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The defendant's petition for certification for appeal from the Appellate Court, 33 Conn. App. 782 (AC 11438), is granted, limited to the following issue: The Supreme Court docket number is SC 14929. Ramona S. Carlow, special public defender, in support of the petition. John A. East III, deputy assistant state's attorney, in opposition. Decided May 12, 1994 "Did the Appellate Court properly conclude that a misstatement of the law on the duty to retreat imposed by General Statutes § 53a-19 (b) contained in the trial court's jury instruction was harmless beyond a reasonable doubt?"

Palmer, J. This appeal and cross appeal from a judgment of foreclosure requires us to decide whether the trial court properly: (1) imposed sanctions against the defendants Joan C. Ursini and Plymouth Commons Realty Corporation (Plymouth Realty) because their codefendant, Louis M. Ursini, refused to answer questions at his deposition; and (2) denied the plaintiffs motion to strike the defendants' jury claim. We conclude that the trial court properly denied the plaintiff's motion to strike the jury claim, but that it improperly imposed sanctions against Joan Ursini and Plymouth Realty. The facts may be summarized as follows. On February 21, 1990, the plaintiff, Northeast Sayings, F.A., initiated a foreclosure action against Louis Ursini, Joan Ursini and Plymouth Realty, alleging that Plymouth Realty had defaulted on a $1,000,000 note guaranteed by Louis Ursini and Joan Ursini and secured by a mortgage on certain rental property located in Plymouth. The defendants filed an answer and asserted six special defenses and a counterclaim. The counterclaim alleged that the plaintiff had: (1) breached its obligation to deal with the defendants in good faith by conspiring with another bank to terminate the lending relationship between the plaintiff and the defendants; (2) committed unfair and deceptive trade practices in violation of the Connecticut Unfair Trade Practices Act (CUTPA); General Statutes § 42-110a et seq.; (3) negligently failed to collect and manage the property's rental income as had been agreed by the parties; and (4) breached its fiduciary duty to the defendants by failing properly to collect and manage the property's rental income. The defendants filed a jury claim, which the plaintiff moved to strike on the ground that the defendants' counterclaim raised issues of law that required determination by a jury. On July 3,1991, Judge Satter denied the plaintiff's motion to strike the defendants' jury claim in accordance with Practice Book § 308. The plaintiff thereafter filed a motion for default, sanctions and judgment of dismissal of the defendants' counterclaim (motion for sanctions), alleging that Louis Ursini, while under oath at his deposition on July 9, 1991, had refused to answer certain of the plaintiff's questions and had responded to other questions in a false, misleading and evasive manner. On December 11, 1991, after a hearing on the motion, the trial court, Maloney, J., issued the following order: "Motion for default against [the] defendant Louis Ursini and non-suit on the counterclaim is granted for failure to respond to questions at deposition." Louis Ursini filed a timely motion to set aside the default and nonsuit, and the court, after a hearing on January 27, 1992, denied the motion. At the conclusion of that hearing, the trial court, on the request of plaintiff's counsel for a clarification of its December 11,1991 order, explained that the nonsuit and default applied to Joan Ursini and Plymouth Realty as well as to Louis Ursini. The plaintiff thereafter filed a motion for strict foreclosure. On July 29, 1992, Judge Satter rendered a judgment of foreclosure by sale. This appeal and cross appeal followed. I The defendants Joan Ursini and Plymouth Realty claim that the trial court improperly rendered a judgment of default and nonsuit against them for Louis Ursini's refusal to respond to questions posed to him at his deposition by the plaintiff's counsel. We agree. Practice Book § 231 provides in relevant part: "If any party has failed to . . . appear and testify at a deposition duly noticed pursuant to this chapter . . . the court may, on motion, make such order as the ends of justice require. Such orders may include the following: (a) The entry of a nonsuit or default against the party failing to comply . . . ." Although the trial court has broad discretion to fashion and impose sanctions for failure to comply with the rules of discovery; see Tessmann v. Tiger Lee Construction Co., 228 Conn. 42, 48, 634 A.2d 870 (1993); Eslami v. Eslami, 218 Conn. 801, 805-806, 591 A.2d 411 (1991); Practice Book § 231 authorizes the entry of a default or nonsuit against the party failing to appear or testify at a duly noticed deposition. Thus, Joan Ursini and Plymouth Realty may be held responsible for the conduct of Louis Ursini, and sanctioned accordingly, only if the evidence demonstrated that Louis Ursini was acting on behalf of Joan Ursini and Plymouth Realty when he refused to testify at his deposition. See Pavlinko v. Yale-New Haven Hospital, 192 Conn. 138, 147, 470 A.2d 246 (1984) (because administrator of decedent's estate acted as agent for estate's beneficiaries, dismissal of beneficiaries' action was appropriate due to administrator's refusal to respond to deposition questions); see also Securities & Exchange Commission v. Wencke, 577 F.2d 619, 622 (9th Cir. 1978) (court had authority to impose sanctions against one defendant for actions of another where record supported conclusion that latter had acted on behalf of former); Atlantic Cape Fisheries v. Hartford Fire Ins. Co., 509 F.2d 577 (1st Cir. 1975) (sanctions properly imposed against corporation for conduct of corporate president where corporation failed to demonstrate that it could not control president's conduct). Kidd Pipeline & Specialties, Inc. v. Campagna, 712 S.W.2d 238, 242 (Tex. App. 1986) (sanctions properly imposed against corporation for deposition conduct of corporation's president). The trial court, however, made no finding as to whether Louis Ursini's deposition conduct was properly attributable to Joan Ursini and Plymouth Realty. Rather, the court concluded that the imposition of a default and nonsuit against Joan Ursini and Plymouth Realty was the only way to vindicate the plaintiff's right to depose Louis Ursini in preparation of its defense to the claims raised by Joan Ursini and Plymouth Realty. We disagree. The fact that Louis Ursini might be called as a trial witness by Joan Ursini and Plymouth Realty is not alone a sufficient reason to impute to them the deposition conduct of Louis Ursini. In the absence of a determination by the trial court, supported by the evidence, that the conduct of Louis Ursini was attributable to Joan Ursini and Plymouth Realty, the imposition of sanctions against Joan Ursini and Plymouth Realty for Louis Ursini's conduct was improper. The plaintiff contends that the trial court acted within its discretion in entering a default and nonsuit against both Joan Ursini and Plymouth Realty because Louis Ursini was Joan Ursini's husband and the president of Plymouth Realty. The trial court, however, made no finding that Louis Ursini was married to Joan Ursini or that he was the president of Plymouth Realty, and there is insufficient evidence in the record of the hearings on the plaintiff's motion for sanctions to support such a conclusion. Moreover, even if the record of the proceedings below supported a finding by the trial court that Louis Ursini was Joan Ursini's husband and the president of Plymouth Realty, the court would have been required to determine whether, in these circumstances, Louis Ursini's relationship to Joan Ursini and Plymouth Realty warranted a further finding that his deposition conduct was properly attributable to them. The trial court made no finding, however, that Louis Ursini's conduct was attributable to Joan Ursini and Plymouth Realty, and the record does not provide a sufficient factual basis to conclude that the trial court impliedly made such a determination. Accordingly, we conclude that the case must be remanded for an evidentiary hearing so that the trial court may determine whether Louis Ursini's conduct at his deposition was properly attributable to Joan Ursini and Plymouth Realty. If the trial court so finds, the court must then determine what sanctions, if any, should be imposed against Joan Ursini and Plymouth Realty. II The plaintiff claims that the trial court improperly denied its motion to strike the jury claim. We disagree. Plymouth Realty and Joan Ursini concede that foreclosure actions are equitable in nature and, therefore, do not give rise to a right to a jury trial under article first, § 19, of the Connecticut constitution. See Skinner v. Angliker, 211 Conn. 370, 374, 559 A.2d 701 (1989); Texaco, Inc. v. Golart, 206 Conn. 454, 458, 538 A.2d 1017 (1988); Reynolds v. Ramos, 188 Conn. 316, 320, 449 A.2d 182 (1982). They claim, however, to have raised in their counterclaim issues of law that require determination by a jury. "When legal and equitable issues are combined in a single action, whether the right to a jury trial attaches depends upon the relative importance of the two types of claims. 'Where incidental issues of fact are presented in an action essentially equitable, the court may determine them without a jury in the exercise of its equitable powers. Doris v. McFarland, 113 Conn. 594, 608, 156 Atl. 52 [1931]. Where, however, the essential basis of the action is such that the issues presented would be properly cognizable in an action of law, either party has a right to have the legal issues tried to the jury, even though equitable relief is asked in order to give full effect to the legal rights claimed; Berry v. Hartford National Bank & Trust Co., 125 Conn. 615, 618, 7 Atl. (2d) 847 [1939]; LaFrance v. LaFrance, 127 Conn. 149, 152, 14 Atl. (2d) 739 [1940] . . . .' National Bank of Commerce v. Howland, 128 Conn. 307, 310, 22 A.2d 773 (1941). Because a counterclaim is an independent action; see Home Oil Co. v. Todd, 195 Conn. 333, 341, 487 A.2d 1095 (1985); the question presented is whether the defendants' counterclaim is essentially legal or essentially equitable. See Franchi v. Farmholme, Inc., [191 Conn. 201, 211, 464 A.2d 35 (1983)]; Flanigan v. Foley, 20 Conn. Sup. 12, 13, 119 A.2d 741 (1955). This analysis must be performed in the context of the pleadings when read as a whole. Franchi v. Farmholme, Inc., supra. The form of the relief demanded is not dispositive. Fitzgerald v. Sullivan, 12 Conn. Sup. 206, 206-207 (1943)." United States Trust Co. v. Bohart, 197 Conn. 34, 45, 495 A.2d 1034 (1985). The trial court, on application of these principles, determined that the defendants' counterclaim is essentially legal in nature and, therefore, gives rise to a right to a jury trial. The plaintiff does not seriously contest the trial court's determination that the defendants have asserted several legal issues in their counterclaim. Indeed, the defendants' counterclaim seeking damages for breach of contract, breach of fiduciary duty and negligence is indisputably legal in nature. The plaintiff argues, rather, that the defendants are not entitled to a jury trial on their counterclaim because the foreclosure action is an equitable one. This argument, however, misapplies the test set out in United States Trust Co. v. Bohart, supra, 197 Conn. 45, for determining when a legal counterclaim may be tried to a jury. We conclude that the trial court properly applied that test in determining that the defendants' legal counterclaim is triable to a jury and, therefore, that the court properly denied the plaintiff's motion to strike the defendants' jury claim. The judgment is reversed and the case is remanded for an evidentiary hearing on the plaintiffs motion for sanctions against Joan Ursini and Plymouth Realty. In this opinion the other justices concurred. Louis M. Ursini has not appealed from the judgment of default and non-suit and is not, therefore, a party to this appeal. The following defendants were also defaulted and are not parties to this appeal: Shared Development Limited Partnership; Linda J. Albert; Chin Ki Cheng; Denise Sturgeon; EWR, Inc.; Chun Kun Lee; Charles Kapros; George Kapros; Chris Sullivan; Timothy Sullivan; Thomas J. Makara; David Smith; and Pauline Demora. Hereinafter, we will refer to Plymouth Realty, Joan Ursini and Louis Ursini as the defendants. Practice Book § 308 provides: "cases presenting both legal and EQUITABLE ISSUES "A case presenting issues both in equity and law may be claimed for the jury list, but, unless the court otherwise orders, only the issues at law shall be assigned for trial by the jury. Whenever such an action has been placed upon the docket as a jury case, no determination of the equitable issues raised by the pleadings shall prevent a jury trial of the claim for damages, unless both parties agree in writing to waive a jury, or unless the determination of the equitable issues has necessarily adjudicated all the facts upon which the claim for damages rests." Neither Joan Ursini nor Plymouth Realty challenge the trial court's finding that Louis Ursini had failed to respond to the plaintiff's questions at his deposition. On October 5,1992, the trial court, Maloney, J., issued an articulation of his order of default and nonsuit against the defendants. Plymouth Realty and Joan Ursini appealed and the plaintiff cross appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal and cross appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). The plaintiff argues that Joan Ursini and Plymouth Realty did not properly raise this claim before the trial court and, therefore, that they should not be permitted to seek review of this issue on appeal. The plaintiff did not, however, specifically allege that Louis Ursini's deposition conduct was attributable to Joan Ursini and Plymouth Realty until the January 27,1992 hearing on Louis Ursini's motion to vacate the sanctions imposed against him. The defendants immediately requested the opportunity to brief the issue, prior to the trial court's ruling, but their application to do so was denied. In these circumstances, we cannot say that Joan Ursini and Plymouth Realty have waived their right to raise this claim. The plaintiff concedes that the only suggestion in the record that Louis Ursini was married to Joan Ursini is the sheriffs return of service of the summons and complaint, which notes that Louis Ursini and Joan Ursini had been served at the same address. Similarly, the only indication that Louis Ursini was the president of Plymouth Realty consists of the sheriff's return, which states that Louis Ursini had been served in his individual capacity and as president of Plymouth Realty, along with certain loan documents, attached as exhibits to the complaint, which bear Louis Ursini's signature as president. None of these documents, however, was introduced into evidence or was, as far as the record shows, relied on by the trial court at any of the proceedings on the plaintiff's motion for sanctions. Finally, the record is devoid of any other evidence as to whether Louis Ursini was married to Joan Ursini or was president of Plymouth Realty at the time of his deposition. The plaintiff claims that we may affirm the decision of the trial court on the alternate ground that each of the defendants' six special defenses is deficient as a matter of law. Although the plaintiff filed a motion to strike three of the defendants' special defenses, the plaintiff did not challenge the legal sufficiency of the remaining special defenses in the trial court. We therefore do not address the plaintiff's claim. Practice Book § 4185; see Passamano v. Passamano, 228 Conn. 85, 90-91 n.8, 634 A.2d 891 (1993). The plaintiff raises this issue pursuant to Practice Book § 4013 (a) (1) (B), which provides that any appellee may present for review adverse rulings or decisions of the court that should be reviewed in the event that a new trial is ordered. The plaintiff relies on dictum in Savings Bank of New London v. Santaniello, 130 Conn. 206, 211, 33 A.2d 126 (1943), for the proposition that the defendants, by raising their legal claims as a counterclaim in the plaintiff's equitable action rather than filing a separate suit, have waived their right to a jury trial. To the extent that our dictum in Savings Bank of New London is inconsistent with the principles set forth in our subsequent cases; see, e.g., Texaco, Inc. v. Golart, supra, 206 Conn. 458-59; United States Trust Co. v. Bohart, supra, 197 Conn. 44-45; we decline to follow it. Of course, the defendants are entitled to a jury trial only on their legal counterclaim and not on the foreclosure action. In the event of a new trial, therefore, the trial court must determine whether to conduct the trial of the legal and equitable claims jointly or separately. We note that as a general matter, a joint trial of the legal and equitable claims will often serve the interest of judicial economy. That interest, however, must be weighed against the parties' interest in an expeditious determination of the foreclosure action. See General Statutes § 52-192 ("foreclosure cases . . . shall have precedence over all other civil actions in respect to the order of trial"). Because we vacate the judgment of default entered against Joan Ursini and Plymouth Realty, we do not address the issues raised by the plaintiff on its cross appeal concerning the trial court's rulings on the plaintiff's motion for judgment of strict foreclosure.

Palmer, J. This case requires us to decide whether General Statutes § 10-76a and 10-76d establish a state constitutional right to special education for gifted children. The plaintiffs, Neil Broadley and Deborah Broadley, brought this action seeking a declaratory judgment determining the plaintiffs right to special education. The trial court granted the motions for summary judgment of the defendants, the Meriden board of education, the Connecticut state board of education and the commissioner of education, Gerald Tirozzi, con- eluding that gifted children do not have a right to special education under the Connecticut constitution. The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm the judgment of the trial court. The material facts are not in dispute. The plaintiff resides in the city of Meriden and attends public school there. The defendant Meriden board of education (school board) is responsible for providing education to children who reside in the city of Meriden. In 1986, when the plaintiff was in kindergarten, he was identified by his school as gifted. Since that time, his parents have demanded that the school board provide him with a program of special education designed to meet his individual needs. Although the plaintiff has received some individualized attention in addition to his school's regular educational program, the school board has refused to provide the plaintiff with an individualized program of special education. Each year, the plaintiff has become bored and frustrated with school. The plaintiff contends that he has a state constitutional right to receive a program of education specially designed to meet his individual needs as a gifted child. His constitutional claim is based upon the statutes that establish a program of special education for certain Connecticut schoolchildren. General Statutes § 10-76a et seq. That statutory scheme identifies a category of "exceptional" children who need a program of special education because they deviate "either intellectually, physically, socially or emotionally so markedly from normally expected growth and development patterns" that they are or "will be unable to progress effectively in a regular school program . . . ." General Statutes §10-76a(c). This category of exceptional children includes two groups: (1) children whose rate of development is impeded by a disability (children with disabilities); and (2) gifted children, whose rate of development is enhanced by their extraordinary learning ability or outstanding artistic talent. General Statutes §10-76a(e). Special education is statutorily required, however, only for children with disabilities; General Statutes § 10-76d (b); and not for gifted children, who may be provided with a program of special education at the option of the local school board. General Statutes § 10-76d(c). The plaintiff claims that: (1) the legislature, by classifying gifted children as among those children who are unable to "progress effectively" without special education, has created for those children the right to special education under article eighth, § 1, of the Connecticut constitution; and (2) gifted children have a right to special education commensurate with that of children with disabilities under article first, § 1 and 20, of the Connecticut constitution. We do not agree. I Connecticut schoolchildren have a state constitutional right to an education in our free public elementary and secondary schools. Conn. Const., art. VIII, § 1; see Campbell v. Board of Education, 193 Conn. 93, 105, 475 A.2d 289 (1984); Horton v. Meskill, 172 Conn. 615, 647, 376 A.2d 359 (1977). The plaintiff concedes, however, that the Connecticut constitution does not, standing alone, afford gifted children the right to a program of special education. He also concedes that gifted children have no state statutory right to special education, because the legislature has not mandated such a course of study for gifted pupils. The plaintiff claims, rather, that his fundamental right to a free public education includes the right to a program of special education that enables him to "progress effectively," as that term is used in General Statutes § 10-76a (c), because the legislature has acknowledged that gifted children cannot achieve effective progress without a program of special education. We reject the plaintiff's argument because it is contrary to the intent and purpose of the statutory scheme. "The meaning to be given a statute is determined by legislative intent and that legislative intent must be determined by language actually used in the legislation." Eason v. Welfare Commissioner, 171 Conn. 630, 634, 370 A.2d 1082 (1976), cert. denied, 432 U.S. 907, 97 S. Ct. 2953, 53 L. Ed. 2d 1079 (1977); Demar v. Open Space & Conservation Commission, 211 Conn. 416, 425, 559 A.2d 1103 (1989). In determining the meaning of a statute, "the statute must be considered as a whole, with a view toward reconciling its separate parts in order to render a reasonable overall interpretation." American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 193, 530 A.2d 171 (1987); Demar v. Open Space & Conservation Commission, supra. Moreover, "the legislature is presumed to have intended a reasonable, just and constitutional result"; Sanzone v. Board of Police Commissioners, 219 Conn. 179, 187, 592 A.2d 912 (1991); Moscone v. Manson, 185 Conn. 124, 128, 440 A.2d 848 (1981); and "we will search for an effective and constitutional construction that reasonably accords with the legislature's underlying intent." Bartholomew v. Schweizer, 217 Conn. 671, 675-76, 587 A.2d 1014 (1991). Applying these well established rules of statutory construction to our special education statutes, we conclude that the legislature did not intend to create a right to special education for gifted children. Although the language of § 10-76a (c) includes gifted children as among those exceptional children who do not "progress effectively" without special education, § 10-76d (b) and (c) manifest the unambiguous intent of the legislature that special education is mandatory only for children with disabilities and not for gifted students. Indeed, there is not the slightest suggestion in the legislative history of the special education statutes that the legislature, in establishing a program of special education, sought either to define the parameters of the state constitutional right to a free public education, or to constitutionalize any particular kind of educational program for exceptional children. We are obligated, moreover, to uphold the constitutionality of a statute when we may reasonably do so in a manner consistent with the intent of the legislature. Bartholomew v. Schweizer, supra, 217 Conn. 675-76. In these circumstances, when neither the legislature nor the framers of our constitution have vested in gifted children any right to an individualized education program, we cannot conclude that the plaintiffs right to a free public education under article eighth, § 1, of the Connecticut constitution includes a right to a special education program. II The plaintiff next argues that the legislature's failure to mandate a program of special education for gifted children violates the plaintiff's rights under the equal rights provision, article first, § 1, and the equal protection provision, article first, § 20, of the Connecticut constitution. This claim is also without merit. The equal protection provisions of our state constitution require "the uniform treatment of persons standing in the same relation to the governmental action questioned or challenged." Reynolds v. Sims, 377 U.S. 533, 565, 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964); Franklin v. Berger, 211 Conn. 591, 594, 560 A.2d 444 (1989). We recognize, however, that the legislature has broad discretion in the exercise of its power to legislate, and that "[i]n areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." Federal Communications Commission v. Beach Communications, Inc., U.S. , 113 S. Ct. 2096, 2101, 124 L. Ed. 2d 211 (1993); State v. Reed, 192 Conn. 520, 531, 473 A.2d 775 (1984). The plaintiff acknowledges that the needs and abilities of gifted children and children with disabilities are sufficiently different that the legislature could reasonably have decided to treat them differently. He contends, nonetheless, that because the legislature has identified a characteristic common to both groups, namely, the need for special education in order to "progress effectively" in school, gifted children and children with disabilities are equally entitled to receive a program of special education under the state constitution. This argument, however, ignores the concededly significant differences between the two groups of students that inform the legislative decision to mandate a program of special education for children with disabilities but not for gifted children. As long as the disparate treatment is, as here, rationally based, we may not judge the wisdom, desirability or logic of the legislative determination; Heller v. Doe, U.S. , 113 S. Ct. 2637, 2642, 125 L. Ed. 2d 257 (1993); Federal Communications Commission v. Beach Communications, Inc., supra, 113 S. Ct. 2101; even where the legislature has not expressly articulated the purpose or rationale underlying its enactment. Nordlinger v. Hahn, U.S. , 112 S. Ct. 2326, 2334, 120 L. Ed. 2d 1 (1992). We conclude, therefore, that our special education statutes do not violate the plaintiffs state constitutional right to the equal protection of the law. The judgment is affirmed. In this opinion the other justices concurred. General Statutes § 10-76a provides in relevant part: "(c) An 'exceptional child' means a child who deviates either intellectually, physically, socially or emotionally so markedly from normally expected growth and development patterns that he or she is or will be unable to progress effectively in a regular school program and needs a special class, special instruction or special services. . . . "(e) 'Children requiring special education' includes any exceptional child who (1) is mentally retarded, physically handicapped, autistic, traumatically brain injured, socially and emotionally maladjusted, neurologically impaired, or suffering an identifiable learning disability which impedes such child's rate of development, which disability is amenable to correction or which rate of development may be improved by special education, or (2) has extraordinary learning ability or outstanding talent in the creative arts, the development of which requires programs or services beyond the level of those ordinarily provided in regular school programs but which may be provided through special education as part of the public school program. . . ." General Statutes § 10-76d provides in relevant part: "(b) In accordance with the regulations of the state board of education, each local and regional board of education shall: (1) provide special education for school-age children requiring special education who are described in subdivision (1) of subsection (e) of section 10-76a. . . . "(c) Each local or regional board of education may provide special education for children requiring it who are described by subdivision (2) of subsection (e) of section 10-76a and for other exceptional children for whom provision of special education is not required by law. . . ." General Statutes § 10-76a (a) provides: " 'Special education' means specially designed instruction developed in accordance with the regulations of the commissioner, subject to approval by the state board of education offered at no cost to parents or guardians, to meet the unique needs of a child with a disability, including instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings and instruction in physical education and special classes, programs or services, including related services, designed to meet the educational needs of exceptional children." Section 10-76d-ll of the Regulations of Connecticut State Agencies directs each local board of education to "establish policies and procedures for developing, implementing, reviewing, maintaining and evaluating an individualized education program for each child requiring special education and related services. ." Section 10-76a-l (k) of the Regulations of Connecticut State Agencies defines "[individualized education program" as "a separate written plan for each child which shall be developed by a planning and placement team to meet the needs of each child requiring special education and related services." For purposes of this opinion, "gifted children" refers to those children identified in General Statutes § 10-76a(e) (2). Deborah Broadley is Neil Broadley's mother. For purposes of this opinion, we will refer to Neil Broadley as the plaintiff. The trial court also granted the motion for summary judgment of the Waterbury board of education against Timothy Croce, a Waterbury public school student, and his parents. Timothy Croce and his parents have not appealed from the judgment of the trial court, and, therefore, neither they nor the Waterbury board of education are parties to this appeal. 'In evaluating the propriety of a summary judgment, we are confined to an examination of the pleadings and affidavits of the parties to determine whether (1) there is no genuine issue as to any material fact, and (2) the moving party is entitled to judgment as a matter of law." State v. Hossan-Maxwell, Inc., 181 Conn. 655, 657 n.1, 436 A.2d 284 (1980). Because the material facts are not in dispute, the sole issue in this appeal is whether the judgment of the trial court is correct as a matter of law. For purposes of this opinion, "children with disabilities" refers to those children identified in General Statutes § 10-76a (e) (1). See footnote 1. Article eighth, § 1, of the Connecticut constitution provides: "There shall always be free public elementary and secondary schools in the state. The general assembly shall implement this principle by appropriate legislation." Article first, § 1, of the Connecticut constitution provides: "All men when they form a social compact, are equal in rights; and no man or set of men are entitled to exclusive public emoluments or privileges from the community." Article first, § 20, of the Connecticut constitution provides: "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 term "progress effectively" is not defined in either the special education statutes or the regulations promulgated thereunder. That the legislature did not intend to create any entitlement to special education is also reflected in the legislative history of our special education statutes. See 12 S. Proc., Pt. 4, 1967 Sess., pp. 1959-61; 12 H.R. Proc., Pt. 10, 1967 Sess., pp. 4798-4801. For example, Representative Mary B. Griswold, testifying in favor of the special education legislation, stated: "For the gifted children, this bill allows towns to give voluntary special education but it does not mandate this." (Emphasis added.) 12 H.R. Proc., Pt. 10, 1967 Sess., p. 4799. Having decided that the legislature did not intend to create a right to special education for gifted children under article eighth, § 1, of the Con necticut constitution, we need not address the question of whether the legislature, consistent with the separation of powers provisions of article second of our state constitution, could have created a constitutional right to special education for gifted children through legislation rather than by constitutional amendment pursuant to article twelfth of the state constitution. "The equal protection provisions of the federal and state constitutions have the same meaning and limitations." Keogh v. Bridgeport, 187 Conn. 53, 66, 444 A.2d 225 (1982); Franklin v. Berger, 211 Conn. 591, 594 n.5, 560 A.2d 444 (1989). Statutes impinging upon fundamental rights or establishing suspect classifications "are subjected to strict scrutiny and will be sustained only if they are suitably tailored to serve a compelling state interest." Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 440, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985); Horton v. Meskill, supra, 172 Conn. 640. We have already determined, however, that the plaintiff's fundamental right to an education in the free public elementary and secondary schools of this state does not include the right to a program of special education; see part I; and the plaintiff does not claim that gifted students comprise a suspect class. We must determine, therefore, only whether the distinctions drawn by the challenged legislation bear some rational relationship to a legitimate state interest. Federal Communications Commission v. Beach Communications, Inc., supra, 113 S. Ct. 2101; State v. Reed, supra, 192 Conn. 531.

