the construction of the tower. In appeals of this nature the court cannot substitute its discretion for that legally vested in the commission, but determines on the record whether there is a logical and rational basis for the decision of the commission or whether, in the light of the evidence, it has acted illegally or in abuse of its discretion. General Statutes § 4-183 (g); Connecticut Television, Inc. v. Public Utilities Commission, 159 Conn. 317, 328, 269 A.2d 276; Kram v. Public Utilities Commission, 126 Conn. 543, 550, 12 A.2d 775. The board bears the burden of proof as to the existence of any abuse. Briggs Corporation v. Public Utilities Commission, 148 Conn. 678, 687, 174 A.2d 529. The board's claim that the commission acted arbitrarily in finding that BCATC made reasonable efforts to find alternate locations is considered in the light ofi the evidence printed in the appendix to BCATC's brief. See Guglielmo v. Klausner Supply Co., 158 Conn. 308, 320, 259 A.2d 608; compare Maltbie, Conn. App. Proc. § 253. It is clear from the evidence presented by BCATC to the commission that locations in at least five towns were considered in the quest for a suitable site but were rejected for technical, legal and financial reasons as inadequate. Hence, the finding was adequately supported by the evidence submitted to the commission. Cf. Sierra Club v. Lynn, 502 F.2d 43, 62 (5th Cir.). The burden rests upon the board to establish its claim that other superior sites which could be obtained exist. Wilson Point Property Owners Assn. v. Connecticut Light & Power Co., 145 Conn. 243, 260, 140 A.2d 874. Other than suggesting the existence of several sites, it does not appear in the finding, nor in the board's brief and appendix, that the board made any effort to substantiate the availability of any alternative sites. Hence, the commission properly found that the board failed to meet its burden. The board in its brief argues that the commission should not have made findings with respect to the minimal inconvenience to property owners owing to claimed radio and television interference emanating from the tower and with respect to the reduction of property values resulting from the construction of the tower, absent expert evidence to that effect. Neither the General Statutes nor any regulations impose a requirement that findings of the commission akin to the ones in the present case must be supported by expert testimony. Jaffe v. State Department of Health, 135 Conn. 339, 350, 64 A.2d 330. The record indicates that the commission made its findings with due consideration for all the relevant factors involved and that the trial court was correct in upholding its action. The court was not merely presented with post hoc rationalizations for the commission's action, as was the trial court in Citizens to Preserve Overton Parle v. Volpe, 401 U.S. 402, 419, 91 S. Ct. 814, 28 L. Ed. 2d 136, but reviewed the proceedings before the commissi on. Those proceedings clearly indicate that the commission did indeed consider the possibility of television interference. Furthermore, there is nothing in the record or appendix to the board's brief indicating that the board made any allegations supported by claims of fact to the effect that the construction of the tower potentially and fairly arguably would have a significant detrimental impaet. BCATC was not required to present expert testimony and the commission acted properly in applying its own expertise in weighing the merits of the nonexpert testimony before it. Brook Ledge, Inc. v. Public Utilities Commission, 145 Conn. 617, 619, 145 A.2d 590; Regs. Conn. State Agencies § 16-1-38 (e). There is no error. In this opinion the other judges concurred. The board's attack on the finding by the commission that the site proposed by BCATC best served the public convenience and necessity and met the standards of public health, welfare and safety is limited to a recapitulation of the board's other assignments of error and raises no additional issues, and hence is disposed of in the body of the discussion.

The motion by Benjamin M. Chapnick to withdraw his appearance in behalf of the plaintiff in the appeal from the Superior Court in New Haven County is granted.

The plaintiff's motion to dismiss the appeal from the Superior Court in Tolland County is denied. The defendant's motion to dismiss the plaintiff's cross appeal filed May 20, 1975, from the Superior Court in Tolland County is denied.

Cotter, J. The defendant was convicted by a jury of the crime of manslaughter in the first degree; General Statutes § 53a-55 (a) (3); and has appealed from the judgment rendered on the verdict. That statute penalizes a person who, "under circumstances evincing an extreme indifference to human life . . . recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person." She assigns error in the court's denial of her motions for a directed verdict and to set aside verdict, in its charge to the jury and in certain evidentiary rulings. From a review of the evidence the jury could have found the following: On the .evening of December 18, 1971, the Canton police department received a telephone call at approximately 10:40 p.m. from a woman who stated that she had just shot her husband. Responding to the call, Officer Stephen W. Cudworth proceeded to the defendant's home. Upon arrival, he spoke with the defendant and observed her husband's body lying on the floor next to the bed, with one leg on each side of one of the bedposts. In addition, Officer Cudworth saw that there were four holes in the top sheet on the bed next to where the body was located; the body was clad only in a sweatshirt and undershorts. Officer Cudworth observed an indentation in the pillow found on the side of the bed near the body. Dr. Harold F. West, a Canton physician, called to the residence, pronounced Alexander M. Brown dead; he detected the odor of alcohol on the defendant's breath. A subsequent autopsy performed by Dr. Elliot M. Gross revealed that death had been caused by a gunshot wound of the right chest, and that the fatal bullet came to rest at a point three- and-one-half inches higher than the point of entry into the body. Later that same evening the defendant was interviewed in her home by Sergeant John D. LaDucer of the Canton police department. After she had been properly advised of her constitutional rights, she told the sergeant that she and her husband had been drinking wine and talking together prior to the shooting, and that she had picked up a rifle in the living room, and, after loading it, followed her husband into the bedroom. She further informed Sergeant LaDucer that while she was holding the rifle it discharged, and her husband fell to the floor; she did not explain why she had loaded the gun or how she happened to point it toward her husband. The rifle used in the shooting of the victim is a single-shot, .22-caliber model that cannot be fired without first retracting the bolt and loading it, and then pulling back a knob or safety on the gun. The gun can then be fired only with a trigger pull in excess of four pounds. During the trial, several expert witnesses appeared for the state, among whom were two employees of the Federal Bureau of Investigation. David M. Lattin, a special agent assigned to the F.B.I. laboratory, testified to his special training in the microscopic analysis of fibers, hairs, and related materials. His microscopic examination of the nose of the bullet taken from the body of Alexander Brown revealed five white cotton fiber particles adhering to the nose of the bullet. Agent Lattin performed a microscopic examination of the white cotton fibers taken from the nose of the bullet and the fabric composition of both the sheet and the sweatshirt which the victim was wearing at the time of his death. He had no way of knowing whether the fibers on the bullet came from the specific sheet in question. However, his examination disclosed five white cotton fibers on the front end of the bullet which were consistent with the fabric composition of the sheet but inconsistent with the fabric composition of the sweatshirt. In addition, he found four blue cotton fibers, of the same type noted in the composition of the sweatshirt, around two of the holes located in the sheet, while no foreign fibers were found on the sweatshirt. Robert Frazier, another F.B.I. special agent, testified as to his special training in the field of weapons, ammunition and ballistics. He examined the same sheet with the four holes which agent Lattin had examined. That examination revealed a piece of unburned gunpowder on the margin of the lowest of the four holes in the sheet. Agent Frazier also found that the four holes in the sheet had the physical appearance of small caliber bullet holes on the order of a .22 caliber. He further testified that those holes in the sheet had characteristics consistent with the passage of a single bullet of approximately .22 caliber through two folds in the sheet. Agent Frazier also gave expert testimony describing the path of a bullet through fabrics in close proximity, including the interlocking propensities of fibers from the various fabrics and the capacity for the bullet to pick up fiber particles from the fabrics through which the bullet has traveled. Dr. Gross, the chief medical examiner of the state, and an experienced forensic pathologist, testified to his prior professional experience involving cases in which bullet holes were found in various fabrics and materials. In conducting the autopsy he performed on the body of Alexander Brown, Dr. Gross passed a surgical probe instrument through the four holes in the bedsheet. It was his opinion that these holes were caused by a bullet passing through the sheet. On the basis of this and other evidence, the state claimed to have proved, beyond a reasonable doubt, the defendant guilty of first degree manslaughter under § 53a-55 (a) (3), viz., that under circumstances evincing an extreme indifference to human life, she recklessly engaged in conduct which ere ated a grave risk of death to Alexander Brown, and thereby caused his death. A crucial element of the defense was that the deceased was not in bed at the time the bullet was fired as the state claimed, but that he was standing in a comer of the bedroom and that the gun went off in the defendant's hands accidentally as she entered the bedroom to prepare to go shooting ducks with her husband. Accordingly, during the trial, the defendant moved to strike that portion of Agent Lattin's testimony concerning the fibers on the bullet passing through the sheet and Agent Frazier's testimony that it was conceivable that the same bullet caused the holes in the sweatshirt and the sheet; the court denied the motion and the defendant excepted. The defendant thereafter filed with the court requests to instruct the jury to disregard such testimony of these two witnesses; the court declined to charge as requested, to which the defendant excepted. The defendant on appeal assigns error in the court's denial of the motion to strike the evidence and its refusal to instruct the jury as requested. We refer to the finding to determine the validity of such claims. State v. Savage, 161 Conn. 445, 446, 290 A.2d 221. Concerning Agent Lattin's testimony, the defendant claims that since the witness had no way of knowing whether the fibers on the bullet came from a specific sheet on the victim's bed, there was no sufficient factual basis for his testimony that the fibers taken from the bullet could have come from the sheet. Agent Lattin's testimony on this point, the defendant argues, amounted to a mere possibility or supposition of the type which this court has held "will not sustain a legitimate inference of the existence of a fact." General Petroleum Prod ucts, Inc. v. Merchants Trust Co., 115 Conn. 50, 58, 160 A. 296. In this case, however, there was a considerable amount of additional unchallenged evidence properly supporting an inference that the fatal bullet passed through the sheet in question. There was, for example, evidence that the body of the victim was found next to the bed from which the sheet was taken; that the victim was clad only in a sweatshirt and shorts; that the fibers on the bullet were inconsistent with the fabric composition of the sweatshirt but consistent with that of the sheet; that the sheet was pulled down farther on one side of the bed than the other; and that there was a residue of gunpowder on the margin of one of the holes in the sheet. We have stated that "[i]t is not any one fact, but the cumulative impact of a multitude of facts, which establishes guilt" in a case involving substantial circumstantial evidence. State v. Walters, 145 Conn. 60, 69, 138 A.2d 786, cert. denied, 358 U.S. 46, 79 S. Ct. 70, 3 L. Ed. 2d 45. In Walters, it was determined that although there was merely a scientific possibility that blood on the defendant's shirt came from the victim, evidence of the common grouping to which both blood samples belonged was admissible in light of the additional evidence linking the victim's blood with that on the defendant's shirt. Id., 68-70. Similarly, as the Walters principle is applied to the facts of this case, Agent Lattin's inability to trace the white cotton fibers taken from the bullet to the specific sheet taken from the bed with scientific certainty did not render inadmissible his testimony suggesting a linkage between the two pieces of physical evidence, when this testimony is viewed in light of all of the other evidence supporting the same inference. The defendant has also attacked Agent Frazier's testimony that in his opinion the four holes in the sheet and the single hole in the sweatshirt were consistent with the path of a single projectile; essentially, the defendant claims that this witness' testimony was east in terms of reasonable possibility and not of probability, so that it was inadmissible under the rule cited previously in General Petroleum Products. Again, there was substantial additional evidence supporting the inference raised in the challenged testimony. In addition to the testimony previously cited, for example, there was evidence that when the body of the deceased was found, there were four holes in the sheet with dark tracings around their perimeter; that there was blood around the hole of the sweatshirt which the deceased was wearing when he was found by Officer Cudworth; and that the perforations in the sheet were the result of the passage of a bullet. It was not error, then, for the court to admit Agent Frazier's testimony on the trajectory of the bullet. State v. Walters, supra. The court did not err in denying the defendant's motion to strike the disputed portions of the testimony of Agents Lattin and Frazier, or in declining to instruct the jury to disregard that testimony. Error is also assigned in the court's refusal to instruct the jury to disregard all evidence concerning the holes in the sheet and the victim's death, as requested by the defendant. While there was no "direct" evidence, as the defendant indicates, establishing a relationship between the holes in the sheet and the death of Alexander Brown, there was significant circumstantial evidence to which we have previously referred from which the jury might have inferred the existence of snch a relationship beyond a reasonable doubt. "There is no legal distinction between direct and circumstantial evidence so far as probative force is concerned." State v. Cari, 163 Conn. 174, 179, 303 A.2d 7; 30 Am. Jur. 2d, Evidence, § 1091. This evidence was properly placed before the jury for its consideration. The defendant also claims error in admitting the testimony of Dr. Gross that in his opinion the four holes in the sheet were caused by a bullet path through the sheet. The basis of her objection was that there had been no prior testimony "connecting the sheet with Mr. Brown." The challenged testimony of Dr. Gross, however, did not refer to the death of the victim, but merely to the causal connection between the holes in the sheet and the firing of the bullet. His testimony to that effect was well within the scope permitted him as a qualified expert witness. See State v. Grayton, 163 Conn. 104, 111, 302 A.2d 246, cert. denied, 409 U.S. 1045, 93 S. Ct. 542, 34 L. Ed. 2d 495; State v. Smith, 157 Conn. 351, 356, 254 A.2d 447. The court did not err in admitting Dr. Gross' testimony. Finally, error is assigned in the court's denial of the defendant's motions for a directed verdict and to set aside verdict, because of alleged insufficiency of the evidence. The evidence printed in the appendices to the briefs, recited earlier, however, fully supports the verdict of the jury. The rulings of the court on the motion for a directed verdict and to set aside the verdict, then, were free of error. State v. Hafner, 168 Conn. 230, 242-43, 362 A.2d 925. There is no error. In this opinion the other judges concurred. The defendant's assignment of error in the court's denial of her motion to dismiss the information has not been briefed and is considered abandoned.

Shea, J. In a trial to the jury the defendant was found guilty of having a weapon in a motor vehicle in violation of General Statutes § 29-38; of possession of heroin in violation of General Statutes § 19-481 (a); and of possession of cocaine in violation of the same statute. In his appeal from the judgment the defendant claims error only in the failure to grant his motion to suppress certain evidence seized after a search of the automobile he was driving at the time he was taken into custody. The principal issue raised is whether the arresting police officer violated the provisions of Practice Book § 1004, which allows Connecticut residents and those of states which are parties to the interstate no-bail compact to be released without bail when charged with most traffic offenses. We find no violation. The factual background is adequately set forth in a memorandum of decision, Maloney, J., denying the defendant's motion to suppress and a supplementary rectification thereof. See Practice Book § 3082, 3060D. The court found that on November 4,1980, at about 9 p.m. a state police officer stopped the defendant on interstate highway 1.-95 in Milford after a radar device indicated that he was proceeding at seventy-four miles per hour in an area where the posted speed limit was fifty-five miles per hour. The defendant was operating the vehicle, which was also occupied by two passengers. The officer approached and asked the defendant for his driver's license and vehicle registration. The defendant produced a Canadian driver's license, which had been issued in Toronto in the province of Ontario, and a Hertz rental agreement for the car. This agreement named another person as lessee of the car, but a document was attached permitting the defendant also to operate it. The officer informed the defendant that he was being charged with speeding and that it was necessary under Conneet- icnt law to take him into custody because he was not a resident of a jurisdiction, which was a member of the no-bail compact. Although the defendant claims to have told the officer before he was taken into custody that he resided in Connecticut, the court, relying on the testimony of the officer, found that he had not done so. The court also found that the defendant was not in fact a resident of this state. On appeal the defendant appears to challenge these findings somewhat obliquely, but we are satisfied from reviewing the testimony that they are well supported by the evidence and certainly not "clearly erroneous" as required for correction. Practice Book § 3060D. After telling the defendant that he was being arrested for speeding, the officer, in accordance with the policy of the state police department, conducted a "pat-down" search of the defendant's person. In doing so the police officer discovered a large wad of money and a paper bag containing foil packets which the officer, on the basis of training he had received in narcotics detection as a state policeman, suspected to contain narcotics. The defendant was then informed that he was being arrested also for illegal possession of narcotics and was advised of his constitutional rights. When the officer inquired whether there was any weapon in the vehicle the defendant replied that there was a pistol in the trunk. The defendant was then requested to open the trunk. Inside the trunk the officer discovered some closed bags or purses, a transparent plastic bag which appeared to contain narcotics and a paper bag containing narcotics paraphernalia. The defendant indicated that the gun was in one of the purges. Upon opening this purse the officer found a loaded pistol, some glass- ine envelopes, and some identification cards of the defendant from other states. The various items in the trunk as well as the foil packets found on the person of the defendant were seized as evidence. The defendant moved before trial to suppress this evidence claiming that its seizure was illegal. The defendant did not contest the search of his person and his vehicle as incident to the arrest, but only the validity of the arrest itself. "It is an established rule that a properly conducted warrantless search incident to a lawful arrest is not illegal." State v. Penland, 174 Conn. 153, 155, 384 A.2d 356, cert. denied, 436 U.S. 906, 98 S. Ct. 2237, 56 L. Ed. 2d 404 (1978). The arrest itself must be valid, however, for the search to be legal. Id.; State v. Cobuzzi, 161 Conn. 371, 373, 288 A.2d 439 (1971), cert. denied, 404 U.S. 1017, 92 S. Ct. 677, 30 L. Ed. 2d 664 (1972); see United States v. Robinson, 414 U.S. 218, 235, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973); Agnello v. United States, 269 U.S. 20, 30-31, 46 S. Ct. 4, 70 L. Ed. 145 (1925); Weeks v. United States, 232 U.S. 383, 392, 34 S. Ct. 341, 58 L. Ed. 652 (1914). The defendant relies upon these principles in maintaining that the searches of his car and his person were unlawful because he had not been properly arrested before they were conducted. He does not dispute that the officer had probable cause to arrest him for speeding but contends (1) that the search of his person, which may have led to the subsequent search of the car, took place before he was taken into custody, and (2) that the officer did not comply with Practice Book § 1004 in arresting him on the speeding charge. The first contention advanced by the defendant, that the search of his person preceded his arrest, is contrary to the finding of the court that the officer "patted down" the defendant only after first informing him that he was being taken into custody for speeding because he was not a resident of a no-bail compact jurisdiction. This finding is adequately supported by the testimony of the officer. It was within the prerogative of the trial court to disbelieve the defendant's conflicting testimony. Arbour v. McCullough, 186 Conn. 280, 285-86, 440 A.2d 980 (1982); Piantedosi v. Floridia, 186 Conn. 275, 277, 440 A.2d 977 (1982); DeLuca v. C. W. Blakeslee & Sons, Inc., 174 Conn. 535, 547, 391 A.2d 170 (1978). Furthermore, there is no requirement of a formal announcement of arrest. Dunaway v. New York, 442 U.S. 200, 212, 99 S. Ct. 2248, 60 L. Ed. 2d 824 (1979); State v. Januszewski, 182 Conn. 142, 160-61, 438 A.2d 679 (1980); State v. Derrico, 181 Conn. 151, 159, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980). If the search of the defendant's person was of the search-for-weapons variety sanctioned by Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), as a protective measure when a policeman stops a person who he reasonably suspects has committed an offense, no fourth amendment infraction would have occurred. If it exceeded the limits of such a search, it was in effect a seizure of the person amounting to an arrest. The existence of probable cause based upon the speeding violation, however, satisfies the fourth amendment. See United States v. Robinson, supra, 232-35. The claim that the requirements of Practice Book § 1004 were not followed when the defendant was taken into custody has two aspects: (1) that the officer made no inquiry as to whether the defendant was a resident of Connecticut before taking him into custody; and (2) that, if he had done so, he would have concluded that the defendant did reside in this state. The trial court found that the officer did not inquire expressly as to the defendant's residence before taking him into custody, but simply inferred that he was not a resident of this state when the defendant handed him a Canadian driver's license. The officer did explain that he was required to arrest the defendant because of his nonresidence. The court rejected the testimony of the defendant that he had declared before he was taken into custody that he was a state resident living in Hartford. Even if the court had found to the contrary, the officer would have been justified under all the circumstances in relying upon the Canadian license which the defendant had displayed initially as evidencing his place of residence. Section 1004 does not prescribe the protocol to be observed in implementing its provisions. We find nothing in the conduct of the officer which was not reasonably related to achieving the purpose of this rule of practice. The only support to be found for the claim that, if the officer had made a more elaborate inquiry before arrest, he would have concluded that the defendant was a Connecticut resident is the faet that the police report prepared afterward lists a Hartford address for him. This circumstance is of little significance, in view of the trial court's express finding that the defendant did not in fact reside in this state, which the defendant cannot successfully challenge as we have already determined. This finding makes it clear that he is in no position to claim the benefit of § 1004, which is limited to residents of this state and of no-bail compact jurisdictions. Wright v. Brown, 167 Conn. 464, 468, 356 A.2d 176 (1975); Hassett v. Palmer, 126 Conn. 468, 473, 12 A.2d 646 (1940) (a party must be within the class of persons protected by a statute to claim a violation of a statutory duty). Our conclusion that the arrest of the defendant was lawful imports that his motion to suppress was properly denied. There is no error. In this opinion the other judges concurred. The defendant's appeal, as amended, states that he appeals from the "judgment of memorandum of decision' on motion to suppress and dismiss." Since the appeal was taken after final judgment, we have, as the state suggests in its brief, treated it as an appeal from the judgment of conviction in which the denial of the motion to suppress is claimed as error. See Angier v. Barton, 160 Conn. 204, 207, 276 A.2d 782 (1970). "[Practice Book] See. 3004. - -custody not required "Except for those offenses listed in See. 1005, a resident of the state of Connecticut or of a state that is a signatory of the interstate no-bail compact shall be issued a summons and complaint, and, unless charged with an infraction, he shall be released by the law enforcement officer without bail on his promise to appear. A resident of any other jurisdiction may, in the discretion of the law enforcement officer, be taken into custody or be issued a summons and complaint and released without bail on his promise to appear." The state challenges these principles as applied to the present case where the basis for the claim of illegality in the arrest is no more than a failure to comply with a state statute or regulation concerning arrests which is unrelated to the protection of constitutional rights. Cf. United States v. Turner, 558 F.2d 46, 50 (3d Cir. 1977); State v. Surowiecki, 184 Conn. 95, 99-100, 440 A.2d 798 (1981) (Shea, J., dissenting); State v. Andries, 297 N.W.2d 124, 125 (Minn. 1980); State v. Liberti, 161 N.J. Super. 575, 580-81, 392 A.2d 169 (1978) (search warrants held valid despite procedural irregularities). Our disposition of this ease makes it unnecessary and inappropriate to address that issue.

Per Curiam. The sole issue in this case is the enforceability by third party beneficiaries of a contract allegedly abandoned by the promisor and promisee. The plaintiffs, Mia Rowe, Elaine DiStasi, Edmund DiStasi, Lawrence DiStasi and Anthony DiStasi, brought an action seeking damages and the imposition of a constructive trust upon real and personal property of the defendant, Leo Paul Cormier. The trial court, after a full hearing, rendered a judgment for the defendant and the plaintiffs have appealed. In its memorandum of decision, the trial court found the following facts. The plaintiffs were the children by a previous marriage of Margaret Cormier, the defendant's deceased wife. In 1970, as a result of marital difficulties, Margaret Cormier initiated divorce proceedings against the defendant. These proceedings were terminated when the parties reconciled. In connection with the reconciliation, Margaret Cormier and the defendant entered, on November 9, 1970, into the agreement which is the subject matter of this law suit. That agreement provided that real property at 286 Brooldawn Road, Stratford, and monies in unspecified savings accounts, all of which were then being held in the sole name of the defendant, should be transferred into the name of the defendant and Margaret Cormier jointly and in survivorship. The agreement also stipulated that Margaret Cormier and the defendant were to draw wills leaving the real property and the bank accounts to whichever one survived and thereafter one-half to the present plaintiffs and one-half to the defendant's nephew Edward Norris Cormier, Jr. The trial court further found that, after execution of this agreement, the Cormiers resumed their married state and lived together until Margaret Cormier's death in 1978. No steps were ever taken by either of the Cormiers to perform or to compel performance of the agreement. The agreement was abandoned. At the time of Margaret Cormier's death, the agreement was no longer viable and enforceable. The plaintiffs therefore could not prevail in their 1979 action on this agreement. The plaintiffs, on this appeal, argue that the trial court was in error in its conclusion that the agreement between Margaret Cormier and the defendant, had been abandoned at the time of Margaret Cormier's death in 1978. The plaintiffs do not contest the well-established rule that rescission or abandonment of contracts, like entry into a con tractual relation, depends upon the intent of the parties and that the relevant intent is to be inferred " 'from the attendant circumstances and conduct of the parties.' " Yale Co-operative Corporation v. Rogin, 133 Conn. 563, 568, 53 A.2d 383 (1947); Osborn v. Stevens, 132 Conn. 410, 414, 45 A.2d 160 (1945). Whether the parties have manifested an intention to modify or abandon their agreement is ordinarily a question of fact. First Hartford Realty Corporation v. Ellis, 181 Conn. 25, 33, 434 A.2d 314 (1980); Lar-Rob Bus Corporation v. Fairfield, 170 Conn. 397, 402-403, 365 A.2d 1086 (1976). The plaintiffs can only prevail in their appeal therefore if they can sustain the burden of showing that the trial court's factual finding of abandonment was "clearly erroneous in view of the evidence and pleadings in the whole record." Practice Book § 3060D; Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). There was ample evidence to support the finding of abandonment. Attachments that had been placed on the defendant's property in connection with the divorce proceedings initiated by Margaret Cormier in October, 1970, were released the following February without any performance whatsoever of the terms of the November, 1970, agreement. Margaret Cormier was represented by her own attorney during this time. The defendant testified that, upon their reconciliation, he and Margaret Cormier agreed to "forget about" their prior agreement, and that, in his presence, Margaret Cormier so informed her attorney. Although one bank account was subsequently transferred into joint names with survi-vorship, the defendant testified that this transfer was motivated by a specific request from Margaret Cormier and not by their prior agreement. While Margaret Cormier nonetheless retained a copy of the agreement, and delivered it to one of the plaintiffs for safekeeping in 1975, the court might reasonably have found this evidence insignificant in light of the evidence of Margaret Cormier's earlier actions that demonstrated her intention to abandon the agreement. See M. Shapiro & Son Construction Co. v. Battaglia, 138 Conn. 238, 244, 83 A.2d 204 (1951). Taken as a whole, this record demonstrates that the trial court's finding of abandonment was not clearly erroneous. The plaintiffs have not claimed that Margaret Cormier and the defendant lacked the power to abandon their November, 1980, agreement. We expressly reserve for another day the question of what circumstances, if any, may suffice to vest rights in third party beneficiaries so that a promisor and promisee may not thereafter modify or abandon their contractual obligations to such beneficiaries. See 2 Restatement (Second), Contracts (1981) §311; E. Farnsworth, Contracts (1982) § 10.6. There is no error. Margaret Cormier's attorney did not testify at the trial of this case.

Shea, J. The defendant was charged with assault in the third degree; General Statutes § 53a-61; risk of injury to a minor; General Statutes § 53-21; and interference with a police officer; General Statutes § 53a-167a; as the result of an incident with a neighbor's child. The jury returned a verdict of not guilty on the assault charge, but found the defendant guilty on the other two counts. The trial court imposed sentence on the count charging interference with a police officer but set aside the guilty verdict on the risk of injury charge and rendered a judgment of acquittal on that charge. The state has appealed from that judgment. The state claims the trial court erred in setting aside the verdict, whether the basis for the court's decision was that the evidence was insufficient to support the verdict or that an acquittal on the assault charge was inconsistent with a guilty verdict on the risk of injury charge. The defendant argues that the trial court's decision to set aside the verdict should be upheld because the evidence was insufficient to support a guilty verdict. In the alternative, the defendant claims that the corn- plaining witness, who was six years old at the time of trial, lacked competency to testify, and that the trial conrt erred in admitting his testimony, without which there would be insufficient evidence to convict the defendant of risk of injury to a minor. The defendant also claims that the guilty verdict should not be reinstated because the trial court improperly instructed the jury on the general intent element of the crime of risk of injury. He claims also that a new trial is prohibited because it would subject him to double jeopardy. The defendant, John Allen Martin, lived with Lonise Evon, who had an arrangement to care dnring working honrs for the child of a neighbor who lived in another apartment in the building. Under the arrangement Louise supervised the child, Jonathan, in her own apartment from the time he returned home from school until his mother returned home from work late in the evening. On the afternoon in question, the defendant and other adult relatives of Louise were in the apartment when a squabble broke out between Jonathan and another child. Although the exact sequence of events is unclear, a brief scuffle then ensued in which the defendant allegedly pushed Jonathan into a wall and then to the floor. Jonathan's mother had not yet left for work and, upon hearing noise of a disturbance, went to the defendant's apartment and retrieved her son. The child had sustained a bloody nose, a split lip, a lump on his head, facial bruises, and red marks on his arm. A later hospital examination revealed welts and scratches on the child's chest and back. The trial court set aside the verdict on the risk of injury count because it viewed this conclusion of guilt as inconsistent with the jury's finding of not guilty on the charge of assault in the third degree. Its ruling was also based upon the insufficiency of the evidence to support the guilty finding. "Consistency in the verdict is not necessary." Dunn v. United States, 284 U.S. 390, 393, 52 S. Ct. 189, 76 L. Ed. 356 (1932). Our eases are in accord with this principle which has been accepted by most jurisdictions. State v. Rosado, 178 Conn. 704, 708-709, 425 A.2d 108 (1979); State v. Manning, 162 Conn. 112, 122, 291 A.2d 750 (1971); see annot., 18 A.L.R.3d 259; 16 A.L.R.3d 866. It continues to be reaffirmed by the United States Supreme Court. Hamling v. United States, 418 U.S. 87, 101, 94 S. Ct. 2887, 41 L. Ed. 2d 590 (1974); United States v. Dotterweich, 320 U.S. 277, 279, 64 S. Ct. 134, 88 L. Ed. 48, reh. denied, 320 U.S. 815, 64 S. Ct. 367, 88 L. Ed. 492 (1943). In State v. Rosado, supra, we recognized the inconsistency between a guilty verdict upon a count of sale of a narcotic substance, where the information alleged that the defendant had personally handed the narcotic to the informant, and a verdict of not guilty on a count of possessing the narcotic based upon the same incident. We concluded that the many possible explanations for the acquittal on one charge did not necessarily indicate that the jury had acted improperly in convicting the defendant on the other. Id., 709. The trial court erred to the extent that it relied upon inconsistency as a ground for setting aside the verdict of guilty on the risk of injury charge. The trial court also erred in concluding that there was insufficient evidence to support the verdict. The crime of risk of injury in this case required proof beyond a reasonable doubt of the following elements: (1) that the victim was less than sixteen years old; (2) that the defendant had perpetrated an act upon the victim; (3) that this act was likely to he injurious to his health; and (4) that the defendant had a general criminal intent to perform such act. See General Statutes § 53-21; State v. Pickering, 180 Conn. 54, 64, 428 A.2d 322 (1980). In reviewing the sufficiency of the evidence supporting a jury verdict, this court must construe that evidence in the most favorable manner reasonably possible to support the jury verdict. Josephson v. Meyers, 180 Conn. 302, 313, 429 A.2d 877 (1980); State v. Avcollie, 178 Conn. 450, 461, 423 A.2d 118 (1979), cert. denied, 444 U.S. 1015, 100 S. Ct. 667, 62 L. Ed. 2d 645 (1980); State v. Rossier, 175 Conn. 204, 207, 397 A.2d 110 (1978). From the evidence presented the jury could have reasonably found beyond a reasonable doubt the following facts: The child, Jonathan, was five years old when the incident occurred. On the day in question Jonathan and the defendant were both in the apartment of Louise Evon. The defendant had recently returned from picking up a paycheck from a job which he had recently lost. Jonathan had been squabbling with another child and was crying. The defendant, believing Jonathan was misbehaving, grabbed the child by the arm and pushed him face first into the kitchen wall. Then the defendant threw the child down onto the floor in the adjoining room. Louise attempted to stop the defendant. As the result of these actions the child sustained superficial injuries to his face, head and arm. Shortly after the incident the defendant gave two conflicting descriptions of the incident to the investigating police officer, one admitting he had thrown the child and the other blaming Louise for the child's injuries. Testimony controverting this version of the incident was provided by the defendant, Lonise Evon and her adnlt relatives present in the apartment at the time. The resolution of conflicting testimony, however, "is properly within the province of the jury who determine the credibility of the witnesses and the weight to be accorded to their testimony." Kubeck v. Foremost Foods Co., 179 Conn. 486, 487, 427 A.2d 391 (1980); see State v. Spates, 176 Conn. 227, 238, 405 A.2d 656 (1978); DeLuca v. C. W. Blakeslee & Sons, Inc., 174 Conn. 535, 547, 391 A.2d 170 (1978); Dulski v. Appel, 172 Conn. 187, 192, 374 A.2d 177 (1976). We find that as a matter of law the jury had a reasonable basis for concluding that the defendant was guilty of risk of injury. The court set aside the verdict erroneously. As an alternative ground for sustaining the judgment of acquittal for insufficiency of the evidence, the defendant argues that the testimony of the child-complainant, Jonathan, should be stricken as incompetent. The defendant maintains that although the trial court has wide discretion in competency determinations, the court failed to follow State v. Rodriguez, 180 Conn. 382, 429 A.2d 919 (1980), which requires a court to inquire whether a proposed witness possesses an "ability to recollect and narrate intelligently." Id., 389; State v. Siberon, 166 Conn. 455, 457, 352 A.2d 285 (1974); and an "intelligent comprehension of the facts sought to be developed." State v. Rodriguez, supra, 389; State v. Segerberg, 131 Conn. 546, 548, 41 A.2d 101 (1945). After reviewing the transcripts of the preliminary hearing and the trial testimony of Jonathan, we do not find that the court abused its discretion in admitting the child's testimony. See State v. Rodriguez, supra, 389. During the competency hearing the trial court did not permit either counsel to elicit a complete narrative of the incident from the child, ruling that the child had sufficiently demonstrated his intelligent recollection of the incident by describing the persons present, the individual who hit him and some of the surrounding circumstances. The child's trial testimony demonstrated an ability to narrate the crucial elements of the incident consistently and intelligently, although his memory of the actions of persons other than the defendant during the incident and of events immediately following is somewhat vague and limited. Such shortcomings, however, are not unusual in the testimony of victims of a traumatic experience and are properly considered as going to the weight of the testimony rather than its admissibility. The defendant has advanced an additional reason for affirming the action of the trial court in setting aside the verdict on the risk of injury count. He claims that the trial court erred in failing to instruct the jury properly on the element of the general criminal intent required for a conviction. The trial court rejected this ground when it was first urged by the defendant in support of his motion to set aside. The defendant testified, in effect, that if he had caused any injury to the complainant it was wholly accidental. His version of the incident was that when he returned home he observed Jonathan crying in the kitchen. He took the child by the arm with one hand and by the shoulder with his other hand and marched him into the living room, the child being directly in front of him. As he got about four feet into the living room from the kitchen doorway, someone grabbed him from behind. He spun around, his plastic kneecap locked and he fell on top of Louise, who was behind him. He did not know whether he had touched Jonathan as he fell on top of Louise, but he admitted that his reflex action in swinging out his arms to prevent his fall might have caused the child to be pushed against a table. His testimony was substantially corroborated by that of Shirley Ham-mick, Louise Evon and Lorraine Evon. The trial court charged the jury that "a person who does any act likely to impair the health of a child under the age of sixteen is guilty of the crime of risk of injury." Essentially the same instruction was twice repeated later in the charge. The jurors were advised that no specific intent had to be shown for this crime, unlike assault in the third degree for which a person must intend to cause physical injury and unlike interference with a police officer for which intentional interference is necessary. The charge continued: "You will recall that the allegations of the State here are that the accused threw the child against the wall and then onto a floor in a room. If, in fact, that was done and you so find and that the alleged bruises or bruise on the head, cut lip, bloody nose and bruises and welts on the body did, in fact, take place, or any combination of these, this is such conduct on the basis of which a jury could appropriately base a conclusion that the health of the child was likely to be impaired, particularly if you take into account the fact that the child was in custody of the household of which the defendant was a member. Health as used in this statute means the state of being hale, sound or whole in body and mind, the state of physical well-being; likely, of course, means in all probability or possibly; to impair means to make worse or to diminish in quality or value, to weaken or deteriorate. To repeat, a person who does any act likely to impair the health of a child under the age of sixteen is guilty of the crime of risk of injury as it applies to this case. I'm going to have a further word to say about the crime of risk of injury in a moment after I've defined for you the crime of assault in the third degree." The defendant took exception only to the risk of injury portion of the charge, claiming that the element of general criminal intent was inadequately defined, especially in view of the testimony that any injury to the child had occurred accidentally. He sought a further instruction that one element of risk of injury is that the offender must have "a general intent or knowledge that he's doing an act that is going to likely impair the morals of a minor." Two general types of behavior likely to harm children are proscribed by our risk of injury statute, §53-21: "(1) deliberate indifference to, acquiescence in, or the creation of situations inimical to the minor's moral or physical welfare . . . ; and (2) acts directly perpetrated on the person of the minor and injurious to his moral or physical well-being." State v. Dennis, 150 Conn. 245, 250, 188 A.2d 65 (1963). Under the evidence presented, the court properly limited the jury to consideration of only the second of these classifications. "Specific intent is not an element of the crime defined in the second part of § 53-21." Id., 251. A general intent to do the proscribed act is required, however, as it is ordinarily for crimes of commission rather than omission. State v. Bitting, 162 Conn. 1, 5, 291 A.2d 240 (1971); see State v. Tedesco, 175 Conn. 279, 288-89, 397 A.2d 1352 (1978); State v. Penn, 144 Conn. 148, 154, 127 A.2d 833 (1956); State v. Hayes, 127 Conn. 543, 584-85, 18 A.2d 895 (1941). We need not on this occasion define fully what is encompassed by "intent to do the proscribed act" in the context of §53-21. The culpable mental state in any event would not include the involuntary reflex action which the defendant claimed to have occurred. "To some extent . all crimes of affirmative action require something in the way of a mental element — at least an intention to make the bodily movement which constitutes the act which the crime requires . . . ." LaFave & Scott, Criminal Law (1972) §28, p. 201; see State v. Truppi, 182 Conn. 449, 453-54 nn.2-3, 438 A.2d 713 (1980), cert. denied, 451 U.S. 941, 101 S. Ct. 2024, 68 L. Ed. 2d 329 (1981); Model Penal Code § 201 (1) (2); 22 C.J.S., Criminal Law § 29, p. 99. The defense of accident raised by the defendant clearly presented the issue of whether his act, which may have caused the child to be injured, was an intended bodily movement likely to injure him. The failure of the court even to allude to this defense as one which the state had to disprove was a serious deficiency in the charge. If the jury took literally the unqualified instruction that a person is guilty of risk of injury who does any act likely to impair the health of a child, they may well have viewed the evidence supporting this defense as of no consequence. The failure to mention the basic claim of accident made by the defendant was not cured by the reference in the charge to "acts of such a nature that a general criminal intent could be inferred .This statement was followed by pointing out that if the jury found that the defendant "threw the child against the wall and then onto a floor in a room" such conduct would appropriately support a conclusion that the statute had been violated. Although the use of the word "threw" may imply a voluntary act, it is also susceptible of the interpretation that even if the reflex action of the defendant's arm had caused the child to be thrown and to be injured, as the defendant and his witnesses testified, the crime would be sufficiently established. In excepting to the charge the defendant adequately pointed out the flaw in the instructions given to the jury and a curative instruction should have been given discussing the general intent requirement in the context of the defense of accident which had been raised. The defendant makes a further contention that a finding of error in the charge necessitates a remand for acquittal rather than for a new trial because of the prohibition against double jeopardy. We have previously held that, where a jury verdict has been erroneously set aside for insufficient evidence and the trial court has acquitted the defendant, as occurred here, our reinstatement of the verdict on appeal does not offend that constitutional principle. State v. Avcollie, 174 Conn. 100, 107, 384 A.2d 315 (1977); State v. Avcollie, 178 Conn. 450, 453, 423 A.2d 118 (1979), cert. denied, 444 U.S. 1015, 100 S. Ct. 667, 62 L. Ed. 2d 645 (1980). In Avcollie the defendant did not raise any claims of error com mitted during the trial of the case until after it had been remanded to the trial court for judgment on the verdict and another appeal was taken. See State v. Avcollie, 188 Conn. 626, 453 A.2d 418 (1982). In the case before us the defendant has elected to compress the two-step procedure followed in Avcollie into one proceeding on appeal by raising as an additional ground to sustain the trial court in setting aside the verdict its claim of error in the charge, which had also been advanced in the trial court. Since the defendant could hardly have claimed double jeopardy if the trial court had set aside the verdict as he requested and ordered a new trial on this ground; see United States v. Scott, 437 U.S. 82, 93, 98 S. Ct. 2187, 57 L. Ed. 2d 65, reh. denied, 439 U.S. 883, 99 S. Ct. 226, 58 L. Ed. 2d 197 (1978); United States v. Tateo, 377 U.S. 463, 467, 84 S. Ct. 1587, 12 L. Ed. 2d 488 (1964); we see no stronger basis for such a claim simply because our review has brought about the desired result. The trial court did not err in setting aside the verdict, since such action was required because of error in the charge. There is error, however, in the rendition of a judgment of acquittal; that judgment is vacated and a new trial is ordered. In this opinion the other judges concurred. During oral argument it was discovered that our normal procedures for the rendition of a jury verdict had not been followed in this case. The defendant did not raise this irregularity in the trial court nor was it claimed as error in this appeal until questions from the bench brought it to light. See Practice Book § 3063, 3012 (a) and 3060P (a). Since the defendant had a fundamental constitutional right to a jury trial, we deem it appropriate to consider whether the deviation from our established practice which occurred constitutes a violation of that right or should be noticed as "plain error" in the interests of justice. State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973); Practice Book §3063. The transcript of the proceedings at the time the verdict was returned indicates the following: "The Court: Bring in the jury. Will the clerk please take the roll call. "The Clerk: Ladies and gentlemen of the jury, please answer to your name, and as you are called, rise. Are you agreed upon a verdict in the case of the State of Connecticut v. John Allen Martin? "Foreman: Yes, we have. "The Clerk: Mr. Foreman, on the first count, charging the accused with risk of injury to a minor, what say you, is ho guilty or not guilty? "Foreman: Guilty. "The Clerk: On the second count, charging the accused with assault in the third degree, what say you, is he guilty or not guilty? "Foreman: Not guilty. "The Clerk: On the third count, charging the accused with interference, what say you, is he guilty, or not guilty? "Foreman: Guilty. "The Clerk: You upon your oaths do say that on the first count charging the accused with risk of injury with a minor mentioned in the information he is guilty and on the second count charging the accused with assault in the third degree mentioned in the information he is not guilty and on the third count charging the accused with interference mentioned in the information he is guilty and so say you all? "Ladies and gentlemen of the jury, attend to your verdict as accepted by the Court and recorded— "The Court: Not yet. You may be seated, ladies and gentlemen. I want to thank you very much for your participation in this case. I know that this is a very antielimactical aspect of every case because most jurors want to know how the Judge feels about their verdict and the Judge is not supposed to tell you about how he feels about the verdict. It's your verdict and not my verdict. Consequently, all I can do is thank you for your patience. Ladies and gentlemen, you're free to go. "Are there any motions?" The action of the trial court in deferring acceptance of the verdict and in excusing the jury before doing so was contrary to our standard procedure for the establishment of a valid jury verdict as described in State v. DiPietro, 120 Conn. 537, 538-39, 181 A. 716 (1935). See State v. Avcollie, 174 Conn. 100, 104, 384 A.2d 315 (1977). The delivery of the verdict by the foreman of the jury orally in open court and the proclamation by the clerk of that verdict as understood and ordered recorded by the court provide "a double safeguard against mistake." State v. DiPietro, supra, 539. "After the verdict has been announced and before it has been accepted, the court may refuse to accept it if it is not in proper form or otherwise imperfeet, or it may refuse to accept it for the time being and return the jury to a second and even third consideration of the ease." Id.; see General Statutes § 52-223; Practice Book § 311. "The judicial authority shall, if the verdict is in order and is technically correct, accept it without comment." Practice Book § 868. The trial court seems to have been under the mistaken impression that acceptance of the verdict would preclude setting it aside later. Obviously a verdict cannot be set aside unless it first has been validly rendered. Acceptance of the verdict signifies merely that the court views it as satisfactorily responding to the issues in the ease and that returning the jury for further consideration is not warranted. Rigid adherence to our established procedure, though salutary, is not an absolute prerequisite to the rendition of a jury verdict. State v. Avcollie, supra, 104-105. "All that is required is, that the verdict should be rendered in open court by the whole jury." Raymond v. Bell, 18 Conn. 81, 90 (1846). Unlike our practice, federal courts do not provide an automatic cheek upon the unanimity of the verdict announced by the foreman of the jury by means of further inquiry directed to the jury as a whole. Fed. R. Crim. Proc. § 31(a); see Miranda v. United States, 255 F.2d 9, 17 (1st Cir. 1958). A poll of the individual jurors must be conducted upon the seasonable request of a party or upon the court's own motion. Fed. R. Crim. Proc. § 31(d). Some other jurisdictions have established procedures similar to our standard procedure by court rule or by statute. See Fla. Buies of Crim. Proc., Rule 3.440, p. 156; Givens v. State, 76 Md. 485, 25 A. 689 (1893); Longfellow v. State, 10 Neb. 105, 4 N.W. 420 (1880); State v. Jackson, 21 S.D. 494, 496-98, 113 N.W. 880 (1907). The action of the trial court in discharging the jury prior to ordering the verdict accepted and recorded does not have the effect of invalidating it. State v. Avcollie, supra, 106; State v. DiPietro, supra, 540. The verdict was not defective in form and the discharge of the jury indicates that the trial court had no intention of returning them for further consideration of the ease as authorized by the rule or the statute. This action, to which there was no objection by either party, has deprived the defendant of the additional guaranty of unanimity which the customary "so say you all" after repeating the verdict provides. The transcript indicates that the clerk did make this inquiry after the foreman had recited the verdicts upon the three counts of the information, but it does not indicate any response by the jurors. Although the jurors may have silently indicated an affirmative answer to this question which was not recorded by the court stenographer, we do not rely on this possible construction of the transcript. See State v. Mosca, 90 Conn. 381, 385, 97 A. 340 (1916). "[I]t is to be presumed that the jury assent to a verdict rendered in their presence and hearing." Raymond v. Bell, supra, 90. We have refused to find a verdict defective where no such inquiry was even made so long as the other jurors were present in the courtroom when the foreman announced the verdict. State v. Avcollie, supra, 105; Raymond v. Bell, supra, 86-87. We conclude that the absence in the transcript of any express assent by the other jurors to the verdict as announced by the foreman is not a defect of such magnitude as to invalidate it. We also note that there is no inconsistency between the acquittal on the third degree assault charge and the conviction of risk of injury. A specific intention to cause physical injury is an essential element of the crime of assault in the third degree in violation of General Statutes $ 53a-61 (a) (1), as the jury were instructed. General Statutes § 53a-61 provides as follows: "assault in the third degree: class A misdemeanor, (a) A person is guilty of assault in the third degree when: (1) With intent to cause physical injury to another person, he causes such injury to sueh person or to a third person; or (2) he recklessly causes serious physical injury to another person; or (3) with criminal negligence, he causes physical injury to another person by means of a deadly weapon or a dangerous instrument." The substituted information alleged the commission of the erime of "Assault 3d . in violation of General Statutes No. 53a-61" but did not specify which of these subsections was relied upon. In the charge the trial court limited the jury to consideration of subsection (1) of § 53a-61. The erime of risk of injury to a minor child in violation of General Statutes § 53-21 requires no such intent. State v. Dennis, 150 Conn. 245, 251, 188 A.2d 65 (1963). This reference of counsel to impairment of the "morals" of the child was obviously erroneous. Under the instructions to the jury, as well as the evidence, the issue of impairment was limited to the physical health of the child.

Petebs, J. This case involves the liability of police officers, and the town by which they are employed, for injuries arising out of a police pursuit of a suspected law violator. The plaintiff, Joseph Tetro, brought an action alleging negligence on the part of the individual defendants, Anthony Rich and William Thornton, and vicarious liability on the part of their employer, the town of Strat-ford. After a trial, a jury returned a verdict for the plaintiff in the amount of $59,000. The defendants are appealing from the adverse judgment which followed from the trial court's denial of their motion to set aside the jury's verdict and to enter a directed verdict in their behalf. The jury might reasonably have found the following facts. The defendants Rich and Thornton, members of the Stratford police department, were in their patrol car on March 4, 1975, at about 12 noon, when they observed a green Chevrolet parked in a shopping center parking lot off Stratford Avenue. They thought the Chevrolet might have been stolen because the boys in the ear looked too young to have valid drivers' licenses. When the police approached the Chevrolet to make inquiries, the boys drove off. The police ear pursued the Chevrolet, with the police car's siren working and revolving dome light flashing. Both the fleeing and the pursuing car reached speeds of approximately fifty miles per hour. When the Chevrolet left the parking lot, it headed west on Stratford Avenue, toward Bridgeport, in a densely populated urban area. At the Stratford/ Bridgeport town line, Stratford Avenue bifurcates, with Stratford Avenue becoming one way easterly, and Connecticut Avenue becoming one way westerly. The Chevrolet, with the police car in close pursuit, proceeded westerly, the wrong way, on Stratford Avenue, until the Chevrolet collided with two cars including that of the plaintiff Tetro. The plaintiff, who had been driving his car in a lawful manner, heard the police car's siren but was unable to determine its source before his car was struck head-on. With regard to the defendants' failure to exercise due care, the jury could reasonably have found that the town of Stratford had adopted, prior to this accident, a policy concerning the conduct of high speed chases by police officers. That policy urged police officers to avoid high speed chases as much as possible, and to consider, before under taking such pursuit, the nature of the underlying offense and the dangers that might attend pursuit. When a high speed pursuit was made, all safety precautions were to be used. According to the opinion of an expert witness, a member of the Stratford police department, the high speed chase that was conducted in this case by Rich and Thornton was in violation of the Stratford policy. The defendants' appeal does not directly challenge the propriety of the jury's conclusion that their conduct was negligent. The defendants claim instead that the evidence was insufficient, for three reasons, to establish the necessary causal link between their acts or omissions and the injuries sustained by the plaintiff. They argue that proximate cause was lacking because of: (1) the intervening negligence of the driver of the pursued car; (2) the lack of connection between the plaintiff's injuries and the defendants' operation of the police car; and (3) the immunity conferred, as a matter of public policy, upon emergency vehicles in pursuit of law violators. Therefore, the defendants maintain, the court was required to resolve the issue of proximate cause in their favor as a matter of law. We do not agree. The defendants' first claim of error is that, according to the Connecticut law on causation and the rulings of other jurisdictions in police pursuit eases, the sole proximate cause of the plaintiff's injury was the negligent driving of the pursued car, the Chevrolet, for which the defendants cannot legally be held responsible. Recognizing that, in application, this case is one of first impression for this court, we are nonetheless unpersuaded by the authorities upon which the defendants rely. The Connecticut law of causation was recently restated in Coburn v. Lenox Homes, Inc., 186 Conn. 370, 382-84, 441 A.2d 620 (1982), where we held (at pp. 383-84) that "[m]ore than one proximate cause may result in any harm suffered. . . . An actual cause that is a substantial factor in the resulting harm is a proximate cause of that harm. . . . Proximate cause is ordinarily a question of fact. . . . The test for finding proximate cause 'is whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant's negligence.' . . . The foreseeable risk may include the acts of the plaintiff and of third parties." In earlier cases, we have specifically addressed the effect of a third party's intervening negligence. We have consistently adhered to the standard of 2 Restatement (Second), Torts §442B (1965) that a negligent defendant, whose conduct creates or increases the risk of a particular harm and is a substantial factor in causing that harm, is not relieved from liability by the intervention of another person, except where the harm is intentionally caused by the third person and is not within the scope of the risk created by the defendant's conduct. Kiniry v. Danbury Hospital, 183 Conn. 448, 445, 439 A.2d 408 (1981); Merhi v. Becker, 164 Conn. 516, 522, 325 A.2d 270 (1973); Miranti v. Brookside Shopping Center, Inc., 159 Conn. 24, 28, 266 A.2d 370 (1969). These authorities make it clear that the recklessness of the operator of the pursued car, the Chevrolet, does not relieve the defendants of liability because the trier of fact may find that the plaintiff's injury falls within the scope of the risk created by their negligent conduct in maintaining a police pursuit at high speeds in the wrong direction on a busy one-way street. Recent cases in other jurisdictions have similarly refused to limit police liability for negligent conduct of a high speed chase, as a matter of law, to collisions involving the police vehicle itself. See Myers v. Town of Harrison, 438 F.2d 293, 297 (2d Cir. 1971); Schatz v. Cutler, 395 F. Sup. 271, 275 (D. Vt. 1975); City of Sacramento v. Superior Court of the State of California, 131 Cal. App. 3d 395, 405-406, 182 Cal. Rptr. 443 (1982) (expressly limiting the earlier California cases upon which the defendants rely); Reed v. Winter Park, 253 So. 2d 475, 477 (Fla. App. 1971); Selkowitz v. County of Nassau, 45 N.Y.2d 97, 101-102, 408 N.Y.S.2d 10, 379 N.E.2d 1140 (1978); Mason v. Bitton, 85 Wash. 2d 321, 326, 534 P.2d 1360 (1975). The cases to the contrary, now in the minority, are by and large both older and, in our view, less well-reasoned. See United States v. Hutchins, 268 F.2d 69, 72 (6th Cir. 1959); West Virginia v. Fidelity & Casualty Co. of New York, 263 F. Sup. 88, 90-91 (S.D. W. Va. 1967); Chambers v. Ideal Pure Milk Co., 245 S.W.2d 589, 590-91 (Ky. 1952); Roll v. Timberman, 94 N.J. Super. 530, 535-37, 229 A.2d 281 (1967). The intervention of negligent or even reckless behavior by the driver of the car whom the police pursue does not, under the emergent majority view, require the conclusion that there is a lack of proximate cause between police negligence and an innocent victim's injuries. The trial court was therefore not in error in permitting the jury to determine the question of proximate cause as a matter of fact, despite the intervening negligence or recklessness of the driver of the Chevrolet. For related reasons, the defendants' second claim of error is also unpersuasive. That argument asserts that no proximate relationship can be found to have existed between the plaintiff's injuries and the defendants' operation of their pursuit vehicle unless the operation of the vehicle itself constituted the danger to the injured party. As a common law proposition, the principles that govern proximate causation, as we have noted, do not limit the foreseeable risk attendant to a defendant's negligent conduct to his own acts, but may encompass the acts "of the plaintiff and of third parties." Coburn v. Lenox Homes, Inc., supra, 384. The zone of risk for negligent conduct is not automatically confined to physical contact between the injured party and the defendants' own vehicle. There is no viable distinction between the defendants' assertion, in their first claim of error, that they bear no responsibility for the negligence of the fleeing driver, and their assertion here that they bear no responsibility for injuries not caused by their police car. The defendants argue, however, that these common law principles are, for emergency vehicles like police ears, superseded by the provisions of Gen eral Statutes § 14-283. That statute defines the term "emergency vehicle" to include a "local police vehicle . in the pursuit of fleeing law violators," and the plaintiff has not challenged its general applicability to this case. The statute, in subsection (b), permits the operator of an emergency vehicle, in disregard of traffic laws, inter alia, to "proceed past any red light or stop signal or stop sign . . . exceed the posted speed limits . . . and . . . disregard . . . regulations governing direction of movement or turning in specific directions." The subsection limits even this authority, however, by providing that the operator, in passing through traffic lights, must slow down "to the extent necessary for the safe operation of such [emergency] vehicle" and in exceeding normal speed limits, must "not endanger life or property by so doing." Furthermore, the statute expressly states, in subsection (d), that it "shall not relieve the operator of an emergency vehicle from the duty to drive with due regard for the safety of all persons and property." Read as a whole, the defendants contend, this statute limits their scope of duty to incidents involving collisions with the emergency vehicle itself. We see no reason to read the words "safety of all persons and property" so restrictively. Other courts, construing similar statutory language, have explained that emergency vehicle legislation provides only limited shelter from liability for negligence. The effect of the statute is merely to displace the conclusive presumption of negligence that ordinarily arises from the violation of traffic rules. The statute does not relieve operators of emergency vehicles from their general duty to exercise due care for the safety of others. Brummett v. County of Sacramento, 21 Cal. 3d 880, 886-87, 582 P.2d 952 (1978); City of Sacramento v. Superior Court of the State of California, supra; Mason v. Bitton, supra. We agree with this interpretation and con- clnde that § 14-283 provides no special zone of limited liability once the defendants' negligence has been established. The defendants' final claim of error asserts that public policy requires a limitation of the liability of pursuing police vehicles to accidents involving the police ear itself. The defendants maintain that police officers should not have to abandon or terminate the pursuit of law violators just because the fleeing person may create a risk to the public. This argument is predicated on an assumption that we are not prepared to make. The argument addresses principally one aspect of the defendants' alleged failure to exercise due care, namely the failure to abandon or terminate pursuit, and assumes a jury verdict on this basis. As the defendants themselves recognize in their brief, the plaintiff's complaint is not so limited. The jury having returned a general verdict against the defendants, we must presume that the jury found every issue in favor of the plaintiff, including the claim of the defendants' negligence in their manner of pursuit. LaFleur v. Farmington River Power Co., 187 Conn. 339, 342, 445 A.2d 924 (1982); see Giglio v. Connecticut Light & Power Co., 180 Conn. 230, 232, 429 A.2d 486 (1980). Since the defendants do not contest the sufficiency of the evidence to support a finding on this claim of negligence, the jury's verdict must stand, whether or not there was error with regard to the alleged failure to abandon pursuit of the Chevrolet. As a general proposition, our common law and our statutes do not confer upon police officers, whose conduct is negligent, blanket immunity from liability to an innocent bystander by virtue of their engagement in the pursuit of persons whom they believe to have engaged in criminal behavior. We note again the salient circumstances of this case: the occupants of the Chevrolet were not endangering anyone when they were first confronted by the defendants; the defendants, in violation of announced town policy, pursued the Chevrolet at high speeds through busy city thoroughfares, into a one-way street the wrong way. In these circumstances, the trial court correctly refused to direct a verdict for the defendants and left to the jury the determination of both negligence and of proximate cause as questions of fact. There is no error. In this opinion the other judges concurred. The liability of the defendant town is predicated on General Statutes 5 7-465, under which municipalities, without regard to governmental immunity, are required to "pay on behalf of any employee of such municipality . all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law . . . for physical damages to person or property . if the employee, at the time of the . . . accident . . . was acting in the performance of his duties and within the scope of his employment, and if such . . . accident . . . was not the result of any wilful or wanton act of such employee in the discharge of such duty." In accordance with this statute, the town stipulated, at the outset of the litigation, that it would pay any final judgment rendered against Bieh and Thornton. In a police report filed immediately after the incident, it was noted that "Officer Rich reports that he and Officer Thornton were on routine patrol and they were checking the Stratford Town Fair parking lot when they observed a Oreen Chevy with three Puerto Rican males in same. These youths appeared to be of Puerto Rican Descent. Officers report they signaled this vehicle to stop by turning on their Red Light and also their Siren . . . ." At the trial, however, defendant Rich testified that he became suspicious when he first saw the car in the parking lot because the three young males in the front seat "looked too young to be driving a ear." The Connecticut cases upon which the defendants rely; Nehring v. Connecticut Co., 86 Conn. 109, 84 A. 524 (1912) and Miner v. McNamara, 81 Conn. 690, 72 A. 138 (1909); to the extent that they contain statements to the contrary, are no longer good law. Neither case deals with the problem before us. Nehring eoneems the doctrines of contributory negligence and last clear chance, doctrines today in substantial measure replaced by the doctrine of comparative negligence. See General Statutes $ 52-572h. Miner was a ease in whieh a builder's negligence in construction was held to have been superseded by the negligence of the building's owner who, with full knowledge of its defects, leased it to tenants who suffered losses because of the building's eollapse. When Miner was decided, it was doubtful that a builder's negligence would continue to be actionable once his work was completed and accepted by the building's owner; that doubt was resolved in favor of liability in Scribner v. O'Brien, Inc., 169 Conn. 389, 400, 363 A.2d 160 (1975). General Statutes (Rev. to 1977) § 14-283 provides in relevant part: "eights of emergency vehicles, obstruction of. (a) 'Emergency vehicle/ as used in this section, means any ambulance responding to an emergency call, any vehicle used by a fire department or by any officer of a fire department while on the way to a fire or while responding to an emergency call but not while returning from a fire or emergency call, or any state or local police vehicle operated by a police officer answering an emergency call or in the pursuit of fleeing law violators. "(b) The operator of any emergency vehicle may (1) park or stand such vehicle, irrespective of the provisions of chapter 248, (2) proceed past any red light or stop signal or stop sign, but only after slowing down or stopping to the extent necessary for the safe operation of such vehicle, (3) exceed the posted speed limits or other speed limits imposed by or pursuant to section 14-21.9 so long as he does not endanger life or property by so doing, and (4) disregard statutes, ordinances or regulations governing direction of movement or turning in specific directions. "(e) The exemptions herein granted shall apply only when an emergency vehicle is making use of an audible warning signal device including but not limited to a siren, whistle or bell which meets the requirements of subsection (d) of section 14-80 and visible flashing or révolving lights which meet the requirements of sections 14-96p and 14-96g and to any state or local police vehicle properly and lawfully making use of an audible warning signal device only. "(d) The provisions of this section shall not relieve the operator of an emergency vehicle from the duty to drive with due regard for the safety of all persons and property." The contrary cases upon which the defendants rely are all distinguishable. The authority of the two California eases, Draper v. City of Los Angeles, 91 Cal. App. 2d 315, 205 P.2d 46 (1949) and Pagels v. City and County of San Francisco, 135 Cal. App. 2d 152, 286 P.2d 877 (1955), has been undermined by City of Sacramento v. Superior Court of the State of California, 131 Cal. App. 3d 395, 404, 182 Cal. Rptr. 443 (1982). City of Miami v. Horne, 198 So. 2d 10 (Fla. 1967) must be read with Reed v. Winter Park, 253 So. 2d 475, 477 (Fla. App. 1971), making the extent of proximate cause a question for the trier of fact. New York, like Florida, treats proximate cause as a question of fact. Stanton v. State, 26 N.Y.2d 990, 311 N.Y.S.2d 28, 259 N.E.2d 494 (1970), a case affirming factfinding in favor of the police, must therefore be read in conjunction with Selkowitz v. County of Nassau, 45 N.Y.2d 97, 408 N.Y.S.2d 10, 379 N.E.2d 1140 (1978), afiirming factfinding in favor of the injured party. We note that the defendants have raised no claims of error wih regard to the instructions to the jury. We therefore have no occasion to consider the extent to which formulation of a duty of care should take into account, as one of the relevant circumstances, the fact that police officers are responding to an emergency. See, e.g., Brummett v. County of Sacramento, 21 Cal. 3d 880, 886, 148 Cal. Rptr. 361, 582 P.2d 952 (1978).

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

Speziale, J. This appeal presents a question under the Workmen's Compensation Act, General Statutes, chapter 568: whether an injury sustained while the plaintiff was engaged in a customary and permitted game of ping-pong on his employer's premises before the start of the work day, using equipment purchased by the employees, arose out of and in the course of his employment so that it was error to deny him compensation. The compensation commissioner's finding and award discloses the following facts: On April 15, 1975, the plaintiff was employed by the public works department of the defendant town of Hamden. The work day was from 8 a.m. to 4:30 p.m. Some of the work force of about eighty employees were in the habit of assembling in the department's garage about a half hour before 8 a.m. They drank coffee, talked and generally passed the time until they went "on the clock" at 8 a.m. and received the day's assignments from their supervisors. A few months prior to April 15, about ten or twelve of the "early-birds" obtained permission from the "director or the assistant director" of the department to purchase a ping-pong table and accessories at their own expense and to install the table near their lockers located in a corner of the garage. The playing space was about twenty-five feet by twenty-five feet. The employer limited the playing time as follows: from about 7:30 a.m. to 8 a.m.; from noon to 12:30 p.m., which was lunch time; and from about 4 p.m., as the employees gathered towards the end of the work day, until 4:30 p.m., when they went "off the clock." Eventually about twenty of the department's eighty employees used the table. A superintendent sometimes played. On April 15, 1975, at 7:55 a.m., the plaintiff tripped and fell while playing ping-pong, severely injuring his right ankle. As a consequence he lost time from work and incurred medical and hospital expenses for which he claimed workmen's compensation benefits. From these subordinate facts the commissioner concluded that no benefit accrued to the employer from the employees' playing ping-pong; that the table was for the exclusive use and benefit of the players; and that, therefore, ping-pong was not an incident of the plaintiff's employment or connected with it in any manner so as to require the employer to pay compensation. The commissioner dismissed the plaintiff's claim and an appeal was taken to the Court of Common Pleas, where the trial court found that the plaintiff had failed to meet his burden of proof and dismissed the appeal. In denying compensation both the commissioner and the trial court seized upon the lack of benefit to the employer. The plaintiff has appealed to this court from the judgment rendered. The issue before us is whether the commissioner properly concluded that the plaintiff's injury was one not "arising out of and in the course of his employment" within the meaning of General Statutes § 31-284, a provision of the Workmen's Compensation Act. It is an axiom of workmen's compensation law that awards are determined by a two-part test. The employee has the burden of proving that the injury claimed arose out of the employment and occurred in the course of the employment. "There must be a conjunction of the two requirements, 'in the course of the employment' and 'out of the employment' to permit compensation. The former relates to the time, place and circumstance of the accident, while the latter refers to the origin and cause of the accident." Stakonis v. United Advertising Corporation, 110 Conn. 384, 389, 148 A. 334 (1929); Dombach v. Olkon Corporation, 163 Conn. 216, 221, 302 A.2d 270 (1972); Farnham v. Labutis, 147 Conn. 267, 269, 160 A.2d 120 (1960); Triano v. United States Rubber Co., 144 Conn. 393, 396,132 A.2d 570 (1957). While easily, stated, this test has been confused oyer the years. "[I]ts formulation has been easier than its application." Herbst v. Hat Corporation of America, 130 Conn. 1, 5, 31 A.2d 329 (1943). This confusion has developed as a result of a half century of factual variations on the legal rule. We take this opportunity to reaffirm the basic analysis to be applied in workmen's compensation cases, and to set forth a new and expanded test for cases like the present one. On the record before us, it appears that the parties, the commissioner, and the court have implicitly treated the injury sustained as one "arising out of" the employment, and their focus on this appeal has been on the "in the course of" employment aspect of the test. Thus, we will confine our discussion and review to that element in deciding this case. In order to come within the course of the employment, an injury must occur (a) within the period of the employment; (b) at a place the employee may reasonably be; and (c) while the employee is reasonably fulfilling the duties of the employment or doing something incidental to it. Stakonis v. United Advertising Corporation, supra, 389. In the present ease the employee was not fulfilling an employment duty, and therefore the proper inquiry under part (c) of the test will be whether the activity, playing ping-pong, was incidental to his employment. First, the plaintiff was clearly at a place he could reasonably be, on the premises just before he "clocked in." And he was, according to the definition developed in workmen's compensation law, within the period of employment, regardless of the fact that it was five minutes prior to the commencement of the official work day. The exact time is not significant, so long as the employee is on the premises reasonably close to the start or finish of the work day. Mascika v. Connecticut Tool & Engineering Co., 109 Conn. 473, 480, 147 A. 11 (1929); see Hughes v. American Brass Co., 141 Conn. 231, 234, 104 A.2d 896 (1954); Johnson v. Wiese, 125 Conn. 238, 239, 5 A.2d 19 (1939). Moreover, even when an employee is still in the process of coming to or going from work, once he or she is on the premises, whether arriving a little early, or leaving a little late, this court has found the employee to be within the period of the employment. Davis, "Workmen's Compensation in Connecticut — The Necessary Work Connection," 7 Conn. L. Rev. 199, 215-16 (1973-1974), and cases cited therein. Therefore, a distinction based on an activity's occurring five minutes before work, as opposed to at lunch or during the last half hour of the work day, would be unwarranted especially because both the early gathering and the recreation involved here were together designated by the employer as permissible activities. The crux of this case rests, therefore, on the proper application of the second portion of part (c) of the course of employment test: whether the injury sustained occurred when the employee was doing something "incidental to the employment." It is this inquiry that has been most subject to distortion from one type of case to another. The "going and coming" cases, in which the employee is injured traveling to or from work; Taylor v. M.A. Gammino Construction Co., 127 Conn. 528, 532, 18 A.2d 400 (1941); and cases cited therein; "personal comfort" cases, in which the employee is attending to some personal need when injured; Puffin v. General Electric Co., 132 Conn. 279, 43 A.2d 746 (1945); Lovallo v. American Brass Co., 112 Conn. 635, 153 A. 783 (1931); and "horseplay" cases, in which an employee is injured while wrestling; Shedlock v. Cudahy Packing Co., 134 Conn. 672, 60 A.2d 514 (1948); Philippe v. Balco, Inc., 12 Conn. Comp. Dec. 35 (1942); have become special categories in the law. See Davis, "Workmen's Compensation," supra, discussing cases by category. In the process special tests have evolved for each factual variation. For example, in the going and coming cases, it is necessary for the commissioner to find a benefit to the employer before compensation will be awarded. McKiernan v. New Haven, 151 Conn. 496, 499, 199 A.2d 695 (1964). As a result, in going and coming cases that have also involved recreational or social aspects, as when an employee is on the way to a union-sponsored picnic, the benefit test has been applied. Williams v. State, 152 Conn. 692, 211 A.2d 700 (1965); see Smith v. Seamless Rubber Co., 111 Conn. 365, 368-69, 150 A. 110 (1930). There is a crucial difference between the going and coming cases (whether or not they also involve the element of recreation) and other types, because in the going and coming eases the injury has not occurred on the premises of the employer. See True v. Longchamps, Inc., 171 Conn. 476, 478-79, 370 A.2d 1018 (1976); Dombach v. Olkon Corporation, 163 Conn. 216, 222, 302 A.2d 270 (1972). Therefore, the need arose to reach out for the additional element of employer benefit to make up for the fact that employees going to or coming from work do not satisfy both of the first two eourse-of-employment requirements, place and period of employment. "|T]f the recreational activity takes place on some distant vacant lot, several hours after the day's work has ceased, some independently convincing association with the employment must be built up to overcome the initial presumption of disassociation with the employment established by the time and place factors." 1A Larson, Workmen's Compensation Law § 22.11, p. 5-72 (1978). When an employee is on the premises and is within the period of employment, however, it should not be necessary to satisfy the additional test of employer benefit. Rather, the basic test should be remembered and applied: Is this activity incidental to the employment ? The meaning of the term "incidental" need not be defined as compulsion by or benefit to the employer in all cases. For example, other activities such as those typical of the personal comfort and horseplay cases fulfill the requirements of place and time, without being of benefit to the employer; and yet compensation may be awarded in such instances, because the injury had occurred on the premises as the result of a customary activity sanctioned by the employer through approval or acquiescence. Puffin v. General Electric Co., supra; Lovallo v. American Brass Co., supra; Shedlock v. Cudahy Packing Co., supra; Davis, "Workmen's Compensation," supra, 204-207. It would be anomalous indeed for courts to assert that smoking is an ordinary personal need whereas exercise is not, or that shoving, tripping or punching a fellow employee is inevitable horseplay, simply indulging a natural human tendency, whereas engaging in a planned recreational activity like ping-pong is not. How can one realistically evaluate the actual benefit an employer receives from permitting on-premises recreational activities? The obvious difficulty in drawing such distinctions or weighing such intangibles is sufficient reason to adopt a new rule which will avoid arbitrary and unjust results. This case clearly illustrates the need for a consistent approach to the question of whether certain types of injuries are work related. Experts in the field of workmen's compensation law have pointed out the inconsistency of using the employer benefit test in situations such as recreation, personal comfort, and horseplay cases where an employer-sanctioned activity regularly occurs on the prem ises. Both Professor Larson and Professor Davis advocate a test of employer acquiescence or approval in such cases, whether they be recreation, personal comfort, or horseplay situations. "[I]t should not be necessary [in such cases] to bolster the case by adding proof of employer sponsorship of the activity or employer benefit therefrom. It is generally held sufficient that the activity is an accepted and normal one, since it thereby becomes a regular incident and condition of the employment." 1 A Larson, op. cit. § 22.11, p. 5-72. Professor Davis, likewise, in his amicus curiae brief, urges the court to move beyond a mere employer benefit test to one including employer approval, to "aid the decision of future cases." See also Davis, "The Effect of Employer Approval on Workmen's Compensation Decisions — Letting Affected Parties Communicate Standards," 54 Cornell L. Rev. 97, 111 (1968). The ping-pong game was found by the commissioner not to be of benefit to the employer, a finding we cannot and need not disturb. True v. Longchamps, Inc., 171 Conn. 476, 478, 370 A.2d 1018 (1976); Glenn v. Stop & Shop, Inc., 168 Conn. 413, 416, 362 A.2d 512 (1975); Wheat v. Red Star Express Lines, 156 Conn. 245, 248-49, 240 A.2d 859 (1968). The commissioner did, however, find employer permission and regularity of activity. The employer sanctioned the games by regulating the permitted playing times, by allowing the equipment on the premises, and by setting aside actual work hours in the afternoon for the activity. The games occurred regularly on the premises of the employer. Those facts constitute a sufficient basis on which to conclude that the games were an incident of the employment under the test we now adopt. In conclusion, we restate the rule to be applied in workmen's compensation cases generally: In order to be compensable, an injury must (1) arise out of the employment; and (2) occur in the course of the employment. To occur in the course of the employment, the injury must take place (a) within the period of the employment, (b) at a place where the employee may reasonably be, and (c) while the employee is reasonably fulfilling the duties of the employment or doing something incidental to it. We now go a step further and hold that when determining whether the activity is incidental to the employment, the following rule should be applied: If the activity is regularly engaged in on the employer's premises within the period of the employment, with the employer's approval or acquiescence, an injury occurring under those conditions shall be found to be compensable. There is error, the judgment is set aside and the case is remanded to the Superior Court with direction to sustain the appeal and to remand the cause to the workmen's compensation commissioner to render an award in favor of the plaintiff. In this opinion Cotter, C. J., Loiselle and Bogdanski, Js., concurred. Activities that occur only seldom ox once logically require more proof of employment connection, such as employer benefit. For example, in Smith v. Seamless Rubber Co., 111 Conn. 365, 150 A. 110 (1930), the employee became ill as the result of submitting to a vaccination offered by the board of health as part of a voluntary program allowed on the premises. The employee was denied coverage because there was no finding of mutual benefit; only the employees eould be said to benefit as a class from the program. The vaccination program, however, was not a regular or customary activity, and therefore, as in the going and coming cases, the extra element of benefit may be called into play.

Cotter, C. J. The plaintiff instituted this action in the Superior Court seeking, inter alia, a declaratory judgment determining whether the Indian Affairs Council is an "agency" within the meaning of § 4-166 (1) of the General Statutes so that the provisions of chapter 54 of the General Statutes (Uniform Administrative Procedure Act) are applicable to the acts and decisions of that council. Pursuant to a stipulation by all parties to the action, the above question has been reserved for the consideration and advice of this court. The plaintiff claims to be a Schaghticoke Indian within the meaning of § 47-59a and 47-66 of the General Statutes. The defendants to the present action are the commissioner of environmental protection and the eight members of the Indian Affairs Council. Although the plaintiff seeks relief from the Superior Court in the form of a declaratory judgment, the parties do not claim, and the record does not reveal, that any attempt was made to notify anyone other than the named defendants of the pending action. Practice Book, 1963, § 309 (d), provides that the court will not render declaratory judgments upon the complaint of any person "unless all persons having an interest in the subject matter of the complaint are parties to the action or have reasonable notice thereof." Strict adherence to this rule has consistently been required by this court. Cavalli v. McMahon, 174 Conn. 212, 215-16, 384 A.2d 374; Gannon v. Sanders, 157 Conn. 1, 5, 244 A.2d 397; Wenzel v. Danbury, 152 Conn. 675, 677, 211 A.2d 683. It is clear that all persons affected by the actions and decisions of the Indian Affairs Council including, but not limited to, all members of the Indian community of Connecticut may have a legitimate interest in the outcome of the present case. Simply stated, "[ajnyone with an interest in the subject matter is entitled to reasonable notice and an opportunity to be heard, whether he supports the plaintiffs' or the defendants' position." Cavalli v. McMahon, supra, 216. Consequently, we refuse to answer the question reserved for our advice at this time. The trial court must ensure compliance with the provisions of Prac tice Book §309 (d). See, for example, Wilson v. Connecticut Product Development Corporation, 167 Conn. 111, 112, 355 A.2d 72. This court -will retain jurisdiction of this matter. No costs shall be taxed in this court in favor of any party. In this opinion the other judges concurred. Now Practice Book, 1978, §390 (d).

Arthur H. Healey, J. This matter was instituted as a habeas corpus petition in the Superior Court and was reserved for the advice of this court. The parties have stipulated to the pertinent facts and submitted two questions upon which the advice of this court is sought. The stipulation discloses the following facts: On July 3, 1975, Larry Frazier, hereinafter the plaintiff, was sentenced to a term of not less than 54 nor more than 108 years by the Superior Court in Fairfield County following his conviction on several criminal counts. On October 27, 1975, the sentence review division ordered that the plaintiff be resentenced to a term of not less than 30 nor more than 60 years. On November 13, 1975, the plaintiff was resentenced by the Superior Court to a term of not less than 32 years nor more than 64 years. On October 26, 1976, the sentence review division again ordered that the plaintiff be resentenced to a term of not less than 30 nor more than 60 years. On December 8, 1976, the plaintiff was resentenced by the Superior Court to a term of not less than 30 nor more than 60 years. The plaintiff is currently serving the sentence of not less than 30 nor more than 60 years. The defendant is computing the plaintiff's so-called good time credit on his sentence, based upon the provisions of General Statutes § 18-7. General Statutes § 18-7a which, purports to apply to persons sentenced on and after October 1, 1976, provides, in effect, more good time credit than its predecessor, General Statutes § 18-7. The defendant does not give the plaintiff any good time credit under General Statutes § 18-7a on the sentence he is now serving on the basis that such credit cannot be given to the plaintiff as he was originally sentenced before October 1,1976. The first question reserved for our advice is: "Are the provisions of Section 18-7a of the General Statutes applicable to persons sentenced to a term of imprisonment prior to October 1, 1976, to the effect that they are entitled to the 'good time' credits provided for by this statute for the balance of their sentence after October 1, 1976?" In determining the answer to this question we must consider the language of § 18-7a, as well as that of § 18-7. It is clear that § 18-7a, in its terms, applies to "[a]ny person sentenced to a term of imprisonment, on and, after October 1, 1976," ( emphasis added) and that § 18-7 specifically applies to a prisoner sentenced prior to October 1,1976. At the outset of our discussion we point out that this court has held repeatedly that where the meaning of a statute is plain and unambiguous, the enactment speaks for itself and there is no occasion to construe it. Evening Sentinel v. National Organization for Women, 168 Conn. 26, 29, 357 A.2d 498 (1975), and authorities therein cited. This is consonant with the legislative intent which is found not in what the legislature meant to say, but in the meaning of what it did say. Colli v. Real Estate Commission, 169 Conn. 445, 452, 364 A.2d 167 (1975). The statutory language of § 18-7a and 18-7 is clear and unambiguous and, therefore, courts cannot, by construction, read into sueh statutes provisions which are not clearly stated. Houston v. Warden, 169 Conn. 247, 251, 363 A.2d 121 (1975); Robinson v. Guman, 163 Conn. 439, 444, 311 A.2d 57 (1972). To state it otherwise, where the legislative intent is clear, and the language used to express it is unambiguous, there is no room for statutory construction. Hurlbut v. Lemelin, 155 Conn. 68, 73, 230 A.2d 36 (1967). "There is a presumption that the legislature, in enacting a law, did so in view of existing relevant statutes and intended it to be read with them so as to make one consistent body of law. State v. Jordan, 142 Conn. 375, 378, 114 A.2d 694; Jennings v. Con necticut Light & Power Co., 140 Conn. 650, 657, 103 A.2d 535; Coombs v. Darling, 116 Conn. 643, 646, 166 A. 70." Hurlbut v. Lemelin, supra, 74. This presumption has particular applicability in this ease. "Each of these statutes has a reasonable field of operation which does not impinge on the domain of the other; Busko v. DeFilippo, 162 Conn. 462, 471, 294 A.2d 510; and they can be easily read so as to make one consistent body of law. State v. White, 169 Conn. 223, 234, 363 A.2d 143, cert. denied, 423 U.S. 1025, 96 S. Ct. 469, 46 L. Ed. 2d 399; Cicala v. Administrator, 161 Conn. 362, 365, 288 A.2d 66." Pepin v. Danbury, 171 Conn. 74, 86, 368 A.2d 88 (1976). There is no repugnancy between the two statutes. In construing a statute courts must presume that a reasonable and rational result was intended. Norwich Land Co. v. Public Utilities Commission, 170 Conn. 1, 4, 363 A.2d 1386 (1975); Bridgeport v. Stratford, 142 Conn. 634, 644, 116 A.2d 508 (1955). The legislature intended that a person sentenced to a term of imprisonment on and after October 1, 1976, receive good time different from one so sentenced prior to that date; such a result is neither unreasonable nor irrational. The statute, i.e., § 18-7a, must be applied as its words direct. Obuchowski v. Dental Commission, 149 Conn. 257, 265, 178 A.2d 537 (1962). That direction is clear and we follow the principle that we have no choice but to interpret the statutes as they are written. Mancinone v. Warden, 162 Conn. 430, 438, 294 A.2d 564 (1972). The clarity of these two statutes is such that we need not even consider the rule that when two constructions are possible, courts will adopt the one which makes the statute effective and workable, and not that one which leads to difficult and possibly bizarre results. See, e.g., Kellems v. Brown, 163 Conn. 478, 506, 313 A.2d 53 (1972), appeal dismissed, 409 U.S. 1099, 93 S. Ct. 911, 34 L. Ed. 2d 678 (1973). To apply § 18-7a as the plaintiff urges would thwart the purpose of this statute, which cannot be done; Evening Sentinel v. National Organization for Women, supra, 31; and to do so would overturn a plain expression of the legislative will. It is not our function to substitute our own ideas of what might be a wise provision in the place of a clear expression of the legislative will. Dental Commission v. Tru-Fit Plastics, Inc., 159 Conn. 362, 365, 269 A.2d 265 (1970). We are compelled to reject the plaintiff's claim that § 18-7a can legally be applied as he urges. The application of controlling legal principles requires the conclusion that the provisions of General Statutes § 18-7a are not applicable to persons sentenced to a term of imprisonment prior to October 1, 1976, and that such persons are, therefore, not entitled to the good time credits provided by § 18-7a for the balance of their sentence after October 1, 1976. Accordingly, our answer to the first question reserved for our advice is "No." We turn now to the second question reserved for our advice which is: "If the provision of Section 18-7a of the General Statutes which provides that it applies to '[a]ny person sentenced to a term of imprisonment, on and after October 1, 1976,' denies its application to persons sentenced prior to that date but still serving sentences, then, is that provision invalid as being in violation of such person's rights to equal protection of the law as guaranteed by the Fourteenth Amendment of the Constitution of the United States and Article I, Section 20 of the Connecticut Constitution?" The determination of the applicable standard of review is at the threshold of the consideration of any equal protection claim. "This court has many tiroes 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." Horton v. Meskill, 172 Conn. 615, 639, 376 A.2d 359 (1977). "Equal protection analysis must commence with a determination of whether a legislative classification is invidious, or 'inherently suspect/ or whether the legislation impinges upon a fundamental right. Where the legislation impinges upon a fundamental right or creates a suspect classification, then it must be 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 or suspect classifications, the legislation will withstand constitutional attack if the distinction is founded on a rational basis. McGinnis v. Royster, 410 U.S. 263, 270, 93 S. Ct. 1055, 35 L. Ed. 2d 282; Dandridge v. Williams, 397 U.S. 471, 484, 485, 90 S. Ct. 1153, 25 L. Ed. 2d 491; F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S. Ct. 560, 64 L. Ed. 989; In re Application of Griffiths, 162 Conn. 249, 258, 294 A.2d 281, rev'd, 413 U.S. 717, 93 S. Ct. 2851, 37 L. Ed. 2d 910; see Douglas v. California, 372 U.S. 353, 358, 83 S. Ct. 814, 9 L. Ed. 2d 811." Laden v. Warden, 169 Conn. 540,542-43,363 A.2d 1063 (1975). The plaintiff argues that the "strict scrutiny" standard applies, maintaining that he is in a "suspect" classification and claims that there is an infringement of a fundamental right, i.e., his liberty. The defendant, on the other hand, claims that the "rational basis" test is the standard to be applied. Among classifications that have been identified as inherently suspect are those based on alienage, national origin, sex or race. Frontiero v. Richardson, 411 U.S. 677, 688, 93 S. Ct. 1764, 36 L. Ed. 2d 583 (1973). Fundamental interests have been said to include voting, travel, procreation, the right of free speech and the right of a convicted defendant not to be subject to a period of imprisonment beyond the statutory maximum solely by reason of his indigency. The United States Supreme Court has pointed out that it is not its province to create substantive constitutional rights in the name of guaranteeing equal protection of the laws. San Antonio School District v. Rodriquez, 411 U.S. 1, 34, 93 S. Ct. 1278, 36 L. Ed. 2d 16 (1973). In that case the court stated that the key in determining whether a claimed right is "fundamental" lies in assessing whether that "right" is explicitly or implicitly guaranteed by the constitution. Ibid. That same court has already said that "the Constitution itself does not guarantee good time credit for satisfactory behavior while in prison." Wolff v. McDonnell, 418 U.S. 539, 557, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974). "Fundamental rights" are those rights which are established by the constitution; and they are merely given the protection which the constitution demands. Koelfgen v. Jack son, 355 F. Sup. 243, 250 (D. Minn. 1972), judgment affirmed, 410 U.S. 976, 93 S. Ct. 1502, 36 L. Ed. 2d 173 (1973). Therefore it cannot be said that a person serving a term of imprisonment who is eligible for certain good time credits under a statute in effect at the time he was sentenced can effectively assert a "fundamental" right to additional good time credits permitted under another statute which became effective after he was sentenced. Sections 18-7 and 18-7a create two classes, i.e., those persons sentenced to a term of imprisonment before October 1, 1976, and those so sentenced on and after October 1, 1976. The plaintiff is in the former class of prisoners. The statutory scheme which generates this appeal cannot be said to be composed of a group or class, i.e., prisoners sentenced to a term of imprisonment before October 1, 1976, that is itself "suspect" as that has been generally interpreted. Our opinion is that the standard to be used in assessing the equal protection claim is the traditional "rational basis" test and not the more exacting "strict scrutiny" test. An examination of cases that have addressed similar equal protection attacks reinforces our opinion. Moreover, there is the view that the "compelling necessity" test has been ruled inapplicable by the United States Supreme Court in good time cases since McGinnis v. Royster, 410 U.S. 263, 270, 93 S. Ct. 1055, 35 L. Ed. 2d 282 (1973). See United States ex rel. Sero v. Preiser, 372 F. Sup. 663, 671 (S.D. N.Y. 1974), affirmed in part and remanded in part, 506 F.2d 1115 (2d Cir. 1974), cert. denied, 421 U.S. 921, 95 S. Ct. 1587, 43 L. Ed. 2d 789 (1975). In Mastracchio v. Superior Court, 98 R.I. 111, 200 A.2d 10 (1964), a ease strikingly similar to the one before us, the petitioning prisoner applied for an order restraining the warden of adnlt correctional institutions from denying him those enlarged benefits for good behavior for time served subsequent to May 6,1960, the effective date of the statute which conferred those enlarged benefits. Conceding that the preexisting statute controlled as to the time he served prior to May 6,1960, the plaintiff in Mastracchio made the same claim as the plaintiff before us by contending that his credits subsequent to May 6, 1960, should be determined no differently from those of persons imprisoned subsequent to May 6, 1960. Mastracchio v. Superior Court, supra. The Rhode Island Supreme Court rejected the equal protection claim, referring to their Opinion to 'the Governor in 91 R.I. 187, 162 A.2d 814 (1960), wherein they advised that the enlarged benefits of the statute invoiced in Mastracchio could not be extended to any portion of the terms of persons sentenced prior to its effective date. The Mastracchio court went on to say: "This situation in no way differs from one where a legislature prospectively reduces the maximum penalty for a. crime. In that instance, and without any constitutional violation, one sentenced to the maximum term on the day preceding the effective date of the new statute will serve a longer term than one sentenced to the maximum term on the next day. See Comerford v. Commonwealth of Massachusetts, 1 Cir., 233 F.2d 294. Here [in Mastracchio] two prisoners, one of whom was sentenced prior to the critical date of chap. 112 and the other of whom was thereafter sentenced to an identical term, will receive varying credits for good time. In each instance the classification which is determined by the effective date of the legislation is neither arbitrary nor unreasonable. So long as the good behavior credits of the class of those sentenced prior to May 6, 1960 are computed in a like manner and the members of that class are offered identical treatment, there is no denial to petitioner of the equal protection of the laws, even though persons sentenced subsequent to May 6, 1960 may be treated differently. See Berberian v. Lussier, 87 R.I. 226, 139 A.2d 869." Mastracchio v. Superior Court, supra. The plaintiff in the appeal before us is in exactly the same position and a member of exactly the same class as the plaintiff in Mastracchio. In Mirenda v. Ulibarri, 351 F. Sup. 676 (C.D. Cal. 1972), the incarcerated plaintiff moved to vacate and "ameliorate" his sentence. He had been sentenced prior to the effective date of a new statute creating more liberal sentencing provisions for those prosecuted under the preexisting statute but who were not sentenced until after the effective date of the new statute. In Mirenda the plaintiff claimed that the failure to apply the same treatment to those convicted before the new act as to those convicted thereafter created a class subject to invidious discrimination in violation of the due process and equal protection clauses. In overruling those claims the court said: "This is of necessity the result of any new law which is to go into effect at and on a certain date. The seeming inequity in fixing a cut-off date is outbalanced by the factors of reliance and burden on the administration of justice which argue for prospective application only. Stovall v. Denno, 388 U.S. 293, 300-301, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967)." Mirenda v. Ulibarri, supra, 677. Where legislation confers a benefit not previously provided, and is effective on a certain date, this apparent inequity is the result of all such ameliorative legislation and has been held not to deny equal protection. Jackson v. Alabama, 530 F.2d 1231, 1238 (5th Cir. 1976), and authorities therein cited. In Jackson the court said: "We find in the circumstances here present that the 'factors of reliance and burden on the administration of justice,' Stovall v. Denno, 1967, 388 U.S. 293, 300, 87 S. Ct. 1967, 1972, 18 L. Ed. 2d 1199, 1205, outweigh the apparent inequity in determining a fixed cutoff date." Ibid.. The plaintiff places great stress on Bolling v. Manson, 345 F. Sup. 48 (D. Conn. 1972). Bolling does not sustain him. In that ease the Connecticut good time credit statutory scheme was involved. The operation of that scheme, which assigned two people, convicted of the same offense and sentenced to the same maximum term, to different treatment based solely on whether they received a definite sentence or an indefinite one was scrutinized carefully on an equal protection attack. Those serving the former type of sentence were permitted to earn good time credits while those serving the latter type were not permitted to earn such credits. The United States District Court found the "Connecticut statutory system governing good time in correctional institutions unconstitutional as applied to prevent inmates on indefinite sentences from earning such commutation." Bolling v. Manson, supra, 52. In that ease the invidious classification, based as it was on the type of sentence being served, is evident. In the ease before us, everyone in each group, whether sentenced before October 1, 1976, or thereafter, receives uniform treatment under the statutory scheme. More to the point, after finding a denial of equal protection in Bolling, the court, in enjoining the discrimination complained of, specifically held that its ruling doing so "will have prospective force only." Bolling v. Manson, supra. (Emphasis added.) If the court could order its ruling to be prospective only, certainly tbe legislature, where the authority to enact good time credit rests; Wolff v. McDonnell, supra, 558; can do so prospectively. Especially is this so when all the members of the two groups affected by § 18-7a are treated uniformly. "The question of classification is primarily one for the legislature, and the courts will not interfere unless a classification presented by statute is clearly irrational and unreasonable. State v. Zazzaro, 128 Conn. 160, 166, 20 A.2d 737." State v. Rao, 171 Conn. 600, 603, 370 A.2d 1310 (1976). "Legislation need not deal with all phases of a problem in the same way, so long as the distinctions drawn have some basis in practical experience." South Carolina v. Katzenbach, 383 U.S. 301, 331, 86 S. Ct. 803, 15 L. Ed. 2d 769 (1966). The purpose of Public Acts 1976, No. 76-358, which included the enactment of what is now General Statutes § 18-7a, was to consolidate good time statutes and to eliminate multiple systems of computing and crediting good time. Accordingly, § 4 of that act repealed General Statutes § 18-53 and 18-77a, the former section being concerned with commutation of sentences for good behavior in a community correctional center and the latter being concerned with reduction of sentences for good conduct in the Connecticut correctional institution, Cheshire. Thus, § 18-7 and 18-7a remain to provide the means for determining eligibility for good time credits regardless of the type of sentence of imprisonment or institution involved. The role of § 18-7a in the actual consolidation of the good time statutes and its operation toward eliminating the multiple systems of computing and crediting good time has legitimacy and, thus, the distinction between 18-7 and 18-7a worked by the latter "rationally furthers some articulated stated purpose." See McGinnis v. Royster, 410 U.S. 263, 270, 93 S. Ct. 1055, 35 L. Ed. 2d 282 (1973). Section 18-7a satisfies the rational basis test consistent with the command of the equal protection clauses. Accordingly, our answer to the second question reserved for our advice is "No." In sum, the Superior Court is advised that our answer to both questions in the reservation is "No." No costs wall be taxed in this court to any party. In this opinion the other judges concurred. "1. Are the provisions of Section 18-7a of the General Statutes applicable to persons sentenced to a term of imprisonment prior to October 1, 1976, to the effect that they are entitled to the 'good time' credits provided for by this statute for the balance of their sentence after October 1, 1976? "2. If the provision of Section 18-7a of the General Statutes which provides that it applies to '[a]ny person sentenced to a term of imprisonment, on and after October 1, 1976,' denies its application to persons sentenced prior to that date but still serving sentences, then, is that provision invalid as being in violation of sueh person's rights to equal protection of the law as guaranteed by the Fourteenth Amendment of the Constitution of the United States and Article I, Section 20 of the Connecticut Constitution?" General Statutes § 18-7 provides iu part: "powers and duties op warden, punishment and reward op inmates. The warden shall manage the Connecticut Correctional Institution, Somers, subject to the direction of the commissioner of correction, and he shall keep all the prisoners employed in such labor as the commissioner orders, during the term of their imprisonment. He shall also keep a record of any punishment inflicted upon a prisoner, showing its eause, mode and degree, and a like record of the conduct of each prisoner. Any prisoner may, by good conduct and obedience to the rules of said institution, earn a commutation or diminution of his sentence, as follows: Sixty days for each year, and pro rata for a part of a year, of a sentence which is not for more than five years; and ninety days for the sixth and each subsequent year, and pro rata for a part of a year, and, in addition thereto, five days for each month as a .meritorious time service award which may be granted in the discretion of the warden and the commissioner for exemplary conduct and meritorious achievement; provided any serious act of misconduct or insubordination or persistent refusal to conform to institution regulations occurring at any time during his confinement in said prison shall subject the prisoner, at the diseretion of the warden and the commissioner, to the loss of all or any portion of the time earned. Said commutation of sentence shall apply to any prisoner transferred from the Connecticut Correctional Institution, Somers, to the Connecticut Correctional Institution, Cheshire. When any prisoner is held under more than one eonvietion, the several terms of imprisonment imposed thereunder shall be construed as one continuous term for the purpose of estimating the amount of commutation which he may earn under the provisions of this section. . . ." General Statutes § 18-7a provides: "good conduct credit for prisoners sentenced on and after October 1, 1976. Any person sentenced to a term of imprisonment, on and after October 1, 1976 and while still serving such sentence whether such sentence is for a definite, indefinite or indeterminate term, and regardless of the institution wherein the prisoner is confined may, by good conduct and obedience to the rules which have been established for the service of his sentence, earn a commutation or diminution of his sentence in the amount of ten days for each month, and pro rata for a part of a month, of a sentence which is for not more than five years, and fifteen days for each month, and pro rata for a part of a month, for the sixth and each subsequent year of a sentence of more than five years. In the ease of an indeterminate sentence, such credit shall apply to both the minimum and maximum term. In the case of an indefinite sentence, such credit shall apply to the maximum term only. Any act of misconduct or refusal to obey the rules whieh have been established for the service of his sentence shall subject the prisoner to the loss of all or any portion of such credit by the commissioner or his designee."

Speziale, J. The plaintiff, Sheldon A. Leveston, is appealing from a judgment of dissolution of marriage in which the trial court ordered the plaintiff to pay to the defendant, Beatrice Leveston, $10,000 lump sum alimony within two years from the date of the order. The parties were married on October 30, 1975. Both the complaint, filed September 12, 1977, and the cross complaint, filed September 15, 1977, alleged that the marriage had broken down irretrievably and requested a dissolution of the marriage. In addition, the defendant claimed alimony, a name change, and "[sjuch other and further relief as to equity shall appertain." On July 11, 1979, both the parties and their respective counsel appeared for trial, but the case was continued to the next day. On the morning of July 12, 1979, the defendant testified that the problems leading to the marital breakdown "stemmed from the fact that I would not give Mr. Leveston any further money." When the defendant proceeded to testify in detail about the various antenuptial and postnuptial transfers of money from the defendant to the plaintiff, the plaintiff's counsel objected. The court admitted this evidence on the basis "that she is seeking approximately $25,000 in alimony" and that the purpose of the testimony is "to arrive at how she got to her claim." The remainder of the direct and cross-examination of the defendant dealt with the details of the financial transactions between the parties. After the luncheon recess the plaintiff's counsel informed the court that the plaintiff had left to return to Virginia on an important business matter and that the plaintiff "would like to be heard" regarding the alleged loans at another time, but the court refused to grant a postponement. On July 24,1979, the court rendered the judgment from which this appeal is taken. The plaintiff raises three claims on appeal: (1) that the court erred in admitting evidence of indebtedness and antenuptial financial transactions between the parties; (2) that the court abused its discretion by granting lump sum alimony on the basis of the evidence before it; and (3) that the court erred in not continuing the case to a later date. "The trial court has broad discretion in determining the relevancy of evidence. Any fact may be proved which logically tends to aid the trier in the determination of the issue. Federated Department Stores, Inc. v. Board of Tax Review, 162 Conn. 77, 82, 291 A.2d 715 [1971]." Litvaitis v. Litvaitis, 162 Conn. 540, 548, 295 A.2d 519 (1972). The only dispute between the parties concerned money. The transcript reveals that the court repeatedly stated that the financial evidence was admitted for the purpose of ascertaining an equitable basis for alimony, and not to determine an amount of indebtedness nor to treat the "debt" as a constituent part of an alimony award. The financial circumstances of the parties are highly relevant and are entitled to be given great weight by the trial court in the financial determination it must make in a case involving a claim for alimony. See Valante v. Valante, 180 Conn. 528, 530-31, 429 A.2d 964 (1980). In addition to the finances of the parties, § 46b-82 of the General Statutes requires the trial court to consider the causes of the dissolution in setting an alimony award. In this case the defendant testified that the major cause of the breakdown was the plaintiff's repeated, insistent requests for more money and the defendant's ultimate refusal to "give or borrow any more money for the plaintiff." Because of this testimony regarding the cause of the breakdown, and the broad discretion given a trial court in determining the relevancy of evidence, it was not error for the court to admit evidence of previous transfers of money from the defendant to the plaintiff. With respect to the alimony award the plaintiff argues that the court did not properly consider the factors enumerated in General Statutes § 46b-82 and that the evidence before the court does not support the alimony award. The trial court is required to consider the statutory criteria but ."is not required to give equal weight to each of the specified items." Valante v. Valante, supra, 531. "[N]o single criterion is preferred over all the others." Id.; Aguire v. Aguire, 171 Conn. 312, 314-15, 370 A.2d 948 (1976). There is no indication in the record that the court, as the plaintiff suggests, gave insufficient weight to the brief duration of the marriage and to the plaintiff's inability to pay alimony in addition to his other debts. "'[T]rial courts have a distinct advantage over an appellate court in dealing with domestic relations, where all of the surrounding circumstances and the appearance and attitude of the parties are so significant.' LaBella v. LaBella, 134 Conn. 312, 318, 57 A.2d 627 [1948]." Aguire v. Aguire, supra, 313-14. With that principle in mind this court has long held that an award of alimony "should be disturbed only under the clearest circumstances;" Shrager v. Shrager, 144 Conn. 483, 487, 134 A.2d 69 (1957); where the court could not "reasonably conclude as it did . . . ." Jacobsen v. Jacobsen, 177 Conn. 259, 263, 413 A.2d 854 (1979); El Idrissi v. El Idrissi, 173 Conn. 295, 299, 377 A.2d 330 (1977); Pasquariello v. Pasquariello, 168 Conn. 579, 584, 362 A.2d 835 (1975). This is consistent with the equitable nature of a dissolution proceeding. Stoner v. Stoner, 163 Conn. 345, 356, 307 A.2d 146 (1972). We conclude that the trial court did not abuse its discretion in awarding to the defendant a sum of $10,000 as alimony payable within two years. Finally, the court did not err in refusing to continue the case to a later date. This dissolution action has extended for a longer time than did the marriage on which it was founded. At trial defendant's counsel claimed to have subpoenaed the plaintiff to a pendente lite hearing because of the plaintiff's failure to appear on four previously scheduled dates. The court found that the plaintiff had over five months notice of the scheduled July 11, 1979 trial date. At the plaintiff's request the case was continued until the next morning, at which time the defendant testified and was cross-examined by the plaintiff's counsel. After the luncheon recess the plaintiff voluntarily absented himself from the trial and no further testimony was taken. The plaintiff's claim that he "was deprived of his right to a fair and full cross-examination of the defendant witness" because of the court's refusal to grant a continuance is not supported by the record. Where a party's own wrongful conduct limits the financial evidence available to the court, that party cannot complain about the resulting calculation of a monetary award. Baker v. Baker, 166 Conn. 476, 489, 352 A.2d 277 (1974). A motion for continuance is addressed to the discretion of the trial court, and its ruling will not be overturned absent a showing of a clear abuse of that discretion. Allen v. Pathmark of Bridgeport, Inc., 176 Conn. 124, 130, 405 A.2d 59 (1978); State v. Manning, 162 Conn. 112, 121, 291 A.2d 750 (1971). The plaintiff has failed to make such a showing. There is no error. In this opinion the other judges concurred. The $25,000 figure apparently relates to the $28,487.71 which the defendant testified to having lent to the plaintiff before and during the marriage. On August 1, 1979, the memorandum of decision was corrected to include a statement of the defendant's right to change her name and to correct a statutory citation. General Statutes § 46b-82 provides, in relevant part: "In determining whether alimony shall be awarded, and the duration and amount of the award, 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 and needs of each of the parties . . . ." See footnote 3.

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

Cotter, C. J. The defendants Daniel A. Benson and his wife, Lncie D. Benson, executed a promissory note on May 1, 1974, in favor of the plaintiff bank in the original principal amount of $15,500. Thereafter, on November 5, 1975, Lucie D. Benson conveyed her interest in a parcel of land together with the improvements thereon, of which she was the sole owner, to her son, defendant Daniel A. Benson, Jr., for the recited consideration of $150,000. Subsequently, upon Mr. and Mrs. Benson's default on the note, the plaintiff instituted the present action claiming damages of $20,000 and requesting that the conveyance be set aside and declared null and void as to the plaintiff. The plaintiff alleged, inter alia, that the conveyance was made with the intent to avoid the payment of Mrs. Benson's debt to her creditors, particularly her debt to the plaintiff, and to place the real estate beyond the reach of process for the collection of the plaintiff's claim. The plaintiff also alleged that the defendant Daniel A. Benson, Jr., knowingly aided, abetted and conspired with Mrs. Benson to accomplish that purpose. The plaintiff filed a motion for summary judgment together with affidavits and supporting documents. The defendant Daniel A. Benson, Jr., objected to the motion for summary judgment and filed a counter affidavit and supporting exhibit. The court granted the motion for summary judgment as to liability only, proceeded with a hearing as to damages, and rendered judgment setting aside the conveyance and award ing the plaintiff damages of $22,854.44, including fees and costs. From that judgment, the defendants took this appeal. The sole issue presented in this appeal is whether the trial court erred in granting the plaintiff's motion for a summary judgment. Since we do not have a finding or memorandum of decision in the record before us, we are at a disadvantage in attempting to determine the precise basis of the trial court's decision to grant the motion for summary judgment. The relevant portion of the judgment simply recites: "The Court further found that there was no issue as to any material fact with respect to liability." "Under these circumstances, in deciding the merits of the appeal, we are confined to an examination of the pleadings and affidavits to determine whether they 'show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.' Practice Book § 303; Pine Point Corporation v. Westport Bank & Trust Co., 164 Conn. 54, 55, 316 A.2d 765; Dougherty v. Graham, 161 Conn. 248, 250, 287 A.2d 382; United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 377, 260 A.2d 596." Spencer v. Good Earth Restaurant Corporation, 164 Conn. 194, 197, 319 A.2d 403. The function of the trial court in ruling on a motion for summary judgment is to determine whether there is a genuine issue as to any material fact, but not to decide that issue if it does exist until the parties are afforded a full hearing. Practice Book, 1963, § 303; Michaud v. Gurney, 168 Conn. 431, 433, 362 A.2d 857. Summary judgment procedure, generally speaking, is an attempt to dispose, of cases involving sham or frivolous issues in a manner which is speedier and less expensive for all concerned than a full-dress trial. United Oil Co. v. Urban Redevelopment Commission, supra, 375. However, since litigants ordinarily have a constitutional right to have issues of fact decided hy a jury; Ardoline v. Keegan, 140 Conn. 552, 555, 102 A.2d 352; the moving party for summary judgment is held to a strict standard: he " 'must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.' " Plouffe v. New York, N.H. & H. R. Co., 160 Conn. 482, 488, 280 A.2d 359. In the present case, on the pleadings and affidavits, the parties were at issue as to whether in fact Mrs. Benson conveyed her property to her son with the intent to avoid the payment of her debt to her creditors, and whether the grantee "knowingly aided, abetted, and conspired with" her to accomplish that purpose. To prove that the conveyance was fraudulent, which the plaintiff seems to imply in its pleadings, the plaintiff had the burden of establishing either that the conveyance was made without any substantial consideration and, when made, rendered Lucie D. Benson unable to pay her then existing debts, or that it was made with a fraudulent intent in which the grantee participated. Genovese Coal Co. v. River Bend Builders, Inc., 146 Conn. 48, 51-52, 147 A.2d 193; Dombron v. Rogozinski, 120 Conn. 245, 246-48, 180 A. 453; Daly Brothers, Inc. v. Spallone, 114 Conn. 236, 241, 158 A. 237; Fishel v. Motta, 76 Conn. 197, 198, 56 A. 558. As to the former theory of recovery, i.e., constructive fraud, while it is true that a determination as to the sufficiency of the consideration is a question of law based upon the evidence; Milaneseo v. Calvanese, 92 Conn. 641, 643, 103 A. 841; the plaintiff's failure to submit to the court affidavits or other evidence tending to establish the market value of the property transferred necessarily precluded the court from reaching the legal question of sufficiency. Since the defendant's counter affidavit specifically asserted that good and valuable consideration was paid for the property, and since valuation is an issue of fact material to the plaintiff's case, it cannot be said that the plaintiff satisfied its burden of showing the nonexistence of a genuine issue as to any material fact. See United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 382, 260 A.2d 596. Moreover, it is questionable that the documentary evidence before the court was sufficient to exclude any real doubt as to the named defendant's insolvency. The plaintiff similarly failed to sustain its burden necessary for recovery by a motion for summary judgment on the theory of actual fraud. The defendant grantee's counter affidavit squarely put in issue both the question of the grantor's alleged fraudulent intent and the grantee's knowledge of her alleged improper motives. The determination of the question of fraudulent intent is clearly an issue of fact which must often he inferred from surrounding circumstances. Knower v. Cadden Clothing Co., 57 Conn. 202, 221-22, 17 A. 580. Where, however, the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings, summary judgment procedure is particularly inappropriate. White Motor Co. v. United States, 372 U.S. 253, 259, 83 S. Ct. 696, 9 L. Ed. 2d 738; United Oil Co. v. Urban Redevelopment Commission, supra, 376. " 'It is only when the witnesses are present and subject to cross-examination that their credibility and the weight to be given to their testimony can be appraised.' Poller v. Columbia Broadcasting System, Inc. [368 U.S. 464, 473, 82 S. Ct. 486, 7 L. Ed. 2d 458]; Fortner Enterprises, Inc. v. United States Steel Corporation, 394 U.S. 495, 500, 89 S. Ct. 1252, 22 L. Ed. 2d 495." United Oil Co. v. Urban Redevelopment Commission, supra, 376. We conclude, therefore, that, viewing the pleadings and affidavits before the trial court in a light most favorable to the defendants, there were genuine issues as to material facts which should have been resolved in a trial. Accordingly, the trial court's decision that the conveyance be set aside and declared null and void as to the plaintiff was erroneous. Since the court subsequently tried to a conclusion the issue of damages and rendered judgment thereon, and since on this appeal there has been no claim of error in that proceeding or the judgment rendered on that issue, a retrial is unnecessary on the issue of damages in the event that on a trial limited to the question of the validity of the conveyance the plaintiff prevails. See Spencer v. Good Earth Restaurant Corporation, 164 Conn. 194, 199-200, 319 A.2d 403. There is error in the judgment that the conveyance be set aside and declared null and void as to the plaintiff. That portion of the judgment is set aside and the case is remanded for a trial limited to that issue. In this opinion the other judges concurred. Although the documents and exhibits filed in support of the plaintiff's motion for summary judgment reveal that the consideration given for the transfer in question was admittedly less than that recited in the deed, that fact alone would not be a sufficient basis upon which the court could conclude that the conveyance was made without substantial consideration. See Clarke v. Black, 78 Conn. 467, 474, 62 A. 757. In asserting the nonexistence of any genuine issue as to the named defendant's financial condition, the plaintiff points to Daniel A. Benson, Sr.'s own admission that his only current income was "Social Security which is combined with railroad retirement under total disability," and to the grantee's statement that he was unaware of any assets held by his parents at the present time.

Loiselle, J. The plaintiff, a contractor, brought this action for damages against the defendant, a subcontractor, alleging that the defendant had breached a contract under which he had promised to perform certain excavation work for the plaintiff. The defendant counterclaimed. The court rendered judgment for the defendant on the plaintiff's claim and for the plaintiff on the defendant's counterclaim. Prom the judgment for the defendant, the plaintiff has appealed. The relevant facts as found by the court are as follows: In early 1968, Joseph E. Bennett, doing business as Joseph E. Bennett Company, entered into a contract with Seymour B. Levine (hereinafter the owner) for the construction of a post office building in Bristol. Shortly thereafter, Bennett assigned the contract to the plaintiff, who, on October 10, 1968, entered into a written subcontract with the defendant. Pursuant to that contract, consisting of a standard subcontract agreement plus specifications, the defendant agreed to perform "all Excavation, Grading, Site Work, Asphalt Pavement, Landscaping, and Concrete Work" and "everything requisite and necessary to finish the entire work properly." In return, the defendant was to receive $104,326. The defendant commenced excavation of the premises on October 15, 1968, at which time he discovered considerable debris below the surface, consisting in part of concrete foundation walls, slab floors, underground tanks, twisted metals and various combustible materials. Apparently, the discovered walls and floor had been part of the basement of an old factory which had previously been located on the site. The plaintiff had previously taken test borings of the excavation site, the results of which had been given to the defendant prior to the execution of the subcontract. The defendant had relied upon those results, although they proved to be grossly inaccurate. Neither party had been aware of the rubble and, consequently, its removal was not specifically called for by the plans and specifications included in the subcontract, nor was the cost of its removal included in the contract price. Nonetheless, the existence of the rubble necessitated excavation beyond the depth anticipated in the plans and specifications and the post office building could not be constructed without its removal. A provision of the general contract between the owner and Bennett provided that "no extra work or change shall be made unless in pursuance of a written order from the Owner signed or countersigned by the Architect, or a written order from the Architect stating that the Owner has authorized the extra work or change." A separate provision of the contract specified that each subcontractor was to make all claims for extras "to the Contractor in the manner provided in the General Conditions of the Contract . . . for like claims by the Contractor upon the Owner." A provision of the subcontract reiterated this requirement, adding that "no extra work or other change will be commenced by the Sub-Contractor without the Contractor's prior approval in writing." Similarly, both contracts included provisions under which the subcontractor agreed to be bound to the contractor by the terms of the general contract and to assume toward the contractor all those obligations which he, under the contract, assumed towards the owner. Upon discovery of the unanticipated debris, the plaintiff notified the architect, the attorney for the owner, representatives of the Bristol redevelopment agency, which owned the building site, and representatives of the postal service of the existence of the rubble. All agreed that removal of the rubble was requisite for completion of the building, yet none would issue written authorization for its removal. On October 21,1968, the defendant ceased working on the excavation site and notified the plaintiff of his refusal to continue. Subsequently, the defendant offered to complete the subcontract if the plaintiff would have the unsuitable material removed. The plaintiff refused this offer. He then ordered the defendant to remove the rubble as part of "everything requisite and necessary" under the subcontract. The defendant refused. When the plaintiff was confronted with this situation, and no one would take the responsibility to authorize the removal of the rubble, although its removal was necessary for the contractor to complete his contract, he chose to enter into a further agreement with the defendant for work not included in the subcontract. The plaintiff and the defendant orally agreed that the defendant would be paid his costs for removing the unanticipated rubble, plus 10 percent. By letter dated November 7, 1968, the plaintiff confirmed this oral agreement. Although requested in the letter to do so, the defendant failed to sign and return a copy of the letter to the plaintiff. Nonetheless, the defendant returned to work, continuing until about November 18, 1968, at which point he left the job, refusing to return despite the plaintiff's request that he complete the work. The plaintiff completed his own contract with the owner, suffering, as a result of the defendant's abandonment, considerable damages. On appeal to this court, most of the plaintiff's claims of error focus upon the court's conclusion that, by interpreting the terms of the general contract as being incorporated into the subcontract, the issuance of a written extra work order signed b$- the architect was a condition precedent to the defendant's obligation to remove the rubble. The plaintiff's final claim, however, raises the issue of whether the oral agreement between it and the defendant constituted a valid agreement obligating the defendant to remove the unexpected rubble. Because we find this issue to be dispositive of the appeal, the other claims need not be specifically addressed. It is an accepted principle of law in this state that when a party agrees to perform an obligation for another to whom that obligation is already owed, although for lesser remuneration, the second agreement does not constitute a valid, binding contract. See, e.g., Dahl v. Edwin Moss & Son, Inc., 136 Conn. 147, 69 A.2d 562; Gruber v. Klein, 102 Conn. 34, 127 A. 907; Warren v. Skinner, 20 Conn. 559. "The basis of the rule is generally made to rest upon the proposition that in such a situation he who promises the additional compensation receives nothing moré than that to which he is already entitled and he to whom the promise is made gives nothing that he was not already under legal obligation to give. 1 Williston on Contracts, § 130." Blakeslee v. Board of Water Commissioners, 106 Conn. 642, 652, 139 A. 106. Where, however, the subsequent agreement imposes upon the one seeking greater compensation an additional obligation or burden not previously assumed, the agreement, supported by consideration, is valid and binding upon the parties. See, e.g., Simone v. Kirschner, 100 Conn. 427, 124 A. 20. In Blakeslee v. Board of Water Commissioners, supra, 656, this court, in analyzing these traditional principles, articulated the evolving rule that " 'where a contract must be performed under burdensome conditions not anticipated, and not within the contemplation of the parties at the time when the contract was made, and the promisee measures up to the right standard of honesty and fair dealing, and agrees, in view of the changed conditions, to pay what is then reasonable, just, and fair, such new contract is not without consideration within the meaning of that term, either in law or in equity.' United Steel Co. v. Casey, 262 Fed. 889, 893; see also Linz v. Shuck, 106 Md. 220, 67 Atl. 286." See also Sasso v. K.G. & G. Realty & Construction Co., 98 Conn. 571, 120 A. 158; Connelly v. Devoe, 37 Conn. 570, 576. This principle has received recognition by courts of other jurisdictions confronted with situations comparable to that now before this court. In Evergreen Amusement Corporation v. Milstead, 206 Md. 610, 112 A.2d 901, the Maryland Court of Appeals found a subsequent oral agreement of the parties to a written construction contract valid, relying, in part, upon the theory of unforeseen circumstances. In that case, the plaintiff, operator of a drive-in movie theater, had entered into a written contract with the defendant, a contractor, pursuant to which the latter agreed to supply all the necessary materials and to perform the work needed to clear the theater site of timber, stumps, arid waste material, and to grade the site as indicated on the accompanying plans. Once the work was underway, it became apparent that substantial, additional fill would be needed to complete the project, although neither party had anticipated this, both relying upon a topo graphical map which proved to be of doubtful accuracy. The court found that the parties, upon this discovery, entered into an oral agreement whereby the defendant would bring in the fill for additional compensation. On appeal, the plaintiff claimed that this agreement lacked consideration since the defendant promised only to do that which he had already agreed to do, i.e., to furnish all materials needed to grade the theater site. Relying upon the theory of unforseen circumstances, the court held the agreement to be binding. In another case involving facts similar to those now before us, a California Court of Appeal in Bailey v. Breetwor, 206 Cal. App. 2d 287, 23 Cal. Rptr. 740, without reference to the theory of unforeseen circumstances, determined that a subsequent oral agreement of parties to a written contract was valid where unanticipated, burdensome conditions, not contemplated by the parties at the time the written contract was executed, were encountered. In that case, the defendant owner had entered into a writtén contract with a construction company to grade and compact a building site for $2600. The work was subcontracted to the plaintiff, who agreed to perform the work in accordance with the general contract. Upon commencing his work, the plaintiff discovered, below the surface, an extensive amount of wet clay. The owner was notified of this and was advised that, although removal of this clay was not included in the subcontract, its removal was necessary for compliance with the city building code. In return for costs plus 10 percent, the plaintiff orally agreed to remove the clay. Determining that the oral agreement constituted a separate, binding contract, the court noted that "[t]his performance was clearly beyond the scope of the original eon- tract. Bailey [the plaintiff] thus incurred a new detriment and Breetwor [the owner] received a new benefit constituting sufficient consideration for Breetwor's promise." Id., 292. Although the technical terminology apparent in these two eases differs, the underlying reasoning is similar. In each case, an unforeseen, burdensome condition was discovered during the performance of the original contract. The promise of additional compensation in return for the promise that the additional work required would be undertaken was held to constitute a separate, valid agreement. Such reasoning is applicable to the facts of this case. The unchallenged findings of the court reveal that the substantial rubble found beneath the surface of the site was not anticipated by either party, that its presence necessitated excavation beyond the depths required in the plans and specifications, that the cost of removing this rubble was not included in the contract price and that the parties entered into a separate oral agreement for the removal of the rubble. Under these circumstances, the subsequent oral agreement, that the defendant would remove this rubble in return for additional compensation, was binding as a new, distinct contract, supported by valid consideration. See Restatement (Second) Contracts § 89D (Tentative Draft No. 2,1965). The defendant's failure to comply with this agreement constitutes a breach of contract. Because of our disposition of this issue, we need not address the question of whether the subcontract incorporated the provision of the contract requiring written authorization by the architect or owner for extra work. Such a provision does not preclude a subsequent agreement pursuant to which an obliga tion, not contemplated at the time the original contract was executed, is assumed. Wyandotte & D.R. Ry. v. King Bridge Co., 100 F. 197, 205 (6th Cir.); see also Farm-Rite Implement Co. v. Fenestra, Inc., 340 Mass. 276, 287, 163 N.E.2d 285. The court found that the plaintiff and the defendant entered into an agreement pertaining to the costs for removal of the rubble. Such an agreement is valid. See, e.g., Wagner v. Graziano Construction Co., 390 Pa. 445, 447, 136 A.2d 82. There is error, the judgment for the defendant on the complaint is set aside and the ease 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. The plaintiff sought to notify the owner, but because the owner was ill, the plaintiff was unable to reach him.

The defendant's "Motion to Validate Late Filing," dated July 28, 1978, is granted by the court.

Loiselle, J. The defendant in the present case and his codefendant, Anthony J. Wilkinson, Jr., were convicted of misconduct with a motor vehicle as a result of a head-on collision in which a third person was killed. From the evidence presented the jury could have found that Varricchio and Wilkinson had agreed to a street race along the main highway in Ellington. Varricchio was driving a pickup truck. Wilkinson was operating a van. Varricchio lined up next to Wilkinson in the left lane of a two-lane highway. The vehicles accelerated rapidly and traveled together for about fifty feet. Wilkinson pulled ahead. Varricchio ducked back into the right lane. He then followed Wilkinson. Both were traveling at high speeds. Wilkinson reached the intersection first. Varricchio crossed into the eastbound lane to avoid hitting the rear of Wilkinson's van and hit head on a ear driven by James L. Daigle, who was traveling eastbound. Daigle subsequently died as a result of injuries sustained in the collision. Both Varricchio and Wilkinson have appealed from their convictions. Because they have raised different claims of error, we are treating their appeals separately. Varricehio's first assertion of error is that the court did not on its own motion order separate trials. Varricehio was tried for misconduct with a motor vehicle along with Wilkinson (see State v. Wilkinson, 176 Conn. 451, 408 A.2d 232), with whom he was racing at the time of the accident. Varricchio's counsel admitted at oral argument and in his brief that the defendant never made a motion for a separate trial. Despite this omission, it is the defendant's contention that on the facts available to the court prior to trial and developed during the trial, the court was obligated to order sua sponte that the defendants be tried separately. Joint trials of persons jointly indicted or informed against are the rule, and separate trials the exception resting in the discretion of the court. State v. Castelli, 92 Conn. 58, 65, 101 A. 476. Section 532 of the 1963 Practice Book required joint trials of two or more persons being tried for the same offense unless good cause existed for severance of the trials. There is no affirmative duty on the part of the court to move for separate trials. A separate trial will be ordered where the defenses of the accused are antagonistic, or evidence will be introduced against one which will not be admissible against others, and it clearly appears that a joint trial will probably be prejudicial to the rights of one or more of the accused. The test for the trial court is whether substantial injustice is likely to result unless a separate trial be accorded. State v. McLucas, 172 Conn. 542, 559, 375 A.2d 1014, cert. denied, 434 U.S. 855, 98 S. Ct. 174, 54 L. Ed. 2d 126; State v. Holup, 167 Conn. 240, 245, 355 A.2d 119; State v. Klein, 97 Conn. 321, 324, 116 A. 596; State v. Castelli, 92 Conn. 58,101 A. 476; State v. Brauneis, 84 Conn. 222, 226, 79 A. 70. "[T]he phrase 'prejudicial to the rights of the parties' means something more than that a joint trial will probably be less advantageous to the accused than separate trials." State v. McCarthy, 130 Conn. 101, 103, 31 A.2d 921. A motion to sever is addressed to the sound discretion of the court. State v. Holup, supra, 244; State v. Klein, supra, 323. The motion should be made prior to commencement of the trial; State v. McCarthy, supra, 103; State v. Brauneis, supra, 226; and it is the party's responsibility to present information to the court from which it can determine whether the defenses are going to be antagonistic or the evidence will unduly prejudice either or both defendants. State v. Klein, supra, 323. "The discretion of the court is necessarily exercised before the trial begins, and with reference to the situation as it then appears." State v. Castelli, supra, 63. "[T]he character of the evidence and its effect upon the defense intended to be made should be stated, so that the court may be in a position to determine the probability of substantial injustice being done to the moving party from a joint trial." State v. Castelli, supra, 63. The defendant never made a motion to sever. "[A]n abuse of discretion cannot be found if no information is furnished to the court as to the situation which the defendant claims will be prejudicial to him." State v. McCarthy, supra, 105; State v. Hunt, 154 Conn. 517, 522, 227 A.2d 69; annot., 59 A.L.R.2d 841, 847. Varricehio never explained in his brief or at oral argument why he did not make the motion, nor did he assert that he was surprised by the evidence or defense presented by his codefendant. Varricehio claims that the transcript is replete with examples of the antagonistic nature of his codefendant's defenses. Because it was a joint trial, he contends that the state was able to conduct direct examination of its witnesses and then sit back and watch each defendant, through the powerful tool of cross-examination (which would not ordinarily be available to the state in a single trial), seek to shift blame for the accident to his fellow defendant. On the basis of the record, it is apparent that the failure of counsel to ask for a separate trial was a considered and sound exercise of trial strategy calculated to be in the best interests of the accused. The only proper assumption is that he was fully familiar with our law regarding the right of an accused to request a separate trial and that the granting of such a request lay in the court's discretion in the light of the situation presented to it. Moreover, the defenses of Varricehio and Wilkinson were neither antagonistic nor contradictory. Varriechio maintained that he had agreed to a "burn out," but never intended to race. The codefendant Wilkinson, who did not take the stand, did not try to rebut the evidence showing an agreement to race, but rather attempted to show that he had abandoned the race before the collision occurred. The defendant has not pointed to any evidence in the record that would have been inadmissible if the trials had been severed. Nor has he shown any inculpatory statements about him that the state was able to bring in by virtue of the joint trials. Under the circumstances no prejudice has been shown to have resulted to Varriechio from a joint trial. Varriechio presses as his second claim of error the trial court's refusal, on the ground of relevancy, to accept testimony on whether the defendant could have avoided the accident. On cross-examination of the state's witness Richard Grant, Varriechio's counsel sought to determine the witness' opinion as to whether it was possible for the defendant to turn right to avoid hitting the van. The state objected on the ground that the evidence sought was irrelevant. It is well established in Connecticut that courts have wide discretion in ruling on the relevancy of evidence. State v. Towles, 155 Conn. 516, 523, 235 A.2d 639. At times the evidence offered may be relevant, but its relevance may be so slight and inconsequential that to admit it would distract attention which should be concentrated on other evidence which bears directly on the vital issues of the case. State v. Mahmood, 158 Conn. 536, 540, 265 A.2d 83; State v. Bassett, 151 Conn. 547, 551, 200 A.2d 473. According to the colloquy which was referred to in the defendant's brief, it appears that the defendant was eliciting this testimony from a lay witness with -the idea of proving the defendant's state of mind. He wanted to establish that the defendant acted as a reasonably prudent person under the alternatives presented to him at the time of impact. Counsel acknowledged that he raised the issue of the defendant's state of mind as a defense to criminal negligence only. In State v. Alterio, 154 Conn. 23, 220 A.2d 451, it was held that simple negligence-type defenses were not relevant to the charge of misconduct with a motor vehicle. Therefore, the trial court did not abuse its discretion in ruling the witness' testimony irrelevant. At oral argument, the defendant abandoned his other claims; consequently, they are not considered. There is no error. In this opinion the other judges concurred. "[General Statutes] Sec. 53a-57. misconduct with a motor vehicle: class D felony, (a) A person is guilty of misconduct with a motor vehicle when, with criminal negligence in the operation of a motor vehicle or in consequence of his intoxication while operating a motor vehicle, he causes the death of another person. For the purposes of this section, 'intoxication' shall include intoxication by alcohol or by drug or both." For further factual discussion, see State v. Wilkinson, 176 Conn. 451, 408 A.2d 232. "[Practice Book, 1963] Sec. 532. joinder; separate trial. All persons prosecuted for any offense committed by two or more persons shall, unless good cause shall exist for proceeding otherwise, be joined in the same complaint. Nothing contained in this section shall be construed to limit the power of the court to order a separate trial for any person charged jointly with another or for any offense charged with other offenses in the same complaint. The word complaint as used in this section shall include all forms of criminal prosecutions." The codefendaut Wilkinson made a mohio-n fo,r separate trials, but withdrew it prior to the commencement of trial. A contest to see who could start and take off faster. "Yes, Your Honor, but the issue before this court is not whether or not it is negligence. I could stipulate it is negligent, but it wouldn't meet the issue of this case, Your Honor, that is, whether it is criminally negligent, whether it is negligent to sueh a degree — "

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

The defendant's petition and the plaintiffs cross petition for certification for appeal from the Appellate Court, 17 Conn. App. 71, are granted, limited to the following issues: Lawrence D. Church, in support of the petition. Mark F. Katz, in opposition. Decided December 20, 1988 "1. Was the Appellate Court correct in concluding that the plaintiffs objection to the report of the trial referee was untimely? "2. If the objection was untimely, was the Appellate Court correct in concluding that plenary review of the plaintiffs objection was nonetheless warranted?"

Cotter, C. J. Paul P. DeLuca was named executor under the will of Nora Andrews. After her death, the Probate Court, over the plaintiffs' objections, granted DeLuca's petition to admit the will to probate and appointed him the executor of the estate. The plaintiffs filed an appeal alleging that they were heirs at law of the deceased and that they were aggrieved by the order and decree of the Probate Court in admitting the document to probate. The Probate Court allowed the plaintiffs' appeal and ordered that notice of the appeal be given to various named persons and institutions. The court did not order that notice be given to DeLuca, the executor and fiduciary of the estate, and he was not served with such notice. See General Statutes § 45-294. The appeal was returnable to the Superior Court on May 29,1979. On September 12,1979, the Superior Court granted the defendants' motion to dismiss the appeal on the ground that the failure to name the executor as a defendant deprived the court of subject matter jurisdiction over the appeal. General Statutes §45-288 confers upon "[a]ny person aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specially provided by law" a right to appeal which cannot be defeated by any omission of the Probate Court. Donovan's Appeal from Probate, 40 Conn. 154, 156 (1873). General Statutes §45-294 directs the Probate Court to order notice to interested persons. It does not impose a responsibility on appellants. Id., 155-56; Coughlan v. Murphy, 134 Conn. 601, 604-605, 59 A.2d 729 (1948). These notice requirements are not essential to probate appeals. Orcutt's Appeal from Probate, 61 Conn. 378, 381, 24 A. 276 (1892). Therefore the failure to name an adverse party in a probate appeal does not deprive the Superior Court of subject matter jurisdiction. Donovan's Appeal from Probate, supra, 155-56; Coughlan v. Murphy, supra, 604. The rule of Donovan's Appeal applies even when the executor, the legal representative of the testatrix, has not received notice. New York East Annual Conference v. Seymour, 151 Conn. 517, 522, 199 A.2d 701 (1964). Since the Superior Court had subject matter jurisdiction over the appeal even without notice to the executor, the motion to dismiss was improper. Therefore we reverse. The defect in notice, however, should be corrected before trial. General Statutes § 45-294; New York East Annual Conference v. Seymour, supra. Prior to 1978 the filing of a demurrer was the proper procedure for challenging the absence of a potentially indispensable party. 1 Stephenson, Conn. Civ. Proc. (2d Ed. 1970) § 105, pp. 430-31. The demurrer has been replaced by the motion to strike pursuant to Practice Book, 1978, § 152, which reads, in part: "Whenever any party wishes to contest . (3) the legal sufficiency of any such complaint, counter-claim or cross-complaint, or any count thereof, because of the absence of any necessary party . . . that party may do so by filing a motion to strike the contested pleading or part thereof. A motion to strike on the ground of a nonjoinder of a necessary party must give the name and residence of the missing party or such information as the moving party has as to his identity and residence and must state his interest in the cause of action." In the event that there is any ambiguity in the foregoing provision regarding the use of a motion to strike, the Practice Book also states: "As set forth in Sec. 152, the exclusive remedy for nonjoinder of parties is by motion to strike." Practice Book, 1978, § 198. This exclusive remedy applies to nonjoinder of indispensable parties. The earlier Practice Book allowed pleading over after the sustaining of a demurrer. The Practice Book at the time in question allowed the party whose pleading was stricken to replead within fifteen days. Practice Book, 1978, § 157. The intent of the respective provisions was to allow testing of the legal sufficiency of the pleadings and to allow amendment as a matter of right within fifteen days to remedy any correctable defects. We do not reach the question of whether DeLuca is an indispensable or a necessary party in an appeal from his appointment and the admission of the will to probate because in either event the failure to allow the plaintiffs to attempt to correct the defect would demand the same result in this case. There is error, the judgment is set aside and the case is remanded for further proceedings in accordance with law. In this opinion the other judges concurred. Among those whom the Probate Court ordered to be notified were Mary Sharp and Janet Boss, the principal beneficiaries under the will. The law firm of DeLuca and Chan, of which the executor under the will, DeLuca, is a partner, represents Sharp and Boss. Attorney Jackie Chan, a member of the firm, filed the motion to dismiss on their behalf.

Parskey, J. The plaintiff contests a special assessment levied by the defendant in connection with a downtown parking facility known as the Baldwin parking lot constructed by the town of Westport during the 1960s. A special assessment was levied by the board of selectmen on all properties directly benefited by the parking lot in order to recoup part of the capital costs of site acquisition and construction of the lot. All properties lying within 500 feet of the lot were found to be directly and specially benefited. The extent of the benefit and the amount of the assessment were determined by a formula which took into account (1) the value of the property as of the date of the assessment, (2) the amount of parking, if any, which might be required due to the existing use of the property and (3) the proximity of the property to the lot. The plaintiff owns a parcel which abuts the lot and has been used as a gasoline station since the early 1930s. On the basis of the above formula the plaintiff was assessed $10,611. The trial court upheld the assessment. On appeal, the plaintiff contests the trial court's conclusions in three respects: (1) the court erred in interpreting No. 568 of the 1953 Special Acts; 26 Spec. Acts 1116, No. 568; as amended by No. 86 of the 1965 Special Acts; 32 Spec. Acts 70, No. 86; to authorize involuntary special assessments, (2) the court incorrectly determined that the plaintiff's property was specially benefited and (3) the court erroneously held that the formula used to compute the amount of the assessment was legally proper and correct as applied to the plaintiff. We discuss each claim in turn. Statutory Authority The plaintiff first challenges the trial court's conclusion that No. 86 of the 1965 Special Acts authorizes the board of selectmen of the town of Westport (board) to levy an involuntary special assessment on those properties especially benefited by the municipal parking area. This act amended certain provisions of No. 568 of the 1953 Special Acts. The operative provision for present purposes is § 4, which is set out in three parts. Subsection (1) authorizes the board to enter into agreements for the acquisition of property for a parking facility. Subsection (2) authorizes the board to apportion and assess the cost of acquisition and construction of the parking area upon land specially benefited thereby. Subsection (3) authorizes the board to enter into agreements with the owners of specially benefited properties with respect to the determination of benefits and damages. The plaintiff's contention that a fair reading of this section leads to the conclusion that the board may levy a special assessment only as a result of an agreement with the affected property owners is without merit. It is axiomatic that a statute which is clear and unambiguous is not subject to modification by construction; Jones v. Civil Service Commission, 175 Conn. 504, 509, 400 A.2d 721 (1978); and is to be given effect in accordance with its plain language unless to do so would thwart its purpose. Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 489, 400 A.2d 726 (1978). The 1965 special act authorizes the defendant to acquire property for parking purposes either by eminent domain (§ 6) or by agreement (§4[1]) and to levy a special assessment on the specially benefited properties either by agreement {% 4[3]) or under its independent authority (§4[2]). To hold otherwise would fly in the face of the clearly expressed legislative will. Special Benefit The plaintiff next contends that there is no basis for the court's conclusion that the plaintiff's property was specially benefited by the defendant's parking facility. The thrust of the plaintiff's argument is that the plaintiff's gas station receives no direct and immediate benefit from the defendant's parking lot. A "special assessment" is a "local assessment imposed . . . upon a limited class of persons interested in a local improvement; who are assumed to be benefited by the improvement to the extent of the assessment." Bridgeport v. N. York & N. Haven R. R. Co., 36 Conn. 255, 262-63 (1869). To he valid the benefit must be direct, immediate, appreciable and certain. Appeal of Cohen, 117 Conn. 75, 84, 166 A. 747 (1933); Naugatuck Railroad Co. v. Waterbury, 78 Conn. 193, 196-97, 61 A. 474 (1905). The assessment may not materially exceed the benefits conferred. Whitmore v. Hartford, 96 Conn. 511, 519, 114 A. 686 (1921); Naugatuck Railroad Co. v. Waterbury, supra. Whether a given property is specially benefited by a public improvement involves a question of fact. O'Rourke v. Stamford, 179 Conn. 342, 345, 426 A.2d 311 (1979); Dellaripa's Appeal, 88 Conn. 565, 571, 92 A. 116 (1914). The trial court concluded that the plaintiff's property was specially benefited both in its current use as a gas station and in its highest and best use (retail stores). With respect to the current use, there was sufficient evidence of special benefit to the gas station from the traffic generated by the existence of the parking facility to justify the imposition of the special levy. There was also evidence supporting the court's conclusion based on the property's highest and best use. The plaintiff's contention that only current use is applicable in special assessment cases is without merit. An examination of the cases on special assessments cited by the plaintiff discloses that they do not stand for the proposition advanced by the plaintiff. The cases which have limited consideration of benefit to current use have been those where the current use appeared to be permanent in character. Hartford v. West Middle District, 45 Conn. 462, 464 (1878) (school district); Bridgeport v. N. York & N. Haven R. R. Co., supra, 264 (railroad); Clapp v. Hartford, 35 Conn. 66, 80 (1868) (church). In N. Y., N. H. & H. R. R. Co. v. New Britain, 49 Conn. 40 (1881), the land, although purchased by the railroad for the purpose of storing freight ears and used exclusively for that purpose, was held subject to a special sewer assessment because the land was unrestricted, was unoccupied by buildings and was eligibly situated for mechanical and manufacturing purposes. Id., 44. So long as the land is not restricted or the current use is not permanent in character, there is no rule of law which precludes a special assessment based on potential use of the subject property. "The 'highest and best use' concept . . . has to do with the use which will most likely produce the highest market value, greatest financial return, or the most profit from the use of a particular piece of real estate." State National Bank v. Planning & Zoning Commission, 156 Conn. 99, 101, 239 A.2d 528 (1968). In levying a special assessment, a governmental unit is not required to limit its impact to current land use; it may also take into account the economic forces at work in the marketplace. Assessment Formula The formula adopted by the board for the special assessment provided for the cost of the project to be apportioned on the basis of the current assessed valuation of the subject property adjusted to take into account the proximity of the property to the parking facility and a factor reflecting the number of parking spaces needed by the property. The proximity factor was arrived at as a result of personal observations of an ad hoc committee appointed by the Westport first selectman. This committee concluded that property within a radius of 500 feet of the parking area would be benefited by it and recommended that the benefited area be divided into six zones, each to be given a numerical value representing the distance of the property from the facility. One half of the cost of the project was to be apportioned on the basis of the proximity factor multiplied by the current assessed valuation, the other half on the basis of the parking factor. In the case of the plaintiff's property, the parking factor was given a value of zero. Therefore, the plaintiff was not assessed for any benefit conferred by the mere presence of additional parking spaces. The factor that was included in the plaintiff's assessment, the current assessment for property tax purposes adjusted for proximity to the facility, bears a reasonable relationship to the benefits conferred. See Embree v. Kansas City & L. B. Road Dist., 240 U.S. 242, 250, 36 S. Ct. 317, 60 L. Ed. 624 (1916); 70 Am. Jur. 2d, Special or Local Assessments 89, 97. There is no error. In this opinion the other judges concurred. "[32 Spec. Acts 70, No. 86] Section 1. Section 3 of number 568 of the special acts of 1953 is amended to read as follows: The board of selectmen shall have the same powers to control traffic in parking areas as are provided by chapter 249 of the general statutes for traffic control on highways, and any amendments thereto, and shall have power to establish the rates to be charged for parking. "Sec. 2. Section 4 of said act is amended to read as follows: The board of selectmen shall have power (1) to enter into agreements with owners of land or with any person claiming an interest therein for the acquisition of land or other property rights for the purposes provided herein; (2) to apportion and assess the whole or any portion of the cost of acquisition and construction of a parking area upon the land and buildings in the town of Westport which, in its judgment, are especially benefited thereby, whether they abut on such parking area or not, and upon the owners of such land and buildings, according to such rule as the board of selectmen adopts; (3) to enter into agreements with any person interested in the parking area and access thereto concerning the benefits accruing to him or the damages sustained. Such agreement may provide for a special assessment to be placed upon the affected property and for its collection in the same manner as town taxes over such period as the board of selectmen may determine. Upon the recording of such agreement in the Westport town clerk's office, it shall be binding upon the parties signing sueh agreement, their heirs, successors and assigns. "Sec. 3. Section 5 of said act is repealed. "Sec. 4. Section 6 of said act is amended to read as follows: Except as provided herein, the town of Westport and the property owners whose property is acquired or assessed shall have all the rights and shall be subject to all the duties with respect to parking facilities, including the power of eminent domain and assessment of benefits and damages, as are provided with respect to municipal sewerage systems in chapter 103 of the general statutes and any amendments thereto." "[26 Spec. Acts 1116, No. 568] Section 1. The town of West-port shall have power to build, operate and maintain parking areas, including access thereto, in the town of Westport. "Sec. 2. The town of Westport is empowered to own, and acquire, develop or fill in areas along the Saugatuck river or elsewhere, to be used for the purpose of building, operating and maintaining parking areas, including means of access thereto, to install parking meters on the public highways and other public places, including parking areas, and to collect the proceeds therefrom. "Sec. 3. The board of selectmen shall have the same powers to control traffic in parking areas as are provided by chapter 112 of the general statutes for traffic control on highways, and shall have power to establish the rates to be charged for parking. "Sec. 4. The board of selectmen shall have power (1) to enter into agreements with owners of land or with any person claiming an interest therein for the acquisition of land or other property rights for the purposes provided herein; (2) to assess benefits or damages for such acquisition; (3) to enter into agreements with any person interested in the parking area and access thereto concerning the benefits accruing to him or the damages sustained. Such agreement may provide for a special assessment to be placed upon the affected property and for its collection in the same manner as town taxes over such period as the board of selectmen may determine. Upon the recording of such agreement in the Westport town clerk's office, it shall be binding upon the parties signing such agreement, their heirs, successors and assigns. "Sec. 5. The benefits assessed for the purposes herein provided shall not be limited by the provisions of section 2159 of the general statutes. "Sec. 6. Except as provided herein, the town of Westport and the property owners affected shall have all the rights and shall be subject to all the duties with respect to parking facilities including the power of eminent domain, as are provided with respect to town highways in chapter 105 of the general statutes."

Arthur H. Healey, J. This appeal is from the judgment rendered in a contested marital dissolution ease and challenges the entry of certain orders in that proceeding. The plaintiff, Kathleen Eidgeway, brought an action against the defendant, Eonald Eidgeway, for dissolution of their marriage, alleging that it had broken down irretrievably. She also sought custody of and support for the three minor children, alimony, the transfer to her of the jointly held family home and counsel fees. The defendant admitted the allegations of the plaintiff's complaint and filed a cross complaint, also based on irretrievable breakdown, in which he sought a dissolution, custody of the three minor children and a conveyance of the plaintiff's interest in the family home. Because the wife sought a continuance and did not wish to go forward on the complaint, the court went forward on the cross complaint. The ease was heard on June 27, 1978, as a contested matter. The court rendered judgment on the cross complaint dissolving the marriage and awarded custody of the children to the defendant with visitation to the plaintiff each Sunday from 1 p.m. to 5 p.m. "or at such reasonable time as the parties may agree." The court also referred to the family relations division for investigation and report the matter of more extensive visitation, including overnight visitation. Alimony of one dollar per year was ordered, and the plaintiff was ordered to transfer her interest in the family home to the defendant and, contemporaneously therewith, the husband was ordered to deliver to the plaintiff a promissory note and a mortgage on that real estate to secure the note in the principal amount of $30,000 with interest to be payable monthly at the rate of 6 percent per annum. The principal was to be payable on January 26, 1988, or at such time that the property was sold or upon the death of the husband, whichever occurred first. The defendant was given the option of paying off the note and mortgage prior to the occurrence of any of these events. The defendant was also ordered to pay the sum of $400 toward the plaintiff's counsel fees as well as up to $150 for the fee of a physician, Dr. Grianetti, who testified for the plaintiff. The plaintiff has appealed and raises several claims, which we address individually. At the outset we take up the plaintiff's claims that the court erred in denying her motion for a continuance on June 27, 1978, and proceeding with the trial on that day. Essentially, she claims the court erred in ruling that she was competent to proceed and to participate properly in the trial. The case had been marked ready for trial in January, 1978, April, 1978, and again in June, 1978, a week before the trial was actually held. Each time it was reached for trial, the plaintiff's attorney requested a continuance for the same reason, the incompetence of his client. The week before the trial, the trial court informed defense counsel that, if a further continuance was sought for that reason, it was its opinion that the defendant was entitled to have that issue decided. On June 27, 1978, the plaintiff's counsel orally moved for a continuance, to which defense counsel objected, indicating that he wished to proceed. At that time, plaintiff's counsel had in attendance Dr. David Gianetti, a psychiatrist, who had treated the plaintiff. Gianetti was examined and cross-examined, and the court also inquired of him. He testified that he first saw the plaintiff in December, 1976, and had last seen her about two months prior to the trial; that she had been an inpatient at a city hospital for about six weeks ending in April, 1977; that she suffers from "a rather severe thought disorder, as well as emotional disorder," that primarily concern the fear of "her life being monitored by those who are unknown to her"; and that her fear of "being monitored" causes her at times to discuss the worthlessness of life under such conditions both for herself and her children, whom she believes are also being "monitored." Gianetti also testified that her preoccupation with "monitoring" impairs her judgment and affects her ability to participate with her attorney to protect her interests in the proceedings. Gianetti acknowledged, however, that he was aware that the plaintiff, since her discharge as an inpatient, had been and still was taking courses successfully at Sacred Heart University in Bridgeport in math, history and political science; that she had also attended the University of Bridgeport; that she held a part-time job in a supermarket for about six months prior to the trial; and that she had applied for and passed a civil service examination and would begin a full-time position with the social security administration on July 3, 1978. These considerations did not alter his "impaired judgment" diagnosis. Gianetti believed that when the plaintiff instituted the divorce proceedings and at the time of the hearing she knew what she was doing and that the proceeding would end in the dissolution of her marriage, although he believed that she did not understand all the consequences of the proceeding. At the trial itself, the plaintiff testified that she knew the nature of the proceeding and that the judge would make certain decisions concerning the parties' marriage, their property and the custody of their children. This court will only find error in the grant or denial of a motion for a continuance "if a clear abuse of the trial court's discretion is shown. Rusch v. Cox, 130 Conn. 26, 32, 31 A.2d 457 (1943); State v. McLaughlin, 126 Conn. 257, 260, 10 A.2d 758; Allen v. Chase, 81 Conn. 474, 477, 71 A. 367." State v. Best, 171 Conn. 487, 492, 370 A.2d 1035 (1976). Every reasonable presumption in favor of the proper exercise of the trial court's discretion will be made. See State v. Jeustiniano, 172 Conn. 275, 285, 374 A.2d 209 (1977); State v. Manning, 162 Conn. 112, 121, 291 A.2d 750 (1971). As a general rule, a somewhat stronger showing must be made to support a motion for a continuance where the moving party has obtained prior continuances, particularly where the claim is premised on the ill health of a party. See annot., "Continuance of Civil Case Because of Illness or Death of Party," 68 A.L.R.2d 470, 490 et seq. The record discloses that the court held a thorough hearing on the plaintiff's claim and participated by inquiry to assist in resolving the issue. The trial court certainly was not bound to accept the expert's testimony insofar as it tended to support the plaintiff's claim. Stewart v. Stewart, 177 Conn. 401, 402-403, 418 A.2d 62 (1979). See Themper v. Themper, 132 Conn. 547, 549, 45 A.2d 826 (1946). Moreover, even one whose thought processes are impaired to the extent of being insane has a legal capacity to sue or be sued, provided he has not been formally adjudicated an incompetent and placed under the guardianship of another. See Kirwan v. State, 168 Conn. 498, 502, 363 A.2d 56 (1975); 41 Am. Jur. 2d, Incompetent Persons § 115; annot., 71 A.L.R.2d 1247 § 2. The court may, as the circumstances warrant, appoint a guardian ad litem to ensure that the interests of the person who may be incompetent are adequately protected. See Kirwan v. State, supra; General Statutes § 45-54. In this case, the court concluded, as it was entitled to, that the plaintiff was competent. Furthermore, the plaintiff was represented by counsel of her own choosing. Nothing in the record indicates that her counsel failed adequately to protect her interests in the matter. Cf. Gentry v. Warden, 167 Conn. 639, 645, 356 A.2d 902 (1975). While there is no mechanical test for determining when the denial of a continuance is so arbitrary as to violate due process or amount to an abuse of discretion, the record before us amply discloses that the court's decision in this regard was fully justified. See Ungar v. Sarafite, 376 U.S. 575, 589, 84 S. Ct. 841, 11 L. Ed. 2d 921 (1964); State v. Jeustiniano, 172 Conn. 275, 285, 374 A.2d 209 (1977). While our decision on this ground makes it unnecessary for us to address the plaintiff's claim that the court erred in failing to appoint a guardian ad litem to protect her interests, we briefly address the claim that the court erred in failing to appoint a guardian ad litem for the benefit of the minor children. Not only was no motion made for such an appointment, there was also no evidence indicating that the interests of the minor children would not otherwise be adequately protected. Under General Statutes § 46b-54, the court "may" appoint counsel to protect the interests of a minor child in a dissolution action if it deems it to be in the best interests of the children. The term "may" imports discretion; see Shulman v. Zoning Board of Appeals, 154 Conn. 426, 428, 226 A.2d 380 (1967); and there is no basis for concluding that the trial court abused its exercise of discretion in this respect. The plaintiff also attacks the court's award of custody of the minor children to the defendant and the visitation rights granted to her. The defendant had temporary custody of the children since the plaintiff left the family home in December, 1976 until the dissolution decree was rendered some eighteen months later. To make provision for the care and supervision of the children while the defendant was working, the defendant's parents began to reside in the family home each week from Monday through Friday. The defendant, who was a carpentry foreman, added two bedrooms and another bathroom to the three bedroom raised ranch home to accommodate his parents. The children and grandparents got along well. Prior to the decree the plaintiff visited the children at the family home on Sundays from 1 p.m. to approximately 4 or 5 p.m. On occasion her visits had a good effect upon the children, but on occasion her visits upset them because of her speaking to them "about the perverts and people monitoring her home." This has affected the oldest boy and bothers him to the extent that on some nights he cannot sleep. Gianetti, who also testified for the plaintiff at the trial in chief, was examined concerning the plaintiff's problems. It was his opinion that if the court granted her custody of the children there was a reasonable possibility that she could harm herself or the children or both. This court has consistently held in matters involving child custody, and, by implication, visitation rights, that while the "rights, wishes and desires of the parents must be considered it is nevertheless the ultimate welfare of the child which must control the decision of the court." Palmieri v. Palmieri, 171 Conn. 289, 290, 370 A.2d 926 (1976), quoting In re Appeal of Kindis, 162 Conn. 239, 242, 294 A.2d 316 (1972); see General Statutes §46b-56 (b). In making this determination, the trial court is vested with broad discretion which can only be interfered with upon a clear showing that that discretion was abused. Kearney v. State, 174 Conn. 244, 252, 386 A.2d 223 (1978); Simons v. Simons, 172 Conn. 341, 349, 374 A.2d 1040 (1977); Palmieri v. Palmieri, supra. In this case, the evidence showed that the children were living in a familiar and stable environment with love and attention from their paternal grandparents; that the plaintiff at times had an adverse effect upon the children; and that the plaintiff's psychological instability was such that it posed a threat to the children's well-being. Moreover, Gianetti recommended that the plaintiff immediately commence inpatient psychiatric treatment at a hospital. Under the circumstances, we cannot say that the trial court abused its discretion. We note also that while the one-day visitation rights of the plaintiff are somewhat limited, the court also referred the possibility of more extensive visitation, as well as overnight visitation, to the family relations divi sion for investigation and report. It is clear that the court's order in this regard was directly related to the plaintiff's uncertain psychological condition. We turn now to the plaintiff's claims concerning the award of one dollar per year periodic alimony. The plaintiff argues that the court erred in awarding no more than one dollar per year, in accepting the defendant's financial affidavit, and in failing to award her medical insurance or some form of medical protection. The plaintiff's claim that the court erred in its reliance upon the defendant's financial affidavit, which she alleges contained inaccuracies, is without merit. The plaintiff claims that certain debts of the defendant shown on the affidavit no longer existed, that his salary was inaccurately reported, and that certain expenses were unjustified. Any changes in the defendant's financial position between the preparation of his financial affidavit and the hearing were brought to the court's attention. Contrary to the plaintiff's suggestion, it was the defendant who informed the court of his salary increase. The court did not err in relying upon the affidavit as modified. With respect to the amount of alimony, we note that the defendant assumed all of the plaintiff's debts, including the unreimbursed hospital bills, doctor bills and the balance of a bank loan and charge accounts and that he gave the plaintiff the family automobile. The plaintiff, who lived with her parents, had supported herself for the eighteen months immediately preceding the trial. She was to start a full-time position with the social security administration the week of the trial. There was evidence that the plaintiff would be entitled to certain medical insurance coverage as a result of her employment. Under the circumstances we find no abuse of discretion in the order of periodic alimony; the court could reasonably have concluded as it did. See El Idrissi v. El Idrissi, 173 Conn. 295, 299, 377 A.2d 330 (1977); deCossy v. deCossy, 172 Conn. 202, 205, 374 A.2d 182 (1977). We do point out that because some alimony was awarded, with no preclusion of modification, if the circumstances warrant, a change in the award can be obtained at some future time. See General Statutes § 46b-86; Swayze v. Swayze, 176 Conn. 323, 337, 408 A.2d 1 (1978). The plaintiff also challenges the property settlement. She contends that the court should have ordered that the family home be held by the plaintiff and the defendant as tenants in common and that the home be sold when the youngest child reaches the age of eighteen. This, she argues, would have given her the benefit of appreciation in market value between the decree and the youngest child's eighteenth birthday. While this proposal has some appeal, the trial court elected instead to order the plaintiff to transfer to the defendant her interest in the home in exchange for a promissory note, secured by a mortgage on the premises, in the amount of $30,000. This order provides the plaintiff with additional income of $150 per month, while the defendant continues to pay the first mortgage in the amount of $12,153. The court's decision was not outside of the scope of General Statutes § 46b-81. The plaintiff also claims that the court erred in refusing to award the plaintiff any interest in the personal property of the parties. About one-half of the personal property is furniture in the family home and it seems reasonable that that property, in this case, should go to the party who has the real estate and the duty of furnishing shelter for the minor children. With respect to the remaining relatively small amount of personal property, we have had occasion many times to say that the assignment of property in a marital dissolution rests in the sound discretion of the court. See Posada v. Posada, 179 Conn. 568, 572, 427 A.2d 406 (1980); Fucci v. Fucci, 179 Conn. 174, 181, 425 A.2d 592 (1979); Lee v. Lee, 174 Conn. 5, 7-8, 381 A.2d 529 (1977). Again, we cannot say that the court could not reasonably conclude as it did. There is no error. In this opinion the other judges concurred. Although this appeal is taken from the judgment, the plaintiff does not brief any error in the entry of the decree of dissolution itself. Although the ease was heard on the defendant's cross complaint, for the purpose of clarity we shall refer to Kathleen' Bidgeway as the plaintiff and to Bonald Bidgeway as the defendant. We note that January 26, 1988, would be the date on which the youngest of the minor children of the marriage would become eighteen years of age. Although the trial court filed its memorandum of decision prior to the date on which the requirement for a finding was abolished, the plaintiff did not request a finding. Because both parties have treated this ease as though it were governed by the new rules and any difficulty occasioned by the application of these rules should be resolved so as to facilitate business and advance justice; Practice Book, 1978, § 3164, 3166; we have treated the appeal as the parties have. See Speyers v. Manchester, 131 Conn. 598, 601, 41 A.2d 783 (1945); Maltbie, Conn. App. Proc. § 42. Gianetti later testified at the trial in chief as a witness for the plaintiff. Although the plaintiff claims that the court erred in failing to order a report concerning custody of the children under General Statutes § 46b-6, it is clear from a reading of that section that the decision of the court is discretionary. While it may be helpful to a judge deciding a custody dispute to obtain the disinterested assessment such a report should provide, we do not believe, under the facts of this case, that the court was required to do so. The plaintiff also asserts that the court erred in not basing its conclusion as to the fair market value of the home upon a professionally prepared appraisal. The court's conclusion was based upon an estimate provided by the defendant, who testified that he was familiar with the value of similar properties in that area. As a rule, the owner of property is competent to testify concerning its fair market value, and the weight to be accorded such testimony is for the trier to decide. Misisco v. La Maita, 150 Conn. 680, 684-85, 192 A.2d 891 (1963); 3 Wigmore, Evidence (Chadbourn Rev.) § 714, p. 50.

Loiselle, J. The defendant was convicted by a jury of first degree larceny in violation of General Statutes § 53a-119 and 53a-122 (a) (2). His appeal raises several issues concerning the procedures which led to his conviction and the sufficiency of the state's evidence. The first error claimed by the defendant is that his right to due process of law was violated by the trial court's partial denial of his motion for a bill of particulars. The defendant contends that the short form information, as supplemented, was vague and failed to inform him of the conduct which constituted the offenses alleged. The information accused the defendant "of Larceny in the First Degree and charges that at the City of Danbury in [Fairfield] County, on the 30th day of May 1973, and on the 1st day of June, 1973, the said Diogenes J. Balias did commit Larceny of the personal properties of Helmut Huber and Paul Leili, valued in excess of two thousand dollars ($2,000), in violation of Section 53a-119 and Section 53a-122(a) (2) of the Connecticut General Statutes." The bill of particulars states that the specific manner in which the defendant is alleged to have violated § 53a-119 is described in subparagraph (2) of that statute, obtaining property by false pretenses; that the properties taken were Huber's money order and Leili's cashier's check; and that the nature of the "false token, pretense or device" involved was Ballas' false representation that the money was to be used to purchase 120 acres of land on Reservoir Road, New Milford, Connecticut, from the estate of one Rosalowski through the Palm Beach Savings Bank, Palm Beach, and that he, Balias, had arranged financing with that bank for the purchase of the land. If the bill of particulars is to be considered in conjunction with the information; State v. Coleman, 167 Conn. 260, 268-69, 355 A.2d 11 (1974); the test to be applied is as follows: "[If] the state's pleadings . . . informed the defendant of the charge against him with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise, and were definite enough to enable him to plead his acquittal or conviction in bar of any future prosecution for the same offense, they have performed their constitutional duty. . . ." (Citations omitted.) State v. Sumner, 178 Conn. 163, 168, 422 A.2d 299 (1979). We fail to see how the defendant could have been misled as to the offense with which he was charged. Indeed, the allegations here are more precise than those in Sumner because the information specified a violation of § 53a-119 as well as of § 53a-122 (a) (2) and the bill of particulars specified that the state intended to proceed upon a theory of larceny by false pretenses as described in § 53a-119 (2). The court did not err in denying the defendant's motion. The defendant next claims that the information and bill of particulars fail to state an offense because the bill of particulars alleged that the defendant obtained property by false pretenses; General Statutes § 53a-119 (2); but described the manner in which he did so as false promise. General Statutes § 53a-119 (3). This is inaccurate. The bill of particulars described the general nature by which the defendant obtained the property as misrepresentation of both existing facts and expressed intentions as to what he planned to do with the complainants' money in the future. The allegations clearly state an offense under § 53a-119 and §53a-122 (a) (2). The defendant contends that the court erred in denying his motion to dismiss because the warrant for his arrest was issued without a showing of probable cause. He claims that the affidavit supporting the warrant consisted almost entirely of hearsay which without more is insufficient as a matter of law to sustain a finding of probable cause, or, in the alternative, that if the hearsay contained in the affidavit may be considered by the magistrate, the facts contained in the affidavit do not establish probable cause. An affidavit may be based on hearsay information provided "the magistrate [is] informed of some of the underlying circumstances from which the informant concluded [what he did] 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.' " Aguilar v. Texas, 378 U.S. 108, 114, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964); State v. Saia, 172 Conn. 37, 41, 372 A.2d 144 (1976). In this ease, the informants Leili and Huber were the victims of and participants in the crime. State v. Jackson, 162 Conn. 440, 446, 294 A.2d 517, cert. denied, 409 U.S. 870, 93 S. Ct. 198, 34 L. Ed. 2d 121 (1972). Their stories were told to the affiants in a detailed and consistent manner which related their personal interaction with Balias. In addition, the affiants swore that Leili and Huber had shown them copies of the $7000 check and the $5000 money order which they had endorsed to Balias, corroborating their allegations that they had given these amounts to Balias. The affiants also swore that they had seen Huber's telephone bill listing his long distance telephone calls to Florida, corroborating his claim that he had made such calls to verify Balias' statements. The affiants verified by their own investigation at the town clerk's office in New Milford that the 120 acres on Reservoir Road which had been sold on June 27, 1973, had never been owned by a person named Rosalowski. That the land was in fact sold in June corroborates Leili's statement to the affiants that when he told a friend who was employed in the real estate business that he had bid on the property, his friend laughed and told him that he should get his money back because the property had been sold for about two months. The affidavit adequately divulges the underlying circumstances to show that Leili and Huber were credible and their information reliable. Aguilar v. Texas, supra. In addition, the affidavit contains independent corroboration of Leili and Huber's allegations in the form of a phone bill, the copies of the negotiable instruments and the New Milford land records. Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969). Since the facts stated in the affidavit establish probable cause for the warrant to arrest Balias for larceny, the court did not err in refusing to grant that portion of the defendant's motion to dismiss which was addressed to this claim. The defendant's attack on the trial court's jurisdiction also alleges error in the procedure by which he waived a hearing in probable cause. According to the defendant, the waiver was involuntary and invalid because it was motivated by fear of further incarceration. The defendant asserts that the attorney who represented him at the bindover proceeding in Circuit Court told him that if he insisted on a hearing in probable cause the prosecutor would seek and most likely be able to obtain an increase in bond, and that on that advice he entered the waiver to avoid returning to jail. A hearing in probable cause is not required by the constitution where there has already been, such as there is here, an independent determination of probable cause by a neutral magistrate. State v. Paluga, 171 Conn. 586, 591-92, 370 A.2d 1049 (1976); State v. Townsend, 167 Conn. 539, 552-54, 356 A.2d 125, cert. denied, 423 U.S. 846, 96 S. Ct. 84, 46 L. Ed. 2d 67 (1975); State v. Cobbs, 164 Conn. 402, 405-406, 324 A.2d 234, cert. denied, 414 U.S. 861, 94 S. Ct. 77, 38 L. Ed. 2d 112 (1973). Here the trial court found, after a hearing in which the defendant's attorney at the bindover proceeding testified, that no threat of a higher bond had been made. The trial court also noted that the defendant did not testify that he feared an increase in bond. The court did not err in finding the waiver voluntary. The defendant's claim that the trial court erred in refusing to dismiss the information on the ground that the appointment of the state's attorneys by the judges of the Superior Court violates the constitutional doctrine of separation of powers; Conn. Const., art. IV § 12; has been the subject of extensive discussion by this court. State v. McLucas, 172 Conn. 542, 564, 375 A.2d 1014, cert. denied, 434 U.S. 855, 98 S. Ct. 174, 54 L. Ed. 2d 126 (1977); State v. Moynahan, 164 Conn. 560, 567-70, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S. Ct. 291, 38 L. Ed. 2d 219 (1973). The trial court did not err in concluding that these cases were dis-positive of the defendant's claim. The defendant contends that the trial court erred when it refused to set aside the jury's guilty verdict for insufficient evidence. From the evidence presented, the jury could have found the following: In May, 1973, the defendant told Paul Leili and Helmut Huber that he knew of some property in New Milford for sale at an attractive price which would generate a substantial profit to the purchasers, and that he, Balias, could obtain financing from his friend who was the president of the Palm Beach Savings Bank. Leili and Huber met Balias on or about May 25, 1973, to view the property and told Balias that they would have to obtain bank loans in order to purchase the property. Balias told them to act quickly because the matter was "urgent" and his bank president friend did not "want too many people to know about this thing." Balias also told Leili and Huber that the property was owned by the estate of Rosalowski which was tied up in probate proceedings in a Florida court. Balias told them that to bid on the property would cost them $12,000. On May 30,1973, Leili, Huber and Balias entered into a written agreement to purchase the 120 acres of land on Reservoir Road in New Milford. Huber gave Balias a personal money order for $5000. The following day, Leili gave Balias a cashier's check for $7000. The agreement provided that the $12,000 was to accompany their bid to purchase the property, purported to be in probate in the estate of a Florida domiciliary named Rosalowski, and that the bidding was to take place through the Palm Beach Savings Bank in Florida. Balias told them that if the bid was successful, the bank would provide 100 percent of the financing and the cash advanced would be returned to Leili and Huber. Balias told Leili that he could not use his own money to finance the deal because his money was all tied up in Florida real estate, but that the bid would have to be submitted in his name because he knew the bank president and this increased the chances of the bid being accepted. During the two months after the agreement was executed, Leili called Balias to inquire about progress on the bid but Balias replied only that he had heard nothing. On July 19, 1973, Huber called the Probate Court in Palm Beach, Florida, to ask if there had been any progress in the deal. The court informed him that there was no estate of Rosalowski pending there. When he tried to call the Palm Beach Savings Bank, Huber was informed by the local telephone operator that there was no such bank. That night, when Huber confronted Balias with what he had learned, Balias told him that he was mistaken; the Probate Court was in West Palm Beach and the bank was the West Palm Beach Savings Bank. When Huber attempted to confirm this information the next day, he discovered that Palm Beach and West Palm Beach share the same Probate Court and that there was no West Palm Beach Savings Bank. In August, 1973, Balias met Leili and Huber at Leili's place of business. When they asked Balias for their money, he became annoyed but agreed to return it. Leili and Huber never heard from Balias again. Huber tried in vain to contact him almost daily by telephone. One day when Huber saw Balias driving his car on route 7 in Brookfield he attempted to stop him, but Balias eluded him by cutting through a parking lot and running a stop sign. Neither Leili nor Huber saw Balias again until the trial. At trial the state called an officer of the First Westchester National Bank as a witness. He identified the $7000 check Leili had obtained at the Danbury Bank and Trust Company and the $5000 personal money order payable to Balias and drawn by Huber on the Putnam County National Bank of Carmel, New York, as the instruments negotiated by his bank's Brewster, New York, branch office on June 1, 1973. On the basis of the transaction numbers he testified that these two instruments were involved in two consecutive transactions at his bank's branch office on June 1,1973. The essence of his testimony was that on June 1, 1973, Balias purchased two bank money orders payable to the Executive Bank of Fort Lauderdale: one for $12,000, the other for $1000, and that according to bank records Balias had not presented Leili's check and Huber's money order for cash or for deposit. If these items had been presented for cash the teller would have indicated a break-down of the cash paid out on the reverse side of the checks and the bank would have filed a report with the Internal Revenue Service. The instruments showed no cash breakdown and no such report had been filed. If the instruments had been deposited in one of Balias' accounts, the bank records would show that. No record of a deposit appeared. He testified that the only other possible transaction which could have occurred was that Balias presented the items in exchange for another type of draft such as the $12,000 bank money order payable to the Executive Bank of Fort Lauderdale. The state also called as witnesses two employees of the Brewster branch office of the First Westchester National Bank. One of the employees, a bank teller, identified Leili's $7000 check and Huber's $5000 money order as those which Balias had personally presented to her on June 1, 1973, in exchange for a bank check. She recalled that Balias had come into the bank that day, had asked for a bank money order in the amount of $12,000, and had said that he wanted to pay for it with the $7000 and $5000 items. Balias told her that he was planning to buy some property in Florida. She, in turn, took the checks to her supervisor for approval. After the transaction had been approved, the teller issued Balias a bank money order for $12,000 payable to the Executive Bank of Fort Lauderdale. The teller also testified that at another time that same day Balias had purchased a second bank money order for $1000 also payable to the Executive Bank of Fort Lauderdale. The second branch office employee called by the state as a witness was the teller's supervisor who personally signed the bank money orders. She testified that on June 1, 1973, she had approved the issuance by the bank of a $12,000 bank money order in exchange for the $7000 and $5000 items. The supervisor remembered the two checks the bank had received from Balias because she had to telephone the drawee banks on each item to inquire if stop payment orders had been issued on them. The supervisor told the teller to process the two items and to issue the $12,000 bank money order because Balias had stated that he was buying property in Florida and that time was of the essence. The state also called as a witness an employee of the Executive Bank of Fort Lauderdale, Florida. She testified that Balias had opened a savings account with the bank on June 5, 1973, with an initial deposit of $13,000. This deposit was comprised of two money orders from the Westchester National Bank, one for $12,000 and one for $1000. With this $13,000 deposit as security Balias borrowed an additional $13,000 from the Executive Bank of Fort Lauderdale two days later, on June 7, 1973. The essence of Balias' defense at trial was that he too had been duped by a Thomas Rutledge who purported to be vice president of the trust department at the Palm Beach Savings Bank. Balias stipulated at trial that at no time was there an estate of Rosalowski, or any estate which owned the land, or a Palm Beach Savings Bank. But he claimed that he was unaware of those facts when the agreement with Leili and Huber was executed. Balias testified that he cashed the items endorsed to him by Leili and Huber at his Brewster, New York bank, on June 1, 1973, and paid the cash, including $1000 of his own money, to Rutledge who had promised him a commission in the event that the bid was successful. To support his testimony, Balias introduced a receipt signed by Rutledge and a copy of their agreement. Despite Leili's and Huber's testimony that Balias had never mentioned Rutledge while discussing the transaction, Balias testified that he had been dealing with Rutledge throughout, and that when he had paid Rutledge the $13,000 but had not heard from him on the bid, he, Balias, went to Florida to look for him. According to Balias, it was then that he discovered that he too had been duped. Balias also testified that on that same day, June 1, 1973, in a separate and unrelated transaction, he returned to the same bank and purchased two bank money orders payable to the Executive Bank of Fort Lauderdale for $12,000 and $1000 each. Balias did not dispute the state's evidence that the two bank money orders were mailed to the Executive Bank in Fort Lauderdale and deposited in his account. The essence of his defense was that those money orders were purchased entirely with his own cash, taken from his safe on June 1, 1973, after he had given the $13,000 in cash from Leili, Huber and himself to Rutledge. The central issue at trial, as conceded by the defendant's brief, was what Balias did with the items which were endorsed to him by Leili and Huber: endorse them to Rutledge along with $1000 of his own money, or use them to purchase the $12,000 bank money order later deposited in his personal account in the Fort Lauderdale bank. In State v. Saracino, 178 Conn. 416, 419, 423 A.2d 102 (1979), the court applied the following test to determine whether the evidence is sufficient to sustain the verdict: " 'When a jury verdict is challenged on the ground that the evidence is insufficient to sustain the verdict, the issue is whether the jury could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt. . . .' Each essential element of the crime charged must be established by such proof . . . and although it is within the province of the jury to draw reasonable, logical inferences from the facts proven, they may not resort to speculation and conjecture." (Citations omitted.) Balias contends that the jury could not reasonably have concluded that he was guilty of larceny because the officer of the First Westchester National Bank who testified for the state stated that he could not verify, from the bank's two separate encoding systems which would have enabled him to make such a determination, that the bank money orders were issued in exchange for Leili's check and Huber's money order. Balias argues that the testimony of the bank teller and her supervisor that the money orders were issued in exchange for the items does not constitute proof beyond a reasonable doubt. He also contends that the state failed to prove beyond a reasonable doubt that his misrepresentation of then existing facts, which he later stipulated to as false, was knowingly made. Under the standard articulated in State v. Saracino, supra, and the cases cited therein, it cannot he said that the jury could not reasonably have concluded, upon the facts established by the state and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict. The jury's necessary inferences that Balias used the instruments he had obtained from Leili and Huber to purchase the bank money orders and that Balias' misrepresentations to them had been knowingly false were reasonable and logical. Ballas' claim that the evidence was insufficient under State v. Robington, 137 Conn. 140, 75 A.2d 394 (1950), to prove that he had obtained Leili's and Huber's money by false pretenses is not persuasive because, as the defendant concedes, the jury could have found at least two misrepresentations of past or existing facts in addition to misrepresentation of future events, that is, what he intended to do with the money. The court did not err in refusing to set aside the verdict for insufficient evidence. The defendant also claims three evidentiary errors by the trial court. Balias contends that the trial court erred by admitting evidence introduced by the state to show that he made false promises to Leili and Huber because the bill of particulars specified that he obtained their money by false pretenses, and not by false promise. The defendant cites State v. Robington, supra, 142, to support his contention. The state's evidence of Ballas' representations to the complainants regarding what he planned to do with their money was admissible to show Balias' intent to deprive Leili and Huber of their property or to appropriate it to himself, a required element of larceny as defined by § 53a-119. State v. McCarthy, 179 Conn. 1, 22, 425 A.2d 924 (1979); State v. Brown, 169 Conn. 692, 701, 364 A.2d 186 (1975); McCormick, Evidence (2d Ed.) §190, pp. 450-51; 1 Wharton, Criminal Evidence (13th Ed. 1972) § 245. The court did not err in admitting the state's evidence of the defendant's representations regarding what he planned to do with the money. The second evidentiary error claimed by the defendant concerns the trial court's refusal to admit two exhibits for the defense and to permit cross-examination of Leili with regard to the amount he and Huber sought in damages in a civil action against Balias. The court refused to admit either a copy of a letter written by the complainants' attorney to Balias requesting him to return their money or a certified copy of the writ, summons and complaint in their civil action against Balias. Despite the court's ruling which permitted Leili to answer defense counsel's questions showing that he and Huber had instituted civil proceedings against Balias, Balias contends that the court denied him the opportunity to attack the credibility of the witnesses and to show their bias. "As a rule, the extent of a cross-examination is within the court's discretion, although it should be liberally allowed. . . . Nonetheless, the court may restrict a cross-examination to evidence which is competent, material, and relevant, and ' "when the examination has been carried as far as will serve to develop the issues involved and aid the search for the truth, we approve of the trial court curtailing the length and the limit of examinations." ' " (Citations omitted.) State v. Reed, 174 Conn. 287, 299, 386 A.2d 243 (1978). The record shows that the defendant was permitted to impugn the credibility and explore the bias of the witnesses when the court permitted Leili to testify on cross-examination that a civil action was pending for the return of the money, and Balias to testify on direct examination that he received the collection letter from their attorney. The court's rulings that the documents and Leili's testimony as to damages were irrelevant and inadmissible were within its discretion. State v. Mastropetre, 175 Conn. 512, 521, 400 A.2d 276 (1978); State v. Reed, supra, 299. The last claim of error on the court's evidentiary rulings is that the trial court erred when, during the defendant's cross-examination of the state's witness, an officer of the First Westchester National Bank, the court asked the witness a question which he answered in a manner favorable to the state, then later instructed the jury to disregard both the question and the answer. The defendant contends that the court's question solicited a conclusory answer which invaded the province of the jury and prejudiced their consideration of his case. "Judges in this state are given wide latitude to comment fairly and reasonably upon evidence received at trial, and such comments are not improper merely because they tend to point out strengths, weaknesses, or difficulties of a particular case." State v. Echols, 170 Conn. 11, 14, 364 A.2d 225 (1975). Here the trial court instructed the jury to disregard both the question and the answer. In addition, the defendant called the same witness to testify on his behalf seven days after the court questioned him. It was then that the bank officer stated that he could not conclusively determine whether the bank money orders were issued in exchange for the items endorsed to Balias by Leili and Huber, discrediting his former response to the question asked by the court. Any inferences which may have been drawn from the trial court's remarks cannot be considered prejudicial error under State v. Echols, supra. The defendant's final claim of error attacks the trial court's charge to the jury in three respects. First, the defendant claims error in the trial court's refusal to instruct the jury on misapplication of property in violation of General Statutes § 53a-129 as a lesser included offense. Although the defendant requested this instruction in accordance with State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1979), he was not entitled to it because it is possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser. State v. Whistnant, supra. Misapplication of property, as defined by § 53a-129, requires an agreement that the property will be returned to the owner at a future time and an encumbrance of the property without consent of the owner. Neither of these elements is required to commit the offense alleged by the information and bill of particulars in this case. The trial court did not err in denying the defendant's request to charge. The defendant's claim that the court erred in failing to instruct the jury to disregard the state's evidence of his false promises to Leili and Huber is unpersuasive because the state's evidence that Balias had made false promises to Leili and Huber in the commission of that crime was admissable to prove the specific intent required by § 53a-119. The defendant also claims that the trial court's comments on the evidence biased the jury against him because they reviewed only the state's evidence. "The degree to which reference to the evidence may be necessary lies largely in the discretion of the court." State v. Vincenzo, 171 Conn. 240, 244, 368 A.2d 219 (1976); State v. Guthridge, 164 Conn. 145, 153, 318 A.2d 87 (1972), cert. denied, 410 U.S. 988, 93 S. Ct. 1519, 36 L. Ed. 2d 186 (1973). In State v. Vincenzo, supra, this court approved the practice of the trial court's commenting upon important matters not referred to by counsel in argument, which appears to have been the purpose of the instructions at issue here. The test of a charge is whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. Tezack v. Fishman & Sons, Inc., 173 Conn. 183, 186, 377 A.2d 272 (1977). The court's instructions, when considered as a whole, fairly presented the case to the jury. There is no error. In this opinion the other judges concurred. At the time of the defendant's arrest in March, 1975, General Statutes 5 54-76a, then effective but now repealed, outlined the procedures for a hearing in probable cause. The statute states in pertinent part: "The defendant shall be called upon to plead in such hearing and if he waives examination, the judge shall forthwith hold him to answer in the appropriate court." The statute expressly provides for a waiver. The dialogue between the court, the witness and defense counsel was as follows: "The Court: Let me just ask, because it seems so obvious to me, isn't it likely he was issued the checks that we have already got in evidence? I mean somehow or other did I go off base here or what? It happened at the same time and on the same date at the same branch. Isn't that the likely — The Witness: Yes, sir. The Court: —conclusion to be drawn? The Witness: Yes, it is, sir. Mr. Jennings: Your Honor, with all due respect, I would object to that question, because it is a significant issue in the ease, and I really don't think the likeliness should be prejudged until we have traced it through. The Court: That doesn't make it so. I'm just asking the witness if that isn't a likely conclusion to be drawn from the evidence. I am just asking that question, and that's what he answered. I'm going to allow it. Mr. Jennings: Exception, please, Your Honor. The Court: It may be noted." The court charged the jury, in part, as follows: "The Court: Let me say one other thing. In the course of the trial — as I recall on this issue, when Mr. Linemaster, whatever his name was — what was his name? Mr. G-alluzzo: Leinweaver. The Court: Leinweaver testified at some point fairly early on this issue, I asked, broke m to ask Mr. Leinweaver a question, whether or not it was more probable or more likely that Mr. Balias received the money order payable to the Executive Bank in exchange for the two cheeks from Leili and Huber based upon the circumstances, and he said it was. I wanted to tell you, at this time to disregard that question and to disregard that answer. I think there is plenty of other evidence in the case, after I have heard the whole case, for you to decide that issue as to the money without regard to any question I might have asked. Because of the fact that I asked that question, I don't want it emphasized. I don't want it relied upon, and I am tellmg you to disregard it and put it out of your mind, my question and my answer. I don't normally ask questions except that once in a while to try to clarify something. In retrospect as I looked back at that question and answer, I shouldn't have asked it. Disregard it. You will decide the case on the basis of what you heard without regard to my question and answer." (Emphasis added.) General Statutes § 53a-129 provides in pertinent part: "misapplication OP PROPERTY: CLASS A MISDEMEANOR. (a) A person ÍS guilty of misapplication of property when, knowingly possessing personal property of another pursuant to an agreement that the same will bo returned to the owner at a future time, he loans, leases, pledges, pawns or otherwise encumbers such property without the consent of the owner thereof in such manner as to create a risk that the owner will not be able to recover it or will suffer pecuniary loss."