The plaintiff's petition for certification for appeal from the Appellate Court, 34 Conn. App. 201 (AC 12676), is denied.

The defendant's petition for certification for appeal from the Appellate Court, 33 Conn. App. 714 (AC 12192), is denied.

The petition of the plaintiff Connecticut Association of Child Caring Agencies for certification for appeal from the Appellate Court (AC 12986) is denied.

The petitioner Douglas Johnson's petition for certification for appeal from the Appellate Court, 34 Conn. App. 153 (AC 12146), is denied.

The plaintiff's petition for certification for appeal from the Appellate Court, 33 Conn. App. 501 (AC 12118), is denied.

Borden, J. The dispositive issue of this appeal is the applicability of the general verdict rule. The jury's handwritten verdict stated that the plaintiffs' claims were "inconclusive," but did not specifically mention the defendants' special defense. On the basis of this verdict, the trial court rendered judgment in favor of the defendants. The plaintiffs appealed to the Appellate Court, which applied the general verdict rule and affirmed the judgment of the trial court. Gajewski v. Pavelo, 32 Conn. App. 373, 629 A.2d 465 (1993). We granted the plaintiffs' petition for certification to appeal. We now reverse the judgment of the Appellate Court. The Appellate Court recounted the following facts and procedural history: "The plaintiffs' [Maria Gajewski, Jan Gajewski and Janusz Gajewski] amended complaint consisted of ten counts, essentially involving three causes of action, a product liability claim against Utica Radiator Corporation (Utica) arising out of its manufacture of a gas fired boiler, a negligence claim against two employees of the city of Bridgeport, Joseph Savino and Guido Vagnini, for failure to inspect or to make reasonable efforts to inspect the installation of the boiler, and an indemnification claim against the city of Bridgeport pursuant to General Statutes § 7-465. Utica denied that its gas fired boiler filled the Gajewski residence with dangerous and toxic levels of carbon monoxide that allegedly caused serious, painful and permanent injuries to the plaintiffs. Utica also denied that it introduced its boilers into the stream of commerce, that its products were expected to reach consumers without substantial change, and that one of its boilers had reached the plaintiffs' household without substan tial change. Utica denied that its boiler was a defective and unreasonably dangerous product and also denied that it had failed to provide proper instructions for installation, had failed to warn the plaintiffs adequately of various dangers arising from use of the boiler and had failed to design a safe product. Further, Utica denied that the plaintiffs' injuries were proximately caused by its allegedly defective gas boiler. Utica's answer also raised two special defenses, one claiming that any injuries sustained by the plaintiffs were caused by their own negligence and carelessness, and the other claiming that the amount of any verdict against Utica should be reduced by any amounts paid or agreed to be paid by any present or prior defendants to the action. Utica filed a cross claim against the Southern Connecticut Gas Company and the city of Bridgeport for indemnification and filed a cross claim against all the codefendants for contribution pursuant to General Statutes § 52-572o. Southern Connecticut Gas Company denied all cross claims by Utica. "The plaintiffs' negligence claim against the two city employees was based on the failure to inspect, to make provisions to inspect, to warn and to establish standards for inspection. The plaintiffs alleged that, as a result of the city employees' negligence and carelessness, the plaintiffs sustained their injuries. The individual defendants and the city denied all allegations of negligence and denied that any failure to act was the proximate cause of the plaintiffs' injuries. The individual defendants and the city of Bridgeport also raised four special defenses. The defenses claimed were sovereign immunity, contributory negligence, immunity provided by General Statutes § 52-557n, and that any verdict against them should be reduced by any amounts paid by Southern Connecticut Gas Company and Arthur Pavelo, the installer of the boiler. They also filed a counterclaim against Jan Gajewski for indemnification claiming that he was primarily liable for the plaintiffs' injuries because he failed to clean his chimney when advised to do so, replaced a door to the furnace room when advised not to do so and failed to respond to notices calling for inspection of the furnace. "The jury heard evidence that in the fall of 1981 the plaintiffs had a gas fired boiler manufactured by Utica installed in their residence by Pavelo. The plaintiffs had previously used an oil fired boiler, which generated a buildup of soot in the chimney flue. At the time of installation, Pavelo, a licensed plumber, cleaned the chimney sufficiently to render the furnace operational. The plaintiffs were advised by Pavelo, prior to the installation of the boiler, of the necessity of having the chimney thoroughly cleaned but were never directly warned of the necessity by Utica. "On January 9, 1982, Maria was found unconscious in her home. Her husband, Jan, and adult son, Janusz, were found semiconscious. They were diagnosed as having carbon monoxide poisoning. The poisonous gases resulted from a buildup of soot in the chimney flue. This buildup prevented proper ventilation of the boiler. At no time prior to January 9, 1982, was the installation of the boiler inspected by the employees of the city of Bridgeport or the gas company, although they had attempted to make appointments for inspection with the plaintiffs. Jan and Janusz substantially recovered from the poisoning. Maria suffered permanent total disability of her nervous system manifested as cognitive impairment and difficulty with speech, coordination and gait. She also experiences bouts of depression due to her condition. "Prior to jury deliberation, all parties had agreed that verdict forms and interrogatories were necessary in this case because of its complex nature, and had essentially agreed as to their wording and content. The parties, however, had not finished preparing their interrogatories and verdict forms when the court began its charge to the jury during the late morning of November 27,1991. The court stated in its charge that it anticipated that there would be interrogatories and verdict forms by the time afternoon deliberations began. Deliberations were over, however, later that same afternoon before the interrogatories or verdict forms were available. No objection was made by the plaintiffs or the defendants to the court's allowing the jury to deliberate without them. The jury returned a handwritten verdict that read: 'We, the jury, based upon the evidence presented to us, unanimously agree that all claims against the defendants: The Utica Radiator Corp., The City of Bridgeport et al., and Southern New England Gas Co. are inconclusive. We, therefore, find them not liable for the injuries sustained in the suit brought by the Gajewski family.' The trial court accepted the verdict and rendered judgment 'in favor of Utica Radiator Corporation, the city of Bridgeport, Joseph Savino, Guido Vagnini, and Southern Connecticut Gas Company, and that the plaintiffs recover no damages of said defendants.' " Gajewski v. Pavelo, supra, 32 Conn. App. 375-79. The plaintiffs appealed to the Appellate Court, claiming that the jury instructions were so confusing that they provided inadequate guidance to the jury. The defendants contended that the general verdict rule precluded review of the plaintiffs' claims, and also, inter alia, that the jury instructions were proper. Id., 375. The Appellate Court agreed that the general verdict rule applied, and affirmed the judgment of the trial court. The general verdict rule provides that " 'if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party.' " Curry v. Burns, 225 Conn. 782, 786, 626 A.2d 719 (1993); see, e.g., Stone v. Bastarache, 188 Conn. 201, 204, 449 A.2d 142 (1982). The Appellate Court concluded that the general verdict rule applied because the defendants had denied the plaintiffs' cause of action and pleaded special defenses, and because the plaintiffs' failure to object to jury deliberation without interrogatories was the functional equivalent of a failure to request interrogatories. Gajewski v. Pavelo, supra, 32 Conn. App. 381-82. In interpreting the verdict, the Appellate Court reasoned: "[T]he jury could have found for the defendants because it either concluded that no one of the defendants was the proximate cause of the plaintiffs' injuries or that the plaintiffs were contributorily negligent in excess of 50 percent in the actions grounded in negligence or that the compara tive responsibility provisions of General Statutes § 52-572o were inapplicable because the plaintiffs were totally responsible for their injuries." Id., 383. Applying the general verdict rule, the Appellate Court concluded that the verdict for each defendant need not be disturbed and that, therefore, it was not necessary to reach the other claims of error relating to the jury charge. Id., 383. This appeal followed. The plaintiffs claim that the general verdict rule does not apply in the circumstances of this case because the jury stated the basis for its verdict, just as if an appropriate interrogatory had been posed. We agree. Under the general verdict rule, " 'if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party.' " Curry v. Burns, supra, 225 Conn. 786. Thus, in a case in which the general verdict rule operates, if any ground for the verdict is proper, the verdict must stand; only if every ground is improper does the verdict fall. Staudinger v. Barrett, 208 Conn. 94, 100, 544 A.2d 164 (1988); LaFleur v. Farmington River Power Co., 187 Conn. 339, 342, 445 A.2d 924 (1982); Colucci v. Pinette, 185 Conn. 483, 490, 441 A.2d 574 (1981). The rule rests on the policy of the conservation of judicial resources, at both the appellate and trial levels. "On the appellate level, the rule relieves an appellate court from the necessity of adjudicating claims of error that may not arise from the actual source of the jury verdict that is under appellate review. . In the trial court, the rule relieves the judicial system from the necessity of affording a second trial if the result of the first trial potentially did not depend upon the trial errors claimed by the appellant." Curry v. Burns, supra, 790. The Appellate Court correctly recognized that this case presented more than one potential basis for a verdict in favor of the defendants. A verdict for the defendants could theoretically have been reached if, for instance, the defendants had not caused the plaintiffs' injuries, or the defendants had caused the injuries but the plaintiffs were 100 percent comparatively negligent. Nevertheless, we need not guess at the basis of the jury's verdict because the jury specified the basis in the verdict itself. The handwritten verdict stated: "We, the jury, based upon the evidence presented to us, unanimously agree that all claims against the defendants . . . are inconclusive. We, therefore, find them not liable for the injuries sustained in the suit brought by the Gajewski family." (Emphasis added.) The plaintiffs correctly contend that this verdict signifies that the plaintiffs failed to meet their burden of proof. The trial court instructed the jury that the plaintiffs bore the burden of proving their claims and that the defendants bore the burden of proving their, defenses, including contributory negligence. The trial court also charged that if the plaintiffs failed to prove their claims, then the jury was to find for the defendants without considering any further issues. It is presumed that the jury follows the instructions given by the court. Vajda v. Tusla, 214 Conn. 523, 537, 572 A.2d 998 (1990); Tomczuk v. Alvarez, 184 Conn. 182, 186-87, 439 A.2d 935 (1981). Thus, although it is not completely clear, we conclude that, in the context of this case, the jury's statement that the claims were "inconclusive" indicated that the jury had found that the plaintiffs had failed to meet their burden of proof, and that it had declined to consider further issues. The jury's use of the language, "all claims against the defendants . . . are inconclusive," more likely signifies the failure of the plaintiffs to meet their initial burden of proof on their claims than the success of the defendants in meeting the burden of proof on their special defenses. Because the jury specified the basis of its verdict, the Appellate Court incorrectly determined that the general verdict rule applied to this case. As a result of its conclusion regarding the general verdict rule, the Appellate Court did not reach the claims of instructional error raised by the plaintiffs. In this court, however, the defendants claim, as alternative grounds for affirmance under Practice Book § 4140, that the jury charge was not harmful or prejudicial to the plaintiffs: (1) with regard to the duty to warn; and (2) viewed as a whole. The plaintiffs respond, in part, that these claims of the defendants are not adequate alternative grounds to affirm the Appellate Court's judgment because they do not fully address all of the claims of instructional error that the plaintiffs presented to the Appellate Court. It would be impossible to determine whether the defendants' claims here fully respond to the plaintiffs' claims in the Appellate Court without fully parsing each of the plaintiffs' claims in the Appellate Court. The parties' briefs do not adequately perform this task. Rather than undertake the task ourselves, we exercise our discretion to decline to consider the defendants' claims. We, therefore, remand the case to the Appellate Court for consideration of the merits of the plaintiffs' appeal. The judgment of the Appellate Court is reversed and the case is remanded to that court for further proceedings consistent with this opinion. In this opinion the other justices concurred. We certified the following questions: (1) "Where the jury by the words used in its verdict indicated that it had found the plaintiffs failed to prove their case, was the Appellate Court correct in finding that the jury could have reached its conclusion based on the allegations contained in a special defense?"; (2) "Was the Appellate Court correct in finding that the special defense of contributory negligence justified the application of the general verdict rule when no evidence was presented at the trial in support of the defense?"; and (3) "Was the Appellate Court correct in applying the general verdict rule where the plaintiffs claim error in the charge on [the] defendants' liability, the verdict is upheld on the basis of contributory negligence, and the jury, in considering contributory negligence, is required by law to compare [the] plaintiffs' liability to [the] defendants' liability?" Gajewski v. Pavelo, 227 Conn. 926, 632 A.2d 704 (1993). Because we answer the first certified question in the negative, concluding that the Appellate Court improperly applied the general verdict rule, we need not reach the claims of improper application of the general verdict rule contained in the remaining certified questions. "The plaintiffs originally sued Arthur Pavelo, doing business as Academy Plumbing and Heating, Utica Radiator Corporation, Joseph Savino, Guido Vagnini, the city of Bridgeport, Southern Connecticut Gas Company, and Ruud Water Heater Division of Rheem Manufacturing Company. The plaintiff Jan Gajewski also brought loss of consortium claims against Utica, Savino, Vagnini and the city of Bridgeport. The plaintiffs settled with the estate of Arthur Pavelo, Southern Connecticut Gas Company, and Ruud Water Heater Division of Rheem Manufacturing Company. We refer herein to Utica Radiator Corporation, Joseph Savino, Guido Vagnini and the city of Bridgeport as the defendants. Although Southern New England Gas Company was not a defendant during the trial as to the Gajewskis, it was a third party defendant as to Utica in an indemnification claim and in a contribution claim as a joint tortfeasor. In that capacity, Southern New England Gas Company actively participated in the trial. It, however, is not involved in this appeal." Gajewski v. Pavelo, supra, 32 Conn. App. 375 n.1. In the current appeal, Utica, Savino, Vagnini and the city of Bridgeport are the defendants. "Although Utica's answer to the plaintiffs' complaint contained a cross claim for contribution against 'all defendants,' the installer of the furnace, Arthur Pavelo, doing business as Academy Plumbing and Heating, was not specifically named as a defendant by Utica, although the other defendants were so named." Gajewski v. Pavelo, supra, 32 Conn. App. 376 n.2. "Prior to trial, the plaintiffs made a motion to sever the cross claims and counterclaims. No action was taken on this motion. After both parties rested, the plaintiffs renewed their motion to sever and it was denied." Gajewski v. Pavelo, supra, 32 Conn. App. 377 n.3. "The defendant Utica claims that its installation manual provided Pavelo with sufficient warning of the hazards of carbon monoxide poisoning arising from the failure to clean a chimney completely." Gajewski v. Pavelo, supra, 32 Conn. App. 377 n.4. We note, incidentally, that at that point the plaintiffs had settled their claims against Southern New England Gas Company. See footnote 2. In Curry v. Burns, 225 Conn. 782, 801, 626 A.2d 719 (1993), we identified five scenarios in which the general verdict rule applies: "(1) denial of separate counts of a complaint; (2) denial of separate defenses pleaded as such; (3) denial of separate legal theories of recovery or defense pleaded in one count or defense, as the case may be; (4) denial of a complaint and pleading of a special defense; and (5) denial of a specific defense, raised under a general denial, that had been asserted as the ease was tried but that should have been specially pleaded." The Appellate Court concluded that this case fit the fourth category. Gajewski v. Pavelo, supra, 32 Conn. App. 382. In support of their claim, the plaintiffs rely on a colloquy between the judge and the jury foreperson immediately following the delivery of the verdict. The judge asked: "when you use the word 'inconclusive' in your verdict, you mean that the plaintiffs have failed to prove by a fair preponderance of the evidence their claims in this case . . . ?" The jury foreperson responded, "Yes." Utica claims that this interchange is not properly before us because the plaintiffs failed to incorporate that portion of the transcript in the record of appeal to the Appellate Court. We need not decide this question because, in the context of this case, we interpret the term "inconclusive," even in the absence of the foreperson's clarification, to mean that the plaintiffs had failed to meet their burden of proof. PractieeBook§ 4140 (a) provides in relevant part: "Upon the granting of certification, the appellee may present for review alternative grounds upon which the judgment may be affirmed provided those grounds were raised and briefed in the appellate court."