Cotter, C. J. The state moves to dismiss the defendant's appeal from the denial of his motion for a new trial. The following facts are pertinent to a consideration of this motion. The defendant was indicted for the crime of murder in violation of Connecticut General Statutes § 53a-54a on October 31, 1978. After a trial to a jury, a verdict of guilty of manslaughter in the first degree was returned on August 13, 1979. The trial court granted the defendant's motion of September 6, 1979, for permission to file a motion for a new trial and a motion in arrest of judgment. The motions for a new trial and in arrest of judgment related to allegations that evidence had come to light which indicated the jury had acted so improperly as to violate the defendant's right to a fair trial. The trial court denied those motions after a hearing on November 23, 1979. Before the defendant was sentenced on his conviction he filed an appeal from the denial of those motions. The state's motion to dismiss this appeal is based on the premise that the Supreme Court lacks jurisdiction to entertain the appeal because the decision appealed from is not a final judgment. The right of the defendant to appeal is governed by General Statutes § 54-95 and by Practice Book, 1978, § 3000 which provide, inter alia, that an appeal lies from a final judgment. We have recently repeated this court's oft-iterated criteria in determining whether a decision is final for purposes of appeal: "If the order or action terminates a separate and distinct proceeding, or if the rights of the parties are concluded so that further proceedings cannot affect them . . . ." State v. Bell, 179 Conn. 98, 99, 425 A.2d 574. See also E. J. Hansen Elevator, Inc. v. Stoll, 167 Conn. 623, 627, 356 A.2d 893; State v. Roberson, 165 Conn. 73, 82, 327 A.2d 556; State v. Fahey, 146 Conn. 55, 57, 147 A.2d 476. In an effort to conform his case to these criteria, the defendant claims that the denial of his motion is a final judgment because: (1) his motion for a new trial is the equivalent of a petition for a new trial pursuant to General Statutes § 52-270 and thus the trial court's denial of the motion was the termination of a separate and distinct proceeding; and (2) his rights have been so concluded that further proceedings cannot affect them. It is clear that a judgment rendered upon a petition for a new trial is appealable. See Aillon v. State, 168 Conn. 541, 542, 363 A.2d 49; Black v. Universal C.I.T. Credit Corporation, 150 Conn. 188, 189, 187 A.2d 243; State v. Kemp, 124 Conn. 639, 644, 1 A.2d 761. A motion for a new trial is interlocutory and an appeal lies only from the judgment to which the motion is addressed. Hoberman v. Lake of Isles, Inc., 138 Conn. 573, 575-77, 87 A.2d 137; State v. Kemp, supra. Although the defendant obtained certification for review from the trial court pursuant to General Statutes §54-95 (b), this tack does not obscure the fact that many of the essentials necessary to support a petition for a new trial are absent. The defendant filed his motion within the technical confines of the docketed criminal case. No separate civil action was brought. Compare Aillon v. State, supra; Reilly v. State, 32 Conn. Sup. 349, 355 A.2d 324. See generally Hoberman v. Lake of Isles, Inc., supra, 575-77; State v. Kemp, supra, 644-45. The specific distinctions between a petition and a motion for a new trial indicate why judgments rendered upon the former are appealable. The petition is instituted by a writ and complaint served on the adverse party; although such an action is collateral to the action in which a new trial is sought, it is by its nature a distinct proceeding. The judgment on the petition terminates the suit which renders it final. On the contrary, a motion for a new trial is filed in a ease then in progress or pending and is merely a gradation in that case leading to a final judgment. Hoberman v. Lake of Isles, Inc., supra, 575-76. Most importantly, errors which are claimed to have been committed in rendering the judgment on a petition for a new trial are not reviewable on an appeal from the judgment rendered in the action in which a new trial is sought. See Palverari v. Finta, 129 Conn. 38, 41, 26 A.2d 229; Husted v. Mead, 58 Conn. 55, 68, 19 A. 233. On the other hand, errors which are claimed in relation to a motion for a new trial may be assigned on the appeal from the judgment rendered in the case in which the motion is made. Hoberman v. Lake of Isles, Inc., supra, 577. In the present case, the assignment of error would have to do with alleged jury misconduct and the defendant does not claim that he could not raise this particular claim of error on appeal. The alleged jury misconduct at this point is just one more event during the trial upon which the defendant may argue that a claim of error should be based after judgment is rendered. Thus, the defendant's claim that the denial of his motion for a new trial falls within the category of a separate and distinct proceeding; compare Dewart v. Northeastern Gas Transmission Co., 139 Conn. 512, 514, 95 A.2d 381, and the cases cited therein; so as to constitute a final judgment is not persuasive. The defendant's claim that further proceedings cannot affect the rights he alleges are at issue, namely, the right to a fair trial which includes in the present circumstances the defendant's rights to assistance of counsel, to confront and cross-examine witnesses, and to trial by an impartial jury, is also not compelling. There are "many rulings in the course of an action by which rights are determined which are interlocutory in their nature and reviewable only upon an appeal taken from a judgment later rendered." State v. Kemp, supra, 643; France v. Munson, 123 Conn. 102, 107, 192 A. 706. Thus, the word "rights" in the oft-iterated test for finality of judgments — "if the rights of the parties are concluded so that further proceedings cannot affect them" — is not used in an inclusive sense. State v. Kemp, supra. Recently, in State v. Bell, 179 Conn. 98, 425 A.2d 574, we held that a trial court's adjudication denying the defendant's application seeking youthful offender status was a determination of a right that was a final, appealable judgment. We noted that subsequent proceedings, no matter what their outcome, could not regain for the defendant his statutorily granted privacy right. That right would be lost irremediably upon the denial of his application and the consequent public trial. It was this consideration that led us to make an exception to our well-established rule that "[i]n a criminal case, the imposition of sentence is the judgment of the court. . . . An appeal lies only from a final judgment, and there can be no judgment in a criminal case until sentence is pronounced." State v. Moore, 158 Conn. 461, 463, 262 A.2d 166; State v. Vaughan, 71 Conn. 457, 458, 42 A. 640. Unlike State v. Bell, supra, the present case does not involve a determination of a right that could not be regained upon further proceedings. When a final judgment in the form of a pronouncement of sentence is rendered, the defendant may take an appeal and on appeal the defendant's claims of error will be reviewed. If any of those claims result in the determination that the defendant has been denied his right to a fair trial, that denial can be rectified by a new trial. Finally, in these circumstances the considerations voiced in State v. Kemp, supra, 647, are of significance in resolving this issue. "[T]he opportunity to appeal in such a situation might well serve the purpose of parties who desire for their own ends to postpone the final determination of the issues. Allowance of multiple appeals in a single action would not accord with the sound policy which favors the speedy disposition of actions in court, and particularly of criminal prosecutions." Since the lack of a final judgment is a jurisdictional defect, the appeal must be dismissed. Guerin v. Norton, 167 Conn. 282, 283-84, 355 A.2d 255. The motion to dismiss is granted. In this opinion the other judges concurred. Permission was sought presumably because, pursuant to Practice Book, 1978, § 903, a motion for a new trial must be filed within five days of the rendition of verdict and some three and a half weeks had passed since the jury's verdict in the present case. In their respective memoranda of law concerning the motion to dismiss, the parties' arguments are exclusively devoted to the jurisdictional effect of the denial of the motion for a new trial. Thus, we treat, as the parties apparently do, the denial of the motion in arrest of judgment as an issue comprehended by the denial of the motion for a new trial. The fact that the defendant sought permission to file his motion for a new trial indicates furthermore that the defendant recognized that his request for a new trial constituted a motion for a new trial within the confines of the Practice Book despite his various references to the motion as a request, a motion, and a petition.

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

Bogdanski, J. This appeal involves the sufficiency of the second count set forth in the plaintiff's complaint. In essence, it alleges that as the result of fraudulent representations made by the defendant to the plaintiff to the effect that she would marry him and that they would occupy, as their home, the house owned by the defendant, the plaintiff was induced to spend approximately $40,000 in renovating, improving and furnishing that house. The defendant, asserting that the count was one not for fraud but for breach of promise to marry and, as such, was outlawed by § 52-572b of the General Statutes, moved to strike it. The trial court granted the motion to strike the challenged count. The court concluded that General Statutes, § 52-572b, known as the "Heart Balm Act" (hereinafter the Act) bars the plaintiff's action. The Act, passed in 1967, which is before this court for the first time, provides that: "No action shall be brought upon any cause arising after October 1, 1967, from alienation of affections or from breach of a promise to marry." An early discussion of the Heart Balm Acts pointed out that "courts cannot escape the burden of construing legislation as sweeping as this, so as to eliminate the evils aimed at without destroying rights not considered by the legislature, whose continued existence may be important to society and to individuals." See Feinsinger, "Legislative Attack on 'Heart Balm,' " 33 Mich. L. Rev. 979, 1000 (1935). See also Morris v. MacNab, 25 N.J. 271, 135 A.2d 657 (1957). In Mack v. White, 97 Cal. App. 2d 497, 500-501, 218 P.2d 76 (1950), the plaintiff transferred property to the defendant upon his promise to marry her; he never intended to do so and the plaintiff sought return of the property. In awarding judgment to the plaintiff the court pointed out that the action was not one for breach of promise to marry but was "an action for obtaining money upon fraudulent representations" and was therefore not within the terms of the California Heart Balm Act. See also Norman v. Burks, 93 Cal. App. 2d 687, 209 P.2d 815 (1949). The Supreme Court of Pennsylvania, in an opinion construing a similar statute, declared: "The act was passed to avert the perpetration of fraud by adventurers and adventuresses in the realm of heartland. To allow [the defendant] to retain the money and property which she got from [the plaintiff] by dangling before him the grapes of matrimony which she never intended to let him pluck would be to place a premium on trickery, cunning and duplicitous dealing. It would be to make a mockery of the law enacted by the legislature in that very field of happy and unhappy hunting. "The Act of 1935 aimed at exaggerated and fictional claims of mortification and anguish purportedly attendant upon a breach of promise to marry. The legislation was made necessary because of the widespread abuse of the vehicle of a breach of promise suit to compel overly-apprehensive and naive defendants into making settlements in order to avoid the embarrassing and lurid notoriety which accompanied litigation of that character. The legislation was intended to ward off injustices and incongruities which often occurred when, by the mere filing of breach of promise suits innocent defendants became unregenerate scoundrels and tarnished plaintiffs became paragons of lofty sensibility and moral impeccability. It was not unusual in threatened breach of promise suits that the defendant preferred to buy his peace through a monetary settlement rather than be vindicated by a trial which might leave his good name in shreds." Pavlicic v. Vogtsberger, 390 Pa. 502, 508, 136 A.2d 127 (1957). The predominant view is that Heart Balm statutes should be applied no further than to bar actions for damages suffered from loss of marriage, humiliation, and other direct consequences of the breach, and should not affect the rights and duties determinable by common law principles. In Re Marriage of Heinzman, 579 P.2d 638 (Colo. App. 1978), aff'd, 596 P.2d 61 (Colo. 1979); Gill v. Shively, 320 So. 2d 415 (Fla. App. 1975); Norman v. Burks, supra; Beberman v. Segal, 6 N.J. Super. 472, 69 A.2d 587 (1949); Pavlicic v. Vogtsberger, supra. Furthermore, the majority rule appears to be that a gift made in contemplation of marriage is conditional upon a subsequent ceremonial marriage; In Re Marriage of Heinzman, 596 P.2d 61 (Colo. 1979); DeCicco v. Barker, 339 Mass. 457, 159 N.E.2d 534 (1959); Semenza v. Alfano, 443 Pa. 201, 279 A.2d 29 (1971); Pavlicic v. Vogtsberger, supra; Guffin v. Kelly, 191 Ga. 880, 14 S.E.2d 50 (1941); and that the existence of a Heart Balm Act does not affect common law principles governing a gift to a fiancee made on condition of marriage, which condition is broken by the donee. In Re Marriage of Heinzman, supra, 64; Norman v. Burks, supra; Gill v. Shively, supra; Beberman v. Segal, supra. See also annot., 24 A.L.R.2d 579, "Effect of Heart Balm Act," § 16-18. In our view, the Act was designed to do away with excessive claims for damages, claims coercive by their very nature and, all too frequently, fraudulent in character; the purpose was to prevent the recovery of damages based upon contused feelings, sentimental bruises, blighted affections, wounded pride, mental anguish and social humiliation; for impairment of health, for expenditures made in anticipation of the wedding, for the deprivation of other opportunities to marry and for the loss of the pecuniary and social advantages which the marriage offered. The plaintiff here is not asking for damages because of a broken heart or a mortified spirit. He is asking for the return of things which he bestowed in reliance upon the defendant's fraudulent representations. The Act does not preclude an action for restitution of specific property or money transferred in reliance on various false and fraudulent representation, apart from any promise to marry, as to their intended use. A proceeding may still be maintained which although occasioned by a breach of contract to marry, and in a sense based upon the breach, is not brought to recover for the breach itself. DeCicco v. Barker, supra. Denial of recovery of property transferred in contemplation of marriage is not necessary to the accomplishment of the object of this legislation, and to so hold would have the undesirable effect of placing it within the power of a recipient to renounce a promise and yet retain property bestowed in anticipation of performance. In sum, the gravamen of the second count is that the plaintiff was induced to transfer property to the defendant in reliance upon her fraudulent representations that she intended to marry him and that the property transferred would be used for their mutual benefit and enjoyment. The plaintiff does not here assert that the defendant wronged him in failing to marry him; rather, he is asserting that the defendant wronged him in fraudulently inducing him to transfer property to her. The plaintiff's complaint is based on what the defendant did, and not on what she refused to do. The court erred in granting the defendant's motion to strike. There is error, the judgment is set aside and the ease remanded with direction to overrule the motion to strike. In this opinion Loiselle and Healey, Js., concurred.

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

Bogdanski, J. In 1971, the plaintiff Alan R. Varley instituted an action for divorce against the defendant Nina B. Varley. In 1972, after a trial before Hon. John R. Thim, state referee, the issues were found in favor of the plaintiff. Thereafter the defendant moved to open and vacate the judgment and for a new trial based upon newly discovered evidence. After a hearing, the motion was denied. On January 12, 1973, Nina B. Varley appealed to this court from the judgment rendered. The denial of the motion for a new trial was not briefed on the appeal. On March 30,1976, this court affirmed the judgment. In 1979, Nina B. Varley filed a renewal of her motion to open and vacate the judgment and for a new trial based upon newly discovered evidence and other causes. After a hearing, the motion was denied. From that denial, this appeal was taken. The defendant's motion is, in our view, one which challenges the 1972 judgment (1) on the basis of fraud, and (2) on the ground that the state referee lacked the constitutional power to render a judgment. Where an unsuccessful party has been prevented, by fraud or deception, from exhibiting fully his case and shows that there never has been a real contest in the trial or hearing of the case, a new suit may be sustained to set aside and annul the former judgment and open the case for a new and fair hearing. United States v. Throckmorton, 98 U.S. 61, 65-66, 25 L. Ed. 93 (1878); Pearce v. Olney, 20 Conn. 544 (1850). See also Restatement (Second), Judgments §116 (Tent. Draft No. 6 1979). Since the record shows that Nina B. Varley was present and participated at every stage of the 1972 proceedings, she cannot prevail on this ground. To have a judgment set aside on the basis of fraud which occurred during the course of the trial upon a subject on which both parties presented evidence is especially difficult. See, e.g., Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 64 S. Ct. 997, 88 L. Ed. 1250 (1944); Marshall v. Holmes, 141 U.S. 589, 12 S. Ct. 62, 35 L. Ed. 870 (1891). The question presented by a charge of fraud is whether a judgment that is fair on its face should be examined in its underpinnings concerning the very matters it purports to resolve. Such relief will only be granted if the unsuccessful party is not barred by any of the following restrictions: (1) There must have been no laches or unreasonable delay by the injured party after the fraud was discovered. (2) There must have been diligence in the original action, that is, diligence in trying to discover and expose the fraud. (3) There must be clear proof of the perjury or fraud. (4) There must be a substantial likelihood that the result of the new trial will be different. James, Civil Procedure (1965) § 11.7, pp. 540-42; 36 111. L. Rev. 894, 896-97 (1942). Furthermore, the granting of such relief must not unfairly jeopardize interests of reliance that have taken shape on the basis of the judgment. James & Hazard, Civil Procedure (2d Ed.) § 13.14, p. 687. On the basis of our examination of the entire record, we conclude that Nina B. Varley is not entitled to the relief sought. The final claim asserting that the judgment was void because the referee lacked the power to grant it, having been previously decided, is without merit. See Monroe v. Monroe, 177 Conn. 173, 413 A.2d 819 (1979). There is no error. In this opinion the other judges concurred. In her motion, which covers forty pages of the record, Nina B. Varley alleges that the trial was tainted by (a) false testimony; (b) bribery; (e) misconduct of counsel; and (d) misconduct of the state referee. See, e.g., Restatement (Second), Judgments (Tent. Draft No. 6 1979). Ҥ 118. Judgment Procured by Corruption, Duress, or Fraud. (1) Subject to the limitations stated in § 122, a judgment in a contested action may be avoided if the judgment resulted from: (a) Corruption of or duress upon the court or the attorney for the party against whom the judgment was rendered, or duress upon that party, or (b) A determination based on evidence that the party procuring the judgment knew to be false. (2) A party seeking relief under subsection (1) must: (a) Have acted with due diligence in discovering the facts constituting the basis for relief; (b) Assert his claim for relief from the judgment with such particularity as to indicate it is well founded and prove the allegations by clear and convincing evidence; and (e) When his claim is based on falsity of the evidence on which the judgment was based, show that he had made a reasonable effort in the original action to ascertain the truth of the matter." Ҥ 122. Denial or Limitation of Relief. . . . [Rjelief from a judgment will be denied if: (1) The person seeking relief failed to exercise reasonable diligence in discovering the ground for relief, or after such discovery was unreasonably dilatory in seeking relief; or (2) The application for relief is barred by lapse of time; or (3) Granting the relief will inequitably disturb an interest of reliance on the judgment. When such an interest can be adequately protected by giving the applicant limited or conditional relief, the relief will be shaped accordingly."

Parskey, J. In this action for a dissolution of marriage, the trial court rendered a decree dissolving the marriage and awarded custody of the two minor children to their mother, the defendant, while the plaintiff was ordered to pay child support of $120 per week. The decree further provided for the sale of the jointly owned family home when the youngest child attains the age of 18, with equal division of the proceeds, and equal division of all personal property not needed by the children for their personal use. In the event the parties could not agree upon the division of the personal property the family relations division of the Superior Court was ordered to decide the division. No alimony was awarded. In her appeal the defendant claims that, in determining the disposition of property and the question of periodic alimony, the court failed to give adequate consideration to the criteria set forth in General Statutes § 46b-81 and 46b-82. She also claims that the court exceeded its jurisdictional authority when it reserved certain personal property for the children's use and when it delegated to the family relations division the authority to divide the other personal property if the parties could not reach an agreement. The defendant first contends that the court could not properly decide the questions of periodic alimony and the assignment of property because it lacked sufficient information respecting the value of the plaintiff's interest in a closely held corporation, in his life insurance policies and in his pension rights. This position is curious. In addition to having access to the plaintiff's financial affidavit, the defendant was given a full opportunity to cross-examine the plaintiff at length regarding his financial circumstances. Further, the defendant had the opportunity to explore the plaintiff's financial circumstances through a variety of discovery procedures. Optimal use of the resources might well have generated additional pertinent facts for the court's consideration. From the defendant's failure to elicit such information, however, it in no way follows that the court acted on insufficient evidence. Reviewing the record in this regard, we find that there was sufficient financial information "before the court for it to fashion the appropriate orders on the financial aspects of the case. The defendant next argues that the court did not give sufficient consideration to the statutory criteria established by § 46b-81 and 46b-82. The court ordered the proceeds of a future sale of the family residence divided equally, an equal division in kind of- the personal property and no periodic alimony. The thrust of the defendant's argument is that had the court given sufficient weight to, inter alia, the length of the marriage, the relative financial circumstances of the parties, the defendant's limited employability and the defendant's condition of health, it would have either made a more favorable distribution of the family assets in the defendant's favor or would have ordered periodic alimony. To begin with, our alimony statute does not recognize an absolute right to alimony. General Statutes § 46b-82; Thomas v. Thomas, 159 Conn. 477, 486, 271 A.2d 62 (1970). "This court has reiterated time and again that awards of financial settlements ancillary to a marital dissolution rest in the sound discretion of the trial court." Posada v. Posada, 179 Conn. 568, 572, 427 A.2d 406 (1980). Although the court is required to consider the statutory criteria of length of marriage, causes for dis solution, the age, health, station in life, occupation, amount and sources of income, assets and opportunity for future acquisition of assets of each of the parties; Fucci v. Fucci, 179 Conn. 174, 179, 425 A.2d 592 (1979); no single criterion is preferred over all the others. In weighing the factors in a given case the court is not required to give equal weight to each of the specified items. Nevertheless, it is rather obvious that in making financial determinations the financial circumstances, both actual and potential, are entitled to great weight. In this case the defendant has employable talents. She is regularly employed as a comprimario or secondary lead singer at the Metropolitan Opera Company. In addition to her regular income, the defendant receives compensation when she goes on tour and when she appears on television and radio. Although the defendant claims that her condition of health makes her future employability problematic, this issue was disputed. The defendant lives at the family residence in Westport and maintains an apartment in New York City near her place of employment. When the family home is sold the defendant not only will receive half of the proceeds, b.ut also will save the substantial cost of maintaining and commuting between two homes. The major asset of the parties is the family residence. While it is true that the plaintiff's income is substantially greater than the defendant's, taking all the factors into account we cannot hold that the court could not have reasonably concluded that an equal division of the real estate and the household furnishings, with no periodic alimony was an equitable result. With respect to the claim that the court exceeded its jurisdictional authority by setting aside certain personal property for the use of the minor children, we conclude that the order was proper. Under General Statutes § 46b-56 and 46b-84, the court is authorized to make orders regarding the maintenance of the minor children of the marriage. The word "maintenance" means "the provisions, supplies, or funds needed to live on." Webster, Third New International Dictionary. It is synonymous with support. See Paquin, Ltd. v. Westervelt, 93 Conn. 513, 515, 106 A. 766 (1919). Such orders may be in kind as well as in money. See State v. Moran, 99 Conn. 115, 119-20, 121 A. 277 (1923). The court did not order that personal property be assigned to the children as the defendant claims, but rather it merely determined that certain property would remain available for their use. Such an order easily falls within the ambit of § 46b-56 and 46b-84. Finally, we consider the court's order authorizing the family relations division to divide the personal property in the event that the parties could not agree on a division. General Statutes § 46b-81 authorizes the court to assign to either the husband or wife all or any part of the estate of the other. Section 46b-3 empowers the judges of the Superior Court to appoint domestic relations officers and to determine their duties. Practice Book, 1978, §481 (e) authorizes these officers to "attempt the reconciliation and adjustment of differences between the parties to dissolution of marriage." There is no authority given to a domestic relations officer to resolve differences by rendering a decision concerning a property distribution. The rendering of such a judgment is a judicial function and can be accomplished only by one clothed with judicial authority. Domestic relations officers are authorized by rule to investigate and report, but not to decide. Practice Book, 1978, §481 (b) and 481 (c). Insofar as the decree directed the family relations division to exercise powers which those officers do not possess, it was clearly erroneous and must be modified to reflect that if the parties cannot agree on a division of the personal property not needed for the children's use, the matter is to be referred to the family relations division for investigation, conciliation and report. There is error in part, the judgment is set aside and the case is remanded with direction to render judgment as on file except as modified in accordance with this opinion. In this opinion the other judges concurred.

Bogdanski, J. On May 4,1979, the parties entered into an agreement wherein the defendant agreed to construct a house for-the plaintiffs on land owned by the defendant, designated as "Lot #2." On June 26, 1979, the plaintiffs, claiming that the defendant had breached the contract, brought an action for specific performance and money damages. Thereafter upon application by the plaintiffs, the court granted an ex parte prejudgment remedy of attachment of the defendant's interest in a parcel of land referred to as "Lot #4." The plaintiffs also filed a notice of lis pendens on Lot #2. On July 2, 1979, the defendant, through counsel and without notice to the plaintiff, secured a release of the prejudgment attachment and a dissolution of the lis pendens. Upon learning of the court's action, the plaintiffs moved to confirm the original attachment and lis pendens. From a denial of that motion, the plaintiffs appealed claiming the court erred in vacating the prejudgment attachment ex parte and in dissolving the lis pendens. I Section 52-278e (1) of the General Statutes provides that the court may allow a prejudgment remedy to be issued by an attorney without a hear ing, upon verification by oath of the plaintiff, that there is probable cause to sustain the validity of the plaintiff's claim, provided that the prejudgment remedy requested is for attachment of real property. Once a prejudgment remedy of attachment has been issued pursuant to § 52-278e (1), as was the case here, it may be released or vacated only after notice and hearing as required by § 52-278k. Thus, in releasing the prejudgment order of attachment in this case without notice and hearing, the trial court committed error. Since we conclude, however, that the affidavit upon which the attachment was based did not satisfy the requirement of probable cause, no remand is necessary. The plaintiffs' verified affidavit stating that there existed a "contract" is conclusory only. McAdam v. Sheldon, 153 Conn. 278, 282, 216 A.2d 193 (1965). Moreover, the underlying contract which would have enabled the court to review the underlying facts was not before the court. Our examination of the plaintiffs' affidavit, which was the only document submitted in support of their application, discloses an insufficient factual basis upon which the court could premise a finding of probable cause. The requirement, therefore, that probable cause exist to justify the issuance of a prejudgment order of attachment of real estate pursuant to § 52-278e (1) was not satisfied. The court must, in the first instance, make a determination of probable cause before issuing an ex parte prejudgment remedy of attachment. In Fermont Division, Dynamics Corporation of America, Inc. v. Smith, 178 Conn. 393, 397-98, 423 A.2d 80 (1979), which involved an application for prejudgment remedies consisting of garnishments, attachments of personal property and temporary restraining orders, we upheld the constitutionality of § 52-278e (2) stating that the statute could be invoked only by a verified affidavit containing factual rather than conclusory allegations. Because § 52-278e (1) requires a factual showing that probable cause exists to sustain the validity of the plaintiff's claim, it comports with constitutional requirements. See also Ledgebrook Condominium Assn., Inc. v. Lusk Corporation, 172 Conn. 577, 583, 376 A.2d 60 (1977). We therefore conclude that in granting the prejudgment remedy in the absence of a specific factual showing of the nature of the claim, the court was in error. As already noted the court also erred in subsequently dissolving the attachment without notice and hearing. A remand, however, would be fruitless under the circumstances of this case. See Morris v. Costa, 174 Conn. 592, 597-98, 392 A.2d 468 (1978); Maltbie, Conn. App. Proc. § 36. II The plaintiffs also contend that the court erred in ordering ex parte the release of the lis pendens on Lot #2 on the ground that the court had no statutory authority under the circumstances of this case to release the lis pendens. See § 52-322, 52-324 and 52-326 of the General Statutes; Ravitch v. Stollman Poultry Farms, Inc., 162 Conn. 26, 35, 291 A.2d 213 (1971). They do not, however, address the defendant's claim that the placing of the lis pendens on the real estate in question was unconstitutional. To determine, therefore, whether the court erred in "dissolving" the notice of lis pendens, it is necessary to address the issue of whether § 52-325 of the General Statutes is unconstitutional because it does not comply with the due process of law requirements of the fourteenth amendment of the federal constitution and article first, § 10 of the Connecticut constitution in that it fails to provide for notice to prop erty owners and an opportunity for them to be heard at a meaningful time and in a meaningful manner. The doctrine underlying lis pendens is that a person who deals with property while it is in litigation does so at his peril; see, e.g., Mackenzie v. A. Engelhard & Sons Co., 266 U.S. 131, 142-44, 45 S. Ct. 68, 69 L. Ed. 205 (1924); Thompson v. Baker, 141 U.S. 648, 653, 12 S. Ct. 89, 35 L. Ed. 889 (1891); thereby preventing the effective disposition of the property. Section 52-325 of the General Statutes permits a party to an action intended to affect the title to real estate to file a notice of such action on the land records stating, in essence, only the names of the parties, the nature and object of the action and a description of the property. The filing of a lis pendens requires no judicial action, no showing of probable cause and no notice to the defendant property owner. The party filing the lis pendens is not required to post a bond or provide any surety to protect the owner against damages from an unsupportable claim. No opportunity is provided to the owner either before or after the recording of the lis pendens to challenge its propriety. Moreover, no provision is made whereby the owner may apply for the dissolution of the lis pendens upon the substitution of a bond with surety. In Roundhouse Construction Corporation v. Telesco Masons Supplies Co., 168 Conn. 371, 362 A.2d 778 (1975), cert. denied, 429 U.S. 889, 97 S. Ct. 246, 50 L. Ed. 2d 172 (1976), this court declared Con necticnt's mechanic's lien statute unconstitutional on the ground that the absence of a provision for a hearing for the property owner at a meaningful time and in a meaningful manner was violative of procedural due process. The statutory scheme struck down in Roundhouse provided that a claimant could file a lien entirely ex parte, without any authorization, supervision or control by the court; that the certificate of lien recorded in the town clerk's office contain only a description of the subject premises, the amount claimed and a conclusory statement that the amount was justly due; that the lien could continue for two years without any further action by the lienor; and that the lien could be dissolved upon the substitution of a bond in the probable amount of the lienor's claim. No provision was made whereby the property owner, either before or after the recording of the lien, could contest the validity of the lienor's claim prior to a trial on the merits, nor was the lienor required to post a bond or provide surety to protect the property owner against damages from an unsupportahle lien. This court concluded in Roundhouse that the statutory scheme dealing with mechanics' liens operated to deprive the defendants of their property without due process of law in that no provision was made whereby property owners had an opportunity to he heard at a meaningful time and in a meaningful manner. In our view, the reasoning of Roundhouse applies with greater or equal force to the statutory scheme governing lis pendens. While it is fundamental that property cannot he seized without procedural due process, the difficult question is what quantum of interference with one's property rights is required before a "seizure" for constitutional purposes can be said to have taken place. Clearly the placing of a notice of lis pendens on the land records does not deprive the property owner of his right to occupy and use the land in question. Just as clearly, however, a notice of lis pendens does interfere with an owner's right to sell or mortgage his real estate. We therefore conclude that the effect of a notice of lis pendens sufficiently interferes with the alienability of real estate to require this court to determine whether the statutes in question afford property owners that minimum of due process which is constitutionally required. The opportunity to he heard at a meaningful time and in a meaningful manner is constitutionally required to meet currently accepted standards of procedural due process in the area of property rights. See, e.g., Fuentes v. Shevin, 407 U.S. 67, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972), rehearing denied, 409 U.S. 902, 93 S. Ct. 177, 34 L. Ed. 2d 165 (1972); Lynch v. Household Finance Corporation, 405 U.S. 538, 92 S. Ct. 1113, 31 L. Ed. 2d 424 (1972), rehearing denied, 406 U.S. 911, 92 S. Ct. 1611, 31 L. Ed. 2d 822 (1972); Sniadach v. Family Finance Corporation, 395 U.S. 337, 89 S. Ct. 1820, 23 L. Ed. 2d 349 (1969); Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S. Ct. 1895, 40 L. Ed. 2d 406 (1974); North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S. Ct. 719, 42 L. Ed. 2d 751 (1975). While it is true that a flexible test for determining the existence of due process is used, and that a prior hearing is not constitutionally mandated in every case, the Connecticut lis pendens statutes fail to provide even the barest minimum of due process protection. Most conspicuously absent is any provision whatsoever for any sort of a timely hearing, either before or after the recording of the notice of lis pendens, which would give the property owner an opportunity to be heard or require the party recording the notice to demonstrate in any way the probability of prevailing on the underlying action. The statutes allow the notice of lis pendens to continue indefinitely without any further action on the part of the party recording it, during which time the property owner is without recourse to the courts to contest the merits of the underlying claim. We must therefore conclude that the absence of a statutory provision for a hearing for the defendant property owner "at a meaningful time and in a meaningful manner"; Armstrong v. Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 14 L. Ed. 2d 62 (1965); deprived Mm of Ms constitutional rigM to due process of law. We, accordingly, find no error in the order of the court in dissolving the lis pendens. There is no error. In tMs opinion the other judges concurred. "[General Statutes] Sec. 52-278e. allowance of prejudgment REMEDY WITHOUT HEARING. SUBSEQUENT MOTION, HEARING AND ORDER. Th.e court or a judge of the court may allow the prejudgment remedy to be issued by an attorney without hearing as provided in sections 52-278c and 52-278d upon verification by oath of the plaintiff or of some competent affiant, that there is probable cause to sustain the validity of the plaintiff's claim and (1) that the prejudgment remedy requested is for an attachment of real property; . The defendant appearing in such action may move to dissolve or modify the prejudgment remedy granted pursuant to this section in which event the court shall proceed to hear and determine such motion expeditiously. If the court determines at such hearing requested by the defendant that there is probable cause to sustain the validity of the plaintiff's claim, then the prejudgment remedy granted shall remain in effect. If the court determines there is no such probable cause, the prejudgment remedy shall be dissolved. An order shall be issued by the court setting forth the action it has taken." "[General Statutes] Sec. 52-278k. modification of prejudgment remedy. The court may, upon any application for prejudgment remedy under sections 52-278c, 52-278e, 52-278h or 52-282, modify the prejudgment remedy requested as may be warranted by the circumstances, and may, upon motion and after hearing, at any time modify or vacate any prejudgment remedy heretofore granted upon the presentation of evidence which would have justified such court in modifying or denying such prejudgment remedy at an initial hearing thereunder." "[General Statutes] Sec. 52-325. Lis pendens. In any action in a court of this state or in a district court of the United States the plaintiff or his attorney, at the time the action is commenced or afterwards, or a defendant, when he sets up an affirmative cause of action in his answer and demands substantive relief at the time the answer is filed, if the same is intended to affect real estate, may cause to be recorded in the office of the town clerk of each town in which the property is situated a notice of the pendency of the action, containing the names of the parties, the nature and object of the action, the court to which it is returnable and the term, session or return day thereof, the date of the process and the description of the property. Such notice shall, from the time of the recording only, be notice to any person thereafter acquiring any interest in such property of the pendency of the action; and each person whose conveyance or encumbrance is subsequently executed or subsequently recorded or whose interest is thereafter obtained, by descent or otherwise, shall be deemed to be a subsequent purchaser or encumbrancer, and shall be bound by all proceedings taken after the recording of such notice, to the same extent as if he were made a party to the action. For the purpose of this section an action shall be deemed to be pending from the time of the recording of such notice; provided such notice shall be of no avail unless service of the process is completed within the time provided by law. This section shall be construed to apply to mechanics' liens and all other inchoate liens, certificates of which are recorded subsequent to the recording of the notice of the pendency of the action; and, in suits to foreclose mortgages or other liens, the persons whose conveyances or encumbrances are subsequently executed or subsequently recorded shall forfeit their rights thereunder, unless they apply to the court in which such action is brought to be made parties thereto, prior to the date when the judgment or decree in such action is rendered." Section 52-326 provides that a lis pendens may be discharged only under those very limited circumstances which would justify the discharge of an attachment. See § 52-322 and 52-324 of the General Statutes. A mechanic's lien is a claim to secure priority of payment for materials supplied for or services performed upon a building or other property. The mechanic's lien statutes which were the subject of litigation in Roundhouse were materially changed by the provisions of Public Acts 1975, No. 75-418 and Public Acts 1976, No. 76-290. See General Statutes §5 49-33 through 49-40a (Rev. to 1979). More specifically, Public Acts 1975, No. 75-418 requires notice and a hearing to a property owner whenever a person places a mechanic's lien on his property; a copy of the certificate of lien must be sent to the property owner within seven days after the claimant lodges his claim with the town clerk; and the owner may apply to a court for either the discharge of the lien on the ground that there is no probable cause to sustain its validity, or for the reduction of the lien on the ground that it is excessive. Public Acts 1976, No. 76-290 allows a property owner to post a bond with surety in an amount sufficient to indemnify the lienor for any damages sustained as the result of the lien being discharged or reduced; it also provides that a mechanic's lien becomes invalid if a foreclosure suit is not commenced within: (1) one year after the certificate of lien is filed or (2) sixty days after final disposition of an appeal from a court order granting or denying a property owner's motion to discharge or reduce the lien, whichever is later.

Arthur H. Healey, J. The plaintiff brought this action, pursuant to General Statutes § 47-31, against the Bridgeport City Trust Co., Trustee (hereinafter bank) and the town of Trumbull for a judgment determining and settling the title to certain land. In her complaint, the plaintiff claims title to property known as Judson Street by adverse possession. Because title to realty held in fee by a municipality for a public use cannot be acquired by adverse possession; Goldman v. Quadrato, 142 Conn. 398, 402^03, 114 A.2d 687 (1955); the ultimate question presented by this appeal is whether that portion of Judson Street to which the plaintiff claims title is land held by the town of Trumbull for public use as a highway. The trial court concluded that it was and, hence, that the plaintiff could not acquire title by adverse possession. The plaintiff has appealed. The following is a summary of the relevant facts found by the trial court together with such corrections as were sought by the plaintiff and warranted. The defendant bank, as trustee, held title to a large tract of land in the town of Trumbull, which was subdivided into building lots in accordance with a map dated June 13, 1939, and entitled "Parkway Village Plan 3 Woodridge Circle." The map was filed in the Trumbull town clerk's office after approval by the town planning commission. (This map will hereinafter be referred to as the 1939 subdivision map.) Various proposed streets, including Judson Street, were laid out in this map. In 1945, Louis Meshberg, the plaintiff's husband, acquired title to lot 28, which borders the disputed section of Judson Street as shown on the 1939 subdivision map, and in 1957 he conveyed title to the lot to his wife, the plaintiff. That deed indicated that lot 28 was conveyed in accordance with the 1939 subdivision map. Directly across Judson Street and easterly of lot 28 is lot 29. The disputed property is that portion of Judson Street that lies between lots 28 and 29. This property is 50 feet in, width and 180 feet, more or less, in length, as is the length of the plaintiff's lot 28. It is undisputed that all of the proposed streets shown on the 1939 subdivision map, with the exception of this portion of Judson Street and a portion of another street, were formally accepted by resolution of the town council and that the town paved and installed sewers in all of these streets except the two segments which included the disputed property. By an application dated August 29, 1951, Louis Meshberg applied for and obtained a building permit to construct a house on lot 28. In 1952, he filed an application with the zoning board of appeals for a sideline waiver for that portion of the property adjacent to "Judson Street." The application was approved and a house was constructed, which the plaintiff has occupied since 1952. In 1967, the plaintiff saw some men cross "proposed Judson Place" and go into adjoining town property looking for mushrooms. Visitors in the neighborhood have gone into the "proposed Jndson Place" and parked their cars there over the years. The town has exempted the portion of Judson Street in issue from its taxable grand list. In 1965 and 1967, the town of Trumbull purchased three undeveloped properties that were contiguous to a portion of the 1939 subdivision, including the disputed portion of Judson Street. Prior and subsequent to the purchase of those properties, the town, through certain committees, considered various municipal uses of these properties, including the construction of an elementary school, which suggested the use of the disputed portion of Judson Street as an access way. The building of a town high school on two of these contiguous parcels was later considered in 1961. The disputed portion of Judson Street, however, was never used by the town as an access way or otherwise. Prom these subordinate facts the court concluded that the property in dispute had been dedicated to the town and that the town had, by its action, accepted the property for a public use. It therefore concluded that title to the property could not be acquired by adverse possession. On appeal, the plaintiff does not dispute that the property in question was dedicated to the town by the defendant bank. She argues, however, that the facts found do not support the conclusion that the town, by its conduct or that of the public, accepted the property as a public street. We agree. "Dedication is an appropriation of land to some public use, made by the owner of the fee, and accepted for such use by and in behalf of the public." Whippoorwill Crest Co. v. Stratford, 145 Conn. 268, 271, 141 A.2d 241 (1958); see Crescent Beach Assn. v. Bast Lyme, 170 Conn. 66, 71, 363 A.2d 1045 (1976); Wamphassuc Point Property Owners Assn. v. Public Utilities Commission, 154 Conn. 674, 680-81, 228 A.2d 513 (1967); 23 Am. Jur. 2d, Dedication § 1. "Both the owner's intention to dedicate the way to public use and acceptance by the public must exist, but the intention to dedicate the way to public use may be implied from the acts and conduct of the owner, and public acceptance may be shown by proof of the actual use of the way by the public." Wamphassuc Point Property Owners Assn. v. Public Utilities Commission, supra, 681. See Johnson v. Watertown, 131 Conn. 84, 89, 38 A.2d 1 (1944); LaChappelle v. Jewett City, 121 Conn. 381, 185 A. 175 (1936); New London v. Pequot Point Beach Co., 112 Conn. 340, 344, 152 A. 136 (1930). Thus, two elements are essential to a valid dedication: (1) a manifested intent by the owner to dedicate the land involved for the use of the public; and (2) an acceptance by the proper authorities or by the general public. DiCioccio v. Wethersfield, 146 Conn. 474, 479, 152 A.2d 308 (1959). No particular formality is required in order to dedicate a parcel of land to a public use; dedication may be express or implied. Whippoorwill Crest Co. v. Stratford, supra, 271. Whether there has been a dedication and whether there has been an acceptance present questions of fact. DiCioccio v. Wethersfield, supra, 479; Whippoorwill Crest Co. v. Stratford, supra, 272; Phillips v. Stamford, 81 Conn. 408, 411, 71 A. 361 (1908). Because the defendant town did not formally accept the disputed portion of Judson Street, pursuant to General Statutes § 13a-48 or its town charter, the question presented by this appeal is whether the facts found support the conclusion that the town had by its conduct accepted that portion of Judson Street. The intention of the defendant bank, which was the record owner, to dedicate the land in question was evidenced by its filing of the 1939 subdivision map in 1939 with the designation of "Judson Street." See 23 Am. Jur. 2d, Dedication § 23. The fact that the subdivision map was filed in the Trumbull town clerk's office after approval by the town planning commission does not in itself, however, constitute an implied acceptance of the street by the town. The approval of a proposed subdivision and the acceptance of a public street are " 'entirely separate and distinct proceedings.' " Thompson v. Portland, 159 Conn. 107, 115, 266 A.2d 893 (1970). That this is so is confirmed by the town's decision to accept formally all of the streets shown in the subdivision map for their full length, with the exception of the portion of Judson Street in question and a portion of another street. The trial court concluded, instead, that acceptance of part of the street by the town amounts to acceptance of the entire street, relying upon Derby v. Alling, 40 Conn. 410 (1873). The reliance of the trial court and the town upon Derby v. Alling, supra, is misplaced. In Derby v. Alling, supra, the town of Derby passed a resolu tion stating that certain "streets" comprising "a paper village" would become public highways "on condition that the proprietors of said roads convey the same to the town." Id., 432. The owners of the described property thereafter executed a deed conveying their interest in the property to the town. The town immediately opened a portion of the streets thus conveyed and postponed the opening of others, of which the grantors retained possession. Thereafter, the successors in interest of the grantors sought to obtain title to the land by adverse possession. The court concluded that the deed conveying title to the property was tantamount to a dedication; id., 433; and that the town's acceptance of a portion of certain streets was, under the facts of that case, a constructive acceptance of the whole of such streets. Id., 435. That the holding in Derby was an exception to the general rule in this area was made clear in Hall v. Meriden, 48 Conn. 416 (1880). In Hall this court limited the holding of Derby to its facts, which included an irrevocable conveyance to the town, a formal anticipatory acceptance of the streets by the town, and the dedication of a network of streets comprising a paper village. Id., 429-31; see also Johnson v. Watertown, 131 Conn. 84, 90, 38 A.2d 1 (1944); New London v. Pequot Point Beach Co., 112 Conn. 340, 344-45, 152 A. 136 (1930). In Hall, this court affirmed its adherence to the general rule where a street dedicated to a municipality is only partially used: "There is only one rule to apply in such a ease, and that is the rule of actual use. Where the actual use stops there the acceptance stops, with only the qualification . . . that such use will take in whatever may be regarded as properly incident to it." Id., 429; cf. 23 Am. Jur. 2d, Dedication § 48. Stated another way, if the actions of the public, or of municipal officers for that matter, "are such as to show an intention to accept all rather than a part they will be construed as having that effect, but . . . acceptance of a part is not necessarily an acceptance of all." 11 McQuillin, Municipal Corporations (3d Ed. Rev.) § 33.57. It is clear that the facts found could not support a conclusion that the disputed portion of Judson Street was accepted by the public through actual use. While it is true that actual use need not necessarily be constant or by large numbers of the public; Phillips v. Stamford, 81 Conn. 408, 414, 71 A. 361 (1908); it can hardly be said that the slight use made of the disputed property, coupled with evidence that certain use by the neighbors was with the permission of the plaintiff, constituted acceptance by the public. The use to which the public puts the subject property must continue over a significant period of time; 11 McQuillin, Municipal Corporations (3d Ed. Rev.) §33.50; and be of such a character as to justify a conclusion that the way is "of common convenience and necessity." See Kenneson v. Bridgeport, 130 Conn. 298, 300-301, 33 A.2d 313 (1943); Levine v. West Haven, 120 Conn. 207, 210, 179 A. 841 (1935). The findings made by the trial court fall far short of this standard. While the public's actual use of the property dedicated to a municipality can, under appropriate circumstances, constitute an implied acceptance on the part of the public, there are municipal actions that may also constitute acceptance of such property. See McQuillin, op. cit. §33.48; DiCioccio v. Wethersfield, 146 Conn. 474, 479, 152 A.2d 308 (1959); New London v. Pequot Point Beach Co., 112 Conn. 340, 345, 152 A. 136 (1930); Phillips v. Stamford, supra, 413. Where a municipality grades and paves a street, maintains and improves it, removes snow from it, or installs storm or sanitary sewers, lighting, curbs, or sidewalks upon it there exists a factual basis for finding an implied acceptance of the street by the municipality. See McQuillin, op. cit. § 33.48; Whippoorwill Crest Co. v. Stratford, 145 Conn. 268, 270, 141 A.2d 241 (1958); Johnson v. Watertown, 131 Conn. 84, 91, 38 A.2d 1 (1944). Such municipal acts are factors to be weighed in the ultimate factual determination of acceptance. Another factor is the municipality's levy and collection of general and special taxes and assessments on the property. See Kenneson v. Bridgeport, supra, 303; McQuillin, op. cit. § 33.53. The subordinate facts found by the trial court in this regard, likewise, cannot support a finding of implied acceptance by the defendant town. In addition to the fact that the town expressly excluded the disputed land from its formal acceptance of the streets in this area, it is uncontested that the town never paved the disputed portion of Judson Street, or installed sewers upon it. Cf. Kenneson v. Bridgeport, supra, 302. Moreover, there is no finding that the town exercised control over the property in any way. The trial court based its decision that the town by its action had accepted the property, instead, upon the property's removal from the grand list and consequent exemption from taxation, as well as upon certain town plans and studies involving the subject property. The town's decision to remove the property from the grand list is only a recognition by the town that no individual had a beneficial ownership of the land; Kenneson, v. Bridgeport, supra, 303; see Johnson v. Niagara Falls, 230 N.Y. 77, 84-85, 129 N.E. 213 (1920); and is not, by itself, sufficient to constitute an acceptance by the town. It is simply one of the factors to be considered in determining whether there was implied acceptance of the street by the municipality. The weight to be accorded the assessment or nonassessment of taxes upon property dedicated to a public use varies according to the other circumstances of the case. Brookdale Park Homes, Inc. v. Bridgewater, 115 N.J. Super. 489, 280 A.2d 227 (1971); Hunt v. Oakwood Hills Civic Assn., Inc., 19 Wis. 2d 113, 119 N.W.2d 466 (1963); 23 Am. Jur. 2d, Dedication § 79; 26 C.J.S., Dedication § 40. Here, the other circumstances make the exemption from taxation of minimal significance. Nor can the plans and recommendations of study committees support the finding of acceptance. There is no indication that such activity was conducted by town officials with the authority to accept the street on behalf of the municipality. See McQuillin, op. cit. § 33.48. Moreover, the plans and studies involved nothing more than projected uses and, ultimately, unfulfilled uses. The trial court's conclusion that the disputed portion of Judson Street had been accepted by the defendant town of Trumbull must be stricken as lacking support in the subordinate facts. West Haven v. United States Fidelity & Guaranty Co., 174 Conn. 392, 398, 389 A.2d 741 (1978). There is error, the judgment for the defendant town is set aside and the ease is remanded for a trial on the plaintiff's claim of adverse possession. In this opinion the other judges concurred. The Bridgeport City Trust Co. had received title to a large tract of land in Trumbull which it subdivided into building lots in accordance with a map dated June 13, 1939, entitled "Parkway Village Plan 3 Woodridge Circle." This map was filed in the Trumbull town clerk's office after approval by the town planning commission. Various proposed streets appear on this map, including Judson Street, a portion, of which the plaintiff claims title to by adverse possession. Counsel for the bank appeared before the court before evidence was presented and indicated that the bank was the "legal record owner" of the disputed property; that it did not know who the beneficiary of the trust would be as it had not been able to determine or even locate the trust deed at that time; and that, because the town of Trumbull was defending on the basis that the land in question is a public street, his client had instructed him not to participate any further in the defense of the action. Although the bank had filed pleadings in the case, it did not participate further in the trial. The court adjudged title to be in the town of Trumbull. Although the record and briefs refer at times to the property involved in this appeal as "Judson Place," the subdivision map refers to it as "Judson Street." The plaintiff claims that certain material facts were admitted and undisputed by the parties and, hence, should be added to the finding. We agree and have altered the finding accordingly. The trial court also made the following finding: "The plaintiff testified that children, have crossed the area known as 'proposed Judson Place' to gain access to the town property in the rear." This is an improper finding that establishes no facts and will therefore not be considered. See Cutler v. MacDonald, 174 Conn. 606, 614, 392 A.2d 476 (1978); C.I.T. Corporation v. Cohen, 117 Conn. 159, 161, 167 A. 102 (1933). The site was subsequently rejected by the town because of an unsatisfactory subsurface sewage disposal condition. Judson Street, as shown on the filed subdivision map, is approximately 510 feet long. About 180 feet of it abuts the plaintiff's lot 28 on the north. The fact that the plaintiff's husband applied for a variance from a sideyard requirement does not bear upon the issue of acceptance, but may bo relevant to the question of adverse possession.

Per Curiam. On January 18, 1978, the plaintiffs instituted an action directed against the defendant in his capacity as a judge of the Court of Common Pleas seeking (1) a temporary and permanent injunction; and (2) a judgment declaring certain things he did as a judge of that court unlawful and unconstitutional. On July 1, 1978, because it was merged with the Superior Court, the Court of Common Pleas ceased to exist. The issue on this appeal is whether the action should have been dismissed as moot. The defendant makes no claim that this ease involves a situation "capable of repetition, yet evading review." Because the Court of Common Pleas no longer exists, the issue originally presented by this action cannot be repeated. We therefore conclude that by any accepted standard, this action is moot. The trial court acted properly in dismissing the action and its judgment must be affirmed. See Connecticut Foundry Co. v. International Ladies Garment Workers Union, 177 Conn. 17, 411 A.2d 1 (1979). There is no error.

Bogdanski, J. Upon entering a plea of nolo contendere to a charge of assault of a victim sixty years of age or older in violation of Public Acts 1977, No. 77-422 §4 (now General Statutes §53a-61a), the defendant was found guilty and sentenced to a term of imprisonment of one year. In imposing the sentence the trial court concluded that the legislature had mandated a minimum nonsuspendible sentence of one year for the crime charged. The defendant appealed to the Appellate Session of the Superior Court which reversed the trial court, concluding that No. 77-422 of the 1977 Public Acts did not preclude the imposition of a penalty other than a term of imprisonment of one year. Upon the granting of the state's petition for certification, this appeal followed. The crime for which the defendant stands convicted is punishable as a class A misdemeanor. General Statutes § 53a-61a. Section 6 of Public Acts 1977, No. 77-422 amended § 53a-36 to provide that when a person is fonnd guilty under § 53a-61a "the minimum term shall be not less than one year and such sentence shall not be suspended or reduced." Section 53a-28 of the General Statutes, the general penalty section, outlines eight sentencing options available for violations of the Penal Code (title 53a). Six of these options involve the imposition of a term of imprisonment. Of the remaining two options, one involves a fine and the other an unconditional discharge. In certain cases, such as those involving violations of the drug laws under chapter 359 or convictions of class A felonies such as murder or kidnápping, other statutory sentencing provisions apply. In all other cases, the sentencing options of § 53a-28 apply unless restricted by some other statutory provision. The issue on this appeal is whether the trial court, in sentencing a defendant convicted of assault of a person sixty or older, has the option of imposing either a fine or a sentence of unconditional discharge, or a one year mandatory nonsuspendible term of imprisonment. The Appellate Session of the Superior Court, disagreeing with the trial court, ruled that it is only when the court decides to impose a sentence of imprisonment that it is bound by the legislative mandate in § 53a-36; otherwise the trial court has the option of imposing a sentence of unconditional discharge or a fine as provided in § 53a-28. According to the Appellate Session, the trial court had the option of releasing the defendant, with no conditions attached to that release, imposing a fine in an amount not to exceed $1000, or imposing a nonsuspendible term of imprisonment of one year. The Appellate Court's ruling was implicitly based on its conclusion that no ambiguity in the statutory scheme resulted from enactment of Public Acts 1977, No. 77-422 and that therefore it was not necessary to determine legislative intent. We disagree. It is a fundamental principle of statutory construction that statutes are to be construed so that they carry out the intent of the legislature. Bell v. Planning & Zoning Commission, 173 Conn. 223, 227, 377 A.2d 299 (1977); Sillman v. Sillman, 168 Conn. 144, 147, 358 A.2d 150 (1975); Whitfield v. Empire Mutual Ins. Co., 167 Conn. 499, 506, 356 A.2d 139 (1975). In determining the true meaning of a statute when there is genuine uncertainty as to how it should apply, identifying the problem in society to which the legislature addressed itself by examining the legislative history of the statute under litigation is helpful. Sutherland, Statutory Construction (4th Ed.) § 45.02; Lee v. Lee, 145 Conn. 355, 143 A.2d 154 (1958). It is indisputable that the problem which the legislature addressed was violent crimes against those most vulnerable and least able to resist. Representative Robert G-. Gilligan in speaking in favor of the bill outlined the reasons for distinguishing between persons sixty and over and those younger. "In the first place, older persons are more likely to live alone and travel alone and that isolation tends to increase their vulnerability to crime. Further, older persons have diminished physical strength and stamina and, therefore, are less able to defend themselves or to escape from threatening situations. Three, older persons are more likely to suffer from physical ailments such as loss of hearing or sight or arthritis which makes them more vulnerable. Four, older persons are more easily injured since their bones are more brittle and slower to recover from their injuries. Five, older persons are more likely to be dependent upon walking or public transportation and, therefore, are more exposed to assault. Six, the dates of receipt of monthly pension and benefit checks are widely known increasing the likelihood that older persons will be carrying cash and the likelihood of assault at regular intervals." 20 H.R. Proc., Pt. 7, 1977 Sess., pp. 2896-97. The legislature clearly felt that the imposition of mandatory minimum terms of imprisonment would have a deterrent effect on the commission of such crimes. Moreover, the law favors rational and sensible statutory construction. Sutherland, supra, § 45.12. The unreasonableness of the result produced by one among alternative possible interpretations of a statute is reason for rejecting that interpretation in favor of another which would produce a reasonable result. Commissioner of Internal Revenue v. Brown, 380 U.S. 563, 571, 14 L. Ed. 2d 75, 85 S. Ct. 1162 (1965); Citerella v. United Illuminating Co., 158 Conn. 600, 609, 266 A.2d 382 (1969); see also Stanley v. Justice Court for Auburn Judicial District of Placer County, 55 Cal. App. 3d 244, 127 Cal. Rptr. 532 (1976); McAdams v. Barbieri, 143 Conn. 405, 123 A.2d 182 (1956); Bergner v. State, 144 Conn. 282, 130 A.2d 293 (1957). When the literal meaning of an act is ambiguous, the construction which will accord reasonable meaning rather than an absurd one is preferred. "When two constructions are possible, courts will adopt the one which makes the statute effective and workable, and not one which leads to difficult and possibly bizarre results" Muller v. Town Plan & Zoning Commission, 145 Conn. 325, 331, 142 A.2d 524 (1958); Milano v. Warden, 166 Conn. 178, 187, 348 A.2d 590 (1974). Thus courts are warranted in assuming a reasonable and rational result was intended by the legislature. Norwich Land Co. v. Public Utilities Commission, 170 Conn. 1, 4, 363 A.2d 1386 (1975). By providing for a mandatory one year term of imprisonment, which term may not be suspended or reduced, for the crime of assault in the third degree where the victim is sixty or over the legislature clearly expressed its intent to punish one convicted of that crime more severely than one convicted of assault in the third degree where the victim is under sixty. To conclude that the legislature intended that the sentencing court would have the discretion to sentence one convicted of assault on an elderly person to an unconditional discharge — the most lenient sentence possible — or to an unsuspendible one year term of imprisonment — the most severe sentence possible — would be to thwart the legislature's purpose of punishing more severely those convicted of crimes against a class of victims in especial need of protection. We therefore hold that one convicted of third degree assault of a person sixty or over must be sentenced to a one year term of imprisonment as provided for in § 53a-36 of the General Statutes. There is error, the judgment of the Appellate Session of the Superior Court is set aside and the case remanded with direction to render judgment in accordance with the decision of the trial court. In this opinion the other judges concurred. "[General Statutes] Sec. 53a-61a. assault op a victim sixty or OLDER IN THE THIRD DEGREE. CLASS A MISDEMEANOR. (a) A person is guilty of assault of a victim sixty or older in the third degree, when he commits assault in the third degree under section 53a-61 and the vietim of such assault has attained at least sixty years of age or is blind or physically disabled, as defined in section 1-lf. (b) No person shall be found guilty of assault in the third degree and assault of a victim sixty or older in the third degree upon the same incident of assault but such person may be charged and prosecuted for both such offenses upon the same information. (e) Assault of a victim sixty or older in the third degree is a class A misdemeanor." "[General Statutes] Sec. 53a-36. imprisonment for misdemeanor: MAXIMUM AND MINIMUM SENTENCES. A sentence of imprisonment for a misdemeanor shall be a definite sentence and the term shall be fixed by the court as follows: (1) For a class A misdemeanor, a term not to exceed one year except that . . . when a person is found guilty under section 53a-61a, the minimum term shall be not less than one year and such sentence shall not be suspended or reduced . . . ." "[General Statutes] Sec. 53a-28. authorized sentences, (a) Except as provided in chapter 359, to the extent that such chapter is inconsistent herewith, every person convicted of an offense shall be sentenced in accordance with this title. (b) Except as provided in sections 53a-45, 53a-46a, 53a-54b and 53a-92, when a person is convicted of an offense, the court shall impose one of the following sentences: (1) A term of imprisonment; or (2) a sentence authorized by sections 18-65a or 18-73 or (3) a fine; or (4) a term of imprisonment and a fine; or (5) a term of imprisonment, with the execution of such sentence of imprisonment suspended, entirely or after a period set by the court, and a period of probation or a period of conditional discharge; or (6) a term of imprisonment, with the execution of such sentence of imprisonment suspended, entirely or after a period set by the court, and a fine and a period of probation, or a period of conditional discharge; or (7) a fine and a sentence authorized by section 18-65 or 18-73; or (8) a sentence of unconditional discharge. . . ." The defendant does not dispute the legitimacy of the legislature prescribing mandatory minimum sentences for certain categories of offenses. See State v. Darden, 171 Conn. 677, 372 A.2d 99 (1976) (upholding the constitutionality of the mandatory minimum sentence for robbery in the second degree); McQuoid v. Smith, 556 F.2d 595 (1st Cir. 1977) (upholding the constitutionality of Massachusetts' mandatory minimum sentence for gun law violations). Section 53a-36 of the General Statutes also- provides for a mandatory term of imprisonment for the crime of assault when with criminal negligence, the defendant "causes physical injury to another person by means of a deadly weapon or a dangerous instrument." General Statutes § 53a-61 (a) (3). Section 53a-35 of the General Statutes provides for mandatory nonreducible, nonsuspendible sentences for the crimes of (1) assault "[w]ith intent to cause serious physical injury to another person, [the defendant] causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument"; General Statutes § 53a-59 (a) (1); (2) assault of a victim sixty or older or blind or physically disabled under circumstances which would constitute an assault in the first degree under General Statutes § 53a-59 (a) (2) or 53a-59 (a) (3); General Statutes § 53a-59a; (3) burglary in the first degree if the defendant was armed at the time of the crime, General Statutes § 53a-101 (a) (1); (4) robbery in the first degree if the defendant was armed with a deadly weapon at the time of the crime; General Statutes § 53a-134 (a) (2) ; (5) assault in the second degree with a firearm if the victim is sixty or older or blind or physically disabled; General Statutes § 53a-60e; and (6) assault in the second degree or larceny in the second degree if the victim is sixty or older or blind or physically disabled. General Statutes § 53a-60b. "[General Statutes] Sec. 53a-34. unconditional discharge: criteria; effect, (a) The court may impose a sentence of unconditional discharge in any case where it is authorized to impose a sentence of conditional discharge under section 53a-29, if the court is of the opinion that no proper purpose would be served by imposing any condition upon the defendant's release. (b) When the court imposes a sentence of unconditional discharge, the defendant shall be released with respect to the conviction for which the sentence is imposed without imprisonment, probation supervision or conditions. A sentence of unconditional discharge is for all purposes a final judgment of conviction." "[General Statutes] Sec. 53a-42. fines for misdemeanors. A fine for the conviction of a misdemeanor shall be fixed by the court as follows: (1) For a class A or B misdemeanor, an amount not to exceed one thousand dollars . . . ." "The new crimes would carry the same authorized sentences as comparable assaults against nonelderly persons, but would require the imposition of a nonsuspendible minimum term of imprisonment. Of course, this bill is directed at trying to stop these assaults upon people who are blind and elderly and disabled who cannot defend themselves." Senator Salvatore O. DePiano, 20 S. Proc., Pt. 7, 1977 Sess., p. 2822. "[T]he notion of a mandatory, nonsuspendible, minimum sentence in these eases is justified and I hope it plays some part in deterring the commission of these crimes." Senator Joseph I. Lieberman, 20 S. Proc., Pt. 7, 1977 Sess., pp. 2823-24. The intent of the legislature was clearly to "impose more stringent penalties upon persons committing various types of violent crimes against victims who are over the age of sixty along with blind and physically handicapped persons." Eepresentative Eobert G. Gilligan, 20 H.R. Proc., Pt. 7, 1977 Sess., p. 2896.

Cotter, C. J. The plaintiff, Helen P. Hollingsworth, appeals from a judgment of the Superior Court dissolving her marriage to the defendant and attacks the propriety of the trial court's assignment of property pursuant to General Statutes § 46b-81. The plaintiff has expressed dissatisfaction with those portions of the judgment of dissolution which ordered that all of the defendant's right, title and interest to the parties' jointly-owned residence be transferred to her subject to an equitable lien of $10,000 in favor of her husband to be paid without interest three years after the date of the dissolution judgment and that the plaintiff pay him $45,000 within six months of the date of that judgment. This court has repeatedly declared that assignments of property interests rest within the sound discretion of the trial court. Posada v. Posada, 179 Conn. 568, 572, 427 A.2d 406; Ridolfi v. Ridolfi, 178 Conn. 377, 379, 423 A.2d 85; Jacobsen v. Jacobsen, 177 Conn. 259, 262-63, 413 A.2d 854; Pasquariello v. Pasquariello, 168 Conn. 579, 584, 362 A.2d 835. The trial court's exercise of discretion will not be disturbed so long as it could reasonably conclude as it did. Fucci v. Fucci, 179 Conn. 174, 181, 425 A.2d 592; Ridolfi v. Ridolfi, supra; Grinold v. Grinold, 172 Conn. 192, 194, 374 A.2d 172; Aguire v. Aguire, 171 Conn. 312, 314, 370 A.2d 948. In an effort to have the trial court's assignment of property deemed an abuse of discretion, the plaintiff claims that the court erred in failing (1) to attribute fault to the defendant in causing the marital dissolution; and (2) to assess properly the parties' assets and liabilities. It is clear from the plaintiff's brief that her second claim is synonymous with her attack on certain of the trial court's findings of fact detailing the personal and financial affairs of the parties. Nonetheless, the defendant has printed in his appendix evidence which supports all except one of the findings challenged as found without evidence. Findings supported by evidence printed in the appendices to the briefs will not be stricken. Practice Book, 1978, § 3039; Krause v. Krause, 174 Conn. 361, 364, 387 A.2d 548. The one finding for which there is no evidentiary support in the defendant's brief is stricken. Practice Book, 1978, § 3039; Ledgebrook Condominium Assn. v. Lusk Corporation, 172 Conn. 577, 580, 376 A.2d 60. An examination of the draft findings the plaintiff seeks to add to the record reveals that they are immaterial to the conclusions of the court and will not be included in the finding. Slattery v. Maykut, 176 Conn. 147, 150, 405 A.2d 76; Cutler v. MacDonald, 174 Conn. 606, 610, 392 A.2d 476; Rushchak v. West Haven, 167 Conn. 564, 566, 356 A.2d 104. The trial court's extensive and detailed finding as corrected establishes the following: The plaintiff, Helen Hollingsworth, and the defendant, William Hollingsworth, were married on March 1, 1972, at Beverly Hills, California, and have resided in Connecticut since April of 1976. No children were born to the couple and at the time of the trial in 1978, the plaintiff was forty years of age and the defendant was thirty-eight. During the latter part of 1974, and during 1975, the parties traveled extensively to Mexico, Hong Kong, and Europe and neither worked. Mrs. Hollingsworth, was educated in Italy, spoke three languages, and studied art in preparation for her career in interior designing. During her marriage to the defendant, she earned $30,000 to $35,000 as an interior decorator when the couple was in California. Also during the marriage she received about $20,000 in rentals from real estate she owned in California. Mrs. Hollingsworth was married twice before; both of these marriages terminated in divorce and she had one child by her first husband. Mr. Hollingsworth was a college graduate with degrees in art and business. At the time of the marriage, he was unemployed and the recipient of an allowance from his father of $900 a month. The defendant's marriage to the plaintiff was his only one. Mr. Hollingsworth was the beneficiary of trust funds established by his father and grandmother. In 1972, he borrowed $33,000 from one of the trusts for the benefit of the plaintiff so that she could purchase her partner's interest in some California realty; subsequently she repaid this loan. The defendant started selling real estate in April, 1977, and in 1977 and 1978 he earned a total of approximately $5000. During the marriage, Mr. Hollingsworth, from all sources, deposited a total of $140,000 in the couple's joint savings and checking accounts. Mrs. Hollingsworth contributed at least $45,000 to the marriage household and all of her income went into the jointly-owned home in Connecticut. When the case was tried in 1978, the husband's total assets amounted to about $60,000 and consisted of his one-half interest in the residence he owned jointly with his wife; an automobile worth about $3500, and half-interests in the household furniture and furnishings, and about $3000 in cash. The plaintiff's total assets at the same time amounted to approximately $300,000. Besides the property she owned in common with the defendant, she also owned commercial real estate in California, a Mercedes automobile, and jewelry, silverplate, and silverware of substantial value. The Hollingsworths commenced having problems with their relationship three months after they were married. The quarrels between them became more frequent after they moved to Connecticut and included several episodes of violence. On two occasions the police were called by the parties but no arrests were made. After Mrs. Hollingsworth instituted divorce proceedings, the parties' relations worsened and each began to entertain or reside with a person of the opposite sex. The trial court concluded that: the marriage of the parties had broken down irretrievably; Mrs. Hollingsworth had failed to establish a cause of action based on intolerable cruelty; she has a net worth in excess of $300,000; and Mr. Hollingsworth had contributed both substantial sums of inherited money and personal efforts to assist his wife in attaining her financial position. A review of the trial court's extensive finding, only the highlights of which have been recounted here, demonstrates that the conclusions reached by it are amply supported by the facts found in the finding and are logical and reasonable. As such they must stand. Russo v. East Hartford, 179 Conn. 250, 255, 425 A.2d 1282. Similarly, the court's finding clearly and fairly takes into account the criteria and standards prescribed in General Statutes § 46b-81, including the statutory requirement that the trial court "consider the 'contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.' " See Pasquariello v. Pasquariello, supra, 583; Ayers v. Ayers, 172 Conn. 316, 321-22, 374 A.2d 233. We cannot say that the trial court abused its discretion in distributing the assets of the parties as rendered in its judgment. There is no error. In this opinion the other judges concurred. The remainder of the judgment awarded the plaintiff the furniture and furnishings in the jointly-owned residence, including numerous valuable antiques, and ordered her to pay her husband $1000 for counsel fees; these judgment orders are not challenged. The plaintiff's complaint alleged two counts upon which her marriage to the defendant should be dissolved: (1) irretrievable breakdown and (2) intolerable cruelty. Although the court dissolved the marriage on the ground of irretrievable breakdown, the plaintiff claims she would also be entitled to a judgment of dissolution on the grounds of intolerable cruelty. We do not agree. As we stated in Christoni v. Christoni, 156 Conn. 628, 629, 239 A.2d 533, on the issue of choosing between alternative grounds for granting a divorce: "Where more than one ground for a divorce is claimed and one alleged ground is proved, it is immaterial whether or not an additional statutory ground or grounds may also exist." The fault of a party in causing a marital dissolution is material, however, to the issue of an assignment of property ancillary to the marital dissolution. General Statutes §46b-81; Posada v. Posada, 179 Conn. 568, 427 A.2d 406. In fact, the plaintiff's brief makes clear that her desire to have the marriage dissolved on the ground of intolerable cruelty is solely an attempt to have the trial court's assignment of property deemed an abuse of discretion. In effect, the plaintiff is arguing that the trial court's conclusion that the plaintiff failed to establish a cause of action based on intolerable cruelty is erroneous and not supported by the findings. Accordingly, we address that argument in this question. Those assignments of errors which the plaintiff has not briefed are considered abandoned. Prateice Book, 1978, §3063; Posada v. Posada, 179 Conn. 568, 569 n.1, 427 A.2d 406; Pappas v. Pappas, 164 Conn. 242, 243, 320 A.2d 809. The trial court found that Mr. Hollingsworth's liabilities at the time of trial amounted to $3200 plus one-half of the parties' joint liabilities of $5200 which would amount to a total liability of $5800. His financial affidavit indicates that his total liabilities in March, 1978, were $5620. It is clear that the court's finding on total liability should read $5620 and that the finding of $3200 sole liability should be $3020. The defendant admits that his total liability at the time of trial was $5620 and the finding is corrected to conform to the affidavit. See Practice Book, 1978, §3039; State v. Bethea, 167 Conn. 80, 84 n.2, 355 A.2d 6. The plaintiff's total liabilities amount to $8478 and this fact although not included in the finding is in the plaintiff's financial affidavit and is material to the plaintiff's attack on the conclusion concerning the plaintiff's net worth, and so we add it to the finding. Practice Book, 1978, § 3039. See Sanchione v. Sanchione, 173 Conn. 397, 401, 378 A.2d 522.

Peters, J. This case arises ont of the decision by the trial court, in conjunction with an action of foreclosure, to reduce the rate of interest below that stated in a mortgage note. The plaintiff, Hilton C. Hamm, on June 15, 1978, commenced an action of foreclosure pursuant to a mortgage and note executed by the defendant, Patricia Taylor. Also named as defendants were the Self-Service Sales Company, a judgment lienor, Arthur A. Watson & Co., Inc., and the West Hartford Credit Union, both attachment creditors, and the town of Marlborough, which held a demolition lien on the mortgaged property. All defendants appeared by counsel, failed to plead and were defaulted, and a judgment of foreclosure by sale was rendered. That judgment was subsequently opened to correct a clerical error concerning the date of default; this opening is not challenged by any party on this appeal. The plaintiff does appeal from the determination by the trial court, Rieluch, J., in the course of the foreclosure proceedings, to limit the recoverable rate of interest on the mortgage debt to 12 percent. The facts concerning the execution of the note and the mortgage are undisputed. The defendant Patricia Taylor executed a promissory note in the amount of $20,000 to the plaintiff Hilton C. Hamm on October 19, 1973. The note was secured by a mortgage on property in Marlborough then occupied in part by a roadside tavern. Thereafter the tavern burned to the ground and it has not been rebuilt. The mortgage has been in default since June 5, 1977; no part of the principal amount has ever been repaid. None of the parties contested the propriety of foreclosure by sale. The sole issue on this appeal is the trial court's conclusion that certain terms of the mortgage were unconscionable and hence unenforceable in an equitable proceeding of foreclosure. The note provided for interest payments at the rate of 15 percent per annum, payable monthly, and for a late charge of 10 percent of said monthly interest payments if payments were overdue. The court found that these two terms, taken in the aggregate, created an effective annual rate of interest of 16% percent. Despite the exemption of bona fide mortgages, by virtue of General Statutes § 37-9, from the 12 percent interest rate ceiling of General Statutes § 37-4, the court determined that the interest terms of the mortgage note, although not usurious, were unconscionable and inequitable and hence unenforceable. It therefore reduced the plaintiff's claim for interest out of the proceeds of the foreclosure by sale to an interest rate calculated at 12 percent per annum. The court disallowed entirely the late charges provided in the mortgage note. The plaintiff argues that these conclusions of the trial court lacked a sufficient factual basis and were therefore in error. We agree. It is important to note the procedural setting that gave rise to the trial court's conclusion that the mortgage note's provisions for interest were unconscionable. In the proceedings that led to the judgment of foreclosure, no defendant had raised any defense whatsoever. A fortiori no one had filed any pleadings raising any issue of usury or illegality or unconscionability. Nor had the court been asked by any party to reform the mortgage or the mortgage note by reason of fraud or duress or mistake. At the foreclosure hearing, the court received the plaintiff's uncontested affidavits of appraisal and of debt; no other evidence was proffered or taken. The court, invited by counsel to consider the possible unenforceability of the contested interest rate terms, invoked its equitable powers and rendered its judgment. The only facts before the court when it reached its conclusion of unconscionability were the terms of the mortgage note itself. As to these terms, the court knew that the monthly interest rate exceeded that normally permitted for ordinary debts but did not exceed the rate for bona fide mortgages securing a debt in excess of $5000. General Statutes § 37-4 and 37-9. There was no evidence that the mortgage was not bona fide. There was no doubt that the mortgage debt, found to be $20,000, exceeded $5000. Before a court strikes down as unconscionable the terms of a note that the legislature has deemed not to be illegal; Columbus Industrial Bank v. Miller, 125 Conn. 313, 320, 6 A.2d 42 (1939); the court should permit a factual showing of the circumstances that led to the inclusion of the challenged terms in the note or mortgage. The Uniform Commercial Code's provision concerning unconscionability; General Statutes §42a-2-302; although addressed primarily to contracts for the sale of goods, furnishes a useful guide. See generally Leif, "Unconscionability and the Code — The Emperor's New Clause," 115 U. Pa. L. Rev. 485, 546, 550-53 (1967); Ellinghaus, "In Defense of Unconscionability," 78 Yale L.J. 757, 812-14 (1969). Subsection (2) of § 42a-2-302 states: "When it is claimed or appears to the court that the contract or any clause thereof may be unconscionable the parties shall be afforded a reasonable opportunity to present evidence as to its commercial setting, purpose and effect to aid the court in making the determination." Whether interest rates are unconscionable is a question that should not be decided simply by judicial surmise about prevailing prime interest rates. The financial circumstances of the borrower, the increased risk associated with a second mortgage, and the income-producing capacity of the mortgaged property are some of the questions of fact that might appropriately be explored to shed light on whether a designated interest rate is or is not unconscionable. As Official Comment 1 to § 2-302 of the Uniform Commercial Code suggests, "[t]he basic test is whether, in the light of the general commercial background and the commercial needs of the particular trade or case, the clauses involved are so one-sided as to be unconscionable under the circumstances existing at the time of the making of the contract." The defendants place heavy reliance on Atlas Realty Corporation v. House, 120 Conn. 661, 183 A. 9 (1936), as authority for the action taken by the trial court. That reliance is misplaced. In Atlas Realty, supra, 671-72, the court refused to permit a mortgagee who chose to sue on its note the right to invoke, by way of demurrer, the statutory exception from the usury law that is available to bona fide mortgagees. The court's admonition (p. 670) that exceptions for mortgages should be read strictly when the mortgagee chooses not to foreclose is not pertinent to this case, in which the mortgagee has gone the foreclosure route. The court's reference (p. 670) to the power of a court to invoke equitable considerations to reform a mortgage in foreclosure proceedings must be read in conjunction with the court's holding about the manner in which equitable considerations are to be tested. Atlas Realty held (p. 671) that the bona tides of a mortgage, the possible use of a mortgage to evade the usury statutes, were questions of fact and that the creditor's demurrer to a defense of usury should therefore have been overruled. Such a holding is not tantamount to a conclusion that unconscionability is to be determined, as a question of law, merely by reference to the terms of the challenged instruments. A closer precedent is to be found in a ease arising under the Bankruptcy Act, in which a bankruptcy referee, also invoking equitable principles, held unconscionable interest rates of more than 18 percent in security agreements involving the assign ment of accounts receivable. In re Elkins-Dell Mfg. Co., 253 F. Sup. 864, 873-74 (E.D. Pa. 1966). As in onr ease, the Elkins-Dell referee had "viewed the question solely as a matter of law, to be judged from 'the terms of the contract, which speaks for itself.' " Id., 873. The District Court held that the referee was in error in not considering the commercial environment that led to the inclusion of onerous terms in the contracts before him, since the contracts themselves could not reveal whether they were the result of imposition on the debtor or of justifiable precaution on the part of the creditor. We affirm that a trial court in foreclosure proceedings has discretion, on equitable considerations and principles, to withhold foreclosure or to reduce the amount of the stated indebtedness. See Hartford Federal Savings & Loan Assn. v. Lencsyk, 153 Conn. 457, 463, 217 A.2d 694 (1966); Glotzer v. Keyes, 125 Conn. 227, 231, 5 A.2d 1 (1939); Brand v. Woolson, 120 Conn. 211, 214, 180 A. 293 (1935); Mackey v. Dobrucki, 116 Conn. 666, 670, 166 A. 393 (1933); Beach v. Isacs, 105 Conn. 169, 134 A. 787 (1926). The court may not, however, exercise that discretion without affording to the mortgagee a reasonable opportunity, at a reasonable time, to make a factual showing of the particular commercial circumstances that may make reasonable a seemingly inequitable term in a mortgage or mortgage note. Cf. Society for Savings v. Chestnut Estates, Inc., 176 Conn. 563, 567-77, 409 A.2d 1020 (1979). Equitable power must be exercised equitably. There is error, the judgment is set aside and the case is remanded for further proceedings in accordance with this opinion. In this opinion the other judges concurred. Section 37-9 provides in relevant part: "loans to which prohibitions do not apply. The provisions of sections 37-4 . . . shall not affect . . . any bona fide mortgage of real property for a sum in excess of five thousand dollars . For the purpose of this section, 'interest' shall not be construed to include attorney's fees, including preparation of mortgage deed and note, security agreements, title search, waivers and closing fees, survey charges or recording fees paid by the mortgagor . . . ." Section 37-4 provides: "loans at greater rate than twelve per cent prohibited. No person and no firm or corporation or agent thereof, other than a pawnbroker as provided in section 21-44, shall, as guarantor or otherwise, directly or indirectly, loan money to any person and, directly or indirectly, charge, demand, accept or make any agreement to receive therefor interest at a rate greater than twelve per cent per annum." In this ease it is clear that the trial court did not discover that there was a prior first mortgage on the property until some time after it had concluded that the interest rate terms were unconscionable.

Bogdanski, J. The defendant was charged in an information with the crime of sexual assault in the second degree in violation of § 53a-71 (a) (l) of the General Statutes in the first count, and with the crime of assault in the third degree in violation of § 53a-61 (a) (1) in a second count. After a jury trial he was found guilty on the first count and not guilty on the second count. From the judgment rendered, he has appealed. The state initially presented the following evidence : testimony by the complainant that she first had sexual intercourse with the defendant towards the end of February, 1976, and subsequently on at least ten different occasions, the last time being just prior to August 2, 1976; that she was born on August 27,1961; and that on August 4,1976, she and her guardian gave notice to the police of her sexual activities with the defendant. The complainant also testified that in July of 1976 she learned that she was pregnant, and that on January 21, 1977, she gave birth to a child. Following the presentation of that evidence, the state rested. A discussion then took place between counsel and the court as to the applicability of § 53a-69, as amended by Public Acts 1976, No. 76-216, concerning the limitation on prosecutions where a complaint has not been made within one year after the parent or guardian of a victim under the age of sixteen learns of the alleged sexual assault. The defendant moved for a dismissal of the sexual assault charge on the ground that since Public Acts 1976, No. 76-216 did not become effective until October 1, 1976, the three month limitation applied. The court denied the motion. The trial court, however, permitted the state to open its case. The state recalled the complainant who testified that she and the defendant had sexual intercourse in May, June, and July of 1976, as well as on August 1, 1976. The trial court also permitted the state to file a substituted information limiting the sexual assault charge to the period between May 3, 1976 and August 1, 1976. The court then advised counsel it was going to instruct the jury to disregard any evidence as to sexual intercourse occurring between February and May of 1976. The defendant objected on the ground that the evidence already heard by the jury as to the alleged criminal acts occurring during that period of time was prejudicial and inflammatory in that the complainant had testified that she became pregnant in April or May of 1976, that she had a child on January 21, 1977, and that the defendant was the father of that child. The defendant argued that curative instructions by the court could not erase that evidence from the minds of the jurors. The medical evidence at trial clearly revealed that the child was conceived in April or early May of 1976. On the basis of that evidence, the child could have been conceived outside of the three month period within which the state was bound to limit its evidence. That the evidence concerning the conception and birth of the child was prejudicial to the defendant cannot be questioned. The testimony which the jury was instructed to disregard was to the effect that the defendant not only had sexual intercourse with the fourteen year old complainant but also had refused to acknowledge his own child. The question dispositive of this appeal is whether the court erred in denying the defendant's motion for a mistrial based on the fact that the jury heard evidence which was inadmissible and prejudicial. While in many instances error involved in presenting inadmissible evidence to a jury may be cured by appropriate instructions, a curative instruction is not inevitably sufficient to overcome the prejudicial impact of such evidence. "It is not unreasonable to conclude that in many such cases the jury can and will follow the trial judge's instructions to disregard such information. Nevertheless, as was recognized in Jackson v. Denno [378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964)], there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored." Bruton v. United States, 391 U.S. 123, 135, 88 S. Ct. 1627, 20 L. Ed. 2d 476 (1968). "The government should not have the windfall of having the jury be influenced by evidence against a defendant which, as a matter of law, they should not consider but which they cannot put out of their minds." Delli Paoli v. United States, 352 U.S. 232, 248, 77 S. Ct. 294, 1 L. Ed. 2d 278 (1957) (dissenting opinion), cited with approval in Bruton v. United States, supra, 129. We conclude that the prejudicial effect of the inadmissible evidence was such that there was little likelihood of its being cured by the court's instruction and that therefore the court erred in denying the defendant's motion for a mistrial. There is error, the judgment is set aside and a new trial ordered. In this opinion the other judges concurred. The information as to the first count reads that: "... between the 14th day of February, 1976 and the first day of August, 1976 . . . the said Larry Tinsley engaged in sexual intercourse with another person . . . and such other person was under 15 years of age . . . ." Section 53a-71 (a) of the General Statutes provides that "[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 (1) under fifteen years of age . . . ." Section 53a-69 formerly provided that "[n]o prosecution [for any sex offense] may be instituted or maintained under this part unless the alleged offense was brought to the notice of public authority within three months of its occurrence or, where the alleged victim was less than sixteen years old or incompetent to make complaint, within three months after a parent, guardian or other competent person specially interested in the alleged victim learns of the offense." The 1976 amendment increased the time limitation to one year. The substituted information read that . . between the 3rd day of May, 1976, and the 1st day of August, 1976 . . . the said Larry Tinsley engaged in sexual intercourse with another person . . . and such other person was under 15 years of age . . . ."

Arthur H. Healey, J. The single question presented by this appeal is whether the defendant, United Oil Company (hereinafter United), was, at the time it terminated two month-to-month leases it had entered into with the plaintiffs for property operated as automobile service stations, a franchisor as defined in General Statutes § 42-133e (b) and (c) (Rev. to 1975). If the defendant was a franchisor, it was obliged to comply with various other provisions set out in General Statutes § 42-133f (Rev. to 1975) relating to the length of the lease term, the grounds for termination, notice of termination and compensation for a franchisee's inventory upon termination. A brief summary of some of the facts found by the trial court is set out here. Other facts found by the court will be discussed where appropriate. United is the owner of service stations in Connecticut, two of which are leased to the plaintiffs. United is a wholesaler, distributor and "jobber" of gasoline and related petroleum products, which it purchases from Cities Service Oil Company (CITGO) pursuant to a supply contract. United purchases gasoline at a terminal in New York and delivers it in its own trucks to its retail customers in Connecticut. Of the twenty-five stations United supplies in Connecticut, thirteen are owned by United and leased to operating dealers, nine are owned by dealers or others, and three are owned and operated by United. Since March, 1971, United has been a party to contracts with CITGO for the sale of petroleum products produced by it. These contracts did not preclude United from selling other brands of petroleum products nor limit the territory within which United could distribute CITGO products. The plaintiffs, Muha and LaBella, in 1972 and 1973, respectively, entered into one-year leases and one-year sales and equipment agreements with United, which contained annual renewal clauses. These agreements remained in effect until June, 1974, when United exercised its right to terminate the leases and sales and equipment agreements and notified the plaintiffs that, effective September 1, 1974, they would have a month-to-month lease upon the same terms as those contained in the prior leases and that the sales and equipment agreements would likewise be periodically renewed. The agreements between United and each of the plaintiffs required the plaintiffs to use the tanks, pumps and petroleum storage and dispensing equipment at the two service stations exclusively for sale of gasoline and lubricating oil in agreed upon quantities supplied by United. The agreements did not require the plaintiffs to purchase one particular brand of petroleum products, but only to purchase the brand of products supplied by United. No restrictions were imposed by United upon the plaintiffs with respect to the purchase of products other than gasoline and lubricating oil, and the plaintiffs do in fact purchase tires, batteries, repair parts and other automobile accessories from suppliers other than United. The plaintiffs do a substantial volume of business in the repair and servicing of motor vehicles and the sale of automotive accessories, and derive most of their profit from repairing and servicing automobiles rather than from the sale of gasoline. The leases involved require the plaintiffs to keep the premises clean and orderly and place upon the plaintiffs certain maintenance functions. Both leases contain the following language: "None of the provisions of this lease shall be construed as reserving to Lessor any right to exercise any control over the business or operations of Lessee conducted upon the Station premises or to direct in any respect the manner in which any such business and operations shall be conducted, subject only to Lessee's performance of the obligations of this lease. Lessee is an independent businessman and neither Lessee nor any party or parties employed by Lessee are agents, servants or employees of Lessor . . . The plaintiffs, Muha and LaBella, in July and August of 1975, respectively, were notified by United that the month-to-month leases and the sales and equipment agreements would terminate effective September 30,1975. The plaintiffs claimed that these terminations violated General Statutes § 42-133Í (Rev. to 1975) and brought the present action seeking to enforce the provisions of § 42-133L The trial court concluded that United was not a franchisor under § 42-133e (b) and (c) and denied the relief sought. General Statutes § 42-133e (c) read, at the time the month-to-month leases involved were renewed and later terminated, as follows: " 'Franchisor' means a person who grants a franchise to another person." General Statutes § 42-133e (b) (Rev. to 1975) read: " 'Franchise' means an oral or written agreement or arrangement in which (1) a franchisee is granted the right to engage in the business of offering, selling or distributing goods or services under a marketing plan or system prescribed in sub stantial part by a franchisor, provided nothing contained herein shall be deemed to create a franchisor-franchisee relationship between the grantor and grantee of a lease, license or concession to sell goods or services upon or appurtenant to the premises of the grantor, which premises are occupied by the grantor primarily for its own independent merchandising activities; and (2) the operation of the franchisee's business pursuant to such plan or system is substantially associated with the franchisor's trademark, service mark, trade name, logotype, advertising or other commercial symbol designating the franchisor or its affiliate." On appeal the plaintiffs claim that the trial court erred by failing to conclude from the facts found that (1) United prescribed in substantial part a marketing plan or system for the selling of goods and services; and (2) the plaintiffs' business pursuant to such a plan or system was substantially associated with a trademark of United. We conclude that the court did not err in the judgment rendered. Because we conclude that the trial court properly decided that the plaintiffs' business was not "substantially associated" with a trademark of United, one of two requirements under the statute, we need not determine whether the trial court was correct in its conclusion that the plaintiffs did not sell petroleum products pursuant to a marketing plan or system prescribed in substantial part by United. It is clear that the trial court properly concluded that the operation of the plaintiffs' businesses was not "substantially associated with the franchisor's trademark, service mark, trade name, logotype, advertising or other commercial symbol designating the franchisor its affiliate." The trial court con- eluded that United had no trademark or other brand name or symbol. Instead, United has a limited contract right to utilize the CITGrO trademark so long as United distributes petroleum products produced by CITGrO. The CITGrO trademark remains at all times, however, the property of CITGO. Pursuant to that contract right, United installed and maintained CITGO signs that are owned by CITGO at various locations in both service stations. Except for certain batteries bearing the CITGO trademark, none of the automotive parts or accessories sold or installed by the plaintiffs bears the CITGO trademark. As noted above, the leases and the sales and equipment agreements do not require the plaintiffs to sell only CITGO petroleum products. Therefore, even if United had a trademark and prescribed in substantial part a marketing plan, the plaintiffs' activities were not "substantially related with the franchisor's trademark." General Statutes § 42-133e (b) (Rev. to 1975). The trial court's decision in this respect also is supported by the fact that United owns no trademark. Under § 42-133e (b) (Rev. to 1975), the plaintiffs' retailing operations had to be "substantially associated with the franchisor's trademark." While United utilized CITGO's trademark pursuant to its contract right; see General Statutes § 35-lla (a); that trademark never became the property of United. Nor did the plaintiffs demonstrate that any other "commercial symbol designating the franchisor or its affiliate" was employed by United and related to some marketing plan. Although the plaintiffs argue that United is an affiliate of CITGO, a proposition not supported in fact, it is clear that the statute required the commercial symbol to designate the franchisor or its affiliate. If the plaintiffs argue that United is their franchisor, then the trademark would have to designate its affiliate, or CITGfO. This proposition is also without support in fact. The plaintiffs claim that the trial court's interpretation of § 42-133e (b) and (c) (Rev. to 1975) so as to exclude the defendant, as a jobber or distributor, from the definition of "franchisor" is contrary to the legislature's intention in originally enacting those sections. They premise this argument, in large part, on the later amendment of both of these sections. In 1975, the legislature amended § 42-133e (b) by adding to the end of that subsection defining "franchise" the following: "and includes any agreement between a manufacturer, refiner or producer and a distributor, wholesaler or jobber, between a manufacturer, refiner or producer and a retailer, or between a distributor, wholesaler, or jobber and a retailer." Public Acts 1975, No. 75-560 §1 (effective October 1, 1975). The legislature also altered the definition of "franchisor" in § 42-133e (c) to read: "'Franchisor' means a person who grants a franchise to another person, including a manufacturer, refiner or producer or a distributor, wholesaler or jobber who grants to a distributor, wholesaler or jobber or retailer, as the case may be, the authority to use a trade mark, tradename, service mark or other identifying symbol or name under a franchise." Ibid. It is clear from these 1975 amendments that the requirements of § 42-133Í now apply to distributors and jobbers, such as the defendant. The plaintiffs' reason, however, that these amendments were intended only to clarify the original definitions, and have referred to authority for the proposition that a subsequent amendment which in effect construes and clarifies a prior statute must be accepted as a declaration of the meaning of the original act. See, e.g., F.H.A. v. The Darlington, Inc., 358 U.S. 84, 90, 79 S. Ct. 141, 3 L. Ed. 2d 132 (1958); see also Tax Commissioner v. Estate of Bissell, 173 Conn. 232, 246, 377 A.2d 305 (1977). In urging this interpretation they state that, although the effective date of the 1975 amendments was October 1, 1975, they are not arguing for any retrospective application of the amendments. The plaintiffs also argue that the purpose behind the enactment of the original franchise act; see Public Acts 1972, No. 287; was to correct abuses in franchise relationships, particularly in the petroleum industry, and that its provisions are therefore remedial in nature and should be liberally construed in favor of the class sought to be benefited. See Hartford Fire Ins. Co. v. Brown, 164 Conn. 497, 503, 325 A.2d 228 (1973). While we do not dispute the general principles of statutory construction referred to by the plaintiff, we conclude that, when applied with other tenets of statutory construction to the eases before us, they do not require a different result than that reached by the trial court. We do not view the amendments contained in Public Acts 1975, No. 560 merely as clarifying or interpreting the scope of the definitions in § 42-133e (b) and (c) as originally enacted. The language added to the definition of a "franchise" clearly sets forth a new category of agreements, which includes agreements between distributors, wholesalers, or jobbers and retailers. General Statutes § 42-133e (b). The definition of "franchisor" was also expanded so as to include, among other things, a distributor, wholesaler or jobber who grants to a retailer the authority to use a trademark, and contains no requirement that the trademark be that of the franchisor. General Statutes §42-133e (c). These changes are substantive. They affect substantive rights. Although the plaintiffs state that they do not urge retrospective application of the amendments, the legal and practical effect of their arguments would be just that. Because the amendments enacted in 1975 affect substantive rights, they will be given prospective application only. See East Village Associates, Inc. v. Monroe, 173 Conn. 328, 331-33, 377 A.2d 1092 (1977); Massa v. Nastri, 125 Conn. 144, 146-47, 3 A.2d 839 (1939); see General Statutes § 55-3. Rather than being a clarification of the original act, the 1975 amendments appear to have been prompted by the legislative concerns that manufacturers or refiners of petroleum products might utilize distributors, jobbers or middlemen, who were not cov ered by the act, to preclude their own characterization as franchisors, and, hence, to avoid the requirements of the original franchise act. While it is true that the original franchise act was remedial in nature, and that the legislature, if it had been requested to do so, may well have altered the definition of franchisors in that act to include wholesalers, distributors or jobbers, the courts are not empowered in such a situation to alter the meaning of clear language employed by the legislature. We must interpret statutes as they are written. See Rosnick v. Aetna Casualty & Surety Co., 172 Conn. 416, 422, 374 A.2d 1076 (1977); Liistro v. Robinson, 170 Conn. 116, 129, 365 A.2d 109 (1976); Mancinone v. Warden, 162 Conn. 430, 439, 294 A.2d 564 (1972). It has often been said that the legislative intent is to be found not in what the legislature meant to say, but in the meaning of what it did say. Wiegand v. Heffernan, 170 Conn. 567, 581, 368 A.2d 103 (1976); Colli v. Real Estate Commission, 169 Conn. 445, 452, 364 A.2d 167 (1975); Sillmam v. Sillman, 168 Conn. 144, 148, 358 A.2d 150 (1975). Where the language used by the legislature is plain and unambiguous, there is no room for construction by the courts and the statute will be applied as its words direct. Baston v. Ricci, 174 Conn. 522, 528, 391 A.2d 161 (1978); Johnson v. Personnel Appeal Board, 174 Conn. 519, 521-22, 391 A.2d 168 (1978); Clark v. Mulcahy, 162 Conn. 332, 338, 294 A.2d 504 (1972). This the trial court did. There is no error. In this opinion the other judges concurred. The plaintiffs have made a substantial attack upon the trial court's finding. We have carefully examined every paragraph sought to be stricken from the finding on the ground that it was found without evidence or in language of doubtful meaning, and every paragraph sought to be added to the finding on the ground that it contains facts that were admitted or undisputed. See Practice Book, 1978, § 3034 (2) (repealed July 1, 1979). Those claims of error directed to the finding not briefed by the plaintiffs are deemed abandoned. Gigliotti v. Wood, 175 Conn. 243, 247, 397 A.2d 1342 (1978); Maltbie, Conn. App. Proc. § 327. Some of the corrections sought would be immaterial to the result; Practice Book, 1978, § 3039 (repealed July 1, 1979); Xerox Corporation v. Board of Tax Review, 175 Conn. 301, 304, 397 A.2d 1367 (1978) ; some relate to draft findings that already appear in the finding in different language or are implicit in the finding; E & F Realty Co. v. Commissioner of Transportation, 173 Conn. 247, 249, 377 A.2d 302 (1977); Perley v. Glastonbury Bank & Trust Co., 170 Conn. 691, 695n., 368 A.2d 149 (1976); and others are clearly unwarranted. The correction we do make is noted in the recitation of facts in the body of the opinion. This fact has been added to the finding as admitted and undisputed. "Affiliate" has been defined as a branch or unit of a larger organization; a company effectively controlled by another or associated with others under common ownership or control. Webster, Third New International Dictionary. The trial court found that United is a privately owned corporation in which CITGO has no financial interest. In Public Acts 1975, No. 75-560 § 1, the legislature also altered the definition of "franchisee" in § 42-133e (d) to read: "'Franchisee' means a person to whom a franchise is granted, including a distributor, wholesaler or jobber or retailer who is granted the authority under a franchise to use a trademark, tradename, service mark or other identifying symbol or name." Representative Raymond C. Ferrari made the following remarks on the purpose of the bill containing the 1975 amendments: "The purpose of the Bill is to correct a loophole in the current law. . . . [W]hat the Bill does is it changes the definition of franchise to include the circumstance in which the manufacturer or refiner of a petroleum product sells to the retailer, through a jobber or through a distributor and it's to put this within the coverage of the law so that we don't have the situation where manufacturers or producers or refiners of petroleum products are getting around the law by dealing through a jobber, distributor or other intermediary agents." 18 H. R. Proc., Pt. 10, 1975 Sess., pp. 4761-62; see also Joint Standing Committee Hearings, General Law, Pt. 4, 1975 Sess., pp. 1433-34.

Per Curiam. The marriage of the plaintiff husband and the defendant wife was dissolved in 1974. By agreement of the parties, custody of the two minor children was awarded to the wife with visitation rights in the husband. By agreement, the husband was to pay $3000 yearly for the support of each child and $7500 yearly in alimony. Shortly thereafter, the defendant moved to Dayton, Ohio, with the children. At the end of the summer visitation period in 1977, which the children spent with the plaintiff, he did not return them to Ohio but enrolled them in school in Litchfield. The defendant enlisted the aid of the Connecticut state police to regain physical custody of the children on September 9, 1977. On September 16,1977, she brought the children to Connecticut for an interview with the family relations officer. It was the officer's opinion that the daughter's best interests would be served if she remained in the custody of her mother. On September 23, 1977, the parties agreed that custody of the minor son would be awarded to the plaintiff and the plaintiff's support for him terminated, and that custody of the minor daughter would remain with the defendant. It is evident from the record that this case has remained active by motions and cross motions since the dissolution in 1974. At a hearing on four of these motions held on April 28, 1978, the defendant did not appear. The court declined to make a ruling regarding the custody of the daughter without interviewing the child. Although ordered to appear with the daughter on May 15, 1978, neither the mother nor the daughter appeared except by counsel. Counsel for the defendant read a letter to the court from the daughter indicating that she wanted to live with her mother. At that hearing the court reduced alimony to one dollar a year to punish the defendant for her failure to appear. After the May 15, 1978 hearing, the plaintiff went to Dayton and without the defendant's knowledge took the daughter back to Connecticut. On May 31,1978, the court interviewed the daughter who told the court she wanted to stay with her mother in Dayton, Ohio. The finding states that the interview was conducted "with the knowledge and consent of both plaintiff's and defendant's counsel." At a hearing held on September 18, 1978, the defendant again failed to appear or offer evidence. Nevertheless, the court rescinded its order reducing alimony to one dollar per year and ordered payment of $350 per month alimony in lieu of the $625 per month which had been ordered previous to May 15, 1978. The court also rescinded its May 15, 1978 order of dual custody of the minor daughter, awarding sole custody of the daughter to the defendant and ordering the plaintiff to continue the payment of $250 per month child support plus medical and dental care. The plaintiff contends that the trial court erred in awarding the custody of the daughter to the defendant for two reasons which, when considered together, amount to an abuse of discretion. The plaintiff claims first, that the court interviewed the child without giving notice to plaintiff's counsel and second, that the defendant never appeared to testify. As previously discussed, the court states in the finding that the interview was conducted with the knowledge and consent of counsel for both parties. Yet the plaintiff contends that his counsel never received notice of the interview and that this finding was made without evidence and should be stricken. Actually, knowledge and consent of counsel for both parties is not a fact to which one would nor mally testify at a hearing but is information other than the testimony of witnesses which may be obtained by a court while conducting a trial or hearing. The court's finding is analogous to a finding based upon a view of premises or property. Dadio v. Dadio, 123 Conn. 88, 93, 192 A. 557 (1937). It is knowledge acquired by the court which would not ordinarily be recorded by the court reporter or appear in the court file. State v. Mosca, 90 Conn. 381, 385, 97 A. 340 (1916). Manifestly, such facts upon which the court's finding was made cannot be reviewed and must be accepted; Albright v. MacDonald, 121 Conn. 88, 91, 183 A. 389 (1936); unless it can be shown or inferred that the finding is not supported by the evidence. See Spiro v. Nitkin, 72 Conn. 202, 207, 44 A. 13 (1899); Peck v. Pierce, 63 Conn. 310, 320, 28 A. 524 (1893). In view of the record before us, the finding of the court cannot be stricken. The defendant did not appear at any of the three hearings which preceded the court's award of custody of the daughter to the defendant. The plaintiff claims that her absence permits the inference that her testimony would have been adverse to her cause under the rule of Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960). The short answer to the plaintiff's claim is that the defendant's failure to appear evidently did yield such an adverse inference when the court at the second hearing reduced alimony to one dollar per annum solely because she had failed to appear. The ultimate concern of the court with regard to custody and visitation rights is the best interests of the child; Spicer v. Spicer, 173 Conn. 161, 162, 377 A.2d 259 (1977); Simons v. Simons, 172 Conn. 341, 342, 374 A.2d 1040 (1977); and "[i]t is settled that the determination of the custody of a minor child rests largely in the discretion of the trial court, and its decision cannot be overridden unless it abused its discretion." Simons v. Simons, supra, 348. The court had the benefit of a letter from the daughter stating her wishes to be with her mother and the recommendation of the family relations officer stating that in his opinion it was in the girl's best interests to stay with her mother. More importantly, the court interviewed the child and she said she wanted to remain with her mother. The award of custody to the defendant was in accordance with that wish. General Statutes § 46b-56 (b) states that the court should consider the child's wishes if she is of sufficient age and capable of forming an intelligent preference. At the time the trial court entered this order the daughter was thirteen years old. Under these circumstances, despite the defendant's failure to appear, it cannot be said that the court abused its discretion by awarding custody to the defendant. The plaintiff claims that the court's modification of the award of alimony from one dollar per year to $350 per month was made without a showing of a substantial change in circumstances. Whether the final alimony award is viewed as an increase from one dollar per year or as a decrease from $625 per month, which had been ordered prior to the reduction to one dollar a year upon the defendant's failure to appear at previous hearings, is not controlling in this case. The finding is devoid of facts with regard to the finances of the parties, and the record and briefs do not include evidence of the parties' financial circumstances such as financial affidavits usually found in appeals of this nature. Although the court's finding states that it considered the plaintiff's evidence presented at the May 15, 1978 hearing in determining the award of alimony, this court cannot ascertain what evidence the court considered. Under these circumstances, the award of alimony is unsupported by the finding and erroneous. There is error in part and the case is remanded for a hearing on the issue of alimony.

Peters, J. This is an appeal from a judgment awarding the custody of a minor child to her mother. The plaintiff, Dennis Seymour, "brought an action against the defendant, Margaret Seymour, seeking dissolution of their marriage and custody of their minor child. The defendant's cross complaint did not contest that the marriage had irretrievably broken down, but sought an order that custody be awarded to the defendant as well as an order for ancillary financial relief. No appeal has been taken from the trial court's judgment insofar as it dissolved the parties' marriage and divided their joint assets. The parties continue to be at issue about the custody of their child, which the trial court, Berdon, J., awarded to the defendant mother. The trial court's extensive finding, corrected as appropriate, establishes the following facts: The plaintiff (hereinafter the father) and the defendant (hereinafter the mother) were married in 1972'. Their only child was born on February 4,1975. The child's first year was a difficult one for her and therefore for her parents. She suffered from colic and from a hip problem that required the wearing of an orthopedic brace. As a result, the child cried often and slept irregularly. During this first year, the mother had primary responsibility for the care of the child, in part because she was nursing her and in part because the father, with a full time job outside of the home, was reluctant to assist in her care. Except for the assistance of friends, there was little outside help for the mother at this time. Within a year of the child's birth, the parents had separated. The parties' living arrangements, and their arrangements for the care of their child, took various forms from the time of separation in January, 1976, to the time of trial, which began in July, 1977. In 1976, the mother and the child first lived in a variety of marginally adequate temporary quarters. In an effort to find more suitable quarters and to make more permanent plans, the mother, in May of that year, found a baby-sitter for the child during weekdays and asked the father to care for her at night. The father remained in sole custody of the child until some time in June, when the mother resumed personal responsibility for the care of the child for part of each week. The father's custody continued to include leaving the child on weekdays with the baby-sitter the mother had located. The mother's custody did not require the use of baby-sitters, since the mother was able to schedule her part-time work for the time when the child was with her father. Although both parents tried, in good faith, to make a success of joint custody, both had become persuaded, by the time of trial, that joint custody was not feasible. Although all aspects of the issue of custody of the minor child, then two and one-half years old, were thoroughly and extensively contested at trial by all of the interested parties, there was wide spread agreement on two crucial matters. Witness after witness testified that both the mother and the father were suitable and nurturing parents, that each loved the child, and that the child had significant psychological ties to each of them. The witnesses were equally in agreement that the two parents exhibited marked and irreconcilable differences in their personalities, in their life-styles, and in their child care practices. The father was characterized as orderly, well organized, responsible and inflexible, while the mother was described as energetic, impulsive, immature and open. These disparities in the parents' personal orientations led to opposing viewpoints with respect to the child's diet, health care and daily living arrangements, and hence to the breakdown of joint custody of the child. To assist the court in its Solomonic responsibility to make a choice between the child's suitable but irreconcilable parents, the court appointed Attorney Peter A. Kelly as counsel for the minor child and conducted extensive hearings for seven trial days. The court received testimony not only from the parents and their friends but also from a number of professional experts. The court heard from Kay Shafer, a psychiatric social worker who had counseled extensively with the parents before and after the marital breakdown; she recommended that custody be awarded to the father. The court asked for a report from a family relations officer, Allen Rubin, who, after a custody investigation, also recommended that custody be awarded to the father. The court received reports, finally, from two psychiatrists. Earl S. Patterson, M.D., concluded from his psychiatric examination of the parents that psychiatrically it made no difference which parent was awarded custody. Kyle D. Pruett, M.D., finding that the child's primary psychological attachment was to her mother, recommended that custody be awarded to the mother. The court concluded, in accordance with the criteria of General Statutes § 46b-56 (b), that custody should be awarded to the mother because such an award would be in the best interests of the minor child. The appellants cannot and do not challenge the overall propriety of this standard, which this court has on innumerable occasions repeatedly affirmed. Friedman v. Friedman, 180 Conn. 132, 135-36, 429 A.2d 823 (1980); Trunik v. Trunik, 179 Conn. 287, 426 A.2d 274 (1979); Joy v. Joy, 178 Conn. 254, 257, 423 A.2d 895 (1979); Stewart v. Stewart, 177 Conn. 401, 408, 418 A.2d 62 (1979); Spicer v. Spicer, 173 Conn. 161, 162, 377 A.2d 259 (1977); Simons v. Simons, 172 Conn. 341, 347, 374 A.2d 1040 (1977). "It is settled that the determination of the custody of a minor child rests largely in the discretion of the trial court, and its decision cannot be overriden unless it abused its discretion." Simons v. Simons, supra, 348. The appellants mount a twofold attack on the trial court's determination to award custody to the mother. First, the appellants argue that the custody statute's failure to provide guidelines for the exercise of the trial court's discretion makes the statute unconstitutionally vague. Second, the appellants contend that the trial court abused its discretion in relying too heavily on psychiatric testimony about the child's primary psychological parent. We find neither argument persuasive. This is not the first occasion upon which this court has been asked to interpolate objective guidelines into the open-ended fact-oriented statutes which govern family disputes. In Joy v. Joy, 178 Conn. 254, 255, 423 A.2d 895 (1979), we declined to impose guidelines to eonstrain a trial court's inquiry into the irretrievable breakdown of a marriage. In Posada v. Posada, 179 Conn. 568, 573, 427 A.2d 406 (1980), and Fucci v. Fucci, 179 Conn. 174, 179-80, 425 A.2d 592 (1979), we refused to require specific findings concerning each of the factors that a trial court must consider in making financial settlements pursuant to General Statutes $§46b-81 (assignment of property) and 46b-82 (alimony). We continue to adhere to the view that the legislature was acting wisely in leaving the delicate and difficult process of fact-finding in family matters to flexible, individualized adjudication of the particular facts of each case without the constraint of objective guidelines. See Mnookin, "Child-Custody Adjudication: Judicial Functions in the Face of Indeterminacy," 39 Law & Contemp. Prob. 226, 249-68 (Summer, 1975); Foster & Freed, "Child Custody," 39 N.Y.U.L. Rev. 423, 441 (1964). Certainly, a statute that vests discretion in the trial court to determine the best interests of a child in awarding custody is no more unconstitutional than is a statute that allows dissolution of a marriage without fault upon a factual finding that a marriage has irretrievably broken down. See Joy v. Joy, supra, 255, and cases there cited. The contention that the trial court abused its discretion is based upon the appellants' allegation that insufficient weight was given to evidence concerning the parenting ability of the father and of the mother, and excessive weight was given to identification of the child's primary psychological parent. This claim is difficult to sustain in light of the trial court's express statement that it had taken into account the parents' past behavior as it related to their parenting ability and to their consistency in parenting and life style, insofar as these factors might affect the child's growth, development and well-being. It is true that the court assigned special significance to four additional factors: the emotional ties of the child to each parent; the emotional ties of each parent to the child; the time each parent would be able to devote to the child on a day-to-day basis; and the flexibility of each parent to best serve the psychological development and growth of the child. Even these factors, however, go beyond the single-minded attention to primary attachment to a psychological parent of which the appellants are critical. The role that psychological evaluations play in the determination of the best interests of the child is not susceptible to generalization by appellate courts. It is significant that Goldstein, Freud & Solnit characterize as the "least detrimental available alternative" their suggestion that child placement should maintain "on a continuous, unconditional, and permanent basis a relationship with at least one adult who is or will become the child's psychological parent." Goldstein, Freud & Solnit, Beyond the Best Interests of the Child, p. 99 (1979). Such a characterization serves to emphasize that the concept of the psychological parent is not a fixed star by which custody decisions can invariably be guided. The notion of a person being or becoming a psychological parent properly emphasizes that nature and nurture both play a role in a child's psychological well-being. Nothing in Beyond the Best Interests of the Child is inconsistent with a child's having two psychological parents, as would normally be the case in an intact family. Furthermore, professionals in the field of child development remind us that a child may become deeply attached to a parent who is seriously inadequate, disturbed or abusive, so that "in some cases it is a disadvantage for the child to be in the care of the psychological parent." Leonard & Provence, "The Development of Parent-Child Relationships and the Psychological Parent," 53 Conn. B.J. 320, 327 (1979). While psychological parenting is thus one indicator of the best interests of a child, a court has an independent responsibility to assure itself of the suitability of the parent to whom the child is primarily attached. Cf. In re Juvenile Appeal (Anonymous), 177 Conn. 648, 667-68, 420 A.2d 875 (1979). On this record, the trial court exercised that responsibility. The appellants challenge not only the concept of the psychological parent but also the methodology of the psychiatrist who presented the concept to the court. The weight to be given to psychological testimony by professionals in mental health is, in matters of custody, as it is elsewhere, a question for the trier of fact. It should be noted, however, that expert opinion must be evaluated in light of the expert's opportunity to come to a reasoned conclusion. Duley v. Plourde, 170 Conn. 482, 487, 365 A.2d 1148 (1976); Stephanofsky v. Hill, 136 Conn. 379, 384, 71 A.2d 560 (1950); see Tait and LaPlante, Handbook of Connecticut Evidence § 7.16 (b) (1976). As this case illustrates, long-range forecasts about future child development are sometimes based upon relatively few and brief interviews and tests conducted under circumstances of stress. It is not clear to what extent the analytic insights derived from long and intensive psychotherapy can readily be translated into an evaluative setting that is governed by a radically different time frame. None of these infirmities in the psychological testimony is, however, sufficient, singly or jointly, to have required exclusion of Pruett's testimony. In the circumstances of the case before it, the trial court was certainly not unjustified in concluding that it was relevant to inquire as it did into the psychological relationship between the child and her parents. Once it is definitively established, as it was here, that each parent is loving, caring and otherwise entirely suitable, the court perforce must look to other factors to come to a decision about custody. The court was not in error in basing its award of custody to the mother on her strong and healthy relationship to her daughter, her willingness and ability to devote time to her daughter, and her willingness to facilitate visitation by the father. There is no error. In this opinion the other judges concurred. The appellant's effort to add fifty-two proposed draft findings, many of which are merely duplicative of findings actually made, is, as we have noted in the past, a singularly unhelpful approach to appellate review. See Fucci v. Fucci, 179 Conn. 174, 177, 425 A.2d 592 (1979). Section 46b-56 provides, in relevant part: "superior COURT ORDERS RE CUSTODY AND CARE OP MINOR CHILDREN IN ACTIONS POR DISSOLUTION OP MARRIAGE, LEGAL SEPARATION AND ANNULMENT. . . . (b) In making or modifying any order with, respect to custody or visitation, the court shall be guided by the best interests of the child, giving consideration to the wishes of the child if he is of sufficient age and capable of forming an intelligent preference, provided in making the initial order the court may take into consideration the causes for dissolution of the marriage or legal separation." Pruett saw the ehild with her father on two occasions, and with her mother once. Each interview lasted between forty-five and fifty minutes. Pruett never saw the child in the company of both of her parents. Pruett supervised the administration of a development assessment for the child alone, which involved both interviews and observations of undisclosed length.

The plaintiff's petition for certification for appeal from the Superior Court in the judicial district of Fairfield at Bridgeport is denied by the court.

Cotter, C. J. The plaintiff which is a company engaged in the land development business including excavation work to prepare land for the construction of buildings brought suit to recover an amount due and owing for labor and materials provided in connection with the clearing and excavation of the defendants' property. From the judgment rendered in favor of the plaintiff the defendants have appealed. The defendants seek the deletion of twenty-six paragraphs of the finding on the ground that they were found without evidence and the addition to the finding of forty-one paragraphs of their draft finding claiming that the facts stated in those paragraphs are admitted or undisputed. The defendants' wholesale attack on the finding is to no avail. The facts sought to be deleted are amply supported by the evidence and hence must remain a part of the finding. Bond v. Benning, 175 Conn. 308, 309, 398 A.2d 1158. Also, to secure an addition to the finding, "it is necessary for an appellant to point to some part of the appendix, the pleadings, or an exhibit properly before us which discloses that the appellee admitted that the fact in question was true or that its truth was conceded to be undisputed." Cohen v. Holloways', Inc., 158 Conn. 395, 397, 260 A.2d 573; Martin v. Kavanewsky, 157 Conn. 514, 515, 255 A.2d 619. A fact is not admitted or undisputed merely because it has not been contradicted since the credibility of the witness is for the trier; McLaughlin v. Chicken Delight, Inc., 164 Conn. 317, 321 A.2d 456; Morrone v. Jose, 153 Conn. 275, 277, 216 A.2d 196; and with only three witnesses presented at the trial whose testimony was in dispute and contradicted, the determination of what actually transpired between the parties is peculiarly dependent on the credibility of the witnesses. The defendants fail to include any evidence in their appendix which establishes that the plaintiff admitted any of the facts sought to be added or that such facts were undisputed. Accordingly, the only permissible correction to the finding is the addition of seven paragraphs of the defendants' draft finding to which the plaintiff has stipulated. The finding, as corrected, discloses the following: The defendants, Norman and Theodora Alpert, engaged Joseph Twardy as their agent with the responsibility of preparing their then vacant property for the construction of their house. In his efforts to obtain price quotations for the excavation portion of the site preparation, in March, 1971, Twardy met on the property with Jerome Kovacs, who was then the construction supervisor and vice-president of the plaintiff E. Paul Kovacs & Co., Inc. At that meeting, without performing any tests to determine the rock composition of the property, Kovacs gave Twardy a copy of the plaintiff's price list for labor, machine time, and materials and stated that the plaintiff would prepare the site for construction by performing the necessary clearing and excavation work on a time and materials basis. In response to Twardy's request and based on his estimate that the site to be excavated was 50 percent earth and 50 percent rock, Kovacs, although unaware of the type of rock that was on the property, in a letter dated March 31,1971 and addressed to Twardy, provided an estimate of the total cost of the excavation job based on the price of labor and materials indicated in the price list shown to Twardy. Shortly thereafter, Twardy told Kovacs to commence with clearing and excavation. Initial earth removal began on April 14, 1971 and was completed in eighteen hours of work. For that work, the plaintiff billed Norman Alpert who paid the amount of the bill on or about May 29, 1971. The plaintiff began drilling and blasting oper ations on May 3, 1971. After five or six days of blasting, little progress was made and Kovacs informed Twardy that the cost of the excavation would be considerably higher than the amount originally estimated in the March 31 letter. Twardy, who was aware of the progress being made and of the hourly rates for the labor and machinery being used on the job, directed Kovacs to continue the excavation. The blasting and excavation continued until June 21, 1971, when Kovacs was told to cease work. Throughout the entire project the plaintiff's employees worked diligently under the supervision of Twardy. Of the work to be done listed in the March 31 letter, only three items, with an estimated cost of $3200, were actually performed. In its final bill dated July 1, 1971, the plaintiff requested payment for the outstanding balance of $14,635.81 which was based on the time and materials charges for the plaintiff's excavation work. The defendants' refusal to pay that bill precipitated the present lawsuit. On the basis of the foregoing facts, the trial court concluded that the defendants had entered into a contract with the plaintiff for the clearing and excavation of the defendants' property on a time and materials basis. It further found that the plaintiff was authorized to continue excavation even though it became apparent that the estimated cost would be exceeded. In accordance with the labor and materials price list shown to Twardy, the court awarded judgment in favor of the plaintiff in the amount of $14,635.81 plus interest. The defendants claim error in the conclusion of the trial court that a contract to provide labor and equipment on a time and materials basis existed between themselves and the plaintiff. The defendants contend that Twardy, who they concede was their agent with regard to the excavation of their property, lacked authority to enter into a time and materials contract on their behalf and they therefore could not be bound to the contract found to exist by the trial court. As a general rule, a principal may be bound to contracts executed by an agent if it is within the agent's authority to contract on behalf of that principal; see Hollywyle Assn., Inc. v. Hollister, 164 Conn. 389, 396, 324 A.2d 247; Cohen v. Holloways', Inc., supra; Cinque v. Orlando, 140 Conn. 591, 592, 102 A.2d 532; 3 Am. Jur. 2d, Agency § 312; Restatement (Second), Agency § 140,186; and the authority to enter into a specified contract includes the authority to make it in the usual form and with usual terms. See Restatement (Second), Agency § 51; 3 Am. Jur. 2d, Agency § 84. The defendants do not claim that Twardy lacked authority to enter into contracts with excavation contractors such as the plaintiff. Indeed, in a letter addressed to the plaintiff dated June 20,1971, Norman Alpert stated that the plaintiff was "authorized to proceed by Joseph Twardy." This letter in conjunction with the defendants' continued insistence that their maximum liability to the plaintiff is the estimated cost for the project indicates that Twardy in fact possessed express authority to enter into a contract with the plaintiff. The defendants assign error, however, in the trial court's failure to find that Twardy's authority was limited to contracts for a dollar amount not greater than that estimated in the March, 1971 letter. With such a limitation on his authority, the defendants argue, they could not be bound to the contract found by the trial court since that contract was in excess of Twardy's limited authority. See Conte v. Dwan Lincoln-Mercury, Inc., 172 Conn. 112, 125, 374 A.2d 144. The nature and extent of an agent's authority is a question of fact for the trier where the evidence is conflicting or where there are several reasonable inferences which can be drawn. West Haven v. United States Fidelity & Guaranty Co., 174 Conn. 392, 395-96, 389 A.2d 741. As indicated above, since the issues of fact in this case depend on the credibility of the witnesses, and, inasmuch as the defendants do not indicate that the plaintiff concedes the issue, we cannot say that the trial court erred in failing to find a limitation on Twardy's authority. Where the defendants' conduct held Twardy out as possessing sufficient authority to enter into the course of dealing in issue, or knowingly permitted him to conduct himself as having such authority, and as a result thereof the plaintiff dealing with Twardy, acting in good faith, reasonably believed under the facts that he had the necessary authority, the court's conclusion was warranted on the basis of the subordinate facts found. See also Nowak v. Capitol Motors, Inc., 158 Conn. 65, 69, 71, 255 A.2d 845. The defendants also assign error in the admission of several bills and invoices as business entries under § 52-180 of the General Statutes. These records consisted of seven biweekly statements indicating the outstanding balance for work performed by the plaintiff which were sent to the defendants and ten invoices showing the dates, type of equipment and number of hours, the hourly rate and the charges for the equipment used on the job. Jerome Kovacs testified that as the vice-president of the company at the time the records were made, he was familiar with the records, that the records were made in the regular course of business, and, that it was the regular course of business for the plaintiff to make those records. When the records were offered, the defendant objected to their admission on the ground that the witness was not the bookkeeper at the time the records were made and that it was not his duty to keep those bills in the regular course of business. Section 52-180 provides in part that a "record shall not be rendered inadmissible by (1) a party's failure to produce as witnesses the person or persons who made the writing or record, or who have personal knowledge of the act, transaction, occurrence or event recorded . . . The court therefore did not err in overruling the defendants' objection and admitting the records. See State v. Palozie, 165 Conn. 288, 294, 334 A.2d 468; Jacobson Electric Co. v. Rome Fastener Corporation, 156 Conn. 55, 60, 238 A.2d 415. The defendants' final claim concerns the award of interest commencing thirty days after the final bill was sent to them. The defendants assert that such an award is improper in this case since the amount in question was not ascertainable at that time. The determination whether interest is a proper element of damages is one to be made in view of the demands of justice and not through the application of any arbitrary rules. Scribner v. O'Brien, Inc., 169 Conn. 389, 405-406, 363 A.2d 160. If the detention of money is wrongful under the circumstances, the award of interest is a proper element of damages. Marcus v. Marcus, 175 Conn. 138, 146, 394 A.2d 727; Cecio Bros., Inc. v. Feldmann, 161 Conn. 265, 275, 287 A.2d 374. "Whether a sum in certain circumstances has been liquidated may, of course, be a useful although not necessarily controlling criterion. Capitol City Lumber Co. v. Sudarsky, 95 Conn. 336, 340-41, 111 A. 349; 22 Am. Jur. 2d 256, 263, Damages § 179, 185; cf. Loomis v. Gillett, 75 Conn. 298, 300-1, 53 A. 581. The allowance of interest as an element of damages is, thus, primarily an equitable determination and a matter lying within the discretion of the trial court." Bertozzi v. McCarthy, 164 Conn. 463, 467, 323 A.2d 553. At all times during the excavation, the defendants, through their agent, were aware both of the progress and the cost of the work; see West Haven v. United States Fidelity & Guaranty Co., supra; Derby v. Connecticut Light & Power Co., 167 Conn. 136, 142, 355 A.2d 244, cert denied, 421 U.S. 931, 95 S. Ct. 1659, 44 L. Ed. 2d 88; and allowed the excavation to continue to a cost in excess of the estimate. It is clear that upon the receipt of the final bill in July, the defendants became aware of the amount in controversy and the trial court concluded that the failure to pay that invoice was wrongful. Under the circumstances of this case, it cannot be said that the trial court abused its discretion in awarding interest to the plaintiff. See also Cecio Bros., Inc. v. Feldmann, supra. There is no error. In this opinion the other judges concurred. The defendants assert two additional arguments to support their claim of error in the admission of those records. These objections were raised for the first time on appeal and therefore are not properly presented to this court. State v. Jeustiniano, 172 Conn. 275, 279, 374 A.2d 209; State v. Malley, 167 Conn. 379, 355 A.2d 292.

Arthur H. Healey, J. The six individual plaintiffs, as citizens of this state, brought this action, pursuant to General Statutes § ISa-lOS, seeking to have the court order the defendant city of Bridgeport to pave and maintain properly Serpentine Road as a public highway in that city. The trial court found that Serpentine Road was not a public highway and therefore denied the relief sought under § 13a-103. Prom the judgment rendered, the plaintiffs have appealed to this court. The trial court based its decision on the following relevant facts: According to the map placed in evidence by the plaintiffs, Serpentine Road runs between the intersection of Anton Drive and Oxbridge Road and the terminus of Palmetto Road. Only approximately 300 feet of this road, from the intersection of Anton Drive and Oxbridge Road, is paved, however. The pavement ends abruptly and is followed by ground in its natural state, not staked or worn by traverse or otherwise distinguishable from the natural area adjoining it. The map discloses that from the paved portion, "Serpentine Road" exists only as a right-of-way for approximately 550 feet. There are four homes located on four lots adjacent to the paved portion of the road. The president of the plaintiff corporation saw, on one occasion some years ago, city equipment oil and sand the paved portion of the road, and he has also observed city equipment plowing the paved portion during the winter months. Private cars and delivery and service vehicles use the paved portion of Serpentine Road. A storm drain was installed on the undeveloped portion of Serpentine Road immediately adjacent to Palmetto Road for the purpose of draining water running off Palmetto Road to a nearby brook. An easement was acquired by the city to install this storm drain. The city of Bridgeport has not assessed property taxes upon the property known as Serpentine Road. On appeal the plaintiffs claim that the trial court erred: (1) in ruling that the plaintiffs were not entitled to maintain an action under General Statutes § 13a-103 because they did not own property abutting the street in question; (2) in ruling that the plaintiffs were not entitled to relief under § 13a-103 because Serpentine Road had not been formally accepted by the defendant city; and (3) in failing to conclude that common-law principles of dedication as applied to the facts of this case established, as a matter of law, that Serpentine Road is a public highway. The first two claims merit little discussion. It is clear from the record that the trial court did not, as the plaintiffs claim, deny the relief requested in their complaint on the ground that they were not owners of property abutting the street in question. The court denied the relief sought on the basis of its conclusion that Serpentine Road is not a public highway as required by § 13a-103. Likewise, the plaintiffs' claim that the trial court committed error in ruling that they were not entitled to relief under § 13a-103 because Serpentine Road had not been formally accepted by the city is without merit. The court did not so rule. Although the court acknowledged that there was no evidence that Serpentine Road "had ever been formally dedicated [or] formally accepted by the City of Bridgeport," a fact which the parties agreed was not in issue, the court then considered the plaintiffs' claim that the city had "accepted Serpentine Road as a city road by implication from its acts and from usage by the general public." The trial court's memorandum of decision clearly discloses that the court recognized that this claim invoked the common-law principles of dedication of highways and it applied those principles to the evidence in concluding that the plaintiffs were not entitled to relief under § 13a-103. We now turn to the plaintiffs' claim that the court was required, as a matter of law, to conclude on the facts of this case that this road was a public highway. "Dedication is an appropriation of land to some public use, made by the owner of the fee, and accepted for such use by and in behalf of the public." Whippoorwill Crest Co. v. Stratford, 145 Conn. 268, 271, 141 A.2d 241 (1958); see Crescent Beach Assn. v. East Lyme, 170 Conn. 66, 71, 363 A.2d 1045 (1976); Wamphassuc Point Property Owners Assn. v. Public Utilities Commission, 154 Conn. 674, 680-81, 228 A.2d 513 (1967); 23 Am. Jur. 2d, Dedication § 1. As we recently said in Meshberg v. Bridgeport City Trust Co., 180 Conn. 274, 279, 429 A.2d 865 (1980), "two elements are essential to a valid dedication: (1) a manifested intent by the owner to dedicate the land involved for the nse of the public; and (2) an acceptance by the proper authorities or by the general public." See DiCioccio v. Wethersfield, 146 Conn. 474, 479, 152 A.2d 308 (1959); Johnson v. Watertown, 131 Conn. 84, 89, 38 A.2d 1 (1944). Under common-law principles of dedication, "the intention to dedicate the way to public use may be implied from the acts and conduct of the owner, and public acceptance may be shown by proof of the actual use of the way by the public." Wamphassuc Point Property Owners Assn. v. Public Utilities Commission, supra, 681. Similarly, acceptance by the municipality may be accomplished through formal proceedings; see General Statutes § 13a-48; or, by implication, through its conduct. Meshberg v. Bridgeport City Trust Co., supra; DiCioccio v. Wethersfield, supra, 479; 11 McQuillin, Municipal Corporations (3d Ed. Rev.) § 33.48. Because it is conceded that Serpentine Road was neither expressly dedicated to a public use nor formally accepted for that use by the municipality, we must determine whether the court was justified in concluding that Serpentine Road is not a public highway based upon the common-law principle of implied dedication and acceptance. Dedication An implied dedication may arise by operation of law where the conduct of a property owner unequivocally manifests his intention to devote his property to a public use; but no presumption of an intent to dedicate arises unless it is clearly shown by the owner's acts and declarations, the only reasonable explanation of which is that a dedication was intended. Mihalczo v. Woodmont, 175 Conn. 535, 542, 400 A.2d 270 (1978); see LaChappelle v. Jewett City, 121 Conn. 381, 386, 185 A. 175 (1936); 11 McQuillin, Municipal Corporations (3d Ed. Rev.) § 33.37. Absent such unequivocal conduct, the existence of an intent to dedicate is a question of fact. Lynch v. West Hartford, 167 Conn. 67, 78, 355 A.2d 42 (1974); Whippoorwill Crest Co. v. Stratford, supra, 272. From the facts contained in the court's decision, it is clear that a presumption of intent to dedicate arose with respect to that portion of Serpentine Road that is paved. The existence of homes along the paved road, the open and continuous use by the public of that portion of Serpentine Road, and the absence of evidence of private control of the road supports but one conclusion: the intention to dedicate that portion of Serpentine Road arises by operation of law. See Mihalczo v. Woodmont, supra, 542; McQuillin, op. cit., § 33.30, 33.31, 33.37. The trial court, therefore, erred in its conclusion that no dedication had been proved with regard to the paved portion of Serpentine Road. There is an absence of facts sufficient to support a conclusion that the unpaved portion of Serpentine Road had been dedicated and the trial court's conclusion on that point will not be disturbed. Acceptance As we pointed out in Meshberg v. Bridgeport City Trust Co., supra, common-law acceptance of property dedicated to the public for a public way may be established by the public's actual use of the property or by the actions of the municipality. Id. The plaintiffs' claim requires us to determine whether, as a matter of law, acceptance was established from the facts relied upon by the trial court. The public's use of the property "must continue over a significant period of time; 11 McQuillin, Municipal Corporations (3d Ed. Rev.) § 33.50; and be of such a character as to justify a conclusion that the way is 'of common convenience and necessity.' " Meshberg v. Bridgeport City Trust Co., supra; see Kenneson v. Bridgeport, 130 Conn. 298, 300-301, 33 A.2d 313 (1943). The municipal actions that may constitute acceptance include grading, paving, maintaining and improving a street, as well as removing snow from it; the street's exemption from taxation may also be significant. Meshberg v. Bridgeport City Trust Co., supra; see 23 Am. Jur. 2d, Dedication § 78. The combination of facts supporting common-law acceptance by the public and the municipality are so compelling with respect to the paved portion of Serpentine Road that we conclude that acceptance of that portion has been established as a matter of law. The public's continued use of this road for at least five years, coupled with the fact that the street is not only of common convenience to the residents of the homes alongside it and to their guests, but a necessary access route to those homes, require a conclusion that the public has accepted the street by actual use. Moreover, the municipality's action to repair and maintain the paved road, remove snow from it, and exempt it from property taxation buttresses our conclusion of acceptance. Once again, the same cannot be said with reference to the undeveloped portion of Serpentine Road, which is devoid of public use and municipal improvement. We are not in this case faced with the proposition that acceptance of part of a street by the municipality for a public use constitutes constructive acceptance of the entire street; see Johnson v. Watertown, 131 Conn. 84, 90-92, 38 A.2d 1 (1944); Hall v. Meriden, 48 Conn. 416, 429-31 (1880); Derby v. Alling, 40 Conn. 410, 435 (1873); because, as we have indicated, there was no basis for a conclusion that the undeveloped portion of Serpentine Road was ever expressly or impliedly dedicated to a public use. There can be no acceptance by a municipality where there has been no dedication. Moreover, where implied acceptance is concerned, we have said that "if the actions of the public, or of municipal officers for that matter, 'are such as to show an intention to accept all rather than a part they will be construed as having that effect, but . . . acceptance of a part is not necessarily an acceptance of all.' " Meshberg v. Bridgeport City Trust Co., supra, quoting 11 McQuillin, Municipal Corporations (3d Ed. Rev.) § 33.57. Therefore, even if an intention to dedicate the undeveloped portion of Serpentine Road could be presumed, the actions of the municipality and the public clearly evince an intention only to accept the paved portion of that road. Cf. Johnson v. Watertown, supra, 91. The trial court erred in its conclusion that there was no dedication or acceptance of the paved portion of Serpentine Road. That error is harmless, however, as it does not affect the disposition of the case. The plaintiffs sought to have the trial court order the defendant city to maintain and improve a public highway pursuant to General Statutes § 13a-103. The trial court correctly concluded that the unimproved portion of Serpentine Road is not a public highway. Hence, no municipal duty arises with respect to it. Waterford v. Cone, 148 Conn. 113, 114, 167 A.2d 854 (1961). Although the trial court incorrectly concluded that the paved portion of Serpentine Road is not a public highway, there was no evidence that the paved portion of the road is in need of repair or improvement of any kind. The president of the plaintiff corporation so testified. Thus, the plaintiffs were not entitled to relief under General Statutes § 13a-103. The trial court's judgment will be affirmed, though based on erroneous grounds, if the same result is required by law. Reinke v. Greenwich Hospital Assn., 175 Conn. 24, 29-30, 392 A.2d 966 (1978); Morris v. Costa, 174 Conn. 592, 597-98, 392 A.2d 468 (1978); Maltbie, Conn. App. Proc. § 36. There is no error. In this opinion the other judges concurred. General Statutes § 13a-103 provides in relevant part: "Whenever any town fails to keep any highway within such town in good and sufficient repair or whenever the selectmen of any town fail to remove or cause to be removed any encroachments upon any highway in such town or to make such alterations or improvements therein as may be required by common convenience or necessity, the superior court for the judicial district in which such highway is located, upon the written complaint of six or more citizens of this state under oath, after due inquiry made by it, shall appoint a time and place when and where all persons interested may appear and be heard upon the propriety of such repairs, or of the removal of such encroachments, or of the making of such alterations and improvements, and shall give notice thereof to the first selectman of such town and to the person or persons maintaining such encroachments by causing a true and attested copy of such complaint . If the court finds that such highway should be repaired or that such encroachments should be removed or that such alterations and improvements should be made, it shall order the selectmen of such town to cause such highway to be repaired and such encroachments to be removed and such alterations and improvements to be made, and shall prescribe the manner and extent of such repairs and of the removal of such encroachments and of the making of such alterations and improvements and the time within which the work shall be done, and may, for reasonable cause, extend such time."

Spallone, J. The defendant pleaded guilty to four criminal charges contained in three separate informations. A judgment of conviction was rendered in each case, and the defendant has filed a separate appeal from each judgment. Because the issues in each appeal are identical, we have ordered, suo motu, that the appeals be combined. Accordingly, this opinion is applicable to all three appeals. On March 29,1985, the defendant was sentenced by the trial court following his pleas of guilty to reckless endangerment in the second degree in violation of General Statutes § 53a-64, larceny in the third degree in violation of General Statutes § 53a-124, forgery in the third degree in violation of General Statutes § 53a-140, and forgery in the second degree in violation of General Statutes § 53a-139. He was sentenced to a total effective term of three years, suspended after eighteen months, with three years probation thereafter. On April 17,1985, new counsel for the defendant filed motions for a new trial and to correct an illegal sentence in each case. These were denied by the court after it disallowed the defendant's request for an evidentiary hearing on the motions. On appeal, the defendant claims error in the court's denial of his motions. At the outset, two factors are immediately apparent. First, the motion for a new trial was untimely, having been filed far after the five days specified in Practice Book § 903. Second, both motions, no matter how they are couched, raise the claim of ineffective assistance of counsel. We will not review the defendant's claim of ineffective assistance of counsel. We heed our Supreme Court's admonition that habeas corpus proceedings rather than direct appeals are best suited to test the performance of counsel, including those claims arguably supported by the record as well as those requiring an evidentiary hearing. State v. Leecan, 198 Conn. 517, 541, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986); State v. Colon, 8 Conn. App. 111, 112-13, 510 A.2d 1023 (1986); State v. Aspinall, 6 Conn. App. 546, 554-55, 506 A.2d 1063 (1986). The defendant argues that the trial court's failure to provide the defendant with an evidentiary hearing constitutes an abuse of the trial court's discretion and that had the court conducted such a hearing, it would have satisfied the Leecan pronouncement that "all claims of ineffective assistance . be evaluated by the same trier in the same proceeding." We disagree. Initially, we note that a trial court's procedure in acting on motions is not a substitute for a habeas corpus proceeding. All matters concerned with the alleged illegal confinement of the petitioner in habeas corpus, including the conduct of the trial judge, are subjects of a habeas hearing. In that the granting of a motion for a new trial is wholly discretionary; State v. Asherman, 193 Conn. 695, 735, 478 A.2d 227 (1984) cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985); the trial court's ruling on a motion for a new trial should stand unless it is shown that the court abused its discretion. Kubeck v. Foremost Foods Co., 190 Conn. 667, 669-70, 461 A.2d 1380 (1983). The defendant has failed to demonstrate such abuse. The trial court's action in denying the defendant's motions to correct an illegal sentence and its failure to afford the defendant an evidentiary hearing with regard to such motions also reflect the exercise of the court's discretionary power. The judge who ruled on the motions in this case also sentenced the defendant after she conducted a canvass of at least part of the defendant's guilty pleas. Nothing elicited at the canvass supports the defendant's later allegations, by affidavit, that he was subject to certain misrepresentations by counsel which induced him to enter his guilty pleas. The trial court was confronted with the fact that the position taken by the defendant during his canvass was contrary to that expressed in the allegations contained in his affidavit. The court performed its function of resolving the conflicting stances assumed by the defendant and in the exercise of its discretion, based on the facts and circumstances of the case as presented at the hearing on the motions, denied such motions. There is no error. In this opinion the other judges concurred. Practice Book § 903 provides: "Unless otherwise permitted by the judicial authority in the interests of justice, a motion for a new trial shall be made within five days after a verdict or finding of guilty or within any further time the judicial authority allows during the five-day period."

Borden, J. The defendant appeals from his conviction, after a trial to the court, on two informations, each charging the infraction of creating a public disturbance in violation of General Statutes § 53a-181a. The two charges arose out of incidents occurring on separate days, June 14,1985, and June 15,1985, respectively. The defendant claims that the trial court erred (1) in denying his motion for judgment of acquittal on both counts, (2) in failing to advise him of his constitutional right not to testify, (3) in basing his convictions on constitutionally protected speech, (4) in allowing the state to file a substitute information on the day of trial, (5) in denying his motion for mistrial, and (6) in denying him a jury trial pursuant to General Statutes (Rev. to 1985) § 54-82b (a). We find error in part. I The defendant's first claim is that the trial court should have granted his motion for judgment of acquittal on both informations. We agree in part, and hold that the evidence was insufficient to support a guilty verdict with respect to the incident on June 15, 1985. The defendant was charged with violating subdivisions (1), (2) and (3) of General Statutes § 53a-181a (a). That statute provides: "A person is guilty of creating a public disturbance when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he (1) engages in fighting or in violent, tumultuous or threatening behavior; or (2) annoys or interferes with another person by offensive conduct; or (3) makes unreasonable noise." The trial court concluded that the defendant violated subdivisions (1) and (2) of the statute on both dates in question. Our standard of review of the conclusions of the trier of fact, whether it be a judge or a jury, is limited. State v. Evans, 203 Conn. 212, 238, 523 A.2d 1306 (1987). We construe the evidence in the light most favorable to sustaining the verdict or judgment, and we will con firm the conclusion of the trier of fact if it is reasonably supported by the evidence and the logical inferences drawn therefrom. State v. Hanson, 12 Conn. App. 32, 38, 529 A.2d 720 (1987). The trier of fact in this case was the judge. Pursuant to Practice Book § 4059, the trial court rendered an oral memorandum of decision setting forth the factual basis of its decision. In the absence of a conclusion that a finding is clearly erroneous, we are bound by the court's findings. Practice Book § 4061. The trial court found the following background facts. Prior to 1984, the defendant and the complaining witness, Deborah Parmalee, lived together and had a child, Kevin, who was bom in 1979. In 1983 or early 1984, the relationship ended, and a custody proceeding ensued which was ongoing at the time of the two incidents in question. The trial court found that during the period when the defendant and Parmalee were living together, Parmalee was "constantly terrified" of the defendant. The court found support for this conclusion in the "disparity in physical size between the two individuals— the defendant being a robust, well built male, and the complainant witness being a somewhat frail and tiny female." As to the incidents at issue, the court found that on June 14,1985, at about 9:45 p.m., Parmalee and Kevin were returning to their home by car when the defendant "accosted" them. According to the oral memorandum of decision, the following occurred: "[T]he [complainant's] car apparently was stopped, but [the defendant] leaned up against the car, had been — had a strong odor of alcohol on his breath, was yelling at the complain ing witness, had his face up close to her. She became annoyed by this, in the light of the previous history of the tumultuous relationship [between the two], became very frightened." The trial court further found that the defendant intended to interfere and annoy, and that as a result, both Parmalee and Kevin suffered from "apprehensive fear and a state of fright." The court concluded that the defendant "[intended] to cause annoyance to the complaining witness . . . and . . . engaged in violent and threatening behavior, and also that he annoyed the complaining witness by offensive conduct." (Emphasis added.) By its finding, therefore, the court concluded that the defendant violated the first two subdivisions of General Statutes § 53a-181a (a). With respect to the second count, the court found that on the following day, June 15, as Parmalee and Kevin were leaving Friendly's Restaurant, they were once again "accosted" by the defendant. Parmalee and Kevin were getting into the car, when the defendant, who had just arrived at Friendly's, approached the car and called to the child. The court found that "the child was very much disturbed. It caused him to run into the car and do a back-flip into the back seat, so as to get away from the father." (Emphasis added.) Moreover, it concluded that Parmalee was "substantially frightened" and that the defendant's conduct created in Parmalee and Kevin "apprehensive fear and a state of fright." The court concluded that the defendant intended, to annoy and alarm the child and Parmalee by offensive conduct, especially in light of the incident of the prior evening and the history of their relationship. Additionally, the court concluded that the defendant engaged in "violent and threatening behavior." By its finding, once again, the court concluded that the defendant violated the first two subdivisions of General Statutes § 53a-181a (a). On the basis of our thorough review of the testimony in this case, we conclude that two specific factual findings of the court are clearly erroneous because they are unsupported by the evidence. See generally Buddenhagen v. Luque, 10 Conn. App. 41, 521 A.2d 221 (1987). First, there is no evidence to support the trial court's finding that Parmalee was "constantly terrified" by the defendant. The bare fact that the defendant is larger than Parmalee is insufficient evidence to support such a conclusion. Second, the trial court's conclusion that Kevin, in reacting to the defendant's presence at Friendly's, was placed into "apprehensive fear and a state of fright," was "disturbed" and did "aback flip . . . to get away from his father," is also unsupported by the evidence. The only evidence on this matter was presented by Kevin himself, who was called as a defense witness. He testified that he "flipped" into the back seat because he was "startled" to see his father, since he did not expect him to be at Friendly's. There is no evidence to support a conclusion that the child feared the defendant in any way and was trying to get away from him. Nor is there any evidence to support a conclusion that Kevin was "annoyed" by the defendant. Before turning to the issue at hand, we must recognize a constitutional limitation on the application of General Statutes § 53a-181a. By the broad language chosen by the legislature, the statute is intended to proscribe a wide range of human conduct which otherwise could not be prohibited by precise statutory language. It has been recognized that criminal statutes of this sort must be "scrutinized with particular care" since they may "make unlawful a substantial amount of constitutionally protected conduct," including speech. Houston v. Hill, 482 U.S. 451, 107 S. Ct. 2502, 2508, 96 L. Ed. 2d 398 (1987). In Chaplinsky v. New Hampshire, 315 U.S. 568, 573, 62 S. Ct. 766, 86 L. Ed. 1031 (1942), the United States Supreme Court held that when words are claimed to offend a statute, only those "having a direct tendency to cause acts of violence by the persons" to whom they are addressed may be proscribed. "[Flighting words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace" are not protected by the first amendment. Id., 572. This limiting doctrine has been applied in Connecticut to a number of statutes. See State v. Beckenbach, 1 Conn. App. 669, 476 A.2d 591 (1984), rev'd on other grounds, 198 Conn. 43, 501 A.2d 752 (1985) ("Fighting words" limitation applied to that portion of breach of the peace statute; General Statutes § 53a-181; which proscribes abusive language); State v. Anonymous (1978-4), 34 Conn. Sup. 689, 695, 389 A.2d 1270 (1978) ("Fighting words" limitation applied to subdivision (2) of disorderly conduct statute; General Statutes § 53a-182; which prohibits "offensive or disorderly conduct"); see also State v. Duhan, 194 Conn. 347, 357 n.2, 481 A.2d 48 (1984). With these constitutional considerations in mind, we turn to the issue at hand, namely, whether the defendant's conduct as found by the trial court, but excluding the findings we have determined to be clearly erroneous, reasonably supports a conclusion that the defendant created a public disturbance on both occasions in question. With respect to the incident on June 14, 1985, we conclude that the evidence was sufficient to support the trial court's determination that the defendant, with intent to cause annoyance and alarm, did annoy Parmalee by offensive conduct in violation of subdivision (2) of General Statutes § 53a-181a. "Offensive conduct" is not defined in the statute, and upon a review of Connecticut case law, we have discovered only one case that discusses the term. In State v. Anonymous (1978-4), supra, the Appellate Session of the Superior Court held that any definition of "offensive conduct" must incorporate the fighting words limitation of Chaplinsky v. New Hampshire, supra, to the extent that the conduct punished is speech. The instructions to the jury in State v. Anonymous (1978-4), supra, 694-95, were incomplete because they did not include the limiting language. Despite this omission, the court noted "evident care" in the framing of the charge which defined offensive conduct as "conduct which under contemporary community standards is so grossly offen sive to a person who actually overhears it or sees it as to amount to a nuisance." Id., 692; see also D. Wright, Connecticut Jury Instructions (2d Ed.) § 882. We agree with and adopt this definition of offensive conduct. There was evidence that the defendant went up to Parmalee's car, placed his hands on the window, leaned his head into the car and into Parmalee's face, and proceeded to yell at her for one and one-half to two minutes, despite her repeated requests that he stop. Parmalee was frightened by the defendant because he appeared to have been drinking heavily and was very excitable, angry and upset. The transcript reveals further that Parmalee became alarmed, rolled up her window, drove away and parked her car, grabbed her son, Kevin, and rushed into her apartment, leaving the groceries she had bought in the car. We conclude that the trial court could reasonably have found such conduct to be offensive in that it was "under contemporary community standards . so grossly offensive to [Parmalee] . as to amount to a nuisance." Moreover, the trial court could reasonably have concluded that the defendant intended to cause annoyance or alarm and that Parmalee was so annoyed. In reaching this conclusion, we are mindful of the fighting words limitation; Chaplinsky v. New Hampshire, supra; and emphasize that it was the defendant's conduct in this case, and not his speech, which serves as the basis for our conclusion that the evidence supported the verdict. Turning to the incident on June 15,1985, we conclude that the evidence was insufficient to support the court's determination of guilt. With respect to the court's finding that the defendant engaged in "offensive conduct," we can find no evidence that would support this conclusion. The defendant merely approached the complainant's car while she was at Friendly's and called Kevin to come to him. This conduct neither constitutes "fighting words," nor can it be reasonably viewed as "so grossly offensive . as to amount to a nuisance." While Parmalee may in fact have been frightened by the defendant's conduct, this is not sufficient to support a conviction when the defendant's conduct does not reach the requisite level. Nor do we find evidence to support the trial court's conclusion that the defendant violated subdivision (1) of General Statutes § 53a-181a (a) by engaging in violent or threatening behavior. These terms are neither defined in the statute, nor have they been subject to construction by decisional law. We may, therefore, look to the common understanding of the words as expressed by their dictionary meaning. Metropolitan District v. Barkhamsted, 3 Conn. App. 53, 72, 485 A.2d 1311 (1984). "Violent" is defined as "characterized by extreme force" and "furious or vehement to the point of being improper, unjust, or illegal." Webster, Third New International Dictionary. "Threatening" is defined as a "promise [of] punishment" or, "to give signs of the approach of (something evil or unpleasant)." Id. When two or more words are grouped together, it is possible to ascertain the meaning of a particular word by reference to its relationship with other associated words and phrases under the doctrine of noscitur a sociis. See 2A J. Sutherland, Statutory Construction (4th Ed. Sands) § 47-16; see also State v. Roque, 190 Conn. 143, 152, 460 A.2d 26 (1983); State v. Duhan, 38 Conn. Sup. 665, 668, 460 A.2d 496 (1982). Placed within the context of the other words in the statute, the word "threatening" takes on a more ominous tone. The statute proscribes "engaging in fighting or in violent, tumultuous, or threatening behavior." In State v. Duhan, supra, the Appellate Session of the Superior Court defined "tumultuous" as "riotous" and "turbulent." Fighting, by its plain meaning, involves physical force. We conclude that the language of subdivision (1) of General Statutes § 53a-181a (a) involved in this case, namely, "violent or threatening behavior," evinces a legislative intent to proscribe conduct which actually involves physical violence or portends imminent physical violence. This conclusion is consistent with the "fighting words" limitation; see Chaplinsky v. New Hampshire, supra, 573; which must be applied when the conduct sought to be proscribed consists purely of speech. Under such circumstances, the words spoken must have a direct tendency to inflict injury or to cause acts of violence or a breach of the peace by the persons to whom they are directed. See State v. Beckenbach, supra. We conclude that the defendant's conduct on June 15, 1985, when he walked toward the complainant's car while calling for his son to come to him, does not approach the level of violent or threatening behavior required by the statute. There was neither violence nor the threat thereof. II The defendant next claims that the trial court erred by failing to advise him, prior to taking the witness stand, of his constitutional right not to testify under the fifth amendment. We disagree. We first note that the defendant is not claiming that the trial court failed to follow the procedure of Practice Book § 961 for establishing a waiver of his constitutional right to counsel. See generally State v. Gethers, 193 Conn. 526, 532-40, 480 A.2d 435 (1984). Rather, the defendant's limited claim is that he, as a pro se defendant, was entitled to an advisement of his constitutional right not to testify prior to testifying. While we recognize that the defendant does have a constitutional right not to testify; Rock v. Arkansas, 483 U.S. 44, 107 S. Ct. 2704, 2709-10, 97 L. Ed. 2d 37 (1987); Malloy v. Hogan, 378 U.S. 1, 8, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964); and recognize that it is sound judicial practice to advise a pro se defendant of this right, we conclude that under the circumstances of this case it was not incumbent upon the court to inform the defendant of this constitutional right. We are unwilling to impose upon the trial court the burden of advising a pro se defendant of every constitutional right that may be implicated by a particular decision, strategy or course of conduct he chooses during a trial. While there may be extreme situations under which a duty arises to advise a pro se defendant of his right not to testify, this case does not present one of them. The defendant made the decision to take the witness stand on his own behalf, without any suggestion to do so by the court. Cf. State v. Agresta, 5 Conn. Cir. 242, 250 A.2d 246 (1968). Moreover, the record is clear that the defendant knew that he did not have to testify. In fact, the defendant was not only aware of his right not to testify; cf. Cochran v. State, 117 So. 2d 544, 547 (Fla. App. 1960); but acted upon it. He chose to testify concerning the events surrounding the June 15,1985 incident, and declined to testify to the events surrounding the June 14, 1985 incident. Ill The defendant next claims that the trial court improperly based its determination of guilt on constitutionally protected speech. We disagree. In our review of the sufficiency of the evidence on the first information, involving the June 14,1985 incident, we determined that the trial court's findings of fact reasonably supported its judgment. Those findings of fact included the following: The defendant placed his hands on the window of the complainant's car, leaned his head into the car and into her face, and yelled, very loudly and over repeated requests that he stop, for a period of one and one-half to two minutes. The trial court never made reference, in its memorandum of decision, to the content of the defendant's speech. It is clear, therefore, that its determination was based on the defendant's overall conduct, rather than the content of his speech. IV The defendant next raises five claims arising out of the trial court's decision to allow the state, on the day of trial, to substitute the two original informations, each of which charged the defendant with the misdemeanor offense of disorderly conduct; General Statutes § 53a-182; with two informations charging the defendant with the infraction of creating a public disturbance; General Statutes § 53a-181a. He claims that the trial court erred (1) in denying his motion to strike the substitute informations, (2) in denying his motion for a continuance, (3) in failing to put him to plea on the substitute informations, (4) in failing to advise him sua sponte of his right under General Statutes § 51-164n (b) to elect to pay a fine for an infraction, and (5) in failing to give him an opportunity to consult with counsel. These claims are without merit. A The defendant claims that the trial court abused its discretion in denying his motion to strike the substitute informations under Practice Book § 623. That rule provides, in relevant part, that "upon motion of the defendant, the judicial authority, in his discretion, may strike the . . . substitute information, if the . . . substantive rights of the defendant would be prejudiced." The defendant claims that his substantive right to a jury trial was prejudiced since, upon being charged with infractions, rather than class C misdemeanors; see General Statutes § 53a-182 and 53a-36 (3); he lost his statutory right to a jury trial. See State v. Weisser, 9 Conn. App. 255, 256-57, 518 A.2d 655, cert. denied, 202 Conn. 803, 519 A.2d 1207 (1986); see also General Statutes § 54-82b (a). We have recently held that the defendant has no right to a jury trial when he is charged with the infraction of creating a public disturbance. State v. Weisser, supra. The defendant's claim lacks merit. The infraction does not entitle the defendant to a jury trial because its maximum penalty is a fine of ninety dollars. General Statutes § 51-164n (f). The defendant loses no right to a jury trial simply because the state chooses to expose him to a risk of penalty which does not warrant a jury trial. The defendant also claims that his substantive right to notice was affected by the substitution of the informations on the day trial began. This claim is unfounded. The infraction of creating a public disturbance, in violation of General Statutes § 53a-181a, is virtually identical in terms to the first three subdivisions of disorderly conduct in violation of General Statutes § 53a-182. B The defendant next claims that the trial court erred in failing to grant his request for a continuance which, he claims, he needed in order to prepare to defend against the new charges. We disagree. A review of the record reveals that, although the defendant moved for a continuance, it was not because of any need to prepare his defense in light of the substitute informations. Rather, he requested it so that he could subpoena an officer as a witness. The court granted that request for a continuance to issue the subpoena. C The defendant next claims that the court lacked jurisdiction over him because, although he was put to plea on the first informations, he was never put to plea on the substitute informations. This claim is meritless. The record is barren of any suggestion that the defendant endeavored to change his plea to guilty or expressed a desire to waive his right to a trial prior to the rendering of a verdict. His original pleas applied with full force to the substitute informations. See State v. Piskorski, 177 Conn. 677, 748, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979); State v. Jones, 166 Conn. 620, 628-29, 353 A.2d 764 (1974); State v. Lorusso, 151 Conn. 189, 191, 195 A.2d 429 (1963). D The defendant next claims that his convictions should be set aside because the trial court failed to advise him of his right, under General Statutes § 51-164n (b), to elect "to pay the fine . . . for the infraction . . . [where] [s]uch payment shall be considered a plea of nolo contendere and shall be inadmissible in any proceeding, civil or criminal." The defendant cites no sup port for the proposition that the trial court has a duty to advise a pro se defendant of such a matter, nor have we discovered any. When a defendant elects to proceed without the benefit of counsel, he takes the risk that because of his inexperience and lack of knowledge, he will suffer disadvantages to which, with proper representation, he would not be subject. Furthermore, it is clear that the pro se defendant was not disadvantaged by his lack of knowledge of the law. There is absolutely nothing in this record to indicate that the defendant would have elected to pay a fíne rather than proceed to trial. Indeed, it is clear that he intended to exercise his right to a trial and, in fact, repeatedly asserted his desire for a jury trial. E The defendant also claims that the trial court erred in failing to give him an opportunity to consult with an attorney when the substitute informations were filed. The defendant, however, did not request such an opportunity. Nor do the facts of this case suggest that the court should have done so sua sponte. Y The defendant next claims that the trial court erred in denying his motion for a mistrial which he filed on the basis of the court's improper restriction of his attempt, on cross-examination of Parmalee, to elicit testimony of motive, bias, and interest. Specifically, the defendant claims that he was precluded from questioning Parmalee about the custody hearings between him and Parmalee that were being held at the time he was arrested; he claims that those hearings were the reason Parmalee pressed charges against him. The defendant also claims that as a result of the restriction on his cross-examination, he was forced to take the witness stand to provide this information to the court. We acknowledge that the opportunity to cross-examine a witness for bias, interest or motive is a constitutionally protected right. See State v. Cosby, 6 Conn. App. 164, 168, 504 A.2d 1071 (1986). "The ultimate question on a motion for mistrial is whether there was ' "substantial and irreparable prejudice to the defendant's case." Practice Book § 887. A mistrial is warranted "only where it is apparent to the court that as a result of some occurrence during trial a party has been deprived of the opportunity for a fair trial." ' State v. Jennings, 5 Conn. App. 500, 505, 500 A.2d 571 (1985). Such a motion invokes the court's wide discretion." State v. Kluttz, 9 Conn. App. 686, 705, 521 A.2d 178 (1987). The defendant did not suffer substantial and irreparable prejudice from the trial court's restriction of his cross-examination of Parmalee. Because the trial was to the court, the issue is whether the court, as the trier of fact, was deprived of information necessary to its decision that resulted in prejudice to the defendant. The record fails to reveal that this was the case. Parmalee testified on direct examination to the precise information which the defendant claims he was restricted from eliciting from her on cross-examination. She stated that, at the time of the incidents, she and the defendant were involved in "day to day hearings of our custody dispute." The defendant's claim that he was forced to take the witness stand to provide this information also fails. In fact, a review of the relevant portions of the defendant's testimony reveals that it was largely repetitive of Parmalee's testimony. Furthermore, the trial court, in its oral decision, specifically found that at the time of the incidents child custody proceedings were occurring. The court, therefore, was adequately informed of the potential for bias as it affected Parmalee's credibility. The court did not abuse its discretion in denying the defendant's motion for a mistrial. VI The defendant's final claim is that he was entitled to a jury trial pursuant to General Statutes (Rev. to 1985») § 54-82b (a), which provided for a jury trial "in criminal actions where the maximum penalty is a fine of ninety-nine dollars or a sentence of thirty days, or both." He argues that because he was fined a total of $150 on both informations, he falls within the statute. The defendant misconstrues the nature of his fine which, in fact, consisted of two separate $75 fines, totaling $150. The defendant's maximum exposure under General Statutes § 53a-181a, since it is an infraction, was a fine of "not less than thirty-five dollars and not more than ninety dollars." General Statutes § 51-164n (f). Therefore, at no time was the defendant exposed to a fine in excess of $99 on a separate criminal charge. There is error in part, the judgment of conviction on the second information is set aside and the case is remanded with direction to render a judgment of acquittal on the charge in that information. In this opinion the other judges concurred. The defendant appeared pro se in the trial court and on appeal. The information states that the date of the second incident was "6/15/86." This is clearly a typographical error. The defendant specifically requested the court to state the subdivisions of General Statutes § 53a-181a (a) that it found he had violated. The court complied and found that the defendant had violated subdivisions (1) and (2). It made no finding with respect to subdivision (3). We read this as a conclusion that the defendant did not violate that subdivision, and we therefore do not consider it further. The trial court did not, in its oral memorandum of decision, set forth the content of the defendant's speech. A review of the complainant's testimony, however, reveals the following: "Mr. Whalen: What was he saying? "Parmalee: Mr. Lo Sacco was yelling at me because he was saying that he had called my future husband's apartment earlier in the evening, and had asked to speak to Kevin, and had been told that Kevin was not there. And, I then started to explain to Mr. Lo Sacco that even though he had just seen us leaving from that apartment, we, in fact, had not been there very long, because Kevin and I had been grocery shopping, and that when he had been told that Kevin was not there, that was the truth. Mr. Lo Sacco said no, I know it's not the truth. You're a god damn liar. You've always been. You always will be. You never tell the truth about anything anyway, so — He just continued on. He wouldn't let me explain." The transcript states that there was "an attempt to cause annoyance." (Emphasis added.) We read this as a misinterpretation of the trial court's oral rendering which, in this context, must have been a statement that the defendant "intended to cause annoyance." The only evidence that could conceivably be the source of this finding of fact is the following colloquy: "Mr. Whalen: Now, at some point, during your relationship with Mr. Lo Sacco, did problems develop? "Parmalee: Yes. "Mr. Whalen: And, do you recall about when that took place? "Parmalee: October of 1983. "Mr. Whalen: And what was the nature of the problem? "Parmalee: Mr. Lo Sacco's abuse of me." This single reference to "abuse" in October, 1983, without further elaboration as to its meaning cannot reasonably be interpreted as evidence which supports a finding that Parmalee was "constantly terrified" by the defendant. Because we hold that the trial court could reasonably have concluded that the defendant intentionally annoyed Parmalee by offensive conduct, in violation of subdivision (2) of General Statutes § 53a-181a, we need not determine whether the evidence was sufficient to prove that the child, Kevin, also was so annoyed. Moreover, we need not decide whether the evidence was sufficient to support a conclusion that the defendant engaged in violent or threatening behavior in violation of subdivision (1) of the statute. Since we have concluded that there was insufficient evidence to support the judgment with respect to the second conviction, that judgment must be set aside. The remaining claims of error, therefore, will be discussed only insofar as they bear on the defendant's conviction under the first information. During the defendant's testimony, the court sought to elicit some information and the defendant responded as follows: "First of all, I have the right not to testify about the events of June 14,1985 . I had advised the state's attorney that I do not intend to testify about the June 14th, and I would object to the court compelling me to testify about the June 14,1985." General Statutes § 53a-182 provides in relevant part: "(a) A person is guilty of disorderly conduct when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: (1) Engages in fighting or in violent, tumultuous or threatening behavior; or (2) by offensive or disorderly conduct, annoys or interferes with another person; or (3) makes unreasonable noise. . . ." General Statutes § 53a-181a is identical except that subdivision (2) proscribes only offensive conduct, and not disorderly conduct. The defendant also claimed, in his motion for a mistrial, that the court's restriction affected his ability to question Parmalee on her ability to ignore momentary, trivial or inconsequential annoyances. The defendant did not argue this to the court at the time of its ruling, and since we do not consider it to implicate a fundamental constitutional right; State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973); we decline to review this claim further. General Statutes (Rev. to 1985) § 54-82b (a) has been amended effective October 1,1986, by Public Acts 1986, No. 86-227. It now provides that "[tjhere is no right to trial by jury in criminal actions where the maximum penalty is a fine of one hundred ninety-nine dollars or a sentence of thirty days, or both."

Daly, J. The defendant appeals from the judgment of conviction, after a jury trial, of manslaughter in the second degree with a motor vehicle while intoxicated in violation of General Statutes § 53a-56b. The defendant claims that the trial court erred (1) in its instruction to the jury concerning the elements of the crime and the state's burden of proof, (2) in an evidentiary ruling excluding the admission of a past recollection recorded, and (3) in improperly cross-examining the defendant's expert witness thereby depriving the defendant of a fair trial. We find no error. The jury could reasonably have found the following facts. On November 1,1984, at 3 p.m., after concluding his work day,, the defendant commenced drinking brandy with a fellow employee in their employer's parking lot in Norwich. The defendant then drove the fellow employee to the Lincoln Inn where each consumed three small glasses of beer. At approximately 4 p.m., the defendant drove his van back to the employer's parking lot, and dropped off his fellow employee. The defendant then proceeded to a gas station. He left the gas station at about 5 p.m. and headed home, proceeding east on Route 2. The automobile ahead of the defendant pulled over to the right hand side of the east bound lane to allow him to pass. The defendant then proceeded to overtake and pass the automobile while travelling at a speed between sixty and seventy miles per hour in the west bound lane. The defendant then collided with an oncoming vehicle in the west bound lane. After the impact, both vehicles came to rest in the east bound lane. The operator of the vehicle with which the defendant collided was pronounced dead on arrival at the hospital to which he was transported. Due to an odor of alcohol detected by the attending physi cian, a blood sample was extracted from the unconscious defendant by the attending physician. The blood sample, upon testing, was detected to have a blood alcohol content of .234 percent. Empty beer bottles were found in the defendant's van at the scene of the accident. Two eyewitnesses testifying for the state placed the point of impact of the two vehicles in the west bound lane, while the defendant's accident reconstruction expert's opinion was that the accident had occurred in the east bound lane. Oil spots and a gouge mark at the scene were considered by him in formulating his opinion. The chief state toxicologist also analyzed the blood sample taken at the hospital after the accident and found it to have a .18 percent alcohol content, and extrapolated that to a blood alcohol content of .21 percent at the time of the accident. A guilty verdict was returned by the jury, and the defendant appeals from the judgment of conviction. The defendant's first claim is that the trial court erred in its charge to the jury by effectively shifting the burden of proof on the element of intoxication to the defendant. This shifting was effectuated, the defend ant claims, by the court's charging the jury that "there isn't too much doubt about the intoxication, for all intents and purposes, that has been acknowledged," and allowing the jury to find "that the defendant is under the influence of liquor unless other countervailing evidence is offered to show that he was in control of his faculties." The defendant did not object to this charge at trial, yet he now requests review under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). The defendant's claim of error on the burden of proof of an essential element of the crime charged implicates his fundamental constitutional rights, thus he has passed the first hurdle for Evans review. State v. Whelan, 200 Conn. 743, 756-57, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986); State v. Thurman, 10 Conn. App. 302, 306, 523 A.2d 891 (1987). Our limited review of the record in this case, however, leads us to reject the contention that the defendant's claim is truly of constitutional proportions. State v. Thurman, supra. The record reveals that in this case the element of intoxication was not disputed by the defendant during the course of the trial. What the defendant attempted to demonstrate to the jury was that his intoxication did not cause the death of the victim. While we acknowledge that the state must prove any undisputed elements of the crime charged beyond a reasonable doubt, the element now complained of was conceded by the defendant. In fact, in his closing argument, the defendant stated that there was no problem with the state's proof of intoxication, and that the jury need not concern itself with that element. The defend ant thereafter did not object to the trial court's instruction on the element of intoxication. In light of these circumstances, the record does not support his claim that he was deprived of his fundamental right to a fair trial by the instructions of the court regarding proof of intoxication. To allow the defendant to seek reversal now that his trial strategy has failed would amount to allowing him to induce potentially harmful error, and then ambush the state with that claim on appeal. See State v. Collette, 199 Conn. 308, 318, 507 A.2d 99 (1986); State v. Silveira, 198 Conn. 454, 467, 503 A.2d 599 (1986); State v. Vilhotti, 11 Conn. App. 709, 713, 529 A.2d 235 (1987). The defendant's claim is not entitled to further review. The defendant's second claim is that the trial court erred in excluding evidence of his past recollection recorded. While testifying, the defendant attempted to have a written application for insurance benefits introduced as evidence. The application, however, had not been filled out until twenty days after the events from which the prosecution arose. The trial court upheld the state's objection and the defendant claims error in that ruling. The admissibility of such a memorandum is within the discretion of the trial court. Schenck v. Pelkey, 176 Conn. 245, 250, 405 A.2d 665 (1978). One ground for the exclusion of such evidence is the fact that it was not made at or about the time of events recorded in it. Gigliotti v. United Illuminating Co., 151 Conn. 114, 124, 193 A.2d 718 (1963). That ground was one of several relied upon by the trial court in this case, and the defendant has failed to demonstrate that the court abused its discretion in excluding that memorandum, signed by the defendant nearly three weeks after the events transpired. B. Holden & J. Daly, Connecticut Evidence § 124 (d). In fact, the defendant, after a short recess, testified concerning the events of the day in question, and that testimony was practically a verbatim recitation of the statement made in the excluded memorandum. The defendant, therefore, has not demonstrated that the exclusion of that memorandum was harmful to his defense. State v. Luzzi, 147 Conn. 40, 44, 156 A.2d 505 (1959). The defendant's final claim is that the court erred in posing a series of questions to his accident reconstruction expert, thereby depriving him of his right to a fair trial. State v. Jenkins, 8 Conn. App. 35, 42, 510 A.2d 1370 (1986). The expert testified that in his opinion, based upon the evidence which he reviewed, the accident occurred in the defendant's, rather than the victim's lane of travel on the highway. The trial court's questions to the expert were related to (1) eliciting from the witness what information was available to him in formulating his opinion with respect to the gouge mark on the highway and the fluid trails which resulted from the accident, (2) why fluid trails were not visible at the locus of the gouge mark, and (3) how he had arrived at his opinion about the cause of the gouge mark. The defendant objected at trial to some of the court's inquiries, and now seeks review of other unobjected to questions under State v. Evans, supra 70. Essentially, the defendant claims that the entire series of questions deprived him of a fair trial. Such judicial inquiry is subject to Evans review. State v. Fernandez, 198 Conn. 1, 9-10, 501 A.2d 1195 (1985); State v. Jenkins, supra, 41. The defendant contends that the entire series of questions undercut his theory of how the events at issue transpired, and cast doubt on the credibility of his expert. "We recognize that '[t]he trial judge occupies an impartial position and one of commanding authority, and it often happens in a court-room that he may ascertain the truth when counsel has failed.' State v. Cianflone, 98 Conn. 454, 469, 120 A. 347 (1923). While it is his responsibility to conduct the trial as impartially as is humanly possible, a trial judge must avoid 'taking an apparent position of advocacy in a case before him'; he must refrain from making 'remarks which are indicative of favor or condemnation or which disparage a defendant before the jury.' State v. Echols, 170 Conn. 11, 14, 364 A.2d 225 (1975)." State v. Fernandez, supra, 11-12. The trial judge may, however, question witnesses with circumspection for several purposes. Among those purposes are " 'to bring the facts out more clearly and to ascertain the truth'; Goggins v. Fawcett, 145 Conn. 709, 713, 147 A.2d 187 (1958); in trying to bring out the facts to resolve a doubt it apparently had as to the admissibility of certain evidence; Hutchinson v. Plante, 175 Conn. 1, 3, 392 A.2d 488 (1978)"; State v. Fernandez, supra, 13; and to clarify the testimony of the witness. State v. Mack, 197 Conn. 629, 641, 500 A.2d 1303 (1985); State v. Echols, supra. Most of the questions posed by the trial judge in this case were made during colloquies which sought to ascertain the qualification of the expert and the foundation for several specific areas of his testimony. The trial judge was caught in the midst of a hard fought battle between opposing counsel full of argument and objections, and properly sought to determine what evidence was admissible through the testimony of the defendant's expert. See, e.g., Hutchinson v. Plante, supra. There is no indication, in light of our review of the transcript, that the court abused its discretion by these questions. Id. The remaining inquiries by the court all related to the factual foundations of the expert's opinion. It is well within the discretion of the trial judge to elicit facts in order to clarify testimony, clear up misunderstanding, and ascertain the truth. State v. Fernandez, supra; State v. Mack, supra. The substance of the inquiries in this case does not indicate that the trial judge was conveying to the jury his own impression of the credibility of the defendant's expert witness; State v. Fernandez, supra, 15; nor indicating to them any personal opinion he may have had of the defendant's guilt or innocence. State v. Echols, supra, 14. The trial judge's questions in these areas did not place it in the role of an advocate, even though they may have pointed out the difficulties in the defendant's case. Id. The trial court also instructed the jurors, in response to the defendant's objection to its inquiries, that they should not give his questions more weight than those of either counsel and that they should not guess at or surmise his feelings on any particular point. The court also gave a curative instruction at the conclusion of the case. See State v. Jenkins, supra, 44. The inquiries of the trial judge, in the midst of the battle between counsel over the exact nature and content of the expert's testimony, were not prejudicial, and did not deprive the defendant of a fair trial. See State v. Reid, 193 Conn. 646, 663, 480 A.2d 463 (1984); State v. Frazier, 7 Conn. App. 27, 31, 507 A.2d 509 (1986). There is no error. In this opinion the other judges concurred. At the time relevant in this case, General Statutes (Rev. to 1983) § 53a-56b (a) provided: "A person is guilty of manslaughter in the second degree with a motor vehicle while intoxicated when, in consequence of his intoxication while operating a motor vehicle, he causes the death of another person. For the purposes of this section, 'intoxication' shall include intoxication by alcohol of by drug or both." The trial court's charge was as follows: "Under the statute there are three elements which the State must prove beyond a reasonable doubt. First, that the accused caused the death of [the victim] by the operation of his automobile; second, that at the time the accused was intoxicated; and third, that as a consequence of that intoxication he caused the death of [the victim] by operation of his automobile. "There does not appear to be much question concerning the first element. It is your privilege to determine whether or not the death of [the victim] was caused by the accused in the operation of his automobile. What I'm stressing is that there isn't too much doubt about the intoxication. For all intents and purposes, that has been acknowledged. "Concerning the second element again of intoxication, I'm going to review briefly the evidence that has been presented. To begin with, our legislature has enacted a law that says .01 [sic] or more by weight of alcohol in a person's blood shall be prima facie evidence that he was under the influence of intoxicating liquor insofar as the operation of an automobile is concerned. "There is evidence that the accused had — and it's up to you to recall what I'm about to tell you as far as the figures are concerned, but as I recall it, Doctor Berman who took a blood test said that the alcohol content was .234. Doctor Stolman, state toxicologist, State's witness, said that it was— when he had it examined, the blood of [the defendant] it was .180. He also calculated that at the time of the accident, his blood alcohol content would have been .210. "Now, there is evidence — excuse me. The term 'prima facie' may be freely translated as meaning at first glance. The statute concerning the weight of alcohol in a person's blood allows a jury to find that such person is under the influence of liquor unless other countervailing evidence is offered to show that he was in control of his faculties. Accordingly, the true question for you to decide is, in view of the statute, in view of all the other evidence in the case, was the amount of liquor consumed by the accused such amount more or less sufficient to so affect his mental, nervous and physical processes that he lacked an appreciable degree of — he lacked to an appreciable degree the ability to function properly with relation to the operation of the automobile?" (Emphasis added.) The defendant's closing argument included the following: "May it please the Court, ladies and gentlemen of the jury, you may recall on the voir dire I specifically asked you that even if the individual was under the influence or intoxicated, but you found from the evidence that he was not the cause of the accident, would you acquit him? I think each and every one of you said you would. I specifically asked that question to make the distinction between what are the issues in the case. "There's no question, number one, and we're not going to spend any time on it, the Defendant was operating the vehicle. The State has no problem proving that. It's an admitted fact by the Defendant; and, frankly, the State has no problem as far as the — what is termed intoxication is concerned. I place very frankly little or no credence in Doctor Berman, but I do place a lot of credence in Doctor Stolman who I think is highly reputable and who has been the state toxicologist for, I think, 35 years. When he says it was .18,1 will as an admission state to you that was above the level .10 at the time, which under the law made a person be under the influence. "So, the State really has no problem, and I don't think you really have to concern yourself with the question of operation or with the question of intoxication, but I do think, ladies and gentlemen, you do have to concern yourself with that part of the statute under which this Defendant is charged. He's charged with manslaughter in the second degree with a motor vehicle while intoxicated, and it goes on to say, 'when in consequence of his intoxication while operating a motor vehicle he causes the death of another person.' "Now, I think what you — the main issue really in this case is whether or not this accident came about as a result of his intoxication or was there some other cause. Now, in a criminal case the State has the burden of proving each and every element of the offense beyond a reasonable doubt. As I said, they're not going to have any problem with the first two elements, but I submit to you, ladies and gentlemen, there is a real problem as far as the third element, that is, when in consequence of his intoxication in operating a motor vehicle he causes the death of another person." (Emphasis added.) As we have recently held " '[w]here credibility [is] . so significant . a trial judge should eschew an examination of a key witness. . . . ' State v. Fernandez, [198 Conn. 1, 15, 501 A.2d 1195 (1985)]." State v. Drouin, 12 Conn. App. 101, 104, 529 A.2d 740 (1987). In this case, the credibility of the expert witness was not seriously questioned, rather the judge sought to elicit the facts from which the expert formed his opinion. Thus, this case is distinguishable from State v. Drouin, supra.

Dupont C. J. The trial court, after a hearing pursuant to General Statutes § 53a-32, found the defendant in violation of three conditions of his probation, opened and vacated the original judgment of conviction, and rendered judgment imposing a sentence of two years. The defendant claims on appeal that the trial court erred (1) in revoking his probation without considering whether the violation constituted a substantial violation of probation, and (2) in failing to find the purposes of probation could no longer be served. We find no error. The defendant pleaded guilty, on February 14,1984, to a substituted information charging him with the crime of assault in the second degree in violation of General Statutes § 53a-60. The defendant was placed on probation, the conditions of which required that he (1) report to his probation officer as circumstances dictated, (2) keep the probation officer informed of his whereabouts and give immediate notice of any change in address or employment, (3) remain in the state of Connecticut, and (4) refrain from violating any criminal law of the United States or any state. The record reflects that from February, 1985, until August, 1986, the defendant failed to attend twelve scheduled meetings with his probation officer. On nine separate occasions the defendant's probation officer sent letters giving the defendant a new date to report. Three of these letters warned the defendant that unless he appeared on the date given, a probation warrant would be issued. A letter of September 10, 1986, informed the defendant that he must report on September 18,1986. On September 15, 1986, the defendant's sister called his probation officer to inform him that the defendant had been arrested in Saratoga, New York. On September 16,1986, the defendant telephoned his probation officer from Somers prison to inform him that he was being held pending a parole violation hearing in Massachusetts because of his New York arrest. Pursuant to the conditions of probation, the defendant's probation officer gave him permission to leave Connecticut for short periods of time related to employment. At the time of his arrest in New York, however, the defendant was not employed at the job for which he had been given permission to leave Connecticut nor did he have specific permission to leave the state. In addition, the defendant had taken a job in the state of New York without informing his probation officer of a change in his employment, and had failed to inform the probation officer that he was living with a relative in New York. On August 25,1986, the defendant was arrested for a probation violation, and on November 25, 1986, the trial court conducted a hearing. The court found that the defendant had violated the conditions of his probation (1) by failing to report for his scheduled meeting with his probation officer, (2) by failing to keep his probation officer apprised of his whereabouts, and (3) by leaving the state without permission. The defendant claims that the trial court failed to consider factors beyond mere technical violations of probation when it revoked his probation. "The standard of appellate review in a probation revocation hearing distills to a review of the reasonableness of two findings." State v. Cooley, 3 Conn. App. 410, 413, 488 A.2d 1283, cert. denied, 196 Conn. 805, 492 A.2d 1240 (1985). Those findings are whether the defendant violated the conditions of probation, and whether the defendant should be incarcerated because the rehabilitative purpose of probation cannot continue to be served. Gagnon v. Scarpelli, 411 U.S. 778, 784, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973). In this case, the defendant conceded that he had violated the first two conditions of his probation. There was, however, conflicting testimony regarding whether the defendant had received blanket permission to leave this state in order to work in another state. The court found that the defendant's testimony was not credible on this issue, and determined that he had violated the third condition of probation by failing to obtain express permission to leave this state. We will not substitute our judgment for that of the trial court on issues of credibility. " 'It is peculiarly within the province of the trier of fact to judge the credibility of a witness. DeLuca v. C. W. Blakeslee & Sons, Inc., 174 Conn. 535, 547, 391 A.2d 170 (1978). "It is the trial court which had an opportunity to observe the demeanor of the witnesses and parties; thus, it is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom." Kukanskis v. Jasut, 169 Conn. 29, 32-33, 362 A.2d 898 (1975).' " Edens v. Kole Construction Co., 188 Conn. 489, 494-95, 450 A.2d 1161 (1982). Thus, the threshold question, whether the defendant had committed an historical violation of his probation conditions, is not in issue here. See State v. Johnson, 11 Conn. App. 251, 527 A.2d 250 (1987). The defendant's claim that his violations of probation were not substantial lacks merit. A critical element of probation is the supervisory role of the state. See Gagnon v. Scarpelli, supra, 784-85. That role cannot be diluted by a claim that one or more of the conditions were not substantial. All of the conditions at issue related to the state's interest in supervising the defendant, and were not, therefore, mere technical violations. The defendant also claims that the court failed to give adequate consideration to the beneficial purposes of probation and whether those purposes could no longer be served. See State v. Roberson, 165 Conn. 73, 80, 327 A.2d 556 (1973). In this case, when the court found that the defendant had violated three conditions of probation, it impliedly found that the beneficial purposes of probation were not being served. "The defendant has not demonstrated that the court could not reasonably have concluded that the beneficial purposes of his probation, that is, his rehabilitation and the protection of society, were no longer being served." State v. Johnson, supra, 259, citing Payne v. Robinson, 10 Conn. App. 395, 401, 523 A.2d 917 (1987). Finally, the defendant contends that the court should have determined whether the state's interest in punishment and deterrence could not be accomplished by a means other than imprisonment. See Bearden v. Georgia, 461 U.S. 660, 672, 103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983). The defendant's reliance on Bearden v. Georgia, supra, is misplaced. In Bearden, the defendant's probation was revoked because he failed to pay a fine which was a condition of probation. The court held: "If the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternative measures of punishment other than imprisonment." Id. Even under the unique factual circumstances presented by Bearden, the court found that the dispositive question was whether the probationer's failure to conform to the conditions of probation was willful or beyond the probationer's control. In this case, there was more than ample, uncontradicted evidence upon which the court could reasonably find that the defendant wilfully violated the conditions of his probation. After finding that the defendant wilfully failed to comply with the conditions of probation, the court "then had the discretion to order a revocation of the probation." State v. Johnson, supra, 258. There is no error. In this opinion the other judges concurred. General Statutes § 53a-32 provides in pertinent part: "violation of PROBATION OR CONDITIONAL DISCHARGE: ARREST; PROCEDURE, (a) At any time during the period of probation . . . the court or any judge thereof may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation . Any probation officer may arrest any defendant on probation without a warrant or may deputize any other officer with power to arrest to do so by giving him a written statement set-' ting forth that the defendant has, in the judgment of the probation officer, violated the conditions of his probation. . . . (b) If such violation is established, the court may . . . revoke the sentence of probation . . . and, if such sentence is revoked, require the defendant to serve the sentence imposed or impose any lesser sentence." The defendant was originally sentenced to a term of three years, execution suspended after time served, with three years probation. The probation officer established a schedule which required the defendant to meet with him on a monthly basis. The defendant received permission to leave Connecticut for short periods in connection with a job as a truck driver. He was also given permission on several occasions to leave the state for specific purposes. The number of probation violations is not dispositive of whether the court has properly revoked probation. See State v. Cooley, 3 Conn. App. 410, 488 A.2d 1283, cert. denied, 196 Conn. 805, 492 A.2d 1240 (1985). The central issue for the court is whether, after finding an historical violation, due consideration is given to the rehabilitative purpose of probation.