Katz, J. The dispositive issue in each of these appeals is whether the state's suppression of exculpatory evidence so impaired the fairness of the proceedings against the defendants that the trial court was required to grant their motions for a new trial or to dismiss the charges against them. After a joint trial before a jury, the defendants, Roy White and Winston Watkins, were convicted of capital felony pursuant to General Statutes § 53a-54b (8), attempted murder pursuant to General Statutes § 53a-54a and 53a-49, assault in the first degree pursuant to General Statutes § 53a-59 (a) (1) and carrying a pistol without a permit pursuant to General Statutes § 29-35 and 29-37 (b). Although it ini tially sought the death penalty for both defendants, the state did not offer any evidence of an aggravating factor at the penalty stage of the trial. The trial court therefore sentenced both defendants to life in prison without possibility of release on the capital felony counts. The defendants have appealed directly to this court pursuant to General Statutes § 51-199 (b) (3). We reverse the judgments of the trial court. The jury could reasonably have found the following facts. At 1:58 p.m. on November 10,1987, Bridgeport police officers were dispatched to investigate a shooting in the area of the Jamaican Club. When they arrived, they discovered the bodies of Lilla McCalla and Llwellyn Blake in Blake's Market. Each had been fatally shot in the back of the head with a nine millimeter gun. While at the market, the police were informed that a third shooting victim was being treated at Bridgeport Hospital. The third victim, Vernon Crummie, had been shot twice with a .45 caliber gun. Nine days later, on November 19,1987, the Bridgeport police met with Crummie in his hospital room. Detective Leo Krusinski brought a photographic array to the hospital for Crummie to view. The six picture array included a photograph of Watkins. Crummie identified Watkins as one of the two men involved in the shootings, but indicated he was not the man who had shot him. Crummie then gave a statement to the police. Thereafter, Crummie again picked out Watkins' photograph from the array. At trial, Crummie testified that he had seen Watkins at Blake's Market and the Java Restaurant on several occasions prior to the shootings. On May 10,1988, Krusinski asked Crummie to come to the Bridgeport police station to view another photographic array. Crummie did so and, from a six picture array, selected a photograph of White as the man who had shot him in Blake's Market. On the same day, Crummie was also shown a thirteen picture array that included a different photograph of White. Crummie again selected the photograph of White as the man who had shot him. Although Crummie identified White in both arrays, he said he had a slight doubt and would like to see White in person in order to be positive about his identification. On May 16, 1988, Crummie went to the Bridgeport police station to view a lineup. After viewing the lineup, Crummie positively identified White as the man who had shot him in Blake's Market. Crummie also looked at the two photographic arrays he had first viewed on May 10 and signed the backs of the two photographs of White that he had previously selected. Crummie was the prosecution's key witness at trial. He testified that he had known McCalla and Blake for many years and that they had been dating for approximately six years. Blake had been operating Blake's Market, a grocery store, for nine or ten months at the time of the shootings. Crummie often stopped at the store and helped Blake and McCalla in his spare time. Crummie testified that on the day of the shootings, he had stopped by Blake's Market on his way to work at about 1:40 p.m. He had been there only a short time when the two defendants entered the store with guns drawn. Watkins entered first, ran past Crummie and jumped over a counter to the side on which Blake and McCalla stood. White entered behind Watkins, stopped a yard from Crummie and faced him. Crummie said "What's up?" to White, and White shot him in the neck. As Crummie ran toward the front door to escape he was shot a second time in the back. As Crummie ran out of the store and across the street, he heard explosions coming from inside the store. He did not-see the defendants emerge from the store. Crummie flagged down an approaching car and the driver drove him to the hospital. Crummie also testified at trial to his photographic identifications of both defendants and his lineup identification of White. Zaida Brown was the only other witness at trial who could place a defendant near the crime scene. She testified that she had seen Watkins near her home around the time of the shootings. A city engineer testified that Brown had lived approximately 720 feet from Blake's Market. Brown testified that she had seen Watkins running through a neighbor's backyard. She said Watkins had come from the general direction of Blake's Market. On appeal, both defendants claim that the trial court improperly: (1) refused to dismiss the charges against them or order a new trial even though the state had improperly suppressed exculpatory evidence, depriving the defendants of a fair trial; (2) refused to dismiss the charges against them even though there was insufficient evidence to support the two witness requirement of General Statutes § 54-83; (3) allowed them to be tried before a death qualified jury; (4) allowed them to be shackled while appearing in court before the jury; (5) refused to grant a mistrial after it was discovered that a police officer who had testified for the state had discussed his testimony with a juror during a recess; (6) admitted evidence showing consciousness of guilt; (7) refused to hold that Crummie's testimony was incredible as a matter of law, thereby making the evidence insufficient to convict them; and (8) refused to declare a mistrial or order a new trial based on various factors that impaired the fairness of the trial. Each defendant also contends, separately, that the trial court improperly refused to suppress the photographic identifications made by Crummie. In addition, White claims that the trial court improperly: (1) refused to suppress Crummie's lineup identification of him; and (2) refused to sever his trial from that of Watkins. I Both White and Watkins claim that the state withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and thereby deprived them of a fair trial. Because we find merit in this claim, we reverse the convictions of both defendants and remand their cases for a new probable cause hearing and, if appropriate, a new trial. The following additional facts are relevant. At the June 16, 1988 probable cause hearing for the two defendants, the state represented that there was no exculpatory evidence to disclose to the defendants. Crummie was the sole witness at the probable cause hearing. On June 27, 1988, and July 25, 1988, White and Watkins, respectively, filed pretrial motions seeking disclosure of any exculpatory evidence. The state did not disclose any materials pursuant to these motions. On November 7, 1989, after several weeks of jury selection, Sandra Harris, a prospective juror, indicated during voir dire that she was reluctant to sit as a juror on the case. The court spoke to her in chambers and then excused her. The court informed counsel that Harris had disclosed that she had been in Blake's Market with the people she presumed were responsible for the shootings. Counsel were then allowed to interview Harris. At trial, Harris testified that she had been in Blake's Market on November 10, 1987, around 12:15 p.m., when two black males had entered the store with guns. She stated that the two males, who were not the defendants, had allowed her to leave. Apparently, both the state and the defendants had been unaware of Harris prior to November 7, 1989. Defense counsel argued before the trial court, however, that in light of Harris' disclosures, the state must have some evidence in its file concerning two people who had entered the store with guns within one hour of the time Crummie claimed the shootings had occurred. The court expressed disbelief that such information could exist, in light of the state's obligation to have disclosed all exculpatory evidence previously to the defense. The state offered to allow the court to review some information in camera, but asserted that such information would not be exculpatory in any case. The trial court was skeptical of this view, but denied defense counsels' request to have it review the state's entire file. Instead, the court reviewed three statements submitted by the state and ordered that they be released to the defense because they contained potentially exculpatory material. One of the statements resulted from a police interview of Desmond Whyte. During the interview, Whyte stated that he had had a telephone conversation with the victim Llwellyn Blake at 1:15 p.m. on the day of the shootings. Whyte further stated that Blake had told him that earlier that day, a person called Pepper had entered the store with a gun, looked around, and then left. Later, two more males had entered the store with guns and were going to kill another person in the store until Blake had talked them out of it. According to Whyte, Blake had told him that these two males had left the store saying that they would kill anyone they found. The trial court ordered the state to review its file and turn over to the defense any exculpatory evidence found therein. On November 11,1989, the state decided to turn over all witness statements to the defense. Two of these statements had been given to the police by Anthony Blake, the brother of victim Llwellyn Blake. Anthony had told the police that he had been shot in the leg by someone named Dave, who was also known as Mark Morris, with a .45 caliber gun four months before the shootings. Anthony had stated that Dave had shot him because he would not let Dave sell drugs in front of Blake's Market. In addition, Anthony had told the police that the day before the shootings, his brother had received a death threat from Dave. Anthony had told the police that he thought his brother had been killed because of the argument over whether Dave and his people could sell drugs in front of the store. Anthony had stated that his brother had also received a call earlier in the week warning that Dave and another person called Donovan were going to come to Connecticut, rob the Blake brothers, shoot Anthony and take over Blake's Market in order to sell drugs. The state also turned over to the defense statements from Crummie, Edgar Meyers and Trevor Ricketts. Crummie's statement, which had been taken by the police at the hospital on November 19,1987, indicated that he had previously never seen the man who had shot him and that he did not think that he would be able to recognize him if he saw him again. The statements of Ricketts and Meyers suggested that the shootings had occurred prior to 1:30 p.m., rather than sometime between 1:45 and 2 p.m., as Crummie's testimony suggested. At a later date, the state turned over to the defense police incident reports concerning the shoot ing of Anthony Blake by Dave. Reports from July 2 and July 3, 1987, related Anthony Blake's complaint that on July 2, Dave had shot him in the leg in front of Blake's Market with a nine millimeter handgun. One week earlier, Dave had pointed the gun at Anthony in Blake's Market. Anthony had told the police in the reports that he had loaned Dave $1000, and that Dave had pulled out a gun every time Anthony had tried to collect. On November 13,1989, the defendants filed a motion to dismiss some of the charges against them, claiming that the state's withholding of exculpatory evidence had undermined the validity of their probable cause hearing and prejudiced their ability to prepare a defense. This motion was denied on December 1,1989, and the defendants took exceptions. The trial court refused to make an explicit ruling on whether or not the statements were exculpatory. The defendants then filed a motion for articulation, which was also denied. The trial court stated that it did not have to rule explicitly on whether the statements were exculpatory because there was insufficient prejudice to the defendants to merit dismissal in any case. The trial court also denied the defendants' supplemental motion to dismiss and their motions for a new trial. This court has long held, "on the basis of Brady v. Maryland, [supra, 373 U.S. 83], and its progeny, that '[s]ince the adversarial probable cause hearing [mandated by article first, § 8, of the Connecticut constitution as amended] . is an essential part of a defendant's criminal prosecution, the constitutional obligation to disclose exculpatory material attaches at that time.' . . . [I]n State v. Shannon, 212 Conn. 387, 406, 563 A.2d 646 [cert. denied, 493 U.S. 980, 110 S. Ct. 510, 107 L. Ed. 2d 512] (1989), we held that in order for this court to consider claims of nondisclosure of exculpatory material at a probable cause hearing required by our state constitution, the defendant must demonstrate: '(1) that the prosecution suppressed evidence; (2) that the evidence was favorable to the defense; and (3) that it was material.' State v. Milner, 206 Conn. 512, 539, 539 A.2d 80 (1988). We further held, in Shannon, that the materiality of such exculpatory evidence is to be determined by utilizing the test set forth in United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985). State v. Shannon, supra, 406-407. Under the Bagley test, non-disclosed exculpatory evidence will be considered material only if 'there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome.' United States v. Bagley, supra, 682. . It is well established that '[i]mpeachment evidence as well as exculpatory evidence falls within Brady's definition of evidence favorable to an accused.' State v. Pollitt, 205 Conn. 132, 142, 531 A.2d 125 (1987); United States v. Bagley, supra, 676." State v. McPhail, 213 Conn. 161, 166-67, 567 A.2d 812 (1989). The state does not seriously contend that the statements and incident reports described above were not suppressed. All of the statements were taken by the police in November, 1987, seven months before the June 16,1988 hearing on probable cause. The incident reports were filed even earlier, in July, 1987. "Police are treated as an arm of the prosecution for Brady purposes . . . ." (Internal quotation marks omitted.) Demers v. State, 209 Conn. 143, 153, 547 A.2d 28 (1988). Accordingly, nondisclosure of the reports and statements constitutes suppression by the prosecution even if, at the time of the hearing on probable cause, the reports and statements were in the police files rather than the prosecutor's files. Id., 153-54. There fore, the first prong of the three part test announced in State v. Shannon, supra, 212 Conn. 387, has been met. The second prong of State v. Shannon, supra, 212 Conn. 387, requires that the evidence must be favorable to the defense. The state claims that the statements of Ricketts and Meyers, which indicated that the shootings had been committed sometime prior to 1:30 p.m., bolstered Crummie's testimony at the probable cause hearing and therefore were not favorable to the defense. We disagree. Crummie testified at the hearing that he had arrived at Blake's Market sometime between 1:30 and 2 p.m. The statements of Ricketts and Meyers indicated that the shootings had already taken place by 1:30 p.m. While the Meyers and Ricketts statements do not significantly impeach Crummie, any impeachment is "favorable" to the defense. The state concedes that Crummie's statement that he would not recognize the man who had shot him if he saw him again was favorable to the defense. The statements by Whyte, Blake and Richard Freckleton, and the police incident reports, all suggest that other people either were in Blake's Market with guns on the day of the shootings or had a motive to harm the victim Blake. This evidence was clearly favorable to the defense, in satisfaction of the second prong of State v. Shannon, supra, 212 Conn. 387. We also conclude that the third prong of State v. Shannon, supra, 212 Conn. 387, requiring materiality has been satisfied. As stated above, Crummie was the only witness who testified at the probable cause hearing. Because there was no physical evidence linking the defendants to the shootings, Crummie's testimony was the only evidence connecting them to the crimes and, therefore, was critical. This court has stated many times that when the prosecution's case hinges entirely on the testimony of certain witnesses, information affecting their credibility is material. Demers v. State, supra, 209 Conn. 161-62; State v. Green, 194 Conn. 258, 266, 480 A.2d 526 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 964, 83 L. Ed. 2d 969 (1985); State v. Storlazzi, 191 Conn. 453, 462, 464 A.2d 829 (1983). Further, while the impeachment evidence alone may be insufficient to establish a Brady violation, it is clearly sufficient when coupled with the evidence that other gunmen were in the store and that others had a motive for committing the crime. The importance of the evidence that other gunmen were in the store on the day of the shootings is underscored by Crummie's testimony at the hearing that he had not actually witnessed the shootings of McCalla and Blake. These shootings resulted in the most serious charges against the defendants. Under these circumstances, we conclude that there exists a reasonable probability that the result of the probable cause hearing would have been different had the various statements and incident reports been provided to the defendants. In reaching this conclusion, we are cognizant of "what adverse effect the nondisclosure may have had on the defendant[s'] preparation or presentation of [their] case[s] and that we should act with an awareness of the difficulty of reconstructing in a post-trial proceeding the course that the defense and the [probable cause hearing] . . . would have [otherwise] taken . . . ." (Internal quotation marks omitted.) State v. McPhail, supra, 213 Conn. 168. In light of the meagerness of the state's presentation and the nature of the evidence withheld from the defense, we conclude that confidence in the outcome of the probable cause hearing has been undermined. Our conclusion that the state's suppression of exculpatory materials invalidated the defendants' probable cause hearing does not end our analysis. In State v. McPhail, supra, 213 Conn. 170, we held that even if there has been a failure to disclose exculpatory evidence at a criminal defendant's probable cause hearing, the defendant is not entitled to a reversal of his conviction unless "the nondisclosure did in fact taint the defendant's subsequent prosecution" and "deprived the defendant of his constitutional right to a fair trial." We conclude that it did. In this case, the exculpatory materials were disclosed to the defense during jury selection. We have said that, "[wjhere there has been an initial disclosure of exculpatory evidence at trial, the appropriate standard to be applied is whether the disclosure came so late as to prevent the defendant from receiving a fair trial." (Internal quotation marks omitted.) State v. Walker, 214 Conn. 122, 127, 571 A.2d 686 (1990). In other words, exculpatory evidence "must be disclosed at a time in which it can be [effectively] used." State v. Pollitt, 199 Conn. 399, 414, 508 A.2d 1 (1986). When exculpatory evidence is not timely disclosed its potential importance to the defense must be evaluated in light of the strength or weakness of the evidence presented against the defendant. State v. Amarillo, 198 Conn. 285, 298, 503 A.2d 146 (1986); State v. Green, supra, 194 Conn. 264. The defendants concede that they were able to make effective use of much of the exculpatory evidence at trial. They claim, however, that they were prejudiced by their inability to interview Anthony Blake and Dave in preparing their defenses. The state does not dispute that both of these individuals would have been available to the defense at the time of the probable cause hearing. By the time the exculpatory information was disclosed, however, Dave had disappeared and Anthony Blake had relocated to Jamaica. The defendants claim that, had they been able to interview these two individuals, they might have been able to present evidence at trial that individuals other than themselves were responsible for the shootings. As stated above, we must evaluate the defendants' claim in light of the evidence presented against them. The state's case was entirely dependent on Crummie's testimony and credibility. As will be discussed in part II A, there were many troubling inconsistencies in Crummie's trial testimony. In addition, Harris testified at trial that she had seen two other gunmen in Blake's Market on the day of the shootings. If the defendants had been able to bolster this testimony with evidence concerning Dave, his people, and their motive for killing the Blake brothers, there is a reasonable probability that the outcome of the trial would have been different. State v. Monteeth, 208 Conn. 202, 215, 544 A.2d 1199 (1988). We conclude, therefore, that the failure of the state to disclose the exculpatory evidence at the probable cause hearing deprived the defendants of their constitutional rights to a fair trial. State v. McPhail, supra, 213 Conn. 171. The convictions must therefore be reversed. We conclude that the defendants are also entitled to a new probable cause hearing. In State v. Boyd, 221 Conn. 685, 697, 607 A.2d 376, cert. denied, U.S. , 113 S. Ct. 344, 121 L. Ed. 2d 259 (1992), we reiter ated that "the remedy for a defective probable cause hearing is . a new probable cause hearing and a new trial." Although the state's Brady violation would have been considered harmless error had it not impaired the fairness of the defendants' trial; State v. McPhail, supra, 218 Conn. 171; our reversal of the convictions requires a new hearing on probable cause to be held. II Because of our disposition of the defendants' Brady claim, we need only consider those additional claims asserted by the defendants that could result in acquittal or that are likely to arise again at retrial. Accordingly, we need not reach their claims that the trial court improperly: (1) allowed them to be tried before a death qualified jury; (2) refused to dismiss the charges against them because there was insufficient evidence to support the two witness requirement of General Statutes § 54-83; (3) refused to grant a mistrial after it was discovered that a police officer who had testified for the state discussed his testimony with a juror dur ing a recess; (4) admitted evidence showing consciousness of guilt; and (5) refused to declare a mistrial or order a new trial based on various factors that impaired the fairness of their trial. A We must examine the defendants' claim that the evidence presented at trial was insufficient to support the jury's verdicts because its disposition could result in the defendants' acquittal. Specifically, the defendants claim that the testimony of the only eyewitness to the crime, Crummie, was incredible as a matter of law, and therefore inadequate to support the convictions. We reject this claim. "The standard of review of an insufficiency claim is twofold. ' "We first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury. We then decide whether, upon the facts thus established and the inferences reasonably drawn therefrom, the trial court or the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant's guilt beyond a reasonable doubt."' State v. Milardo, 224 Conn. 397, 402-403, 618 A.2d 1347 (1993); State v. Jarrett, 218 Conn. 766, 770-71, 591 A.2d 1225 (1991); State v. Weinberg, 215 Conn. 231, 253, 575 A.2d 1003, cert. denied, 498 U.S. 967, 111 S. Ct. 430, 112 L. Ed. 2d 413 (1990)." State v. Harris, 227 Conn. 751, 757, 631 A.2d 309 (1993). The defendants point to a number of inconsistencies in Crummie's trial testimony, his pretrial testimony and his statements to the police. They claim that these inconsistencies render his testimony incredible as a matter of law. Many of the inconsistencies concern collateral matters such as his age and education. Others concern more important matters such as the time of the shootings and whether Crummie had ever seen the defendant White prior to the day of the shootings. All of the inconsistencies were fully explored before the jury on cross-examination. Further, the trial judge specifically instructed the jury that it should take Crummie's prior inconsistent statements into account when considering his credibility: "You should consider . . . if any plausible explanation exists for the difference between or the inconsistency between the statement and his testimony. You will consider those prior or that prior inconsistent statement in determining what weight you will accord to the testimony of that witness. . . . [Once] a prior inconsistent statement . . . is admitted . . . it is up to the jury to determine what weight to give to such statement." In convicting the defendants, the jury presumably believed Crummie's testimony. The defendants nevertheless urge this court to hold, as a matter of law, that no rational trier of fact could credit Crummie's testimony in light of the inconsistencies it contained. We have stated many times, however, that "[w]e do not sit as a thirteenth juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. . . . Rather, we must defer to the jury's assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude." (Citations omitted; internal quotation marks omitted.) State v. Henning, 220 Conn. 417, 420, 599 A.2d 1065 (1991); see also State v. Salz, 226 Conn. 20, 30, 627 A.2d 862 (1993); State v. King, 216 Conn. 585, 602, 583 A.2d 896 (1990). In considering a similar claim in State v. Hart, 198 Conn. 424, 427, 503 A.2d 588 (1986), we stated: "The defendant misperceives the scope of our factual inquiry on appeal. 'This court does not retry the case or evaluate the credibility of the witnesses.' State v. Amarillo, supra, [198 Conn. 289]. 'The credibility of witnesses is a matter to be resolved solely by the jury.' State v. Myers, 193 Conn. 457, 473, 479 A.2d 199 (1984); State v. White, 155 Conn. 122, 123-24, 230 A.2d 18 (1967). 'This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury's verdict.' State v. Stankowski, 184 Conn. 121, 127, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981)." See also State v. Anonymous (83-FG), 190 Conn. 715, 722, 463 A.2d 533 (1983) (inconsistencies do not render a witness' testimony incredible as a matter of law); State v. Taborsky, 139 Conn. 475, 482, 95 A.2d 59 (1953) (credibility of a witness' testimony is within the province of the jury). While the inconsistencies in Crummie's story are troubling, we cannot conclude that no rational trier of fact could credit his testimony. Unlike this court, which is limited to the printed record, the jury was able to observe Crummie's conduct, demeanor and attitude while testifying. Further, the inconsistencies were fully explored by defense counsel on cross-examination, and the trial court specifically instructed the jury that it should consider Crummie's prior inconsistent statements in evaluating his credibility. Under these circumstances, we refuse to usurp the role of the jury and discredit Crummie's testimony as a matter of law. B We also briefly address the defendants' claim that the trial court improperly allowed them to be shackled. At the start of pretrial proceedings, the sheriffs recommended to the court that the defendants be placed in leg irons. The trial court acquiesced in this recommendation because "security was their problem, not mine." The defendants objected and requested, pursuant to Practice Book § 892, to question the sheriffs about their recommendation in order to create a record. The trial court refused this request and the defendants excepted. The record clearly indicates, and the state concedes, that the trial court "acquiesced" in the judgment of the sheriffs: "The court didn't order [the leg irons]. The court ordered the sheriffs to make sure the courtroom is secured. The sheriffs feel they require leg irons . . . ." The defendants renewed their objections to the shackling on several occasions. Both before and during the trial, the defendants filed affi davits stating that the shackling caused them pain and humiliation, and interfered with their ability to communicate with counsel. In State v. Tweedy, 219 Conn. 489, 505-506, 594 A.2d 906 (1991), we discussed the standard for reviewing a shackling claim: "As a general proposition, a criminal defendant has the right to appear in court free from physical restraints. . . . Grounded in the common law, this right evolved in order to preserve the presumption favoring a criminal defendant's innocence, while eliminating any detrimental effects to the defendant that could result if he were physically restrained in the courtroom. . . . Nonetheless, a defendant's right to appear before the jury unfettered is not absolute. . A trial court may employ a reasonable means of restraint upon a defendant if, exercising its broad discretion in such matters, the court finds that restraints are reasonably necessary under the circumstances. . In reviewing a shackling claim, our task is to determine whether the court's decision to employ restraints constituted a clear abuse of discretion. . . . While appellate review is greatly aided when a court develops the record by conducting an evidentiary hearing concerning the necessity for restraints, such a hearing is not mandatory. . A record in some fashion disclosing the justification for using restraints, however, is essential to meaningful appellate review of a shackling claim. . . . Accordingly, a trial court must ensure that its reasons for ordering the use of restraints are detailed in the record." (Citations omitted; internal quotation marks omitted.) See also State v. Canty, 223 Conn. 703, 719-20, 613 A.2d 1287 (1992). We conclude that the trial court clearly abused its discretion in "acquiescing" in the sheriffs' recommendation that the defendants should be shackled. While we have indicated that the trial court may rely heavily on the advice of security personnel in deciding whether or not restraints are reasonably necessary; State v. Canty, supra, 223 Conn. 719; State v. Tweedy, supra, 219 Conn. 506; we have at the same time made clear that the trial court may not rely blindly on such advice. In State v. Canty, supra, 720, we held that the trial court abused its discretion in relying on the sheriff's "bald, unsupported" opinion that security rules required restraints in "cases such as" the defendant's. See also State v. Tweedy, supra, 506 (representation that sheriff has supplied "reliable" information "to the effect" that restraints are necessary is insufficient to establish reasonable necessity; trial court must place specific information prompting its decision to restrain the defendant on the record and allow the defendant to respond to the information). The fact that we are remanding both cases on other grounds makes it unnecessary for us to consider the state's argument that any abuse of discretion was nevertheless harmless and does not require a new trial. III White raises three separate claims that we must address. He claims that the trial court improperly: (1) refused to suppress Crummie's lineup identification of him; (2) refused to suppress Crummie's photographic identifications of him; and (3) refused to sever his trial from that of Watkins. A White claims that the trial court should have granted his pretrial motion to suppress evidence of Crummie's lineup identification of him because his temporary removal from the Bridgeport correctional center, where he was being held on unrelated charges, to the Bridgeport police station for a lineup was illegal. We agree. The following additional facts are relevant to this claim. At a pretrial hearing, it was revealed that White was removed from the Bridgeport correctional center and transported to the Bridgeport police department for the May 16,1988 lineup pursuant to a "Motion for Order of Temporary Removal." White had been admitted to the correctional center pursuant to a continuance mittimus dated May 10, 1988, from the Norwalk Superior Court. The mittimus indicated that White was being held in lieu of $250,000 bond on charges pending in the Norwalk judicial district. The "Motion for Order of Temporary Removal" was signed by state's attorney Donald Browne. It stated that Crummie had tentatively identified White from a photographic array as the man who had shot him, but that Crummie "had a very slight doubt and would like to see the suspect in person." The motion requested that White be transported from the correctional center to the police department on May 16,1988, "for the pur pose of a lineup." The trial court, Curran, J., granted the motion. White was not provided with counsel at the lineup. Prior to trial, counsel for White filed a motion to suppress Crummie's identification of White at the May 16, 1988 lineup. The motion asserted that the order for temporary removal was illegal and that the court had no authority to grant the state's motion. The trial court rejected this argument and refused to suppress the lineup identification. The defendant excepted to this ruling. At trial, Crummie testified that he had identified White at the lineup. The state conceded at trial that there is no express authority under Connecticut law for the temporary removal procedure that was used to transport White to the police department for the lineup. The state nevertheless contends that the seizure of White pursuant to the temporary removal order was legal. We disagree. The state relies principally on cases such as United States v. Anderson, 490 F.2d 785 (D.C. Cir. 1974), and United States v. Sechrist, 640 F.2d 81 (7th Cir. 1981). These and other cases have held that the fourth amendment to the United States constitution does not require that a warrant be obtained before a suspect who is being detained on one charge can be placed in a lineup concerning an unrelated crime. Even assuming that these cases correctly construe the federal constitution, however, we nevertheless conclude that the seizure of White was illegal under article first, § 9, of our state constitution, and therefore do not reach his other claims. In State v. Lamme, 216 Conn. 172, 178-79, 579 A.2d 484 (1990), we reviewed the history of article first, § 9: "The precise language of the present section was originally adopted as article first, § 10, of the Connecticut constitution of 1818. Prior to 1818, Connecticut's declaration of rights took the form of a statutory enactment dating back to the preamble to Ludlow's Code of 1650. That preamble provided that 'no mans life shall bee taken away . no mans person shall bee arrested, restrained, banished, dismembered nor any way punished . . . under colour of Law or countenance of Authority, unless it bee by the vertue or equity of some express Law of the Country warranting the same, established by a General Courte, and sufficiently published, or in case of the defect of a law in any perticular case, by the word of God.' 1 Public Records of the Colony of Connecticut 509 (J.H. Trumbull Ed. 1850). This text survived with only minor changes until its last codification before the adoption of the constitution, in the 1808 Public Statute Laws of Connecticut. At that time, the final clause of the preamble read: 'unless clearly warranted by the laws of this state.' Public Statute Laws of the State of Connecticut (1808), Title I, 2." We also noted that in Jackson v. Bulloch, 12 Conn. 38, 43 (1837), "[t]he only case decided reasonably contemporaneously with the adoption of the 1818 consti tution," this court construed the phrase " 'warranted by law' as having a statutory referent similar to that expressly contained in the pre-1818 statutory declaration of rights." State v. Lamme, supra, 180, 180-81. Since Jackson v. Bulloch, supra, 12 Conn. 38, our case law under article first, § 9, has continued to emphasize "the central role of statutory safeguards in implementing the constitutional right of personal liberty." State v. Lamme, supra, 216 Conn. 181. For example, in Cinque v. Boyd, 99 Conn. 70, 94, 121 A. 678 (1923), this court held that a boy who had been adjudicated a delinquent in Juvenile Court and confined to a reform school had to be released while his appeal was pending. The applicable statute provided that a juvenile could be admitted to bail pending a hearing before the Juvenile Court, but was silent on the issue of bail pending an appeal. Id., 92. This court concluded that because there was no express provision in the applicable statute for detention pending an appeal, "there was no warrant of law for such detention" and the boy had to be released. Id., 94. Similarly, in State v. Carroll, 131 Conn. 224, 227-29, 38 A.2d 798 (1944), this court held that a police officer could be charged with manslaughter for having used force to consummate a warrantless arrest under circumstances unauthorized by the applicable statute. Despite the broader reach of common law authority to arrest, and despite the apparent reasonableness of the officer's actions, this court characterized the officer's attack on his victim as a violation of the victim's rights under article first, § 9. Id., 231. The basis for the constitutional violation was the officer's failure to comply strictly with the limitations imposed by statute: "[T]he purpose of the close restriction upon arrests without warrants is to protect the liberty of the innocent. We cannot say that the legislature adopted a wrong policy when it weighed that liberty against the possibility that some guilty person might escape." Id.; see also Sims v. Smith, 115 Conn. 279, 281-83, 161 A. 239 (1932). Our article first, § 9 jurisprudence was further developed in State v. Lamme, supra, 216 Conn. 172. In Lamme, we held that article first, § 9, does not forbid the type of brief investigative detention that the United States Supreme Court held is constitutional without probable cause in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). We rejected the defendant's argument that article first, § 9, "mandates a universal probable cause standard whenever the police restrain personal freedom to any degree." State v. Lamme, supra, 177. Because there was common law authority for Terry-type activities by the police and this authority had not been superseded by the legislature or the courts, we concluded that Terry stops were "clearly warranted by law" and that the defendant's detention was therefore legal. Id., 180-83. In the case before us, the state concedes that the temporary removal order did not comply with the statutory requirements for an arrest warrant or search warrant, and that there is no other express author ity under Connecticut law for process compelling a pretrial detainee to participate in a lineup on an uncharged crime. In contrast to Lamme, the state in this case has failed to identify any common law authority for the temporary removal procedure. Furthermore, this court has previously negated any suggestion of implied authority by indicating that the temporary seizure of prisoners by the police for investigative purposes is illegal. The state nevertheless contends that the seizure of the incarcerated defendant pursuant to the temporary removal order was legal, even though "not clearly warranted by law," because it was analogous to a Terry stop. The state concedes that, had the defendant not been incarcerated, compelling him to participate in a lineup at the police station would have exceeded the permissible bounds of a Terry stop. The state claims, however, that because the defendant was already incarcerated, his detention for the lineup intruded only minimally on his liberty and therefore was constitutionally permissible. We disagree. We have long held that "[pjresentenced detainees have all the constitutional rights of members of society except those incident to their custody for safekeeping prior to judgment." Laden v. Warden, 169 Conn. 540, 547, 363 A.2d 1063 (1975). Under our state constitution, this includes the right not to be compelled to participate in police investigatory procedures unless "clearly warranted by law." While the fact that a person is incarcerated may be relevant to evaluating the "reasonableness" of a seizure under article first, § 7, or the fourth amendment, it is not necessarily dispositive of that person's independent claim under article first, § 9. Accordingly, we conclude that the detention of White for the lineup, although accomplished by the state acting with good intentions in an effort to comply with the law, clearly was not warranted by law and therefore violated White's constitutional rights under article first, § 9, of our state constitution. Evidence that is the fruit of an illegal arrest or detention must be suppressed pursuant to our state constitution. State v. Oquendo, 223 Conn. 635, 660, 613 A.2d 1300 (1992); State v. Traub, 151 Conn. 246, 250, 196 A.2d 755 (1963), cert. denied, 377 U.S. 960, 84 S. Ct. 1637, 12 L. Ed. 2d 503 (1964); cf. Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). This principle applies to evidence of an identification made during a period of illegal detention. United States v. Edmons, 432 F.2d 577, 584 (2d Cir. 1970); Adams v. United States, 399 F.2d 574, 577 (D.C. Cir. 1968); State v. Oquendo, supra; cf. State v. Villafane, 171 Conn. 644, 654-56, 372 A.2d 82 (1976), cert. denied, 429 U.S. 1106, 97 S. Ct. 1137, 51 L. Ed. 2d 558 (1977); see generally A. Spinella, Connecticut Criminal Procedure (1985) p. 236; 1 W. LaFave & J. Israel, Criminal Procedure (1984) pp. 752-53. Because the stated purpose of the illegal seizure of the defendant was for a lineup, the state cannot and does not argue that Crummie's identification of White at the lineup was attenuated from the illegal seizure and purged of its taint. Therefore, we conclude that the trial court improperly refused to suppress evidence of Crummie's lineup identification of White. This evidence should be excluded at the new hearing on probable cause and any retrial of White. B In light of our conclusions, supra, that exculpatory-materials were improperly withheld and that the lineup identification of White should have been suppressed, we decline to reach White's claim that Crummie's photographic identifications of him should have been suppressed. As previously discussed, Crummie did not sign the photographs of White that he had identified until after the lineup because he was not positive about his identification. Also, at the pretrial suppression hearing, White did not have Crummie's statement to the police that he probably would not recognize the man who had shot him if he saw him again. On remand, White will have this statement available to him. Further, he will be able to argue that the photographic identifications should be suppressed because they were tainted by the illegal lineup. Because of these likely differences between White's claim as presented to this court, and the claim as it would be presented at retrial, we decline to consider it. C Finally, we consider White's claim that the trial court improperly refused to sever his trial from that of Watkins. White moved before trial for severance on the basis that Watkins was going to present an alibi defense while he was not. White claimed that a joint trial with Watkins would prejudice him because it would emphasize his lack of an alibi defense. The trial court denied this motion. During trial, White again moved for severance on the basis that Zaida Brown's testimony concerning her alleged sighting of Watkins near the crime scene would not be admissible against White in a separate trial. White claims that Brown's testimony-prejudiced him because it corroborated Crummie's identification of Watkins and therefore had bolstered Crummie's credibility before the jury. The trial court refused both to sever the trials and to exclude the testimony. Before this court, White further claims that he was prejudiced by the state's impeachment of Watkins' alibi witnesses, which made it appear that the witnesses were covering for Watkins. White claims that because this impeachment made his codefendant appear guilty, it indirectly prejudiced him as well. We have long held that "[wjhether to consolidate or sever the trials of defendants involved in the same criminal incident lies within the sound discretion of the trial court. State v. Vinal, 198 Conn. 644, 649, 504 A.2d 1364 (1986); State v. King, 187 Conn. 292, 302, 445 A.2d 901 (1982); State v. Holup, 167 Conn. 240, 244, 355 A.2d 119 (1974); see Practice Book § 829. Ordinarily justice is better subserved where the parties are tried together. State v. Holup, supra, 244. 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 [1917] . 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. Varricchio, 176 Conn. 445, 447-48, 408 A.2d 239 (1979). [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 (1943). In the determination of whether substantial injustice is likely to result from a joint trial or whether such injustice has in fact resulted, an important factor to consider is whether the defenses of the codefendant[s] are incompatible and completely antagonistic to each other. State v. Gordon, 170 Conn. 189, 190, 365 A.2d 1056 (1976); State v. Holup, [supra, 246]. State v. Haskins, 188 Conn. 432, 449-50, 450 A.2d 828 (1982)." (Internal quotation marks omitted.) State v. Walton, 227 Conn. 32, 56, 630 A.2d 990 (1993). We conclude that the trial court did not abuse its discretion in denying White's pretrial motion to sever. The trial court concluded that Watkins' alibi defense would be neither incompatible with, nor antagonistic to, any defense of noninvolvement offered by White, and that therefore White would not be prejudiced by a joint trial. We agree that the defenses were consistent and that the motion to sever was therefore properly denied. See State v. McArthur, 172 Conn. 586, 590, 376 A.2d 58 (1977) (alibi defense consistent with codefendant's claim of nonparticipation in the crime); State v. Johnson, 28 Conn. App. 645, 652, 612 A.2d 799, cert. denied, 224 Conn. 901, 615 A.2d 1044 (1992) (alibi defense not antagonistic to codefendant's claim of innocence). We also conclude that the trial court did not abuse its discretion in denying White's motion to sever at trial. White correctly asserts that Zaida Brown's testimony could not have been introduced against him in a separate trial, because the testimony was clearly limited to Watkins. This clear limitation on the testimony also supports the trial court's conclusion, how ever, that White would not be prejudiced by its admission at a joint trial. Therefore, there was no abuse of discretion. In addition to considering whether the trial court abused its discretion in refusing to sever the trials of two or more defendants, this court must consider "whether the denial of the motion for a separate trial has resulted in substantial injustice to the accused." (Internal quotation marks omitted.) State v. Smith, 201 Conn. 659, 671, 519 A.2d 26 (1986). We conclude that it has not. Brown's testimony only directly corroborated Crummie's identification of Watkins. While this corroboration may have had the incidental effect of bolstering Crummie's credibility to some extent, this does not amount to substantial prejudice. Similarly, we fail to see how impeachment of Watkins' alibi witnesses could have substantially prejudiced White. The jury is " ' "presumed to follow the court's directions in the absence of a clear indication to the contrary." ' State v. Negron, 221 Conn. 315, 331, 603 A.2d 1138 (1992)." State v. Raguseo, 225 Conn. 114, 131, 622 A.2d 519 (1993). The trial court charged the jury at several points that the two defendants "are not to be treated jointly. They are to be treated separately. Consider each case separately, one from the other." Therefore, even if we assume that the impeachment evidence hurt Watkins' case, there is no indication that it played any part in the jury's consideration of White's case. In essence, White claims that the admission of any evidence that either strengthens a codefendant's case (e.g., an alibi defense) or weakens it (e.g., impeachment) constitutes grounds for severance because of its incidental impact on a codefendant's case. If this were the case, however, joint trials virtually always would be impermissible. As indicated above, it is not enough for the defendant to show that a joint trial was less advantageous than a separate trial would have been. Rather, the defendant must prove substantial injustice. White has failed to meet this burden. IV Finally, we consider Watkins' separate claim that the trial court improperly refused to suppress Crummie's photographic identification of him on November 19, 1987. Watkins claims that the identification was unnecessarily suggestive because four or five of the six photographs in the array were of people associated with the Java Restaurant in Bridgeport. Watkins argues that this improperly suggested to Crummie that the police thought there was a connection between the Java Restaurant and the shootings. Watkins claims further that this suggestiveness was unnecessary because, instead of assembling the array based on street information, the police could have first obtained a description of the suspect from Crummie and assembled an array based on this description. Watkins therefore claims that the procedure utilized by the police was unnecessarily suggestive. We disagree. "To determine whether a pretrial identification procedure, such as the photographic array in this case, violated a defendant's due process rights, 'the required inquiry 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 an examination of the "totality of the circumstances." ' State v. Theriault, 182 Conn. 366, 371-72, 438 A.2d 432 (1980)." State v. Howard, 221 Conn. 447, 453, 604 A.2d 1294 (1992); see also State v. Tatum, 219 Conn. 721, 727, 595 A.2d 322 (1991); State v. Outlaw, 216 Conn. 492, 501, 582 A.2d 751 (1990). An identifi cation procedure is unnecessarily suggestive only if it gives rise to a very substantial likelihood of irreparable misidentification. State v. Outlaw, supra, 501; State v. Milner, 206 Conn. 512, 534-35, 539 A.2d 80 (1988); State v. Boscarino, 204 Conn. 714, 725, 529 A.2d 1260 (1987). The defendant bears the burden of proving both that the identification procedures were unnecessarily suggestive and that the resulting identification was unreliable. State v. Payne, 219 Conn. 93, 106, 591 A.2d 1246 (1991); State v. Milner, supra, 535; State v. Boscarino, supra, 725; State v. Williams, 203 Conn. 159, 173-74, 523 A.2d 1284 (1987); State v. Aversa, 197 Conn. 685, 693, 501 A.2d 370 (1985). The trial court held that the defendant had failed to meet his burden of proving that the photographic array was unnecessarily suggestive and that Crummie's identification was unreliable. We agree with the trial court. " 'The presentation of an array of several photographs to witnesses, including that of the suspect, does not constitute an impermissibly suggestive pretrial identification procedure "in the absence of any unfairness or other impropriety in the conduct of the exhibit." ' State v. Boscarino, [supra, 204 Conn. 726]." State v. Pollitt, 205 Conn. 132, 162, 531 A.2d 125 (1987). Watkins has failed to demonstrate any impropriety in the conduct of the photographic array. Crummie's testimony at the suppression hearing indicated that, with the exception of Watkins, he did not associate any of the people in the array with the Java Restaurant. Therefore, the array itself could not have suggested to Crummie a connection between the Java Restaurant and the shootings. The testimony of the police officers and Crummie further indicated that the police did not suggest which picture Crummie should choose, and did not suggest any connection between the shootings and the Java Restaurant. In view of this record, there simply is no evi dence that the array was suggestive in terms of focusing Crummie's attention on a particular individual or group of individuals. Watkins nevertheless urges this court to hold that it is unnecessarily suggestive for the police to assemble a photographic array from street information without first obtaining a description or other information about the suspect from the victim. Watkins claims that doing so is tantamount to telling the victim that the police have developed a suspect through other information and that the suspect is included in the array. We have recognized, however, that crime victims presented with a grouping of photographs often surmise that one of the individuals pictured may be a suspect. This does not invalidate the procedure, however, unless the police expressly indicate that a suspect is included in the array. State v. Williams, supra, 203 Conn. 177. At the suppression hearing, both the police and Crummie testified that no such indication had been given. Further, although we agree with the defendant that it would have been less suggestive for the police to have obtained a description from Crummie before assembling the array, the defendant has failed to prove that the procedure utilized in this case was unnecessarily suggestive. Crummie testified at the suppression hearing that he had not volunteered information to the police because he feared retaliation from the people involved in the shootings. In light of the seriousness of the crimes, the fact that the perpetrators were at large and Crummie's reluctance to volunteer information, we conclude that the police were justified in assembling an array based on street information and presenting it to Crummie without waiting until they had obtained his description of the suspect. See, e.g., Simmons v. United States, 390 U.S. 377, 384-85, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968) (the FBI was justified in showing photographs of suspects developed through other informa tion to witnesses where a serious felony had been committed, the perpetrators were still at large, and it was essential to determine quickly if their investigation was on the right track). Because we conclude that the procedure used to identify Watkins was not unnecessarily suggestive, we need not consider whether Crummie's identification was nevertheless reliable. State v. Tatum, supra, 219 Conn. 727; State v. Boscarino, supra, 204 Conn. 726. The judgments of the trial court are reversed and the cases are remanded for a new hearing on probable cause and other proceedings not inconsistent with this opinion. In this opinion the other justices concurred. General Statutes § 53a-54b provides in relevant part: "A person is guilty of a capital felony who is convicted of . . . (8) murder of two or more persons at the same time or in the course of a single transaction." General Statutes § 53a-54a provides in relevant part: "(a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person." General Statutes § 53a-49 (a) provides: "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: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (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." General Statutes § 53a-59 (a) (1) provides: "A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument." General Statutes § 29-35 provides in relevant part: "(a) No person shall carry any pistol or revolver upon his person, except when such person is within his dwelling house or place of business, without a permit to carry the same issued as provided in section 29-28." General Statutes § 29-37 provides in relevant part: "(b) Any person violating any provision of subsection (a) of section 29-35 may be fined not more than one thousand dollars and shall be imprisoned not less than one year nor more than five years, and, in the absence of any mitigating circumstances as determined by the court, one year of the sentence imposed may not be suspended or reduced by the court." Each defendant was also sentenced to terms of twenty years for attempted murder, twenty years for assault in the first degree, and five years for carrying a pistol without a permit. These terms were to run consecutively to each other, but concurrently with the term of life in prison. This resulted in a total effective sentence of life in prison without the possibility of release for each defendant. The two other statements resulted from police interviews with Richard Freckleton. In one of these statements, Freckleton had stated that he was also known as Pepper, and that he had entered Blake's Market sometime prior to noon on November 10,1987, armed with a nine millimeter gun that belonged to his friend Ron. The state claims that the defendants have not sufficiently demonstrated that these potential witnesses were unavailable at the time of trial. The state conceded at trial that Dave had been incarcerated in Connecticut at the time of the probable cause hearing, but that subsequently, the state had had to nolle a prosecution because Dave could not be located. At trial, the defense presented an investigator who testified that she had been unable to locate Anthony Blake, but had learned that he was in Jamaica and was having immigration problems. We conclude that the defendants have sufficiently established the unavailability of these two individuals. On remand, the defendants will have the opportunity to argue that they continue to be prejudiced by the state's failure to disclose the exculpatory evidence and that dismissal of the charges against them is therefore required. The defendants assert that because the state offered no evidence of an aggravating factor during the penalty phase of their trial, the state may not seek the death penalty against them at a new trial. See Arizona v. Rumsey, 467 U.S. 203, 104 S. Ct. 2305, 81 L. Ed. 2d 164 (1984); State v. Daniels, 207 Conn. 374, 542 A.2d 306 (1988), cert. denied, 489 U.S. 1069, 109 S. Ct. 1349, 103 L. Ed. 2d 817 (1989). We decline to consider the claims limited to death penalty cases because of the uncontroverted representation by the defendants that they will not arise on remand. At oral argument, defense counsel urged this court to reach this issue even if a new trial were ordered on other grounds. Counsel claimed that the two witness requirement of General Statutes § 54-83 applies to all capital felony cases, even where the state does not seek the death penalty. Therefore, counsel argued that even though the defendants should not be facing the death penalty at a new trial; see footnote 9; the two witness requirement would arise on remand. We note that neither party has briefed the issue of whether § 54-83 applies to capital felony prosecutions where the state does not seek the death penalty. We therefore decline to consider it. We presume that this issue will not arise again on remand. Defense counsel conceded at oral argument that although the state had attempted to elicit evidence of consciousness of guilt from a witness, the evidence had not been forthcoming, and also that the trial court had never instructed the jury concerning consciousness of guilt. We therefore decline to review this claim. These factors include, among other things: (1) various alleged changes in Crummie's testimony; (2) the conversation between the state's witness and the juror; (3) the fact that the state was allowed to present the testimony of the doctor who treated Crummie before Crummie testified, even though the doctor's testimony was not relevant without Crummie's testimony; and (4) the intimidating atmosphere that was created by the presence of highly visible security personnel, a sniffing dog, a metal detector and a state police officer at the door to the courtroom. Because it is unlikely that all of these factors will arise again on remand, we decline to consider this claim of cumulative error. The defendants do not claim that Crummie's testimony, if believed, was insufficient to support their convictions, only that his testimony was incredible as a matter of law. Although we hope that this issue will not arise again on remand, we feel compelled to address it because it involves a flagrant violation of the defendants' constitutional rights and could arise again in the absence of discussion by this court. Practice Book § 892 provides in relevant part: "Reasonable means of restraint may be employed if the judicial authority finds such restraint reasonably necessary to maintain order. If the judicial authority orders such restraint, he shall enter into the record of the case the reasons therefor." When pressed to place on the record a reason for the leg irons, the trial court stated: "Because I feel they are charged with a very serious crime. If convicted, they could be given the sentence of death. I have two females that are less than ten feet from them. I, myself, am less than twelve feet from them, and I don't want any problems, and I'm going to make sure there [are] no problems. . I want it noted that leg irons are required in this case, that I as a Superior Court judge feel that way while I have to work in this facility with these facilities in this particular courtroom." Defense counsel argued that these reasons were insufficient because they were unrelated to the defendants' potential for violent or disruptive behavior. Although we recognize the importance of courtroom safety, we leave to another day the question of whether factors unrelated to a particular defendant's behavior, standing alone, may constitutionally justify the use of restraints. We need not address this issue because it is clear from the record that the trial court acquiesced in the sheriffs' recommendation and did not truly exercise any independent judgment. Similarly, we need not address the state's argument that the shackling of the defendant Watkins was justified, in part, by the state's introduction of evidence that Watkins had been charged with assaulting another inmate while incarcerated. First, the trial court had already allowed both defendants to be shackled prior to the introduction of this evidence. Second, after hearing this evidence, the trial court concluded that both defendants should remain shackled, even though this evidence in no way involved the defendant White. It is clear from this that the trial court did not actually rely on the evidence of the assault in deciding whether Watkins should remain shackled. The fourth amendment to the United States constitution provides in relevant part: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." We note that in many of these cases, the defendant was provided with counsel at the lineup. See, e.g., Rigney v. Hendrick, 355 F.2d 710, 712 (3d Cir. 1965), cert. denied, 384 U.S. 975, 86 S. Ct. 1868, 16 L. Ed. 2d 685 (1966); People v. Hodge, 188 Colo. 189, 526 P.2d 309 (1974); State v. Hall, 93 N.J. 552, 461 A.2d 1155, cert. denied, 464 U.S. 1008, 104 S. Ct. 526, 78 L. Ed. 2d 709 (1983). Indeed, article 170 of the American Law Institute's Model Code of Pre-Arraignment Procedure sets forth procedures for placing suspects in lineups that include the right of the accused to have counsel at the lineup. See A.L.I., Model Code of Pre-Arraignment Procedure § 170.3 (m) and commentary. Article first, § 9, of the Connecticut constitution provides: "No person shall be arrested, detained or punished, except in cases clearly warranted by law." We recognize that, although White argued that his lineup identification should be suppressed because there was no authority for the temporary removal order under Connecticut law, he did not expressly raise article first, § 9, in his pretrial suppression motion. He nevertheless claims review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). In Golding, we held that "a defendant can prevail on a claim of constitutional error not preserved at trial only if all four of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." (Emphasis in original.) Id., 239-40. We conclude that the conditions of Golding have been met. As to the first two conditions, the record clearly is adequate for review, and the defendant is claiming a violation of fundamental rights under the state constitution. The fourth condition need not be considered because the state does not claim that any alleged error was harmless. As to the third condition, this court has held that where evidence that is the fruit of an illegal search or seizure leads to a defendant's arrest and is used against the defendant at trial, the defendant is deprived of a fair trial. State v. Fleming, 198 Conn. 255, 262, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986); State v. Federici, 179 Conn. 46, 61-62, 425 A.2d 916 (1979). White was arrested immediately after the lineup and evidence of the lineup was used against him at trial. Therefore, if we conclude, on the merits, that the defendant's seizure was a clear constitutional violation and that the lineup is the fruit of that illegal detention, the third condition of reviewability will have been met. Specifically, we do not reach White's claim that his compelled temporary removal for the lineup constituted an unreasonable seizure under the fourth amendment to the United States constitution and under article first, § 7, of the Connecticut constitution, which provides in relevant part: "The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures." Despite the state's concession that it would have needed a warrant had the defendant been free on bail, we also decline to decide whether the temporary removal of White, who was incarcerated because he was unable to make bail, violated the equal protection provisions of the state and federal constitutions. Another claim raised by White is that the lineup identification should have been suppressed because he was not provided with counsel as required by the sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. We note that, because Wfiiite had not been charged with nor even arrested for the shootings at Blake's Market at the time of the lineup, Kirby v. Illinois, 406 U.S. 682, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972), appears to preclude his claim under the sixth amendment. But cf. People v. Coates, 74 N.Y.2d 244, 543 N.E.2d 440, 544 N.Y.S.2d 992 (1989). While article first, § 8, of our state constitution may provide a greater level of protection than the sixth amendment, we decline to reach this issue. General Statutes § 54-2a provides in relevant part: "(a) In all criminal cases the superior court, or any judge thereof, may issue (1) bench warrants of arrest upon application by a prosecutorial official if the court or judge determines that the affidavit accompanying the application shows that there is probable cause to believe that an offense has been committed and that the person complained against committed it." General Statutes § 54-33a (b) provides: "Upon complaint on oath by any state's attorney or assistant state's attorney or by any two credible persons, to any judge of the superior court, that he or they have probable cause to believe that any property (1) possessed, controlled, designed or intended for use or which is or has been used or which may be used as the means of committing any criminal offense; or (2) which was stolen or embezzled; or (3) which constitutes evidence of an offense, or that a particular person participated in the commission of an offense, is within or upon any place, thing or person, such judge, except as provided in section 54-33j, may issue a warrant commanding a proper officer to enter into or upon such place or thing, search the same or the person and take into his custody all such property named in the warrant." Practice Book § 775 et seq. set forth a procedure for compelling an individual charged with a crime to participate in lineups and other investigatory procedures concerning that crime. Section 776 provides: "Upon motion of the prosecuting authority, the judicial authority by order may direct a defendant to participate in a reasonably conducted procedure to obtain nontestimonial evidence under Sec. 775, if the judicial authority finds probable cause to believe that: "(1) The evidence sought may be of material aid in determining whether the defendant committed the offense charged; and "(2) The evidence sought cannot practicably be obtained from other sources." This procedure does not apply to White, however, because the lineup was not sought in connection with the offense with which he had been charged. Also inapplicable are General Statutes § 54-lf, governing warrantless arrests, and General Statutes § 18-81a, which provides: "Whenever any writ of habeas corpus ad testificandum or ad prosequendum or ad respondendum has been issued at the request of a prosecuting attorney or state's attorney for any person in the custody of the commissioner of correction, said commissioner shall either arrange to transport, produce and maintain custody of such person, or said commissioner, with the consent of another state or municipal agency, may arrange to place the person in the charge of such other state or municipal agency which will transport, produce and maintain custody of such person, to, from and at the place specified in such writ." In State v. Rogers, 143 Conn. 167, 170-71, 120 A.2d 409, cert. denied, 351 U.S. 952, 76 S. Ct. 850, 100 L. Ed. 1476 (1956), the defendant was placed in the New Haven county jail on January 13, 1954, on attempted robbery and other charges under a duly issued mittimus. On January 30, he was transported from the jail to the state's attorney's office and questioned by the police concerning an unrelated robbery and murder. He then gave a statement to the police that was later admitted at trial. The next day, the defendant was taken to the coroner's office where he made another statement concerning the murder that was admitted into evidence at trial. Id., 171. We held that the removal was illegal because "fpjroper court authorization should have been secured before the defendant was removed from the jail." Id., 173-74; see also 2 Z. Swift, Digest of the Laws of the State of Connecticut (1823) p. 395 (once an arrestee is committed to jail under a mittimus, the jailer must "keep him till discharged in due course of law"). Similarly, in State v. Traub, 150 Conn. 169, 173, 177, 187 A.2d 230 (1962), vacated, 374 U.S. 493, 83 S. Ct. 1899, 10 L. Ed. 2d 1048 (1963), the police removed the defendant from the jail, where he was being held on a breach of the peace charge, in order to give him a lie detector test and question him concerning fires which the police suspected he might have set. Id., 173, 177. Although this court did not have to decide the issue, we concluded that the defendant's removal from the jail "may have been technically illegal," even though there was evidence that it was "authorized by an order of the judge of the Police Court of Hartford." Id., 178; see also State v. Traub, 151 Conn. 246, 248, 196 A.2d 755 (1963), cert. denied, 377 U.S. 960, 84 S. Ct. 1637, 12 L. Ed. 2d 503 (1964) (adhering to the view that the removal of the defendant was probably technically illegal). This concession is consonant with State v. Edwards, 214 Conn. 57, 570 A.2d 193 (1990), in which this court recognized that there is a fundamental difference between a brief investigative detention and the transportation of a suspect to the police station for investigative purposes. United, States v. Crews, 445 U.S. 463, 100 S. Ct. 1244, 63 L. Ed. 2d 537 (1980), in no way undermines this result. In Crews, the defendant was photographed during a detention at the police station. This photograph was placed in an array and shown to two crime victims, both of whom selected the defendant's photograph. The defendant was then taken into custody and placed in a lineup, at which both victims again identified him. The trial court held that the detention at the police station was illegal and that both the photographic identifications and the lineup identifications of the defendant had to be suppressed as fruits of this illegality. The trial court held, however, that the victims would be permitted to identify the defendant at trial because the ability of each to identify the defendant was based on their independent recollection of the crime and was not tainted by the intervening identifications. Id., 466-68. On appeal, the District of Columbia Court of Appeals held that the in-court identifications should have been suppressed as well because they were fruits of the illegal detention. The United States Supreme Court reversed. Id., 468-70. The court held that the in-eourt identifications were admissible because they were independent of and untainted by the illegal detention. Id., 471-73. A plurality of the court rejected the defendant's claim that an in-court identification could not be permitted under any circumstances, because his physical presence in court was the result of his initial illegal detention. Id., 474-75, 477-79. White does not claim that Crummie should have been barred from making an in-court identification of him because of the illegal lineup. Further, Crews in no way undermines our conclusion that the lineup identification of White, which was the product of and express purpose for his illegal detention, must be suppressed. To the contrary, Crews actually lends support to this conclusion. See id., 472, 473 n.18. White does not claim that the charges against him should be dismissed pursuant to State v. Federici, 179 Conn. 46, 425 A.2d 916 (1979). In Federiei, we held that where a defendant's arrest is tainted by an illegal seizure of evidence that is later introduced at trial, the defendant is deprived of a fair trial and the charges against him must be dismissed. Id., 61. The admission of Crummie's lineup identification of White during a period of illegal detention deprived defendant White of a fair trial. We want to make clear, however, that in this case, dismissal of the charges is not warranted. In Federiei, once the illegally seized evidence was excluded, there simply was nothing to establish probable cause that the defendant had committed the crime. Therefore, dismissal of the charges and release of the defendant from custody were constitutionally mandated. Id., 62. In contrast, in the case before us, the state may be able to establish that Crummie's photographic and in-court identifications of White are independent of the lineup identification and therefore admissible at a new trial. Because the state may still be able to establish sufficient probable cause to try White, a dismissal of the charges would be premature. See State v. Ostroski, 201 Conn. 534, 556, 518 A.2d 915 (1986). White's pretrial severance motion also claimed that a joint trial would prejudice him because the state would have twice as many peremptory challenges as it would have had in a separate trial. White claimed that this would give the state "an unfair advantage in determining and designing the composition of his jury in the joint trial." This issue has not been raised on appeal. Similarly, White objected at trial that the testimony of Barry Skinner, the assistant city engineer in Bridgeport, was prejudicial and would be inadmissible against him in a separate trial. Skinner testified that the area where Zaida Brown lived was approximately 720 feet from Blake's Market. The court required the state to tell the jury that this testimony was being offered as to Watkins only.