Borden, J. The dispositive issue of this appeal is whether the provisions of General Statutes (Rev. to 1985) § 14-227a (d), relating to the prima facie evidentiary effect of the ratio of alcohol in the defendant's blood, are applicable to a prosecution for manslaughter in the second degree with a motor vehicle while intoxicated in violation of General Statutes (Rev. to 1985) § 53a-56b. We hold that they are not. The defendant appeals from the judgment of conviction, after a jury trial, of manslaughter in the second degree with a motor vehicle while intoxicated, in violation of General Statutes (Rev. to 1985) § 53a-56b. He claims that the trial court erred: (1) by instructing the jury that it could apply the prima facie provisions of General Statutes (Rev. to 1985) § 14-227a (d) in determining whether the defendant was intoxicated within the meaning of General Statutes (Rev. to 1985) § 53a-56b; and (2) by instructing the jury that evidence of the defendant's blood alcohol level created a rebut- table presumption of his intoxication. Although the defendant has, in his brief, couched both claims of error in constitutional terms, a careful analysis of his first claim reveals that it is really a statutory claim. Because we find reversible error on that claim, we need not reach his second, or constitutional, claim. The jury could reasonably have found the following facts. At approximately 10:40 a.m. on May 11, 1985, the defendant was driving his car at approximately sixty-one miles per hour on Congress Avenue in New Haven. The speed limit in that area was twenty-five miles per hour. The defendant crossed the yellow center line of the street and hit the victim, Clifton McCarter, who was standing at the driver's side door of a parked car, talking to Clifton Worthington, the occupant of the parked car. The impact threw McCarter into the air, and he landed head first on the defendant's windshield and rolled off onto the road. McCarter later died as a result of this impact. After hitting McCarter, the defendant hit another parked car, pushing it approximately thirty-two feet sideways into the road. The defendant continued driving down Congress Avenue for approximately one-tenth of a mile until he was forced to stop by Worthington and Alfred Parks, another witness to the accident. The defendant exited his car and began to walk away when Worthington and Parks stopped him. Parks told him he had hit McCarter, and requested that he return to the scene. The defendant replied, "No, you go back down there." The defendant's speech was slurred, and he staggered. He had an odor of alcohol on his breath. The police arrived promptly. They observed an empty beer bottle on the front floor of the defendant's car, near the driver's seat. Upon request, the defendant consented to a blood test. He was taken to the hospital, where samples of his blood were taken. The test results revealed an alcohol to blood ratio of .18 percent. The defendant stated to the police that he had been drinking since approximately 5 p.m. the previous afternoon, that he was not sure when he had stopped drinking, that he had consumed more than six beers, and that he had slept for only two hours. At approximately 12:45 p.m., the police made certain observations of the defendant, and had him perform certain physical tests, the results of which were recorded on an alcohol influence report form. In addition, at approximately 1:35 p.m., the defendant gave a tape recorded statement to the police, in which he stated that he recalled hitting a car but did not see any pedestrian, and that he did not know that he had hit a pedestrian until having been told so at the hospital. The defendant claims that the trial court erred by instructing the jury that it could use the prima facie evidentiary provisions of General Statutes (Rev. to 1985) § 14-227a (d) in determining whether the state had established that the defendant caused McCarter's death "in consequence of his intoxication while operating a motor vehicle." General Statutes (Rev. to 1985) § 53a-56b. We agree. General Statutes (Rev. to 1985) § 14-227a (a) provides in pertinent part that "[n]o person shall operate a motor vehicle on a public highway . . . while under the influence of intoxicating liquor." Subsection (c) provides in pertinent part that "[i]n any criminal prosecution for a violation of subsection (a) . . . of this section, evidence respecting the amount of alcohol . in the defendant's blood or urine at the time of the alleged offense, as shown by a chemical analysis of the defendant's breath, blood or urine shall be admissible and competent" provided that seven specified procedural requirements are met. Subsection (d) provides in pertinent part that "[e]vidence admitted under the provisions of subsection (c) shall have the following force and effect: . (4) evidence that at [the] time [of the alleged offense] the ratio of alcohol in the blood was ten-hundredths of one per cent or more of alcohol, by weight, shall be prima facie evidence that the defendant was under the influence of intoxicating liquor within the meaning of this section." The defendant's claim arises out of the following procedural history. Initially, the defendant sought a ruling from the court excluding the results of his blood test on the basis, inter alia, that the procedural requirements of General Statutes (Rev. to 1985) § 14-227a (c) had not been met. The defendant also asked the court to "incorporate" the provisions of General Statutes (Rev. to 1985) § 14-227a (c) and (d), into the charge he faced under General Statutes (Rev. to 1985) § 53a-56b. The court declined to rule on the defendant's claims. The state presented Abraham Stolman, the state toxicologist, who testified as to the results of the blood test. During Stolman's testimony, the state requested the court to take judicial notice of General Statutes (Rev. to 1985) § 14-227a (d). The defendant objected, reminding the court, inter alia, that it had specifically declined to rule that the provisions of General Statutes (Rev. to 1985) § 14-227a applied to the prosecution of the defendant, and claiming that the provisions of General Statutes (Rev. to 1985) § 14-227a (d) were, therefore, irrelevant because the defendant was not charged with a violation of General Statutes (Rev. to 1985) § 14-227a (a). The court overruled the defendant's objection, and the defendant excepted. The court thereafter declared in the jury's presence that it would "take judicial notice of [General Statutes (Rev. to 1985) § 14-227a (d)] insofar as is applicable to defining intoxication." It stated to the jury as follows: "So, ladies and gentlemen of the jury, the court takes judicial notice of this law. Evidence that at such time the ratio of alcohol in the blood was ten hundredths of one percent or more of alcohol by weight shall be prima facie evidence that the defendant was under the influence of intoxicating liquor." Stolman continued his testimony, which included further statements as to the effects of alcohol on the ability to drive a car. He testified that "at .10 and above all individuals are affected to a sufficient degree and that, with respect to blood alcohol level of .18 percent . . . [t]he higher you go in alcohol level, the . . . greater the effect is." During its final instructions to the jury, the court specifically reminded the jury that it had taken judicial notice of General Statutes § 14-227a (d), and read the statutory provision to the jury. The court continued its charge: "Now, by using this prima facie evidence, and all of the other evidence presented, it is for you to determine beyond a reasonable doubt whether or not the defendant in this case was intoxicated. The statute concerning ten-hundredths of 1 percent, .10 weight by alcohol within a person's blood, presumes that such person is under the influence of alcohol unless other countervailing evidence shows that the defendant was in control of his faculties. "In other words, this is a rebuttable presumption that the Legislature has seen fit. Accordingly, one of the questions for you to decide is, in view of the statute and in view of all the other evidence in the case, was the amount of alcohol consumed by the accused sufficient to so affect his mental, nervous and physical processes that he lacked to an appreciable degree the ability to function properly with relation to the operation of his automobile." The defendant duly excepted to these instructions. We first consider and reject the state's argument that the defendant's claim is not reviewable because he did not raise it at trial with sufficient clarity to alert the court to his true position. The state points to the fact that the defendant initially requested the application of General Statutes (Rev. to 1985) § 14-227a (c) and (d) to his case. While it is true that the defendant made an initial unsuccessful effort to persuade the court to incorporate the provisions of General Statutes (Rev. to 1985) § 14-227a (c) and (d) into General Statutes (Rev. to 1985) § 53a-56b, once that effort had failed it was clear to the court that the defendant objected to the incorporation of the provisions of General Statutes (Rev. to 1985) § 14-227a (d) without the protective procedural requirements of General Statutes (Rev. to 1985) § 14-227a (c). We turn, therefore, to the merits of the defendant's claim. We conclude that the provisions of General Stat utes (Rev. to 1985) § 14-227a (d) do not apply to a prosecution under General Statutes (Rev. to 1985) § 53a-56b. We reach this conclusion based on two factors: the plain language of the statute, which specifically limits its applicability; and the rationale of that specific limitation. First, the language of General Statutes (Rev. to 1985) § 14-227a (d) confines those provisions to a prosecution under General Statutes (Rev. to 1985) § 14-227a (a) or (b). General Statutes (Rev. to 1985) § 14-227a (d) refers only to "[e]vidence admitted under the provisions of subsection (c)" of General Statutes (Rev. to 1985) § 14-227a. Subsection (c) refers only to the admissibility of evidence of a defendant's blood alcohol or drug level "[i]n any criminal prosecution for a violation of subsection (a) or (b) of this section." Subsections (a) and (b) of General Statutes (Rev. to 1985) § 14-227a refer to the motor vehicle violations of operation while under the influence of intoxicating liquor or drug, and operation while impaired by the consumption of intoxicating liquor, respectively. The legislature has, in very specific language, created a complex statutory scheme, balancing procedural protections for the defendant against prosecutorial benefits for the state. The statutory language specifically referring to violations of General Statutes (Rev. to 1985) § 14-227a (a) and (b) must, therefore, be read to exclude its applicability to other statutes. Second, our Supreme Court has squarely held that the procedural provisions of what was General Statutes (Rev. to 1985) § 14-227a (c) apply only to a violation of General Statutes (Rev. to 1985) § 14-227a, and not to vehicular homicide offenses defined by the Penal Code. State v. Singleton, 174 Conn. 112, 115-16, 384 A.2d 334 (1977); see also State v. Robarge, 35 Conn. Sup. 511, 513-14, 391 A.2d 184 (1977). These provisions, which give detailed procedural protections to a defendant charged under General Statutes (Rev. to 1985) § 14-227a, are inextricably linked to the prima facie evidentiary provisions of General Statutes (Rev. to 1985) § 14-227a (d). Only test results which have satisfied the procedural requirements of General Statutes (Rev. to 1985) § 14-227a (c) are entitled to the prima facie weight afforded them pursuant to General Statutes (Rev. to 1985) § 14-227a (d). To put it another way, the procedural protections of General Statutes (Rev. to 1985) § 14-227a (c) constitute the price which the statute requires the state to pay in order to gain the prosecutorial benefits afforded by General Statutes (Rev. to 1985) § 14-227a (d). Where the statute does not require the state to pay that price; State v. Singleton, supra; it does not confer the corresponding benefit. The state argues that the subsequent amendment of General Statutes § 53a-56b; see footnote 1, supra; reveals the legislature's intent that General Statutes § 53a-56b be interpreted consistently with General Statutes § 14-227a. Although the purpose of the 1985 amendment was to clarify the legislature's intent that the term "intoxication," as used in General Statutes (Rev. to 1985) § 53a-56b, referred to the same level of inebriation as the phrase "under the influence of intoxicating liquor," as used in General Statutes § 14-227a; State v. McKenna, 11 Conn. App. 122, 130-31, 525 A.2d 1374 (1987); the legislature did not see fit to add to General Statutes § 53a-56b either the procedural protections or prosecutorial benefits defined by General Statutes (Rev. to 1985) § 14-227a. On the basis of our conclusion that the provisions of General Statutes § 14-227a do not apply to a prosecution under General Statutes § 53a-56b, we must decide whether the trial court's instructions to the jury regard ing the effect of the prima facie provisions of General Statutes (Rev. to 1985) § 14-227a (d) on its determination of whether the defendant was intoxicated within the meaning of General Statutes (Rev. to 1985) § 53a-56b requires reversal. "The question whether reversal is required because of this error depends on the likelihood that it influenced the jury. We have stated that in cases involving constitutional error, the test is whether it is reasonably possible that the jury were misled, and in cases not involving a constitutional error, whether it is reasonably probable that the jury was misled. State v. Rose, 169 Conn. 683, 687-88, 363 A.2d 1077 (1975)." State v. Shifflett, 199 Conn. 718, 754, 508 A.2d 748 (1986). Since our conclusion rests on statutory grounds, and is not of constitutional magnitude, it must be determined whether it was reasonably probable that the jury was misled. We conclude that under the circumstances of this case, where the court during both the presentation of testimony and in its charge to the jury, emphasized the effect of General Statutes (Rev. to 1985) § 14-227a (d) on the jury's deliberations, and where counsel for the state in closing argument similarly and repeatedly urged the jury to apply the statute, it was reasonably probable that the court's error misled the jury as to the determination of the defendant's intoxication. We note, first, that the court's instructional error was a continuation of its midtrial ruling, made at the request of the state, taking judicial notice of the effect of General Statutes (Rev. to 1985) § 14-227a (d). The court made that ruling in the presence of the jury and immediately followed it by reading the provisions of General Statutes (Rev. to 1985) § 14-227a (d) to the jury. Moreover, the timing of that procedure was significant. Stolman had just testified that the result of the test of the defendant's blood alcohol level was .18 percent. The court immediately thereafter read General Stat utes (Rev. to 1985) § 14-227a (d) to the jury. The state then continued to examine Stolman, and elicited his testimony that all persons are adversely affected who have a blood alcohol level of .10 percent or more. The jury was presented with the testimony of the defendant's blood alcohol level in the damaging context of Stolman's expert opinion buttressed by the weight that the law itself lent to such evidence. Furthermore, the court's charge emphasized the role of the statute in the jury's determination of the issue of the defendant's intoxication. The court instructed the jury that it had taken judicial notice of the statute, and further that "[t]he statute concerning ten-hundredths of 1 percent, .10 weight by alcohol within a person's blood, presumes that such person is under the influence of alcohol unless other countervailing evidence shows that the defendant was in control of his faculties. In other words, this is a rebuttable presumption that the Legislature has seen fit." The court then told the jury that " [accordingly, one of the questions for you to decide, in view of the statute and in view of all the other evidence in the case, was the amount of alcohol consumed by the accused sufficient to so affect his mental, nervous and physical processes that he lacked to an appreciable degree the ability to function properly with relation to the operation of his automobile." Thus, the court added the heavy weight of the statutory presumption to the jury's determination of whether the defendant was intoxicated. Moreover, the court's charge was preceded by the state's closing argument. In that argument, the state referred at least nine times to the defendant's blood alcohol level as exceeding the "legal limit." Thus, the court's charge reinforced the state's argument that the law itself deemed the defendant to have been intoxicated. We note finally that the critical issue in this case was whether the defendant was intoxicated at the time of the accident. In determining whether a jury instruction was misleading, it is appropriate to consider how it bears on the issues in the case. See generally State v. Huff, 10 Conn. App. 330, 331-32, 523 A.2d 906 (1987). In this case, while the state's evidence was strong, the issue of the defendant's intoxication was nonetheless in dispute. The state produced evidence, inter alia, of the defendant's excessive speed and reckless manner of driving, his admission that he had been drinking since the previous evening and that he did not recall when he stopped, his high blood alcohol level, and the usual effect of such a blood alcohol level on a person of a weight of 160 pounds. There was evidence of the defendant's appearance at the scene of the accident, his failure to stop, his lack of awareness of having hit McCarter, and the opinion of the physician who took his blood sample at the hospital, based on his appearance and speech, that he was intoxicated. There was also evidence, however, that the first police officer at the scene of the accident, who observed the defendant for two to three minutes, detected no signs of intoxication, that the defendant had no trouble following instructions, and that his performance of the physical tests administered to evaluate his level of alcohol influence ranged from "fair" to "sure." Moreover, there was evidence that the defendant had only two hours of sleep the previous night, that he had no difficulty in understanding that he was waiving his rights when he gave the police a statement, and that he had no difficulty in signing the blood test consent form. We reject the state's argument that the court's instruction was not misleading because it referred the jury, not only to the statute, but also to "all the other evidence in the case" in determining whether the defendant was intoxicated. The critical error in the court's charge was not that it permitted the jury to find the defendant guilty solely on the basis of the test results, but that it added to the effect of the other evidence the weight of the law's presumption as to the effect of a blood alcohol level of .10 percent or more. Under these circumstances, we conclude that it was reasonably probable that the jury was misled by the court's instruction. There is error in part, the judgment of conviction as to manslaughter in the second degree with a motor vehicle while intoxicated is set aside, and the case is remanded for a new trial on that count of the information. In this opinion the other judges concurred. General Statutes (Rev. to 1985) § 53a-56b provides in pertinent part: "A person is guilty of manslaughter in the second degree with a motor vehicle while intoxicated when, in consequence of his intoxication while operating a motor vehicle, he causes the death of another person. For purposes of this section, 'intoxication' shall include intoxication by alcohol or by drug or both." This statute was amended in 1985. The amendment, in part, deleted the term "intoxication" and substituted in its place the phrase "under the influence of intoxicating liquor." Public Acts 1985, No. 85-147. See State v. McKenna, 11 Conn. App. 122, 126 n.2, 525 A.2d 1374 (1987). The defendant was also convicted of evading responsibility in violation of General Statutes § 14-224 (a). His appeal does not involve this conviction. This claim was clearly without merit. See State v. Singleton, 174 Conn. 112, 115-16, 384 A.2d 334 (1977). The court stated that it did not have to rule on those claims because the state "does not have two sets of standards" depending on whether the prosecution is under General Statutes (Rev. to 1985) § 14-227a or under General Statutes (Rev. to 1985) § 53a-56b, and because the defendant had not established that the alleged procedural requirements had not been met. The court stated: "[Yjesterday the court took judicial notice that our Legislature has enacted a law that says in effect that .10 or more by weight of alcohol in a person's blood shall be prima facie evidence that he was under the influence of intoxicating liquor or insofar as the operation of his automobile is concerned. . . . One of the things you are entitled to do and I recalled to you before earlier during our charge, the fact that I took judicial notice of this part of the statute 14-227a (c), I believe it is that the Legislature has seen fit to describe, as you will recall, intoxication. I'm sorry. That's (d) which I'm not going to read you all the paragraph but only that part that I read to you yesterday. 'Evidence that at such time the ratio of alcohol in the blood was ten-hundredths of 1 percent or more of alcohol by weight shall be prima facie evidence that the defendant was under the influence of intoxicating liquor.' " The state also claims in its brief that the defendant filed a request to charge which invited the court to charge on the prima facie provisions of General Statutes (Rev. to 1985) § 14-227a (d). The alleged request to charge, which the state quotdsm apparent good faith reliance on copies delivered to it at trial, however, is neither included in the copies of the defendant's requests to charge filed with the trial court, nor contained in the certified trial court file on record in this appeal. General Statutes § 14-227a has been subsequently amended further. See General Statutes (Rev. to 1987) § 14-227a. The state, in its brief, urges us, in the event that we find a nonconstitutional error, to apply a harmless error analysis based solely on the claim that the evidence as to the defendant's guilt was overwhelming. It cites four cases in support of this claim: State v. Silva, 201 Conn. 244, 251, 513 A.2d 1202 (1986); State v. Brown, 199 Conn. 14, 25, 505 A.2d 690 (1986); State v. Talton, 197 Conn. 280, 288-90, 497 A.2d 35 (1985); State v. Conroy, 194 Conn. 623, 626-27, 484 A.2d 448 (1984). These cases are inapplicable, since they involve the standard that governs where there is a claim that evidence was erroneously admitted. This is not the appropriate analysis to determine whether a nonconstitutional instructional error requires reversal. See State v. Shifflett, 199 Conn. 718, 754, 508 A.2d 748 (1986).

Bogdanski, J. This is an appeal by a large number of licensed chronie and convalescent hospitals, rest homes with nursing supervision and homes for the aged from the action of the defendant committee on state payments to hospitals in denying the plaintiffs' motion to intervene in a remanded proceeding held pursuant to a judgment of the Court of Common Pleas in the matter of Brittany Farms Rest Home, Inc. v. Commission on Hospitals and Health Care, dated June, 1976, D. Dorsey, J. The Court of Common Pleas, Satter, J., sustained the appeal, concluding that the plaintiffs had an interest in the subject matter of the remanded proceeding and should have been allowed to intervene. From the judgment rendered the defendant committee appealed to this court, assigning error in the court's conclusions and in its remand. On or before July 1, 1974, pursuant to § 17-314 of the General Statutes, the committee held a public hearing to establish medicaid reimbursement rates for all licensed chronic and convalescent hospitals, rest homes with nursing supervision and homes for the aged. On August 2, 1974, the committee notified all licensed convalescent hospitals, rest homes and homes for the aged of the medicaid reimbursement rate approved for the period July 1, 1974, through June 30, 1975. The approved rate carried over the previous year's established per diem rate into the month of July, 1974, with a new higher rate effective August 1,1974, to June 30, 1975. Two of the affected homes, Brittany Farms Rest Home, Inc., and Windsor Hall Rest and Nursing Home, Inc., appealed to the Court of Common Pleas, alleging that the two rates established for the 1974-1975 fiscal year (one for July 1, 1974 — July 30, 1974, and the other for August 1, 1974 — June 30, 1975) violated the mandate of § 17-314 that one uniform rate he established for the fiscal year. The court (D. Dorsey, J.) found that the committee violated § 17-314 by setting two rates and remanded the case to the committee for "further proceedings consistent with this decision." No appeal from that judgment was taken. To effectuate the court's remand order, the committee notified counsel for Brittany Farms and Windsor Hall of a public hearing to be held May 10, 1976, "for the purpose of establishing rates to be paid to Brittany Farms Rest Home, Inc., and Windsor Hall Rest and Nursing Home, Inc." The plaintiffs sought to intervene in that hearing, seeking to be designated as parties pursuant to § 4-166 (5) and 4-177 of the Uniform Administrative Procedure Act. The committee, however, denied their application, and established a single uniform rate for fiscal year 197A-1975 for Brittany Farms and Windsor Hall only. The plaintiffs' application to intervene in the proceeding of May 10,1976, was based on the provisions of § 4-166 (5) and 4-177 of the Uniform Administrative Procedure Act and on the allegations that the plaintiffs will be specifically and substantially affected by any order or decision made in such proceeding, that they are affected in the same manner as Brittany Farms and Windsor Hall in being subjected to two rates in one year, and that they are entitled to the same relief as Brittany Farms and Windsor Hall. The basic issue before us is whether the committee acted arbitrarily in refusing to permit the plaintiffs to intervene in the public hearing of May 10, 1976. The plaintiffs claim that because that hearing was a "contested case," they had a statutory right to intervene. We agree. Section 4-166 (2) of the act provides in part that " ' [c] ontested case' means a proceeding, including but not restricted to ratemaking, price fixing, and licensing, in which the legal rights, duties or privileges of a party are required by statute to be determined by an agency after an opportunity for hearing or in which a hearing is in fact held." (Emphasis added.) The plaintiffs contend that the May 10, 1976, public hearing falls squarely within the statutory definition of a "contested case" because a public hearing for ratemaking is statutorily required by § 17-314 and that the May 10 hearing was merely a continuation of the original ratesetting proceeding for the 1974-1975 fiscal year. Section 4-177 (a) specifically provides that "[i]n a contested case, all parties shall be afforded an opportunity for hearing after reasonable notice." Section 4-166 (5) defines a "party" as "each person or agency named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party." (Emphasis added.) On the basis of the provisions of the above statutes and the allegations of the motion to intervene, we conclude that the plaintiffs had a statutory right to intervene as parties in the hearing of May 10, 1976, and that the trial court properly ruled that the committee acted illegally in denying intervention. The trial court ordered a remand to the committee with "a direction that it establish a single annual payment rate for the 1974-1975 fiscal year for those plaintiffs who are found to be in the same class of rest homes as Brittany Farms and Windsor Hall and to set a single annual payment rate for all other plaintiffs applying the same standards as used in the Brittany Farms and Windsor Hall proceedings." The committee claims that because the sole issue before the court was whether the committee acted illegally or arbitrarily in denying intervention, the remand went too far and constituted an encroachment on the administrative function of the committee. Ordinarily, upon concluding that the action taken by the administrative agency was illegal or arbitrary, the court should go no further than to sustain the appeal. For the court to go further and direct what action should be taken by the administrative agency would be an impermissible judicial usurpation of the administrative functions. Guerriero v. Galasso, 144 Conn. 600, 608, 136 A.2d 497; Watson v. Howard, 138 Conn. 464, 469-70, 86 A.2d 67. In the circumstances of this case, after finding that the committee acted arbitrarily in denying intervention, the trial court should have gone no further than to have sustained the appeal. See Bogue v. Zoning Board of Appeals, 165 Conn. 749, 753-54, 345 A.2d 9. One other point requires discussion. The record reveals that the trial court heard evidence and made a finding. The appeal was taken pursuant to the provisions of the Uniform Administrative Procedure Act, §4-166 — 4-189 of the General Statutes. Section 4-183 (f) provides that "[t]he review shall be conducted by the court without a jury and shall be confined to the record." The court is not permitted to retry the case. O'Donnell v. Police Commission & Police Trial Board, 174 Conn. 422, 426, 389 A.2d 739. There is error in part, the judgment is set aside and the case remanded for the rendition of a judgment sustaining the appeal. In this opinion Cotter, C. J., and Longo, J., concurred. "[General Statutes] See. 17-314. bates of payment to chronic AND CONVALESCENT HOSPITALS, REST HOMES AND HOMES FOR THE AGED. The rates to be paid by or for persons aided or cared for by the state or any town in this state to licensed chronic and convalescent hospitals, rest homes with nursing supervision and to licensed homes for the aged, as defined by section 19-576, for room, board and services specified in licensing regulations issued by the state health department shall be determined annually, after a public hearing, by the committee established under section 17-311, to be effective July first of each year. . . ."

Per Curiam. The defendant, Thomas Flower, was indicted by a grand jury for the September 8, 1976, murder of Bruce Bishop. The defendant elected to be tried by a three-judge panel rather than by a jury, pursuant to § 54-82 of the General Statutes. The three-judge panel (Daly, A. Armentano, Wright, Js.) adjudged the defendant not guilty by reason of insanity (Wright, J., dissenting) and ordered him committed to the custody of the commissioner of mental health in accordance with the provisions of § 53a-47 of the General Statutes. From that judgment, and with the permission of the presiding judge, the state filed a timely appeal to this court. General Statutes § 54-96. Thereupon, the defendant filed a motion in this court to dismiss the appeal. The basis of the motion to dismiss is that appeal of the defendant's acquittal places the defendant in double jeopardy in violation of the fifth amendment of the constitution of the United States. The fifth amendment provides: "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb . . . ." The Supreme Court of the United States has held that protection against double jeopardy applies to state as well as to federal criminal proceedings; Greene v. Massey, 437 U.S. 19, 98 S. Ct. 2151, 2154, 57 L. Ed. 2d 15 (1978); Benton v. Maryland, 395 U.S. 784, 795, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969); that jeopardy attaches, in a nonjury trial, as soon as the court begins to hear evidence; Serfass v. United States, 420 U.S. 377, 388, 95 S. Ct. 1055, 43 L. Ed. 2d 265 (1975); and that retrial after a judgment of acquittal would constitute double jeopardy; United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S. Ct. 1349, 51 L. Ed. 2d 642 (1977); United States v. Wilson, 420 U.S. 332, 352, 95 S. Ct. 1013, 43 L. Ed. 2d 232 (1975). The Supreme Court's most recent restatement of the effect of acquittal; Sanabria v. United States, 437 U.S. 54, 98 S. Ct. 2170, 2181, 57 L. Ed. 2d 43 (1978); reiterates that a "judgment of acquittal, however erroneous, bars further prosecution on any aspect of the count and hence bars appellate review of the trial court's error." The state therefore concedes, as it must, that the defendant in this case may not be retried. The state urges, however, that were this court to reverse on the merits, the case could constitutionally be remanded to the trial court with a direction to render a judgment of guilty of manslaughter in the first degree in accordance with the minority opinion of Judge Wright below. We do not agree. There is no record upon which a determination of guilty of manslaughter could be made without further proceedings below. In State v. Avcollie, 174 Conn. 100, 107, 384 A.2d 315 (1977), by contrast, a jury verdict of guilty existed. Had the defendant in this case elected trial by jury, and had he been acquitted upon an erroneous charge by the trial court judge, Sanabria would bar his retrial. The fundamental policy that a judgment of acquittal "[may] not be reviewed . . . without putting [the defendant] twice in jeopardy, and thereby violating the Constitution"; id., 2178; applies equally to trials by court and trials by jury. This appeal must therefore be dismissed. Dismissal of the state's appeal on the basis of double jeopardy precludes our review on the merits. Two of the three trial judges concluded that in this case the defendant's voluntary ingestion of an illegal mind-altering drug, combined with a preexisting mental disease or defect, rendered him "insane" at the time of the homicide under the provisions of § 53a-13 of the General Statutes. We express no opinion whether this interpretation of § 53a-13, and of the related provision, § 53a-7, defining intoxication, is correct. The defendant's motion to dismiss the state's appeal is granted.

Bogdanski, J. The plaintiff brought this action to recover damages for personal injuries allegedly caused by the negligence of the defendant in failing to keep its premises in a reasonably safe condition. Prom a judgment rendered upon a verdict for the plaintiff the defendant has appealed, assigning error in the court's denial of its motion for a mistrial, in the denial of its motion for a continuance, and in the granting of the plaintiff's motion to amend. We observe at the outset that the defendant makes no claim of error as to liability or the size of the award, or that the verdict was not in accord with the law or evidence. The defendant has confined its claims on this appeal solely to motions involving the court's exercise of discretion. On October 15, 1970, the plaintiff, seventy-two years of age, suffered a fall while a patron at the defendant's premises and sustained a fracture of the right hip which required three separate operations and which resulted in a permanent disability to the right hip and leg. In October, 1972, the plaintiff brought this action claiming damages of $50,000. In response to a motion for disclosure, the plaintiff revealed that she incurred special damages of $6284.05 and sustained a partial disability of the right hip, and she referred the defendant to the medical reports of Walter T. Shanley, an orthopedic surgeon. Those reports indicated that the plaintiff's right leg was one-half inch shorter than her left leg, that she had traumatic arthritis and aseptic necrosis of the right hip; that she would not be a candidate for total replacement arthroplasty; that she had a 50 percent permanent partial disability of the right hip, which disability could conceivably get worse in the future; and that the plaintiff was advised to return to the physician only if her symptoms got significantly worse. The plaintiff was last treated by Shanley on November 9, 1972. She sought no further medical treatment from that date. At a pretrial hearing before Naruk, J., held on April 29, 1977, the defendant took the position that there was no liability and made no offer of settlement. The plaintiff in turn submitted special damages of $7329.45 and advised counsel and the judge that because of the high special damages, the degree of permanent disability, the low ad damnum, and the problems which had confronted the plaintiff's counsel in the recent case of Deedy v. Marsden, 172 Conn. 568, 375 A.2d 1032, she intended to file a motion to increase the ad damnum clause. After the pretrial hearing, the plaintiff's counsel requested his office staff to contact Shanley's office to determine his availability for trial. Neither the plaintiff's counsel nor any member of the firm spoke personally with Shanley. On June 16, 1977, at the selection of the jury, the plaintiff filed her motion to increase the ad damnum to $250,000. The court granted the motion over the defendant's objection. On Friday, June 17, 1977, the plaintiff's counsel met briefly with Shanley in court prior to his taking the stand. Shanley advised counsel that because he had not seen the plaintiff since 1972 he had his office call Mrs. Allen for a medical examination in order to update his findings. The plaintiff's counsel had not been previously advised of that examination. The record reveals that no written or oral report of that examination was made by the physician to either the plaintiff or her counsel. While on the stand Shanley was asked for an opinion as to the permanent disability sustained by the plaintiff. He stated that she had a 75 percent permanent partial disability of the hip and that her right leg was three-quarters of an inch shorter. This was the first time counsel for the plaintiff became aware of any increase in disability over that reported in November, 1972. The defendant moved for a mistrial, claiming surprise on the ground that the medical testimony now indicated increased disability from what had been reported in the medical reports of 1972. The court took note of the claim but advised counsel that he would have several days in which to arrange for a medical examination and ordered the plaintiff to be available for such an examination. The plaintiff's counsel then continued his examination of Shanley and offered into evidence microfilms of x-rays taken prior to November, 1972, and x-rays taken in May, 1977. There was no objection to the introduction of those x-rays. The defendant contends that the plaintiff's counsel failed in his duty to notify it and the court of the May 2,1977, medical examination and of the substantial change in the plaintiff's physical condition. The plaintiff, in turn, claims that counsel could not inform the defendant and the court of the increased disability because neither he nor any member of his firm had any knowledge of the May 2, 1977, examination until Shanley's testimony in court on June 17, 1977. At the time of this trial, a party's continuing duty to disclose was governed by § 172A of the 1963 Practice Book, as amended, which states in part: "If subsequent to compliance with an order issued pursuant lo Sec. 167 or Sec. 168 and prior to or during trial, a party discovers additional material previously requested or ordered subject to discovery or inspection, he shall promptly notify the other party, or his attorney, and the court of the existence thereof . . . (Emphasis added.) Discovery or knowledge of a changed medical condition, therefore, would be a prerequisite before any sanction could be invoked under § 172A. The defendant, however, is unable to point to any part of either the record or the transcript which shows any indication that the plaintiff or her counsel knew of Dr. Shanley's findings of May 2, 1977, prior to his testimony on June 17, 1977. On the facts of this case, there is no violation of § 172A. Cf. Filisko v. Bridgeport Hydraulic Co., 176 Conn. 33, 404 A.2d 889. The defendant next contends that a mistrial should have been granted on the ground that it was unable to prepare adequately for trial without advance knowledge of the plaintiff's changed medical condition. "The general principle is 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. " 'The granting of such a motion rests largely in the discretion of the trial court. State v. Williamson, 134 Conn. 203, 204, 56 A.2d 460. In the exercise of that discretion the court may properly consider whether diligence was exercised in the preparation of the case for trial. . . .' Teitelman v. Bloomstein, . . . [155 Conn. 653, 662, 236 A.2d 900.]" Izzo v. Crowley, 157 Conn. 561, 565, 254 A.2d 904. The record reveals that the plaintiff furnished the defendant with all of the medical reports that were in existence. Those reports were sufficient to put the defendant on notice that as of November 9, 1972, the plaintiff's injuries included traumatic arthritis and aseptic necrosis of the hip, a one-half inch shortening of the right leg, and a 50 percent disability of the hip which could conceivably get worse in the future. Aseptic necrosis of the hip means the death of the hip bone from the loss of blood supply or corrosion. Webster, New International Dictionary (2d Ed.). On the record, we cannot say that the court abused its discretion in denying the motion. On Tuesday morning, June 21,1977, near the completion of the trial, defense counsel advised the court that he had been unable to reach his physician until Monday, June 20, 1977; and that the physician had advised him he could hot do the examination until the following week. The defendant thereupon moved for a continuance of the trial until the following week. The court denied the motion. A motion for a continuance during the course of a trial is directed to the sound discretion of the trial court and its ruling will not be overruled unless there has been a clear abuse of discretion. State v. Manning, 162 Conn. 112, 121, 291 A.2d 750. In denying the motion, the court noted that the defendant had been made aware from the medical reports that the plaintiff's hip disability was likely to increase; that during the trial it had been given the opportunity to have a medical examination, but now was requesting an additional eight days' continue anee. The court then noted that it would be unfair to keep the jury waiting that long, particularly in view of the fact that the defendant's principal concern was the x-rays taken May 2, 1977, which were already in evidence without objection. We conclude that the court did not abuse its discretion in denying the continuance. The defendant's final claim is directed to the court's action in granting the plaintiff's motion to amend the ad damnum clause. The allowance of an amendment more than thirty days after the return day rests in the discretion of the court. Practice Book, 1963, §132; Maltbie, Conn. App. Proc. §63. This court will not interfere with the decision of the trial court to permit an amendment unless an abuse of discretion is clearly evident. Phaneuf v. Commissioner of Motor Vehicles, 166 Conn. 449, 454, 352 A.2d 291; Antonofsky v. Goldberg, 144 Conn. 594, 597, 136 A.2d 338; Benson v. Morey, 129 Conn. 390, 391, 28 A.2d 843. In determining whether there has been an abuse of discretion, much depends on the circumstances of each case. Factors to be considered include unreasonable delay, fairness to the opposing party, and the negligence of the party offering the amendment. Cummings v. General Motors Corporation, 146 Conn. 443, 449-50, 151 A.2d 884; Antonofsky v. Goldberg, supra; Rusch v. Cox, 130 Conn. 26, 32, 31 A.2d 457. On the facts of the present case, there was no abuse of discretion in granting the motion to amend. There is no error. In this opinion the other judges concurred. Section 172 of the 1978 Praetiee Book deals with the continuing duty to disclose. Under this section, if a party discovers that prior compliance with an order for discovery is no longer true and the circumstances are sueh that a failure to amend the compliance is a knowing concealment, he must notify the other party and serve a corrected compliance.

Covello, J. This appeal is taken from the judgment rendered following a jury trial at which the defendant was convicted of the crimes of burglary in the third degree, in violation of General Statutes § 53a-103, and larceny in the third degree, in violation of General Statutes § 53a-124. The defendant has appealed his convictions alleging that the trial court erred in its instructions to the jury on the matter of proof beyond a reasonable doubt. There was neither a request to charge made by the defendant nor exception taken by him to the charge as delivered. The jury might reasonably have found that on June 23, 1979, at 4:45 a.m., Norwalk police officers responded to a radio call concerning the activation of a burglar alarm at the office of Space Age Printing and G-raphies. When the officers arrived, they observed an unlighted automobile containing three individuals emerging from the Space Age driveway. After stopping the vehicle, the officers ascertained that the defendant was the driver. One officer observed an adding machine on the floor of the car. Following the arrests of the occupants, a search of the vehicle disclosed the adding machine, a calculator in the backseat and a typewriter in the trunk. At trial, the owner of Space Age Printing and Graphics testified that this equipment belonged to his business, that it had been removed in June, 1979, and that its value was in excess of $50. The defendant claims that the court's instructions to the jury violated his constitutional right to have his guilt established beyond a reasonable doubt pursuant to precepts articulated in In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970), and State v. Smith, 183 Conn. 17, 27-28, 438 A.2d 1165 (1981). We do not agree and find no error. Ordinarily this court would refuse to review claimed error in the charge where no written request to charge or exception to the charge was taken below. Practice Book § 315, 3063. Since the allegation is that the litigant was clearly deprived of a fundamental constitutional right and a fair trial, we will review the claimed error as an "excep tional circumstance" under the holding of State v. Evans, 165 Conn. 61, 69-70, 327 A.2d 576 (1973), "not to ascertain whether the ruling or instruction was undesirable, erroneous, or even universally condemned but rather whether when reviewed in the context of the entire trial it violated some right guaranteed to the defendant by the fourteenth amendment to the constitution of the United States; Cupp v. Naughten, 414 U.S. 141, 146, 94 S. Ct. 396, 38 L. Ed. 2d 368 (1973); or article first, § 8 of the constitution of Connecticut." State v. Kurvin, 186 Conn. 555, 565, 442 A.2d 1327 (1982). The court defined the state's burden of proof beyond a reasonable doubt as follows: "Now, what is reasonable doubt? What is this burden that the state has? We come to a phrase that is difficult to define. What judges do is define it by eliminating, by saying what it is not and hoping that what is left you can understand to be a reasonable doubt. I will say first of all a reasonable doubt based merely knowledgeably used [sic] is a doubt for which you can give a reason. Therefore it is not a surmise; it is not a guess; it is not the doubt which is one of hesitancy arising from compassion for the defendant or for the victim or for somebody else; it is not one of hesitancy that might arise from the natural human reluctance to make a decision. It must be based on reason. It cannot — and if you cannot attribute a reason for it then you ought to consider it is not a reasonable doubt. In other words, if it's just hesitancy, just surmise, just a guess, that is not a reasonable doubt. A reasonable doubt is based upon reason and it is a doubt which grows out of the evidence or lack of evidence in the case. A reasonable doubt is one that is reasonable in the light of all of the evidence and one that is honestly entertained after a thorough evaluation and careful examination of all the evidence in the case. It differs from the standard that we apply in civil cases." The defendant argues that this language fails to include "important affirmative language instructing the jury that . . . the proof must exclude every reasonable presumption or hypothesis of innocence and that a conclusion of guilt cannot be reached where the facts established are rationally consistent with the innocence of the accused." While this legal tenet may not be evident in that portion of the charge set forth by the defendant, in its immediately preceding instructions, the court stated: "another aspect of the presumption of innocence is that if any bit of evidence is capable of two interpretations, one of which is consistent with the innocence of the defendant and the other perhaps consistent with the guilt of the defendant you must give it the interpretation that is consistent with the innocence of the defendant. The presumption of innocence, however, does not have the effect of evidence itself. The only effect it has, as I indicated, are (sic) these of putting the burden upon the State of proving the defendant guilty beyond a reasonable doubt and requiring you if a bit of evidence is capable of two interpretations of giving it the interpretation consistent with the innocence of the defendant." (Emphasis added.) This instruction substantially embodies the content of the legal proposition claimed by the defendant and we find no merit in the claimed deficiency in the charge. "A charge to the jury is not to be 'critically dissected' nor are individual instructions to be judged in 'artificial isolation' from the overall charge. State v. Reed, 174 Conn. 287, 305, 386 A.2d 243 (1978). The issue is whether, in view of the charge read as a whole, that portion of the charge to which objection has been taken can be considered a basis for finding harmful error." State v. Derrico, 181 Conn. 151, 171, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980). The defendant next argues that the court failed to explain adequately in affirmative terms what is meant by reasonable doubt. This is simply not the case. Examination of the allegedly deficient language discloses that in addition to stating what reasonable doubt is not, the court affirmatively stated: (1) "reasonable doubt . is a doubt for which you can give a reason"; (2) "a reasonable doubt is based upon reason and it is a doubt which grows out of the evidence or lack of evidence in the case"; and (3) "a reasonable doubt is one that is reasonable in the light of all of the evidence and one that is honestly entertained after a thorough evaluation and careful examination of all the evidence in the case." We have on numerous occasions affirmed the use of similar language in defining proof beyond a reasonable doubt. See State v. Derrico, supra; State v. Holley, 174 Conn. 22, 28, 381 A.2d 539 (1977); State v. Hall, 165 Conn. 599, 603, 345 A.2d 17 (1973); State v. Reid, 154 Conn. 37, 40, 221 A.2d 258 (1966); State v. Foord, 142 Conn. 285, 295, 113 A.2d 591 (1955). In another portion of the charge, the court instructed: "In civil cases, you will recall probably because other judges use it as an analogy or as an example — justice as a statue is often depicted as a female goddess blindfolded. The blindfold is because justice is impartial, unbiased, and she holds in her hand, this goddess, a balance scale. In civil cases where one party is suing another party and looking for money damages, the burden upon the party wishing to establish a fact is to shift that balance out of equipoise so that you may say it is more likely than not that what the fact that the party wishes to establish is so, a shifting out of equipoise. "The burden in a criminal case where a person is charged with violating a statute and faces a penalty if found guilty is greater. The state must shift that burden substantially out of the equipoise status so that you may say that I am convinced he is guilty beyond a reasonable doubt." As his final argument, the defendant claims that the court's reference to the blindfolded statue of justice and the shifting of the burden substantially out of the equipoise status has impermissibly intermingled the civil and criminal standards of proof in such a way that the criminal standard was substantially diminished in the eyes of the jury. The use of a balance scale analogy, while undesirable, is not inherently misleading. The danger is that the jury will become confused as to the proper burden of proof standard and will apply a preponderance of the evidence standard or something less than proof beyond a reasonable doubt of every fact necessary to constitute the crime. United States v. Clay, 476 F.2d 1211, 1214-15 (9th Cir. 1973). In State v. Smith, supra, 27-28, we reviewed the court's jury instruction that " 'if the evidence is in equipoise or equal, the State has not sustained its burden, and in that case, you would find the defendant not guilty. For the state to prevail, you must find the scales tipped beyond a reasonable doubt.' " We held, after consideration of the charge as a whole, that "the jury could have found the defendant guilty if they believed beyond a reasonable doubt that the 'scale' had been tipped in favor of conviction. This is not the same as the constitutionally mandated standard of proof beyond a reasonable doubt." We concluded that the jury could have been misled by this analogy to the tipping of a scale and, therefore, found error. ' The present instruction contains no such ambiguity. There is no reference to tipping the scales of justice beyond a reasonable doubt. The charge makes it clear that the level of proof must shift substantially out of equipoise in order to support a finding of guilt beyond a reasonable doubt. The instruction leaves no question that the state's burden is different — that the state's burden is greater. The balance scale analogy comes immediately after a full and correct instruction on reasonable doubt. "As we have often stated, the test tó be applied to any part of a charge is whether the charge as a whole presents the case to the jury so that no injustice will be done." State v. Derrico, supra, 170. Considering this charge in its entirety, there is no reason to conclude that the jury was misled, that it applied a lesser standard in weighing the burden of proof required of the state, or that other injustice has occurred. There is no error. In this opinion the other judges concurred.

Dupont, C. J. The defendant appeals from a judgment rendered by the trial court following a jury verdict for the plaintiffs. On appeal, the defendant claims that the trial court erred (1) in denying the defendant's motion for judgment notwithstanding the verdict on the ground that there was insufficient evidence to sustain it as to the negligence count of the plaintiffs' complaint and (2) in denying the defendant's motion to set aside the verdict, also on the ground of insufficient evidence. The jury could have reasonably found the following facts based upon the evidence submitted. On April 26, 1981, the plaintiff and Lois Hanson were playing golf at the defendant's golf course. Both the plaintiff and her husband, Thomas Ryan, who was a coplaintiff in this case, had been members of the club and had played golf there for several years.'While driving a three-wheeled golf cart on a paved cart path from the seventh tee to the seventh green, the plaintiff turned the golf cart downhill along the cart path. While traveling down the path, the golf cart turned sharply to the left, throwing Hanson, the passenger, out of the cart. The cart continued until it turned over. Both the plaintiff and her passenger sustained injuries. As a result of the accident, the plaintiff brought suit against the defendant. In addition, Lois Hanson, the plaintiff's passenger, instituted an action naming the plaintiff as a defendant for her alleged negligence in operating the golf cart. The two cases were consolidated for trial. Written interrogatories were submit ted to the jury in both cases. In the plaintiff's case, the jury returned a verdict for the plaintiff, finding that the cart path had been maintained in a defective manner and that the defect was the proximate cause of her injuries. The jury also found contributory negligence of 30 percent on the part of the plaintiff. As a result, judgment was rendered for the plaintiffs in the amount of $262,616.90. In the case brought against the plaintiff by her passenger, the jury returned a verdict against the plaintiff, finding that she had been negligent in her operation of the golf cart and that this negligence was the proximate cause of her passenger's injuries. Accordingly, Hanson was awarded $235,000 in damages. The jury also found that although the defendant country club had been negligent in maintaining a defective golf course, this negligence was not the proximate cause of Hanson's injuries. At the conclusion of the plaintiff's case, the defendant submitted a motion for a directed verdict on the negligence count of her complaint. The trial court reserved decision on the motion. After the jury returned a verdict for the plaintiff, the motion was denied. The defendant also filed a motion to set aside the verdict and a motion for judgment notwithstanding the verdict, both of which were denied by the trial court. The defendant subsequently filed this appeal. The defendant's claims of error involve the sufficiency of the evidence presented by the plaintiff in this case. The defendant argues that there was insufficient evidence to support a finding that it was negligent and that its negligence was the proximate cause of the plaintiff's injuries. In reviewing the motion for judgment notwithstanding the verdict and the motion to set aside the verdict, the same principles are to be applied to the trial court's action on each motion. Sauro v. Arena Co., 171 Conn. 168, 169, 368 A.2d 58 (1976); Greene v. DiFazio, 148 Conn. 419, 420, 171 A.2d 411 (1961). "If the court correctly refused to set aside the verdict, it then necessarily follows that it also properly denied the defendant's motion for judgment notwithstanding the verdict." Cruz v. Drezek, 175 Conn. 230, 232, 397 A.2d 1335 (1978). In examining the decision of the trial court on the defendant's motions, the evidence is to be considered in the light most favorable to the plaintiff. See Bielaska v. Waterford, 196 Conn. 151, 155, 491 A.2d 1071 (1985); Cruz v. Drezek, supra, 232; Reilly v. DiBianco, 6 Conn. App. 556, 573, 507 A.2d 106 (1986). The trial court's refusal to set aside a verdict is entitled to great weight and its decision will not be disturbed on appeal unless the court clearly abused its discretion. See Herb v. Kerr, 190 Conn. 136, 139, 459 A.2d 521 (1983); Zarrelli v. Barnum Festival Society, Inc., 6 Conn. App. 322, 327, 505 A.2d 25 (1986); Vazzano v. Slater, 6 Conn. App. 1, 4, 502 A.2d 440 (1986); Souper Spud, Inc. v. Aetna Casualty & Surety Co., 5 Conn. App. 579, 584, 501 A.2d 1214 (1985), cert. denied, 198 Conn. 803, 503 A.2d 172 (1986). "The test employed in analyzing a sufficiency of the evidence claim is whether or not, on the basis of the evidence introduced, a reasonable jury, properly motivated, could bring in a verdict against the defendants. Pelletier v. Bilbiles, 154 Conn. 544, 548-49, 227 A.2d 251 (1967)." Bielaska v. Waterford, supra, 156. Here, the plaintiff presented extensive evidence, in the form of testimony and exhibits, upon which the jury could have reasonably based its verdict. Evidence was introduced regarding the uneven nature of the golf cart path and the absence of any guardrails to keep the carts on the path or any warning signs to advise cart users to proceed with caution in the area of the accident. Furthermore, the plaintiff offered expert testimony regarding the slope of the hill where the accident occurred and the uneven nature of the cart path which, in the opinion of the plaintiffs expert witness, would have been one of the proximate causes of the accident. Finally, evidence was introduced that the defendant was aware of the defective condition, that the defendant knew, through one of its employees, of two prior accidents in the same area and that the defendant failed to take any action to remedy the defect. Under these circumstances, there was ample evidence upon which the jury could have based its verdict for the plaintiff. Thus, the defendant's claims that the trial court erred in denying its motions for judgment notwithstanding the verdict and to set aside the verdict are without merit. As part of its claim that the trial court erred in denying its motion to set aside the verdict, the defendant claims that the verdict in this case is not consistent with the verdict in the companion case brought by Hanson, the plaintiff's passenger, and, therefore, that a new trial should be ordered in this case on the negligence issue. The defendant's claim is without merit for several reasons. First, the verdicts are not inconsistent. In response to specific interrogatories, the jury indicated that in both cases the defendant "was negligent in the design, maintenance or construction" of the golf course. The jury found that this negligence was the proximate cause of the plaintiff's injuries, but not of her passenger's injuries. It also found that the plaintiff was 30 percent contributorily negligent. This was consistent with the finding in the companion case that the plaintiff's negligence was the proximate cause of her passenger's injuries. The jury could have concluded that, although the defendant was negligent in its design, maintenance or construction of the golf course, this negligence was not the proximate cause of Hanson's injuries. Second, even if we were to agree with the defendant that the verdicts were inconsistent, there was no showing by the defendant that consistent verdicts were required in the two cases. "[T]he rule has been laid down that a verdict does not necessarily have to be set aside on appeal because of its inconsistency with another verdict." 76 Am. Jur. 2d 122-23, Trial § 1154. Although inconsistent verdicts in the same case may be grounds for a new trial; see Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 577-78, 479 A.2d 781 (1984); Marko v. Stop & Shop, Inc., 169 Conn. 550, 556-57, 364 A.2d 217 (1975); there is no requirement for consistent verdicts in two separate cases which were consolidated for trial. See 89 C. J.S. 164-65, Trial § 500. Although there was only one jury, it rendered two separate verdicts in two distinct cases. Thus, the defendant's claim is unpersuasive. There is no error. In this opinion the other judges concurred. "Plaintiff' in this decision refers to Gina Ryan. As part of its insufficiency claims, the defendant argues that the plaintiff has also failed to prove that the defendant had notice of any specific defect on its premises and that the defendant's failure to warn the plaintiff about a condition of which she was already aware is without legal significance. Neither of these claims was raised at trial or in the defendant's preliminary statement of issues. This court is not required to consider claims unless they were distinctly raised at trial or arose subsequently to trial. See Practice Book § 3063; Trubowitz v. Trubowitz, 5 Conn. App. 681, 685, 502 A.2d 940 (1985). Accordingly, we decline to review the defendant's claims.

Shapiro, J. This is a foreclosure action brought by the holder of the first mortgage against various named defendants. After foreclosure by sale, and payment of the first mortgage and expenses of sale, the balance of the proceeds was held for distribution by the court below pending determination of priorities by this court. The record discloses some pertinent facts and the parties stipulated as to certain other facts. The facts may be summarized as follows: On November 19, 1968, the defendant Waltham Industries Corpo ration (hereinafter Waltham) acting by its president, Frederick C. Rieck, mortgaged certain real property in Stamford to the plaintiff, George L. Shaskan (hereinafter Shaskan). On September 12, 1969, Waltham (now known as Waltham Resources Corporation) conveyed its equity in the premises to the defendants Frederick C. Rieck (hereinafter Mr. Rieck) and Joyce A. Rieck (hereinafter Mrs. Rieck) who assumed the mortgage given by Waltham to Shaskan. On February 26, 1970, the defendant Lee Bunting (hereinafter Bunting) placed an attachment against Mr. Rieck's interest in said realty. On May 15, 1970, the defendants Chemical Bank New York Trust Company (hereinafter Chemical), Franklin National Bank (hereinafter Franklin), and New England Merchants National Bank of Boston (hereinafter Merchants), each made attachments of Mr. Rieck's interest in the realty and simultaneously commenced actions against him. The aforesaid attachments were made in conformity with the requirements of Connecticut General Statutes § 52-279 "and other Connecticut law then in effect" and were made without prior notice, hearing, determination of probable cause, showing of special circumstances or court order, none of which was waived by Mr. Rieck. The actions brought by Bunting, Chemical, Franklin, and Merchants resulted in valid and final judgments rendered on October 16,1970, for Chemical, Franklin, and Merchants, and on October 6, 1972, for Bunting. In each case a valid judgment lien was duly recorded in the Stam ford land records within four months of the entry of judgment, and, as required by G-eneral Statutes § 49-44, the judgment liens properly referred to the attachments. On June 10,1970, the defendant Chase Manhattan Bank (hereinafter Chase), haying actual notice of the aforesaid attachments against Mr. Rieck's interest in the realty, and in order to secure a pre-existing debt, took from Mr. and Mrs. Rieck, as joint tenants, a second mortgage on their property, which was recorded on June 11, 1970. . On October 13, 1972, Shaskan, who had brought an action for foreclosure of his first mortgage on the subject premises, obtained a judgment of foreclosure by sale which subsequently was modified as to the date of sale. The property was sold and the sale confirmed by the court. On July 27, 1973, by supplemental judgment, the remainder of the proceeds from the sale, after payment to Shaskan and payment of certain expenses incurred as a result of the sale, was ordered held in court pending further determination of priorities. The matter came to this court by a stipulation, signed by Shaskan, Chase, Chemical, Franklin, Merchants, Bunting and one Paul Stevens, for "the purpose of determining priorities between creditors of record," and to determine whether "the judgment liens filed against real estate . . , which judgment liens were filed prior to May 30, 1973, relate back to the date of the real estate attachments made pursuant to the then existing law of Connecticut . . . The stipulation provides further that in the event the judgment liens relate back to the dates of the filing of the attachments, Chase is entitled to one-half of the remaining proceeds of the sale, Bunting is entitled to satisfaction of his claim up to the amount of his attachment, and the remainder, under an agreement between them, to be divided among Chemical, Franklin and Merchants. In the event that the judgment liens do not relate back to the dates of the filing of the attachments, Chase would be entitled to the entire remaining proceeds of the sale. Chase makes the claim that attachments made pursuant to § 52-279 are not constitutionally valid since the attachments against Mr. Rieck's interest in the realty were made without prior notice to him, affording him a hearing in court, a determination of probable cause or, in the alternative, a showing of special circumstances, and, further, that there was no waiver from Mr. Rieck as to such proceedings — all in violation of Mr. Rieck's due process rights under the fourteenth amendment to the United States constitution and article first of the Connecticut constitution. The further claim is made that the judgment liens prescribed by § 49-44 cannot relate back to such constitutionally defective attachments. The defendants Chemical, Franklin, and Merchants assert that Chase does not have standing to challenge the constitutionality of the present real estate attachments on the grounds that said attachments constitutionally affect Mr. Rieck's rights, because those attachments were made against a property interest owned by him, not by the defendant Chase; and that the attachments were made in actions separate and distinct from the present case and said attachments were reduced to valid judgment liens as already recited. "Standing is an aspect of justiciability and, as such, the problem of standing is surrounded by the same complexities and vagaries that inhere in justiciability." Flast v. Cohen, 392 U.S. 83, 98, 88 S. Ct. 1942, 20 L. Ed. 2d 947. The constitutional question of standing is complex and has received the attention of the courts as well as of many academicians. Citing but a few — see New Haven v. Public Utilities Commission, 165 Conn. 687, 345 A.2d 563; also Sierra Club v. Morton, 405 U.S. 727, 92 S. Ct. 1361, 31 L. Ed. 2d 636; Data Processing Service v. Camp, 397 U.S. 150, 90 S. Ct. 827, 25 L. Ed. 2d 184; Flast v. Cohen, supra; Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663; Poe v. Ullman, 367 U.S. 497, 81 S. Ct. 1752, 6 L. Ed. 2d 989; Tennessee Power Co. v. T. V. A., 306 U.S. 118, 59 S. Ct. 366, 83 L. Ed. 543; Massachusetts v. Mellon, 262 U.S. 447, 43 S. Ct. 597, 67 L. Ed. 1078; Scenic Hudson Preservation Conference v. Federal Power Commission, 354 F.2d 608 (2d Cir.), cert. denied, 384 U.S. 941, 86 S. Ct. 1492, 16 L. Ed. 2d 540; note, "Mootness and Ripeness: The Postman Always Rings Twice," 65 Colum. L. Rev. 867; Jaffe, "Standing Again," 84 Harv. L. Rev. 633; Lewis, "Constitutional Rights and the Misuse of 'Standing,' " 14 Stan. L. Rev. 433; Davis, "The Liberalized Law of Standing," 37 U. Chi. L. Rev. 450; Davis, "Standing: Taxpayers and Others," 35 U. Chi. L. Rev. 601. In order for a party to challenge the constitutionality of a statute or an action predicated thereon he must have standing. Standing focuses on whether that party is the proper party to request adjudication of the issues. Flast v. Cohen, supra, 99-100. A person cannot challenge the constitutionality of a statute unless he shows that he himself is injured by its operation. Barrows v. Jackson, 346 U.S. 249, 257, 73 S. Ct. 1031, 97 L. Ed. 2d 1586. The emphasis is on whether the party has "a personal stake in the outcome of the controversy"; Baker v. Carr, supra, 204; and whether the dispute touches upon "the legal relations of parties having adverse legal interests." Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240, 57 S. Ct. 461, 81 L. Ed. 617. The general rule is that a litigant may only assert his own constitutional rights or immunities. United States v. Raines, 362 U.S. 17, 22, 80 S. Ct. 519, 4 L. Ed. 2d 524; see also McGowan v. Maryland, 366 U.S. 420, 81 S. Ct. 1101, 6 L. Ed. 2d 393; N. A. A. C. P. v. Alabama, 357 U.S. 449, 78 S. Ct. 1163, 2 L. Ed. 2d 1488; Tileston v. Ullman, 318 U.S. 44, 63 S. Ct. 493, 87 L. Ed. 2d 603. Where a right arising from the federal constitution is alleged, the most restrictive rule of standing to be applied by this court will be the federal one. Under Connecticut standards also, Chase would not have the requisite standing. Only members of a class whose constitutional rights are endangered by a statute may ask to have it declared unconstitutional. Connecticut Light S Power Co. v. Southbury, 95 Conn. 242, 246, 111 A. 363. One who is not injured by the operation of a law cannot be said to be deprived by it of his constitutionally protected rights. Hardware Mutual Casualty Co. v. Premo, 153 Conn. 465, 470-71, 217 A.2d 698; Coyle v. Housing Authority, 151 Conn. 421, 424, 198 A.2d 709; St. John's Roman Catholic Church Corporation v. Darien, 149 Conn. 712, 718, 184 A.2d 42; Windsor v. Whitney, 95 Conn. 357, 367, 111 A. 354. Aside from the mere question of standing, if his attack is to be successful, a litigant must sustain the burden of proving the facts essential to his standing, that is, that the effect or impact of the challenged statute on him adversely affects a constitutionally protected right which he has. This means a right which he proves that he has under the facts of his particular case. Kellems v. Brown, 163 Conn. 478, 483, 313 A.2d 53; Hardware Mutual Casualty Co. v. Premo, supra; Karen v. East Haddam, 146 Conn. 720, 727, 155 A.2d 921. We find no authority, nor has Chase cited any, in which a creditor, like itself, has standing to attack the attachments and judgments predicated thereon by seeking to stand in Mr. Rieck's shoes. By pleading Mr. Rieek's cause, upon the claim that his constitutional rights are endangered, Chase cannot claim standing to contest the constitutionality of statutes involved. None of Chase's rights has been invaded. "Courts are instituted to give relief to parties whose rights have been invaded, and to give it at the instance of such parties; and a party whose rights have not been invaded cannot be heard to complain if the court refuses to act at his instance in righting the wrongs of another who seeks no redress." Tyler v. Aspinwall, 73 Conn. 493, 498, 47 A. 755. We conclude that Chase has no standing to challenge the distribution of the proceeds and consequently the question reserved is not answered. No costs will be taxed in this court in favor of any party. In this opinion the other judges concurred. "[General Statutes] Sec. 52-279. when attachments may be granted. Attachments may be granted upon all complaints containing a money demand against the estate of the defendant, both real and personal . . . ." See Public Act No. 73-431 entitled "An Act Concerning Prejudgment Bemedies." "[General Statutes] Sec. 49-44. recording op judgment lien. WHEN IT HOLDS PROM ATTACHMENT. . [I]f SUCh lien. ÍS placed upon real estate attached in the suit upon which such judgment was predicated . . . , it shall hold from the date of such attachment . . . ." Other attachments were placed against Mr. Rieck's interest in the realty subsequent in time to the recited attachments, but their position as to priority is not relevant to the present case. The attachments do not relate in any way to Mrs. Bieck, and it has therefore been stipulated ¡that Chase is entitled to receive her half of the remaining proceeds of .the sale even if the judgment liens are held to relate back to the attachments.

Peters, J. This appeal contests the propriety of a second substituted information by which the state, after the commencement of trial, charged the defendant, Harold Jaeobowitz, with the crime of threatening after it had originally charged him with the crime of attempted murder. The defendant was also charged with a second count, attempted assault in the first degree, a charge not amended by the second substituted information. The trial court, Edelberg, J., granted the defendant's motion for acquittal on the assault count, and the jury found the defendant guilty of threatening. The defendant unsuccessfully moved for acquittal, for arrest of judgment and for a new trial. Thereafter he appealed from the judgment of conviction on the count of threatening and the state cross appealed from his acquittal on the count of assault. The procedural history of this case is not in dispute. The state, by a single count information dated July 28, 1978, originally charged the defendant with attempted murder in violation of General Statutes § 53a-49 (a) (1) and 53a-54a (a). In response to the defendant's motion for a bill of particulars, the state on June 18, 1979, filed a first substituted information in two counts. The state charged, in the first count, that the defendant on or about July 11, 1978, at approximately 9:10 p.m., at his premises at Old Colchester Road, Montville, committed attempted murder in violation of General Statutes § 53a-49 (a) (2) and 53a-54a (a) when, with intent to cause the death of another, he pointed a deadly weapon, a revolver, at the victim and fired said weapon at the victim. The second count charged that the defendant, at the same time and place, committed attempted assault in the first degree, in violation of General Statutes § 53a-49 (a) (2) and 53a-59 (a) (3) when, under circumstances evincing an extreme indifference to human life, he pointed a deadly weapon, a revolver, at the victim and fired said weapon at the victim. This first substituted information was the governing document pursuant to which the case went to trial. At the close of the presentation of the state's case to the jury, the state asked for and received the permission of the court to file a second substituted information. This amended the first count by deleting the charge of attempted murder and charged instead the crime of threatening, in violation of General Statutes § 53a-62 (a) (l), at Old Colchester Road in Montville, on or about July 11, 1978. The new information did not specify the hour at which the crime was alleged to have been committed, nor did it particularize the manner of its commission. Although the defendant took proper exception to the substitution of this new information, he requested neither a new bill of particulars nor a continuance. The evidence already adduced by the state at the time when the second substituted information was filed would have allowed the jury to find the following facts. The incident out of which the charges arose occurred at the premises of the defendant on Old Colchester Road in Montville. On July 11, 1978, at approximately 9 p.m., Thomas McKittrick, a New London deputy sheriff, went to the premises in order to serve the defendant with divorce papers. The defendant, when informed of the purpose of McKittrick's visit, abused him verbally and pointed a revolver at him. The defendant fired his revolver, but did not hit McKittrick, who had fallen to the ground. Although McKittrick heard the noise of a revolver's discharge, he did not see it being aimed or fired, and did not know whether he would have been hit had he not ducked. He was scared by this and ran to his vehicle in fear. The defendant followed him there, threw the divorce papers back into the car, and, revolver in hand, warned McKittrick that he would blow McKittrick's brains out if McKittrick told anyone about the incident. The state was concerned that these facts might be insufficient to establish the requisite intent for attempted murder, when it discovered at trial that McKittrick could not testify as to where the gun had been pointed at the time of its discharge. Neither the weapon nor a bullet was ever found, nor could McKittrick say whether the revolver was firing blanks or live ammunition. McKittrick admitted that the defendant could have killed him had the defendant wanted to do so. Further, the defendant, shortly after the incident, spoke to friends of chasing someone away without hurting him. The state put forward no further evidence after the contested amendment of the information. The defendant offered an alibi defense. The defendant and two of his business associates testified that they had been at an inn some 15-16 miles distant at the time of the incident. The theory put forward by the defense was that some other person with access to his house might have been involved in the altercation with McKittrick. I In his appeal, the defendant raises two issues. Did the trial court err in permitting the state to substitute, after presentation of the state's case, a new information charging threatening rather than attempted murder? Did the trial court err in its charge to the jury concerning alibi testimony? The basic principles that govern the state's right to amend its pleadings during the course of a criminal trial are well settled. Practice Book, 1978, § 624 provides, in relevant part: "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." The state's right to amend must be limited to substitutions that do not charge the defendant with an additional or different offense because the defendant has a constitutional right to fair notice, prior to the commencement of trial, of the charges against which he must defend himself. See U.S. Const., amend. VI; Conn. Const., art. I § 8. Unless the original and the amended informations charge the defendant with the same crime, as was the case in State v. Wallace, 181 Conn. 237, 435 A.2d 20 (1980), amendment is permissible only to charge a lesser included offense. The constitutional right to notice is satisfied as to lesser included offenses because, "where one or more offenses are lesser than and included within the one charged, notice of the one charged constitutes notice of any lesser included offenses. See Paterno v. Lyons, 334 U.S. 314, 320-21, 68 S. Ct. 1044, 92 L. Ed. 1409 (1948); Walker v. United States, 418 F.2d 1116, 1119 (D.C. Cir. 1969); State v. Conklin, 115 N.H. 331, 335, 341 A.2d 770 (1975); State v. Daniels, 223 Kan. 266, 271, 573 P.2d 607 (1977)." State v. Rodriguez, 180 Conn. 382, 402, 429 A.2d 919 (1980). In the case before us, the central issue with respect to the substitution of the second amended information is, therefore, whether the crime of threatening is a lesser included offense encompassed within the originally charged crime of attempted murder. We have recently had a number of occasions to restate, in the context of instructions to the jury, what constitutes a lesser included offense. See State v. Tinsley, 181 Conn. 388, 396-97, 435 A.2d 1002 (1980), cert. denied, 449 U.S. 1086, 101 S. Ct. 874, 66 L. Ed. 2d 811 (1981); State v. Morin, 180 Conn. 599, 601, 430 A.2d 1297 (1980); State v. Rodriguez, supra, 402-403; State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980). The criteria we there developed, with the exception of the first criterion of a request for a jury instruction, are equally relevant here. A crime is a lesser included offense if, and only if, the following conditions of State v. Tinsley, supra, are met: "(2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) the evidence, introduced by either the state or the defendant, or by a combination of their proofs, justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser." For present purposes, it is the second criterion that is the most debatable. Is it possible, under the specific allegations of the information and the bill of particulars, to attempt to murder someone by pointing a gun at him and firing it without first having threatened or attempted to threaten him I It is difficult to characterize properly the relationship between a charge of attempted murder and a charge of threatening. Although there is obvious overlap between the two crimes, each requires proof of different elements: attempted murder under General Statutes § 53a-49 (a) (2) and 53a-54a (a) requires the state to show intentional conduct constituting a substantial step toward intentionally causing the death of another person; threatening under General Statutes § 53a-62 requires the state to show that the defendant, by physical threat, intentionally placed or attempted to place another person in fear of imminent serious physical injury. It is not the danger or risk of injury, but the victim's perception, which is essential to the latter crime. As the defendant argues, attempted murder does not require placing in fear, and it is possible to imagine an attempted murder, such as a shot from ambush, in which there has been no prior threatening act. The question thus posed is whether the particularized information in this case sufficiently gave notice of a face-to-face confrontation between the defendant and the victim when it charged the defendant with pointing a gun and firing it at the victim. While the evidence at the trial clearly established that the defendant and the victim were facing each other, and the information for attempted murder might have so charged, we hold that it did not do so. See State v. Sylvester Brown, 163 Conn. 52, 61-62, 301 A.2d 547 (1972), and compare State v. Amaral, 179 Conn. 239, 242-43, 425 A.2d 1293 (1979). In our recent restatement of the test of lesser included offenses in State v. Tinsley and State v. Whistnant we have allowed recourse to the evidence presented at the trial with regard to the third and fourth criteria there set out, but such evidentiary considerations do not enter into the second criterion, which is limited to the contents of the information (or the indictment) and the bill of particulars. We conclude, therefore, that the trial court erred in permitting the state to substitute a new information charging the defendant with threatening rather than with attempted murder. We need not reach the defendant's second claim of error. The judgment rendered on the first count must be set aside. n The state, in its cross appeal, alleges error in the trial court's acquittal of the defendant on the second count of the substituted indictment, the count charging the defendant with attempted assault in the first degree in violation of General Statutes 53a-49 (a) (2) and 53a-59 (a) (3). This claim is not cognizable. The law of double jeopardy, as recently interpreted by the Supreme Court of the United States and by this court, bars judicial review of a judgment of acquittal. The prohibition against double jeopardy, that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb"; U.S. Const., amend. V; applies to state as well as to federal criminal proceedings. Greene v. Massey, 437 U.S. 19, 24, 98 S. Ct. 2151, 57 L. Ed. 2d 15 (1978); Benton v. Maryland, 395 U.S. 784, 795, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969); State v. Flower, 176 Conn. 224, 225, 405 A.2d 655 (1978). Because retrial after a judgment of acquittal would constitute double jeopardy, there can be no appellate review of any arguable errors underlying the judgment of acquittal. Sanabria v. United States, 437 U.S. 54, 69-70, 98 S. Ct. 2170, 57 L. Ed. 2d 43 (1978); State v. Flower, supra, 226. The state's cross appeal is dismissed. There is error in the judgment rendered against the defendant on the first count, that judgment is set aside, and the case is remanded with direction to render judgment that the defendant is not guilty. In this opinion the other judges concurred. These statutes provide, in relevant part: "[General Statutes] Sec. 53a-49. criminal attempt: sufficiency of conduct; renunciation as defense, (a) A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime, (b) Conduct shall not be held to constitute a substantial step under subdivision (2) of subsection (a) unless it is strongly corroborative of the actor's criminal purpose." "[General Statutes] See. 53a-54a. murder defined, affirmative DEFENSES. EVIDENCE OF MENTAL CONDITION. CLASSIFICATION. (a) A person is guilty of murder when, with intent to cause the death of such person, he causes the death of such person . . . ." General Statutes § 53a-59 provides, in relevant part: "assault in the first degree: class B felony, (a) A person is guilty of assault in the first degree when . (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person." General Statutes § 53a-62 provides, in relevant part: "threatening: class A misdemeanor, (a) A person is guilty of threatening when: (1) By physical threat, he intentionally places or attempts to place another person in fear of imminent serious physical injury . . . ." General Statutes § 53a-62 provides, in relevant part: . . (a) A person is guilty of threatening when: (1) By physical threat, he intentionally places or attempts to place another person in fear of imminent serious physical injury

Bogdanski, J. This case arises out of a request by the state of New Jersey for the extradition of the plaintiff and the subsequent issuance of a second rendition warrant in Connecticut. The plaintiff was arrested in Connecticut pursuant to a rendition warrant of the governor dated January 23, 1979. The warrant charged the plaintiff with the crime of "Escape." The plaintiff filed a writ of habeas corpus which was granted and he was released from custody on the ground that the warrant was defective in that it did not reflect allegations of substantive crimes committed in the demanding state. The supporting documents did not indicate that the plaintiff was charged with the crime of escape in New Jersey. On March 5, 1979, the governor of Connecticut issued a second rendition warrant based upon the original requisition papers. This warrant charged the plaintiff with having been convicted of robbery and armed robbery in the demanding state and thereafter escaping from custody. The plaintiff was taken into custody pursuant to the second rendition warrant. On March 16, 1979, he filed another habeas corpus petition, which was heard on April 9,1979. At that hearing the plaintiff raised the issue of whether the new warrant was invalid because of the failure to obtain a second set of requisition papers from the demanding state. The trial court denied the petition on the ground that the supporting documents of the demanding state were sufficient and that there was no defect in the rendition warrant. The trial court indicated that to compel the demanding state to forward a second set of identical papers once the asylum state had remedied the defect in its warrant would be "holding form over substance." From that judgment, the plaintiff has taken this appeal. In his brief the plaintiff has raised various issues not raised in the trial court. Issues not raised in the trial court will not be considered on appeal. Practice Book, 1978, § 3063; New Haven Savings Bank v. Valley Investors, 174 Conn. 77, 83, 384 A.2d 321 (1977). There are no circumstances in this case to justify an exception to the rule. "Only in most exceptional circumstances can and will this court consider a claim, constitutional or otherwise, that has not been raised and decided in the trial court." New Haven Savings Bank v. Valley Investors, supra, 84, citing State v. Evans, 165 Conn. 61, 69, 327 A.2d 576 (1973). "We consider only the limited issues which gave rise to this appeal. The first issue raised in this appeal is whether an asylum state may issue a second rendition warrant based upon original requisition papers where habeas corpus relief has been granted due to a flaw in the first rendition warrant. In his argument the plaintiff relies upon General Statutes § 54-163 which states, in part: "If the governor decides that the demand should be complied with, he shall sign a warrant of arrest . . . ." The plaintiff would have us interpret the word "a" to mean the governor is limited to just one warrant. This contention, however, overlooks the provision of General Statutes § 54-177 which states: "The governor may recall his warrant of arrest or may issue another warrant whenever he deems proper." Moreover, in General Statutes § 54-157 through 54-185, Connecticut has enacted the Uniform Criminal Extradition Act. Since this chapter constitutes a uniform act, precedents from other jurisdictions are helpful in construing the act. A rendition warrant need not be drawn in any particular form or language, and clerical errors or technical faults or variances will not affect its validity. Fernandez v. Phillips, 268 U.S. 311, 45 S. Ct. 541, 69 L. Ed. 970 (1925); Self v. People, 133 Colo. 524, 297 P.2d 887 (1956); 31 Am. Jur. 2d, Extradition § 61. Indeed, this court has recognized the validity of an extradition proceeding where sufficient ground for detention exists and where defects may have occurred in the original arrest or commitment. Glavin v. Warden, 163 Conn. 394, 400, 311 A.2d 86 (1972). Thus, under the statute and case law, the governor had the right to issue a second rendition warrant. The plaintiff next contends that the doctrine of res judicata prevents issuance of the second warrant. "In a criminal, as well as in a civil case, the doctrine of res adjudicata requires that a judgment in a former action between the same parties be held conclusive as to any issue therein determined." State v. Camera, 132 Conn. 247, 249, 43 A.2d 664 (1945). The doctrine is enforced on the ground of public policy and seeks to prevent a multiplicity of actions. Corey v. Avco-Lycoming Division, 163 Conn. 309, 316-17, 307 A.2d 155 (1972), cert. denied, 409 U.S. 1116, 93 S. Ct. 903, 34 L. Ed. 2d 699 (1973). If the same cause of action is again sued on, the judgment is a bar with respect to any claims relating to the cause of action which were actually made or might have been made. Local 1219 v. Connecticut Labor Relations Board, 171 Conn. 342, 355, 370 A.2d 952 (1976). There must be a judgment on the merits, however, in order to invoke the doctrine of res judicata. Cases disposed of on technical grounds are not judgments on the merits. Hoffman v. Blaski, 363 U.S. 335, 80 S. Ct. 1084, 4 L. Ed. 2d 1254 (1960); 46 Am. Jur. 2d, Judgments § 477. Since there was no judgment on the merits, there was no res judicata bar to the second action. There is no error. In this opinion Peters, J., concurred. We are aware that the plaintiff is appearing pro se in this appeal. We note in this regard that "[a] party who, unskilled in such matters, seeks to remedy some claimed wrong by invoking processes which are at best technical and complicated . . . assumes a most difficult task." O'Connor v. Solomon, 103 Conn. 744, 745, 131 A. 736 (1926). "Under the circumstances this court will, however, exhibit some degree of leniency towards the defendants, who have appeared pro se, although we cannot, and will not, entirely disregard the established rules of procedure, adherence to which is necessary in order that . . . the real issues in controversy may be presented and determined." Hartford National Bank & Trust Co. v. DiFazio, 177 Conn. 34, 39 n.2, 411 A.2d 8 (1979).

Pee Ctteiam. The defendant was charged by information with two counts of larceny in the first degree for allegedly embezzling approximately $309,000 from his employer. At trial, the defendant presented evidence that at the time of the commission of the crimes with which he was charged he was unable to conform his conduct to the requirements of the law as the result of a mental defect known as pathological or compulsive gambling. On the basis of the psychiatric testimony presented, the trial court found the defendant not guilty by reason of insanity pursuant to General Statutes § 53E-13. Thereafter, the defendant was ordered committed to a state mental hospital under General Statutes §53a-47(a) (l) to determine whether "his release [from custody] would constitute a danger to himself or others." General Statutes §53a-47(a) (3). At a subsequent hearing under § 53a-47(a) (4), the trial court heard the testimony of Hans Lang-hammer, a staff psychiatrist at Norwich State Hospital called by the state, and Marvin Steinberg, a psychologist called by the defendant. At the conclusion of the hearing, the trial court in an oral decision found that the defendant did not constitute a danger to himself or others, and it ordered his release. The state, after obtaining the permission of the trial court pursuant to $ 54-96 of the General Statutes, appealed to this court claiming that the trial court erred by interpreting the phrase "a danger to himself or others" in $ 53a-47(a) (4) to mean only a physical danger, and not a danger to property. The state argues that the trial court found the defendant to be a danger to property and that such a danger is included within the meaning of "a danger to himself and others" in the statute. The defendant responds that the court found only that the defendant was "possibly" a danger to property, but that even if he were so, he was nonetheless prop erly released because the statute is limited to physical danger. In its oral decision, the court stated: "[A]s this court understands the testimony, I believe Dr. Lang-hammer was very precise in this, he indicated that there was no danger as far as physical harm was concerned. There was a danger as far as property was concerned possibly by the defendant's action in this matter," (Emphasis added.) It is unclear whether the trial court was merely recapitulating the psychiatrist's testimony or whether it was making a finding of fact. Also, the use of the word "possibly" regarding danger to property adds to the ambiguity of the court's oral decision. Whether the defendant was a danger to property is a question of fact which must be determined before we may properly review the claims made in this appeal. It is the function of the trial court, not this court, to find facts. It is therefore necessary for us to remand this case for a further articulation of the trial court's decision on whether the defendant was a danger to property. "The supervision of a case on appeal is in the Supreme Court. Practice Book § 3096; State v. McCarthy, 167 Conn. 472, 477, 356 A.2d 165 (1975). Where 'necessary to the proper disposition of the cause,' this court may 'remand the case for a further articulation of the trial court's decision.' Practice Book § 3060D . . . ." State v. Ostroski, 184 Conn. 455, 460, 440 A.2d 166 (1981), cert. denied, 459 U.S. 878, 103 S. Ct. 173, 74 L. Ed. 2d 142 (1982); Kaplan v. Kaplan, 185 Conn. 42, 46, 440 A.2d 252 (1981). The case is remanded to the trial court with direction to file a memorandum of decision articulating the basis upon which it found the defendant not to be a danger to himself or others. General Statutes § 53a-13 then provided, in. relevant part: "In any prosecution for an offense, it shall be a defense that the defendant, at the time of the proscribed conduct, as a result of mental disease or defect lacked substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.. ." "[General Statutes] Sec. 53a-47 acquittal on grounds of MENTAL DISEASE OR DEFECT. CONFINEMENT AND EXAMINATION. release, (a) . (l)When any person charged with an offense is acquitted on the grounds of mental disease or defect, the eourt shall order such person to be temporarily confined in any of the state hospitals for mental illness for a reasonable time, not to exceed ninety days, for an examination to determine his mental condition, except that, if the court can determine, on the basis of the evidence already before it, that such person is not mentally ill to the extent that his release would constitute a danger to himself or others;, the eourt may order his immediate release, either unconditionally or conditionally pursuant to subdivision (2) of subsection (e). (2) The person to be examined shall be informed that, in addition to the examination provided for in subdivision (1), he has a right to be examined during such confinement by a psychiatrist of his own choice. (3) Within sixty days of the confinement pursuant to subdivision (1), the superintendent of such hospital and the retained psychiatrist, if any, shall file reports with the court setting forth their findings and conclusions as to whether such person is mentally ill to the extent that his release would constitute a danger to himself or others. Copies of such reports shall be delivered to the state's attorney or prosecutor and to counsel for such person. (4) Upon receipt of such reports, the court shall promptly schedule a hearing. If the court determines that the preponderance of the evidence at the hearing establishes that such person is mentally ill to the extent that his release would constitute a danger to himself or others, the court shall confine such person in a suitable hospital or other treatment facility. . . ."

Arthur H. Healey, J. The sole issue on appeal in this case, which involves the question of entitlement to special education benefits, is whether a hearing officer, appointed pursuant to General Statutes § 10-76h (c), is required to be named and served as a defendant in a subsequent appeal to the Superior Court, under General Statutes § 4-183 (b) and 10-76h (e) . This is a consolidated appeal of two cases with essentially identical facts. Each case involves a child residing in the town of Fairfield who was in need of special education within the meaning of General Statutes § 10-76a et seq. Each child was enrolled in a residential special education program outside Fairfield. In each case, the plaintiff board of education of the town of Fairfield (hereinafter, the town) contested its obligation to pay for the programs, in whole or in part. In each case, pursuant to General Statutes § 10-76h (c) and the Regulations of Connecticut State Agencies § 10-76h-l (e) et seq., the named defendant, the state department of education (hereinafter the department), appointed a hearing board consisting of one hearing officer. Each case was heard by a different hearing officer who constituted the hearing board. Each hearing officer ruled against the town, holding that the town was responsible for the educational costs of each child's placement in a residential facility outside Fairfield. An administrative appeal was filed by the plaintiff town in each case pursuant to General Statutes § 10-76h and 4-183. The department of education, the parents or guardians of each child, and the attorney general were named as parties in the appeals. The department filed essentially identical motions to dismiss the appeal in each case on the ground that the plaintiff "failed to name and serve the hearing officer as a defendant as required by Sec. 4-183 (b)." The trial court, Driscoll, J., granted the motions to dismiss and, in a memorandum of decision in June, 1982, found that the hearing board was an "agency" under General Statutes § 4-166 (1) and, as a result, concluded that General Statutes § 4-183 (b) had not been complied with because the hearing officer had not been served or named as a defendant. The plaintiff town appealed the trial court's dismissals. The first appeal, commenced in the Superior Court in September, 1981, was brought by the town to the Appellate Session of the Superior Court. The Appellate Session reversed the trial court's decision in the first appeal and remanded the case with direction to deny the motion to dismiss. Board of Education v. State Department of Education, 39 Conn. Sup. 443, 448, 466 A.2d 343 (1983). The department petitioned this court for review of the Appellate Session's decision, and the petition was granted in September, 1983. The second appeal, commenced in Superior Court prior to July 1, 1981, is before this court after a petition for certification by the town was granted in September, 1983. The unusual procedural history of this appeal prompts us to comment on the focus of our review. Ordinarily, in an appeal from the Appellate Court, or in this case the Appellate Session of the Superior Court, after the granting of certification, "the focus of our review is not the actions of the trial court, but the actions of the Appellate Court. We do not hear the appeal de novo." State v. Torrence, 196 Conn. 430, 433, 493 A.2d 865 (1985); State v. Beckenbach, 198 Conn. 43, 47, 501 A.2d 752 (1985). This consolidated appeal, however, also involves an appeal, upon certification, from the decision of the trial court dismissing the plaintiff's administrative appeal. Because certification on this consolidated appeal was limited to a specific question; Practice Book § 3154; our review will be limited to the substantive issue as set forth in the petitions for certification and as set out above. The Appellate Session's decision in favor of the plaintiff town held that the hearing officer or board is "merely the instrumentality of the department [of education] to hear a particular case" and that the department is the agency for purposes of the Uniform Administrative Procedure Act (UAPA). Thus, it was unnecessary to name and serve the hearing board because it is not an "agency" as defined in the UAPA. Board of Education v. State Department of Education, supra, 449. We agree. "The legislature has delegated to the state board of education the broad and general power to supervise and control the educational interests of the state. General Statutes § 10-4. The department is the administrative arm of the state board of education. General Statutes § 10-3a. Thus, the state board, acting through the department, is the agent for the state in all matters relating to education, including special education. General Statutes § 10-76b, 10-76d . . . ." Board of Education v. State Department of Education, supra, 448. In each of these cases, an administrative hearing at the state level was conducted at the request of a party who was aggrieved by a decision of the plaintiff town regarding an individualized educational program for a special education student. General Statutes § 10-76h (c). The hearing at the state level was conducted by an "impartial hearing board" established by the state board of education. Appeals from this hearing board "shall be taken in the manner set forth in section 4-183." General Statutes § 10-76h (e). The Uniform Administrative Procedure Act; General Statutes § 4-183; provides a statutory framework within which an appeal from an administrative agency may be taken. Section 4-183 (b) specifically provides that "[cjopies of the petition [of appeal] shall be served upon the agency and all parties of record . . . .''The trial court, in granting the department's motions to dismiss, interpreted this provision to require the hearing board to be named and served as a party because it was an "agency" under the UAPA. The hearing board, established by the department of education, is not an agency for the purpose of taking an appeal under the UAPA. An "agency" is defined by General Statutes (Rev. to 1981) § 4-166 (1) as "each state board, commission, department or officer, other than the legislature, courts, judicial review council, governor, lieutenant governor, attorney general or town or regional boards of education, authorized by law to make regulations or to determine contested cases." Although the language of this statute explicitly sets forth the different entities which do and do not constitute an agency, the determination of whether the hearing officer fits within one of those categories is not clear on the face of the statute. "In construing a statute, common sense must be used, and courts will assume that the legislature intended to accomplish a reasonable and rational result. Norwich Land Co. v. Public Utilities Commission, 170 Conn. 1, 4, 363 A.2d 1386 (1975)." Stoni v. Wasicki, 179 Conn. 372, 376-77, 426 A.2d 774 (1979). The hearing officer cannot be said, under the statutory scheme, to be a "state officer" or "state board" but is rather a hearing board of the "state department" of education specifically established by statute and implemented by departmental regulations. See General Statutes § 10-76h; Regs., Conn. State Agencies § 10-76h-2 (e). The defendant department argues that the state department of education and the hearing board appointed by it are "separate and distinct entities" and that such a distinction must be maintained "in order to be in compliance with federal law," specifically the Education for All Handicapped Children Act (EHA), 20 U.S.C. § 1401 et seq. As proof of this need for segregating the entities, the defendant cites a Fifth Circuit case which held that the Georgia state board of education could not appoint a hearing officer and yet retain concurrent authority to reject the officer's findings. Helms v. McDaniel, 657 F.2d 800, 805 (5th Cir. 1981), cert. denied, 455 U.S. 946, 102 S. Ct. 1443, 71 L. Ed. 2d 658 (1982). The holding of Helms v. McDaniel, supra, does not impact on the issue in the case before us because it addressed the need for the finality of the hearing officer's decision for the purposes of appeal. Rather, an analysis of the origin, existence and function of the hearing board should be undertaken. See, e.g., Hopkins v. Pac, 180 Conn. 474, 477, 429 A.2d 952 (1980). Moreover, despite the defendant department's federal funding arguments, the "federal gloss given to procedures" is not applicable to one seeking to perfect an administrative appeal under the facts of this case. The hearing board is the creation of the state department of education, authorized by statute, and its existence and function are limited to hearing and deciding a particular contested case. A situation somewhat analogous to the one before us is found in Catholic Family & Community Services v. Commission on Human Rights & Opportunities, 3 Conn. App. 464, 489 A.2d 408 (1985), in which the sole issue was whether the hearing officer appointed by the defendant should have been served in an administrative appeal to the trial court. The Appellate Court held that a hearing examiner appointed by the chairman of the commission does not "gain status independent of the commission. His determinations have validity only because of the authority vested in him by the chairman of the commission." Catholic Family & Community Services v. Commission on Human Rights & Opportunities, supra, 467. Simi larly, the hearing board appointed by the state board of education does not gain status independent of the department which establishes it for a single contested case. "It has no other duties and takes no part in the administrative functions of the department, as for example, policy and rule-making. It is not charged with the protection of any public interest. Cf. Rommel v. Walsh, 127 Conn. 16, 23-24, 15 A.2d 6 (1940)." Board of Education v. State Department of Education, supra, 448. The conclusion that the plaintiffs appeal was authorized by the UAPA finds additional support in the plaintiffs observation that the definition of an "agency" under § 4-166 shows that an agency must be authorized to "determine contested cases." (Emphasis added.) Because each hearing officer or hearing board is appointed to hear and to determine only one contested case, the plaintiff town argues that it cannot, for that reason alone, be an "agency." Not only does the hearing board hear and determine only one case, but it also must render a decision within thirty days. The life span of such a board amounts to a "brief ad hoc existence." according to the plaintiff town. This board is truly "ad hoc" which literally means "for this; for this special purpose." Black's Law Dictionary (5th Ed.). In addition, the decision rendered by the hearing board is enforced by the state board of education if the board of education of the child's school district "does not take action on the findings or prescription of said hearing . . . board . . . ." General Statutes § 10-76h (e) (2). This statutory mandate that the state board of education or the state department of education enforce the hearing board's ruling indicates that the hearing board is created in order to make an impartial determination of educational benefits in accordance with due process requirements. Once the board has made its determination, its existence, for all intents and pur poses, is over, its raison d'etre is satisfied, and it is for the department to undertake any further action to enforce its ruling. As the department correctly notes, there must be strict adherence to statutory provisions when taking an appeal under the UAPA. Rogers v. Commission on Human Rights & Opportunities, 195 Conn. 543, 550, 489 A.2d 368 (1985); Royce v. Freedom of Information Commission, 177 Conn. 584, 587-88, 418 A.2d 939 (1979); In re Nunez, 165 Conn. 435, 441, 33 A.2d 898 (1973). The plaintiff complied with all applicable statutory provisions. It was not necessary to name and serve the hearing board under General Statutes § 4-183 (b) because the hearing board is not an agency within the meaning of General Statutes § 4-166 (1) for purposes of appeal under the UAPA. There is error in No. 12349 (CV81-194361), the judgment of dismissal is set aside and that case is remanded with direction to deny the motion to dismiss and to proceed according to law; there is no error in No. 12350 and the decision of the Appellate Session, Board of Education v. State Department of Education, 39 Conn. Sup. 443, 466 A.2d 343 (1983), is affirmed. In this opinion the other judges concurred. The relevant portion of General Statutes (Rev. to 1981) § 10-76h (c) provides: "(c) The state board of education shall, on receipt of request for a hearing made in accordance with the provisions of subdivision (2) of subsection (a) or (b) of this section, establish an impartial hearing board of one or more persons knowledgeable in the fields and areas significant to such educational review of such child or pupil. Members of the hearing board may be employees of the state department of education or may be qualified persons from outside said department. No person who participated in the previous diagnosis, evaluation, or prescription of education programs or exclusion or exemption from school privileges under review, nor any member of the board of education of the school district under review, shall be a member of the hearing board." General Statutes (Rev. to 1981) § 4-183 (b) provides: "(b) Proceedings for such appeal shall be instituted by filing a petition in superior court for the judicial district of Hartford-New Britain or for the judicial district wherein the aggrieved person resides or if such person is not a resident of this state to the court for the judicial district of Hartford-New Britain within forty-five days after mailing of the notice of the final decision of the agency or, if a rehearing is requested, within forty-five days after the decision thereon. Copies of the petition shall be served upon the agency and all parties of record within thirty days after mailing of such notice or, if a rehearing is requested, thirty days after the decision thereon, except that service upon an agency may be made by mailing a copy of the petition by registered or certified mail, postage prepaid, to the office of the commissioner of the agency or to the office of the attorney general in Hartford." General Statutes (Rev. to 1981) § 10-76h (e) provides in pertinent part: "Appeals from the decision of the hearing board shall be taken in accordance with section 4-183 . . . . " A third case, Board of Education of the Town of Fairfield v. Connecticut State Department of Education et al., Docket No. CV80-183298, a companion case to the case remaining on appeal in No. 12349 (Docket No. CV81-194361), was resolved, and the board of education of the town of Fairfield withdrew its appeal pursuant to Practice Book § 3075 on December 21, 1984. The motions to dismiss also claimed that the plaintiff "failed to allege aggrievement by the hearing officer's decision, as required by Sec. 4-183 (a)." That issue is not before us on this appeal. See Board of Education v. State Department of Education, 39 Conn. Sup. 443, 446-47, 446 A.2d 343 (1983). General Statutes (Rev. to 1981) § 4-166 (1) provides in pertinent part: "(1) 'Agency' means each state board, commission, department or officer, other than the legislature, courts, judicial review council, governor, lieutenant governor, attorney general or town or regional boards of education, authorized by law to make regulations or to determine contested cases. . . The defendant also relies extensively on Campochiaro v. Califano, Civ. No. H-78-64 (D. Conn. 1978), which was a ruling on a motion for a preliminary injunction and on a motion to dismiss. The federal District Court found that there was a probability that the plaintiffs would prevail in their contention that local board of education members may not conduct due process hearings. Campochiaro v. Califano, supra; see also 20 U.S.C. § 1415 (c) and (e) (1); Helms v. McDaniel, 657 F.2d 800, 805 (5th Cir. 1981), cert. denied, 455 U.S. 946, 102 S. Ct. 1443, 71 L. Ed. 2d 658 (1982). The state department of education is no longer allowed to appoint employees of state and local educational agencies to hearing boards in due process review proceedings. General Statutes § 10-76h (c) (2); cf. General Statutes (Rev. to 1981) § 10-76h (c).