Callahan, J. This is the certified appeal of the plaintiff, Lois Schallenkamp, a resident of Springfield, Massachusetts, from a judgment of the Appellate Court affirming the dismissal by the trial court of her appeal from the suspension, pursuant to the applicable provisions of General Statutes § 14-227b, of her nonresident motor vehicle operating privilege by the commissioner of motor vehicles. After a hearing conducted pursuant to § 14-227b (f), the commissioner, acting by a designated hearing officer, suspended the plaintiffs nonresident operating privilege for a period of ninety days. In the plaintiffs subsequent appeal from the commissioner's decision to the Superior Court pursuant to General Statutes § 4-183 (a), she claimed that the record contained insufficient evidence that the arresting officer was certified to administer the breath analysis test, the results of which were admitted into evidence at her administrative hearing. The trial court dismissed the plaintiffs appeal. The Appellate Court affirmed the decision of the trial court. Schallenkamp v. DelPonte, 29 Conn. App. 576, 616 A.2d 1157 (1992). We granted certification to appeal, limited to the following question: "Did the Appellate Court properly conclude that there was substantial evidence in the record to support the finding that the arresting officer was certified to administer the breathalyzer tests?" Schallenkamp v. DelPonte, 224 Conn. 928, 619 A.2d 851 (1993). We affirm the judgment of the Appellate Court. The plaintiff was arrested in Windsor Locks on October 6,1990, for operating a motor vehicle while under the influence of alcohol in violation of General Statutes § 14-227a (a). After her arrest, she submitted to a breath analysis test that indicated a blood alcohol content of 0.199 percent, a figure well in excess of the 0.10 percent ratio of alcohol in the blood required for the suspension of her operator's privilege under § 14-227b (f). The arresting officer, Michael Balfore, temporarily suspended the plaintiff's nonresident operating privilege pursuant to § 14-227b (c). Thereafter, Balfore, who had administered the breath analysis test, filed a report with the commissioner, on an approved motor vehicle department form, wherein he noted the results of the test, checked a box that indicated that he was certified to administer the test and swore to the truth of his report. A subsequent hearing was held, pursuant to § 14-227b (f), to determine whether, pursuant to § 14-227b (g), the plaintiff's nonresident operating privilege should be suspended for a period of ninety days. At the hearing, the motor vehicle department form filed by Balfore was admitted into evidence, over the plaintiff's objection, pursuant to § 14-227b-19 of the Regulations of Connecticut State Agencies. In support of her objection, the plaintiff maintained that Balfore's certification to operate the "Intoximeter 3000," the instrument used to measure the plaintiff's blood alcohol content, had expired prior to the plaintiff's arrest. She contended therefore that the results of the test that Balfore had administered should be given no weight by the hearing officer. She argued in the Appellate Court, and argues in this court, that because of Balfore's lack of certification there was not substantial evi dence of the plaintiff's blood alcohol content and, consequently, that it had not been demonstrated that "the ratio of alcohol [in her blood] was ten-hundredths of one per cent or more of alcohol, by weight," an essential element under § 14-227b (f) to permit the commissioner to suspend her operating privilege. Section 14-227b (f) specifies that a hearing to suspend an operator's license or a nonresident's operating privilege for operating under the influence of intoxicating liquor shall be limited to a determination by the commissioner of the following pertinent issues: "(1) Did the police officer have probable cause to arrest the person for . . . operating a motor vehicle while under the influence of intoxicating liquor . (2) was such person placed under arrest; (3) did such person . . . submit to such test or analysis and the results of such test or analysis indicated that at the time of the alleged offense the ratio of alcohol in the blood of such person was ten-hundredths of one per cent or more of alcohol, by weight; and (4) was such person operating the motor vehicle." "The language of General Statutes § 14-227b [¶] is plain and unambiguous. The hearing is expressly limited to the four issues enumerated above." Buckley v. Muzio, 200 Conn. 1, 7, 509 A.2d 489 (1986); Volck v. Muzio, 204 Conn. 507, 512, 529 A.2d 177 (1987). The hearing officer determined that all of the issues specified by the statute had been demonstrated affirmatively and ordered that the plaintiff's nonresident operating privilege be suspended for a period of ninety days. As in any administrative appeal, the plaintiff bore the burden of proving that the commissioner's decision to suspend her nonresident operating privilege was "clearly erroneous in view of the reliable, probative and substantial evidence on the whole record." General Statutes § 4-183 (j) (5); see Lawrence v. Kozlowski, 171 Conn. 705, 713-14, 372 A.2d 110 (1976), cert. denied, 431 U.S. 969, 97 S. Ct. 2930, 53 L. Ed. 2d 1066 (1977). "Judicial review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable. . . . Substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred." (Citations omitted; internal quotation marks omitted.) Connecticut Light & Power Co. v. Dept. of Public Utility Control, 216 Conn. 627, 639-40, 583 A.2d 906 (1990). There are two difficulties with the plaintiff's position. One relates to the quantum of proof required to overturn an administrative finding of fact. The other relates to our holding in Volck v. Muzio, supra, 204 Conn. 512, that the governing statutes limit the issues that can be raised in an appeal from a license suspension. The plaintiff can surmount neither of these difficulties. In support of her claim that Balfore's certification had lapsed, the plaintiff introduced only an unsigned, unsworn "single piece of paper on the letterhead of the department of health services" indicating that Balfore had last been recertified to perform breath analysis tests on September 24,1989. Schallenkamp v. DelPonte, supra, 29 Conn. App. 578. Section 14-227a-10 (c) (1) (B) of the Regulations of Connecticut State Agencies provides in part that "[a]n operator's certificate [to administer breath analysis tests] shall be valid for twelve (12) months from the date of issuance." Therefore, if the information submitted by the plaintiff was correct, unless Balfore had been subsequently recertified, his certification to administer breath analysis tests would have expired on September 24,1990, shortly before the plaintiff was arrested. The countervailing evidence consisted of Balfore's sworn report wherein he had represented that "the analytical device [used to test the plaintiff] was operated by a certified analyst." Id. In reviewing an administrative determination, we "must take into account [that there is] contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence . . . .''(Citations omitted; internal quotation marks omitted.) Samperi v. Inland Wetlands Agency, 226 Conn. 579, 588, 628 A.2d 1286 (1993). Moreover, "it is not the function of the trial court, nor of this court, to retry the cause. . . . [T]he determination of issues of fact are matters within its province [of the administrative agency]." (Citations omitted; internal quotation marks omitted.) Tomlinson v. Board of Education, 226 Conn. 704, 713, 629 A.2d 333 (1993). Because it is the administrative hearing officer's function to determine issues of fact, we cannot say, simply because of the existence of conflicting evidence, that the record failed to contain a substantial basis from which the hearing officer could have concluded that Balfore was certified to administer breath analysis tests on the date of the plaintiff's arrest. Moreover, even if we were to assume that Balfore's certification had lapsed, such a lapse would not have sufficiently undermined the reliability of the test results to cause us to depart from our holding in Volck v. Muzio, supra, 204 Conn. 512. In Volck, we concluded that even multiple failures on the part of an arresting officer to comply with the statutory dictates of § 14-227b were not sufficient grounds for overturn ing the commissioner's determination, after a hearing, that the essential elements of the statute had been proven and that the plaintiffs operator's license should be suspended. Id., 518, 521. Similarly, Balfore's alleged failure to comply with a regulation that he currently be certified to administer a breath analysis test would not be a basis for overturning the commissioner's decision in this case as long as there was evidence from which the commissioner reasonably could have concluded that the four prerequisites for suspension set forth in § 14-227b (f) had been demonstrated affirmatively. The plaintiff maintained at oral argument, however, that § 14-227b-19 of the Regulations of Connecticut State Agencies required Balfore's report to conform with General Statutes § 14-227b (c) in order for the report and the test results to have been admissible at her suspension hearing. She argued that, if Balfore had not been certified at the time she was arrested, his report did not conform to the statute and, consequently, was inadmissible and should not have been considered by the commissioner. We agree with the plaintiff that the cited regulation mandates Balfore's report to conform to the requirement of § 14-227b (c) in order to have been admissible at the suspension hearing. We do not agree, however, that Balfore had to be certified in order to have his written report conform to the statute. Section 14-227b (c) sets forth the steps a police officer must take in the preparation and delivery of his report to the commissioner. Nowhere does it mention the certification of the police officer preparing the report or administering the test as a necessary prerequisite to its proper preparation and delivery. The written report required by § 14-227b (c) may therefore conform to the statute and be admissible at an administrative suspension hearing pursuant to § 14-227b-19 even if the officer who prepared and dispatched the report was not currently certified to administer breath analysis tests. Our construction of § 14-227b (c) is reinforced by a comparison with § 14-227a (c), on which the plaintiff may mistakenly be relying. The latter statute governs the admissibility of the results of a breath analysis test in criminal proceedings. For such proceedings, § 14-227a (c) does require that a breath analysis test be administered by an officer "certified or recertified for such purpose . by the commissioner of health services" in order for the test results to be admissible in a criminal trial. The proceeding in question, however, was an administrative hearing, not a criminal trial, and consequently § 14-227a (c) is inapplicable. The judgment of the Appellate Court is affirmed. In this opinion Peters, C. J., Norcott and Palmer, Js., concurred. "[General Statutes] Sec. 14-227b. implied consent to test, suspension OF LICENSE FOR REFUSING TO SUBMIT TO TEST OR HAVING ELEVATED blood alcohol content, hearing, (a) Any person who operates a motor vehicle in this state shall be deemed to have given his consent to a chemical analysis of his blood, breath or urine and, if said person is a minor, Ms parent or parents or guardian shall also be deemed to have given his consent. "(b) If any such person, having been placed under arrest for manslaughter in the second degree with a motor vehicle or assault in the second degree with a motor vehicle or for operating a motor veMcle while under the influence of intoxicating liquor or any drug or both or while his ability to operate such motor vehicle is impaired by the consumption of intoxicating liquor, and thereafter, after being apprised of his constitutional rights, having been requested to submit to a blood, breath or urine test at the option of the police officer, having been afforded a reasonable opportunity to telephone an attorney prior to the performance of such test and having been informed that his license or nonresident operating privilege will be suspended in accordance with the provisions of this section if he refuses to submit to such test or if he submits to such test and the results of such test indicate that at the time of the alleged offense the ratio of alcohol in Ms blood was ten-hundredths of one per cent or more of alcohol, by weight, and that evidence of any such refusal shall be admissible in accordance with subsection (f) of section 14-227a and may be used against him in any criminal prosecution, refuses to submit to the designated test, the test shall not be given; provided, if the person refuses or is unable to submit to a blood test, the police officer shall designate the breath or urine test as the test to be taken. The police officer shall make a notation upon the records of the police department that he informed the person that his license or nonresident operating privilege would be suspended if he refused to submit to such test or if he submitted to such test and the results of such test indicated that at the time of the alleged offense the ratio of alcohol in his blood was ten-hundredths of one per cent or more of alcohol, by weight. "(c) If the person arrested refuses to submit to such test or analysis or submits to such test or analysis and the results of such test or analysis indicates that at the time of the alleged offense the ratio of alcohol in the blood of such person was ten-hundredths of one per cent or more of alcohol, by weight, the police officer, acting on behalf of the commissioner of motor vehicles, shall immediately revoke and take possession of the motor vehicle operator's license or, if such person is a nonresident, suspend the nonresident operating privilege of such person, for a twenty-four-hour period and shall issue a temporary operator's license or nonresident operating privilege to such person valid for the period commencing twenty-four hours after issuance and ending thirty-five days after the date such person received notice of his arrest by the police officer. The police officer shall prepare a written report of the incident and shall mail the report together with a copy of the completed temporary license form, any operator's license taken into possession and a copy of the results of any chemical test or analysis to the department of motor vehicles within three business days. The report shall be made on a form approved by the commissioner of motor vehicles and shall be sworn to under penalty of false statement as provided in section 53a-157 by the police officer before whom such refusal was made or who administered or caused to be administered such test or analysis. If the person arrested refused to submit to such test or analysis, the report shall be endorsed by a third person who witnessed such refusal. The report shall set forth the grounds for the officer's belief that there was probable cause to arrest such person for manslaughter in the second degree with a motor vehicle or assault in the second degree with a motor vehicle or for operating a motor vehicle while under the influence of intoxicating liquor or any drug or both or while his ability to operate such motor vehicle is impaired by the consumption of intoxicating liquor, and shall state that such person had refused to submit to such test or analysis when requested by such police officer to do so or that such person submitted to such test or analysis and the results of such test or analysis indicated that at the time of the alleged offense the ratio of alcohol in the blood of such person was ten-hundredths of one per cent or more of alcohol, by weight. "(d) Upon receipt of such report, the commissioner of motor vehicles shall suspend any license or nonresident operating privilege of such person effective as of a date certain, which date shall be not later than thirty-five days after the date such person received notice of his arrest by the police officer. Any person whose license or operating privilege has been suspended in accordance with this subsection shall automatically be entitled to a hearing before the commissioner to be held prior to the effective date of the suspension. The commissioner shall send a suspension notice to such person informing such person that his operator's license or nonresident operating privilege is suspended as of a date certain and that he is entitled to a hearing prior to the effective date of suspension and may schedule such hearing by contacting the department of motor vehicles not later than seven days after the date of mailing of such suspension notice. "(e) If such person does not contact the department to schedule a hearing, the commissioner shall affirm the suspension contained in the suspen sion notice for the appropriate period specified in subsection (h) of this section. "(f) If such person contacts the department to schedule a hearing, the department shall assign a date, time and place for the hearing, which date shall be prior to the effective date of the suspension. Upon a showing of good cause, the commissioner may grant one continuance for a period not to exceed ten days. If a continuance is granted, the commissioner shall extend the validity of the temporary operator's license or nonresident operating privilege issued pursuant to subsection (c) of this section for a period not to exceed the period of such continuance. The hearing shall be limited to a determination of the following issues: (1) Did the police officer have probable cause to arrest the person for manslaughter in the second degree with a motor vehicle or for assault in the second degree with a motor vehicle or for operating a motor vehicle while under the influence of intoxicating liquor or drug or both or while his ability to operate such motor vehicle was impaired by the consumption of intoxicating liquor; (2) was such person placed under arrest; (3) did such person refuse to submit to such test or analysis or did such person submit to such test or analysis and the results of such test or analysis indicated that at the time of the alleged offense the ratio of alcohol in the blood of such person was ten-hundredths of one per cent or more of alcohol, by weight; and (4) was such person operating the motor vehicle. The fees of any witness summoned to appear at the hearing shall be the same as provided by the general statutes for witnesses in criminal cases. "(g) If, after such hearing, the commissioner finds on any one of the said issues in the negative, the commissioner shall reinstate such license or operating privilege. If, after such hearing, the commissioner does not find on any one of the said issues in the negative or if such person fails to appear at such hearing, the commissioner shall affirm the suspension contained in the suspension notice for the appropriate period specified in subsection (h) of this section. The commissioner shall render a decision at the conclusion of such hearing or send a notice of his decision by certified mail to such person not later than thirty-five days or, if a continuance is granted, not later than forty-five days from the date such person received notice of his arrest by the police officer. The notice of such decision sent by certified mail to the address of such person as shown by the records of the commissioner shall be sufficient notice to such person that his operator's license or nonresident operating privilege is reinstated or suspended, as the case may be. Unless a continuance is granted to such person pursuant to subsection (f) of this section, if the commissioner fails to render a decision within thirty-five days from the date such person received notice of his arrest by the police officer, the commissioner shall reinstate such person's operator's license or nonresident operating privilege, provided notwithstanding such reinstatement the commissioner may render a decision not later than two days thereafter suspending such operator's license or nonresident operating privilege. "(h) The commissioner shall suspend the operator's license or nonresident operating privilege, and revoke the temporary operator's license or nonresident operating privilege issued pursuant to subsection (c) of this section, of a person who did not contact the department to schedule a hearing, who failed to appear at a hearing or against whom, after a hearing, the commissioner held pursuant to subsection (g) of this section, as of the effective date contained in the suspension notice or the date the commissioner renders his decision, whichever is later, for a period of: (1) (A) Ninety days, if such person submitted to a test or analysis and the results of such test or analysis indicated that at the time of the alleged offense the ratio of alcohol in the blood of such person was ten-hundredths of one per cent or more of alcohol, by weight, or (B) six months if such person refused to submit to such test or analysis, (2) one year if such person has previously had his operator's license or nonresident operating privilege suspended under this section, and (3) two years if such person has two or more times previously had his operator's license or nonresident operating privilege suspended under this section. "(i) The provisions of this section shall apply with the same effect to the refusal by any person to submit to an additional chemical test as provided in'subdivision (5) of subsection (c) of section 14-227a. "(j) The provisions of this section shall not apply to any person whose physical condition is such that, according to competent medical advice, such test would be inadvisable. "(k) The state shall pay the reasonable charges of any physician who, at the request of a municipal police department, takes a blood sample for purposes of a test under the provisions of this section. "(Ü) The commissioner of motor vehicles shall adopt regulations in accordance with chapter 54 to implement the provisions of this section." "[General Statutes] Sec. 4-183. appeal to superior court, (a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the superior court as provided in this section. The filing of a petition for reconsideration is not a prerequisite to the filing of such an appeal." General Statutes § 14-227a provides in relevant part: "operation while UNDER THE INFLUENCE OF LIQUOR OR DRUG OR WHILE IMPAIRED BY LIQUOR. (a) operation while under the influence. No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if he operates a motor vehicle on a public highway of this state or on any road of a district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or on any private road on which a speed limit has been established in accordance with the provisions of section 14-218a, or in any parking area for ten or more cars or on any school property (1) while under the influence of intoxicating liquor or any drug or both or (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight." Section 14-227b-19 of the Regulations of Connecticut State Agencies provides: "admissibility of police report at hearing. The written report filed by the arresting officer shall be admissible into evidence at the hearing if it conforms to the requirements of Section 14-227b (c) of the General Statutes." Section 14-227b-2 (c) of the Regulations of Connecticut State Agencies provides that "[cjhemical analysis for the purpose of determining the amount of alcohol in the blood of any person shall be performed in accordance with the provisions of Sections 14-227a-l through 14-227a-10 of the Regulations of Connecticut State Agencies." Section 14-227a-10 (c) of the Regulations of Connecticut State Agencies provides in relevant part: "No person shall be an operator of a breath analysis instrument unless such person is employed by a law enforcement agency or by the department of health services and is certified by the department of health services. . . . "(c) certification of operators and instructors. (1) certification of operators. (A) In order to be certified as an operator of a breath analysis instrument, a person shall apply to the department for certification and shall: (i) Be employed by a law enforcement agency or by the department of health services; (ii) Successfully complete a minimum of four (4) hours of training in the operation of the instrument to be used. Such training may be acquired by training courses given by the department or by instructors certified by the department for such purposes in accordance with subdivision (3) below; (iii) Demonstrate to the department the proper use and application of the instrument." See § 14-227a-10 (c) (2) of the Regulations of Connecticut State Agencies requiring recertification at the end of a certification period. The alleged defects in statutory compliance were the officer's failure to warn the plaintiff of the consequences of his failure to submit to testing, the officer's requesting that the plaintiff undergo testing before, rather than after, his arrest, and the officer's failure to have his written report, indicating that the plaintiff had refused testing, endorsed by a third party. See General Statutes § 14-227b (b) and (c); Volck v. Muzio, supra, 204 Conn. 518. The absence of certification or the uncertainty of its existence would be a factor that an administrative hearing officer could consider in making a determination whether "such test or analysis indicated that at the time of the alleged offense the ratio of alcohol in the blood of such person was ten-hundredths of one per cent or more of alcohol, by weight." General Statutes § 14-227b (f) (3). See footnote 4.