Peters, C. J. The only issue on this appeal is the admissibility of an in-court identification of the defendant. The defendant, Francisco Perez, a/k/a Jorge Sanchez, appeals his conviction, after a jury trial, of the crimes of robbery in the first degree, in violation of General Statutes § 53a-134 (a) (4), and possession of a sawed-off shotgun, in violation of General Statutes § 53a-211 (a). We find no error. The jury could reasonably have found the following facts relevant to this appeal. On the morning of October 16,1980, an elderly package store owner was work ing alone behind the counter of his store in West Hartford when two men entered. The first to enter was an Hispanic man who bought a can of beer, left, and then returned to buy a lottery ticket that he had earlier contemplated purchasing. The second was the defendant, who initially went to the the back of the store to obtain a can of beer and then came to the store counter, displayed a sawed-off shotgun, and told the store owner that he was being held up. The first man, after emptying the cash register, took the store owner to a back room, ordered him to remove his clothes, and threatened to kill him if he reappeared. In the meantime, the defendant had set off a bell by the door. The store owner, although frightened by the robbery, had the opportunity to observe the defendant across the counter, a distance of some three feet, when the defendant first threatened him, and again from the entrance to the back room when the defendant set off the bell, a distance of some twelve feet. The robbery in its entirety took between four and five minutes. The police arrived on the scene almost immediately and obtained a description of the two robbers from the store owner. He described the defendant as a thirty year old, clean-shaven, dark-complected man with braided hair, white freckles and a scar under his right cheek. The store owner mistakenly characterized the defendant as a black man. The store owner also described the defendant's head as being rounder and larger than that of his accomplice, and described an item of the defendant's clothing, a knee-length overcoat of a light color. Although only the store owner had observed the crime itself, three witnesses, including a police officer, saw two men walking rapidly from the scene of the crime and speeding away in an orange car. The orange car was soon discovered at a local housing project, in a parking place previously unoccupied and with its hood hot to the touch. The car was parked in front of the apartment where the police located the defendant and his accomplice. In their search of the apartment, the police found a sawed-off shotgun, the keys to the orange car, and other evidence linking the defendant with the crime. The orange car bore the defendant's fingerprints. About one hour after the robbery, the police brought the store owner to the housing project, telling him that the men who had robbed him might be there. There were a number of police cars in the general area. The defendant and his accomplice were standing among a group of eight to twelve people, including some policemen in plain clothes, in the vicinity of approximately one hundred people, most of whom were blacks or hispanics. Although the defendant was handcuffed behind his back, the handcuffs were at least in part concealed by a jacket draped over his shoulder. The store owner selected only two men out of the group, the defendant and his accomplice. The store owner told the police that he could positively identify the accomplice, but that he was not 100 percent sure of the identity of the defendant. Later that day, when the store owner again viewed the robbers, this time outside of a police car iri front of his package store, the store owner repeated his positive identification of the accomplice and his lack of complete certainty about the defendant. The store owner was then only 70 percent certain about the defendant's identity because, in reflecting upon the robbery after it was over, the store owner was traumatized by the events of the day. The next day, however, having considered the matter further, he had no doubts about his identification of the defendant. At the defendant's trial, the store owner made an unqualified in-court identification of the defendant as one of the two individuals who had robbed him on October 16, 1980. The defendant moved that this in-court identification be suppressed as resulting from the pretrial identifications which the defendant characterized as suggestive and unreliable. After a hearing in the absence of the jury, the trial court denied the defendant's motion. Without expressly ruling on the alleged suggestiveness of the pretrial identifications, the court held that the in-court identification was admissible because it was independent of the earlier identifications and resulted instead from the store owner's recollection of the crime itself. The defendant took an exception to the court's ruling. This ruling is the sole basis for the defendant's appeal. The defendant asks us to order a new trial for four reasons arising out of the contested in-court identification. The defendant claims that: (1) the pretrial show-up procedure employed by the police, first at the housing project and later at the package store, was unnecessarily suggestive; (2) the identification was not, in the totality of the circumstances, reliable; (3) the in-court identification was not adequately proven to have been independent of the unnecessarily suggestive and unreliable pretrial identification; and (4) the admission of an in-court identification tainted by an unconstitutional pretrial identification cannot be harmless error and therefore requires reversal. Because we find that the in-court identification was properly admitted, we need not address the last of these claims. We have often stated the test that governs the suppression of identification evidence derived from procedures that are challenged as violative of a defendant's constitutional rights to due process. In order to succeed on his motion to suppress, the defendant must prove (1) that the identification procedures were unnecessarily suggestive, and (2) that the resulting identification was not reliable in the totality of the circumstances. State v. Hinton, 196 Conn. 289, 292-93, 493 A.2d 837 (1985); State v. Austin, 195 Conn. 496, 499, 488 A.2d 1250 (1985); State v. Myers, 193 Conn. 457, 464, 479 A.2d 199 (1984); State v. Gordon, 185 Conn. 402, 413, 441 A.2d 119 (1981), cert. denied, 455 U.S. 989, 102 S. Ct. 1612, 71 L. Ed. 2d 848 (1982); State v. Theriault, 182 Conn. 366, 371-72, 438 A.2d 432 (1980); and see Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 199-201, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972); Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968). The defendant's argument that the identification in this case was unnecessarily suggestive rests on his contention that what occurred at the housing project was a one-on-one show-up that could have been avoided had the police chosen to organize a line-up. Whenever someone is asked to identify a person under circumstances in which it is evident that the police believe the person to be a suspect, there is a significant risk that the ensuing identification will have resulted from the suggestiveness of the procedure rather than from the viewer's independent recollection. State v. Dupree, 196 Conn. 655, 667, 495 A.2d 691 (1985) (single photograph); State v. Guertin, 190 Conn. 440, 456, 461 A.2d 963 (1983) (hospital identification in presence of police officer); State v. Maturo, 188 Conn. 591, 595-96, 452 A.2d 642 (1982) (four persons shown to a victim who had been robbed by only three); State v. Hamele, 188 Conn. 372, 375-77, 449 A.2d 1020 (1982) (show-up at crime scene); State v. Brown, 187 Conn. 602, 614-17, 447 A.2d 734 (1982) (station house show-up); State v. Gordon, supra, 416-417 (station house show-up); State v. Theriault, supra, 371-73 (police barracks show-up). The facts of this case do not, however, demonstrate a one-on-one confrontation between victim and suspect. When the store owner first saw the defendant at the housing project, the defendant was among a group of people who resembled him in racial makeup. According to the testimony at trial, the defendant's handcuffs were not visible to the store owner, and the police officer guarding the defendant was wearing plain clothes. These facts, together with the desirability of promptly establishing either the defendant's complicity or his innocence; Simmons v. United States, supra, 384; Bates v. United States, 405 F.2d 1104, 1106 (D.C. Cir. 1968); State v. Hamele, supra, 377; State v. Middleton, 170 Conn. 601, 608, 368 A.2d 66 (1976); remove this case from the category of an unnecessarily suggestive identification procedure. The store owner's reluctance to make an immediate uncategorical identification of the defendant is not evidence of an initial misidentification but rather demonstrates the conduct of a witness exercising independence of judgment under stressful circumstances. The conduct of the police in returning the defendant and his accomplice to the package store for a further viewing by the store owner was not, under these circumstances, independently suggestive. If the initial identification at the housing project was not suggestive, the subsequent show-up did not make it so. State v. Myers, supra, 465; State v. Anderson, 178 Conn. 287, 292, 422 A.2d 323 (1979). Nothing on this record indicates that this witness would have been more susceptible to suggestion at his store than at the housing project. Indeed, the fact that the second identification entirely replicated the earlier one demonstrates that the store owner was "an unlikely candidate for subliminal seductions." State v. Ledbetter, 185 Conn. 607, 615, 441 A.2d 595 (1981). In any event, even if we were to assume that the procedures employed by the police were unnecessarily suggestive, the defendant has failed to demonstrate the unreliability of the identification. "[I]n assessing the admissibility of in-court identification testimony, reliability is the 'linchpin.' Manson v. Brathwaite, [supra], 114; State v. Piskorski, 177 Conn. 677, 742, 419 A.2d 886 [cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194] (1979). Reliability is to be determined by the totality of the circumstances as emphasized in Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967), and Neil v. Biggers, [supra]." State v. Gold, 180 Conn. 619, 655, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S. Ct. 320, 66 L. Ed. 2d 148 (1980). The store owner had ample opportunity to see the defendant at close hand; the store owner described the robber accurately apart from the darkness of his skin; the store owner unhesitatingly selected the defendant from a group of people and later indicated that he was "pretty sure" of his identification; and the elapsed time of approximately one hour between the offense and the identification was reasonable. In their totality, these circumstances would indubitably demonstrate that the in-court identification of the defendant was reliable, were it not for the shadow arguably cast by the store owner's identification of the defendant, on the day of the crime, as only 70 percent positive, while his identification of the accomplice was immediate and unconditionally positive. This court has not previously focused its attention on the reliability of identification testimony when the identifying witness, at a relevant time in the past, was somewhat uncertain of his identification. Other courts have, however, dealt with this issue. Their unanimous holding is that such prior uncertainty goes only to the weight to be given to the proffered in-court identification, and not to its admissibility. Smith v. Perini, 723 F.2d 478, 482 (6th Cir. 1983), cert. denied, 466 U.S. 941, 104 S. Ct. 1920, 80 L. Ed. 2d 466 (1984); United States v. Valenzuela, 722 F.2d 1431, 1433 (9th Cir. 1983); United States v. Saint Prix, 672 F.2d 1077, 1084 (2d Cir.), cert. denied, 456 U.S. 992, 102 S. Ct. 2274, 73 L. Ed. 2d 1287 (1982); State v. Myers, 117 Ariz. 79, 83-85, 570 P.2d 1252 (1977), cert. denied, 435 U.S. 928, 98 S. Ct. 1498, 55 L. Ed. 2d 524 (1978); Parks v. United States, 451 A.2d 591, 604 (D.C. App. 1982), cert. denied, 461 U.S. 945, 103 S. Ct. 2123, 77 L. Ed. 2d 1303 (1983); Ralston v. State, 251 Ga. 682, 683-84, 309 S.E.2d 135 (1983); Corbin v. State, 237 Md. 486, 490, 206 A.2d 809 (1965); Commonwealth v. Lacy, 371 Mass. 363, 368-69, 358 N.E.2d 419 (1976); Commonwealth v. Silver, 499 Pa. 228, 237, 452 A.2d 1328 (1982). These decisions are consistent with the underlying principle that admissibility of identification testimony requires a judgment about reliability that is derived from a matrix of factors in which the relative certainty of the identification is only one component. Manson v. Brathwaite, supra, 114; Neil v. Biggers, supra, 199-200; State v. Hinton, supra, 295-96. The decisions are analogous to our awn holdings that a witness' partial misdescription of the person being identified goes to the weight rather than to the admissibility of the identification. State v. Hinton, supra, 297 n.6; State v. Ledbetter, supra, 612. Notably, several of the out-of-state cases expressly deal with and admit identifications when uncertainty is to some degree attributable to the psychological trauma associated with violent crime. Smith v. Perini, supra, 482; Middleton v. United States, 401 A.2d 109, 131-34 (D.C. App. 1979); Williams v. State, 11 Md. App. 607, 613-14, 275 A.2d 522 (1971). As these cases hold, it is understandable, in the circumstances presently before us, that a traumatic encounter with a stranger brandishing a shotgun, a mere three feet away, might have interfered temporarily with the store owner's total recall of the defendant. It is equally understandable that there might not have been an impaired recollection of the features of the accomplice, whose conduct was not as life-threatening as was the conduct of the defendant. In the totality of the relevant circumstances, the in-court identification in this case was sufficiently reliable to warrant its admission into evidence. It was for the jury, after cross-examination, to determine what weight to give to the in-court identification. There is no error. In this opinion the other judges concurred. The defendant, Francisco Perez, a/k/a Jorge Sanchez, was charged by a five count substitute information with: robbery in the first degree, in violation of General Statutes § 53a-134 (a) (4); kidnapping in the second degree, in violation of General Statutes § 53a-94; possession of a sawed-off shotgun, in violation of General Statutes § 53a-211 (a); forgery in the second degree, in violation of General Statutes § 53a-139 (a) (2); and criminal impersonation, in violation of General Statutes § 53a-130 (a) (1). The defendant pleaded guilty, during the course of his jury trial, to the last two counts. After the conclusion of the jury trial on the remaining three counts, the trial court, Kline, J., granted the defendant's motion for acquittal with respect to the second count, the charge of kidnapping. The defendant's accomplice, originally being tried jointly with the defendant, had pleaded guilty to the charges against him while the jury trial was in process. In response to questioning about Ms inability unconditionally to identify the defendant when he was brought back to the package store, the store owner testified: "See, I was too shook up at that time, and you know, right at that moment when they robbed me I was scared, but not as much as a half hour or an hour later, I was more scared. I was really shook up. So, I couldn't make up my mind then." In resolving this case without reaching the issue of harmless error, we are not signaling any retreat from the holding of State v. Gordon, 185 Conn. 402, 419-20, 441 A.2d 119 (1981), cert. denied, 455 U.S. 989, 102 S. Ct. 1612, 71 L. Ed. 2d 848 (1982). A number of witnesses testified that the defendant appeared to be more darkly complected at the time of the incident than at his trial. In addition, he no longer wore his hair in braids at the time of the trial.

Arthur H. Healey, J. The defendant, Marguerite Findlay, was charged in a substitute information, with the crime of robbery in the first degree by aiding, in violation of General Statutes § 53a-134 (a) (4) and 53E-8. She was convicted after a jury trial and sentenced to the custody of the commissioner of correction for a term of seven years. The defendant appeals from the judgment of conviction. The defendant raises five issues on appeal: (1) whether there was sufficient evidence to establish the defendant's guilt beyond a reasonable doubt; (2) whether the court erred in denying the defendant's motion to sup press identification; (3) whether the defendant's rights were violated by the admission of evidence relating to two men seen with the defendant in a Dodge Omni two days before the robbery; (4) whether there was error in the denial of the defendant's motion for a new trial based on the prosecutor's remarks during closing argument; and (5) whether the court erred in its charge to the jury. It is undisputed that the New Milford Savings Bank in Bridgewater was robbed on Friday, July 31, 1981, at approximately 10:15 a.m., by two armed men wearing rubber face masks. The robbers absconded with $8282 in a 1973 rust colored Ford Torino automobile. As the robbers were driving away, bank employees were able to write down the Connecticut license plate number. The jury could reasonably have found these additional facts: At approximately 10:10 a.m. on the day of the bank robbery, a farmer, Robert Rumovicz, was driving a tractor towing a hay bind, with an overall length of 22-24 feet, north along Second Hill Road in Bridge-water. Second Hill Road borders Rumovicz' dairy farm. A small yellow or cream colored car with a woman, later identified as the defendant, in the driver's seat was parked on the right hand side of the road. The farmer expected the woman to move the car because the road was particularly narrow at that point and he knew he would have some difficulty in moving the hay bind past her car. It took Rumovicz approximately forty to sixty seconds to pass the car, and, as he did so, he stared at the driver in an attempt to display his irritation and annoyance with her for not moving her car. About ten minutes after Rumovicz passed the defendant's car, he returned on the same road back to his farm. The car was no longer parked on the road but a rust colored Ford Torino, later identified as the one used by the robbers to flee from the bank and as having been stolen, was parked in the same area. Police officers were already examining the Ford when Rumovicz arrived. A second witness, Alice Borodenko, testified that she was driving south on Second Hill Road at approximately 10:20 a.m. on the day of the robbery when she saw a small new cream colored car parked on the opposite side of the road with a woman in the driver's seat. At this same time, Borodenko saw a reddish-brown or "root beer colored" car approaching from the opposite direction and she stopped her car to allow it to pass the cream colored car. The reddish car, however, parked behind the cream colored car and two men got out of the car. The passenger grabbed a package from the back seat of the car. Borodenko continued driving, and while looking in her rearview mirror, she saw both men run to the other car and she saw one man open a door of the cream colored car. At this point her car had negotiated either a dip in the road or a curve and she was then unable to view the men further. A few minutes later, when the police arrived on the scene, only the Ford, identified as the same car Borodenko had seen, was still parked on the road. Rumovicz was able to give a description of the car and its driver to the police within minutes after seeing them. He described the car to the police as a beige/tan/ yellow Dodge because he recognized its emblem and because he saw a red and white Dodge dealer vanity plate on the front of the car after he had passed it. Later in the day of the robbery, Rumovicz accompanied police officers to a Dodge dealership where he iden tified the model of the car as an Omni. At a second Dodge dealership, Rumovicz identified a Bosco Dodge dealer's plate as the plate that he had observed was on the front of the defendant's car. It was undisputed that the defendant was driving a rented yellow 1981 Dodge Omni with a Bosco Dodge vanity or dealer front plate on the day of the robbery. The defendant, a grant administrator for the town of Beacon Falls, reported late to work on Friday, July 31, arriving sometime between 11:08 and 11:30 a.m. On the day of the robbery, Rumovicz also described the woman driver of the Dodge as heavy set—"heavier at the bottom than at the top." She was approximately 30 years old and she was wearing tinted eyeglasses, with large frames rounded at the bottom. He testified that she was wearing a white dress with black prints or circles spaced evenly over the dress. Rumovicz' initial description to the police also included a description of the woman's hair as a "Shirley Temple hairdo," greasy looking and oily, with an "unnatural" appearance. He later testified at trial that she had a "birthmark, a mole or something" on her face. At trial, a little more than two months after the robbery, Rumovicz positively identified the defendant as the driver once she had put on her glasses at defense counsel's request. On the basis of Rumovicz' initial description of the woman driver of the Omni, Detective Robert Connor of the Connecticut state police had a suspect in mind— the defendant Marguerite Findlay. On the afternoon of the robbery, Connor asked Rumovicz to accompany him to the Beacon Falls town hall parking lot to view an automobile. While in the parking lot, and after Rumovicz identified the defendant's car as the one he had seen earlier on Second Hill Road, the defendant left the town hall and walked to her car. Rumovicz identified the defendant as resembling or "strongly" resembling the woman he had seen earlier that day in the Omni, except for her hair. Rumovicz also testified that a photograph of the defendant shown to him by Connor several days after the robbery "looked" like the woman he had seen in the Omni. I The defendant claims that the evidence was insufficient to establish the defendant's guilt beyond a reasonable doubt. "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. There was sufficient evidence from which the jury could have concluded that the defendant was the driver of the Dodge Omni Rumovicz had seen on the morning of the robbery. Rumovicz positively identified her at trial, including testifying to a corroborating birthmark or mole which he did not see in either the parking lot identification or in the side-view photograph shown to him by Connor. While Rumovicz had not told the police about this birthmark or mole, he testified at trial that he repeatedly recalled that he "kept looking back at the [defendant's] face" on Second Hill Road and "I kept seeing a birthmark or a mole." There was evidence at the trial that the defendant has "a birthmark or brownish mark over the left side of her upper lip." Although her hair did not match his initial description, the jury could reasonably have inferred that she had somehow altered her hair style in order to avoid recognition, as Rumovicz had described the hair as unnatural looking. Borodenko corroborated the description of the car and she also saw two men running from the Ford Torino towards the Dodge Omni and opening one of the doors. Although Borodenko did not see the men enter the car, the jury could reasonably have inferred that the sequence of events explained how, within minutes of the robbery, the Dodge Omni was gone, the two robbers had abandoned the Ford and were able to flee the area. The defendant's alibi defense of purchasing gasoline at a certain Mobil gas station could not be confirmed. The attendant working at the gas station on July 31, 1981, from 6:30 a.m. to 1 p.m. testified that he did not remember seeing a subcompact car fitting the description of the getaway car that he had heard broadcast over a police scanner come into the station that morning. Nor did he remember seeing the defendant come into the station that morning. In addition, the defendant was absent from work for most of the morning of the robbery. The jury, as the trier of fact, determines the credibility of witnesses, and it is not the province of this court to retry the facts or to determine the weight which should have been accorded witnesses' testimony. Viewing the evidence as a whole and in a light most favorable to sustaining the jury's verdict, we cannot say that there was insufficient evidence to establish the defendant's guilt beyond a reasonable doubt. On the contrary, the facts proved, and the reasonable and logical inferences that the jury could draw from them, strongly support the verdict finding the defendant guilty of robbery in the first degree by aiding. II The defendant's second claim of error is that the court erred in denying the defendant's motion to suppress identification. The defendant filed a motion to suppress any testimony of Robert Rumovicz "regarding any possible identification of [the defendant] subsequent to the morning of July 31,1981, as there was an impermissibly suggestive identification procedure utilized by the state which fatally taints any subsequent in Court or out of Court identifications." A hearing on the motion to suppress was held in the absence of the jury and before there was an in-court identification of the defendant by Rumovicz. The motion was denied by the trial court and a proper exception was taken. The two out-of-court identification procedures at issue occurred on July 31, 1981, and approximately a week to ten days later. The first identification procedure occurred on the afternoon of the robbery at the Beacon Falls town hall parking lot. Connor, who accompanied Rumovicz to the lot, testified that the "primary reason" for the trip was to view an automobile. Connor had some information that the defendant would be leaving work at approximately 4 p.m. The viewing of the automobile took place at approximately 3:30 p.m., and, "within moments" of the identification of the car by Rumovicz, the defendant walked from the town hall to the Dodge Omni. The distance between the car in which Connor and Rumovicz were seated and the Dodge Omni was approximately 75 to 100 feet. The detective did not expect the defendant to be in the parking lot at that particular time as the trial court found at the hearing on the motion to suppress. Rumovicz indicated to the detective that the defendant "strongly resembled" the woman in the Omni that morning, "only the hair was different." The second identification procedure occurred at Rumovicz' farm approximately ten days after the robbery. Connor was questioning an employee of Rumovicz, who was a witness to another incident under investigation, and was showing him several photographs. When Rumovicz approached Connor, who was seated in his car, he briefly showed Rumovicz a single photograph of the defendant. The detective held the picture while Rumovicz viewed it from outside the car. Rumovicz said the photograph resembled the woman in the car but that the hair was not the same. The state did not offer evidence of either out-of-court procedure. The defense, however, did elicit evidence of the two out-of-court identification procedures for impeachment purposes after the court denied the motion to suppress and permitted the in-court identification of the defendant by Rumovicz. The defendant claims that both out-of-court identification procedures were impermissibly and unnecessarily suggestive and that, therefore, the in-court identification was erroneously admitted. We do not agree. As this court has repeatedly stated, the required inquiry in determining whether identification procedures violate a defendant's due process rights is "made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on examination of the 'totality of the circumstances.' " State v. Theriault, 182 Conn. 366, 371-72, 438 A.2d 432 (1980). The first identification procedure was not unnecessarily suggestive. The defendant, in making her claim, argues that the viewing of the defendant in the town hall parking lot was akin to a "show-up"—the presentation of a single suspect to an eyewitness for possible identification. Unlike many cases in which a suspect in the custody of the police is presented to a witness for identification; see, e.g., State v. Middleton, 170 Conn. 601, 368 A.2d 66 (1976); the defendant was not under arrest at the time of the viewing, she was not in custody, and most significantly, the viewing was unplanned, as the trial court found. The primary purpose of the detective and Rumovicz was to view the defendant's car before she left that day from work. The fact that she left work approximately one-half hour early could not be attributed to any arrangement by Connor. There is no support to the defendant's claim that the town hall parking lot viewing was unnecessarily suggestive. The second identification procedure involved a single photograph of the defendant shown to Rumovicz by Connor. Upon a "motion to suppress evidence based upon photographic identifications, the defendant as the moving party must bear the initial burden of proving that the photographic identification was unconstitutional in some manner." State v. McKnight, 191 Conn. 564, 570, 469 A.2d 397 (1983); State v. Vass, 191 Conn. 604, 608, 469 A.2d 767 (1983); State v. Hafner, 168 Conn. 230, 235, 362 A.2d 925, cert. denied, 423 U.S. 851, 96 S. Ct. 95, 46 L. Ed. 2d 74 (1975). As the defendant notes, the "test of an unnecessarily suggestive identification procedure depends on the facts and cir cumstances of each case." See Simmons v. United States, 390 U.S. 377, 383, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968); State v. Soriano, 2 Conn. App. 127, 130-31, 476 A.2d 633 (1984). The defendant argues that the viewing of the single photograph by Rumovicz was unnecessarily and impermissibly suggestive. Absent exigent circumstances that require police officers "promptly [to establish] either the defendant's complicity or his innocence"; State v. Perez, 198 Conn. 68, 74, 502 A.2d 368 (1985); the showing of a single photograph of a defendant is almost always unnecessarily and impermissibly suggestive. State v. Dupree, 196 Conn. 655, 667, 495 A.2d 691, cert. denied, 474 U.S. , 106 S. Ct. 318, 88 L. Ed. 2d 301 (1985). As there were no exigent circumstances or other compelling reason present to justify the showing of the photo, we agree with the defendant that the second identification procedure was unnecessarily suggestive. Although the viewing of the photo was unnecessarily suggestive, the defendant still cannot prevail because the in-court identification itself was nevertheless reliable in light of the totality of the circumstances. "[Reliability is the linchpin in determining the admissibility of identification evidence." State v. Doolittle, 189 Conn. 183, 192, 455 A.2d 843 (1983); see Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977); State v. Fullwood, 193 Conn. 238, 250-51, 476 A.2d 550 (1984). The factors to be considered in a reliability analysis are well established. See Manson v. Brathwaite, supra; Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972). The defendant has failed to sustain her burden of proving that the viewing of the photograph in this case was unconstitutional. The reliability of the identification is disclosed by the circumstances set out below. The facts surrounding the display of the photo indicate that it was unplanned and unarranged. Connor was present at Rumovicz' farm investigating an unrelated incident in which a white Dodge Omni was stuck in a ditch on that same portion of Second Hill Road in which the defendant was seen in a Dodge Omni. The detective was speaking to one of Rumovicz' farm employees who had helped the woman involved in that incident. Of the photographs he was showing the employee, one was a photograph of the defendant taken after her arrest. The viewing of the photo by Rumovicz, after he had voluntarily approached the detective, was brief. At trial, Rumovicz testified that the photo he saw was of the defendant at a party or surrounded by other people. In fact, at trial, Rumovicz did not "really remember the photo that much." There is little evidence, if any, that the photograph so briefly viewed by Rumovicz figured into his in-court identification of the defendant. Rumovicz had an ample opportunity to view the defendant through her open car window on a clear day. He focused carefully on her face in order to express his annoyance with her. He made a positive in-court identification of the defendant. Included in his in-court identification of the defendant was the description of a mole or birthmark which Rumovicz had not previously mentioned and which could not have been observed in either pretrial identification procedure. This corroborating evidence as well as his detailed initial description and his observations on the morning of July 31,1981, form the entire basis for his in-court identification. Thus, neither procedure tainted his in-court identification. We particularly note that the trial court said: "[I] find that his [in-court] identification is based entirely upon his obser vations made on the morning of July 31st [the date of the robbery], and it's not tainted at all by any subsequent view in the Beacon Falls parking lot or having seen a snapshot for a matter of seconds, some week or ten days later." We also point out that "[t]he credibility of the witnesses in a challenge to identification evidence is a question for the trial court to determine. State v. Vass, supra, 610; State v. McKnight, supra, 571-72." State v. Fullwood, supra, 246. The trial court, therefore, did not err in denying the defendant's motion to suppress. Ill The defendant raised two claims arising out of the trial court's denial of her motion for a new trial. We discuss those claims seriatim. A The first claim is that the trial court erred in admitting evidence that the defendant was with two men in a Dodge Omni on July 29,1981. The state claims that the evidence was properly admissible as relevant to a demonstration that the defendant was associated with two men in a car matching the description of the automobile seen by Robert Rumovicz on Second Hill Road the morning of the robbery. We agree. The state introduced evidence at trial, through two witnesses, that the defendant was seen in Naugatuck with two men in a Dodge Omni with a Bosco Dodge vanity plate. The first witness, an acquaintance of the defendant's from high school, testified that he saw Marguerite Findlay seated in a car two days before the robbery, on July 29,1981, around 4 or 5 p.m. The witness testified, after defense counsel objected, that the other occupants of the car were two men. The first witness was unable to describe the car in which the defendant was seated. The second witness for the state testified that he owned the laundromat in front of which the Dodge Omni was parked on July 29, 1981. The first witness had been visiting him in his store on the afternoon of July 29,1981. The second witness noticed a beige subcompact car with a Bosco Dodge plate pull up in front of his store and testified, over defense objection, that there were two men in the front seat. The defendant, upon cross-examination by the state, admitted being at the laundromat in Naugatuck on July 29,1981, in the afternoon, with two men in a yellow Dodge Omni. Defense counsel objected on relevancy grounds to the state's question to the defendant: "And who were you with?" The defendant named two individuals, John Paul Reid and Rodney Johnson. "Rulings on relevancy are within the wide discretion of the trial court and will only be reversed for an abuse of that discretion." State v. DeForge, 194 Conn. 392, 399, 480 A.2d 547 (1984). "Evidence is admissible when it tends to establish a fact in issue or to corroborate other direct evidence in the case." State v. Towles, 155 Conn. 516, 523, 235 A.2d 639 (1967); see State v. Schaffer, 168 Conn. 309, 317, 362 A.2d 893 (1975). This challenged evidence placed the defendant in the type of car observed by Rumovicz on Second Hill Road on the morning of the robbery and again that afternoon in the town hall parking lot. In addition, Alice Borodenko testified that on the morning of the robbery she observed two men, one with a package, running to that type of car after they had alighted from a Ford car which the Bridgewater bank robbers had used. There was no abuse of discretion in admitting this evidence. The state's proffer of evidence of the actions of the defendant two days before the robbery does have a tendency to prove the defendant committed the crime with which she was charged. The evidence was relevant and admissible and, as such, the jury was free to weigh the testimony as it would any other piece of evidence. In the defendant's motion for a new trial under Practice Book § 902, she assigns as constitutional error, and as error which was materially injurious to her, the "state's references in direct and cross-examination to Rodney Johnson and John Paul Reid." The motion was denied by the trial court. "On a motion for a new trial . . . the court has discretion to weigh the evidence and to consider the credibility of witnesses to determine whether 'the interests of justice' require the granting of relief." Gaines v. Manson, 194 Conn. 510, 520 n.12, 481 A.2d 1084 (1984); see Practice Book § 902. The granting of such a motion is within the court's discretion. At no time did the state claim that the two men who had been in the Omni on July 29, 1981, were also the robbers who were seen abandoning their Ford Torino and running toward the Omni in which the defendant was seated. Any inferences that could be drawn from such evidence were left to the trier of fact. The trial court which is in a better position than this court to "consider the credibility of witnesses" determined that these circumstances did not require a new trial in the "interests of justice." The defendant has failed to sustain her burden of proving that the elicitation of the two men's names was "materially injurious" to her. B The defendant's second claim in her motion for a new trial is that she was deprived of a fair trial and of her right to due process under the federal and state constitutions by certain remarks made by the prosecutor in closing argument. She also claims that the trial court erred in denying her motion for a new trial. In closing argument, defense counsel referred to the defendant's background, including her schooling, and her daughter. The prosecutor made the following remarks to the jury: "Now, Mr. Gill told you to consider one last thing; that was the background of this woman. And he told you—he listed the stuff, the background education stuff that he first delivered through testimony when Mrs. Findlay first got on the stand. His Honor will tell you that sympathy should not play a part in your deliberations. The fact that she's a mother, living alone with her child, has nothing to do with what you do in this courtroom. We can turn around and look at the kind of people she was hanging around with at the Bounce, as she referred to it. And certainly you can tell from some of the goings on that maybe a different picture could be painted, if we were allowed to. But His Honor will tell you that that's not something that you can consider in sitting there and deliberating in that room. What she's done before has no bearing on what she has done now." Defense counsel did not object to these remarks. In fact, he "intentionally refrained from making a contemporaneous objection or requesting a cautionary instruction." The objection was therefore waived. Practice Book § 3063. This issue was raised in a motion for a new trial. The trial court denied the motion, stating that there was nothing in the argument which was prejudicial. The remarks at issue are considered by the state to be fair rebuttal to statements made in defense counsel's closing argument. At the trial, the defendant made no objection and did not seek any other relief. On appeal, the defendant argues that this claim is reviewable under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). Because he claims the deprivation of a fundamental constitutional right and a fair trial, we will review this claim under the "exceptional circumstance" prong of Evans. The defense counsel attempted to paint a favorable portrait of the defendant in order to create a reasonable doubt in the minds of the jury that "Marguerite Findlay is a getaway driver." In attempting to brush one more stroke onto the defense counsel's portrait in order to make it provide some contrast, the prosecutor warned the jury that "sympathy should not play a part in the deliberations." In contrast to the defendant's status as a single parent at home with her child, raised by defense counsel, the prosecutor questioned her status as a woman who also frequented the Bounce In and questioned the "kind of people she was hanging around with [there]." The prosecutor remarked that perhaps defense counsel's portrait was not the only one that could be painted, but she then specifically warned the jury that speculation should play no part in its role. The remarks at issue in this case were not at all egregious. Cf. State v. Couture, 194 Conn. 530, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985). Moreover, in our examination of this claim, the action of the trial court, because of its unique vantage point, is certainly entitled to great weight in determining the propriety of remarks of counsel and their harmfulness under all the circumstances at the trial. State v. Glenn, 194 Conn. 483, 493, 496, 481 A.2d 741 (1984). We cannot agree with the defendant that the state's comments deprived her of a fair trial. Therefore, the trial court did not err in denying her motion for a new trial. IV The defendant's final claim is that the court's instructions to the jury on the requirement of proof beyond a reasonable doubt impermissibly lowered the burden of proof required for conviction, in violation of her due process rights. Although this claim was not raised in the trial court by a written request to charge or an exception, the defendant's claim warrants review under the exceptional circumstance exception of State v. Evans, supra. See State v. Moss, 189 Conn. 364, 456 A.2d 274 (1983). The defendant claims that the instructions on reasonable doubt were erroneous in two respects. The first claimed error is that the court, in a portion of its definition of reasonable doubt, stated that it was a "doubt for which a valid reason can be assigned." The defendant, citing a dissent from a denial of certification in Butler v. South Carolina, 459 U.S. 932, 103 S. Ct. 242, 74 L. Ed. 2d 191 (1982) (Marshall, J.), states that the "inherent defect" of such an instruction is that the ability to assign a valid reason for a doubt is an ability "not given to many men." We have upheld a similar charge in the face of a constitutional challenge in State v. Derrico, 181 Conn. 151, 170-71, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980). As we said in Derrico, the "instruction essentially defined a reasonable doubt as a doubt founded on reason as contrasted with a purely speculative doubt." Id., 171. "'It is well established . . . that individual instructions are not to be judged in artificial isolation from the overall charge.' " State v. Piskorski, 177 Conn. 677, 746, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979). "[T]he test to be applied to any part of a charge is whether the charge as a whole presents the case to the jury so that no injustice will be done." State v. Derrico, supra, 170. The court provided additional guidance to the jury on the definition of reasonable doubt. The statement challenged by the defendant was not the only definition provided. The state argues that the challenged definition was merely one in which the jurors could test the reasonableness of a doubt and that therefore the charge, taken as a whole, provided sufficient guidance for the jury. We agree. The second claimed error in the court's instruction on reasonable doubt is in the following statement: "If you can, in reason, reconcile all the facts proven with any reasonable theory consistent with innocence, of course, you cannot find the defendant guilty. The conclusion of guilt requires proof which precludes every reasonable theory except that which tends to support and is consistent with the defendant's guilt and inconsistent with any other rational conclusion. If the existence of all the facts and circumstances which you believe existed can be explained reasonably on some basis other than that the accused committed the crime charged, then the State has not made out a case. But if you find certain facts to be proven and if the only reasonable inference to be drawn from the existence of those facts is that the accused committed the crime charged, then you should not slink from drawing that inference and finding her guilty." The defendant claims that this statement did not "clearly instruct" the jury on the doctrine of proof beyond a reasonable doubt. The defendant also claims that the instruction was constitutionally infirm because it effectively told the jury that it "would have to be able" to reconcile all the facts to reach a verdict of not guilty. The instruction merely states that "[i]f you, [the jury], can, in reason, reconcile all the facts . . . ." This instruction by the trial court is but one method which the jury was told it could use to help it reach a verdict. The statement is a correct statement of the law. Immediately preceding the instruction on the doctrine of proof beyond a reasonable doubt the jury was given a detailed instruction on the state's requirement that it prove every element of the crime. We cannot say that, in view of the charge read as a whole, the portions now claimed as error on appeal can be considered a basis for finding harmful error. See State v. Derrico, supra; cf. State v. DelVecchio, 191 Conn. 412, 464 A.2d 813 (1983). The instructions were therefore not erroneous. There is no error. In this opinion the other judges concurred. General Statutes § 53a-134 (a) (4) provides: "robbery in the first degree: class b felony, (a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime . (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a weapon from which a shot could be discharged. Nothing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, robbery in the second degree, robbery in the third degree or any other crime." General Statutes § 53a-8 provides: "criminal liability for acts of another. A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender." The appeal form, filed by trial counsel, stated that the appeal was being taken "from a jury verdict of guilty . . ." rather than from the judgment as required by General Statutes § 52-263. As this defect in form is not jurisdictional in nature, it may be disregarded. See State v. Kurvin, 186 Conn. 555, 556 n.1, 442 A.2d 1327 (1982). The record does not indicate that anyone other than the defendant was arrested in connection with the robbery or that any of the money was ever recovered. The farmer used three different eolors to describe the car to the police. A Dodge dealer told the police that Omnis are not available in tan but are available in two different shades of yellow. The witnesses at the trial who testified about the Omni gave varying descriptions of its color, but all were able to identify it as the car claimed by the state to have been used by the defendant. The 1981 Dodge Omni the defendant was driving on July 81,1981, had been borrowed from a friend who had rented it for several days. A police officer testified that Rumovicz' initial description was of a white dress with a red, repetitive design. An in-court identification of the defendant, outside of the presence of the jury, was made by Rumovicz one day before the hearing on the motion was held. That identification was withdrawn by the state. Connor testified that the photograph was taken at the state police barracks the day the defendant was arrested. It was a Polaroid instant photograph with a profile of the right side of the defendant's face and hair. There were no marks on the photograph indicating when, where, or for what purpose, it was taken. The factors include a consideration of: the witness' opportunity to view; his degree of attention; the accuracy of his description; his level of certainty; and the time between the crime and the confrontation. Manson v. Brathwaite, 432 U.S. 98, 114-15, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977). The photo admitted into evidence was only of the right side of the defendant's face and hair. There was no other person in the photograph. The defendant also claims, while admitting "precedent is squarely against her," that the photo displayed to Robert Rumovicz, in the absence of her counsel, violated her federal and state constitutional rights. The defendant did not raise this issue below; Practice Book § 3063; and seeks to raise it on appeal under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). The question of when this photographic display actually took place, and hence, whether the defendant's right to counsel had attached, is unanswered. The arrest by warrant itself does not start the initiation of adversary criminal proceedings. Kirby v. Illinois, 406 U.S. 682, 689, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972); State v. Vitale, 190 Conn. 219, 232, 460 A.2d 961 (1983). As no fundamental constitutional right has been implicated, this claim does not present an "exceptional circumstance" reviewable under Evans. See United States v. Ash, 413 U.S. 300, 321, 93 S. Ct. 2568, 37 L. Ed. 2d 619 (1973) (the sixth amendment does not grant the right to counsel, even if it has attached, at photographic displays conducted by the government for the purpose of allowing a witness to attempt an identification of the offender); State v. Ibraimov, 187 Conn. 348, 357, 446 A.2d 382 (1982). Our finding of no error on the trial court's action on the motion to suppress makes unnecessary any discussion of the third claim in the defendant's motion for a new trial that challenged the out-of-court identification procedures. The defense counsel had previously made the following remarks about the defendant's background on closing argument: "Now, if the unfair identification procedure, if the alibi defense, if the time question together do not give you a reasonable doubt about whether Marguerite Findlay is a getaway driver, then how about looking at what you know about Marguerite Findlay. She's 27 years old. She has a six-year old daughter who lives [with] and is cared for by her. She's a high school graduate. She had a scholarship to UConn, where she went for two years. She was going to college full time at night. She's been a volunteer worker with handicapped kids. She's on the PTA; no criminal record whatsoever and a lousy driver, to boot. Now, this is hardly the profile of a getaway driver. Her mother doesn't even want to drive in a car. It's hard to believe that those two bank robbers are going to want her to be the driver of the car." The portion of the court's instruction on the definition of reasonable doubt was as follows: "The phrase 'reasonable doubt' has no technical or unusual meaning. You can arrive at the real meaning of it by emphasizing the word 'reasonable.' A reasonable doubt for which a valid reason can be assigned; it is a doubt which is something more than a guess or a surmise. It is not a conjecture or a fanciful or a captious doubt. A reasonable doubt is not a doubt which is raised by someone simply for the sake of raising a doubt; nor is it a doubt suggested by ingenuity of counsel or of a juror which is not warranted by the evidence. A reasonable doubt, in other words, is a real doubt, an honest doubt, a doubt which has its foundation in the evidence or in the lack of evidence. It is such a doubt as in the series of affairs of your everyday life, you would pay heed to. Absolute certainty in the affairs of life is almost never attainable. And the law does not require absolute certainty on the part of the jury before it returns a verdict of guilty. The law does not require proof beyond all doubt. But the law does require that after hearing all the evidence, if there is something in the evidence or lack of evidence which leaves in the minds of the jurors, as reasonable men and women, a reasonable doubt as to the guilt of the accused, then the accused must be given the benefit of that doubt and acquitted."

Dannehy, J. The trial court, Fracasse, J., dismissed the plaintiffs' action against the defendants for failure to comply with orders of the court. The only question presented by this appeal which can be regarded as decisive is whether an appropriate sanction was imposed. The controlling facts are conceded. On September 11, 1980, the plaintiff, Lisa Ann Fox, obtained a loan from the named defendant, First Bank (hereinafter the defendant), for the purchase of a 1980 Triumph TR7 convertible. When the plaintiff defaulted in the payment of sums due under the retail installment contract, the defendant, on September 2,1981, repossessed the car without judicial intervention in accordance with General Statutes § 42-98. On the same day that the car was repossessed, the plaintiff filed this action for wrongful repossession and the trial court, Hadden, J., without a hearing, issued a temporary restraining order to prevent the sale or transfer of the car. On September 28, 1981, the defendant requested that the temporary restraining order be dissolved. The trial court, Berdon, J., denied the request on January 13, 1982. When the defendant applied for reargument, the plaintiff asked for the return of the car pending the litigation. On April 8, 1982, the trial court modified the temporary restraining order. Under the terms of the modified order the defendant returned the car to the plaintiff upon condition that she make monthly payments to the defendant in the amount established by the underlying retail installment contract. Subsequently, a motion by the plaintiff that she be relieved from her obligation of monthly payments was denied. The plaintiff concedes that the temporary restraining order for monthly payments was valid, and that her failure to obey the order was punishable by contempt. It is also undisputed that on three separate occasions the plaintiff was found in contempt of court for failure to make the monthly payments as required by the temporary restraining order. At no time did she appeal from any of the contempt proceedings. The plaintiff does not claim that she was denied a hearing or the opportunity to appear and purge herself of the contempt. Nor does it appear from the record that the plaintiff sought to have the temporary restraining order vacated or modified due to changed circumstances. The first finding of contempt was made after a hearing in response to the defendant's motion for contempt dated September 15,1983. At that hearing the defendant introduced evidence, in the form of an affidavit of a First Bank employee, to establish the balance in arrears and the amount due from the plaintiff. The plaintiff was not present at the hearing. Her attorney did not introduce any evidence to show that the plaintiff was not in arrears nor any evidence of an inability on her part to comply with the April 8,1982 order. The plaintiff's attorney stated, "I would ask simply, your Honor, that Ms. Fox be given thirty days to bring the account current." The court, Fracasse, J., on September 26,1983, cited the plaintiff for contempt of court. Less than four months later, on January 12, 1984, the plaintiff was for the second time found guilty of contempt of the court's April 8, 1982 order. At the hearing on the defendant's motion for contempt dated November 17,1983, the defendant introduced an affidavit of a First Bank employee to establish that while the plaintiff had paid the arrearage up to September, 1983, she had failed to make any subsequent payments. Again, the plaintiff was not present at the hearing. Her attorney stated, "[First Bank's] [c]ounsel indicated to me that he hasn't received any payments, and I have no evidence to contradict that, your Honor." The plaintiff did not offer any evidence of her inability to make the payments ordered by the court. Her attorney stated, "I indicated to my client that she should be making payments, but I have been informed that her fiance is taking her to Puerto Rico for a brief vacation." The court, Fracasse, J., for the second time, found the plaintiff in contempt of court. On April 10, 1984, at the behest of the defendant, the plaintiff for the third time was found to be in contempt of the court's April 8,1982 order. This third finding of contempt was made after a hearing at which the defendant introduced the affidavit of a First Bank employee to establish that while the plaintiff had substantially paid the arrearage accumulated as of January 12,1984, she had failed to make payments for the months of February and March and was again in arrears. Once again the plaintiff did not appear for the hearing, and the trial court was given no explanation of her failure to comply with its earlier order. Her attorney could only concede that "[the plaintiff is] behind at this time in her payments." He stated, "[a]ll I can represent to the Court, your Honor, is I've spoken to Miss Fox, and she indicated that one of the problems that she has had is that her grandfather has recently passed away. I'm not exactly sure how that is going to relate to this particular matter and her position." In answer to these statements made during the hearing, the defendant pointed out to the court that it had invited Miss Fox to provide documentation of hardship more than a month earlier and that she had declined to do so. At the conclusion of the April 9,1984 contempt proceeding, the trial court ordered that the plaintiff pay to the defendant the arrearage through April, 1984, together with attorney's fees, by April 16,1984, or, fail ing that, the action would be dismissed. By April 17, 1984, no payment had been made. On April 18, 1984, Judge Fracasse accordingly dismissed the action. The plaintiff appealed, claiming among other reasons of appeal, that the court erred in dismissing the case, and in invoking the "strongest possible sanction." This court's role in reviewing an order of contempt is very limited. Adjudications of contempt are final and may be reviewed only on questions of jurisdiction such as whether the court had authority to impose the punishment inflicted or whether the act for which the penalty was imposed could constitute a contempt. Friedlander v. Friedlander, 191 Conn. 81, 84, 463 A.2d 587 (1983). The claims of error challenge neither the authority of the court nor the finding that the act of which the contempt consisted constituted a contempt. We must therefore presume that the trial court had authority and a sufficient basis for the imposition of sanctions. The sole issue before us is whether, under the circumstances of this case, the trial court abused its discretion in dismissing the action for failure to comply with orders of the court. It is well settled that the imposition of sanctions to compel the observance of its orders rests within the discretion of the trial court and will not be disturbed on review unless there is an abuse of discretion. Thode v. Thode, 190 Conn. 694, 462 A.2d 4 (1983); In re Mongillo, 190 Conn. 686, 461 A.2d 1387 (1983). Generally, a sanction should not serve as a punishment or penalty. Courts should be reluctant to employ the sanction of dismissal except as a last resort. Such drastic action is not, however, an abuse of discretion where a party shows a deliberate, contumacious or unwarranted disregard for the court's authority. With these observations as a frame of reference we conclude that the trial court did not abuse its discretion in dismissing the action. Our review of the record shows that the plaintiff did not comply with the April 8, 1982 court order to make monthly payments to the defendant, although she was duly notified of that order. On September 26,1983, and again on January 12,1984, the first two occasions on which the plaintiff was found in contempt, she complied with the court's order only to the extent of her arrearage as of the date of the contempt findings. The record is devoid of any reason why the plaintiff failed to make continuing payments as required. During this period the court expended a great deal of time entertaining the defendant's motions and trying to accommodate the plaintiff. On April 10,1984, the trial court finally allowed the plaintiff six more days within which to purge herself. April 16 came and went without a response from the plaintiff. The record does not reveal any explanation by the plaintiff for her noncompliance. These facts demonstrate sufficient disregard for the court's order and deliberate disregard of the authority of the court to warrant the trial court's imposition of a sanction for noncompliance. Moreover, the plaintiff's course of action for almost two years justified the court's conclusion that such conduct would have persisted. We cannot conclude that the judgment of dismissal under the circumstances was an abuse of discretion. There is no error. In this opinion Healey, Santaniello and Callahan, Js., concurred. While there were three named plaintiffs in the original action, only Lisa Ann Fox (hereinafter the plaintiff) has appealed the dismissal. General Statutes § 42-98 provides in part: "foreclosure, (a) repossession. When the retail buyer is in default in the payment of any sum due under the retail instalment contract or instalment loan contract, or in the performance of any other condition which such contract requires him to perform, or in the performance of any promise, the breach of which is by such contract expressly made a ground for the retaking of the goods, the holder of the contract may retake possession thereof. Unless the goods can be retaken without breach of the peace, it shall be retaken by legal process, but nothing herein contained shall be construed to authorize a violation of the criminal law. In the case of repossession of any motor vehicle without the knowledge of the retail buyer, the local police department shall be notified of such repossession immediately thereafter. In the absence of a local police department or if the local police department cannot be reached for notification, the state police shall be promptly notified of such repossession. "(b) notice of intention to repossess. Not less than ten days prior to the retaking, the holder of such contract, if he so desires, may serve upon the retail buyer, personally or by registered or certified mail, a notice of intention to retake the goods on account of the buyer's default. The notice shall state the default and the period at the end of which such goods will be retaken, and shall briefly and clearly state what the retail buyer's rights under this subsection will be in case such goods are retaken. If the notice is so served and the buyer does not perform the conditions and provisions as to which he is in default before the day set for retaking, the holder of the contract may retake said goods and hold such subject to the provisions of subsections (d), (e), (f), (g) and (h) of this section regarding resale, but without any right of redemption. "(c) redemption. If the holder of such contract does not give the notice of intention to retake, described in subsection (b), he shall retain such goods for fifteen days after the retaking within the state in which they were located when retaken. During such period the retail buyer, upon payment or tender of the unaccelerated amount due under such contract at the time of retaking and interest, or upon performance or tender of performance of such other condition as may be named in such contract as precedent to the retail buyer's continued possession of such goods, or upon performance or tender or performance of any other promise for the breach of which such goods were retaken, and upon payment of the actual and reasonable expenses of any retaking and storing, may redeem such goods and become entitled to take possession of the same and to continue in the performance of such contract as if no default had occurred. The holder of such contract shall within three days of the retaking furnish or mail, by registered or certified mail, to the last known address of the buyer a written statement of the unaccelerated sum due under such contract and the actual and reasonable expense of any retaking and storing. For failure to furnish or mail such statement as required by this section, the holder of the contract shall forfeit the right to claim payment for the actual and reasonable expenses of retaking and storage, and also shall be liable for the actual damages suffered because of such failure. If such goods are perishable so that retention for fifteen days as herein prescribed would result in their destruction or substantial injury, the provisions of this subsection shall not apply and the holder of the contract may resell the goods immediately upon such retaking." The dissent implies what is certainly true that a trial court may not impose sanctions which are intended primarily as punishment and that dismissal, being such a drastic sanction, should be employed only as a last resort. The dissent does not recognize that the burden was on the plaintiff to establish by affidavit or otherwise that her persistent failure to comply with the order of the court was warranted by extenuating circumstances or events. The imposition of sanctions is addressed to the sound discretion of the trial court. While the trial court surely would have been justified in imposing a less severe sanction, we cannot say on the state of this record that the court abused its discretion in taking the action it did. The dissent equivocates when it characterizes as "conditional" Judge Berdon's order of April 8, 1982. An order of the court must be obeyed until it has been modified or successfully challenged, and the consequences for noncompliance may be severe indeed. We need not consider the propriety of "imprisonment for ordinary debts," which, as observed by the dissent, "was abandoned long ago." If such were the case before us, our decision might well be advised by different considerations. But the plaintiff here asked for return of the car and accepted it subject to orders, perhaps in the form of "conditions," imposed by the court. As the architect of her own predicament, the plaintiff may not be heard to complain for any of the reasons expressed in the dissenting opinion.

Santaniello, J. The sole issue raised in this appeal is whether General Statutes § 4-61 waives the state's sovereign immunity from claims arising under a contract for construction of a city bridge and city streets. The plaintiff, The DeFonce Construction Corporation (DeFonce), entered into a contract with the state for construction of a bridge and two streets in the city of Middletown. Alleging that the state had failed to perform certain duties under the contract, DeFonce brought suit to recover monetary damages from the state. The state moved to dismiss the complaint on the grounds that it was immune from suit, that it had not consented to the bringing of this action, and that the contract was not within the scope of General Statutes § 4-61. The trial court granted the motion and the plaintiff appealed. We find no error. The work done by the plaintiff was part of a federal program to aid urban development. The contract was entered into by the state pursuant to General Statutes § 13a-98i, which authorizes the state department of transportation to accept federal grants and to spend the funds on road improvement projects. Middletown requested the aid, agreed to maintain the improvements, and agreed to reimburse the state for any costs not covered by the federal program. The plaintiff argues on appeal that General Statutes § 4-61 waived the state's sovereign immunity from suit under this contract. General Statutes § 4-61 provides: "Any person, firm or corporation which has entered into a contract with the state, acting through any of its departments, commissions or other agencies, for the design, construction, repair or alteration of any state highway, bridge, building or other public works may, in the event of any disputed claims under such contract, bring an action against the state to the superior court for the judicial district of Hartford-New Britain for the purpose of having such claims determined. . . . " (Emphasis added.) The plaintiff claims that its contract was within the scope of the statute because it involved "public works." Essentially, it argues that the adjective "state" does not modify "public works" and that the construction under the contract could have been on a city bridge or street and still be within the reach of the statute. The plaintiff points to the statute's plain language and legislative history in support of its statutory interpretation. " 'It is a fundamental principle of statutory construction that statutes are to be construed so that they carry out the intent of the legislature.' State v. Campbell, 180 Conn. 557, 561, 429 A.2d 960 (1980); 2A Sutherland, Statutory Construction (4th Ed. Sands 1984) § 45.05. In construing a statute, this court will consider its plain language, its legislative history, its purpose and the circumstances surrounding its enactment. Peck v. Jacquemin, 196 Conn. 53, 64, 491 A.2d 1043 (1985); Dukes v. Durante, 192 Conn. 207, 214-15, 471 A.2d 1368 (1984)." State v. Parmalee, 197 Conn. 158, 161, 496 A.2d 186 (1985). "[N]o part of a legislative enactment is to be treated as insignificant or unnecessary, and there is a presumption of purpose behind every sentence, clause or phrase . . . . " Peck v. Jacquemin, supra, 66, quoting Winchester v. Connecticut State Board of Labor Relations, 175 Conn. 349, 355-56, 402 A.2d 332 (1978). "In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language . . . . " General Statutes § 1-1 (a). We cannot speculate as to what the legislature meant to say, we can only give effect to what it did in fact say. Colli v. Real Estate Commission, 169 Conn. 445, 452, 364 A.2d 167 (1975). It is well established that statutes in derogation of the state's immunity from suit should be strictly construed so that the state's sovereignty may not be undermined. Berger, Lehman Associates, Inc. v. State, 178 Conn. 352, 355-56, 422 A.2d 268 (1979); Spring v. Constantino, 168 Conn. 563, 570-71, 362 A.2d 871 (1975); 2A Sutherland, supra, § 58.04. "Under that rule of construction, the plaintiff must prove . . . that there is a precise fit between the narrowly drawn reach of the relevant statute, § 4-61, and the contractual language upon which the plaintiff depends. . . . " Berger, Lehman Associates, Inc. v. State, supra, 356. Here, the plaintiff entered into a contract with the state for construction work, but the contract did not call for the type of work encompassed within the scope of § 4-61. The wording of the statute is very specific as to which contracts come within its reach: "for the design, construction, repair or alteration of any state highway, bridge, building or other public works . . . ." (Emphasis added.) The phrase "any state" modifies each of the nouns in the succeeding series, including "public works." See Eastern Connecticut Cable Television, Inc. v. Montville, 180 Conn. 409, 413, 429 A.2d 905 (1980). In short, the statute requires the contract to call for construction of a state road, bridge or other facility in order for the state's sovereign immunity to be waived as to claims under the contract. The plain tiff's contract, being for the construction of city streets and a city bridge, is not within the operation of the statute. The plaintiff argues that the legislative history of General Statutes § 4-61 supports its position. The legislative history of the statute, however, does not reveal any intention on the part of the legislature to waive claims on contracts involving nonstate facilities. The section was enacted in 1957 because of the large number of claims against the state arising out of the construction of state highways at the time. 7 S. Proc., Pt. 3, 1957 Sess., p. 1636. The legislature wanted to reduce the number of petitions for permission to sue the state that it received involving suits over state construction contracts. 7 H. R. Proc., Pt. 4, 1957 Sess., p. 1937. The legislative history makes no mention of contracts involving nonstate facilities. In the absence of evidence of legislative intent to waive its immunity in cases such as this, we presume that the legislature meant to exclude such contracts from the operation of the statute. The plaintiff has not demonstrated that its contract comes within the "narrowly drawn reach" of § 4-61. See Berger, Lehman Associates, Inc. v. State, supra. Thus, the trial court was correct in concluding that § 4-61 did not waive the state's immunity from suit under this contract. The plaintiff's suit against the state was therefore properly dismissed. There is no error. In this opinion the other judges concurred. On appeal, the plaintiff raised four additional claims of error: (1) that sovereign immunity was not a defense available to the state because the city of Middletown was obligated to reimburse the state for any judgment against it; (2) that General Statutes § 4-61, as applied by the trial court, denied the plaintiff its right to equal protection and substantive due process; (3) that the state should be equitably estopped from raising the defense of sovereign immunity; and (4) that the legislature impliedly consented to suit under this contract. The plaintiff, through counsel, conceded at oral argument that these issues were not raised below. We have said many times that only in the most exceptional circumstances can and will this court consider a claim, constitutional or otherwise, that has not been raised and decided in the trial court. See, e.g., State v. Tyler-Barcomb, 197 Conn. 666, 672, 500 A.2d 1324 (1985). Because the plaintiff has not raised any exceptional circumstances to warrant review of these claims, we will not address their merits. The plaintiff makes no argument that the bridge and streets here were state owned. The plaintiff stated in its brief that the work under the contract was "to be done on two streets and a bridge located in and maintained by the City of Middletown." From this statement we infer that the plaintiff concedes that the project here involved a "city" bridge and "city" streets, and not "state" facilities. Ordinarily, a road, bridge or other facility is considered a "state" road, bridge or facility only if the state owns or maintains it. See General Statutes § 13a-16, 13a-20 (g).

Peters, C. J. The only issue in this appeal is whether a trial court has discretion to suspend a part of the sentence of a person convicted of kidnapping in the first degree without the use of a firearm. The defendant, Mark Jenkins, was convicted, after a trial to a jury, of burglary in the second degree, a violation of General Statutes § 53a-102, and kidnapping in the first degree, a violation of General Statutes § 53a-92 (a) (2) (C). The trial court, after determining that it was required to impose a minimum ten year sentence without suspension for the kidnapping conviction, sentenced the defendant to concurrent sentences of two years' imprisonment for the burglary conviction and ten years' imprisonment for the kidnapping conviction. Finding error in the trial court's interpretation of the applicable statutes, we remand for resentencing. For the purposes of this appeal, it is sufficient to note that the state proved, at trial, that the defendant and Gregory Howard in the early hours of July 14, 1983, broke into the kitchen of an apartment at Brookside Avenue in New Haven. When the fifteen year old victim entered the kitchen to investigate the disturbance, the two men choked him, threatened him, and dragged him outside. The victim was dragged in the direction of a nearby park. Once the victim was no longer being choked, he began to scream and the men fled the scene. The victim ran to the home of a neighbor to report the crime. A medical examination disclosed that the victim had sustained neck injuries that were consistent with his having been choked. The defendant does not contest that this evidentiary showing was sufficient to sustain his conviction of the crimes with which he was charged. At the sentencing proceedings, the defendant urged the trial court to consider suspending part of the ten year sentence, which is the minimum sentence for conviction under General Statutes § 53a-92. The defendant acknowledged that this statute describing the offense of kidnapping in the first degree made the offense a class A felony, and that § 53a-28 and 53a-29 prohibited suspension of sentences for class A felonies. However, he asked the court to read these statutes in conjunction with the provisions of § 53a-92a, governing kidnapping in the first degree with a firearm. Because the latter statute permits suspension of the sentence after one year, the defendant argued that an ambiguity existed between the statutes. He therefore urged the court to consider suspending the sentence in this case after seven years. The trial court, although agreeing with the defendant that there was some ambiguity in the relationship between the relevant statutes, determined that it was constrained to follow § 53a-28 and 53a-29 and to impose a mandatory sentence. The court expressly stated to the defendant that "[pjerhaps your recommended sentence might be the better avenue to take but I don't feel the law permits me to do so." The record is therefore clear that the trial court, despite the defendant's argument to the contrary, ruled that it was constrained not to consider a partially suspended sentence. Our review of the propriety of the sentencing proceedings at trial must start with a close reading of the applicable statutes. The defendant stands convicted of the crime of kidnapping in the first degree, a crime which, under General Statutes § 53a-92 (b), is punishable as a class A felony. Class A felonies other than murder are punishable, under General Statutes § 53a-35a (3), by a term of imprisonment of "not less than ten years nor more than twenty-five years." Although General Statutes § 53a-28 authorizes the sus pension of a term of imprisonment in whole or in part, and the substitution therefor of a period of probation or conditional discharge, General Statutes § 53a-29 (a) and (b) preclude probation or conditional discharge, and hence suspension of imprisonment, for class A felonies. By a logic that both parties recognize as unassailable, these statutes require the imposition of a term of imprisonment not subject to suspension upon those who, like the defendant, are convicted of a class A felony. State v. Lopez, 197 Conn. 337, 353-55, 497 A.2d 390 (1985). These statutes, read by themselves, fully support the position taken by the trial court in this case. Unfortunately, the unassailable logic of this statutory pattern must be reconciled with the enactment, in 1975, of General Statutes § 53a-92a. That statute contains three provisions. First, it describes the elements of the new crime of kidnapping in the first degree with a firearm. Second, it forbids simultaneous conviction of this new crime and the pre-existing crime of kidnapping in the first degree. Third, and most significantly for present purposes, it provides, in subsection (b), that "[kidnapping in the first degree with a firearm is a class A felony for which one year of the sentence imposed may not be suspended or reduced by the court." For the crime of kidnapping in the first degree with a firearm, concededly a crime more serious than that of kidnapping in the first degree, the legislature has substituted a one year nonsuspendible minimum sentence for the previously established ten year mandatory minimum sentence. The effect of the enactment of § 53a-92a (b) is to link a more serious crime with a less serious penalty. The legislative history of the enactment of § 53a-92a reveals that it was part of a statutory package; Public Acts 1975, No. 75-380; intended to strengthen penalties for the commission of designated crimes when the commission of those crimes involved the use of firearms. 18 S. Proc., Pt. 5, 1975 Sess., pp. 2293-96 (remarks of Sen. David M. Barry); p. 2297 (remarks of Sen. Joseph P. Flynn) and; pp. 2296-97 (remarks of Sen. George L. Gunther); 18 H. R. Proc., Pt. 10, 1975 Sess., p. 4853 (remarks of Rep. James T. Healey); 18 H. R. Proc., Pt. 10, 1975 Sess., p. 4859 (remarks of Rep. Walter J. Henderson); pp. 4858-59 (remarks of Rep. Paul C. DeMennato). The legislature assumed that existing mandatory minimum sentences provided adequate sanctions for serious crimes but sought to add a one year mandatory minimum sentence for lesser class B, class C and class D felonies. The sole class A felony included in the public act is kidnapping in the first degree. As the state suggests, it is likely that the legislature simply erred in including kidnapping in the first degree in Public Acts 1975, No. 75-380, mistakenly deeming it among the "lesser crimes" requiring stiffer penalties. The question before us, then, is how this court should deal with legislative error that mistakenly assigns a lesser penalty to a greater crime. Read literally, the statutes impose on this defendant, convicted of kidnapping in the first degree, a mandatory minimum sentence that exceeds by nine years the mandatory minimum sentence that would be faced by someone convicted of kidnapping in the first degree with a firearm. Such a discrepancy necessarily implicates the equal protection clauses of our federal and state constitutions. To avoid a constitutional confrontation, each of the parties urges us to construe the statutes to effectuate legislative intent. They urge us to consider a variety of suggestions for interpretations that might serve to reconcile the 1975 statute with the pre-existing sentencing pattern. None of these arguments, in the form advanced by the litigants, is ultimately persuasive. The defendant argues that we should assign primary importance to the legislative intent, in Public Acts 1975, No. 75-380, of providing more severe penalties for crimes involving the use of firearms than for those that do not involve such use. Accordingly, the defendant maintains that we should construe the statutes in their entirety to permit unlimited judicial discretion to suspend sentences in crimes not involving the use of firearms. The defendant would have us find ambiguity in § 53a-28 and 53a-29 so that a trial court retains discretion to suspend any sentence, even upon conviction of a class A felony. The state persuasively responds that the language of the statutes precludes such a construction. A court may suspend, imprisonment, under § 53a-28 (b) (5), only if it instead imposes a sentence of probation or of conditional discharge. Under § 53a-29 (a) and (b), a court may not impose a sentence of probation or of conditional discharge on a class A felon. Indeed, the defendant himself concedes that § 53a-28 and 53a-29, in the absence of § 53a-92a, unambiguously preclude the discretionary authority for which he argues, and this court has recently so held. State v. Lopez, supra. The state offers three different constructions to implement the intent of the public act to enhance penalties for firearm-related crimes. Its first suggestion is that the new statute creates a statutory safety net to provide a minimum mandatory prison term of one year in the event that a future legislature dismantles the existing statutory framework requiring mandatory minimum sentences for class A felonies. The state itself recognizes that this interpretation "is not precisely what the legislature intended" in enacting § 53a-92a. Its second suggestion is to view § 53a-92a not as a statute that creates a new offense but rather as a penalty-enhancing statute, intended to add an additional year to the mandatory minimum for firearm-related kidnappings. Although the legislature might have enacted a penalty-enhancing statute, the language of § 53a-92a unequivocally demonstrates that it did not do so. In sub section § 53a-92a (a), the statute expressly speaks of kidnapping in the first degree and kidnapping in the first degree with a firearm as separate offenses. Finally, the state suggests that if § 53a-92a creates an irreconcilable constitutional conflict with the penal code's other sentencing provisions, this court should rule that § 53a-92a is a nullity. The state has, however, failed to indicate the grounds, short of constitutional infirmity, upon which a court may nullify a later statute when it conflicts with one earlier enacted. "It is a well established principle of statutory construction that later enactments by the General Assembly are presumed to repeal earlier inconsistent ones to the extent that they are in conflict. Beccia v. Waterbury, 185 Conn. 445, [458-59], 441 A.2d 131 (1981); C. White & Son, Inc. v. Rocky Hill, 181 Conn. 114, 123, 434 A.2d 949 (1980); Pizzola v. Planning & Zoning Commission, 167 Conn. 202, 206, 355 A.2d 21 (1974). . . . Although repeal by implication is generally disfavored, this route is incumbent upon us when . . . the two relevant statutes cannot stand together. See State v. Carbone, 172 Conn. 242, 256, 374 A.2d 215, cert. denied, 431 U.S. 967, 97 S. Ct. 2925, 53 L. Ed. 2d 1063 (1977)." Southern Connecticut Gas Co. v. Housing Authority, 191 Conn. 514, 521-22, 468 A.2d 574 (1983). The state's argument of nullification, because it serves as a reminder of the doctrine of repeal by implication, provides a sound basis for sustaining the defendant's argument that his sentence needs further review. The legislature, cognizant of the constitutional guarantees of equal protection, must be deemed to have sought to attain a rational and sensible result that avoids placing a statute in constitutional jeopardy. Peck v. Jacquemin, 196 Conn. 53, 63-64, 491 A.2d 1043 (1985); Moscone v. Manson, 185 Conn. 124, 128, 440 A.2d 848 (1981). It is not rational and sensible to impose a lesser term of mandatory imprisonment on one convicted of kidnapping with the use of a firearm than on one convicted for a similar crime not involving a firearm. To avoid the constitutional quagmire that otherwise would confront us, we hold that the legislation codified as § 53a-92a (b) has created an irreconcilable conflict in the statutes governing mandatory minimum sentences for kidnapping in the first degree. Resolution of this irreconcilable conflict must be resolved in accordance with two governing principles: (1) a later statute repeals an earlier one, with which it cannot reasonably be reconciled, "to the extent of the repugnance"; Shippee v. Zoning Board of Appeals, 188 Conn. 555, 556-57, 451 A.2d 285 (1982); and (2) a criminal statute is construed strictly against the state and in favor of the accused. State v. Dupree, 196 Conn. 655, 660, 495 A.2d 691, cert. denied, 474 U.S. , 106 S. Ct. 318, 88 L. Ed. 2d 301 (1985). We therefore further hold that, until the legislature takes corrective action, the sentencing provision of § 53a-92a (b) governs all prosecutions for kidnapping in the first degree. Accordingly, the trial court was in error in refusing to exercise the discretion conferred upon it by § 53a-92a (b) to consider suspension of the defendant's sentence of imprisonment after one year. There is error, the judgment is set aside and the case is remanded for resentencing in accordance with this opinion. In this opinion the other judges concurred. General Statutes § 53a-102 provides: "burglary in the second degree: class c felony, (a) A person is guilty of burglary in the second degree when he enters or remains unlawfully in a dwelling at night with intent to commit a crime therein." General Statutes § 53a-92 (a) (2) (C) provides: "kidnapping in the first degree, (a) A person is guilty of kidnapping in the first degree when he abducts another person and when . . . (2) he restrains the person abducted with intent to . . . (C) terrorize him or a third person . . . ." The defendant and Gregory Howard were charged with commission of the same crimes, and were tried jointly. Like the defendant, Howard was convicted of the crimes charged, and sentenced to an effective term of imprisonment of ten years. Howard has not appealed the judgment against him. General Statutes § 53a-92 (b) provides: "kidnapping in the first degree. . . . (b) Kidnapping in the first degree is punishable as a class A felony." General Statutes § 53a-35a (3) provides: "imprisonment for any FELONY COMMITTED ON OR AFTER JULY 1, 1981: DEFINITE SENTENCES; terms authorized. For any felony committed on or after July 1, 1981, the sentence of imprisonment shall be a definite sentence and the term shall be fixed by the court as follows . (3) for a class A felony other than murder, a term not less than ten years nor more than twenty-five years } f General Statutes § 53a-28 provides: "Sec. 53a-28. authorized sentences. (a) Except as provided in chapter 368p, to the extent that such chapter is inconsistent herewith, every person convicted of an offense shall be sentenced in accordance with this title. "(b) Except as provided in sections 53a-45, 53a-46a, 53a-54b and 53a-92, when a person is convicted of an offense, the court shall impose one of the following sentences: (1) A term of imprisonment; or (2) a sentence authorized by sections 18-65a or 18-73; or (3) a fine; or (4) a term of imprisonment and a fine; or (5) a term of imprisonment, with the execution of such sentence of imprisonment suspended, entirely or after a period set by the court, and a period of probation or a period of conditional discharge; or (6) a term of imprisonment, with the execution of such sentence of imprisonment suspended, entirely or after a period set by the court, and a fine and a period of probation, or a period of conditional discharge; or (7) a fine and a sentence authorized by section 18-65 or 18-73; or (8) a sentence of unconditional discharge. "(c) A sentence to a period of probation or conditional discharge in accordance with sections 53a-29 to 53a-34, inclusive, shall be deemed a revocable disposition, in that such sentence shall be tentative to the extent that it may be altered or revoked in accordance with said sections but for all other purposes it shall be deemed to be a final judgment of conviction." General Statutes § 53a-29 provides in relevant part: "Sec. 53a-29. probation AND CONDITIONAL DISCHARGE: CRITERIA; PERIODS, (a) The court may sentence a person to a period of probation upon conviction of any crime, other than a class A felony, if it is of the opinion that: (1) Present or extended institutional confinement of the defendant is not necessary for the protection of the public; (2) the defendant is in need of guidance, training or assistance which, in his case, can be effectively administered through probation supervision; and (3) such disposition is not inconsistent with the ends of justice. "(b) The court may impose a sentence of conditional discharge for an offense, other than a class A felony, if it is of the opinion that: (1) Present or extended institutional confinement of the defendant is not necessary for the protection of the public; and (2) probation supervision is not appropriate." General Statutes § 53a-92a provides: "Sec. 53a-92a. kidnapping in the FIRST DEGREE WITH A FIREARM: CLASS A FELONY: ONE YEAR NOT SUSPEND-ABLE. (a) A person is guilty of kidnapping in the first degree with a firearm when he commits kidnapping in the first degree as provided in section 53a-92, and in the commission of said crime he uses or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses a pistol, revolver, machine gun, shotgun, rifle or other firearm. No person shall be convicted of kidnapping in the first degree and kidnapping in the first degree with a firearm upon the same transaction but such person may be charged and prosecuted for both such offenses upon the same information. "(b) Kidnapping in the first degree with a firearm is a class A felony for which one year of the sentence imposed may not be suspended or reduced by the court." The fourteenth amendment to the United States constitution provides in relevant part: "(CITIZENSHIP defined, privileges OF CITIZENS.) "Section 1. All persons bom 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." Article first, § 20, of the Connecticut constitution provides: "(EQUAL PROTECTION. NO SEGREGATION OR DISCRIMINATION.) "Sec. 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."

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

The petition of the defendant Daniel P. O'Connor for certification for appeal from the Superior Court in the judicial district of Waterbury is denied by the court.

Bogdanski, J. The plaintiff Olin Corporation instituted an action against the defendant Raul Castells wherein it alleged that the defendant had fraudulently induced Olin to pay $70,000 into a Swiss hank account which sum the defendant converted to his own use in breach of his employment agreement with Olin. Pursuant to § 52-278e of the General Statutes, Olin applied for a prejudgment remedy alleging that there was a reasonable likelihood that the defendant had fraudulently disposed of his property with the intent to defraud his creditor. On the basis of affidavits containing hearsay statements and a copy of a quitclaim deed wherein Raul Castells conveyed his interest in his home in Woodbridge to his wife Purita de Castells, the court granted Olin's application to attach the corporate shares of Raul Castells in Olin Corporation and one of its subsidiaries. Raul Castells subsequently moved to dissolve that order of attachment. He did not, however, challenge the court's finding of probable cause. Olin thereafter amended its complaint to bring an action against Purita Gf. de Castells to set aside a fraudulent conveyance and for money damages, alleging that Raul Castells transferred his interest in the Woodbridge property to his wife Purita with the intent to avoid the payment of his debts to his creditors and that, at the time of the conveyance, Purita knew that Olin had demanded repayment of the $70,000 from Raul. Olin also filed a motion for a supplemental prejudgment remedy seeking an order to attach Purita de Castells' interest in the Woodbridge property. In support of this motion, Olin filed the same affidavits containing hearsay statements and copy of the quitclaim deed which it had submitted in support of the prejudgment attachment of Raul Castells' interest in the corporate shares. It also filed an affidavit stating that the quitclaim deed was executed subsequent to the demand by Olin for the repayment of the $70,000 and the transcript of a deposition in which Raul Castells refused to answer questions relative to the conveyance of his interest in the Woodbridge property. At the hearing on the motion, the defendant Purita de Castells offered no evidence, documentary or otherwise, to contradict the allegations in the complaint or the statements in supporting documents. Instead, her counsel objected to the granting of the motion on the basis of affidavits containing hearsay statements and in the absence of live testimony. Prom the order granting the supplemental prejudgment remedy, the defendant Purita has appealed claiming that the court erred (1) in finding probable cause on the basis of hearsay statements without requiring the plaintiff to present live testi mony, (2) in relying on a prior unchallenged finding, and (3) in drawing an adverse inference from Raul Castells' invocation of the privilege against self-incrimination. We note at the outset that Olin could have proceeded in this case by seeking an order attaching Raul Castells' interest in the Woodbridge property. A grantor has an interest in property fraudulently conveyed which may be reached by attachment. Murphy v. Dantowitz, 142 Conn. 320, 326, 114 A.2d 194 (1955). "A creditor may attach property which has been fraudulently conveyed by his debtor as though no conveyance had been made." 37 C.J.S., Fraudulent Conveyances § 309; 37 Am. Jur. 2d, Fraudulent Conveyances § 165. In ordering Raul Castells' interest in the Woodbridge property attached, it would be incumbent upon the court to make a determination as to the probable cause of din's claim against the defendant Raul, a claim supported by affidavits containing hearsay statements. In the posture of the present case, however, it was not necessary for the court to consider the probability of Olin prevailing on the merits against the defendant Raul. We therefore need not decide whether the court erred in finding probable cause on the basis of those affidavits containing hearsay statements which relate to the action against Raul or on the prior unchallenged finding of probable cause made in a separate proceeding. Because Olin chose to attach Purita de Castells' interest in the Wood-bridge property, it was only necessary for the court to make a determination as to probable cause with respect to Olin's action against her, that is, the prob able cause that Raul Castells fraudulently conveyed his interest in the Woodbridge property to Purita de Castells. The defendant Purita de Castells claims that the court erred in drawing an adverse inference from Raul Castells' invocation of his privilege against self-incrimination, an inference upon which the court relied in making its determination as to probable eause. Attached to din's application was the transcript of a deposition taken of Raul Castells during which he was asked the following two questions : "Isn't it so that your interest in your house on Edgehill Drive in Woodbridge was transferred to your wife in 1976? Was not the reason for such transfer the attempt to avoid having that house as an asset which could be reached by a judgment in any action brought by Olin Corporation against you?" Raul Castells refused to answer either question on the grounds that an answer might tend to incriminate him or might furnish a link in a chain of evidence which might tend to incriminate him. The fifth amendment privilege against self-incrimination "not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings." Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S. Ct. 316, 38 L. Ed. 2d 274 (1973). The privilege does not, however, forbid the drawing of adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them. The prevailing rule is that the fifth amendment "does not preclude the inference where the privilege is claimed by a party to a civil cause." 8 Wigmore, Evidence (McNaughton Rev. 1961) § 2272, p. 439; see also Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S. Ct. 1551, 47 L. Ed. 2d 810 (1976). The evidence before the court included Raul Castells' refusal to respond to questions concerning the transfer of his interest in the Woodbridge property to Purita de Castells, an affidavit stating that the transfer occurred after Olin had demanded a return of the $70,000 from Raul Castells, a copy of the quitclaim deed reciting a consideration of less than $100, and the unchallenged allegation in Olin's complaint that Purita de Castells knew that Raul Castells was indebted to Olin, that Olin had demanded the return of the money owed, and that in accepting the Woodbridge property she knowingly participated in the fraudulent conveyance. This evidence, together with the inference which could have been drawn as to the truth of the allegation that Raul Castells had transferred his interest in the property to his wife Purita to avoid having it as an asset which could be reached by a judgment in an action brought by Olin, supported the order attaching the defendant Purita de Castells' interest in the Woodbridge property. There is no error. In this opinion the other judges concurred. "[General Statutes] Sec. 52-278e. allowance op prejudgment REMEDY WITHOUT HEARING. SUBSEQUENT MOTION, HEARING AND order. The court or' a judge of the court may allow the prejudgment remedy to be issued by an'attorney without hearing as provided in sections 52-278c and 52-278d upon verification by oath of the plaintiff or of some competent affiant, that there is probable cause to sustain the validity of the plaintiff's claim . . . that - there is reasonable likelihood that the defendant . is about to fraudulently dispose of or has fraudulently disposed of any of his property with intent to hinder, delay or defraud his creditors . The defendant appearing in such action may move to dissolve or modify the prejudgment remedy granted pursuant to this section in which event the court shall proceed to hear and determine such motion expeditiously. If the court determines at such hearing requested by the defendant that there is probable cause to sustain the validity of the plaintiff's claim, then the prejudgment remedy granted shall remain in effect. If the court determines there is no such probable cause, the prejudgment remedy shall be dissolved. An order shall be issued by the court setting forth the action it has taken."