Per Curiam. The defendant, Arthur E. Jacobson, was arrested on September 22, 1991, for operating a motor vehicle while his operator's license was under suspension in violation of General Statutes § 14-215 (c). After a plea of nolo contendere, he was convicted of that charge and sentenced by the trial court to a mandatory minimum term of imprisonment of thirty days and fined $500. Thereafter, he appealed to the Appellate Court pursuant to General Statutes § 54-94a. The Appellate Court concluded that the trial court had improperly convicted and sentenced the defendant for a violation of § 14-215 (c). State v. Jacobson, 31 Conn. App. 797, 804, 627 A.2d 474 (1993). It determined, however, that the defendant had committed the lesser included offense of violating § 14-215 (a) and that he was subject to the penalties provided by § 14-215 (b), which are less severe than those provided by § 14-215 (c). It, therefore, remanded the case to the trial court for sentencing pursuant to § 14-215 (b). Id., 806. We granted certification to consider the issue of whether a defendant, whose motor vehicle operator's license had been suspended originally because of a violation of General Statutes § 14-227a (a) was subject to the enhanced penalties of § 14-215 (c) when the period of suspension for violation of § 14-227a (a) mandated by § 14-227a (h) (1) (C) had expired, but his operator's license had not been restored because of his failure to furnish the commissioner of motor vehicles with proof of financial responsibility pursuant to § 14-112. The Appellate Court, after construing the relevant statutes, concluded that, although the defendant's operator's license was under suspension when he was arrested on September 22,1991, it was not under suspension because of his March 28, 1989 conviction of operating under the influence in violation of § 14-227a (a) for which it had been suspended initially. In arriving at its conclusion, the Appellate Court determined that the one year period of suspension mandated by § 14-227a (h) (1) (C) had expired by the time of the defendant's arrest for operating under suspension. State v. Jacobson, supra, 31 Conn. App. 799. The court further concluded that, because the period of suspension imposed for the defendant's violation of § 14-227a (a) had expired at the time of his arrest in 1991, he was not under suspension at that time "on account of a violation of subsection (a) of section 14-227a," an essential element for a prosecution pursuant to § 14-215 (c). Id., 804. The Appellate Court decided, however, that the defendant's operator's license was under suspension at the time of his arrest because he had failed to furnish the commissioner with proof of financial responsibility as required by § 14-112 when his suspension, because of a violation of § 14-227a, had terminated. The defendant, the court determined, was therefore in violation of § 14-215 (a) and, consequently, subject to the penalties of § 14-215 (b). Id. After considering the briefs and arguments of the parties and examining the record on appeal, we conclude that the judgment of the Appellate Court is correct and must be affirmed. The issue on which we granted certification was properly resolved in the Appellate Court's thoughtful and thorough unanimous opinion. It would serve no useful purpose for this court to repeat the discussion contained therein. Cf. Board of Education v. State Board of Education, 228 Conn. 433, 436, 636 A.2d 378 (1994); Stankiewicz v. Zoning Board of Appeals, 211 Conn. 76, 78, 556 A.2d 1024 (1989); State v. Leonard, 210 Conn. 480, 481, 556 A.2d 611 (1989). The judgment of the Appellate Court is affirmed. General Statutes § 14-215 provides in pertinent part: "operation WHILE REGISTRATION OR LICENSE IS REFUSED, SUSPENDED OR REVOKED. . . . "(c) Any person who operates any motor vehicle during the period his operator's license or right to operate a motor vehicle in this state is under suspension or revocation on account of a violation of subsection (a) of section 14-227a or section 53a-56b or 53a-60d . . . shall be fined not less than five hundred dollars nor more than one thousand dollars and imprisoned not more than one year, thirty consecutive days of which may not be suspended or reduced in any manner." General Statutes § 54-94a provides in pertinent part: "conditional NOLO CONTENDERE PLEA. APPEAL OF DENIAL OF MOTION TO SUPPRESS OR DISMISS. When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court's denial of the defendant's . . . motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. ." General Statutes § 14-215 (a) and (b) provides: "(a) No person to whom an operator's license has been refused, or whose operator's license or right to operate a motor vehicle in this state has been suspended or revoked, shall operate any motor vehicle during the period of such refusal, suspension or revocation. No person shall operate or cause to be operated any motor vehicle, the registration of which has been refused, suspended or revoked, or any motor vehicle, the right to operate which has been suspended or revoked. "(b) Except as provided in subsection (c) of this section, any person who violates any provision of subsection (a) of this section shall be fined not less than one hundred fifty dollars nor more than two hundred dollars or imprisoned not more than ninety days or be both fined and imprisoned for the first offense, and for any subsequent offense shall be fined not less than two hundred dollars nor more than six hundred dollars or imprisoned not more than one year or be both fined and imprisoned." The issue as certified was inartfully worded. See State v. Jacobson, 227 Conn. 914, 632 A.2d 692 (1993). General Statutes § 14-227a provides in pertinent part: "operation WHILE UNDER THE INFLUENCE OF LIQUOR OR DRUG OR WHILE IMPAIRED BY LIQUOR, (a) OPERATION WHILE UNDER THE INFLUENCE. No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if he operates a motor vehicle on a public highway of this state or on any road of a district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or on any private road on which a speed limit has been established in accord anee with the provisions of section 14-218a, or in any parking area for ten or more cars or on any school property (1) while under the influence of intoxicating liquor or any drug or both or (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight." General Statutes § 14-227a (h) (1) (C) provides: "(h) penalties foe operation while under the influence. Any person who violates any provision of subsection (a) of this section shall: (1) For conviction of a first violation . . . (C) have his motor vehicle operator's license or nonresident operating privilege suspended for one year." General Statutes § 14-112 provides in pertinent part: "proof of financial responsibility on violation of certain statutes, (a) when commissioner shall require, exception. To entitle any person to receive or retain a motor vehicle operator's license or a certificate of registration of any motor vehicle when, in the opinion of the commissioner, such person has violated . . . subsection (a) of section 14-227a . . . the commissioner shall require from such person proof of financial responsibility to satisfy any claim for damages by reason of personal injury to, or the death of, any one person, of twenty thousand dollars, or by reason of personal injury to, or the death of, more than one person on account of any accident, of at least forty thousand dollars, and for damage to property of at least ten thousand dollars . If any person fails to furnish such proof, the commissioner shall, until such proof is furnished, suspend or revoke the license of such person to operate a motor vehicle or refuse to return any license which has been suspended or revoked in accordance with the provisions of section 14-111 . Prior to such suspension, revocation or withdrawal, notice thereof shall be given by the commissioner by a notice forwarded by bulk certified mail to the address of such person as shown by the records of the commissioner. . . ."