Arthur H. Healey, J. The defendant, Rubin Rodriguez, was indicted by a grand jury for the crime of murder, which charged that on August 28, 1974, with intent to cause the death of Olga Vasquez, he did shoot her and cause her death in violation of General Statutes § 53a-54. Upon a trial to the jury, he was found guilty of the crime of manslaughter in the first degree. The court denied the defendant's motion to set aside the verdict and this appeal followed. On appeal the defendant claims that the trial court erred: (1) in denying his motion to dismiss the jury panel; (2) in ruling that a child witness, Jose Serrano, was competent to testify at the trial; (3) in refusing to allow Carmen Colon, Jose Serrano's mother, to testify at the trial concerning her son's character for truth and veracity; (4) in refusing to admit into evidence at the trial the state's answer to a question contained in the defendant's motion for discovery; (5) in refusing to allow the defendant to testify at the trial as to what he said to the victim on the morning of her death; and (6) in denying the defendant's motion to set aside the verdict. I The defendant's motion to dismiss the jury array, the denial of which he has assigned as error, was based upon several grounds. The defendant first argues that General Statutes § 51-217 (Rev. to 1977), which established the qualifications of jurors prior to September, 1977, unconstitutionally encroached upon the judicial power and, hence, violated the doctrine of separation of powers. The defendant attempts to categorize General Statutes § 51-217 (Rev. to 1977) with the statute this court invalidated in State v. Clemente, 166 Conn. 501, 353 A.2d 723 (1974). In Clemente, we said: " 'It is the province of the legislative department to define rights and prescribe remedies: of the judicial to construe legislative enactments, determine the rights secured thereby, and apply the remedies prescribed.' " State v. Clemente, supra, 509-10, quoting Atwood v. Buck ingham, 78 Conn. 423, 428, 62 A. 616 (1905). Statutes relating to the qualification of jurors are part of the machinery created by the legislature to prescribe appropriate remedies for those whose rights have been violated and to protect the rights of those accused of committing a crime. Trial by jury is a long-established and venerated attribute of angloamerican judicial systems. This right is guaranteed in both the state and federal constitutions. See Conn. Const., amend. IV; U. S. Const., amends. VI, VII. General Statutes §51-217 (Rev. to 1977), which implemented that right, was substantive in nature. It was not inconsistent with the independence of the judicial department; see Norwalk Street Ry. Co.'s Appeal, 69 Conn. 576, 594, 37 A. 1080 (1897); did not regulate procedure in the Superior Courts; see State ex rel. Kelman v. Schaffer, 161 Conn. 522, 529, 290 A.2d 327 (1971); and did not infringe upon the Superior Court's traditional exercise of its inherent discretionary power, as did the statute in Clemente. State v. Clemente, supra, 516. See Kay, "The Rule-Making Authority and Separation of Powers in Connecticut," 8 Conn. L. Rev. 1, 4 (1975). The defendant has not been able to present us with any authority for the proposition that legislatively prescribed juror qualifications encroach upon the judicial power. Our examination of the law of other jurisdictions discloses that even in those jurisdictions where the rule-making power resides exclusively in the judiciary, the legislature prescribes qualifications for prospective jurors. See, e.g., Colo. Rev. Stat. §13-71-109; Miss. Code Ann. §13-5-1; 17 Pa. Cons. Stat. Ann. § 1279,1332 (Purdon). We conclude that the power to regulate reasonably the qualification of persons to serve as jurors in our courts was properly exercised by the legislative branch of our government by the enactment of § 51-217 (Rev. to 1977). The defendant also claims that (1) General Statutes § 51-217 (Rev. to 1977), as it read at the time the members of the jury array, from which his petit jury derived, were summoned, is unconstitutionally vague and does not provide sufficient "primary standards" to guide the jury committee members and jury commissioners; see General Statutes § 51-221; and (2) the statute providing for the selection of persons who make up the jury array from electors' lists of each town; see General Statutes § 51-221; deprives the defendant of his right to be tried by a jury drawn from a fair cross section of the community. We considered and rejected identical claims in State v. Brown, 169 Conn. 692, 696-98, 364 A.2d 186 (1975). See also Carter v. Jury Commission, 396 U.S. 320, 332-33, 90 S. Ct. 518, 24 L. Ed. 2d 549 (1970); United States v. Kelly, 349 F.2d 720, 778 (2d Cir. 1965), cert. denied, 384 U.S. 947, 86 S. Ct. 1467, 16 L. Ed. 2d 544 (1966). The defendant has presented us with no reason to depart from our decision in Brown and cites no constitutional authority requiring any such departure. We conclude that the trial court did not err in denying the defendant's motion to dismiss the jury panel. II The defendant claims that the trial court erred in ruling that the witness Jose Serrano was competent to testify. We agree. Jose Serrano, a deaf mute, was the sole eyewitness of the shooting of Olga Vasquez. His testimony was, therefore, critical in this case. At the time of trial he was ten years old, and at the time of the death of Vasquez, he was nine. Upon Serrano's being offered by the state as a witness, defense counsel asked that the court determine his competency as a witness. At that time the court was informed that Serrano had to testify through interpreters. Two interpreters were qualified and utilized to elicit Serrano's testimony. Prior to the determination of Serrano's competency, the defense offered into evidence his school records from the American School for the Deaf, where he had been a student since 1972. Those records disclosed, among other things, that at the time of trial Serrano had the mental age of a six year old, was in the second grade, was profoundly deaf in that he could not distinguish sounds, such as between singing and a cowbell, could not read, and could only write his own name. In the absence of the jury, the court held a hearing through the interpreters to determine whether Serrano was qualified to testify. Serrano stated his name and age and that he attended and liked school. Upon being asked if he knew what it was to tell the truth, the answer given by the interpreter was: "He nodded through expression on his face, yes." He was asked: "Will you promise to tell the truth and not a lie?" to which the interpreter responded: "He nodded his head, yes." He was also asked: "If yon promise to tell the truth, and you tell a lie, do you understand you can be punished?" He answered "Yes." He also answered yes to the question, "Do you understand that it is your duty to tell the whole truth in this case?" The court then stated: "Ask him what happens if he doesn't tell the truth." The interpreter, after communicating with the witness, said: "From what I interpreted, it [his response] means that he won't tell a lie when he knows that he has to be honest." Thereupon, the court asked: "Does he understand that he has to tell the truth in this Court?" The interpreter then said to Serrano: "You know it is important that you have to tell the truth. And you will really tell the truth; you have to tell — everything you say has to be honest?" The witness answered: "Yes." Defense counsel asked if he knew what it meant to be afraid and the interpreter said: "He said noise." Upon being asked what "noise" was, the answer was: "A gun makes noise. When woman died, when she was shot. Q-un." Upon being asked if he could hear noise in his ears he said: "A little bit." After additional inquiry by the court and counsel, the trial court concluded: "Jose Serrano understands the oath of the witness and, therefore, is competent to testify." Defense counsel excepted to the ruling. On appeal, the defendant claims that the trial court erred in declaring Serrano competent to testify because Serrano could not receive correct sense impressions, did not understand the obligation of an oath, and had no intelligent comprehension of the facts sought to be developed. The testimonial capacity of a child witness is a matter for the court to determine upon inquiry. State v. Segerberg, 131 Conn. 546, 547, 41 A.2d 101 (1945). In Connecticut, the examination to determine the competency of a witness is usually conducted by counsel under direction of the court, except insofar as the court may find it advisable to intervene. See State v. Orlando, 115 Conn. 672, 676, 163 A. 256 (1932). Because the competency of a witness is a matter peculiarly within the discretion of the trial court, its ruling will be disturbed only in a clear case of abuse or of some error in law. State v. Siberon, 166 Conn. 455, 457, 352 A.2d 285 (1974); State v. Orlando, supra, 675; Kuczon v. Tomkievicz, 100 Conn. 560, 572-73, 124 A. 226 (1924). In determining the competency of child witnesses, age is not the decisive factor. See Kuczon v. Tomkievicz, supra, 570; McCormick, Evidence (2d Ed.) § 62. Instead, the trial court must consider "the proposed witness' maturity to receive correct impressions by his senses, ability to recollect and narrate intelligently, and ability to appreciate the moral duty to tell the truth." State v. Siberon, supra, 458. The witness should also have an intelligent comprehension of the facts sought to be developed. See State v. Segerberg, supra, 548; Kuczon v. Tomkievicz, supra, 570; McCormick, loc. cit. The defendant points out that Serrano's ability to receive correct sense impressions was impaired by his profound deafness. While it is true that the accuracy of the witness' visual sense impressions was more significant in this case, it is clear from the testimony elicited that Serrano's audio impressions were also important. Serrano's testimony was inconsistent at times on the number of shots fired. Thus, Serrano's inability to receive correct audio sense impressions had an impact upon the testimony he gave at the trial and upon the ultimate question of his competency as a witness. The defendant also argues that the trial court erred in concluding that Serrano understood the obligation of an oath. The defendant suggests that because Serrano did not know the exact nature of the punishment for not telling the truth, i.e., the punishment for perjury, he could not fully understand the oath of a witness. He relies in this claim upon language of the trial court set out in Kuczon v. Tomkievicz, supra, 569. While it is true that every witness, no matter what his age, must understand the obligation of the oath he takes before testifying in a court of this state, this requirement is satisfied when a child witness "appreciate[s] the moral duty to tell the truth." See Kuczon v. Tomkievicz, supra, 573; State v. Siberon, supra, 458. This duty is the core of a witness' oath. Whether a child witness is aware of the potential punishment for perjury is not. We cannot say that the court was required to declare Serrano incompetent to testify on this ground. We agree with the defendant's claim that the state did not demonstrate at the preliminary hearing to determine competency that Serrano had an intelligent comprehension of the facts sought to be developed or that he could recollect and narrate those facts intelligently. See State v. Segerberg, supra, 548. At this hearing to determine competency, no inquiry at all was made into Serrano's comprehension of the facts about which he was to testify. What this court said in State v. Segerberg, supra, 548, bears repeating here: "Under the most liberal tests, the obligation of the oath and an intel ligent comprehension of the facts sought to be developed remain a necessary part of the qualifications of a competent witness." Our inquiry does not end here, however, for error must be harmful before it will provide the basis for a reversal of a criminal conviction. State v. Runkles, 174 Conn. 405, 413, 389 A.2d 730, cert. denied, 439 U.S. 859, 99 S. Ct. 177, 58 L. Ed. 2d 168 (1978); State v. Annwnziato, 169 Conn. 517, 524, 363 A.2d 1011 (1975); Maltbie, Conn. App. Proc. § 17, 20. In order to demonstrate to this court that the error committed by the trial court was harmful, it was incumbent upon the defendant to include in his brief those portions of the transcript of Serrano's testimony that evidence Serrano's actual inability to comprehend intelligently the facts sought to be developed or to recollect and narrate intelligently those facts. This was not done. Such an examination of the testimony given is necessary, for even though a proper foundation had not been laid establishing competency at the preliminary hearing, had the testimony later given satisfied the applicable test, any error in the preliminary ruling would not be considered harmful. We would be inclined to overlook this deficiency; see Practice Book, 1978, § 3060R, 3164; were it not for the fact that the trial court committed harmful error with respect to another claim raised by the defendant. Ill The defendant asserts that the trial court committed reversible error in its ruling preventing the defendant from allowing Serrano's mother, Carmen Colon, to impeach the credibility of Serrano. The defendant made a lengthy offer of proof in which he demonstrated that Serrano's mother knew her son's character for truth and veracity both personally and in the community in which Serrano lived. Defense counsel then asked Carmen Colon whether she was acquainted with Serrano's character, to which she responded yes. Counsel then asked: "Is his character for truth and veracity equal to that of mankind in general," to which the witness responded no. The trial court concluded that these questions could not be asked under Connecticut law and ruled that the testimony of Carmen Colon on this issue was inadmissible. Although the state argued before the trial court that the only permissible inquiry of a character witness is his knowledge of an individual's reputation for truth and veracity in the community, the state now concedes in its brief that error was committed by the court's refusal to allow any of the witness' testimony relative to Serrano's trait of veracity. The state argues, nonetheless, that such error was harmless. In State v. Blake, 157 Conn. 99, 104-105, 249 A.2d 232 (1968), and State v. Gelinas, 160 Conn. 366, 368-69, 279 A.2d 552 (1971), this court finally settled the persistent confusion over the proper method of eliciting evidence of character. See also State v. Martin, 170 Conn. 161, 163, 365 A.2d 104 (1976). Both eases presented the question whether the only method for eliciting character evidence was to inquire of the character witness' knowledge of the defendant's or another witness' reputation in the community for the trait in issue. In both cases this court concluded that character evidence could be elicited either by inquiry into the character witness' knowledge of the individual's general reputation in the community for a particular trait or "by the opinion evidence of those who have been shown to have had an opportunity to form, and who have formed, an opinion as to the character of the . . . [individual] with respect to the trait or traits in issue." State v. Blake, supra, 104-105; State v. Gelinas, supra, 368; see Richmond v. Norwich, 96 Conn. 582, 593-97, 115 A. 111 (1921). This rule has been adopted by the federal courts; see Fed. R. Evid. 608 (a); and by the drafters of the Model Code of Evidence in § 306 (2) (a) and 401. The testimonial foundation laid by the defendant in the lengthy offer of proof justified utilizing either of these methods in establishing the witness' character for truth and veracity. The court's refusal to allow the defendant to elicit such testimony of the witness was, therefore, error. We do not agree with the state's contention that the court's error was harmless. See, e.g., People v. Rowland, 262 Cal. App. 2d 790, 798, 69 Cal. Rptr. 269 (1968). The defendant's right to impeach the credibility of the state's sole eyewitness to the crime is substantial. It implicates the defendant's constitutional right to confront the witnesses who testify against him. See U.S. Const., amend. VI; Conn. Const., art. 1 § 8. "In simple language, the defendant has the right to explore every facet of relevant evidence pertaining to the credibility of those who testify against him." United States v. Partin, 493 F.2d 750, 763 (5th Cir. 1974), cert. denied, 434 U.S. 903, 98 S. Ct. 298, 54 L. Ed. 2d 189 (1977). In State v. Gelinas, supra, we ruled that the court's erroneous exclusion of evidence offered by the defendant bearing on the truth and veracity of the two child complainants could not be harmless because the veracity of these witnesses was crucial to the state's case. We stated: "Under the circumstances where a determination of the guilt or innocence of the defendant depended in large measure on the veracity of the children testifying against him it cannot be said that the ruling was harmless error." State v. Gelinas, supra, 369. Likewise, under the circumstances of this ease, we cannot say that the testimony of the mother of the sole eyewitness to the homicide impugning her son's character for truth and veracity "could not reasonably have affected the verdict." State v. Moynahan, 164 Conn. 560, 602, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S. Ct. 291, 38 L. Ed. 2d 219 (1973); State v. Tropiano, 158 Conn. 412, 427, 262 A.2d 147, cert. denied, 398 U.S. 949, 90 S. Ct. 1866, 26 L. Ed. 2d 288 (1969). We must conclude that the error was harmful. Although our conclusion on this issue is dispositive of the appeal, we will consider certain of the defendant's claims which may have an impact on the new trial we order below. IV The defendant assigns error to the trial court's refusal to allow into evidence the state's answer to a question asked in his motion for discovery. The defendant filed a motion, pursuant to Practice Book, 1963, § 2152 (1) (now Practice Book, 1978, §741 [1]), seeking disclosure of exculpatory information or material, which the court granted. The state's answer was: "None contained in the State's file other than [that] a neighbor stated that the victim may have owned a pistol." During the trial the defendant offered into evidence this question and answer and the state objected. During the argument on the offer of this evidence it was disclosed that the statement was made by Jose Rivera who lived on the second floor above the apartment where the body of Olga Vasquez was found. The state objected to the offer on the grounds that the answer to the motion was not an admission and that it was not credible evidence. The defendant excepted to the sustaining of the state's objection. The defendant argues that the statement is admissible because: (1) the state is a party to the action, and hence, its answer to an interrogatory has the same effect as a judicial admission made in a pleading or in open court; and (2) even if the statement is not a judicial admission of the state, it is a hearsay statement made by an unavailable declarant, which, on the basis of Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973), would be fundamentally unfair to the defendant to exclude. The defendant's first argument, that the answer is admissible as a judicial admission, is based upon the authority of two civil cases. Bochicchio v. Petrocelli, 126 Conn. 336, 339-40, 11 A.2d 356 (1940) (action to recover on two promissory notes); Hirsch v. Thrall, 148 Conn. 202, 207, 169 A.2d 271 (1961) (action to recover damages for personal injuries). These cases stand for the proposition that, in a civil action, "[a]n answer filed by a party to an interrogatory has the same effect as a judicial admission made in a pleading or in open court"; Bochicchio v. Petrocelli, supra, 339; and that "[a] party is bound by a judicial admission unless the court, in the exercise of a reasonable discretion, allows the admission to be withdrawn, explained or modified." Hirsch v. Thrall, supra, 206-207. The defendant has provided us with no reason to extend this rule to criminal actions, and we can conceive of none. Moreover, this "statement" concedes no fact in issue in this case. The state by its answer does not concede that the victim owned a pistol or that a pistol owned by the victim inflicted the fatal wound. Professor Wigmore has written that a judicial admission is "[a]n express waiver, made in court or preparatory to trial, by the party or his attorney, conceding for the purposes of the trial the truth of some alleged fact, has the effect of a confessory pleading, in that the fact is thereafter to be taken for granted; so that the one party need offer no evidence to prove it, and the other is not allowed to disprove it. . . . It is, in truth, a substitute for evidence, in that it does away with the need for evidence." 9 Wigmore, Evidence (3d Ed.) § 2588. He goes on to indicate that "[t]he vital feature of a judicial admission is universally conceded to be its cowclusiveness upon the party making it, i.e. the prohibition of any further dispute of the fact by him, and any use of evidence to disprove or contradict it." (Emphasis in text.) 9 Wigmore, op. cit., § 2590. An answer to a motion to disclose exculpatory information in a criminal case, unlike the answer to a discovery motion in a civil case, serves only to satisfy the constitutional requirement that the state disclose material which raises a reasonable donbt of the defendant's guilt that would not otherwise exist. United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976); State v. Grasso, 172 Conn. 298, 301-303, 374 A.2d 239 (1977). This requirement exists independent of any motion by the defense for disclosure. State v. Grasso, supra, 302. A defendant is thus enabled to investigate the material disclosed to determine whether it leads to evidence that raises a reasonable doubt of his guilt that he may seek to introduce at his trial. The answers to such interrogatories are not in themselves competent evidence of the guilt or innocence of the accused, much less judicial admissions of the state. Moreover, in a criminal prosecution, the state is unlike a party to a civil action with respect to judicial admissions. This is so because the state is not an actor in the transaction or event giving rise to the prosecution as is a party to a civil action, but only exercises the public's power to vindicate its criminal laws. The defendant's contention that the answer to the interrogatory is admissible hearsay under the rule of Chambers v. Mississippi, supra, requires little discussion. The defendant reasons that the "statement" that was made out of court is admissible because Jose Rivera, the neighbor who evidently was interviewed by police following the death of Olga Vasquez, was unavailable. The short answer to this assertion is that the declarant of the "statement" in issue was not Jose Rivera, but the individual responding to the discovery motion on behalf of the state. We would be faced with an entirely different situation had the defendant offered into evidence a written statement of Jose Rivera. Under the circumstances of this case, the trial court's refusal to admit this "statement" into evidence was not error. The United States Supreme Court's decision in Chambers v. Mississippi, supra, does not require a different conclusion. Y The defendant's claim that the court erred in refusing to allow him to testify concerning what he said to the victim a short time before her death also may be briefly addressed. The statements were excluded on the ground that they were hearsay. The defendant did not offer these statements to prove the truth of the matter asserted therein; see Gyro Brass Mfg. Corporation v. United Automobile Workers, 147 Conn. 76, 80, 157 A.2d 241 (1959); McCormick, Evidence (2d Ed.) § 246; but only to establish a "time frame" for the events of the morning on which the victim died. Under this claim of admissibility, however, the content of the conversations was not relevant. On appeal the defendant claims for the first time that these statements were offered to show the defendant's state of mind. We do not address this claim inasmuch as we order a new trial at which the defendant will have an opportunity to pursue this theory of admissibility. YI We discuss now the defendant's claim that the trial court erred in refusing to set aside the verdict to the extent that the arguments the defendant makes on this ground have an impact on our disposition and a new trial. As we said in State v. Troynack, 174 Conn. 89, 99, 384 A.2d 326 (1977), where a defendant is convicted of a lesser offense than that charged, that conviction is an implicit acquittal on the greater offense. See Price v. Georgia, 398 U.S. 323, 329, 90 S. Ct. 1757, 26 L. Ed. 2d 300 (1970). Therefore, we do not remand this case for a retrial on the indictment of murder. The defendant based his motion to set aside the verdict on the ground that there was no foundation either in the law or the evidence at trial to support the verdict of guilty of manslaughter in the first degree. In this regard, he claims that General Statutes § 53a-45 (c) is, in this case, in conflict with the right of a criminal defendant to be informed of the nature and cause of the accusation against him under the federal and state constitutions. See U.S. Const., amend. VI; Conn. Const., art. I § 8. He reasons that because he was charged with murder, a crime requiring the element of specific intent to cause the death of another, the court's charge on manslaughter in the first and second degrees and criminally negligent homicide, which do not require the same state of mind, violated his right to be informed of the crime he is alleged to have committed. General Statutes § 53a-45 (c) provides: "The court or jury before which any person indicted for mnrder is tried may find him guilty of homicide in a lesser degree than that charged." As the defendant points out, the same provision as that contained in General Statutes § 53a-45 (c) was in effect prior to the enactment of the Penal Code in 1969. General Statutes § 53-9 (Rev. to 1958). The former statutory scheme applicable to homicides recognized four categories of homicide: Murder in the first and second degrees; General Statutes § 53-9 (Rev. to 1958); manslaughter; General Statutes §53-13 (Rev. to 1958); and misconduct of railroad employees or motor vehicle operators that causes death. General Statutes § 53-17 (Rev. to 1958). The language of § 53-9 that appears in the present § 53a-45 (c) has been held to permit four possible verdicts under an indictment for first degree murder: guilty of murder in the first degree, guilty of murder in the second degree, guilty of manslaughter, and not guilty. See McBrien v. Warden, 153 Conn. 320, 329, 216 A.2d 432 (1966); State v. Tomassi, 137 Conn. 113, 122, 75 A.2d 67 (1950). In McBrien v. Warden, supra, 326, this court said: "On a trial on an indictment for murder, it was felt desirable, as far back as 1830, to make sure that the petit jury, in accordance with the common-law rule, could return a verdict of guilty of manslaughter if the proof warranted even though only murder would have been charged in the indictment." Although the 1958 revision did not contain a definition of manslaughter, its common-law definition was applied by the courts. That definition focused on the presence of malice in murder and its absence in manslaughter. See State v. Johnson, 139 Conn. 89, 91-96, 90 A.2d 905 (1952). Thus, under the homicide statutes in effect prior to 1969, a person indicted for murder could be found guilty of a "wilful, deliberate and premeditated killing," or a killing perpetrated in the course of committing certain enumerated crimes (murder in the first degree, § 53-9); "homicide committed with malice aforethought" (murder in the second degree, § 53-9); see, e.g., State v. Shelton, 160 Conn. 360, 363, 278 A.2d 782 (1971); homicide without malice aforethought (manslaughter, §53-13); State v. Johnson, supra, 91-92; or, where applicable, homicide committed under circumstances set forth in § 53-17 (Rev. to 1958) (wilful misconduct or gross negligence). In the category of manslaughter under § 53-13 was included the intentional infliction of a wound from which death ensued; State v. Tomassi, supra, 119; State v. Bantley, 44 Conn. 537, 540 (1877); and engaging in an activity in a "reckless manner or with wanton disregard for the safety of others" which causes death. State v. DiLorenzo, 138 Conn. 281, 286, 83 A.2d 479 (1951). As these categories disclose, the state of mind of the actor varied according to the degree or grade of homicide involved. Such gradations of the mental state went along the single spectrum of criminal culpability in our former statutory scheme of homicide. It is therefore difficult to understand how the defendant can argue that the statutory language permitting a jury to find a defendant indicted for murder guilty of homicide in a lesser degree than that charged was constitutionally permissible prior to the enactment of the Penal Code in 1969, but not subsequent to that time. In both statutory schemes, the state of mind required for a homicide of a lesser degree than that charged is different from the state of mind for the offense charged. In State v. Tomassi, supra, we construed substantially the same language as that appearing in § 53a-45 (c) and concluded that "the natural meaning of the . . . provision is that on the theory that the greater offense includes the less, . . . the jury may determine the ease under the original charge by finding the accused guilty of the lesser offense where such a conviction is warranted and is the only one warranted upon the evidence." State v. Tomassi, supra, 122-23. It is a well-settled principle of constitutional law that where one or more offenses are lesser than and included within the one charged, notice of the one charged constitutes notice of any lesser included offenses. See Paterno v. Lyons, 334 U.S. 314, 320-21, 68 S. Ct. 1044, 92 L. Ed. 1409 (1948); Walker v. United States, 418 F.2d 1116, 1119 (D.C. Cir. 1969); State v. Conklin, 115 N.H. 331, 335, 341 A.2d 770 (1975); State v. Daniels, 223 Kan. 266, 271, 573 P.2d 607 (1977); Barnett, "The Lesser-Included Offense Doctrine: A Present Day Analysis for Practitioners," 5 Conn. L. Rev. 255 (1972). Therefore, for purposes of this defendant's sixth amendment right to notice, the question presented to ns is whether the two sections of the first degree manslaughter statute; General Statutes § 53a-55 (a) (1) and (3) ; the second degree manslaughter statute; General Statutes § 53a-56 (a) (1) ; and criminally negligent homicide ; General Statutes § 53a-58 ; are, in this case, lesser included offenses of murder and proper subjects of a jury instruction under the authority of § 53a-45 (c). Because each of these homicide statutes requires a different state of mind of the actor than that required for murder, the question is whether one homicide offense can be lesser than and included within another such offense where the state of mind required for the greater is more culpable than the state of mind required for the lesser. The state of mind of one accused of a crime is often the most significant and, at the same time, the most elusive element of the crime charged. This is especially true where a person has caused the death of another person. The death of a person may be caused by a purely accidental act or omission of another, from which no criminal liability may result, or it may come about as the result of long and careful planning, for which the law prescribes severe penalties. Because it is practically impossible to know what someone is thinking or intending at any given moment, absent an outright declaration of intent, a person's state of mind is usually proved by circumstantial evidence; State v. Moynahan, 164 Conn. 560, 579-80, 325 A.2d 199 (1973); and is, except in rare cases, a question of fact. See Stevenson v. United States, 162 U.S. 313, 314, 16 S. Ct. 839, 40 L. Ed. 980 (1896); State v. Vars, 154 Conn. 255, 263, 224 A.2d 744 (1966); cf. State v. Cianflone, 98 Conn. 454, 463, 120 A. 347 (1923). Where the state is faced with a homicide prosecution, it may, in good faith and where the circumstances reasonably warrant, assume that an accused acted with the most culpable state of mind. But where the evidence is reasonably susceptible of another conclusion, the jury, or three judge panel, as the case may be; see General Statutes § 53a-45(b); should not be bound by that assumption and forced by its verdict to choose only between the offense with the most culpable state of mind and acquittal. Such a result would limit the jury's function of determining questions of fact and undermine a defendant's right to a trial by jury. See Keeble v. United States, 412 U.S. 205, 212-13, 93 S. Ct. 1993, 36 L. Ed. 2d 844 (1973); Sanchez v. People, 172 Colo. 168, 173-74, 470 P.2d 857 (1970). This reasoning was adopted by the United States Supreme Court in Stevenson v. United States, 162 U.S. 313, 16 S. Ct. 839, 40 L. Ed. 980 (1896). Reviewing a trial court's refusal in a murder prosecution to instruct the jury on manslaughter, the court there said: "The evidence as to manslaughter need not be uncontradicted or in any way conclusive upon the question; so long as there is some evidence upon the subject, the proper weight to be given it is for the jury to determine. If there were any evidence which tended to show such a state of facts as might bring the crime within the grade of manslaughter, it then became a proper question for the jury to say whether the evidence were true and whether it showed that the crime was manslaughter instead of murder." Id., 314. Permitting the jury to find the defendant guilty of a lesser charge of homicide than that charged, where the evidence supports such a finding, does not violate the defendant's sixth amendment right to notice. By the charge on the greater offense of murder, the defendant is put on notice that he will be put on trial for his action in causing the death of another person. Thus, having been given notice of the most serious degree of culpable intent by the murder indictment, he is implicitly given notice of those lesser included homicides that require a less serious degree of culpable intent. See Walker v. United States, 418 F.2d 1116, 1119 (D.C. Cir. 1969); Mildwoff v. Cunningham, 432 F. Sup. 814, 817 (S.D. N.Y. 1977); State v. Conklin, 115 N.H. 331, 335, 341 A.2d 770 (1975). In reaching this conclusion we have examined a great deal of case law from other jurisdictions. In none have we discovered, nor has counsel referred us to, a holding that prevents a court from instructing a jury in a homicide case on a lesser degree of homicide than that charged where the evidence so warrants. Rather, courts consistently hold that where the evidence supports an instruction on a lesser degree of homicide than that charged, it is error to refuse to give such an instruction. Stevenson v. United States, 162 U.S. 313, 314-15, 320-23, 16 S. Ct. 839, 40 L. Ed. 980 (1896); DeMarrias v. United States, 487 F.2d 19, 21 (8th Cir. 1973), cert. denied, 415 U.S. 980, 94 S. Ct. 1570, 39 L. Ed. 2d 877 (1974); Government of Virgin Islands v. Carmona, 422 F.2d 95, 100 (3d Cir. 1970); Gardner v. Forister, 468 F. Sup. 761 (W.D. N.C. 1979); Chavers v. State, 361 So. 2d 1106 (Ala. 1978); Gieffels v. State, 590 P.2d 55, 64 (Alaska 1979); State v. Jones, 109 Ariz. 80, 81, 505 P.2d 251 (1973); People v. Crosier, 41 Cal. App. 3d 712, 724-25, 116 Cal. Rptr. 467 (1974), cert. denied, 421 U.S. 966, 95 S. Ct. 1956, 44 L. Ed. 2d 453 (1975); Sanchez v. People, 172 Colo. 168, 173, 470 P.2d 857 (1970); People v. Simpson, 74 Ill. 2d 497, 500, 384 N.E.2d 373 (1978); State v. Booker, 200 Kan. 166, 170, 434 P.2d 891 (1967), cert. denied, 391 U.S. 965, 88 S. Ct. 2031, 20 L. Ed. 2d 879 (1968); Bartrug v. Commonwealth, 568 S.W.2d 925, 926-27 (Ky. 1978); State v. Schluter, 281 N.W.2d 174, 176 (Minn. 1979); State v. Anderson, 515 S.W.2d 534, 537 (Mo. 1974); State v. Thomas, 147 Mont. 325, 331, 413 P.2d 315 (1966) ; State v. Fuller, 203 Neb. 233, 243, 278 N.W.2d 756 (1979); State v. Manus, 93 N.M. 95, 99, 597 P.2d 280 (1979); People v. Strong, 37 N.Y.2d 568, 569-72, 338 N.E.2d 602 (1975); Commonwealth v. Thomas, 393 A.2d 1122, 1124, 1127-30 (Pa. 1978) (Pomeroy, J.). We note also that the same result we reach would obtain under the lesser included offense provision of the Model Penal Code. See Model Penal Code § 1.07 (4) (c). The defendant relies primarily upon this court's decisions in State v. Troynack, 174 Conn. 89, 95-99, 384 A.2d 326 (1977), and State v. Ruiz, 171 Conn. 264, 269-72, 368 A.2d 222 (1976), for his argument that the lesser crimes involved here would not have been lesser included offenses of murder. We point out that Ruiz did not involve a prosecution for homicide and that in Troynack, which did, the court was not presented with any claim involving General Statutes § 53a-45 (c). To the extent that the reasoning employed in those cases is contrary to the analysis we employ here, however, they are no longer controlling. By our decision today we do not suggest that an instruction on a lesser degree of homicide than that charged will always be the proper subject of a lesser included offense instruction. The conditions we set out in State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980), control. For purposes of the second condition of Whistnant, we conclude, however, that an offense that would be a lesser included offense but for its requirement of a less culpable state of mind than that required for the greater, will be deemed a lesser included offense. Therefore, there must be "some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense [of homicide]; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser." Ibid. Where these conditions are met, an instruction on a homicide of a lesser degree than that charged is appropriate, whether requested by the state or the defendant, or given by the court sua sponte. In the light of this conclusion, we examine the offenses upon which the jury were instructed, to determine which of them is a proper subject of a lesser included offense instruction and, therefore, an appropriate charge against the defendant for the purpose of the second trial. Under the conditions set out above, which require that there be some evidence to justify conviction of the lesser offense, it is apparent that the evidence at the first trial as summarized in the briefs could not have justified a jury instruction upon criminally negligent homicide; General Statutes § 53a-58; manslaughter in the second degree as defined in General Statutes § 53a-56 (a) (1), or manslaughter in the first degree as defined in General Statutes § 53a-55 (a) (3). The evidence, as summarized in the briefs, could not have supported a conclusion that the defendant, in causing the death of the victim, acted with criminal negligence; see General Statutes § 53a-3 (14); or with recklessness; see General Statutes § 53a-3 (13); or with recklessness under circumstances evincing an extreme indifference to human life. See General Statutes § 53a-55 (a) (3). The evidence summarized in the briefs is reasonably susceptible of a conclusion that the defendant, intending to cause serious physical injury to the victim, caused her death. See General Statutes § 53a-55 (a) (l). There is error, the judgment is set aside and the case is remanded for a new trial on the charge of manslaughter in the first degree in violation of General Statutes $ 53a-55 (a) (1). In this opinion the other judges concurred. Like the situation presented in State v. Love, 169 Conn. 596, 598n., 363 A.2d 1035 (1975), although the substantive offense is clearly specified in the indictment and judgment, the statute referred to in the indictment is incorrectly recited as "Section 5.3a-54" rather than "section 53a-54a," which replaced § 53a-54 and was in effect at the time the homicide was committed. See Public Acts 1973, No. 73-137 § 2, 15. The description of the substantive offense in General Statutes § 53a-54 (Rev. to Oct., 1973) is identical to that appearing in General Statutes § 53a-54a. The defendant has made no issue of the incorrect reference, and it is clear from the trial and his appellate brief and argument that he was not misled. "The mistake is at most harmless." State v. Love, supra. General Statutes § 51-217 (Rev. to 1977) provided as follows: "qualifications of jurors. All jurors shall be electors esteemed in their community as persons of good character, approved integrity, sound judgment and fair education, and with no permanent disability impairing their capacity to serve as jurors." General Statutes § 51-217 now provides: "qualification of jurors. All jurors shall be electors who have no permanent disability impairing their capacity to serve as jurors and who have reached the age of eighteen." In footnote 31 of Carter v. Jury Commission, 396 U.S. 320, 333, n. 31, 90 S. Ct. 518, 24 L. Ed. 2d 549 (1970), $ 51-217 is cited as one among many statutes similar to the Alabama statute, which the court ruled constitutionally valid in that case. See Practice Book, 1978, § 3054 (e) (3) (Rev. to June, 1979) now § 3060F (e) (3) and § 3060R. An examination of the offer of proof reveals that the testimony of Carmen Colon could have had a substantial adverse impact on the credibility of the witness Jose Serrano. Practice Book, 1978, § 3060B. These questions derive from State v. Randolph, 24 Conn. 362, 367 (1856). We need not examine such far removed precedent to determine the propriety of the court's ruling here. For an excellent discussion of the origin of the so-called "English Rule" that character could be proved exclusively by reputation see 7 Wigmore, Evidence (Chadbourn Rev. 1978) 1981, 1982, 1985. See also McCormick, Evidence (2d Ed.) § 4A. In State v. Troynack, 174 Conn. 89, 99, 384 A.2d 326 (1977), the jury were instructed to consider the defendant's guilt of the lesser offense only after deciding that the defendant was not guilty of the greater. The jury in this case were likewise instructed to consider the lesser crimes only if they concluded that the state had not proved murder beyond a reasonable doubt. Although the defendant concedes that he failed to take an exception to the charge in this regard, it is evident that if he has been convicted of an offense for which he was never given notice, as he suggests, then he has been deprived of a fundamental constitutional right and a fair trial. Therefore, we consider this claim although it is raised for the first time on appeal. See Practice Book, 1978, § 3063; State v. Rice, 172 Conn. 94, 101, 374 A.2d 128 (1976) ; State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). General Statutes fi 53-9 (Rev. to 1958) provides in pertinent part: "[T]he jury before which any person indicted for murder is tried may find him guilty of homicide in a less degree than that charged." In our analysis, we do not consider the word "degree" in § 53-9 (Rev. to 1958) or fi 53a-45 (c) critical as we treat that term as applying to the grade of homicide in each of the applicable statutory schemes. We have no need in this discussion to refer to a verdict of not guilty by reason of insanity. In no ease decided under the former homicide statutes have we discovered a charge given in which the jury were permitted to find a defendant indicted with murder guilty of General Statutes § 53-17 (Rev. to 1958). We assume that in none would the facts have warranted such an instruction. The provision actually construed in State v. Tomassi, 137 Conn. 113, 75 A.2d 67 (1950), was part of General Statutes § 8350 (Rev. to 1949). General Statutes § 53a-55 (a) (1) and (3) provide: "manslaughter IN THE FIRST DEGREE: CLASS B FELONY. (a) A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person; . or (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person." The relevant portion of General Statutes § 53a-56 provides: "MANSLAUGHTER IN THE SECOND DEGREE: CLASS C FELONY. (a) A person is guilty of manslaughter in the second degree when: (1) He recklessly causes the death of another person . (b) Manslaughter in the second degree is a class C felony." General Statutes § 53a-58 provides: "criminally negligent homicide: class A misdemeanor, (a) A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person, except where the defendant caused such death by a motor vehicle. (b) Criminally negligent homicide is a class A misdemeanor." The states of mind involved are defined in General Statutes § 53a-3 (11), (13) and (14) with the exception of manslaughter in the first degree under subsection (a) (3) of § 53a-55, which requires recklessness and "circumstances evincing an extreme indifference to human life." This last phrase indirectly bears upon the defendant's state of mind. See Commonwealth v. Pierce, 138 Mass. 165, 175 (1884) (Holmes, J.); People v. France, 57 App. Div. 2d 432, 394 N.Y.S. 2d 891 (1977). By our decision we do not preclude the trial court from instructing the jury at the second trial upon any lesser included offense to which the state or the defendant may be found entitled.

The petition of William W. Joslin et al. for certification for appeal from the Superior Court in the judicial district of Fairfield at Bridgeport is denied by the court.

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

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

Per Curiam. The marriage of the parties was dissolved by a decree entered September 7, 1977. The court, at that time, approved the stipulation of the parties, made in open court in the presence of their counsel, concerning custody, alimony and the division of their property. It also ordered that the provisions of the stipulation be incorporated in the decree. One of those provisions gave the plaintiff wife the option to purchase the husband's interest in the jointly owned home of the parties providing she exercised the option on or before April 1, 1978. The stipulation also provided that if the wife exercised the option, she was obligated, within thirty days of doing so, to pay the husband 40 percent of the fair market value of the house less the principal balance of the outstanding mortgage. If the wife did not exercise the option, the house was to be placed on the market for sale no later than April 1, 1978, and when sold, the wife and the husband would be entitled to receive 60 percent and 40 percent, respectively, of the net proceeds. The parties themselves, as well as their counsel, engaged in negotiations in early 1978 concerning the possible exercise by the wife of her option to purchase the husband's interest. These negotiations broke down, the plaintiff claimed, because the defendant had breached an agreement entered into by the parties. Thereafter, the wife filed a motion to modify the judgment. In her motion she alleged that the defendant agreed to sell his interest based on an agreed valuation of $130,000; that he first agreed that the purchase price of the defendant's 40 percent interest ($33,517.50) should be paid one-half in cash and the remaining one-half five years later without interest; and that, thereafter, when she was ready to conclude the transaction, he changed the terms so that she would have to pay $20,000 in cash and the balance of $13,517.50 in three years. She also claimed that, after she had made arrangements for a bank loan and after the documents were prepared, the husband again changed the terms and insisted that the balance of $13,517.50 be paid by a mortgage to be amortized over a three-year period. Setting out her financial circumstances, and citing her husband's demands upon her to exercise the option, she sought modification of the decree to provide that the purchase price of the defendant's 40 percent interest ($33,517.50) be paid without interest as follows: (1) $16,758.75 within thirty days; and (2) $16,758.75 five years thereafter, or sooner if the property is sold. If the plaintiff were required to pay to the defendant $20,000 cash and make payments on a third mortgage to the defendant of $13,517.50, amortized over a three-year period, the plaintiff alternatively sought that the court modify her award of periodic alimony to reflect the added monthly liability. The trial court denied her motion to modify relying upon the following reasons: (1) an agreement had not been reached between the parties; (2) the plaintiff had failed to prove that the defendant was estopped from repudiating any alleged agreement; (3) the court was, in any event, without power under General Statutes § 46b-86 to modify that portion of the judgment dealing with the assignment of property; and (4) no increase in the periodic alimony payments to the wife was warranted because there was no showing of a substantial change of economic circumstances not contemplated by the parties at the time of the original decree. On appeal, the plaintiff maintains that it was error for the trial court to deny her motion to modify and attacks all of these conclusions. We need not consider the plaintiff's claims addressed to the alleged agreement of the parties on the exercise of the option because we have concluded that the trial court was correct in its conclusion that it was without power to modify that portion of the judgment dealing with the assignment of property. The court's judgment in an action for dissolution of a marriage is final and binding upon the parties, where no appeal is taken therefrom, unless and to the extent that statutes, the common law or rules of court permit the setting aside or modification of that judgment. Under Practice Book, 1978, § 826, a civil judgment may he opened or set aside, unless otherwise provided by law, where a motion seeking to do so is filed within four months from the date of its rendition. Under § 326, the parties may waive the time requirements or otherwise submit themselves to the jurisdiction of the court. Absent waiver, consent or other submission to jurisdiction, however, a court is without jurisdiction to modify or correct a judgment, in other than clerical respects, after the expiration of the term of the court in which it was rendered; Snow v. Calise, 174 Conn. 567, 571, 392 A.2d 440 (1978); or the term provided in Practice Book, 1978, § 326. The plaintiff's motion to modify was not filed within the applicable periods and the parties did not submit themselves to the jurisdiction of the court by waiver, consent or otherwise. It remains for us to consider whether the applicable statutes authorized the court to modify the assignment of property contained in the judgment. General Statutes §46b-86 (a) provides: "Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support or alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party. This section shall not apply to assignments under section 46b-81 or to any assignment of the estate or a portion thereof of one party to the other party nnder prior law." This provision confers on the court continuing jurisdiction, except where precluded by the decree, to modify orders for the periodic payment of permanent or pendente lite alimony or support upon a showing of a substantial change in the circumstances of either party. See Viglione v. Viglione, 171 Conn. 213, 215, 368 A.2d 202 (1976). By its terms, the statute deprives the Superior Court of continuing jurisdiction over that portion of a dissolution judgment providing for the assignment of property of one party to the other party under General Statutes § 46b-81. The plaintiff claims, however, that the portion of the judgment relating to her option to purchase the jointly owned home was not an assignment of property within the meaning of General Statutes § 46b-81. This claim is without merit. The court's dissolution judgment, which gave to the plaintiff the option to buy out the defendant's interest in the jointly owned home for 40 percent of its fair market value in effect assigned to the plaintiff at least 10 percent of the defendant's interest in that property and was clearly ordered under the authority of § 46b-81. In any event, that portion of the judgment sought to he modified was not a final order for the periodic payment of permanent alimony or support. See General Statutes § 46b-86 (a); Clark, Domestic Relations § 14.8. We discuss briefly the plaintiff's claim that the trial court erred in denying that part of her motion seeking a modification of alimony. The trial court concluded that the plaintiff had not demonstrated that there was a substantial change in the circumstances of either party not contemplated by the parties at the time of the decree. General Statutes § 46b-86 (a); see Fricke v. Fricke, 174 Conn. 602, 392 A.2d 473 (1978); Sanchione v. Sanchione, 173 Conn. 397, 407, 378 A.2d 522 (1977). This conclusion is not erroneous. The sole basis for the plaintiff's motion to modify was that her economic circumstances had changed as the result of the financial arrangements she claimed she had to make to purchase the defendant's interest in the family home. The exercise of the option, with the accompanying arrangements, was contemplated by the parties in the original judgment and cannot constitute a change of circumstances under the statute. There is no error. Practice Book, 1978, S 326 also excepts from its operation "cases in which the court has continuing jurisdiction." The portion of the judgment which the plaintiff sought to modify, directed as it was to an assignment of property or the estate of the parties, was not one over which the court had "continuing jurisdiction." See General Statutes § 46b-86 (a). Both parties filed financial affidavits for the hearing on the motion to modify. Each listed the jointly held real estate nnder the heading "Assets." The plaintiff's affidavit then reads: "Plaintiff's Equity per Judgment (60%) $50,276.27"; and the defendant's affidavit reads: "40% share of equity $33,600.00."

Wright, J. The marriage of the plaintiff Gordon Adams and the defendant Laurie Adams was dissolved on December 16, 1976, in the Superior Court at Middletown (Naruk, J.), at which time joint custody of the son Michael, born June 22, 1966, and the daughter Hadley Amelia, born July 24, 1969, was given to the plaintiff father and the defendant mother, pursuant to a stipulation between the parties. During the latter part of the marriage, the defendant wife became extremely depressed, due in large measure to the pornographic leanings and sexual interests of the plaintiff husband. During this period the defendant received psychiatric care and spent ten months at the Institute of Living. At the time of the dissolution the defendant was financially unable to provide an adequate home for the children, and she accordingly decided that joint custody of the children was the proper solution. At the present time the defendant is pursuing a graduate degree at the University of Connecticut, where she also holds a teaching job for which she is compensated in the amount of $4120 per year. While she still sees a psychiatrist, she has never felt better than she does at the present time. The psychiatrist feels that she is cured. On July 10,1978, the defendant filed a motion for modification of the custody order. At that time the children were living with the plaintiff father, who had had primary control over their care and welfare since the dissolution of the marriage. After nearly three days of hearings the referee to whom the matter was referred found that the defendant mother was living at the state university in Mansfield, where she had adequate quarters for the children. The referee found that the defendant's outlook on life and morals was superior to that of the plaintiff. For instance, after the dissolution of the marriage, the plaintiff continued to keep in his home pornographic materials which were found by the children and read by them when the father was not at home. The referee further found that the defendant mother was completely well and was an unusually able and affectionate mother. The court below thereupon modified the judgment of December 16, 1976, to provide "that the care, custody and education of said minor children is hereby committed to the defendant mother subject to the right of reasonable visitation in the plaintiff father. Custody of said minor children shall remain joint, between the parties, provided, however, that the defendant mother shall have primary control over the care and welfare of said minor children and that they shall reside with the mother. At the end of the present school year in Middletown and not later than July 1, 1979, the children shall spend half of the summer with the defendant mother and the other half of the summer with the plaintiff father. When school opens in the fall of 1979, the minor children shall live with the defendant mother from Sunday night until the following Friday at a convenient hour before 6:00 p.m. when the mother shall bring the minor children to spend the weekend with their father. The father will return the minor children to the mother prior to 6:00 p.m. on the following Sunday." This court cannot overturn the decision of the trial court unless there has been a clear abuse of discretion. "Nothing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference." Morrill v. Morrill, 83 Conn. 479, 491, 77 A. 1 (1910); Stewart v. Stewart, 177 Conn. 401, 408, 418 A.2d 62 (1979); Kearney v. State, 174 Conn. 244, 252, 386 A.2d 223 (1978); Simons v. Simons, 172 Conn. 341, 348, 374 A.2d 1040 (1977). During the course of the trial which lasted nearly three days, the court had the opportunity to hear the testimony and observe the demeanor of both the parties and seven other wit nesses. Testimony was produced on both direct and cross-examination which led the court to the conclusion that the long-range interests of the children would best be served by having them spend more time with their mother and by giving her primary responsibility for them. "We have little or no discretion in determining what is in the best interests of a child once a record is made in the trial court." Stewart v. Stewart, supra. An examination of the record in this case reveals that the decision of the referee is based on a solid foundation of credible testimony. It should be particularly noted that there has been no change in the order of joint custody between the parents. The plaintiff father still retains his right of joint custody with ample visitation rights. There is no error. In this opinion Loiselle, Peters and Healey, Js., concurred. Bogdanski, J., dissented. There was an extensive attack on the finding, which we have examined. We have found nothing which requires us to disturb the material findings of fact.

Cotter, C. J. These consolidated cases were instituted on behalf of eight vault manufacturing companies, a burial vault manufacturers' association, six funeral directors, two funeral director associations, and two private individuals who own plots located in the cemetery property owned by the defendant Mountain Grove Cemetery Association (hereinafter Mountain Grove). The complaints in both, actions contain identical allegations that the defendant is engaged in the sale, for profit, of burial vaults and that such activity is "unlawful, unreasonable and against public policy," for the alleged reasons, inter alia, that the defendant's activity is prohibited by General Statutes § 20-230 and is beyond its corporate charter. In the first action, the plaintiffs seek money damages and an injunction enjoining any further sales of burial vaults by the defendant. The second action is in the nature of quo warranto challenging the authority under which the defendant claims the propriety of its burial vault sales activity and seeking the forfeiture of the defendant's charter and the dissolution of its corporate existence. From the judgment rendered in favor of the defendant on the complaint in each of these cases, the plaintiffs have appealed. Mountain Grove was organized in 1849 as a private enterprise for cemetery purposes. In 1889, it was organized, by Special Act No. 231, as a non-stock corporation, open to the public, with the "right to acquire and to hold lands for the purpose of a cemetery." 10 Spec. Acts 1049, No. 231. The cemetery now has in excess of 125 acres of land, seventeen of which remain unused, and possesses the right of eminent domain to acquire additional land. General Statutes § 19-147 and 48-18. Mountain Grove receives its gross income from various sources including the sale of lots, tent fees, charges for digging graves, securities, operation of a crematory, the sale of crypts or niches in its mausoleum and columbarium and the sale of urns, mausoleum face plates, flowers and bronze markers. Although not required by statute, cemetery regulations require that all caskets be enclosed in a nonperishable vault or casket container for earth interment. See Dries v. Charles Evans Cemetery Co., 109 Pa. Super. 498, 167 A. 237 (cemetery regulation providing that vaults required for burial be made of either brick, stone, or concrete held to be a reasonable exercise of the cemetery's charter powers). The use of burial vaults prevents the collapse of the grave upon the decomposition of the body and the casket and thus enables the cemetery to properly maintain the lots and preserve the aesthetic quality of the grounds. Burial vaults are usually acquired through funeral directors who show prospective purchasers samples, or mock-ups, of various vault styles from which to choose, and when the decision is made as to which vault is to be utilized, the funeral director contacts the vault manufacturer and places an order for that vault. This transaction is treated as if the funeral director sold the vault inasmuch as the director makes a profit and must pay sales tax on that sale. The manufacturer then delivers the vault to the cemetery for installation in the grave prior to the funeral service. Following the service, the casket is lowered into the vault which is then covered and usually sealed. Burial vaults have not always been obtained through funeral directors but are sometimes sold directly to cemeteries and, in fact, in the 1920s, Mountain Grove itself sold vaults. In 1975, Mountain Grove sought to offer an alternative form of below ground burial utilizing a vault called a double depth lawn crypt. A double depth lawn crypt is a single unit in which two caskets are placed, one on top of the other, separated by a shelf. In the traditional single vault burial, only one casket may be placed in a vault. Bids were sought from various vault manufacturers, including the plaintiff Norwalk Vault Company of Bridgeport, Inc., (hereinafter Norwalk Vault) for the purchase and installation of double depth lawn crypts at Mountain Grove. Alexander Pirozzoli, president of Norwalk Vault, purportedly expressing the opinion of the three plaintiff associations, declined to offer a bid as requested by Mountain Grove stating that, in his belief, it would be "contrary to existing law for cemeteries to engage in the sale of funeral merchandise." Mountain Grove eventually purchased 128 double depth crypts from a vault manufacturer in Pennsylvania which were all installed en masse. The instal lation was accomplished by excavating an area of approximately one acre and constructing therein a drainage system of pipes and washed gravel. Along the perimeter of the excavated area, organic tile was installed. This drainage system, is necessary to remove the water that would seep into the crypt while the crypt remains unsealed until both caskets are placed in it. There is a vent at the bottom of the crypt through which the water flows out of the crypt and is carried away by the drainage system. The crypts were installed side by side on top of the washed gravel, one and one-half inches apart, so as to tie them into the drainage system, and the area was then backfilled with topsoil and reseeded. For a burial utilizing a double depth crypt, the cemetery needs only to remove eighteen inches of soil above the crypt, lift the cover of the crypt, and the interior shelf if the lower level is going to be occupied, and lower the casket into the crypt. By the time of the trial, Mountain Grove had sold seventeen or eighteen graves containing double depth crypts and the profits from those sales had been placed in a fund for the maintenance of the cemetery. The plaintiffs contend that a double depth burial crypt is personal property which is not necessary or proper for the operation and maintenance of the cemetery and that the sale of such crypts is therefore not within the mandate of Mountain Grove's charter and in violation of General Statutes § 20-230. The defendant maintains that the crypt is affixed to the realty and that only the use of the space within the crypt is conveyed to the lot owner which conveyance is authorized by its charter. We agree with the conclusion of the trial court that the double depth burial crypts, by reason of their annexation to the realty, had, upon their installation, become fixtures and that the conveyance of a gravesite containing a crypt was within Mountain Grove's power to hold and convey cemetery property. As noted previously, Mountain Grove's charter authorizes it to "acquire and to hold lands for the purpose of a cemetery." The plaintiffs recognize that if deemed a fixture, a double depth burial crypt installed in the grave is conveyed as a part of the conveyance of that burial plot which is clearly within the mandate of the defendant's charter. Unable to challenge the trial court's conclusion on the basis of the method of installation of the crypts, the plaintiffs vigorously attack the conclusion that the crypts were intended to become permanently annexed to the realty. The character of the property being conveyed to a lot holder is to be ascertained as of the date when it is annexed to the realty. Cleaveland v. Gabriel, 149 Conn. 388, 391, 180 A.2d 749; Lesser v. Bridgeport-City Trust Co., 124 Conn. 59, 63, 198 A. 252. Whether these crypts may be characterized as personal property in other situations, as, for example, in a dispute between a vault manufacturer and a funeral director or between a funeral director and a vault purchaser, is irrelevant in the present case. The relevant issue is the nature of the property being conveyed to a lot holder. To constitute a fixture, it is essential "that an article should not only be annexed to the freehold, but that it should clearly appear from an inspection of the property itself, taking into consideration the character of the annexation, the nature and the adaptation of the article annexed to the uses and purposes to which [the realty] was appropriated at the time the annexation was made, and the relation of the party making it to the property in question, that a permanent accession to the freehold was intended to be made by the annexation of the article." Capen v. Peckham, 35 Conn. 88, 94; Merritt-Chapman & Scott Corporation v. Mauro, 171 Conn. 177, 182, 368 A.2d 44; Giuliano Construction Co. v. Simmons, 147 Conn. 441, 443, 162 A.2d 511; Tolles v. Winton, 63 Conn. 440, 28 A. 542; Barnes v. Burt, 38 Conn. 541; Alvord Carriage Mfg. Co. v. Gleason, 36 Conn. 86. The plaintiffs argue that all burials are intended to be permanent but the vault is not therefore transformed into a fixture simply by reason of the burial since industry custom permits the removal of a sealed single depth vault upon a disinterment. Whatever may be the lot holder's intent regarding the removal of single depth vaults is not applicable to double depth crypts. Even were we to consider the plaintiffs' representation as to the custom of the industry, which was not found by the trial court, that custom is irrelevant in view of the trial court's finding that if disinterment of a deceased buried in a double depth crypt becomes necessary or desirable, the casket will be removed from the crypt and placed in another vault for transportation. The double depth crypt, however, would remain installed in the grave and the space made vacant upon the removal of the casket would be available for another occupant. The plaintiffs do not point to any testimony from a purchaser of a double depth crypt that clearly establishes an intent that the crypt is to be removed upon disinterment. Indeed, pragmatically, unless both caskets placed in a double depth crypt are to be disinterred, the crypt would have to remain installed in the grave in order to accommodate the remaining casket. In addition, the instrument by which the burial plots containing double depth crypts are conveyed clearly indicates that title to the vault is not conveyed to the lot holder. That document recites that the cemetery "does hereby grant, bargain, sell and convey unto the said [purchaser] and to his heirs and assigns forever, the right and privilege to use for burial purposes Lawn Crypt Space # (Emphasis added.) This conveyance comports with the rule recognized as early as 1905 in State v. Scoville, 78 Conn. 90, 61 A. 63, that "one receiving from a cemetery association a deed of a burial lot does not thereby take a title to the soil itself" but acquires the right "to a limited use of particular lots for purposes of interment . . . subject to the reasonable police regulations of the association having charge of the cemetery. The association may be regarded as holding the fee in trust for the purposes for which the corporation was organized." Id., 94. See also 14 Am. Jur. 2d, Cemeteries § 25, p. 732. Indeed, with regard to burial lots in general, the cemetery is authorized to convey only the use of the lot and to employ whatever instrument to effect that conveyance it deems appropriate. The plaintiffs urge that the charter not he construed to permit the challenged activity engaged in by Mountain Grove for the reason that the conveyance of a cemetery lot in which double depth crypts are installed is against the public policy of this state. The plaintiffs argue that by reason of the installation of double depth crypts, the cemetery has acquired an exclusive selling privilege regarding burial vaults inasmuch as a holder of a lot containing a double depth crypt is precluded from using any other vault in that grave. Whatever privileges exist regarding those crypts are necessarily incidental to the privilege of conveying burial plots and it is well established that the state may confer that latter privilege upon certain organizations, to the exclusion of others, through statutes regulating the location of cemeteries. Laurel Hill Cemetery v. San Francisco, 216 U.S. 358, 30 S. Ct. 301, 54 L. Ed. 515; Holy Sepulchre Cemetery v. Greece, 191 Misc. 241, 79 N.Y.S.2d 683, aff'd 273 App. Div. 942, 79 N.Y.S.2d 863; 14 Am. Jur. 2d, Cemeteries § 10, p. 709. See also A. W. Carlson, Inc. v. Judd, 133 Conn. 74, 48 A.2d 269 (a cemetery regulation forbidding the use, on cemetery property, of tents or canopies other than ones furnished by the cemetery was held to be a reasonable exercise of its charter powers notwithstanding the fact that it granted to the cemetery an exclusive privilege in furnishing tents and canopies). In order to secure permanent care, the legislature permits cemetery associations to exist with the duty of providing, maintaining and protecting burial grounds. Connecticut College v. Calvert, 87 Conn. 421, 88 A. 633. By limiting double depth crypts to one section of the cemetery, the defendant in fact increases the available alternative burial methods. Unlike the cases relied on by the plaintiffs, where all burials in the cemetery needed to utilize vaults acquired from the cemetery, a prospective purchaser is not limited solely to the double depth crypt, but may, if a grave in another part of the cemetery is chosen, obtain a vault from any dealer the purchaser desires. In view of the nature of the installation and the intent, as found by the trial court, that the double depth crypts are permanently annexed to the realty even upon disinterment of the deceased buried therein, we conclude that the trial court correctly determined that the crypts are fixtures which are conveyed as part of the cemetery realty and therefore within the authority established in Mountain Grove's charter. Since we decide that the charter permits the defendant to install double depth burial crypts and convey them, as part of the realty, to its lot holders, which is dispositive of the case, we need not consider whether, as argued by the plaintiffs, those crypts are funeral merchandise within the prohibition of General Statutes § 20-230. That section, having been enacted prior to the 1969 Special Act; 34 Special Acts 23, No. 17; which enacted the current charter, has been impliedly repealed to the extent it prohibits the activity found to be authorized by the charter. New Haven Water Co. v. North Branford, 174 Conn. 556, 565, 392 A.2d 456. There is no error. In this opinion the other judges concurred. In view of the fact that the two private individual plaintiffs, as owners of lots in the defendant cemetery, clearly have standing to maintain these suits, we do not reach the issue of whether the remaining plaintiffs also possess standing. In each of these cases, the defendant filed a counterclaim alleging that several of the plaintiffs combined and conspired to unreasonably restrain commerce in violation of 15 U.S.C. § 1 and 2 (Sherman Act) and § 35-26 and 35-27 of the General Statutes. The trial court rendered judgments on the counterclaims in favor of the plaintiffs and no appeal therefrom has been taken by the defendant. Instead, the defendant moved to open the judgments on the counterclaims on the ground that the issues contained therein had been severed from the trial on the plaintiffs' complaints and were therefore not properly before the court for the rendition of judgment. The defendant's motion to open the judgments has not been acted upon by the trial court and the issues presented in the counterclaims are accordingly not presently before this court. This method of burial should be distinguished from the double depth burial, also allowed in one section of the cemetery, where two single vaults, each containing a single casket, are installed, one on top of the other, in the same grave. The evidence indicated that this reason for refusing to sell double depth lawn crypts to Mountain Grove was given despite the fact that counsel for the Connecticut Burial Vault Manufacturers Association had earlier advised that the burial vaults are not funeral merchandise and that Norwalk Vault had been selling vaults to cemeteries for ten years. Section 3 of Mountain Grove's charter provides, in pertinent part, that Mountain Grove shall have the right "to buy and sell such articles of personal property as may be necessary or proper for the operation and maintenance of the cemetery, columbarium and mausoleum." 34 Spec. Acts 23, No. 17 § 3. Section 6 of the Mountain Grove charter provides in pertinent part: "The lots in the cemetery of said association, the receptacles, crypts and niches in the columbarium and mausoleum of said association shall be assured to the holders thereof by a certificate or deed executed in such form as the directors shall prescribe and the title to the me thereof may be transferred in such manner as the directors may direct . . . ." (Emphasis added.) 34 Spec. Acts 23, No. 17 § 6. The plaintiffs rely on People v. Bloomington Cemetery Assn., 353 Ill. 534, 187 N.E. 455, in which the court invalidated a cemetery regulation which forbade the use, in all burials in the cemetery, of vaults that were not acquired from the cemetery. Becognizing the cemetery's power to prescribe reasonable regulations relative to burials, the court nonetheless held that the "right of exclusive sale of grave-boxes is not a necessary incident to the powers expressly granted by the association's charter." Id., 539. Cf. State v. Lakewood Cemetery, 197 Minn. 501, 267 N.W. 510 (The cemetery was authorized to manufacture and sell vaults, which were for the exclusive use of its lot holders where the cemetery did not prohibit a lot owner from acquiring a vault for use in the cemetery from some other source). It is unclear in either of these cases whether the vaults in question had been installed in the grave prior to the sale. The plaintiffs' remaining arguments concerning violations of public policy as a result of the defendant's activities were addressed in State ex rel. Willow Monument Works v. Mountain Grove Cemetery Assn., 168 Conn. 447, 362 A.2d 1341, where they were resolved in favor of the cemetery. The fact that these double depth crypts are deemed fixtures does not imply that all vaults installed as part of the burial service necessarily become fixtures and therefore property of the cemetery. Although the vault is intended to remain in the grave for as long as the deceased remains there, if it is shown that the vault was intended to be removed upon disinterment of the deceased, then the intent that the vault be permanently affixed, which is present in this ease, would be missing. Similarly, a casket lowered into a vault would not become a fixture. In view of our conclusion that double depth burial crypts are conveyed to lot holders as part of the realty, there is no need to consider the plaintiffs' alternative argument that the sale of the crypts is not authorized by that portion of section 3 of the charter concerning personal property. See State ex rel. Willow Monument Works v. Mountain Grove Cemetery Assn., 168 Conn. 447, 456, 362 A.2d 1341, where, in construing the term "proper" in § 3 of Mountain Grove's charter, the court held that the sale of bronze markers by the cemetery to lot holders was proper for the operation and maintenance of the cemetery. "[General Statutes] Sec. 20-230. business not to be conducted in cemetery OR ON tax-exempt property. No person, firm, association or corporation shall engage in the business of funeral directing, except in continuing the supervision of a funeral, or in the profession of embalming or the sale of funeral merchandise in or on any cemetery or tax-exempt property."

Peters, J. This case arises out of the denial of an application to conduct a regulated activity in an inland wetland. The plaintiff, Morris J. Feinson, appealed from the action of the defendant Newtown Conservation Commission to the Superior Court. That court, McGrath, J., sustained the appeal and ordered the application to be approved. The defendant thereupon sought and was granted certification, and now appeals from the judgment rendered for the plaintiff. The trial court heard the case upon the record before the Newtown Conservation Commission (hereinafter the commission), the duly designated municipal commission entrusted with enforcement of the Inland Wetlands and Water Courses Act. General Statutes § 22a-36 through 22a-45. The record reveals that the plaintiff Feinson, the owner of a three and one-half acre parcel of land in Newtown, filed a revised application on May 17, 1976, for a license to conduct a regulated activity in an inland wetland. His application sought permission to deposit three hundred cubic feet of fill on part of his property in order to provide a subsurface sewage disposal system to service a one-family house that he intended to build. Because his property is transversed by a stream, and because the adjoining seventy-five foot embankment had been designated an inland wetland area, a license was required before fill could be deposited at the contemplated site, sixty to seventy-five feet away from the stream. After various intermediate proceedings before the commission, a public hearing was held on November 15, 1976, on the plaintiff Feinson's application. Edward G. Shelomis, a design engineer hired by the plaintiff, presented his technical report and responded to questions. Although the commission had invited comments from the town sanitarian, the town building inspector, the town planning and zoning commission, and the county soil and water conservation district, no public official appeared, either in person or by written communication, to contest the application. No member of the public spoke on the application. Shelomis was the only witness and he was questioned only by some of the commissioners. At a subsequent meeting of the commis sion on December 1,1976, to which neither the plaintiff nor his engineer had been invited, although other non-members of the commission were in attendance, the plaintiff's application was, after discussion, denied. The plaintiff was notified of the denial of his application by letter dated December 5, 1976. The letter stated: "The reasons for denial are as follows : 1. The groundwater and topography, together with the design and location of the proposed septic system, will cause effluent to surface, thereby polluting the adjacent wetlands and watercourse. 2. The system as designed does not provide for adequate renovation of the effluent which will cause pollution of the adjacent wetlands and watercourse. Because of the above reasons the Commission found that there is a strong likelihood of leaching with a resulting adverse effect on water quality and aquatic life; that there will be adverse changes to the physical, chemical and biological properties of the water; and that the dangers of pollution will cause damage to the adjacent wetlands and watercourse with resulting injury and interference with health and safety." Upon the subsequent appeal to the trial court from this denial of the plaintiff's application, certain matters were determined which are no longer at issue. The court concluded that the plaintiff was aggrieved by the action of the commission, and that the appeal was governed by the Uniform Administrative Procedure Act. General Statutes § 4-166 through 4-189. The court then went on to determine that the action of the commission was clearly erroneous because the reasons given for the denial could not be sustained in view of the reliable, probative evidence on the whole record. The court further concluded that, since the plaintiff's appeal should be sustained, the commission should be ordered to approve the plaintiff's application. These two conclusions, one on the merits and the other on the remedy, are the two matters before us on this appeal. The appeal on the merits turns on whether there was sufficient evidence on the record as a whole to support the decision of the commission. The record consists of the plaintiff's applications and the report of the plaintiff's expert witness, the interrogation of the expert witness at the public hearing, the discussion at the private meeting, and the knowledge of individual commission members derived from their viewing of the premises and their familiarity with the area in general. In appraising the sufficiency of this record, the court must determine only whether there was substantial evidence which reasonably supported the administrative decision, since "'[t]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency.' " Lawrence v. Kozlowski, 171 Conn. 705, 708, 372 A.2d 110 (1976), cert. denied, 431 U.S. 969, 97 S. Ct. 2930, 53 L. Ed. 2d 1066 (1977); O'Donnell v. Police Commission, 174 Conn. 422, 426, 389 A.2d 739 (1978); Norwich v. Norwich Fire Fighters, 173 Conn. 210, 214, 377 A.2d 290 (1977); Balch Pontiac-Buick, Inc. v. Commissioner of Motor Vehicles, 165 Conn. 559, 563, 345 A.2d 520 (1973); Hotchkiss Grove Assn., Inc. v. Water Resources Commission, 161 Conn. 50, 56, 282 A.2d 890 (1971). In denying the plaintiff's application for a license, the defendant gave as reasons that it had made findings in accordance with § 4.13, 4.17, and 4.5 of the Newtown Wetlands and Watercourses Regulations. Section 4.1 requires the commission, with regard to its regulatory function, to make findings with respect to the environmental impact of the proposed action. Section 4.5 requires findings with respect to "[t]he character and degree of injury to, or interference with, safety, health, or the reasonable use of property which would be caused or threatened. This includes recognition of potential damage from erosion, turbidity or siltation, loss of fish and other beneficial aquatic organisms, wildlife and vegetation; the dangers of flooding and pollution; and destruction of the economic, aesthetic, recreational and other public and private uses and values of wetlands and water courses." The discussion which led to the denial of the license turned on the concern articulated by Julia Wasserman, a member of the commission, that there was an "extreme possibility of septic failure, constituting a public health hazard, with the introduc tion of septic effluent into surface waters." Although Wasserman is not an engineer, the commission apparently relied heavily on the data she presented. No other evidence contesting the plaintiff's application was presented to the commission, nor did any other commission member, so far as the record discloses, make a comprehensive presentation with regard to the plaintiff's application. The only expert evidence was that offered by the plaintiff, and that the commission impliedly rejected. The question before us is whether, on a subject as technically sophisticated and complex as pollution control, commissioners who have not been shown to possess expertise in this area may rely on their own knowledge, without more, in deciding to deny a license to conduct a regulated activity. We agree with the conclusion of the trial court that this record does not disclose sufficient reliable evidence to sustain the action taken by the defendant commission. The question in this precise form is one that we have not previously had the occasion to consider. We have in the past permitted lay members of commissions to rely on their personal knowledge concerning matters readily within their competence, such as traffic congestion and street safety; Welch v. Zoning Board of Appeals, 158 Conn. 208, 214, 257 A.2d 795 (1969); Forest Construction Co. v. Planning & Zoning Commission, 155 Conn. 669, 675, 236 A.2d 917 (1967); Atlantic Refining Co. v. Zoning Board of Appeals, 150 Conn. 558, 561-62, 192 A.2d 40 (1963); Gulf Oil Corporation v. Board of Selectmen, 144 Conn. 61, 66, 127 A.2d 48 (1956); and local property values. Holt-Lock, Inc. v. Zoning & Planning Commission, 161 Conn. 182, 191, 286 A.2d 299 (1971); Cameo Park Homes, Inc. v. Planning & Zoning Commission, 150 Conn. 672, 679-80, 192 A.2d 886 (1963). We have permitted a commission composed of experts to rely on its own expertise within the area of its professional competence; Jaffe v. State Department of Health, 135 Conn. 339, 349-50, 64 A.2d 330 (1949); but in that case we recognized as well that expert testimony may be required when the question involved goes beyond "the ordinary knowledge and experience" of the trier of fact. Id., 350. See also Toomey v. Danaher, 161 Conn. 204, 210, 286 A.2d 293 (1971); Kohrs v. Flemming, 272 F.2d 731, 736 (8th Cir. 1959); Cullers v. Commissioner of Internal Revenue, 237 F.2d 611, 616 (8th Cir. 1956); Baur v. Mesta Machine Co., 405 Pa. 617, 632-33, 176 A.2d 684 (1961); 2 Davis, Administrative Law Treatise § 14.13 (1958). The sparsity of reliable evidence in this record is underscored by the fact that the commission, in relying on its own knowledge and experience, acted in a manner which placed its data base beyond the plaintiff's scrutiny. Nowhere in the public hearing, or at any other time and place, was the plaintiff afforded a fair opportunity to hear the commission's fears and to attempt to allay them. The questioning of the plaintiff's witness Shelomis at the public hearing did not give warning that his evidence was to be entirely discredited; on the contrary, that hearing as transcribed suggests that the proffered evidence was on the whole satisfactory to the commission. If an administrative agency chooses to rely on its own judgment, it has a responsibility to reveal publicly its special knowledge and experience, to give notice of the material facts that are critical to its decision, so that a person adversely affected thereby has an opportunity for rebuttal at an appropriate stage in the administrative proceedings. Parsons v. Board of Zoning Appeals, 140 Conn. 290, 292-93, 99 A.2d 149 (1953); cf. Western Alfalfa Corporation v. Air Pollution Variance Board, 510 P.2d 907, 910 (Colo. App. 1973), rev'd on other grounds, 416 U.S. 861, 94 S. Ct. 2114, 40 L. Ed. 2d 607 (1974); and see 2 Davis, Administrative Law Treatise § 14.13, n.10, p. 325 (1958). Judicial review of administrative process is designed to assure that administrative agencies act on evidence which is probative and reliable and act in a manner consistent with the requirements of fundamental fairness. From both perspectives, we are compelled to conclude that a lay commission acts without substantial evidence, and arbitrarily, when it relies on its own knowledge and experience concerning technically complex issues such as pollution control, in disregard of contrary expert testimony, without affording a timely opportunity for rebuttal of its point of view. The trial court was therefore correct in its determination that the action of the commission should be set aside and the plaintiff's appeal sustained. The court thereupon ordered the commission to approve the plaintiff's application. The propriety of this remedial order is the second issue before us on this appeal. The applicable provisions of General Statutes § 4-183 (g) permit the trial court to "affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the [agency's] decision . . . ." When agency action is overturned, as here, because of invalid or insufficient findings, we have held that a court must ordinarily remand the matter under con sideration 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). It is not apparent from this record that the commission may not have authority to accept the plaintiff's application with conditions or modifications that would diminish the risk of septic system failure. Because it does not appear as a matter of law that there is only one single conclusion that the commission could reasonably reach, a direct order to the commission is legally unwarranted. Thorne v. Zoning Commission, 178 Conn. 198, 206, 423 A.2d 861 (1979). There is error in part, the judgment is set aside and the case is remanded for further proceedings in accordance with this opinion. In this opinion the other judges concurred. Judicial review of the judgment of an administrative agency is governed by General Statutes § 4-183 (g) which provides, in relevant' part: "appeal to superior court. . (g) The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: . (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion." The commission referred to tvTa relevant subsections of § 4.1 relating to environmental impact: "5 4.13. Likelihood of siltation and le'&ehing and any resulting adverse affects on water quality and aquatic life." 4.17. Changes to the physical, chemical and biological properties of the water or soil and their impact."

Cotter, C. J. The present action comes to the Supreme Court upon a reservation of facts and a question of law pursuant to General Statutes § 52-406. The parties agree upon the facts on which the controversy depends and submit the following question for our advice: Whether the Indian Affairs Council is an agency within the meaning of §4-166 (1) of the General Statutes such that the provisions of the Uniform Administrative Proce dure Act (hereinafter UAPA); General Statutes §4-166 through 4-189; are applicable to the acts and decisions of said council. The parties have stipulated to the following facts: The plaintiff, Necia Hopkins, appeared before the Indian Affairs Council (hereinafter IAC) and requested a determination of her eligibility, as a member of the Schaghticoke Indian tribe, to reside on and use the lands reserved for the exclusive use by that tribe. See General Statutes § 47-59a through 47-66d. In February, 1975, the IAC advised the plaintiff that it did not find her to be an Indian and ordered her to refrain from using, in any manner, the Schaghticoke reservation. The plaintiff thereafter intervened as a plaintiff in a civil action brought in the United States District Court for the district of Connecticut, Rolling Cloud v. Gill, 412 F. Sup. 1085 (D. Conn., 1976), wherein the plaintiffs challenged the constitutionality of § 47-59a through 47-66d on the ground, inter alia, that judicial review of the decisions and actions of the IAC is not available in any Connecticut state court under any statute of the state of Connecticut. Invoking the doctrine of abstention, the District Court denied, without prejudice to renewal, the defendants' motion for summary judgment but retained jurisdiction over the federal claims raised in that action and postponed resolution of those issues until the state law question, namely, whether there exist statutory provisions for judicial review of the acts and decisions of the IAC, is resolved by the judicial processes of this state. Id., 1092. The plaintiff thereupon commenced the present action seeking a declaratory judgment determining the question that has been reserved for the advice of this court. An agency, as that term is defined in the TTAPA, §4-166 (1), "means each state board, commission, department or officer, other than the legislature, courts, judicial review council, governor, lieutenant governor, attorney general or town or regional boards of education authorized by law to make regulations or to determine contested cases." The plaintiff's initial contention is that the failure to include in the denomination of the IAC the term board, commission, department or officer requires the conclusion that the IAC is not an agency. As the defendants illustrate, however, to require that a state organization be officially entitled a "board, commission, department or officer" in order to come within the definition of agency would render superfluous the specific exclusions in §4-166 (1) from the definition of agency of the legislature, courts, governor and so forth. The plaintiff's contention is without merit in view of the well established principle that statutes must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignificant, and that every sentence, phrase and clause is presumed to have a purpose. Engle v. Personnel Appeal Board, 175 Conn. 127, 129-30, 394 A.2d 731; State ex rel. Kennedy v. Frauwirth, 167 Conn. 165, 168, 355 A.2d 39; International Business Machines Corporation v. Brown, 167 Conn. 123, 135, 355 A.2d 236. Also, in Arter burn Convalescent Home, Inc. v. Committee on State Payments to Hospitals, 176 Conn. 82, 84, 405 A.2d 48, this court held that a hearing before the committee pursuant to § 17-314 of the General Statutes was subject to the provisions of the UAPA thereby determining, implicitly, that the committee, even though not denominated a board, commission, department or officer, was an agency within the meaning of the UAPA. The plaintiff's contention focuses on the form rather than the substance of the IAC. The fact that it is denominated a council does not necessarily exclude the IAC from the definition of agency contained in § 4-166 (1) of the General Statutes. At issue is whether the term "each state board, commission, department or officer" encompasses, in accordance with the intent of the legislature, an organization such as the IAC. Resolution of this issue must be made in light of the scope and object and the two-fold purpose underlying the UAPA in providing "uniform standards by which all non-exempted agency action is to be judged" and in providing a "vehicle for judicial review as an alternative to preexisting statutes or in situations in which no appellate review was previously provided." McDermott v. Commissioner of Children & Youth Services, 168 Conn. 435, 441, 363 A.2d 103; Bahre v. Hogbloom, 162 Conn. 549, 554-56, 295 A.2d 547; Kokoszka v. Belford, 417 U.S. 642, 94 S. Ct. 2431, 41 L. Ed. 2d 374, reh. denied, 419 U.S. 886, 95 S. Ct. 160, 42 L. Ed. 2d 131. The declared policy of this state is stated in General Statutes § 47-59a, which recognizes that Indians "have certain special rights to tribal lands as may have been granted to them in the past by treaty or other agreements." In furtherance of that policy, the commissioner of environmental protection is delegated the responsibility for establishing the boundaries of lands reserved for the exclusive use of Indians and for the care and management of such reservation lands. General Statutes §47-65 (a). In addition, the statutory scheme regarding the protection of reservation lands charges the IAC with the responsibility of providing services to the Indian community of the state and of formulating programs suitable to its needs. General Statutes § 47-59b. The IAC consists of one representative from each of five designated tribes who are appointed by their respective tribes, and three persons, not of Indian lineage, appointed by the governor. General Statutes § 47-59b (a). The members of the council are compensated on a daily basis and reimbursed for their necessary expenses. General Statutes §47-59b (a). In addition to its role as an advisor to the commissioner of environmental protection, the IAC is delegated the authority to determine the qualifications of individuals entitled to be designated as Indians, and therefore entitled to use reservation lands, and to decide who is eligible to reside on those lands. General Statutes §47-59b (b). The IAC is also given the discretion to renew any lease of reservation lands in effect on July 1, 1973, even though a lease of reservation land executed after that date is prohibited; General Statutes § 47-64 (b); is required to provide services as it deems necessary to insure the well being of all persons residing on reservations; and is authorized to provide assistance to Indian residents who are unable to support themselves. General Statutes § 47-65 (c). It is evident that the IAC plays a vital role in the effectuation and administration of state policy and, as such, acts as the agent of the state with regard to those matters lying within the scope of its authority. See Murphy v. Berlin Board of Education, 167 Conn. 368, 373, 355 A.2d 265. The statutory scheme and purpose of the UAPA was to provide uniform direction to the operation of administrative procedures of agencies authorized to confer on behalf of the state, as is the IAC, a broad range of benefits to statutorily designated recipients and that act should accordingly be made applicable to the acts and decisions of the IAC. Cf. United Aircraft Corporation v. Fusari, 163 Conn. 401, 411, 311 A.2d 65. An additional requirement, in order to be classified as an agency, is that the IAC be "authorized by law to make regulations or to determine contested cases." General Statutes § 4-166 (1). This requirement is satisfied by § 47-65 (d) which authorizes the IAC to adopt regulations, pursuant to the UAPA, to carry out the provisions of § 47-65 (a) and (b) and which requires the council to "adopt regulations which prescribe eligibility standards for assistance and services under subsection (e) of this section." See also General Statutes §47-65a. The use of the disjunctive "or" in § 4-166 (1) makes it unnecessary for us to determine whether the IAC is authorized by law to hear contested cases. We answer the question reserved for our advice in the affirmative; the Indian Affairs Council is an agency within the meaning of § 4-166 (1) of the General Statutes. No costs shall be taxed to any of the parties. In this opinion the other judges concurred. The present ease was before the court on a previous occasion, Hopkins v. Pac, 176 Conn. 318, 407 A.2d 979, but the question reserved for our advice was not answered because of the plaintiff's failure to provide reasonable notice of the action to all interested persons as required by Practice Book, 1978, «390 (d). It appears from the record that that defect has been cured. See also § 16-50j of the General Statutes which established the Power Facility Evaluation Council (PFEC) which was given the responsibility of administering the Public Utility Environmental Standards Act. General Statutes 16-50g through 16-50z. Notwithstanding the designation of that organization as a council, judicial review of an order of the PFEC issued on an application for a certificate or an amendment of a certificate may be obtained in accordance with the provisions of the UAPA. General Statutes § 16-50g. "[General Statutes] Sec. 47-59a. Connecticut Indians; citizenship, civil eights, land eights. It is hereby declared the policy of the state of Connecticut to recognize that all resident Indians of qualified Connecticut tribes are considered to be full citizens of the state and they are hereby granted all the rights and privileges afforded by law, that all of Connecticut's citizens enjoy. It is further recognized that said Indians have certain special rights to tribal lands as may have been granted to them in the past by treaty or other agreements." See § 47-64 of the General Statutes. Additional protection of reservation land is contained in § 47-60 which provides: "Except as otherwise expressly provided, all conveyances by an Indian of any land belonging to, or which has belonged to, the estate of any tribe shall be void." The IAC serves as an advisor in the care and management of reservation lands; General Statutes 5 47-65; and in the care and control of tribal funds. General Statutes § 47-66. In addition, the IAC is required to review the regulations governing Indian affairs in this state and to advise the commissioner on the promulgation of new regulations. General Statutes § 47-59b (c). Since consideration of the issues in the present ease is limited to a resolution of the question reserved for our advice and because the stipulation of facts is insufficient to decide the issue, we express no opinion as to whether the jurisdictional requirements for judicial review, i.e., contested cases, exhaustion of administrative remedies, have been met in this case.

The defendant's petition for certification for appeal from the Superior Court in the judicial district of New London is granted by the court.

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

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

The defendant's petition for certification for appeal from the Superior Court in the judicial district of Litchfield is denied by the court.