The petition of the defendants Wolcott Development Company, Francis J. Hubeny, Jeffrey M. Hubeny, Bruce E. Carusillo and Michael J. Giammatteo for certification for appeal from the Appellate Court (AC 12785) is denied. Peter B. Rustin, in support of the petition. Marc S. Edrich and Jeanine M. Dumont, in opposition. Decided May 26, 1994

The defendant Roña V. Finizie's petition for certification for appeal from the Appellate Court (AC 12828) is dismissed.

Per Curiam. The dispositive issue in this tax appeal is whether the plaintiff taxpayer has established its entitlement to a sales and use tax exemption pursuant to General Statutes § 12-412 (8) or (24). The plaintiff, Advanced Business Systems, Inc., installs and maintains coin-operated photocopying machines in public libraries for the use of patrons of the library and the general public. The defendant, Allan A. Crystal, the commissioner of revenue services, after auditing the plaintiffs tax returns for the years 1988, 1989 and 1990, found the plaintiff liable for an additional sales and use tax assessment, as well as a penalty and interest. The plaintiff filed an appeal to the trial court pursuant to General Statutes § 12-422. In light of the stipulated facts and the governing law, the trial court rendered a judgment dismissing the plaintiffs appeal. The plaintiff thereafter filed a further appeal in the Appellate Court, which we transferred to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm the judgment of the trial court. The facts are not disputed. The plaintiff retained exclusive control of, as well as responsibility for, the operation of its photocopying machines. It received and retained all the revenues generated by the machines with the exception of a commission paid to the public libraries in which the machines were installed. Although the public libraries concededly qualify as tax exempt organizations pursuant to § 12-412, the plaintiff has not claimed that it has a tax exempt status except insofar as its transactions with the public libraries qualify for an exemption pursuant to subsections (8) or (24) of § 12-412. A taxpayer bears the burden of proving the impropriety of an adverse assessment concerning a tax exemption. United Illuminating Co. v. Groppo, 220 Conn. 749, 752-53, 601 A.2d 1005 (1992); Plastic Tooling Aids Laboratory, Inc. v. Commissioner of Revenue Services, 213 Conn. 365, 369, 567 A.2d 1218 (1990). The trial court carefully examined the record before it and concluded that the plaintiff had failed to establish that its sales of photocopies to the general public qualified for an exemption either as sales "to charitable and religious organizations," pursuant to § 12-412 (8), or as sales "by public libraries," pursuant to § 12-412 (24). The thoughtful and comprehensive memorandum of decision filed by the trial court thoroughly canvassed the applicable statutory language, its legislative history and relevant case holdings. See Advanced Business Systems, Inc. v. Crystal, 43 Conn. Sup. 253, 650 A.2d 641 (1994). Because that memorandum of decision fully states and meets the arguments raised in the present appeal, we adopt the trial court's well reasoned deci sion as a statement of the facts and the applicable law on these issues. It would serve no useful purpose for us to repeat the discussion contained therein. See Van Dyck Printing Co. v. DiNicola, 231 Conn. 272, 273-74, 648 A.2d 877 (1994); Connecticut Resources Recovery Authority v. Refuse Gardens, 229 Conn. 455, 458-59, 642 A.2d 697 (1994); Daw's Critical Care Registry, Inc. v. Dept. of Labor, 225 Conn. 99, 101-102, 622 A.2d 518 (1993). The judgment is affirmed. General Statutes § 12-412 provides in relevant part: "exemptions. Taxes imposed by this chapter shall not apply to the gross receipts from the sale of and the storage, use or other consumption in this state with respect to the following items . "(8) charitable and religious organizations. Sales of tangible property or services to charitable and religious organizations. . . . "(24) MUNICIPAL PUBLICATIONS, SALES BY PUBLIC LIBRARIES OR BY municipal auction. Sales of municipal publications such as information booklets and zoning regulations, tangible personal property sold by public libraries and the sale of any property at auction by a municipality, whenever the sale of any such foregoing item is in an amount of less than five dollars. . . ."

Berdon, J. The sole issue in this appeal is the determination of the burden of proof that the state must meet to establish a violation of a condition of probation. In a probation revocation hearing, the trial court found that the defendant had violated a condition of his probation, and revoked the defendant's probation. The Appellate Court affirmed the judgment of the trial court, with one judge, Freedman, J., dissenting. State v. Davis, 29 Conn. App. 801, 813, 618 A.2d 557 (1993). We granted the defendant's petition for certification, and we now reverse. In June, 1990, the defendant, Wayde Davis, pleaded guilty to and was convicted of the offense of failure to appear in the first degree, in violation of General Statutes § 53a-172. He was sentenced to a term of imprisonment of two years, execution suspended, and was placed on two years probation. At the time of sentencing, the defendant agreed to the standard terms of probation established by the office of adult probation, including the condition that he not violate any criminal law. In September, 1990, while on probation, the defendant was arrested and charged with burglary in the second degree in violation of General Statutes § 53a-102, criminal mischief in the third degree in violation of General Statutes § 53a-117, and possession of narcotics in violation of General Statutes § 21a-279. He was subsequently arrested on a warrant for violation of probation under General Statutes § 53a-32. The trial court held a probation revocation hearing pursuant to § 53a-32. At the hearing, Hartford police officer Thomas Sutton testified that he had been dispatched to an apartment complex on a report of burglary, and had entered an apartment building through a rear door "reported to have been broken." He testified that the door and the lock on the door appeared to have been damaged. He then entered the basement of the building through another door, which also appeared to have been damaged, and discovered in the basement the defendant and another man, Robert Graves. The defendant was holding a spoon containing white powder. Smith determined that Graves lived in the apartment building. Sutton arrested both men for burglary, criminal mischief for the damage to the door, and possession of drugs. The trial court found that the defendant had violated the terms of his probation by committing the crimes of burglary in the second degree and criminal mischief in the third degree. The trial court revoked the defendant's probation and ordered the defendant to serve his two year sentence. The defendant appealed from the judgment of revocation of his probation to the Appellate Court, claiming that there was insufficient evidence presented to the trial court to find that he had violated a condition of his probation. State v. Davis, supra, 29 Conn. App. 802. In its review of this claim, the Appellate Court decided that the applicable standard of proof for probation revocation proceedings under § 53a-32 was that of reasonable satisfaction, which it characterized as a lesser standard than the fair preponderance standard. Id., 810. The Appellate Court then reviewed the evidence presented to the trial court and held that it met the reasonable satisfaction standard as defined by that court. Id., 812-13. We agree with the Appellate Court that, under § 53a-32, a probation revocation hearing has two distinct components. Id., 805. The trial court must first conduct an adversarial evidentiary hearing to determine whether the defendant has in fact violated a condition of probation. "At such hearing the defendant shall be informed of the manner in which he is alleged to have violated the conditions of his probation or conditional discharge, shall be advised by the court that he has the right to retain counsel and, if indigent, shall be entitled to the services of the public defender, and shall have the right to cross-examine witnesses and to present evidence in his own behalf." General Statutes § 53a-32 (a). If the trial court determines that the evidence has established a violation of a condition of probation, then it proceeds to the second component of probation revocation, the determination of whether the defendant's probationary status should be revoked. On the basis of its consideration of "the whole record," the trial court "may continue or revoke the sentence of probation or conditional discharge or modify or enlarge the conditions, and, if such sentence is revoked, require the defendant to serve the sentence imposed or impose any lesser sentence." General Statutes § 53a-32 (b). In making this second determination, the trial court is vested with broad discretion. State v. Smith, 207 Conn. 152, 167, 540 A.2d 679 (1988) ("[a] defendant who seeks to reverse the exercise of judicial discretion, assumes a heavy burden"). In this appeal, we are not concerned with the trial court's discretionary determination of whether probation was properly revoked under all the circumstances. We are concerned only with the first component, that is, the determination of whether there has been a violation of a condition of probation. Specifically, we must decide what standard of proof the trial court must apply to the evidence presented at the revocation hearing in order to determine whether a violation of probation has occurred. The defendant argues that, as a matter of statutory interpretation of § 53a-32, the state must /meet the burden of establishing a violation of probation by the fair preponderance of the evidence pre sented at the revocation hearing. The fair preponderance standard requires that the "evidence induc[e] in the mind of the trier a reasonable belief that it is more probable than otherwise that the fact in issue is true." (Internal quotation marks omitted.) Lopinto v. Haines, 185 Conn. 527, 533, 441 A.2d 151 (1981). On the other hand, the state argues that only "a minimum level of certainty" is required to find a violation, and that we should adopt the reasonable satisfaction standard. As defined by the Appellate Court, this standard is met by evidence producing "a rational belief of a trial court that the evidence is adequate or sufficient to prove a violation." State v. Davis, supra, 29 Conn. App. 811. This court has provided little guidance in the past as to the burden of proof governing probation violation determinations, other than the statement that the applicable standard is "substantially lower than that for conviction." State v. Roberson, 165 Conn. 73, 80, 327 A.2d 556 (1973). While we have stated in the past that the trial court must be "reasonably satisfied" that a violation has occurred; id.; State v. Smith, supra, 207 Conn. 167; we have never specifically addressed the qualitative nature of the burden of persuasion required of the state in a revocation proceeding. Our reference to the reasonable satisfaction standard in Smith was not only dictum, but the standard was never defined, because the defendant Smith admitted to the trial court that he had violated his probation. State v. Smith, supra, 156-57. Similarly, in State v. Roberson, supra, 74, we were not required to set out a standard of proof for weighing conflicting evidence at a probation revocation hearing, but instead addressed the narrow issue of whether proof of a criminal conviction in a prior proceeding while on probation, standing alone, is sufficient evidence of a violation of probation. Finally, although the Appellate Court applied the reasonable satisfaction standard in State v. Johnson, 11 Conn. App. 251, 258, 527 A.2d 250 (1987), and Payne v. Robinson, 10 Conn. App. 395, 403, 523 A.2d 917 (1987), aff'd, 207 Conn. 565, 541 A.2d 504, cert. denied, 488 U.S. 898, 109 S. Ct. 242, 102 L. Ed. 2d 230 (1988), it did not define reasonable satisfaction in qualitative terms in those cases. Accordingly, we decide this case with a clean slate. The only language of the statute bearing on the state's burden of proving a violation of probation is that the trial court must find that "such violation is established by reliable and probative evidence." General Statutes § 53a-32 (b). We agree with the Appellate Court that § 53a-32 is silent with regard to the applicable standard of proof, as the "reliable and probative" language "concerns the nature of the evidence to be considered but is unrelated to the standard of proof that the court should apply in deciding the factual question of whether a violation of probation has occurred." State v. Davis, supra, 29 Conn. App. 807. Although we look to legislative history for guidance when a statute is silent as to a matter clearly encompassed in the purview of that statute; In re Valerie D., 223 Conn. 492, 512-13, 613 A.2d 748 (1992); the state correctly points out that there is no legislative history indicating an intention to establish any particular standard of proof with respect to probation revocation hearings. The function of the burden of proof employed by the court is to "allocat[e] the risk of error between the litigants and indicat[e] the relative importance of the ultimate decision. Addington v. Texas, 441 U.S. 418, 423, 99 S. Ct. 1804, 1808, 60 L. Ed. 2d 323 (1979). . . ." (Internal quotation marks omitted.) Cookson v. Cookson, 201 Conn. 229, 234, 514 A.2d 323 (1986). "For example, the proof beyond a reasonable doubt standard implies that the party on whom that burden is imposed should bear almost the entire risk of error. . . ," (Internal quotation marks omitted.) Id. "Proof by clear and convincing evidence is an intermediate standard generally used in civil cases involving allegations of fraud or some other quasi-criminal wrongdoing, or when particularly important individual rights are involved. . . ." (Internal quotation marks omitted.) Id. The preponderance of the evidence standard "indicates that the litigants should share equally the risk of error . . . because the interests at stake have roughly equal societal importance. . . ." (Internal quotation marks omitted.) Id. Although we do not decide the constitutional issue raised by the defendant, we must examine the issue of the applicable standard of proof for probation revocation proceedings in the context that the privilege of probation, once granted, is a constitutionally protected interest. "The due process clause of the fourteenth amendment to the United States constitution requires that certain minimum procedural safeguards be observed in the process of revoking the conditional liberty created by probation. Black v. Romano, 471 U.S. 606, 610, 105 S. Ct. 2254, 85 L. Ed. 2d 636 (1985); see Morrissey v. Brewer, 408 U.S. 471, 489, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972)." State v. Durkin, 219 Conn. 629, 635, 595 A.2d 826 (1991). This is so because "the loss of liberty entailed is a serious deprivation requiring that the [probationer] be accorded due process." Gagnon v. Scarpelli, 411 U.S. 778, 781, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973). "Among other things, due process entitles a probationer to a final revocation hearing under the conditions set forth in Morrissey v. Brewer, supra . . . see Gagnon v. Scarpelli, [supra, 782]; see also State v. Roberson, [supra, 165 Conn. 81-82]; State v. Crawford, 38 Conn. Sup. 472, 474-75, 451 A.2d 583 (1982); see generally General Statutes § 53a-32 (a)." State v. Durkin, supra, 635. On the other hand, " '[although a [probation] revocation proceeding must comport with the requirements of due process, it is not a criminal proceeding' Minnesota v. Murphy, 465 U.S. 420, 435 n.7, 104 S. Ct. 1136, 79 L. Ed. 2d 409, reh. denied, 466 U.S. 945, 104 S. Ct. 1932, 80 L. Ed. 2d 477 (1984)." State v. Durkin, supra, 219 Conn. 636 n.8. It therefore "does not require all of the procedural components associated with an adversary criminal proceeding. Gagnon v. Scarpelli, supra [411 U.S. 783 n.5, 788-89]; Morrissey v. Brewer, supra, [408 U.S. 480, 489] . . . ." State v. Smith, supra, 207 Conn. 177. We conclude today, on the basis of the following reasons, that the state has the burden of establishing a violation of probation by a fair preponderance of the evidence under § 53a-32. First, we agree with those authorities that hold that the probation revocation procedure established by § 53a-32 is akin to a civil proceeding. See Turner v. State, 784 S.W.2d 342, 344 (Mo. App. 1990); State v. Hodges, 798 P.2d 270, 278 (Utah App. 1990). Therefore, our determination is guided by the general rule that when a civil statute is silent as to the applicable standard of proof, the preponderance of the evidence standard governs factual determinations required by that statute. See Freeman v. Alamo Management Co., 221 Conn. 674, 678, 607 A.2d 370 (1992); Mallory v. Mallory, 207 Conn. 48, 52, 53, 539 A.2d 995 (1988) (fair preponderance is "the ordinary civil standard of proof"). This general rule is properly applied to probation revocation proceedings. Wink v. State, 317 Md. 330, 334, 563 A.2d 414 (1989); Turner v. State, supra, 344; State v. Hodges, supra (analogizing probation conditions to a contract between the state and the court; "[a]s in a contract dispute, proof of breach by the probationer is properly subject to a preponderance of evidence standard"). We have applied this general rule to statutes that affect other important interests that are not purely financial. Verrastro v. Middlesex Ins. Co., 207 Conn. 179, 183, 540 A.2d 693 (1988) (proof of criminal activity as element of a civil action); Mallory v. Mallory, supra, 207 Conn. 52-53 (determination of whether a parent has sexually abused a child for the purposes of child custody modification); Lavertue v. Niman, 196 Conn. 403, 407, 493 A.2d 213 (1985) (general rule applied to paternity actions despite their " 'quasicriminar overtones"); Lombardo v. State, 172 Conn. 385, 390-91, 374 A.2d 1065 (1977) (petition for a new trial following a criminal conviction on grounds of newly discovered evidence). Second, adoption of the fair preponderance standard best furthers the interests of the probationer and the state in the revocation proceeding. Of course, the probationer is interested in maintaining his or her liberty. Nevertheless, one of the primary purposes of probation is to promote the rehabilitation of the probationer. State v. Smith, supra, 207 Conn. 164; Belden v. Hugo, 88 Conn. 500, 504, 91 A. 369 (1914). Because both society and the probationer share an interest in a successful rehabilitative process, the state, as well as the probationer, has an interest in a reliable determination of whether probation has been violated. Payne v. Robinson, 207 Conn. 565, 574, 541 A.2d 504, cert. denied, 408 U.S. 898, 109 S. Ct. 242, 102 L. Ed. 2d 230 (1988) (rational basis for admission of evidence otherwise subject to exclusionary rule exists, because "the state has a legitimate interest in accurate factfinding in probation revocation proceedings" [emphasis added]); see Gagnon v. Scarpelli, supra, 411 U.S. 785 ("[b]oth the probationer . . . and the State have interests in the accurate finding of fact and the informed use of discretion"); Morrissey v. Brewer, supra, 408 U.S. 484. The important interests in the probationer's liberty and rehabilitation must be balanced, however, against the need to protect the public. Accordingly, probation is granted subject to conditions "meant to assure that the probation serves as a period of genuine rehabilitation and that the community is not harmed by the probationer's being at large." (Internal quotation marks omitted.) State v. Smith, supra, 207 Conn. 165; see Gagnon v. Scarpelli, supra, 411 U.S. 785; Morrissey v. Brewer, supra, 408 U.S. 478. Therefore, "the government's interest is not confined to 'unnecessarily interrupting a successful effort at rehabilitation.' The government also has an important interest in not 'imprudently prejudicing the safety of the community.' " Harris v. United States, 612 A.2d 198, 207 (D.C. App. 1992), quoting Gagnon v. Scarpelli, supra, 785. We agree with other courts that have held that the sometimes competing and sometimes coinciding interests of the probationer and the state are best balanced by the preponderance of the evidence standard. People v. Rodriguez, 51 Cal. 3d 437, 445-46, 795 P.2d 783, 272 Cal. Rptr. 613 (1990); Harris v. United States, supra, 207 ("the application of the preponderance standard . . . most appropriately protects the interests of both the government and the probationer" [internal quotation marks omitted]); see also H. Fisher, "Probation and Parole Revocation Procedures after Morrissey and Gagnon, " 65 J. Crim. L. and Criminology 46, 61 (1974) (advocating preponderance of evidence standard as a minimum standard for revocation hearings). Finally, it is unlikely that the legislature would have provided for the substantial adversarial safeguards in § 53a-32, including the right to present evidence and cross-examine witnesses, as well as the right to counsel for every probationer, without also intending that the standard of proof governing these proceedings be more reliable than mere reasonable satisfaction as defined by the Appellate Court. That standard, allowing a trial court to find a violation of probation although the evidence presented at the revocation hearing merely produces a rational belief that the probationer violated a condition of probation, is inconsistent with these procedural safeguards. Our conclusion is buttressed by the overwhelming number of states that utilize the preponderance of the evidence standard in the determination of whether probation has been violated. The majority of states (twenty-six) and the District of Columbia currently utilize the preponderance of the evidence standard; four states apply a higher standard; and nine apply the reasonable satisfaction standard or a lower stan dard. Although nearly all of the federal Circuit Courts use a standard labeled reasonable satisfaction, only two Circuit Courts have indicated, as did our Appellate Court, that this standard can be met upon less evidence than a preponderance. Indeed, at least one state Supreme Court has determined that the reasonable satisfaction standard is the same as the preponderance standard. Wink v. State, supra, 317 Md. 340-41. The state argues that this court should not adopt a preponderance of the evidence standard because "it would import a full-blown evidentiary hearing standard into a proceeding that should remain informal and flexible." Of course, the ultimate determination of whether probation should be revoked must be flexible and allow for a great degree of discretion in the trial court. State v. Smith, supra, 207 Conn. 167. " ' "The success of probation as a correctional tool is in large part tied to the flexibility within which it is permitted to operate." [ABA Project on Standards for Criminal Justice, Standards Relating to Probation (1970) § 3.3, commentary].' Buckley v. Quincy Division of District Court Dept., 395 Mass. 815, 818, 482 N.E.2d 511 (1985)." State v. Smith, supra, 171. We disagree with the state, however, that adoption of a fair preponderance standard for determining whether a violation has occurred will adversely affect the flexibility and broad discretion that the trial court must exercise in its ultimate determination of whether probation should be revoked. We merely require proof by a preponderance of the evidence to establish the " 'wholly retrospective factual question' Gagnon v. Scarpelli, supra, 411 U.S. 784; of whether a condition of probation has been violated. In the second component of revocation proceedings, trial courts will continue to have broad discretion to determine whether the ends of probation are best served by revocation. People v. Rodriguez, supra, 51 Cal. 3d 445 (fair preponderance standard for determination of existence of vio lation is compatible with the broad discretion and flexibility that underlies the ultimate revocation determination). As the United States Supreme Court noted with regard to parole (or probation ) revocation, the fostering of accurate fact-finding in the initial violation determination should indeed inure to the benefit of the discretionary revocation determination. The discretionary component of revocation proceedings "involves the application of expertise by the [decision maker] in making a prediction as to the ability of the individual to live in society without committing antisocial acts. This part of the decision, too, depends on facts, and therefore it is important for the [decision maker] to know not only that some violation was committed but also to know accurately how many and how serious the violations were." (Emphasis added.) Morrissey v. Brewer, supra, 408 U.S. 480. We hold that a trial court may not find a violation of probation unless it finds that the predicate facts underlying the violation have been established by a preponderance of the evidence at the hearing—that is, the evidence must induce a reasonable belief that it is more probable than not that the defendant has violated a condition of his or her probation. In the revocation hearing in this case, the trial court did not indicate what standard of proof it had applied to the evidence, merely stating: "The court is convinced that it has heard reliable and appropriate evidence to the effect that there has been a violation of the probation condition and so a violation is found." Ordinarily, in a civil case, we assume that a trial court has applied the fair preponderance of the evidence standard when it has failed to indicate the standard applied. In re Juvenile Appeal (83-AB), 189 Conn. 58, 59, 454 A.2d 271 (1983). Nevertheless, because the trial court articulated a standard of "appropriate evidence," we are uncertain as to the standard of proof applied by that court. This is particularly so because of the dicta in our prior decisions referring to the "reasonable satisfaction" standard. Therefore, this case should be remanded to the trial court for a determination of whether the state can prove by a fair preponderance of the evidence that the defendant violated a condition of his probation. The judgment of the Appellate Court is reversed, and the case is remanded to that court with direction to reverse the judgment of the trial court and to remand the case for a new probation revocation hearing. In this opinion the other justices concurred. In the present case, "burden of proof" refers to "the burden of persuading the trier of fact that the alleged fact is true." 2 C. McCormick, Evidence (4th Ed. 1992) § 336, p. 425; C. Tait & J. LaPlante, Handbook of Connecticut Evidence (2d Ed. 1988) § 4.1.1. We certified the following issues for review: "1. What is the standard of proof that the state must meet to establish a violation of a condition of probation? "2. Did the state meet the appropriate standard in the circumstances of this case?" State v. Davis, 225 Conn. 918, 623 A.2d 1024 (1993). We reach only the first certified question, and leave the resolution of the second to the trial court on remand. See General Statutes § 53a-30 (a) and (b). General Statutes § 53a-32 provides: "(a) At any time during the period of probation or conditional discharge, 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 or conditional discharge, or may issue a notice to appear to answer to a charge of such violation, which notice shall be personally served upon the defendant. Any such warrant shall authorize all officers named therein to return the defendant to the custody of the court or to any suitable detention facility designated by the court. 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 setting forth that the defendant has, in the judgment of the probation officer, violated the conditions of his probation. Such written statement, delivered with the defendant by the arresting officer to the official in charge of any correctional center or other place of detention, shall be sufficient warrant for the detention of the defendant. After making such an arrest, such probation officer shall present to the detaining authorities a similar statement of the circumstances of violation. Provisions regarding release on bail of persons charged with a crime shall be applicable to any defendant arrested under the provisions of this section. Upon such arrest and detention, the probation officer shall immediately so notify the court or any judge thereof. Thereupon, or upon an arrest by warrant as herein provided, the court shall cause the defendant to be brought before it without unnecessary delay for a hearing on the violation charges. At such hearing the defendant shall be informed of the manner in which he is alleged to have violated the conditions of his probation or conditional discharge, shall be advised by the court that he has the right to retain counsel and, if indigent, shall be entitled to the services of the public defender, and shall have the right to cross-examine witnesses and to present evidence in his own behalf. "(b) If such violation is established, the court may continue or revoke the sentence of probation or conditional discharge or modify or enlarge the conditions, and, if such sentence is revoked, require the defendant to serve the sentence imposed or impose any lesser sentence. No such revocation shall be ordered, except upon consideration of the whole record and unless such violation is established by reliable and probative evidence." The trial court stated on the record that it had made no finding on whether the defendant had been in possession of drugs. The defendant also claims that the due process clauses of the federal and state constitutions require that a finding of a violation of probation be established by a fair preponderance of the evidence. Because we determine, as a matter of statutory interpretation, that the trial court is required to utilize the fair preponderance standard, we need not decide the standard mandated by the fourteenth amendment to the United States constitution or article first, § 8, of the state constitution. The Supreme Court of the United States has not yet enunciated a minimum standard of proof applicable to revocation hearings, although the court implied that due process would not mandate the "beyond a reasonable doubt" standard applicable to criminal trials. Gagnon v. Scarpelli, 411 U.S. 778, 789 n.12, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973); see State v. Smith, supra, 207 Conn. 177 ("the authorities are virtually unanimous in concluding that the standard of proof used in a criminal trial, namely 'beyond a reasonable doubt,' is not applicable to a probation revocation hearing"). The United States Supreme Court has also indicated, however, that a mere finding of probable cause would be constitutionally insufficient to deprive a defendant of his conditional liberty interest in the status of probation. Morrissey v. Brewer, 408 U.S. 471, 488, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972) (final revocation hearing "must be the basis for more than determining probable cause; it must lead to a final evaluation of any contested relevant facts and consideration of whether the facts as determined warrant revocation"). Some commentators have taken the position that the preponderance standard is the minimum standard that can be applied in a revocation hearing consistent with the due process clause of the federal constitution. E.g., Resource Center on Correctional Law and Legal Services, "Accelerating Change in Correctional Law: The Impact of Morrissey, " reprinted in Parole (W. Amos & C. Newman eds. 1975) pp. 130, 139; 3 W. LaFave & J. Israel, Criminal Procedure (1984) § 25.4, p. 162. Judge Freedman, in his dissent, agreed with the Appellate Court majority that the standard of proof in determining whether there has been a violation of probation is reasonable satisfaction, but defined reasonable satisfaction to be the fair preponderance of the evidence. State v. Davis, supra, 29 Conn. App. 814 (Freedman, J., dissenting); see Wink v. State, 317 Md. 330, 340-41, 563 A.2d 414 (1989) (reasonable satisfaction requires proof by a preponderance of the evidence). The standard used in criminal proceedings requires that every element of a criminal offense be proven beyond a reasonable doubt, which requires proof that " 'precludes every reasonable hypothesis except that which it tends to support, and is consistent with the defendant's guilt and inconsistent with any other rational conclusion.' " State v. Carpenter, 214 Conn. 77, 84, 570 A.2d 203 (1990), on appeal after remand, 220 Conn. 169, 595 A.2d 881 (1991), cert. denied, 502 U.S. 1034, 112 S. Ct. 877, 116 L. Ed. 2d 181 (1992). The clear and convincing standard is met by evidence that "induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist." (Internal quotation marks omitted.) State v. Bonello, 210 Conn. 51, 66, 554 A.2d 277, cert. denied, 490 U.S. 1082, 109 S. Ct. 3268, 106 L. Ed. 2d 612 (1989). In Morrissey v. Brewer, supra, 408 U.S. 489, the United States Supreme Court held that due process mandates that the revocation of parole must be predicated upon facts established at an adversarial hearing with cer tain minimum procedural safeguards, including written notice of the claimed violation, disclosure to the parolee of the evidence against him or her, an opportunity to be heard in person and present witnesses and documentary evidence, the right to confront and cross-examine adverse witnesses, a neutral and detached fact finder, and a written statement by the fact finder detailing the evidence relied on and reasons for revoking parole. In Gagnon v. Scarpelli, supra, 411 U.S. 782 and n.3, the United States Supreme Court held that the revocation of probation is "constitutionally indistinguishable from the revocation of parole," and therefore the revocation of probation must be predicated upon a hearing with these same procedural safeguards. That the purpose of probation is to rehabilitate the probationer without endangering the public is indicated in the statute that authorizes the initial placement of a defendant on probation. General Statutes § 53a-29. Under § 53a-29, suspension of sentence and probation are available if the sentencing court determines that "(1) [pjresent 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." Rich v. State, 640 P.2d 159, 163 (Alaska App. 1982); State v. Gerlaugh, 134 Ariz. 164, 171, 654 P.2d 800 (1982); Baldridge v. State, 31 Ark. App. 114, 116, 789 S.W.2d 735 (1990); People v. Rodriguez, supra, 51 Cal. 3d 447; Harris v. United States, supra, 612 A.2d 207; Rita v. State, 470 So. 2d 80, 85 (Fla. Dist. App.), review denied, 480 So. 2d 1296 (Fla. 1985) ("greater weight of the evidence"); People v. Wadelton, 82 Ill. App. 3d 684, 687, 402 N.E.2d 932 (1980); Jaynes v. State, 437 N.E.2d 137, 139 (Ind. App. 1982); Calvert v. State, 310 N.W.2d 185, 187 (Iowa 1981), cert. denied, 456 U.S. 930, 102 S. Ct. 1980, 72 L. Ed. 2d 447 (1982); State v. Carter, 5 Kan. App. 2d 201, 206, 614 P.2d 1007 (1980); Rasdon v. Commonwealth, 701 S.W.2d 716, 719 (Ky. App. 1986); State v. LaCasce, 512 A.2d 312, 316 (Me. 1986); Wink v. State, supra, 317 Md. 332; People v. Ison, 132 Mich. App. 61, 66, 346 N.W.2d 894 (1984); Turner v. State, supra, 784 S.W.2d 344; Stapleford v. Perrin, 122 N.H. 1083, 1089, 453 A.2d 1304 (1982); State v. Reyes, 207 N.J. Super. 126, 137, 504 A.2d 43 (App. Div. 1986), cert. denied, 103 N.J. 499, 511 A.2d 671 (1986); People v. Hemphill, 120 App. Div. 2d 767, 768, 501 N.Y.S.2d 503 (1986); State v. Saavedra, 406 N.W.2d 667, 669 (N.D. 1987); McCaskey v. State, 781 P.2d 836, 837 (Okla. Crim. App. 1989); State v. Donovan, 305 Or. 332, 335, 751 P.2d 1109 (1980); Commonwealth v. Brown, 503 Pa. 514, 520 n.2, 469 A.2d 1371 (1983); Lloyd v. State, 574 S.W.2d 159, 160 (Tex. Crim. App. 1978); State v. Hodges, supra, 798 P.2d 278; State v. Begins, 147 Vt. 295, 297, 514 A.2d 719 (1986); State ex rel. Thompson v. Riveland, 109 Wis. 2d 580, 585, 326 N.W.2d 768 (1982); Krow v. State, 840 P.2d 261, 264 (Wyo. 1992). In re C.B., 196 Colo. 362, 364, 585 P.2d 281 (1978) (violations that constitute criminal offenses must be proven beyond a reasonable doubt; violations of conditions that are not criminal offenses proven by clear and convincing evidence); State v. Ehmke, 400 N.W.2d 839, 840 (Minn. App. 1987) (clear and convincing standard); State v. Finnegan, 232 Neb. 75, 77, 439 N.W.2d 496 (1989) (clear and convincing standard); State v. Bowman, 180 W. Va. 196, 198-99, 375 S.E.2d 829 (1988) (clear preponderance, which requires more persuasive proof than the preponderance of the evidence standard). The American Bar Association has recommended that the clear and convincing standard be utilized in determining if a condition of probation has been violated. 3 ABA Standards for Criminal Justice (2d Ed. 1986) Standard 18-7.5 (e) (iii). The committee reasoned as follows: "Underlying this position is the premise that a liberty interest should not be sacrificed simply on the 'preponderance' standard, which is normally applicable only to civil trials. Otherwise, an unfortunate incentive might arise to use the revocation hearing as a substitute for a criminal prosecution with its higher standard of proof. Even where this incentive is not present, the focus of the law should be on the precipitating event that is said to justify the loss of present liberty. Where the original crime did not require incarceration, subsequent behavior that is considered sufficient to justify confinement should be established under a standard that approaches providing the same assurance of factual accuracy that a criminal trial does." Id., commentary, p. 18-533. Indeed, the legislatures of two states have provided for a clear and convincing standard in probation revocation proceedings; Minn. R. Crim. Proc. § 27.04 subd. 3 (3) (1994 Sup.); Neb. Rev. Stat. § 29-2267 (Reissue 1989); and the legislature in Colorado has required that when a violation is based on a criminal offense, it must be proven in the revocation hearing beyond a reasonable doubt. Colo. Rev. Stat. Annot. § 16-11-206 (3) (1986). Powell v. State, 485 So. 2d 379, 381 (Ala. 1986); Brown v. State, 249 A.2d 269, 272 (Del. 1968); Cordle v. State, 173 Ga. App. 369, 370, 326 S.E.2d 557 (1985) ("slight evidence"); State v. Ford, 218 Mont. 215, 220, 707 P.2d 16 (1985); Dail v. State, 96 Nev. 435, 440, 610 P.2d 1193 (1980); State v. Tozzi, 84 N.C. App. 517, 521, 353 S.E.2d 250 (1987); In re Lamarine, 527 A.2d 1133, 1135 (R.I. 1987); State v. Herrlein, 424 N.W.2d 376, 377-78 (S.D. 1988); State v. Badger, 64 Wash. App. 904, 908, 827 P.2d 318 (1992). The remaining states either apply some other standard or have no published opinion setting out a standard. See, e.g., State v. Milton, 673 S.W.2d 555, 557 (Tenn. Crim. App. 1984) (evidence sufficient "if it allows the trial court to make a conscientious and intelligent judgment"). See Harris v. United States, supra, 612 A.2d 204 and n.10 (citing cases; every federal Circuit Court uses the reasonable satisfaction standard except for the Tenth Circuit, which has no reported case deciding the issue). See United States v. Torrez-Flores, 624 F.2d 776, 782 (7th Cir. 1980) ("court need only be 'reasonably satisfied' and need not find by a preponderance of the evidence that a violation has occurred"); United States v. Francischine, 512 F.2d 827, 829 (5th Cir. 1975) ("[pjrobably evidence rising to the level of substantial evidence is not even required . All that is required is that the evidence and facts be such as to reasonably satisfy the judge that the conduct of the probationer has not been as good as required by the conditions of probation."). In Wink v. State, supra, 317 Md. 334-38, the Court of Appeals of Maryland held that the reasonable satisfaction standard, long applied by the courts of that state, requires that the trial court find the existence of a violation of probation by the preponderance of the evidence. Rejecting a conclusion by an intermediate appellate court that the reasonable satisfaction standard requires less persuasive evidence than the preponderance of the evidence standard; id., 339; the court reasoned: "We have great difficulty in conceptualizing how a reasonable satisfaction standard can meaningfully operate below the level of a preponderance of the evidence while the State would still bear the burden to produce evidence and the burden of persuasion. We hold that for purposes of factfinding in probation revocation eases references in our decisions to the reasonable satisfaction of the trial court mean that the trial judge must find the essential facts comprising a violation of condition by a preponderance of the evidence." Id., 340-41. See footnote 10.