Speziale, J. On October 15,1974, a grand jury in the judicial district of Waterbury returned a true bill comprised of two counts, indicting the defendant, Murray Gold, for the murders of Irving and Rhoda Pasternak, his former in-laws, on September 26, 1974. On March 31, 1976, the defendant's first trial ended in a mistrial, when the jury was unable to reach a verdict. After a second trial, the defendant was found guilty of both murders, and on January 26, 1977, he was sentenced on each count to a term of not less than twenty-five years nor more than life at the Connecticut correctional institution at Somers, with the sentences to be served concurrently. The charges against the defendant arose out of the violent deaths of Irving and Ehoda Pasternak on the evening of September 26, 1974. After dining with their daughter, Myrna Kahan, and her family on September 26, the Pasternaks returned to their home at 53 Pern Street, Waterbury, at approximately 8:30 p.m. At about 9 p.m. that same night, Mrs. Pasternak telephoned Myrna Kahan from the upstairs master bedroom. While the two were conversing on the telephone, the doorbell at the Pasternak home rang. Mrs. Kahan heard her mother caution Mr. Pasternak not to open the door until he saw who was there. A short while later Mrs. Pasternak's voice changed and became excited. She told Mrs. Kahan that she heard Mr. Pasternak say "Get away from me. Get out of my house" and she instructed her to send Dr. Kahan, her husband, "over here fast." Immediately Mrs. Kahan called the emergency 911 telephone number. It was 9:12 p.m. On another telephone located in his home, Dr. Kahan immediately called a Waterbury police officer, Arnold Mark, who was related to the Pasternaks through marriage, and asked him to go to the Pasternak home, which was located a few blocks from where Mark lived. At 9:13 p.m. Mrs. Pasternak, herself, called the emergency 911 number to report a "crazy man" at their home. Mrs. Kahan telephoned the Pasternak's next door neighbor, Fred Bubenstein, who, at Mrs. Kahan's request, looked out a window of Ms house and observed the Pasternak home. Bubenstein reported that he saw nothing unusual; he said that he saw a car parked in the Pasternak driveway, which he described to Mrs. Kahan as possibly a Volkswagon or some smaller car, but which he later identified as the Pasternaks' car. He also indicated that the porch light at the front door was lit. Mark arrived at the Pasternak home within one and one-half minutes after he was called by Dr. Kahan at approximately 9:12 p.m. Mark observed Mr. Pasternak lying on the floor in the kitchen, his body covered with blood and mutilated by approximately thirty-five knife wounds. Upstairs he found Mrs. Pasternak dead in the master bedroom; she had been stabbed approximately twenty-five times. In the room he also saw a "Buck" hunting knife covered with blood, which was leaned against a pair of Mr. Pasternak's shoes. As Mark was descending the stairs, Dr. Kahan and his son ran into the house; the son was sent to call an ambulance at a neighbor's home. He went to see Fred Bubenstein, who called the 911 police emergency number at 9:19 p.m., some seven minutes, ten seconds after Mrs. Kahan's call and some six minutes, fifty-four seconds after Mrs. Pasternak's call. Aside from the knife found by Mark, other evidence found in the house included an empty bottle-size brown paper bag and a discharged fire extinguisher, which were discovered in the vicinity of the front foyer and living room. A residue of powder was found on the fire extinguisher, on the oval-shaped mirror in the foyer, on the wall near the mirror, and on the living room rug. A trail of bloody footprints, some of which displayed Cat's Paw heel marks, led from the body of Mr. Pasternak to the foyer and stairs leading to the second floor. In a pair of blue trousers hung over a chair in the Pasternak master bedroom, $1174 was found. There was no evidence of robbery or theft. All money and valuables were intact and the house was not ransacked. During investigation by the Waterbury police department a button was photographed in the master bedroom. It was photographed first on the center of the floor between the doorway and the bed and later on the floor near the television. In the first photograph the button had two white plastic loops in the buttonholes; in the second photograph the loops were on the floor a distance of two feet from the button. Mark, the first person to arrive at the Pasternak home, testified that he saw a dark button near the television set in the master bedroom. On September 27, 1974, the day after the murders, trooper Henry Maynard of the Connecticut state police made a sketch of the crime scene, including the master bedroom. He did not see a button in that bedroom, and a button was not initially included in the sketch. A day or two later, however, Maynard added a button to the sketch, but did not remember at whose direction. The subsequent state police investigation also produced numerous latent finger and palm prints; a total of twenty-seven prints were identified; one palm print and eight fingerprints which were identifiable were not identified. Neither the paper bag, the fire extinguisher, the knife handle, nor the button showed any identifiable fingerprints, palm prints, or finger ridge detail. From the evidence he observed at the crime scene, trooper Luneau, the Connecticut state policeman who was in charge of the latent fingerprint section of the forensic laboratory, was of the opinion that the assailant wore gloves. None of the prints identified matched those of Murray Gold. James McDonald of the New Haven crime laboratory testified that as a result of his reexamination of the Pasternak house on September 30, 1974, he found two white plastic loops on the floor of the Pasternak master bedroom. He also testified that he removed from the blue shag rug in the master bedroom a small white plastic cylinder having the same appearance as the two plastic loops. McDonald identified these items as being parts of plastic that come with buttoneer kits. A buttoneer kit which the state claimed was seized from the defendant's New York apartment was admitted into evidence. Prom tests he conducted, McDonald concluded that the plastic pieces he had found in the Pasternak bedroom had been attached to the stubs left on the "base tie" in the buttoneer kit allegedly seized from Gold's apartment. On appeal the defendant has raised numerous claims. Our ruling concerning declarations against penal interest is dispositive and mandates a new trial. Nevertheless, we address other issues that would be likely to arise at retrial. I Declarations Against Penal Interest A. defendant's offer of proof The defense attempted to introduce certain evidence in order to raise the possibility that one Bruce Sanford, who had committed suicide on December 10, 1974, committed the Pasternak murders. This evidence included alleged statements by Sanford against his penal interest, identification testimony by Dorothy Crocco, testimony regarding the activities of Sanford on the date of the murders and subsequent thereto, and testimony as to physical evidence claimed to link Sanford to the crimes. More specifically, in a hearing outside the presence of the jury, the following testimony was elicited: Griorianna Sanford, the wife of Bruce Sanford, testified that on September 26, 1974, the day of the Pasternak murders, Sanford had been drinking and was "kind of plastered" and "without expression." When his wife told him that she couldn't allow him to behave in this manner in front of the children, he walked into the bathroom and when he emerged, he had cut his throat. The following day, September 27,1974, Sanford and his wife drove to Florida. Patricia Morrison testified that she had been a friend of Bruce Sanford for twenty years. On September 24, 1974, two nights before the murders, she received a telephone call from Sanford. He was very upset about Mr. Pasternak. He had told her, "The bastard is representing my wife. He's telling her things and I think he's gonna sell her out." Morrison also stated that Sanford told her that if his wife "didn't get what she had coming to her from this hearing, that he would get the no good Jew bastard one way or the other," and that he went on and on swearing about Pasternak until she got him calmed down about it. On September 26, 1974, the night of the murders, Sanford called Morrison late in the evening, possibly after 1 a.m. He told her he needed her help, and that he had "just done something that he wasn't gonna be able to get out of." When she asked him where he was, he replied, "I'm in a phone booth. I'm covered with blood." He asked Morrison to help him get out of the state. She refused. Eobert Bourassa, who had been a friend of Sanford's for approximately a year before Sanford's suicide, testified that on the night of the murders, September 26, 1974, he and a friend, Craig Yashenko, went to Sanford's home at approximately 8 p.m. as a result of a telephone call from Glorianna Sanford. When they arrived she told them that she could not find Sanford, and she wanted Bourassa to go through the house with her to find him. Sanford could not be located. Later that evening Bourassa and Yashenko returned to the Sanford home. In the basement Grlorianna showed both of them a blue denim shirt covered with blood. Bourassa last spoke with Sanford on December 10,1974, the night Sanford committed suicide. Sanford had telephoned Bourassa and had stated that he was going to kill himself, that he could not stand living, that he was going to get caught, that he was sorry for what he did, and that he was sorry for killing Bhoda. Yashenko gave testimony substantially in accord with that of Bourassa. He also testified that he was on an extension line when Sanford called Bourassa in December of 1974 and that he heard Sanford say, inter alia, that he was sorry that he had to kill Mrs. Pasternak. Anthony Borrelli, who was a member of the same motorcycle club as Sanford, testified that on the morning of September 27, 1974, the day after the Pasternak murders, he saw Sanford with stitches on his throat. When asked by Borrelli what he had been doing, Sanford replied that he had been "squaring away [with] people that were fucking with his wife." In response to Borrelli's query about where he had gotten the stitches, Sanford said that he "knows some people that could use more stitches than he got." At the conclusion of this offer of proof, defense counsel argued for the admissibility of the Sanford-related evidence and urged the court, inter alia, that the types of evidence offered needed to be kept separate; that is, that evidence "factual in nature" needed to be distinguished from the claimed exceptions to the hearsay rule. The trial court ruled inadmissible the "testimony in connection with the alleged confessions . of one Bruce Sanford" and, thus, excluded in toto the evidence set forth above. An exception was duly noted. Stating that "if further evidence developed that would tie in Mr. Sanford to this crime even more closely than we think he is tied in now, we hope we can renew the motion," defense counsel then sought to introduce additional evidence claimed to link Sanford to the Pasternak murders, including a witness who it was claimed would be able to make an identification. Over the defendant's objection, this testimony, too, was heard outside the presence of the jury: Dorothy Crocco testified that during the evening of September 26, 1974, she was visiting friends, Mr. and Mrs. Walk, who were living on Pern Street, Waterbury, the street on which the Pasternaks lived. When another friend, Mrs. Haight, arrived between 9 and 9:30 p.m., they went out to meet her. Seeing a lot of commotion on the street, as well as several police cars arriving, they walked down the street. A man came running toward them on the side of the street opposite from that on which the Pasternaks lived. Crocco described the man as approximately six feet tall and as being in his late 20s or early 30s. Crocco identified a photograph of Sanford as the man she saw running toward her, and stated that he was clean shaven the night of September 26, and that the wind was blowing through the hair on his head. She stated that he almost knocked her down. Further, Crocco indicated that she did not see where he came out of, but that he was "running like the devil." Subsequent to the Crocco testimony, defense counsel sought to "reopen" the court's decision excluding the evidence concerning Bruce Sanford, and again attempted to distinguish between the hearsay and nonhearsay evidence. Defense counsel's request to have the Sanford-related evidence heard by the jury was denied. The trial court ruled the statements against penal interest inadmissible, citing State v. Stallings, 154 Conn. 272, 224 A.2d 718 (1966), and State v. Marshall, 166 Conn. 593, 353 A.2d 756 (1974). The trial court noted, inter alia, that "even if [it] were inclined to follow the Federal rule," the Sanford-related evidence did not "measure up to" the requirements of rule 804 (b) (3) of the Federal Rules of Evidence. From the trial court's statements, set forth in the footnote, it is evident that the trial court reached and decided the issue of whether the proffered testimony met at least the threshold level of trustworthiness required in the federal courts. The nonhearsay evidence relating to Sanford was ruled inadmissible because the trial court found "no relevancy." Again, an exception was taken. The defendant was permitted, however, to introduce only evidence that an unidentified person was running or walking swiftly from the vicinity of the crime scene. Thus, none of the testimony specifically relating to Sanford was heard by the jury. On appeal the defendant claims that the trial court committed reversible error in its evidentiary ruling excluding all Sanford-related evidence. He also claims that the exclusion of this proffered testimony denied him his constitutional "right to defend and his right to due process of law." B. THE CONNECTICUT RULE In State v. DeFreitas, 179 Conn. 431, 426 A.2d 799 (1980), we overruled State v. Stallings, supra, and its progeny to the extent that they held inadmissible on policy grounds all statements against penal interest exculpatory to the defendant. We adopted a rule, consistent with Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973), and in accord with rule 804 (b) (3) of the Federal Buies of Evidence, providing that trustworthy third-party statements against penal interest exculpatory to the defendant are admissible if the declarant is unavailable. State v. DeFreitas, supra, 450-51. As we noted in DeFreitas, supra, 451, the Connecticut rule requires, as does rule 804 (b) .(3) of the Federal Buies of Evidence, that the trustworthiness of a third-party declaration against penal interest be examined carefully. Buie 804 (b) (3) of the Federal Buies of Evidence requires that "corroborating circumstances clearly indicate the trustworthiness of the statement" before the statement is admissible to exculpate the accused. This grants the defendant a fair opportunity to defend against the state's accusations, retains the integrity of the jury as a finder of fact and judge of credibility, and does not seriously handicap the administration of justice. See State v. Gervais, 317 A.2d 796, 802 (Me. 1974). 1. Admissibility of the Sanford Declarations Bruce Sanford committed suicide on December 10, 1974, and hence was unavailable at the time of trial. Therefore, the questions remaining to he considered are whether the confession to Bourassa, and overheard by Yashenko, and the statements to Borrelli and Morrison constituted declarations against penal interest and whether the threshold level of trustworthiness was satisfied. a. Confession Sanford's statement to Bourassa that he was "sorry he had to kill Rhoda" was unquestionably against Ms penal interest; it was a confession to murder. We now consider whether that statement was sufficiently trustworthy to have met the level of trustworthiness required by our rule for the confession to be admissible as a statement against penal interest. Initially, it should be pointed out that for a statement to be admissible it does not have to be absolutely trustworthy. If this were the requirement, the province of the jury as the finder of fact and weigher of credibility would be entirely invaded. "[W]e would not read the standard of trustworthiness as imposing a standard so strict as to be utterly unrealistic. Even in Donnelly [v. United States, 228 U.S. 243, 33 S. Ct. 449, 57 L. Ed. 820 (1913)] and Chambers [v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973)] the evidence, while strongly corroborated, could have been disbelieved by the jury." United States v. Barrett, 539 F.2d 244, 253 (1st Cir. 1976). Unlike DeFreitas, supra, where there was virtually no showing of trustworthiness regarding the claimed confessions of the only unavailable declarant, here there are numerous factors tending to show trustworthiness. As to the trustworthiness of the Sanford confession to Bourassa that he was "sorry he had to kill Rhoda," we commence with a consideration of the factors enumerated in Chambers v. Mississippi, supra, 300-301. "First, each of McDonald's [the declarant's] confessions was made spontaneously to a close acquaintance shortly after the murder had occurred. Second, each one was corroborated by some other evidence in the case — McDonald's sworn confession, the testimony of an eyewitness to the shooting, the testimony that McDonald was seen with a gun immediately after the shooting, and proof of his prior ownership of a .22-caliber revolver and subsequent purchase of a new weapon. The sheer number of independent confessions provided additional corroboration for each. Third, whatever may be the parameters of the penal-interest rationale, each confession here was in a very real sense self-incriminatory and unquestionably against interest. . . . Finally, if there was any question about the truthfulness of the extrajudicial statements, McDonald was present in the courtroom and was under oath. He could have been cross-examined by the State, and his demeanor and responses weighed by the jury." (Footnote omitted.) Courts have taken from Chambers four general considerations for determining trustworthiness: "(1) the time of the declaration and the party to whom the declaration was made; (2) the existence of corroborating evidence in the case; (3) the extent to which the declaration is really against the declarant's penal interest; (4) the availability of the declarant as a witness." United States v. Guillette, 547 F.2d 743, 754 (2d Cir. 1976), cert. denied, 434 U.S. 839, 98 S. Ct. 132, 54 L. Ed. 2d 102 (1977). See United States v. Oropeza, 564 F.2d 316, 325 (9th Cir. 1977); State v. DeFreitas, supra, 451; Henson v. United States, 399 A.2d 16, 19 (D.C. App. 1979); People v. Foster, 66 Ill. App. 3d 292, 294, 383 N.E.2d 788 (1978). Although, as we noted in State v. DeFreitas, supra, 454 n.11, "no single factor in the test we adopt for determining the trustworthiness of third party declarations against penal interest is necessarily conclusive," the following factors here demonstrate that the Sanford statement to Bourassa met the threshold level of trustworthiness. We commence with an examination of the first factor enumerated above — the time of the declaration and the party to whom it was made. The statement was made within three months after the Pasternak murders, which is relatively close to the time the crimes occurred. Compare United States v. Satterfield, 572 F.2d 687 (9th Cir.), cert. denied, 439 U.S. 840, 99 S. Ct. 128, 58 L. Ed. 2d 138 (1978) (confession made two years after the crime). Also, the statement was made to a friend whom the declarant, himself, had contacted. Compare Lowery v. State, 401 F. Sup. 604 (D. Md. 1975), aff'd without opinion, 532 F.2d 750 (4th Cir.), cert. denied, 429 U.S. 919, 97 S. Ct. 312, 50 L. Ed. 2d 285 (1976) (affidavit sworn to before prison official). Additionally, regarding the second factor, a myriad of corroborating circumstances were present which were indicative of reliability. The Sanford confession was made spontaneously; compare Lowery v. State, supra (spontaneity is an indicium of reliability and declarant's affidavit sworn to before prison official not spontaneous); and was not induced by Cold. See United States v. Satterfield, supra, 693; People v. Lettrich, 413 Ill. 172, 108 N.E.2d 488 (1952). The statement was made at the time Sanford was contemplating suicide and, in fact, on the very evening he made the confession to Bourassa he took his own life. It does not appear that there was any motive for Sanford to exculpate Cold, inasmuch as no connection between these two individuals was shown or suggested. Compare State v. Higginbotham, 298 Minn. 1, 5, 212 N.W.2d 881 (1973) (declarant lived with the defendant's family, was often referred to as the defendant's brother, and was likely to have fabricated the confession ont of a desire to free his close friend). Sanford, however, apparently believed he had a reason to "get" Pasternak. He thought that Pasternak was representing his wife, Glorianna, and that he was taking advantage of her. Yashenko testified that he overheard the confession on an extension telephone. Compare People v. Craven, 54 Ill. 2d 419, 429, 299 N.E.2d 1 (1973) (declaration heard only by woman living with defendant). There is no indication that the statement might have been made to curry favor with the authorities. Compare United States v. Love, 592 F.2d 1022 (8th Cir. 1979). See also Notes of the Advisory Committee on Proposed Rules, at 28 U.S.C.A. Fed. R. Evid. 804, reprinted in 4 Weinstein, Evidence, p. 804-24 (a statement admitting guilt and implicating another person, made while in custody, may well be motivated by a desire to curry favor with the authorities and hence fail to qualify as against interest). Cf. United States v. Rogers, 549 F.2d 490, 498 n.8 (8th Cir. 1976) (recognizing that declarant's interest in obtaining a lesser sentence for his cooperation could have affected the reliability of the statement where statement made after guilty plea and before sentencing). Further, other corroborating circumstances exist. Dorothy Crocco placed Sanford in the vicinity of the crime, identifying him as the man she had seen running from the direction of the Pasternak home shortly after the murders. Compare United States v. Guillette, supra, 754 (no independent evidence such as reports of eyewitnesses placing declarant in vicinity of victim's home at time of crime). According to testimony by Bourassa and Yashenko, Sanford was in the state the day of the murders, and was absent from his home at the approximate time of these crimes. Thus, Sanford had an opportunity to commit the murders. Both Bourassa and Yashenko testified that they were shown a bloody blue denim shirt by Sanford's wife when they returned to Sanford's home later in the evening of the Pasternak murders. Grlorianna Sanford testified that she and Sanford drove to Florida the day after the Pasternak murders. Flight may justify an inference of guilt. State v. Piskorski, 177 Conn. 677, 722-23, 419 A.2d 866 (1979). Finally, as in Chambers, supra, there were statements made to other persons in which Sanford implicated himself in the crimes. He told Morrison that he "would get" Pasternak, and, approximately four hours after the murders, told her that he was in a phone booth, was covered with blood, and had "just done something that he wasn't gonna be able to get out of." The morning after the Pasternak murders Sanford told Borrelli that he "was squaring away [with] people that were fucking with his wife" and that he knew some people who could use more stitches than he had on his neck. These statements were, and are, relevant in determining whether the confession, which was indisputably a declaration against penal interest, was trustworthy. Regarding the third factor, the extent to which the declaration is against the declarant's penal interest, we note that the confession to the murder of Rhoda Pasternak conld not have been more against Sanford's penal interest. Although application of the fourth factor, availability of the declarant as a witness, does not bolster the reliability of the confession inasmuch as Sanford was unavailable at the time of the trial, other circumstances delineated above clearly indicate the trustworthiness of the confession. Fed. R. Evid. 804 (b) (3). In eases in which exclusion of a declaration against penal interest exculpatory to the defendant did not constitute error, the showing of trustworthiness was significantly less substantial than it was here. For example, in United States v. Guillette, supra, 754, the court noted that the statement was made to a police informant whom the declarant had just met and with whom he was drinking; that the declarant had had a number of drinks before making the statement; that there was no independent evidence tying the declarant to the crime; that there were no reports placing the declarant in the vicinity of the crime; and that the government was unable to locate the declarant. In United States v. Satterfield, supra, 693, there was a substantial length of time between the crimes, which occurred in 1974, and the declaration, which was made in 1976; there was an "absence" of corroboration for the declarant's version of the crimes; and there was "good reason to believe" that the argument during which certain declarations against interest were made was "staged" by the defendant and the declarant, and that the declarant's other statements against interest also, were fabricated. In Taggart v. State, 269 Ind. 667, 382 N.E.2d 916 (1978), the Indiana Supreme Court upheld the exclusion of a typewritten confession that was delivered to the defend ant's son-in-law by an individual who said that the declarant would sign the statement only if he received $5000, and that he would repudiate the statement in court unless he received the money first. That court noted, "the entire circumstances surrounding the origin of this 'confession' are permeated with indicia of untrustworthiness." Id., 671. In United States v. Hoyos, 573 F.2d 1111, 1115 (9th Cir. 1978), the court found that the excluded statement was not significantly inculpatory of the declarant; that it was not spontaneous and was made only after the declarant's arrest; and that it was made only to the declarant's wife. In United States v. Hughes, 529 F.2d 838, 840-41 (5th Cir. 1976), exclusion of a statement against interest was not found to constitute a denial of due process because, unlike the Chambers case, the defendant there was not directly prevented from cross-examining the declarant defense witness because he never sought to treat him as an adverse witness; there was no independent evidence corroborating the substance of the declarant's prior statements; and the statements were not necessarily exculpatory in that they may only have shown that the declarant and defendant were accomplices. On the other hand, cases in which exclusion of the declaration against penal interest exculpatory to the defendant was found to have constituted error demonstrate a level of trustworthiness considerably more proximate to that in the present case. For example, in United States v. Goodlow, 500 F.2d 954, 958 (8th Cir. 1974), the circumstances showing the trustworthiness of the statements included the facts that two witnesses in addition to the defendant were prepared to testify that they heard the declarant make the statements; that each of these witnesses specified the time and place at which the statements were made and identified the persons who were present; that the car involved in the crime belonged to the declarant's sister; that a police officer testified that the declarant was "known" for the type of crime with which the defendant was charged; and that the several discrepancies in the government informant's identification of the defendant made it "at least plausible" that the declarant and not the defendant committed the crime. See also United States v. Thomas, 571 F.2d 285, 289 (5th Cir. 1978); United States v. Benveniste, 564 F.2d 335, 339-42 (9th Cir. 1977); United States v. Atkins, 558 F.2d 133, 135 (3d Cir. 1977). In conclusion, we hold that the exclusion of the Bourassa testimony regarding Sanford's confession was in violation of our statement against penal interest exception to the hearsay rule because the corroborating circumstances clearly indicate that the confession was trustworthy. In view of this holding we need not consider whether the exclusion of this evidence deprived the defendant of his constitutional right to due process of law. "We thus follow the recognized policy of self-restraint and the basic judicial duty to eschew unnecessary determinations of constitutional questions. Pepin v. Danbury, 171 Conn. 74, 88, 368 A.2d 88 [1976]. See also Rescue Army v. Municipal Court, 331 U.S. 549, 568-73, 67 S. Ct. 1409, 91 L. Ed. 1666 [1947]; Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346-47, 56 S. Ct. 466, 80 L. Ed. 688 [1936] (Brandeis, J., concurring). See generally A. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (1962)." Negron v. Warden, 180 Conn. 153, 166-67, 429 A.2d 841 (1980). Where an evidentiary error not of constitutional dimension is found, the defendant must show that the error was harmful. See State v. Sorbo, 174 Conn. 253, 257, 386 A.2d 221 (1978); Aillon v. State, 168 Conn. 541, 547-48, 363 A.2d 49 (1975); State v. L'Heureux, 166 Conn. 312, 323-24, 348 A.2d 578 (1974). We conclude that the defendant has met that burden here. b. Other Statements Against Penal Interest To reiterate, Morrison testified during the offer of proof that Sanford had telephoned her two nights before the murders and told her that he "would get" Pasternak. Additionally, on the night of the murders he called her to tell her that he needed her help, and that he had just done something he was not going to be able to get out of. He also said that he was in a phone booth and was covered with blood. Borrelli, a member of a motorcycle club Sanford rode with, testified that the morning after the Pasternak murders he saw Sanford with stitches on his throat. Sanford, when asked by Borrelli what he had been doing, replied that he was "squaring away [with] people" who were bothering his wife; he also stated that he knew some people who could use more stitches than he had. At trial the grounds urged for admissibility were that the statements constituted exceptions to the hearsay rule in that they were declarations against penal interest and were dying declarations. The defendant also claimed that the statement to Morrison that he "would get" Pasternak was admissible either under State v. Hawley, 63 Conn. 47, 27 A. 417 (1893), as a threat, or under the state of mind exception to the hearsay rule pursuant to which a declaration indicating a present intention to do an act in the future is relevant to show that the act probably was done as planned. On appeal the defendant has argued primarily that the statements were against penal interest. This is the first case in which this court has been faced with defining a statement against penal interest and with deciding whether a particular declaration other than a confession comes within this exception to the hearsay rule. McCormick notes, "[a]s to what is against penal interest, quite obviously the essential characteristic is exposure to risk of punishment for crime. Thus either a direct admission of guilt or an admission of implicating circumstances suffices." (Footnote omitted.) McCormick, Evidence § 278, p. 83 (1979 Sup.). Federal rule 804 (b) (3) defines a statement against penal interest as " [a] statement which . . . at the time of its making . so far tended to subject him [the declarant] to . . . criminal liability . . . that a reasonable man in his position would not have made the statement unless he believed it to be true." This rule, in referring to statements that tend to subject the declarant to criminal liability, encompasses those disserving statements by a declarant that would have probative value in a trial against him. United States v. Thomas, 571 F.2d 285, 288 (5th Cir. 1978). Thus, a statement has been found to have met this standard where a reasonable person would have realized that remarks of the sort attributed to the declarant — " 'No, Buckey [Barrett] wasn't involved. It was Buzzy' — strongly implied his personal participation in the . . . crimes and hence would tend to subject him to criminal liability. Though by no means conclusive, the statement would be important evidence against [the declarant] were he himself on trial for the . . . crimes." United States v. Barrett, 539 F.2d 244, 251 (1st Cir. 1976). See also United States v. Alvarez, 584 F.2d 694, 700 (5th Cir. 1978). (The declarations were against penal interest because they " 'strengthened the impression that [the declarant] had an insider's knowledge of the crimes.' ") Several states have adopted the broad definition of statement against penal interest contained in rule 804 (b) (3) of the Federal Buies of Evidence or a definition of similar breadth. Commonwealth v. Keizer, Mass. , 385 N.E.2d 1001 (1979); see also Ark. Stat. Ann. § 28-1001, Rule 804 (b) (3); Cal. Evid. Code § 1230 (Deering); Me. Bev. Stat. Ann. tit.. 14, Rule 804 (b) (3); N.J. Stat. Ann. § 2A :84A, Rule 63 (10); N.M. Stat. Ann., Court Rules, Rule 804 (b) (4); Wis. Stat. Ann. § 908.045 (4) (West). We are persuaded of the logic and soundness of the federal rule and the trend to reject a narrow and inflexible definition of a statement against penal interest in favor of a definition which includes not only confessions, but other remarks which would tend to incriminate the declarant were he or she the individual charged with the crime. Where a statement is exceedingly inculpatory, but falls short of being a confession, we cannot say that the statement is, therefore, so inherently untruthful as to be always withheld from the jury's consideration. This court now rules that a statement against penal interest is one which at the time it is made so far tends to subject the declarant to criminal liability that a reasonable person in the declarant's position would not have made the statement unless he or she believed it to be true. In State v. DeFreitas, supra, 451-52, we noted that "[i]n requiring that the trustworthiness of a third party declaration against penal interest be examined carefully . . . the rule we adopt is in accord with the Federal Rules of Evidence . . . ." (Footnote omitted.) Here, we go a step further and adopt the definition of statement against penal interest contained in the Federal Rules of Evidence. We find that the Sanford statements to Morrison and Borrelli fall squarely within the definition of statement against penal interest that we have now adopted. The admissibility of these statements, however, depends on whether they meet the threshold level of trustworthiness which we discussed at length in the preceding section of this opinion. The statements to Morrison, a friend of some twenty years, were made spontaneously by Sanford when he telephoned her both two nights before and on the very night of the murders. The strong corroborating evidence, discussed above, clearly indicates the trustworthiness of the statements. Additionally, although falling short of a confession, the statements were exceedingly inculpatory to Sanford, such that a reasonable person would not have made them unless he or she believed them to be true. We find that these statements meet the threshold level of trustworthiness required of statements against penal interest. Likewise, the statement to Borrelli meets the threshold level of trustworthiness. Borrelli was a member of the same motorcycle club as Sanford, and the statement was made the day following the murders. Again, the numerous corroborating circumstances clearly indicate the trustworthiness of this statement. As to all of the above declarations against penal interest, the trial court considered the issue of trustworthiness and decided that the corroborating circumstances did not clearly indicate the trustworthiness of the statements ,* accordingly, it ruled that all the declarations were not admissible. For the reasons set forth above, we disagree and conclude that the trial court abused its discretion. We find error and order a new trial. Our holding is dispositive of this appeal; however, we give consideration to certain of the defendant's other claims of error which are likely to arise upon retrial. II Matters Likely to Arise on Retrial A. SANFORD-RELATED NONHEARSAY During the offer of proof, nonhearsay evidence was elicited which was claimed to link Sanford to the murders. This included testimony regarding a bloody shirt seen in Sanford's home the night of the murders; testimony by Crocco identifying Sanford as the man she saw running from the vicinity of the Pasternak home shortly after the murders; and evidence of Sanford's sudden departure for Florida the day after the murders. All Sanford-related evidence which the trial court did not exclude on hearsay grounds it excluded as having "no relevancy." "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. Eason v. Williams, 169 Conn. 589, 591, 363 A.2d 1090 [1975]; State v. Towles, 155 Conn. 516, 523, 235 A.2d 639 [1967]." State v. Runkles, 174 Conn. 405, 413, 389 A.2d 730, cert. denied, 439 U.S. 859, 99 S. Ct. 177, 58 L. Ed. 2d 168 (1978). We have noted that "'Evidence is admissible when it tends to establish a fact in issue or to corroborate other direct evidence in the ease. 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. . . . State v. Towles, 155 Conn. 516, 523, 235 A.2d 639 [1967]; Pope Foundation, Inc. v. New York, N.H. & H.R. Co., 106 Conn. 423, 435, 138 A. 444 [1927].'" State v. Villafane, 171 Conn. 644, 674-75, 372 A.2d 82 (1976), cert. denied, 429 U.S. 1106, 97 S. Ct. 1137, 51 L. Ed. 2d 558 (1977). Although a court has wide discretion in its rulings on the relevancy of evidence; State v. Carr, 172 Conn. 458, 464, 374 A.2d 1107 (1977); we conclude that the trial court abused its discretion in finding irrelevant all nonhearsay evidence linking Sanford to the crimes. Of particular concern is the exclusion of the testimony of Dorothy Crocco that she saw a man whom she identified as Sanford "running like the devil" from the vicinity of the Pasternak residence at the time police cars were arriving at the scene. Given all the other testimony offered to link Sanford with the murders, the trial court erroneously ruled this evidence irrelevant, thereby implicitly concluding that this identification testimony did not render "more probable" the fact that Gold was not guilty of the Pasternak murders. See State v. Villafane, supra, 675. " '[I]t is always competent for a [defendant] to give evidence tending to show that another committed the crime [with] which he is charged .'" State v. Marshall, 166 Conn. 593, 601, 353 A.2d 756 (1974). The state claims that the Crocco identification of Sanford was "absolutely compromised" because although Sanford had a mustache and goatee both before and immediately after the murders, Crocco had testified that the man she saw running did not have such facial hair. Further, the state notes that although Crocco testified that the man who ran past her had long hair, Sanford had shaved his head bald at the time of the murders. We point out, however, that it is the function of the trier of fact to determine the credibility of witnesses. State v. Holley, 174 Conn. 22, 28, 381 A.2d 539 (1977). See also Brooks v. Tennessee, 406 U.S. 605, 611, 92 S. Ct. 1891, 32 L. Ed. 2d 358 (1972). The Crocco identification provided some evidence which directly connected Sanford with the crimes. Once that evidence was adduced, other evidence concerning Sanford's involvement in the crime became admissible. State v. Kinsey, 173 Conn. 344, 347-48, 377 A.2d 1095 (1977). B. SEIZURE OP BUTTOKEER KIT The defendant claims on appeal that the trial court erred in admitting into evidence the buttoneer kit "purportedly" seized from the defendant's apartment by Detective O'Connell of the New York City police department. Upon the request of the Waterbury police department, O'Connell and other New York City police officers had gone to Cold's apartment at about 3 a.m. on October 4, 1974. Cold met the officers at the door and, after being advised of his Miranda rights, signed a written consent to search his apartment. The written consent simply stated "I, Murray Cold, of 108-48 70th Road, Apartment 6J, Forest Hills, New York, hereby consent to a search of my premises." O'Connell, however, when asking Cold to sign the consent, told him that the police were "searching for items in connection with the homicide in Waterbury." After Cold signed the form consenting to the search, he was informed of and shown the search warrant that the New York police already had obtained for shoes with Cat's Paw heels and a suit coat missing a brown button. While searching Gold's apartment, O'Connell observed a button-fastening kit in the linen closet, which kit contained four brown suit coat buttons similar to the button described in the search warrant application. O'Connell removed the buttoneer kit from the defendant's linen closet, took it into the hallway outside Gold's apartment, and while the door to the apartment was open, showed it to Sergeant Messina of the Waterbury police department who had been waiting in the hallway during the search of the apartment by the New York police. After the kit was examined by Messina, O'Connell returned it to the defendant's linen closet. Subsequently, the New York police obtained a second warrant which authorized the seizure of the buttoneer kit, and, pursuant to that warrant, the kit was seized. First, the defendant claims that the search warrant for the shoes and suit coat was only a guise for admission into the Gold apartment and that the search was violative of the fourth amendment to the United States constitution under Coolidge v. New Hampshire, 403 U.S. 443, 471, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971), because, although the kit was not named in this search warrant, the presence of the Waterbury police officer permitted the New York police to "know in advance" what they would seize. The defendant's second theory is that although "mere evidence" is subject to seizure under Warden v. Hayden, 387 U.S. 294, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967), the seizure of the buttoneer kit by O'Connell was unconstitutional because there was no nexus between the kit and criminal behavior at the moment it was seized, but, rather, only after the seizure when the kit was shown to Messina. Thirdly, the defendant claims that the New York police exceeded the consent given by Gold to search his apartment by showing the buttoneer kit to Messina in the hall outside Gold's apartment; the claim is that the defendant's waiver of his right to privacy extended only to the New York police, but not to the Waterbury police. On the ground that the warrant subsequently issued authorizing seizure of the buttoneer kit was a "fruit of the poisonous tree," the defendant claims that it should have been suppressed under Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). The defendant's first claim, that the seizure was illegal under Coolidge v. New Hampshire, supra, may be readily rejected. In that case, the state's contention that the seizure of an automobile was justified on the grounds of the "plain view" exception to the warrant requirement was rejected by the court because the police had sufficient opportunity to secure a warrant; they knew the automobile's exact description and location well in advance of the seizure, and had intended to seize it; and the case did not involve contraband, stolen goods, or objects dangerous in themselves. Coolidge v. New Hamp shire, supra, 472. Here, there is no indication that when the New York police entered Gold's home at approximately 3 a.m. they had any inkling that a buttoneer kit would be located therein. That Messina was waiting in the outside hall does not alter this fact in the slightest. The second contention, that the New York police seized the buttoneer kit before they became aware of its potential worth as "mere evidence" is also without merit. We note that the New York police were legally in the Gold apartment and were conducting a lawful search. They had obtained a search and seizure warrant, the validity of which has not been challenged. They also had obtained Gold's consent to search the apartment; the voluntariness of that consent has not been attacked. See Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973); State v. Chetcuti, 173 Conn. 165, 171-72, 377 A.2d 263 (1977). The buttoneer kit was lawfully discovered during the search. Lawful discovery alone, however, does not provide a legal basis for the seizure of an item. Were this the law, police would be empowered to make wholesale seizures of innumerable items. Such wholesale seizures "would unquestionably violate the Fourth Amendment." 2 LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 6.7, p. 477. (Footnote omitted.) Rather, there must be a connection — a nexus — between the items seized and criminal activity. Warden v. Hayden, 387 U.S. 294, 307, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967). "[I]n the case of 'mere evidence,' probable cause must be examined in terms of cause to believe that the evidence sought will aid in a particular apprehension or conviction." Warden v. Hayden, supra, 307. See also State v. DeChamplain, 179 Conn. 522, 528-29, 427 A.2d 1338 (1980); 1 LaFave, Search and Seizure, supra, § 2.6 (d), p. 390; 2 LaFave, Search and Seizure, supra, § 4.1 (b), p. 7, and 8.1, p. 630. The defendant claims the seizure was invalid because probable cause to believe that the buttoneer kit was "mere evidence" did not exist until the kit was shown to Messina. We assume, arguendo, that the defendant is correct in his contention that the seizure occurred prior to the time at which the buttoneer kit was shown to Messina who was standing in the hallway. We reject, however, his claim that probable cause that the kit constituted "mere evidence" did not exist prior to this point. As we noted above, when the New York police arrived at the Gold apartment they had in their possession a warrant to search the premises and to seize "a pair of shoes, consisting of half soles and cats paw heels, [and] a suit coat with a button torn away." Attached to this warrant was an affidavit which set forth the details of the Pasternak murders and certain information linking Gold with these crimes. The affidavit stated that "[additional evidence at the scene of the murder consists of a suit coat button, brown in color. This button does not match any item of clothing at the Pasternak home." When the New York police officers arrived at Gold's apartment they knew that a brown suit coat button matching the one found at the murder scene could be of great assistance in solving the crimes. Thus, when they first came upon the buttoneer kit containing four brown suit coat buttons of the type described in the affidavit, they had probable cause to believe that the buttoneer kit did constitute "mere evidence." The fact that the kit was shown to Messina in the hallway does not affect the validity of the prior seizure. Nor does the fact that the New York police returned the kit to the linen closet and, exercising caution, subsequently sought and obtained a warrant authorizing the seizure of the buttoneer kit in any way undermine the initial valid seizure. The third claim of the defendant, that the New York police exceeded the consent given by Gold to search his apartment by showing the buttoneer kit to Messina in the hallway is also without merit. Once the New York police had validly seized the kit, they were not barred from showing it to other individuals who could assist in establishing whether the item seized was, in fact, evidence which would link a particular suspect to the crimes. C. IN-COTJKT IDENTIFICATION Kim (Kelly) Perugini made an in-court identification of Murray Gold as being the man she saw in a car which was parked on Fern Street, Waterbury, and which was facing toward the Pasternak home at 7:20 a.m. on September 23, 1974, three days before the Pasternak murders. The defend ant claims that the trial court's denial of his motion to suppress the in-court identification deprived him of due process, because this identification was tainted by a suggestive pretrial photographic identification procedure. The error is claimed to be harmful because the in-court identification placed the defendant at the scene of the crimes shortly before the murders and contradicted a statement that O'Connell had testified Cold made to him in which Cold asserted that he visited Waterbury only on September 16, 1974. During a hearing outside the presence of the jury, Perugini testified, inter alia, to the following: In September of 1974 she lived on Fern Street in Waterbury. At about 7:20 a.m. on the morning of September 23, 1974, she left her house to drive to school. As she walked down the driveway she noticed that a man was sitting in a car which was facing her car. She described the car as being dark, big, and blue, and described its occupant as being a man with a bushy mustache, very dark hair, and a receding hairline. This dark blue car was parked one foot or less from the front of her car. The day was fair and it was light. The windshields of both cars were clear. She sat facing and observing the man for about two minutes while she warmed up her car. On October 17, 1974, approximately three weeks after Perugini saw the man in the dark blue car, three Waterbury police officers took a photographic display to her home. The court file contains the display which shows ten individual photographs of white males with mustaches, which photographs were arranged in two rows, each row containing five pictures. Only the defendant's photograph had an "inked-in" mustache. One male also had a beard. All the photographs were of approximately the same size. Although the backgrounds of the photographs ranged from white to grey, there were several photographs having backgrounds of approximately the same light shade as that of the defendant's photograph. The photograph of the defendant was the only one having a height measuring scale on it. Perugini testified further during this hearing that she had looked at the display for approximately seven to ten minutes before selecting the photograph of the defendant, beneath which she printed "K. Perugini." Perugini testified that the police did not suggest in any way that she select any particular photograph, but, only asked her if the photograph of the man she saw in the car was among those on the display. Perugini responded affirmatively on three separate occasions when asked if her in-court identification was based upon her memory of the man she saw in the car on September 23, and was not influenced by the photographs she was shown. Further, she testified that although she noticed that the mustache on the defendant's photograph was "inked-in," this did not play any part in her identifying that photograph. Perugini further indicated that she did not notice the scale behind the defendant in his photograph when she was shown the photographic display. Over the defendant's objection, the trial court, having found that this identification was based not on the photographic display, but on her recollection of the man she saw on September 23, admitted Perugini's in-court identification of the defendant. An exception was duly taken. The danger of misidentification of a suspect by a witness, present even if the police follow the most correct photographic identification procedure, is increased where, for example, police show the witness a display of several pictures among which the photograph of a single individual is in some way emphasized. Simmons v. United States, 390 U.S. 377, 383, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968); State v. Hafner, 168 Conn. 230, 238, 362 A.2d 925, cert. denied, 423 U.S. 851, 96 S. Ct. 95, 46 L. Ed. 2d 74 (1975). The problem is that where there is an initial misidentification, the witness is subsequently likely to retain in his or her memory the image of the photograph rather than of the person actually seen. Simmons v. United States, supra, 383. Thus, in assessing the admissibility of in-court identification testimony, reliability is the "linchpin." Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977); State v. Piskorski, 177 Conn. 677, 742, 419 A.2d 866 (1979). Reliability is to be determined by the totality of the circumstances as emphasized in Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967), and Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972). State v. Piskorski, supra, 742. Because the photograph of the defendant was the only one in which a mustache had been drawn in, it was unnecessarily suggestive. It was unnecessary because the police readily could have included in the display other photographs with mustaches drawn on them. It was suggestive because the police showed the witness pictures of several individuals among which the photograph of a single individual — Gold—was emphasized. See State v. Hafner, supra, 238; see also Simmons v. United States, supra, 383. " 'A procedure is unfair which suggests in advance of identification by the witness the identity of the person suspected by the police.' " People v. Hunt, 19 Cal. 3d 888, 894, 568 P.2d 376 (1977), quoting People v. Slutts, 259 Cal. App. 2d 886, 891, 66 Cal. Rptr. 862 (1968). Where a feature is placed on the defendant's photograph in order to make the picture conform to the witness' description of the criminal he or she had seen, the identification proceeding has been held to have been rendered highly suggestive. People v. Slutts, supra; annot., 39 A.L.R.3d 1000, 1013. Even where the subsequent in-court identification has been held to have been admissible because it had an independent origin, such sketching on a photograph has been specifically mentioned as an identification procedure "not to be commended." People v. Rodgers, 53 Ill. 2d 207, 213, 290 N.E.2d 251 (1972). We agree. In determining the admissibility of an in-court identification, however, we must consider other factors in addition to the unnecessary suggestiveness of a prior identification procedure. These factors " 'include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and confrontation. Against these factors is to be weighed the corrupting effect of the suggestive iden tification itself.' Manson v. Brathwaite, supra, 114 (citing Neil v. Biggers, supra, 199-200)." State v. Piskorski, supra, 742. Application of the above factors to the circumstances present in this case reveals that the trial court did not err in determining that the in-court identification was independent of the pretrial photographic identification procedure and was based on what Perugini had seen the morning of September 23. While the cars were almost bumper to bumper during the early daylight hours of a clear day, Perugini had an unobstructed view of the man in the dark blue car for approximately two minutes. Her attention was focused on the man because she testified that during this two-minute interval she stared at him and he stared at her. This is not a situation where the identifying witness was under emotional stress at the time of the crime. The description that she gave to police before the photographic identification procedure, that the man had a "bushy mustache, very dark hair, and a receding hairline," although somewhat sketchy, does accurately describe the defendant. Further, at no time during either the hearing outside the presence of the jury or during her testimony at trial did Perugini evidence any uncertainty about whether the man whose photograph she identified was, in fact, the individual she had seen in the car on September 23. Finally, the witness' pretrial photographic identification of Gold occurred only approximately three weeks after she had seen the man. Balanced against the above factors, under the totality of the circumstances, the "corrupting effect" of the suggestive pretrial photographic identifica tion itself did not have such a tendency to give rise to a substantial likelihood of irreparable mistaken identification that the in-court identification had to be excluded. Simmons v. United States, supra, 384; State v. Williams, 173 Conn. 545, 552, 378 A.2d 588 (1977). The trial court did not err in its conclusion that the state had met its burden of establishing that the in-court identification was based upon observation independent of the suggestive pretrial identification procedure. D. REMARKS OR THE STATE'S ATTORNEY DURING PINAL ARGUMENT The defendant claims that the trial court erred in denying his motion for a mistrial based on certain comments made by the state's attorney during final argument. The state's attorney concluded his final argument with the following statement: "Now, when Mr. Kunstler says to you you'll wake up screaming if you return the verdict of guilty, I say to you you'll wake up screaming if you return a verdict of not guilty, because to do good to the bad, the spirit of the bad, is to do evil to the good and make you responsible, you, yes, you, for all the acts this man may subsequently commit, because you let him go free. Thank you for your attention." Defense counsel moved for a mistrial on the basis of the above comments; the trial court denied the motion, and an exception was taken. No specific cautionary instruction was subsequently given the jury regarding the above remarks. We have previously cited with approval ABA, Standards Relating to the Prosecution Function and the Defense Function § 5.8 (1971); State v. Carr, 172 Conn. 458, 470, 374 A.2d 1107 (1977); subsection (d) of which provides as follows: "The prosecutor should refrain from argument which would divert the jury from its duty to decide the ease on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury's verdict." The state's attorney improperly argued the necessity of preventing further injury to society by the defendant himself. A defendant is on trial for what has been done and not for what he or she might do. State v. Raspberry, 452 S.W.2d 169, 172 (Mo. 1970); State v. Mobley, 369 S.W.2d 576, 581 (Mo. 1963). Also, by threatening that a verdict of not guilty would make "you responsible, you, yes, you, for all the acts this man may subsequently commit, because you let him go free," the state's attorney even further diverted the jury from its duty to decide the case solely on the evidence. HI Conclusion Trustworthy declarations against penal interest exculpatory to a defendant are admissible if the declarant is unavailable. In State v. DeFreitas, supra, we adopted the same standard of trustworthiness as is required by rule 804 (b) (3) of the Federal Rules of Evidence. Here, we go a step further and adopt a definition of statement against penal interest which is the same as that contained in this federal rule. For the reasons set forth above, the offered statements of Bruce Sanford met all the requirements of our rule regarding declarations against penal interest. There is error, the judgment is set aside and a new trial is ordered. In this opinion the other judges concurred. Gold had been married for a brief period of time to Barbara Pasternak. At the time of the murders the couple had been divorced for approximately eleven years. "Mr. Kunstler: Judge, we are going to be quite clear. There are various aspects of the testimony you have heard today that •— one aspect is the question of a confession or admission. That is in a different category to things that are associated with the res gestae in this case, and things which are purely physical in nature. The possession of a blood-stained shirt is a physical act and not a question of any statements. I think your Honor has to carefully keep these separate. At least we have to be careful in keeping separate those things which are factual in nature and those things which are exceptions, we claim are exceptions to the hearsay rule. They are all mixed up in this offer of proof." "Mr. Kunstler: I don't think you understand my question, Judge. We'd like to call in our ease Glorianna Sanford to testify only to the relationship between the Sanford . . . family [and] the Pasternaks and the Kahans, to call Graig Yashenko and Bobert Bourassa as to seeing a bloody shirt, what appeared to them to be a bloody shirt that evening in the Sanford home, call the three women that we have here to testify as to what they saw that night. I'm asking you whether you're excluding that as independent evidence, independent of any statements, confessions or any other aspect. We are offering those not to prove statements or confessions, although we take an exception to your ruling on that part. We are offering it as direct evidence to go with the fact that a person was running from the scene of the crime . I'm not offering that for hearsay purposes, just what they saw that night and what Glorianna Sanford testified here . . . none of which has anything to do with hearsay but has to do with observations and direct evidence. We are offering them." "The Court: Well, the Court's ruling is that the evidence does not change the Court's previous ruling with reference to the admissibility of the proffered hearsay confessions either under the Connecticut law, as set forth by the Connecticut Supreme Court in the cases I have already cited, including, of course, State against Marshall in [166 Conn. 593], nor does it even measure up to the requirements of the Federal rule 804 (b) (3), the last sentence of which reads as follows — not to mention some other previous requirements in the rule — but the last sentence reads: 'A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.' I don't think that this additional evidence adds anything to the corroborating circumstances that clearly indicate any trustworthiness of the statement, even if the Court were inclined to follow the Federal rule, nor does it comply with the rationale of cases such as State against Larsen, in 415 P.2d 685, a 1966 Idaho case." A statement exculpatory to a defendant is one which either exonerates or which might reduce the degree of punishment to which the defendant might be exposed even if the remark does not completely exonerate the defendant. See Brady v. State, 226 Md. 422, 174 A.2d 167 (1961), aff'd sub nom. Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). It should be noted that we specifically rejected in State v. DeFreitas, 179 Conn. 431, 426 A.2d 799 (1980), the rule adopted by jurisdictions such as Florida, Michigan, New York, California, and Hawaii, under which a declaration against interest is admissible without a threshold showing of trustworthiness. State v. DeFreitas, supra, 8 n.9; Baker v. Florida, 336 So. 2d 364 (Fla. 1976); People v. Edwards, 396 Mich. 551, 566, 242 N.W.2d 739 (1976); People v. Brown, 26 N.Y.2d 88, 257 N.E.2d 16 (1970); People v. Spriggs, 60 Cal. 2d 868, 389 P.2d 377 (1964) (en banc). See also State v. Leong, 51 Hawaii 581, 465 P.2d 560 (1970). Justice Holmes noted in his oft-quoted dissenting opinion in Donnelly v. United States, 228 U.S. 243, 277-78, 33 S. Ct. 449, 57 L. Ed. 820 (1913) : "The confession of Joe Dick, since deceased, that he committed the murder for which the plaintiff in error was tried, coupled with circumstances pointing to its truth, would have a very strong tendency to make any one outside of a court of justice believe that Donnelly did not commit the crime. . . . The rules of evidence in the main are based on experience, logic and common sense, less hampered by history than some parts of the substantive law . . . [T]he exception to the hearsay rule in the case of declarations against interest is well known; no other statement is so much against interest as a confession of murder; it is far more calculated to convince than dying declarations, which would be let in to hang a man . . . and when we surround the accused with so many safeguards, some of which seem to me excessive, I think we ought to give him the benefit of a fact that, if proved, commonly would have such weight." We described the Robichaud statements against interest as "clearly untrustworthy" in State v. DeFreitas, 179 Conn. 431, 453, 426 A.2d 799 (1980). Sanford had told Morrison: "The bastard [Pasternak] is representing my wife. He's telling her things and I think he's gonna sell her out. . . . [and that if she] didn't get what she had coming to her from this hearing, that he would get the no good Jew bastard one way or the other." At the time of his murder, Pasternak was a practicing attorney in the city of Waterbury. We noted in State v. Mastropetre, 175 Conn. 512, 520, 400 A.2d 276 (1978), " 'The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations. The rights to confront and cross-examine witnesses and to call witnesses in one's own behalf have long been recognized as essential to due process.' Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973)." Exclusion of testimony which does not come within our exceptions to the hearsay rule nonetheless may violate due process. Green v. Georgia, 442 U.S. 95, 99 S. Ct. 2150, 60 L. Ed. 2d 738 (1979). At trial the defendant cited State v. Journey, 115 Conn. 344, 161 A. 515 (1932), in support of this theory. In Journey, testimony by the wife of the decedent that her husband had told her when he left their home that morning that he was going to work for the defendant was admissible to prove that he acted accordingly. Further, although statements other than confessions may constitute declarations against penal interest, we stated in State v. DeFreitas, 179 Conn. 431, 451, 426 A.2d 799 (1980), that a factor for determining whether a statement against penal interest meets the threshold level of trustworthiness required by our rule is the extent to which a statement is really against the declarant's interest. Obviously a confession is more against a declarant's interest than is a statement which is not a confession, and, hence, would more readily meet the threshold level of trustworthiness required. Federal Rules of Evidence, rule 804, provides in relevant part: . . (b) Hearsay exceptions. — The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: . (3) Statement against interest. — A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement." In Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971), the court noted (p. 471) : "If the initial intrusion is bottomed upon a warrant that fails to mention a particular object, though the police know its location and intend to seize it, then there is a violation of the express constitutional requirement of 'Warrants . . . particularly describing . . . [the] things to be seized.' The initial intrusion may, of course, be legitimated not by a warrant but by one of the exceptions to the warrant requirement, such as hot pursuit or search incident to lawful arrest. But to extend the scope of such an intrusion to the seizure of objects— not contraband nor stolen nor dangerous in themselves — which the police know in advance they will find in plain view and intend to seize, would fly in the face of the basic rule that no amount of probable cause can justify a warrantless seizure." (Footnote omitted.) It appears to us, however, that a broad consent to search would, in most instances, imply a consent to touch and move in a reasonable manner certain objects. For example, consent to search a room for a coat would imply, absent a limitation on such consent, a consent to open a partially closed closet door and to move aside other garments to search for the coat in issue. Such action would not generally mean that the closet door and other garments had been seized. See 2 LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 8.1, p. 625. Kim Perugini married prior to the trial and therefore is referred to in the transcript as Kim Kelly. Courts have distinguished between eases in which the sketching in of the feature occurred before the witness selected a particular picture; People v. Slutts, 259 Cal. App. 2d 886, 891, 66 Cal. Rptr. 862 (1968); and where the witness already had selected a picture in accordance with permissible procedures and the drawing in of a feature was used as a confirmatory tool. Ash v. United States, 313 F. Sup. 961, 965 (D.D.C. 1970); People v. Slutts, supra. For clarification purposes we note that Mr. Kunstler's remarks as indicated in the transcript are as follows: "But if you have a reasonable doubt, you must stand firm or you will wake up screaming some night."

Borden, J. The defendant appeals challenging the financial and visitation orders entered incident to the judgment dissolving his marriage to the plaintiff. The defendant claims that the trial court erred (1) in its determination regarding the relative fault of the parties for the marital breakdown, (2) in its orders regarding the allocation of the assets and liabilities of the parties, and regarding alimony and support, and (3) in an evidentiary ruling regarding visitation of the defendant with the parties' minor children. We find error in part. The trial court, Hon. William L. Tierney, state trial referee, found the following facts: The parties were married for twenty-two years. The basic cause of the marital breakdown was the physical and mental abuse of the plaintiff by the defendant, but the plaintiff contributed in a lesser degree to the breakdown by her erratic and violent treatment of the defendant. The parties have four sons, ages twenty, eighteen, fifteen and twelve. The two older sons live part-time with the defendant and receive financial assistance from him for their education. The two younger sons live with the plaintiff. The court further found that the plaintiff, age forty-five, is a college graduate, teaches high school, and is in good health. She worked at the beginning of the marriage to help the defendant through law school, and except for a short period of time has taught classes for the past six years. The court further found that the plaintiff earns $15,000 per year, and has no assets except for a one-half interest in the marital residence in Wilton. The residence is valued at $160,000 to $180,000, and is subject to a mortgage of $28,000. That house was purchased with the proceeds of the sale of the parties' previous residence, which in turn was purchased through a mortgage, contributions from both parties and a loan from the defendant's mother. The court also found that the plaintiff will never have the earning capacity of the defendant, and needs assistance for the future. The court also found that the defendant, age forty-six, is in good health, and is a practicing attorney working for the National Broadcasting Company (NBC) at an annual salary of $65,000. He has worked there for seventeen years. In addition to his one-half interest in the marital residence, he has a savings plan with NBC in the amount of $6400, and a retirement plan in the amount of $9000. He has debts, payable to members of his family, of $46,000. The court awarded the custody of the two minor children to the plaintiff, subject to reasonable visitation by the defendant. The court also ordered the defendant's one-half interest in the house conveyed to the plaintiff, subject to the existing mortgage, and ordered the plaintiff to hold the defendant harmless with respect to the mortgage. The court ordered the defendant to pay the plaintiff unallocated alimony and support in the amount of $400 per week, which amount was to be reduced to $300 in September, 1987, and to $200 in December, 1991, and which is to terminate in September, 1992. The termination date is not subject to modification. I The defendant first claims that, with respect to the court's determination regarding the relative fault of the parties for the marital breakdown, the court erred in two respects: (1) the determination is unsupported by the evidence; and (2) it contradicts the court's determination, made during the trial, that both parties were "strictly at fault" for the breakdown. This claim is without merit. The first aspect of the defendant's claim is no more than an attempt to have this court reweigh the evidence and find facts. This we will not do. Voloshin v. Voloshin, 12 Conn. App. 626, 631, 533 A.2d 573 (1987). We have fully reviewed the entire record of this case. The court's determination is supported by the evidence, and cannot be disturbed. The second aspect of the defendant's claim is more troublesome, but does not involve error. The trial began on October 9, 1984, when both the defendant and the plaintiff testified. Near the end of that day's testimony, while the defendant was on the stand for the second time, there was a colloquy among the court and counsel regarding, inter alia, the causes of the marital breakdown. When the interchange between the two counsel became heated, the court interjected: "All right. There's no question about it. I've heard this ad nauseam now, and I've come to the conclusion that they're both strictly at fault in this breakdown. Neither one side carries the burden of it at all. If you want to just keep throwing more mud in here, you can and I suppose I'm forced to listen." The defendant claims that the court's remark, that "they're both strictly at fault in this breakdown," constituted a factual determination which the court could not alter absent subsequent evidence on that issue in the case. Therefore, the defendant argues, the court's finding in its memorandum of decision, namely, that the defendant's conduct was the basic cause of the breakdown, was erroneous. We disagree. The court should refrain from arriving at its factual findings until it has heard and duly considered all the evidence; Giamattei v. DiCerbo, 135 Conn. 159, 161-62, 62 A.2d 519 (1948); and it should also refrain from making any comments indicating that it has decided any factual issues until it has heard and considered that evidence. Id. That does not mean, however, that where a court has made such a premature comment, it is bound thereby. It is fundamental to the notion of a judicial factual hearing that the factual determinations arrived at after hearing all the evidence and after due deliberation on that evidence constitute the court's finding of facts. Id.; see Grayson v. Grayson, 4 Conn. App. 275, 494 A.2d 576 (1985), appeal dismissed, 202 Conn. 221, 520 A.2d 225 (1987). The court's remark in this case, obviously made in the midst of a heated exchange between counsel and during the heightened emotion of a contested dissolution case, was inappropriate. It did not, however, constitute a finding of fact which the court could not alter after due deliberation on the evidence. The remark does not undermine the court's finding of fact regarding the causes of the marital breakdown, expressed in its memorandum of decision after its deliberation on the evidence. II The defendant next claims that the court erred in its orders regarding the unallocated alimony and support, and regarding the division of the parties' assets and liabilities. The defendant presents several bases for this claim. Only two of these bases require any discussion; the others simply attempt to induce us to substitute our discretion for that of the trial court. The defendant argues that the court's financial orders are flawed because (1) they were based on findings of fact which are clearly erroneous, and (2) they were based on finan cial affidavits which were out of date, and the court improperly refused to consider current affidavits. We agree with the second of these contentions. With respect to the first contention, the defendant argues that the court's finding that he earned $65,000 per year is flawed because it ignores his testimony that he had additional income of $1350 per month, or $16,200 per year. We are at a loss, however, to see how the defendant can complain of such an error, since its rectification could only be to his financial detriment, and the plaintiff does not claim error on appeal regarding that finding. The defendant's second contention, namely, that the court's financial orders were based on improper financial affidavits, does have merit. We conclude, however, that its merit extends only to the court's order regarding the division of the parties' assets and liabilities. This facet of the defendant's claim must be viewed in its procedural context. The first two days of the trial of the case were October 9 and 10, 1984, when the parties introduced evidence regarding the causes of the breakdown of the marriage, and their respective financial situations. Both parties introduced their then current financial affidavits, and testified regarding them. At the end of the hearing on October 10, 1984, the court granted the defendant's request, made in accordance with an earlier suggestion by the court during the trial, to refer the question of the defendant's visitation with the two minor children to the family relations office for a recommendation. The court suggested that the parties file their formal demands within thirty days, but specifically reserved decision on the entire case until it received the family relations report and held a hearing thereon. The report was not completed until April 19,1985, more than six months later. On April 30, 1985, the defendant appeared in court in response to a telephone call that he appear for a hearing. The plain tiff and her counsel did not appear, and the plaintiffs counsel later represented to the defendant's counsel that he had not received a similar telephone call. The case was rescheduled for May 21,1985, but it could not proceed on that date because the family relations officer was unavailable. The case was again rescheduled for May 30, 1985. On that date, the defendant and his counsel appeared, but neither the plaintiff nor her counsel appeared. The defendant's counsel indicated to the referee that he wished to present limited testimony and that he had told the plaintiff's counsel the previous day that he intended to go forward, and he requested that the matter proceed. The referee denied the defendant's request and continued the case until August 1,1985, which was the referee's next available date. Both parties appeared on August 1, 1985. The defendant sought to file a new financial affidavit, and to testify with respect to it. He claimed that although his new affidavit would show that he was earning more money than his previous affidavit and testimony disclosed, there had been other "changes in the economic picture." In response to the plaintiff's objection that both sides had completed the evidence regarding the parties' finances, the defendant requested that the court "reopen the evidence with regard to the finances." The court refused to accept any new affidavits, and the defendant marked his new affidavit as an exhibit for identification. That affidavit disclosed, inter alia, a value of the parties' marital home of $220,000. We have recently reiterated the requirement that a ruling on a postjudgment request for attorney's fees be based on the parties' current financial positions, where there was timely and adequate notice of such a claim to the court. See Bielen v. Bielen, 12 Conn. App. 513, 515, 531 A.2d 941 (1987). That requirement is simply part of the broader principle that the financial awards in a marital dissolution case should be based on the parties' current financial circumstances to the extent reasonably possible. Practice Book § 463. The same reasoning applies in this case. We recognize that in the ordinary marital dissolution case there may be some time lag between the presentation of the evidence and the decision of the trial court; see, e.g., General Statutes § 51-183b (requiring that a decision in a trial to the court be rendered within four months of the close of the hearing); and that the decision to reopen any aspect of the case regarding which the parties have completed their evidence is committed to the trial court's discretion. See Elliott v. South Isle Food Corporation, 6 Conn. App. 373, 379-80, 506 A.2d 147 (1986). The facts of this case, however, lead us to conclude that the trial court abused its discretion in refusing to consider the defendant's new affidavit and his testimony with respect to it. First, nearly ten months had elapsed since the presentation of the parties' financial affidavits and testimony on October 9 and October 10, 1984. Where the trial court was alerted to the claim that the economic picture had changed, the court's laudable desire to bring the proceedings to an end should not have foreclosed at least a limited inquiry into the parties' then current finances. Second, none of the delay was attributable to the defendant, and some of it was attributable to the plaintiff. The two month delay between May 30, 1985, and August 1, 1985, was solely the result of the failure of the plaintiff and her counsel to appear for the hearing scheduled for May 30, 1985. Third, the affidavit which the court refused to consider discloses that the value of the principal asset of the parties, namely, their marital residence, had increased since the time of the parties' initial affidavits by $40,000 to $60,000. This is a sizable difference, particularly where, as here, the other assets of the parties were valued at a total of $15,400. We do not suggest that, had the court considered the defendant's second affidavit and his testimony with respect to it, the court would have been compelled to find the home to be worth $220,000. Nor do we suggest that, even if the court had found the value of the home to be $220,000, it would have been compelled to make a different allocation of the parties' assets and liabilities, or that the court on remand will be compelled to do so. Whether the court on remand will make the same or different orders regarding the division of the assets and liabilities of the parties will be a matter for the discretion of the court based on the financial situation of the parties at the time of the new hearing. The defendant argues that this error of the court requires a remand with respect to all of the financial orders, because the orders regarding alimony and support are integrally connected to the orders regarding the allocation of the parties' assets and liabilities. On the facts of this case, we disagree. It is true that often "[t]he rendering of a judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other." Ehrenkranz v. Ehrenkranz, 2 Conn. App. 416, 424, 479 A.2d 826 (1984). This is not such a case. The finances of the parties were not complicated. Furthermore, it is clear from the court's memorandum of decision that the focus of the unallocated alimony and support order was on the short term needs of the plaintiff while the minor children were still in her charge, whereas the focus of the allocation of assets and liabilities was on the plaintiffs need for some financial security in the long term. Under these circumstances, we conclude that the error extends only to the orders regarding the assets and the liabilities of the parties. The defendant's final claim of error involves an evidentiary ruling of the court. It is clear that this ruling was related only to the issue of visitation, despite the defendant's suggestion that it also was related to the financial orders. We have fully reviewed this claim, and find it to be without merit. There is error in part, the judgment is set aside and the case is remanded for a new hearing limited to the issue of the allocation of the assets and liabilities of the parties. In this opinion the other judges concurred. The defendant correctly points out, and the plaintiff does not claim otherwise, that the court was incorrect in describing the defendant as a "practicing attorney." Although he has a law degree, and practiced law briefly upon graduation from law school, it was undisputed that his employment at NBC is not as a lawyer. This factual error does not, however, affect the disposition of this case. The defendant also correctly points out that the court's finding of $9000 as the value of his retirement fund is at odds with the only evidence on that issue. That evidence was the defendant's exhibit and testimony that the value was approximately $6600. Since we find error regarding the procedure which preceded the court's determination of the division of the assets and liabilities of the parties, on remand the court should consider the current, correct value of the defendant's retirement fund. The defendant's counsel indicated that he intended to call one of the older sons to testify "as to what went on in the household, and things like that." The plaintiff's counsel objected that the children should not be brought into the case for that purpose and told the defendant's counsel, "Don't start bringing witnesses in here like that." The defendant's counsel replied, "Don't yell at me like that. You know quite well that your client is much the difficulty that you might want to make my client to be, and I will not take to that." Another attorney was present who stated on behalf of the plaintiff's counsel that the plaintiffs counsel had no objection to the family relations officer's report, and that the plaintiffs counsel requested two weeks to file his formal demands. This attorney did not, however, file an appearance for the plaintiff and was not prepared to represent the plaintiff in any hearing with regard to the report.

Per Curiam. There is no error.

Arthur H. Healey, J. The sole issue on this appeal is whether the plaintiff is aggrieved by, and therefore has standing to appeal from, a probate court decree approving the sale of real estate that is part of a decedent's estate. The plaintiff appealed to the Superior Court from an order of the Probate Court for the district of Madison approving the sale at a continued hearing, giving the following "Reasons of Appeal": (1) The Probate Court conducted the continued hearing upon the application to sell the real estate prior to the announced time of that hearing without notice to the plaintiff; and (2) the plaintiff was thereby deprived of the opportunity of submitting to the court its offer to purchase those premises, although the purpose of continuing the original hearing was to afford it that very opportunity. The defendants DiSesa and Kilpatrick, who were executors of the will under which the real estate in question was being sold, moved to dismiss the appeal for the reason that the Superior Court lacked jurisdiction of the subject matter because the plaintiff is not an aggrieved party under General Statutes § 45-288. The motion to dismiss was granted and this appeal followed. Before deciding the motion to dismiss the trial court conducted an evidentiary hearing limited solely to the issue of the plaintiff's aggrievement, and, hence, standing to appeal under General Statutes § 45-288. Because the right to appeal from the decision of a Probate Court is statutorily conferred by § 45-288, the absence of aggrievement, as required by that statute, is a defect that deprives the Superior Court of jurisdiction to entertain the appeal. See Maloney v. Taplin, 154 Conn. 247, 250, 224 A.2d 731 (1966). Thus, the question before the trial court was whether, as a matter of fact, the plaintiff was aggrieved, a precondition to the right of appeal and the jurisdiction of the Superior Court. The trial court based its decision upon the following relevant facts: On January 18, 1979, at 11 a.m. a hearing was held at the Madison Probate Court on the defendants' application for approval of a sale-purchase agreement for certain real estate executed by the defendants with Strawberry Hill Associates. By a letter, dated December 20, 1978, the defendant DiSesa invited the real estate broker for the plaintiff in this transaction to attend the January 18, 1979 hearing, at which full opportunity would be given to that broker to submit an offer to purchase the real estate involved. That letter also assured the plaintiff's broker that "the best offer as determined by price, terms and conditions will be accepted at the hearing and a Court order for authority to sell entered accordingly." At the January 18 hearing, a representative of the plaintiff submitted a written proposal to buy; this proposal included a price, which was "considerably higher" than the offer presented by Strawberry Hill, and certain conditions of purchase. Because the conditions of the proposal were not "entirely clear" and, therefore, were unacceptable to the defendants, the hearing was continued for two weeks to January 31, 1979, to permit further negotiations between the plaintiff and the defendants. The presiding probate judge disqualified himself from further participation and another probate judge was designated to act in the matter. Thereafter, the parties met on two separate occasions to negotiate the conditions of purchase and, as a result, it was agreed that a firm offer to buy, together with a substantial deposit, would be submitted to the Probate Court at the continued hearing. The time of the continued hearing was assumed to be 11 a.m., the same hour as the original hearing, and this was positively confirmed by the plaintiff. Later, the acting judge advanced the hour to 9:30 a.m., as he had other commitments at the time the hearing was scheduled. The clerk was instructed to notify the parties concerned, but he notified only some. The plaintiff received no notice of the change in time. On January 30, 1979, the plaintiff's attorney informed the defendants of the contents of the offer to buy that Would be submitted the next day. The defendant Kilpatrick suggested that the offer, to be firm and acceptable to the Probate Court, should come from the principal and not its attorney. On January 31, 1979, the acting judge, when informed that all parties were not present and that there was some question about notice, continued the hearing from 9:30 a.m. to 10 a.m. When the hearing was opened at 10 a.m., a representative of the plaintiff explained the delay of the plaintiff's offer and stated that a firm offer was on its way and would be arriving "momentarily." The defendant Kilpatrick tried to have the hearing postponed for a short time pending the arrival of the plaintiff's offer, but the acting judge refused to delay the hearing any longer. He proceeded to conclude that Strawberry Hill's proposal was the only one before the court and then approved that offer. The hearing closed immediately, and within several minutes, the plaintiff's agent arrived with its offer, executed by an officer of the corporation. The defendant Kilpatrick was unsuccessful in his attempt to have the judge return to the courtroom and discovered that he had left the building. Attorney Senie, who was prepared to present the offer, was fully authorized to do so- on behalf of the plaintiff. No action was taken on the plaintiff's request for reconsideration, which was later presented to the acting judge. On appeal the plaintiff claims that the trial court erred in concluding from the facts found that it was not "aggrieved," within the meaning of General Statutes § 45-288, by the decision of the Probate Court approving the sale. We agree with the plaintiff. As noted above, under General Statutes § 45-288, an appeal may be taken from a decision of the Probate Court only by a person aggrieved by the deci sion or decree appealed from. The concept of standing, as presented by the question of aggrievement, "is a practical and functional one designed to assure that only those with a genuine and legitimate interest can appeal an order of the Probate Court." Hartford Kosher Caterers, Inc. v. Gazda, 165 Conn. 478, 484, 338 A.2d 497 (1973); see Gaucher v. Estate of Camp, 167 Conn. 396, 400, 355 A.2d 303 (1974). A person who seeks to appeal from an order of the Probate Court must set forth in his motion for appeal (1) the interest of the appellant in the subject matter of the decree or order appealed from or in the estate; see General Statutes § 45-293; and (2) the adverse effect of the decree or order on that interest. Hartford Kosher Caterers, Inc. v. Gazda, supra, 482. "A grievance to one's feelings of propriety or sense of justice is not a grievance which gives a right of appeal. Norton's Appeal, 46 Conn. 527, 528. On the other hand, the claim that to be aggrieved a plaintiff must have a pecuniary interest is too narrow a test to apply to appeals from probate." Stanley v. Stanley, 175 Conn. 200, 202, 397 A.2d 101 (1978); see Gaucher v. Estate of Camp, supra, 401; Hartford Kosher Caterers, Inc. v. Gazda, supra, 484; see also 1 Locke & Kohn, Conn. Probate Practice § 188. Instead, the existence of aggrievement depends upon "whether there is a possibility, as distinguished from a certainty, that some legally protected interest which [an appellant] has in the estate has been adversely affected." O'Leary v. McGuinness, 140 Conn. 80, 83, 98 A.2d 660 (1953); see Gaucher v. Estate of Camp, supra, 401; Hartford Kosher Caterers, Inc. v. Gazda, supra, 486. Moreover, it must appear that the interest which is adversely affected is a direct interest in the sub ject matter of the decree from which the appeal is taken. Bridgeport v. Steiber, 143 Conn. 720, 722, 126 A.2d 823 (1956); Williams v. Houck, 143 Conn. 433, 433, 123 A.2d 177 (1956); Weidlich v. First National Bank & Trust Co., 139 Conn. 652, 656, 96 A.2d 547, cert. denied, 346 U.S. 826, 74 S. Ct. 45, 98 L. Ed. 351 (1953). We must determine whether, under the facts found, the plaintiff had an interest in the proceedings below sufficient to confer upon it standing under General Statutes § 45-288. In Hartford Kosher Caterers, Inc. v. Gazda, supra, we held (p. 486) that a corporation that had bid on property of an estate and that was informed by the court that its offer would be approved but later was rejected by the court, had standing to appeal under § 45-288. We stated (pp. 485-86): "Hartford Kosher's status as the chosen potential purchaser under the [first] decree, while not the same as that of a party to a contract for the sale of land, does constitute an interest. This status and its attempted termination serve to distinguish this case from Kaskel v. Steinberg, 142 Conn. 379, 114 A.2d 853. If this status was terminated by the order of August 8, as Hartford Kosher pleaded, the result would constitute injury in fact sufficient to satisfy the requirements of aggrievement." As our holding in Hartford Kosher Caterers, Inc., clearly implied, the language of Kaskel v. Steinberg, supra, 384, that "[t]he only persons who are affected by an order approving the sale of property constituting an asset of an estate are those to whom the estate will be distributed, or creditors if the estate is insolvent," is far too narrow. While one who bids upon the property of an estate offered for sale has no interest in the property itself, he does have an interest in the proceedings employed by the court to approve the sale. It may be that a party appealing from an order of a probate court often has an interest in the estate itself, as a distributee or a creditor. But § 45-293 does not require the interest involved to be solely one in the estate itself. The plaintiff was invited by the executors of the estate to submit an offer for the purchase of estate property. It was informed that "the best offer as determined by price, terms and conditions will be accepted at the hearing." The plaintiff appeared at that hearing and submitted an offer "considerably higher" than the single other offer submitted by Strawberry Hill. Because the conditions of the offer were uncertain, however, the court continued the hearing for two weeks to permit further negotiations between the plaintiff and the defendants. At that point, the plaintiff was entitled to a fair procedure in the court in accordance with basic principles of due process. The property interests protected by the fourteenth amendment to the United States Constitution extend beyond the "ownership of real estate, chattels, or money," and may take many forms. Board of Regents v. Roth, 408 U.S. 564, 572, 576, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972). As the United States Supreme Court said in Roth (p. 577): "Property interests, of course, are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." See Millard v. Connecticut Personnel Appeal Board, 170 Conn. 541, 546, 368 A.2d 121 (1976). The court's order to continue the hearing to January 31, 1979, so that the plaintiff and the defendants could negotiate and arrive at mutually acceptable conditions clearly anticipated an opportunity for the plaintiff to submit an acceptable offer at that time. The decision to continue the hearing was based upon a mutual and explicit understanding of court and counsel and conferred upon the plaintiff the right to appear at that hearing at the time agreed upon, unless notified to the contrary. When a party to an action consents to a continuance it is understood that such a continuance will not be prejudicial to his interests. See 17 C.J.S., Continuances § 11; National Cooperative Hail Assn. v. Doran Bros., 121 Neb. 746, 748, 238 N.W. 527 (1931). This principle applies with equal force here. Once the continuance was granted and relied upon, it was not to be set aside without prior notice if to do so would cause injustice to either party. See Town of Portage v. Clifford, 254 Ind. 443, 450-51, 260 N.E.2d 566 (1970). The defendants argue that inasmuch as they were not required to obtain court approval of the sale under the terms of the will the plaintiff could not possibly have a protected interest in the proceedings voluntarily commenced by the defendants. The simple answer to this argument is that, while the defendants may have voluntarily initiated the judicial process, once having done so they were bound by the court procedures they invoked. The defendants state in their brief that they filed an application for court approval of the sale of an estate asset under General Statutes § 45-238. That section provides in part: "The court of probate may, upon the written application of . . . the exec ntor or trustee under any will admitted to probate by such court, . . . after public notice and such other notice as the court may order and after hearing, if it finds that to grant such application would be for the best interest of the parties in interest, authorize the sale . of the whole or any part of . . . any real estate in this state of any . . . deceased person . . . ." (Emphasis added.) In addition to the public notice given in this case, the defendants personally contacted the plaintiff's agent and invited an offer to purchase. This statute contemplates an open and fair sale in "the best interest of the parties in interest." If the defendants did not seek to sell the property in such a manner, they should not have commenced the judicial process that is devised to lead to that end. In sum, the filing of an application for the approval of the sale of an estate asset under General Statutes § 45-238 together with the executors' invitation to bid directed to the plaintiff conferred upon the plaintiff the right to offer to purchase that asset and to due process of law in the court approving that sale. When the plaintiff did not receive the process that was due to him under all the circumstances, he was injured in fact and aggrieved under General Statutes § 45-288. There is error, the judgment is set aside and the case is remanded with direction to overrule the defendants' motion to dismiss. In this opinion the other judges concurred. See Practice Book, 1978 § 194. General Statutes § 45-288 provides in part: "Any person, aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specially provided by law, may appeal therefrom to the superior court for the judicial district where such court of probate is held . . . ." This procedure is distinct from that which would be appropriate upon the filing of a motion to strike. The motion to strike tests only the legal sufficiency of the allegations of the motion to appeal. See General Statutes § 45-293; Practice Book, 1978 § 194 (probate appeals to proceed "in analogy to civil actions"). Thus, the question upon the filing of a motion to strike an appeal in a probate matter upon the ground of aggrievement is, assuming the truth of the allegations in the motion to appeal, whether those facts are sufficient, as a matter of law, to constitute aggrievement under the statute. If the allegations are sufficient, the court should proceed to determine in the course of the appeal whether the plaintiff has proved the truth of his allegations. See Hartford Kosher Caterers, Inc. v. Gazda, 165 Conn. 478, 483-84, 338 A.2d 497 (1973).

Bogdanski, J. The plaintiff, a foreclosed junior mortgagee, brought this action to recover the rental payments reported as dne but uncollected by a court-appointed receiver. Tbe defendant, the tenant in the foreclosed premises, filed a motion to strike alleging that the revised complaint was legally insufficient. The trial court granted the motion to strike concluding that the plaintiff had no standing or legal basis to support a claim against the defendant tenant. From the judgment rendered, the plaintiff has appealed. For the purposes of this appeal the following facts are not in dispute. On May 9, 1973, the New Haven Savings Bank (the bank) made a loan of $775,000 to the General Finance and Mortgage Company (General Finance). The loan was secured by a first mortgage on property located at 85 Washington Street, North Haven. On the same day General Finance executed a second mortgage to the plaintiff to secure a debt of $268,000. In November of 1974, the bank commenced a foreclosure of its mortgage on the Washington Street property. On February 11,1975, the court rendered a judgment of strict foreclosure and appointed a receiver of rents. Between February 11, 1975, and November 21, 1975, the defendant occupied the Washington Street property and agreed with the receiver that it would pay a monthly rental of $3666.66 for the nse of that property. The defendant made snch payments through the first half of August 1975. Title vested in the bank on November 18,1975. On January 15, 1976, the plaintiff moved that the receiver be ordered to file an accounting and that the net proceeds of the rents collected be paid to the plaintiff. The receiver thereafter filed an accounting showing the rents collected and those due but uncollected. The bank moved that the accounting be approved and that the net proceeds of the rents collected be paid to it. The trial court approved the accounting but denied the bank's motion. The court determined that the net rentals were due and payable to the plaintiff and ordered that all rents on hand be paid to the plaintiff. General Finance did not appeal that order. On the appeal brought by the bank, this court held that the trial court did not err in denying the bank's claim and in ordering the proceeds to be paid to the plaintiff. New Haven Savings Bank v. General Finance & Mortgage Co., 174 Conn. 268, 386 A.2d 230 (1978). During the pendency of the foreclosure proceedings, the defendant was represented by the same attorneys who represented General Finance. Since the principal officers of General Finance and the defendant were the same, the defendant had actual knowledge of the foreclosure proceedings at which the parties were at issue as to whom the rentals were payable. The $268,000 debt which was secured by the second mortgage to the plaintiff remains wholly unpaid except for the net rents actually collected by the receiver. The correctness of granting a motion to strike is determined upon the basis of the facts which may properly be proved under allegations of the revised complaint, and these are to be given the same favorable construction that the trier would adopt in admitting evidence under them. Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 545, 427 A.2d 822 (1980). The allegation that the Superior Court in the foreclosure proceedings determined that net rentals were due and payable to the plaintiff is sufficient to demonstrate that the plaintiff has an equitable interest in the rents owed by the defendant. Such an interest provides a sufficient legal basis to bring this action. There is error, the judgment is set aside and the case is remanded with direction to overrule the motion to strike. In this opinion the other judges concurred. The plaintiff, Beatrice Drazen, Executrix of the Estate of Charles E. Drazen, and First Bank, Trustee, are treated as one and the same. The original complaint, naming Barrie H. Drazen as the defendant, was amended to bring a second count against Thrifty's Home Centers, Inc., a Connecticut corporation of which the named defendant is the sole stockholder. The motion to strike was filed by the corporate defendant. For the purpose of deciding the defendant's motion to strike, the allegations contained in the plaintiff's revised complaint are deemed to have been admitted. Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 545, 427 A.2d 822 (1980). The plaintiff also alleged in its motion to reargue the granting of the defendant's motion to strike that the receiver was discharged from collecting further rents tendered to him and was never authorized to sue for rents uncollected. The effect of the trial court's action, therefore, was to preclude the collection of rents which had already been judicially determined to be due and payable to the plaintiff.

Per Curiam. There is no error.

Daly, J. The defendant appeals from the judgment of conviction, rendered after a jury trial, of attempted murder in violation of General Statutes § 53a-49 and 53a-54a, attempted robbery in the first degree in violation of General Statutes § 53a-49 and 53a-134 (a) (2) and assault in the first degree in violation of General Statutes § 53a-59 (a) (1). The defendant's sole claim on appeal is that the trial court erred in admitting into evidence shotgun shells taken from the top of a bureau in the room where he was arrested pursuant to a warrant. We find no error. The jury could reasonably have found the following facts: One evening in June of 1985, the victim and his girlfriend drove to the intersection of Andover and Fairfield Streets in Bridgeport to purchase a bottle of wine and a nickle bag of marihuana. Before the victim parked his car, a group of four or five black and hispanic males approached the driver's side of the car in an attempt to make a drug sale. While considering a purchase, the victim and his companion heard a male voice say "Get out of the car." Anticipating a robbery, the victim attempted to drive away. A shot was fired from the crowd which hit the victim in the left cheek. The police arrived and drove the victim to the hospital. Some two months later, the victim selected the defendant's photograph from a police array and, at trial, made an in-court identification of the defendant as the one who shot him. Another state's witness placed the defendant at the scene of the shooting, specifically at the driver's side of the victim's car. The witness also testified that the defendant ran away after the shot, carrying a sawed off shotgun. The defendant admitted selling marihuana to the victim but denied possessing a gun. He claimed that he was across the street at the time of the shooting, and that he fled upon hearing the shots fired. The police went to the home of the defendant's mother on the night of the shooting and were informed that the defendant was not at home. They returned the next morning with an arrest warrant for the defendant. They entered a bedroom occupied by the just-awakened defendant, who was only partially clad. While the defendant was getting dressed, an officer saw and seized three .12 gauge Remington cartridges on the top of a bureau which was across the room from the bed. An officer later cut one of the shells and found that it contained pellets which measured .3 centimeters, which was the same size as one of the pellets removed from the victim's cheek. The defendant testified that he lived with his mother on an intermittent basis, specifically when he was not residing with his girlfriend. At trial, the defendant objected to the admission of the shells, asserting that there was no evidence that he in fact possessed the shells or that the shells were linked to any specific gun. The defendant relies on State v. Alfonso, 195 Conn. 624, 633, 490 A.2d 75 (1985), for his argument that the state must prove beyond a reasonable doubt that he had possession or control over the shells in order for the shells to be admissible as evidence. Such reliance is misplaced. In that case, the defendant was charged with the crime of possession of cocaine and marihuana. Proof of dominion and control is a necessary element of that crime and, thus, it was incumbent on the state to make such proof beyond a reasonable doubt. Possession is not an element of the crime with which this defendant was charged. Therefore, in this case it was not necessary for the state to prove beyond a reasonable doubt that the defendant possessed the shells. Even if evidence is inconclusive, it may still be admissible if it tends to support a relevant fact even slightly, provided it is not unduly prejudicial or merely cumulative. State v. Morrill, 197 Conn. 507, 548, 498 A.2d 76 (1985). Evidence indicating that an accused possessed an article with which the particular crime charged may have been accomplished is relevant to show that the accused had the means to commit the crime. State v. Villafane, 171 Conn. 644, 675-76, 372 A.2d 82 (1976), cert. denied, 429 U.S. 1106, 97 S. Ct. 1137, 51 L. Ed. 2d 558 (1977); State v. DiStefano, 7 Conn. App. 726, 731, 510 A.2d 995 (1986); 1 F. Wharton, Criminal Evidence (13th Ed. Torcia) § 157, 211; 22A C.J.S., Criminal Law, § 611. " '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. . . . The Federal Rules of Evidence (§ 401) broadly define relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." ' " (Citations omitted.) State v. Villafane, supra, 674-75. Because no precise and universal test of relevancy is furnished by the law, the question of relevance must be determined in each case in accordance with reason and judicial experience. State v. Wilson, 178 Conn. 427, 437, 423 A.2d 72 (1979). In this case, the shotgun shells were recovered from the top of a bureau in what was admittedly the defendant's bedroom, at least on a part-time basis, in his mother's home. Moreover, the defendant was partially clad and asleep in the bedroom when the shells were seized. The fact that the shells were the same type as those used in the shooting, and were present in the defendant's bedroom at the time of the defendant's arrest, sufficiently connects the shells to the defendant to permit them to be admitted into evidence. See People v. Ramsey, 147 Ill. App. 3d 1084, 496 N.E.2d 1054 (1986). "The fact that [certain evidence] could not be positively linked to either the crime or the defendants affects the probative weight of the evidence and not its admissibility." Bailey v. State, 94 Nev. 323, 326, 579 P.2d 1247 (1978). "[T]he State does not have to establish that the evidence was positively in the possession of the accused in order for the instrumentality to be logically connected to the accused and admissible." Hudson v. State, 496 N.E.2d 1286, 1296 (Ind. 1986). We agree with the trial court that the shells were sufficiently connected to the defendant and were relevant to show that the accused had the means to commit the crime. They were, therefore, properly admitted into evidence. The fact that the shells were not positively identified as being from the gun used in the crime does not make the shells incompetent as evidence but merely goes to the weight of that evidence. State v. Wilson, supra; see also United States v. Poe, 462 F.2d 195, 198 (5th Cir. 1972). The trial court did not abuse its discretion in admitting the shells into evidence. There is no error. In this opinion the other judges concurred.

Peters, J. This case concerns the liability of an insurance company under a mortgage loss payable clause after the mortgagee's foreclosure on the insured property. The plaintiff mortgagee, Burritt Mutual Savings Bank, brought an action against the defendant, Transamerica Insurance Company, to recover $15,000, which was the amount of the adjusted value of the loss insured by the defendant. The defendant filed an answer, several special defenses, and a third-party complaint against three third-party defendants, Richard Y. Pizzuto, Ricky's Restaurant, Inc., • and the Connecticut Bank and Trust Company. The Connecticut Bank and Trust Company in turn filed a cross complaint against the other two third-party defendants, Pizzuto and Ricky's Restaurant, Inc. After trial to the court, Missal, J., judgment was rendered in the plaintiff's favor against the defendant Transamerica, and in the third-party plaintiff Transameriea's favor against Pizzuto; no judgment was rendered either for or against Connecticut Bank and Trust Com pany. Although notices of appeal were originally filed by all of the interested parties, only the appeal of the defendant Transameriea has been pursued in this court. There is little dispute about the underlying facts as contained in the findings of the trial court. Burritt Mutual Savings Bank (hereinafter Burritt Mutual) lent Richard V. Pizzuto $30,000 on January 7, 1971, and received in return a promissory note and a mortgage on real property located at 209-211 Whitney Street, Hartford. This property was then covered by a multiperil insurance policy issued by the defendant Transameriea Insurance Company (hereinafter Transameriea); Burritt Mutual's name was duly entered upon the insurance policy as first mortgagee, replacing previously designated mortgagees. Five months later, on June 17, 1971, while the policy was in full force and effect, a fire occurred on the premises causing substantial damage. Richard Pizzuto, the named insured and the mortgagor, hired a firm of insurance adjusters, and on October 15, 1971, the loss was adjusted in the amount of $15,000. Transameriea then issued a negotiable instrument for $15,000 payable jointly to Pizzuto, to the adjustment firm that had represented Pizzuto, and to Burritt Mutual. This instrument was delivered by the adjusters, with their indorsement, to Pizzuto, who indorsed his own name, and that of Ricky's Restaurant (an establishment that Pizzuto owned). The instrument also came to have the indorsement of Burritt Mutual, without the authorization of Burritt Mutual or any of its officers, employees or agents. The instrument was deposited by Pizzuto in the Connecticut Bank and Trust Company, which duly forwarded it for collection and payment. The instrument was in fact paid but Burritt Mutual never received any of the proceeds. Burritt Mutual did not discover that the mortgaged property had been damaged until July 28, 1971. Although it promptly notified A. T. Lindquist Agency, Transamerica's local agent, it did not communicate with Transameriea itself until July 21, 1972. When Burritt Mutual learned, in the process of this communication, that it had been designated as a payee on an instrument that it had not received, it repeatedly demanded payment of the fire loss from Transameriea. The fire loss resulted in a marked deterioration in the relationship between the value of the mortgaged property and the amount of the outstanding indebtedness, since the insured did not use the insurance proceeds received from Transameriea to repair the mortgaged property. Before the fire, when the mortgage loan was first executed in the amount of $30,000, the property had been valued at $42,000. After the fire, the indebtedness never fell below $29,500, while the value of the property diminished substantially, so that when foreclosure proceedings were instituted after default in September of 1972, the property was assessed at only $27,000. The foreclosure proceedings led to a judg ment of strict foreclosure in December of 1972, and the property was thereupon resold, the following April, at a price of $21,300, which, after deduction of costs, gave Burritt Mutual a net recovery of $19,826.53. Although Pizzuto's indebtedness at the time of foreclosure was adjudicated to have been $35,186.01, Burritt Mutual never made any effort to initiate a deficiency claim against Pizzuto. The fire in effect destroyed the lender's cushion of security and the debtor's equity of redemption. Transamerica's failure to get the insurance proceeds to Burritt Mutual in turn led to the foreclosure. Had Burritt Mutual been paid, it is not likely that Pizzuto would have permitted the foreclosure to proceed as it did. Burritt Mutual's cause of action is a suit for $15,000 on the basis of rights emanating from the multiperil insurance policy issued by Transamerica. It is not a suit on the negotiable instrument in that amount that was drawn by Transamerica. Presumably this choice of actions was determined by the fact that Burritt Mutual has consistently maintained, as the trial court found, that it had never received possession of this instrument. Burritt Mutual could not sue on an instrument on which it was neither holder nor transferee. Cf. General Statutes § 42a-3-804. The insurance clause that is at issue is a "standard" or "union" mortgage loss payable clause. This clause, in contradistinction to an "open" loss payable clause, creates a direct contractual relationship between the mortgagee and the insurer. Savings Bank of Ansonia v. Schancupp, 108 Conn. 588, 594-95, 144 A. 36 (1928); Collinsville Savings Society v. Boston Ins. Co., 77 Conn. 676, 680, 60 A. 647 (1905); 5A Appleman, Insurance Law and Practice (Rev. Ed.) § 3401. Transamerica does not dispute that at the time of the fire loss, the mortgage clause created rights in Burritt Mutual, and that this loss was thereafter appropriately adjusted in the amount of $15,000. Indeed Transamerica's issuance of its negotiable instrument in that amount, payable to Burritt Mutual as one of the joint payees, confirms its acknowledgement of the legitimacy of Burritt Mutual's initial claim. Transamerica argues instead that Burritt Mutual's subsequent procurement of a decree of strict foreclosure, without timely reservation of a deficiency claim against Pizzuto, extinguished both the mortgage debt and Burritt Mutual's entitlement to recovery as mortgagee under the mortgage clause. By contrast, Burritt Mutual maintains, as the trial court concluded, that its rights under the insurance contract vested when the fire loss was adjusted, and that those rights, in the amount of $15,000, were not subject to divestment. Although each position has some merit and some support in the case law, we have decided, under the facts of this case, to adopt an intermediate stance. Difficulties created by the language of the standard loss payable clause are, not surprisingly, at the heart of the claims that we must resolve. On the one hand, the clause states that "[l]oss . . . shall be payable to the mortgagee . as interest may appear under all present or future mortgages," and this wording indicates that extinction of its mortgage would be fatal to the mortgagee's claim. On the other hand, the clause goes on to state that "as to the interest of the mortgagee," the insurance shall not be invalidated "by my foreclosure . . . nor by my change in the title or ownership of the property," (emphasis added) and that wording lends support to the mortgagee's continued right to the insurance proceeds so long as it retains any interest, even ownership, in the insured property. Needless to say, if the wording is open to two or more reasonable constructions, the clause must, by familiar principles, be construed against the insurance company that was its draftsman. Roby v. Connecticut General Life Ins. Co., 166 Conn. 395, 402, 349 A.2d 838 (1974); Scranton v. Hartford Fire Ins. Co., 141 Conn. 313, 315, 105 A.2d 780 (1954); Restatement (Second), Contracts §232 (Tentative Draft, 1973). Insurance companies have had ample opportunity to note and to respond to the extensive and confusing case law that this clause has generated. It is useful first to examine the line of cases that has upheld the mortgagee's right to recover insurance proceeds despite foreclosure proceedings that discharged the mortgage indebtedness. The cases emphasize the independence of the contract created by the standard mortgage clause; some rely on language in 8 Couch on Insurance 2d (1961), § 37:1162, p. 670, that, under a standard mortgage clause, the mortgagee's "acquisition of title to the insured property is generally regarded as an increase of interest, rather than a change of ownership," to buttress their conclusion that the mortgagee continues to have an insurable interest. See, e.g., Nationwide Mutual Fire Ins. Co. v. Wilborn, 291 Ala. 193, 197, 279 So. 2d 460 (1973); Federal National Mortgage Assn. v. Hanover Ins. Co., 243 Ga. 609, 255 S.E.2d 685 (1979); City of Chicago v. Maynur, 28 Ill. App. 3d 751, 754, 329 N.E.2d 312 (1975); Federal National Mortgage Assn. v. Great American Ins. Co., 157 Ind. App. 347, 350, 300 N.E.2d 117 (1973); Federal National Mortgage Assn. v. Ohio Casualty Ins. Co., 46 Mich. App. 587, 590, 208 N.W.2d 573 (1973); Haskin v. Greene, 205 Or. 140, 147-48, 286 P.2d 128 (1955). Although in the cited cases the underlying facts ahont the relationship between the debt and the foreclosure sale are not always entirely clear, at least in Haskin, supra, the foreclosure sale had been for the full amount of the debt and the judgment, and yet recovery of insurance moneys was allowed. These cases permitting a mortgagee to claim insurance proceeds despite satisfaction, by foreclosure, of its mortgage and mortgage debt are all however distinguishable. Possibly it matters that they involve jurisdictions in which foreclosure is foreclosure by sale, rather than strict foreclosure; in at least one of the cases, City of Chicago v. Maynur, the time for redemption had not yet expired at the time of litigation. More significant is the relationship in timing between the foreclosure and the fire. In these reported cases, the foreclosure proceedings were initiated before the occurrence of the loss covered by the insurance. "[T]he amount bid at the foreclosure was for the property in an undamaged condition and the mortgagee required the insurance proceeds to restore the property to the condition it was in at the time of the foreclosure." City of Chicago v. Maynur, supra, 755. These eases therefore do not control the proper allocation of insurance proceeds when, as in the case before us, the fire antedates both default and foreclosure. The alternate line of cases limits the mortgagee's right to recover insurance proceeds to the extent that foreclosure proceedings have discharged the mortgage indebtedness. A leading case is Whitestone Savings & Loan Assn. v. Allstate Ins. Co., 28 N.Y.2d 332, 270 N.E.2d 694 (1971), in which the mortgagee who had made a bid equal to the full amount of the secured debt at the foreclosure sale in order to obtain the mortgaged property was held to have lost its insurable interest under a mortgage loss payable clause. This case, and other cases such as Calvert Fire Ins. Co. v. Environs Development Corporation, 601 F.2d 851, 856 (5th Cir. 1979) ; Insurance Co. of North America v. Citizens Insurance Co. of New Jersey, 425 F.2d 1180, 1182 (7th Cir. 1970); Rosenbaum v. Funcannon, 308 F.2d 680, 684-85 (9th Cir. 1962); Sea Isle Operating Corporation v. Hochberg, 198 So. 2d 336, 337 (Fla. App. 1967); Lembo v. Parks, 372 N.E.2d 1316, 1317 (Mass. App. 1978); Hellman v. Capurro, 92 Nev. 314, 549 P.2d 750 (1976); and Power Building & Loan Assn. v. Ajax Fire Ins. Co., 110 N.J.L. 256, 258, 164 A. 410 (1933), emphasize that insurance proceeds, with respect to a mortgagee, serve only as collateral security for payment of the underlying indebtedness, and that a mortgagee is entitled to no more than one satisfaction of his debt. Although, under a standard mortgage loss payable clause, neither foreclosure proceedings per se nor extinguishment of the mortgage by a foreclosure affects the insurer's liability to the mortgagee, "the full or partial extinguishment of the mortgage debt itself, whether prior to or subsequent to the loss, will preclude, to the extent thereof, any recovery on the policy by the mortgagee." 5A Appleman, Insurance Law and Practice § 3403, p. 302 (1970); 5 Couch on Insurance 2d §29:75-29:77 (1960). This second line of cases represents factual patterns that approximate the situation presented by the case before us, in that they deal with cases in which the loss has preceded the foreclosure. In these cases, as in ours, the foreclosure sale after the fire was a sale of property already damaged as to which, insurance proceeds were already in the contemplation of the parties. In Whitestone Savings & Loan Assn. v. Allstate Ins. Co., supra, the mortgagee argued, therefore, as does the mortgagee here, that its rights were determined at the time of the fire loss. To this argument, the court rejoined (p. 334): "What seems to have caused confusion is the equally well-settled rule that the rights under a fire insurance policy are fixed both as to amount and standing to recover at the time of the fire loss. From this rule it has been further and improperly deduced that the mortgagee could do nothing to impair his rights thus fixed at the time of loss. And of course he could: by waiver, estoppel, assignment, or as here by discharge of the debt." Although the cases cited involve foreclosure by sale, rather than strict foreclosure, we agree with the logic of their reasoning that satisfaction of the mortgage debt extinguishes a mortgagee's insurable interest under a mortgage loss payable clause. See Kligerman v. Union & New Haven Trust Co., 127 Conn. 622, 624-25, 18 A.2d 683 (1941); Moran v. Kenai Towing & Salvage, Inc., 523 P.2d 1237, 1239-40 (Alaska 1974); Lembo v. Parks, supra; 1 Jones, Mortgages § 396 (6th Ed. 1904). The trial court was therefore in error in concluding that Burritt Mutual was entitled to recover $15,000, the amount at which the fire loss was adjusted, without regard to the judgment of foreclosure. The question that remains to be resolved is whether, under the facts of the present case, it is correct to say that the foreclosure judgment should be deemed in law to represent a full satisfaction of the mortgage indebtedness. Professor Keeton cautions that "inequitable results may be produced if a court regards the debt as wholly satisfied when the mortgagee has in fact received less than full payment." Keeton, Basie Text on Insurance Law 188, n.4 (1971). Although Burritt Mutual's failure to seek a deficiency judgment in accordance with the procedural requirements of General Statutes § 49-14 prohibits further action against Pizzuto, the underlying debtor; Simsbury Bank & Trust Co. v. Ray Carlson Lumber Co., 154 Conn. 216, 219, 224 A.2d 544 (1966); there is no reason to apply this prohibition to Transameriea, against whom Burritt Mutual expressly reserved its rights in a series of letters in 1972, and who was not a party to the strict foreclosure. We cannot, on the record before us, determine whether or not Burritt Mutual has in fact received full payment. There is no specific finding about the mortgage debt at the time of the foreclosure, although the court's finding refers to Burritt Mutual's Exhibit E, the judgment of strict foreclosure, which found the mortgage debt to have been $34,869.16 and ordered payment of that amount with interest and costs. Transameriea relies on other findings that fix the indebtedness, at different times, in a lower amount. We cannot resolve this ambiguity. Nor is it self-evident what value should be assigned to the property that was foreclosed. The value that must be found is the value of the property at the time of foreclosure. There is no specific finding that determines this value. Burritt Mutual claims that the fair market value is to be taken as $19,826.35, the net amount it received on a private resale, but Transamerica was not a party to that resale, and cannot be bound by it; furthermore, that resale does not necessarily measure the value of the property at the right time. Our statutes provided a methodology for final and conclusive valuation of mortgaged property after foreclosure; General Statutes § 49-14 ; of which Burritt Mutual might have availed itself but did not. Cf. New Haven Savings Bank v. General Finance & Mortgage Co., 174 Conn. 268, 270-71, 386 A.2d 230 (1978); Simsbury Bank & Trust Co. v. Ray Carlson Lumber Co., supra, 219-20. Under these circumstances, we agree with Transamerica that Burritt Mutual is estopped from proving that the property was worth less than the $27,000 value found by the appraiser that it hired to pre pare an estimate for foreclosure purposes. Transamerica, which was not a party to this appraisal and which could not have invoked § 49-14, since it was not a party to the foreclosure, is entitled to an opportunity to demonstrate that the property at the time of appraisal was worth more than $27,000. Further proceedings are therefore required to resolve these underlying questions of fact to determine whether the appropriation by strict foreclosure of the mortgaged property has equitably satisfied the mortgage debt. In the event that Burritt Mutual can establish that it has not received full satisfaction from the judgment of foreclosure, it will have a right to recover its loss, pro tanto, from Transameriea. Transameriea in turn will be entitled to a recovery on its third-party complaint against Pizzuto. We have reviewed neither the findings of fact nor the conclusions of law reached by the trial court in the third-party action between Transamerica and Connecticut Bank and Trust Company. The trial court's memorandum of decision reserved, for a further hearing, the determination of factual questions relevant to that cause of action. Presumably because that factual hearing was never held, the trial court entered no judgment for or against Connecticut Bank and Trust Company, although its finding addresses the claims that were raised. Further proceedings will be required on this matter as well. There is error and the case is remanded for further proceedings in accordance with this opinion. In this opinion the other judges concurred. The appeal taken by the Connecticut Bank and Trust Company was dismissed, on motion, because of the absence of a final judgment with respect to it. There is a dispute between some of the parties as to whether the instrument, which was payable through the Fidelity Philadelphia Trust Company, was a draft or a check. For present purposes, the question is not relevant. Burritt Mutual had mortgage impairment insurance of its own, with another insurance carrier. That carrier was notified of Burritt's problem with the Transameriea insurance, and a claim under that insurance is still pending. The mortgage clause is part of the policy's section on conditions. Conditions are designated as part IX of the policy. The mortgage clause is paragraph C in the conditions. The policy itself was Exhibit C. It reads as follows: "Mortgage Clause: Applicable to buildings only (this entire clause is void unless name of mortgagee (or trustee) is inserted in the Declarations): Loss, if any, under this policy, shall be payable to the mortgagee (or trustee), named on the first page of this policy, as interest may appear under all present or future mortgages upon the property herein described in which the aforesaid may have an interest as mortgagee (or trustee) in order of precedence of said mortgages, and this insurance as to the interest of the mortgagee (or trustee) only therein, shall not be invalidated by any act or neglect of the mortgagor or owner of the within described property, nor by any foreclosure or other proceedings or notice of sale relating to the property, nor by any change in the title or ownership of the property, nor by the occupation of the premises for purposes more hazardous than are permitted by this policy: provided, that in case the mortgagor or owner shall neglect to pay any premium due under this policy, the mortgagee (or trustee) shall, on demand, pay the same. Provided also, that the mortgagee (or trustee) shall notify the Company of any change of ownership or occupancy or increase of hazard which shall come to the knowledge of said mortgagee (or trustee) and, unless permitted by this poliey, it shall be noted thereon and the mortgagee (or trustee) shall, on demand, pay the premium for such increased hazard for the term of the use thereof, otherwise this policy shall be null and void. The Company reserves the right to cancel this poliey at any time as provided by its terms, but in such case this poliey shall continue in force for the benefit only of the mortgagee (or trustee) for ten days after notice to the mortgagee (or trustee) of such cancellation and shall then cease, and the Company shall have the right, on like notice, to cancel this agreement. Whenever the Company shall pay the mortgagee (or trustee) any sum for loss under this poliey, and shall claim that, as to the mortgagor or owner, no liability therefor existed, the Company shall to the extent of such payment, be thereupon legally subrogated to all the rights of the party to whom such payment shall be made, under all securities held as collateral to the mortgage debt, or may at its option pay to the mortgagee (or trustee) the whole principal due or to grow due on the mortgage, with interest accrued and shall thereupon receive a full assignment and transfer of the mortgage and of all such other securities; but no subrogation shall impair the right of the mortgagee (or trustee) to recover the full amount of said mortgagee's (or trustee's) claim." Although. Transamerica's assignment of errors challenged the trial court's conclusion that Burritt Mutual had expressly reserved its claim to the fire loss proceeds, the brief on appeal does not address this issue and does not contest receipt of the letters from Burritt Mutual. This assignment of error is therefore deemed abandoned. Gould v. Rosenfeld, 178 Conn. 503, 506, 423 A.2d 146 (1979) ; O'Connor v. Dory Corporation, 174 Conn. 65, 70, 381 A.2d 559 (1977). General Statutes section 49-14 in pertinent part provided: "APPRAISAL OF MORTGAGED PROPERTY AFTER FORECLOSURE. DEFICIENCY judgment. Upon the motion of any party to a foreclosure, the court shall appoint three disinterested appraisers, who shall, under oath, within ten days after the time limited for redemeption has expired, appraise the mortgaged property and shall make written report of their appraisal to the clerk of the court where such foreclosure was had. . . . [S]uch appraisal shall be final and conclusive as to the value of such mortgaged property. The mortgage creditor, in any further action upon the mortgage debt, note or obligation, shall recover only the difference between the value of the mortgaged property as fixed by such appraisal and the amount of his claim; and the court in which such action is pending may, if such appraisal and report thereof have been made, render judgment for the plaintiff for the difference between such appraisal and the plaintiff's claim, provided application for such deficiency judgment has been made by the plaintiff within ninety days after the time limited for redemption has expired. . . ." Section 49-14 was repealed in 1979 because of this court's decision in Society for Savings v. Chestnut Estates, Inc., 176 Conn. 563, 577, 409 A.2d 1020 (1979) and has been superseded by Public Acts 1979, No. 79-110.