Santaniello, J. The defendant, Lee Vrne Kelley, was found guilty by a jury of one count of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), one count of first degree sexual assault in violation of General Statutes § 53a-70 (a) (l), and one count of third degree sexual assault in violation of General Statutes § 53a-72a (a) (2). He was sentenced by the trial court to a term of imprisonment of eighteen years. The defendant has appealed directly to this court pursuant to General Statutes § 51-199 (b) (3). He claims in his appeal that the trial court improperly: (1) precluded him from questioning the victim regarding a previous false accusation of sexual assault in violation of his right to confrontation; (2) admitted constancy of accusation evidence concerning the sexual assault; (3) admitted the victim's tape-recorded statement as constancy of accusation evidence; (4) defined reasonable doubt in the charge to the jury as "a doubt for which a valid reason can be assigned," thereby diluting the state's burden of proof; and (5) charged the jury on first degree sexual assault in such a way as to allow the jury to convict him on a statutory alternative that was not supported by the evidence. We affirm the judgment of the trial court. The jury could reasonably have found the following facts. On August 18,1990, the victim, a seventeen year old female, lived in New Haven with her mother and siblings. During the morning on that date, the defendant, the victim's uncle, came to the victim's home and asked that she go with him to tell his wife that he had been at the victim's home the previous night. The victim agreed. Consequently, at approximately noon, they left the victim's home to walk to the defendant's apartment. The victim took a shortcut and arrived at the defendant's third floor apartment before he did. When no one answered the door, she went downstairs to the first floor. The defendant appeared behind the victim in the first floor hallway and told her that the keys to his apartment were in the basement. When the victim told the defendant that she did not want to go down into the basement, he pulled her arms behind her and forced her toward the basement door. The defendant was holding a screwdriver in his hand. Although the door was usually locked, the lock had been broken. The victim, afraid and crying, asked the defendant what he was doing and begged him not to take her to the basement. Believing that no one was nearby, the victim did not call out or attempt to attract attention. Once in the basement, the defendant pushed the victim away from the stairs toward a darkened portion of the basement where he forced her down onto the dirt and rock floor. The defendant pinned the victim down and ordered her to remove her clothes and had intercourse with her. Subsequently, he ordered the victim to get dressed, and threatened to tie her up if she continued crying and screaming. The victim, in order to get away from the defendant, assured him that she would tell no one of the assault. The defendant released her. When released, however, the victim ran home and informed her mother of what had occurred. Thereafter, in response to a call about an alleged sexual assault, New Haven police officers arrived at the victim's home and found her rolling on the floor in "hysterics" and unable to answer questions. After being taken to the hospital by ambulance, she still could not respond to questions but did indicate that she would like to speak to a psychiatrist. Nonetheless, at the hospital, she was not fully responsive to the psychiatrist, an examining physician or a police detective. Although she answered some questions, she did not provide details of the assault. On the day of the incident, after she was discharged from the hospital, however, the victim did permit the police to record her statement. Approximately two months later, the victim also related the details of her encounter with the defendant to a nurse practitioner. I The defendant first argues that the trial court improperly precluded him from questioning the victim about what he contends was a previous false accusation of sexual assault. He asserts that the purpose of cross-examining the victim regarding a previous complaint that did not result in a prosecution was "to show that [the victim] has no hesitancy in making complaints of sexual assault. . . ." The defendant claims that the court's ruling deprived the jury of information necessary for it to determine the victim's credibility and improperly curtailed his cross-examination of the victim. We disagree. "The sixth amendment to the [United States] constitution guarantees the right of an accused in a criminal prosecution to confront the witnesses against him. . . . The primary interest served by confrontation is the right to cross-examination . . . and an important function of cross-examination is the exposure of a witness' motivation in testifying. . . . Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted." (Citations omitted; internal quotation marks omitted.) State v. Colton, 227 Conn. 231, 248-49, 630 A.2d 577 (1993). "The confrontation clause does not, however, suspend the rules of evidence to give the defendant the right to engage in unrestricted cross-examination." State v. Johnson, 21 Conn. App. 291, 293, 573 A.2d 1218 (1990). Only relevant evidence may be elicited through cross-examination. State v. Gaynor, 182 Conn. 501, 509, 438 A.2d 479 (1980). The court determines whether the evidence sought on cross-examination is relevant by determining whether that evidence "renders the existence of [other facts] either certain or more probable." (Internal quotation marks omitted.) State v. Kelly, 208 Conn. 365, 376, 545 A.2d 1048 (1988). In Kelly, we held that the fact that a man whom the victim had previously accused of sexual assault had been acquitted had no probative value in a subsequent sexual assault case against a different defendant. Id. We stated that the acquittal did "not make the charge of sexual assault against [the earlier defendant] or the charge against the defendant a 'recent contrivance,' 'imagination,' or 'sexual fantasy. . . .' " Id., 377. On the other hand, in State v. Ouellette, 190 Conn. 84, 459 A.2d 1005 (1983), the victim was an eight year old child. In her statement to the police, the victim stated that she had been sexually assaulted by the defendant and the defendant's brother-in-law. Id., 87-88. The victim had not, however, previously mentioned being assaulted by the defendant's brother-in-law to anyone other than the police. Id., 103. We con- eluded that the trial court's denial of the right to cross-examine the victim concerning this discrepancy was harmful error. Id., 103-104. In the present case, the defendant presented no evidence to the trial court concerning the alleged prior false accusation of sexual assault. In his offer of proof, the defendant claimed to know the name of the previously accused individual, but he did not know exactly when the accusation had been made, why the accusation had not resulted in a prosecution, or even whether the previous accusation was false. The court therefore refused the defendant permission to question the victim regarding the truth or falsity of the prior accusation because his offer of proof was insufficient and because the proposed line of inquiry was not relevant. Unlike the situation in State v. Ouellette, supra, 190 Conn. 84, the victim here had not mentioned a previous assault in her statements about the incident. Without evidence of the falsity of the prior accusation, therefore, the defendant cannot show the relevance of the proposed cross-examination. As in State v. Kelly, supra, 208 Conn. 377, the victim's " 'conduct with another man [has] no bearing on her conduct with this defendant or on the credibility of her testimony in this case.' " "The court has wide discretion to determine the scope of cross-examination. . . . Every reasonable presumption should be given in favor of the correctness of the court's ruling in determining whether there has been an abuse of discretion." (Citations omitted; internal quotation marks omitted.) State v. Hernandez, 224 Conn. 196, 208, 618 A.2d 494 (1992). The trial court did not abuse its discretion in disallowing the proposed cross-examination. II The defendant next claims that the trial court improperly admitted constancy of accusation evidence. In addi tion to the testimony of the victim, the jury heard the victim's story from the victim's sister, the psychiatrist who treated the victim at the hospital, the admitting physician, a nurse practitioner and a police detective. The defendant claims that the constancy of accusation doctrine is "outmoded, anachronistic and gender-biased" and violates his rights under article first, § 20, of the Connecticut constitution. He also claims that the constancy of accusation testimony violated his right to confrontation under the sixth amendment to the United States constitution in that it does not fall within a recognized hearsay exception. We disagree. At trial, the defendant claimed only that the constancy of accusation evidence violated his rights under the confrontation clause. He now seeks to prevail on the remainder of his claims under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The defendant has not demonstrated that his claim that the constancy of accusation doctrine is outmoded and clearly anachronistic is of constitutional dimension. The defendant, therefore, has not satisfied the second prong of the test set forth in Golding. The defendant may not prevail on this claim. The defendant also seeks to prevail under Golding on his claim that the constancy of accusation doctrine is gender biased and that it violated his rights under article first, § 20, of the Connecticut constitution. Although the constancy of accusation doctrine was adopted by this court in a case in which a female sexual assault victim had confided in a female friend; State v. De Wolf, 8 Conn. 93, 100 (1830); we have never restricted its application to female victims. See, e.g., State v. Pierson, 201 Conn. 211, 514 A.2d 724 (1986) (victim was adolescent boy). Because the doctrine would apply equally to male and female victims, we conclude that it is not gender biased and, therefore, does not violate the defendant's rights under article first, § 20, of the Connecticut constitution. The defendant also claims that the allowance of constancy of accusation testimony violated his right to confrontation. The admissibility of constancy of accusation evidence has consistently been approved by this court. See, e.g., State v. Parris, 219 Conn. 283, 289-90, 592 A.2d 943 (1991); State v. Segerberg, 131 Conn. 546, 549, 41 A.2d 101 (1945); State v. Kinney, 44 Conn. 153, 156-57 (1876). Constancy of accusation evidence is admissible "when the complainant first has testified, in court, to the facts of the alleged occurrence . She is then permitted to state that she made complaint to some other person. Thereupon, the person to whom she complained, out of court and in the absence of the defendant, is permitted to testify not only to the fact that a complaint was made but also to its details." (Citation omitted.) State v. Segerberg, supra, 548-49. In approving the admission of constancy of accusation testimony, we have explained that it would be natural for the victim of actual or attempted sexual assault to relate the incident to others if it had actually happened, but not if the incident had not occurred. Similarly, the victim's recitation of the details of the incident would likely be constant if the claim were true, but dis crepancies would be more likely to appear if the incident had not occurred. State v. Kinney, supra, 44 Conn. 156-57. "Rather than disadvantaging a defendant, such a doctrine supplies a fertile field for cross-examination of a complainant with reference to ascertaining where the truth lies." State v. Dabkowski, 199 Conn. 193, 202, 506 A.2d 118 (1986). In addition to providing additional information on which the defendant can cross-examine the victim, the defendant can cross-examine the constancy of accusation witnesses. See State v. Brigandi, 186 Conn. 521, 533, 442 A.2d 927 (1982). The defendant's right to confrontation, therefore, has not been violated. Additionally, constancy of accusation testimony is admissible only to corroborate the victim's testimony. State v. Hamer, 188 Conn. 562, 565, 452 A.2d 313 (1982). "Constancy evidence is properly viewed as a peculiar species of evidence, and, rather than further attempt to conform our traditionally liberal doctrine to evidentiary rules designed for other classes of evidence, we leave any curtailment of the doctrine to future cases where compelling reasons presented by litigants might persuade us to do so." State v. Parris, supra, 219 Conn. 292. We have rejected challenges to the constancy of accusation doctrine in the past and are not persuaded now by the defendant's argument. See State v. Dabkowski, supra, 199 Conn. 203; State v. Kish, 186 Conn. 757, 768, 443 A.2d 1274 (1982). Ill The defendant next challenges the admissibility of the victim's tape-recorded statement as constancy of accusation evidence. The defendant claims that admitting her tape-recorded statement enabled the victim to testify a second time without being cross-examined. In a discussion outside the presence of the jury, the defendant conceded that a transcript of the statement would be admissible as constancy of accusation evidence. The defendant objected only to the jury hearing the statement in the victim's own voice. The court admitted the tape recording because the defendant presented no evidence to indicate that the recording was not "a reliable preservation of what the witness said at the police department." It is immaterial that the constancy of accusation testimony was offered by the victim herself rather than by the person to whom she gave the statement. State v. Hamer, supra, 188 Conn. 565. The victim's tape-recorded statement is persuasive evidence of what she told the police when she was released from the hospital. See State v. DePastino, 228 Conn. 552, 569, 638 A.2d 578 (1994); State v. Bethea, 24 Conn. App. 13, 20, 585 A.2d 1235, cert. denied, 218 Conn. 901, 588 A.2d 1076 (1991). The defendant had the opportunity to cross-examine the victim about what she said on the tape, as well as the opportunity to cross-examine the officer about the circumstances under which her statement was recorded. The trial court, therefore, properly admitted the tape-recorded statement. IV The defendant also claims that by defining a reasonable doubt as "a doubt for which a valid reason can be assigned" or as "a doubt as in serious affairs which concern yourselves, you would pay heed," the trial court diluted the state's burden of proof in violation of his state and federal constitutional due process rights. We disagree. We have consistently upheld, against claims of constitutional error, the definition of a reasonable doubt as "a doubt for which a valid reason may be assigned." See, e.g., State v. Adams, 225 Conn. 270, 290-91, 623 A.2d 42 (1993); 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). Similarly, we have upheld the definition of a reasonable doubt as "a doubt as in serious affairs which would concern yourselves, you would pay heed." See, e.g., State v. Gomez, 225 Conn. 347, 353-54, 622 A.2d 1014 (1993); State v. Thomas, 214 Conn. 118, 119-20, 570 A.2d 1123 (1990). We have concluded that these definitions of reasonable doubt, when viewed in the context of an entire charge, do not dilute the state's burden of proof. The court's charge in the present case, when viewed in its entirety, clearly defined the proof beyond a reasonable doubt standard. The defendant's constitutional due process rights therefore were not violated. V Finally, the defendant claims that the court's charge on sexual assault in the first degree may have allowed the jury to convict him on a statutory alternative that was not supported by the evidence. Because the defendant did not preserve this claim at trial, he seeks to prevail under State v. Golding, supra, 213 Conn. 239-40. The substitute information charged the defendant with compelling "another person to engage in sexual intercourse by the use of force against her or by the threat of the use of force which reasonably caused her to fear physical injury. . . ." The victim testified that the defendant had pulled her arms behind her back, had forced her down the basement stairs, had ordered her to be quiet, had forced her onto the dirt floor, had held his arm against her neck so that she could not escape, had told her to remove her undergarments, and had sexually assaulted her. The trial court instructed the jury: "The state does not have the burden to prove both the use of force and the threat of use of force. The state does have the burden to prove one or the other, that is, the defendant compelled [the victim] to engage in sexual intercourse at that time and place either by use of force against her or by threat of use of force against her which threat [of use of force] reasonably caused her to fear physical injury to herself. "The word threat has its ordinary meaning. Threat of use of force is any indication of a person's purpose or intention to use force against another person. Such an indication may be made in any manner, whether by words or conduct. "The state has the burden to prove that the defendant did either use force or threatened the use of force, which threat did reasonably cause [the victim] to fear impairment of her physical condition or did reasonably cause her to fear that she would receive pain. "If upon all the evidence you find that the defendant did use force you need not consider whether he threatened her with the use of force. If, however, you find the defendant did not use force you shall then consider whether he threatened her with the use of force, which threat reasonably caused her to fear physical injury to herself." We have recently concluded that instructing the jury on both forms of compulsion, even where the state has presented insufficient evidence of one alternative, is not a constitutional violation, but that it did constitute harmless error in that case. State v. Chapman, 229 Conn. 529, 544-48, 643 A.2d 1213 (1994). Because the defendant has not demonstrated that a constitutional violation "clearly exists and clearly deprived [him] of a fair trial," he has failed to satisfy the third prong of Golding. Accordingly, he cannot prevail on this claim. The judgment is affirmed. In this opinion Peters, C. J., Callahan and Borden, Js., concurred. General Statutes § 53a-92 (a) provides in relevant part: "A person is guilty of kidnapping in the first degree when he abducts another person and . . . (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually . . . ." General Statutes § 53a-70 (a) provides in relevant part: "A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person . . . ." General Statutes § 53a-72a (a) provides in relevant part: "A person is guilty of sexual assault in the third degree when such person . (2) engages in sexual intercourse with another person whom the actor knows to be related to him or her within any of the degrees of kindred specified in section 46b-21." General Statutes § 51-199 (b) provides in relevant part: "The following matters shall be taken directly to the supreme court . (3) an appeal in any criminal action involving a conviction for a capital felony, class A felony, or other felony, including any persistent offender status, for which the maximum sentence which may be imposed exceeds twenty years . . . ." The defendant's claim is based on the sixth amendment to the United States constitution. He presents no independent analysis of the state constitution. State v. Robinson, 227 Conn. 711, 721, 631 A.2d 288 (1993); State v. Johnson, 227 Conn. 611, 614, 630 A.2d 69 (1993). The constitution of Connecticut, article first, § 20, as amended by article twenty-first of the amendments, provides: "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 or her civil or political rights because of religion, race, color, ancestry, national origin, sex or physical or mental disability." "[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40. In his requested jury instructions concerning proof beyond a reasonable doubt, the defendant both requested and objected to the language on which he bases his appeal. The defendant asked the court to instruct the jury that a reasonable doubt "is a doubt for which a valid reason can be assigned" but not "a doubt for which the jury must or can 'assign' a reason." The defendant also requested that the jury be instructed that a reasonable doubt is "the kind of doubt which, in the serious affairs which concern you in everyday life, you would pay heed and attention to," but not one which "a person would 'act upon' or would 'be willing to act upon' . or would 'pay heed or attention to . . . .' "

Katz, J. This appeal requires us to establish the proper test for determining whether a hospital sufficiently complied with its medical staff bylaw obligations for the purpose of terminating a physician's medical staff privileges. We conclude that the substantial compliance test is the proper standard by which to review the hospital's compliance with the bylaws, and therefore affirm the judgment of the Appellate Court. The following undisputed facts are relevant to this appeal. The plaintiff, Guy Owens, is a neurosurgeon who enjoyed surgical privileges at the defendant, New Britain General Hospital (hospital), for several years prior to the events leading up to the hospital's decision not to reappoint him to its medical staff. In 1982, the hospital's chief of surgery, Gerald O. Strauch, appointed two outside neurosurgeons, William F. Collins, Jr., and Edward B. Schlesinger, to conduct a review of the entire neurosurgery section of the hospital. At the conclusion of their review, Collins and Schlesinger issued a report (Collins-Schlesinger report) that summarized their findings and concluded, inter alia, that the plaintiff inappropriately and unjustifiably had been performing disc surgery. The Collins-Schlesinger report recommended that the plaintiff obtain second opinions in all future cases of disc sur gery and that the plaintiff refer certain patients for psychiatric consultations before performing particular surgical procedures. The Collins-Schlesinger report also recommended that an outside review of the neurological section be conducted on a monthly basis. In response to the conclusions and recommendations contained in the Collins-Schlesinger report, Strauch implemented a set of measures (Strauch measures) with which the plaintiff, in writing, voluntarily agreed to comply. Pursuant to one of the Strauch measures, the plaintiff agreed to obtain second opinions for disc surgery and psychiatric consultations for patients who were to undergo certain other procedures. In accordance with a second Strauch measure, the hospital established a monthly review of the neurosurgery section, and charged Richard Simon, a neurosurgeon at the University of Connecticut Health Center, with its implementation. Subsequently, the plaintiff informed Strauch that he would no longer adhere to the Strauch measure requiring him to obtain second opinions and psychiatric consultations. Thereafter, in December, 1984, Simon rendered a lengthy report (Simon report) containing a review of the plaintiff's compliance with the Strauch measures, as well as statistical data concerning the operative procedures performed by the plaintiff. The Simon report severely criticized the plaintiff's surgical practices and concluded that the plaintiff had not complied with the Strauch measure requiring second opinions and consultations. In February, 1985, Strauch furnished the plaintiff with the Simon report and advised him to prepare a written response. On receipt of the plaintiffs response, Strauch filed with the hospital staff executive committee (executive committee), in accordance with article VII, § 1 (a) of the medical staff bylaws, a formal recommendation for corrective action against the plaintiff. Subsequently, Strauch appointed a three person ad hoc committee, chaired by physician William Waskowitz, (Waskowitz committee) to consider Strauch's recommendation. On October 18, 1985, after six meetings, the Waskowitz committee filed its report with the executive committee, recommending that the executive committee implement Strauch's recommendation for corrective action. In a follow-up report dated October 28,1985, the Waskowitz committee stated that, in formulating its recommendation, it had relied on the Collins-Schlesinger report, the Simon report and thirty-five other records of the plaintiff's patients, selected by Strauch for the Waskowitz committee's review. The Waskowitz committee further stated that it had reached the following conclusions: "1. In spite of agreeing in writing to do so, [the plaintiff] failed in most cases to obtain either neurosurgical, neurological or orthopedic second opinions or indicated psychiatric consultations"; and "2. In most of the charts reviewed [the plaintiff] performed surgical procedures that were unjustifiable." Subsequently, by letter dated October 29, 1985, George H. Bray, the hospital's chief of staff and chair of the executive committee, informed the plaintiff that the executive committee had convened to consider both Strauch's recommendation for corrective action and the Waskowitz committee's report. In the same letter, Bray invited the plaintiff to appear informally before the executive committee on November 15, 1985, for the purpose of discussing his surgical practice. Bray also advised the plaintiff that, because the executive corn mittee had voted unanimously to require him to obtain corroborative second opinions in cases involving surgery, he was strongly advised to abide by the Strauch measures pending the resolution of his case. The plaintiff thereafter agreed in writing to comply with the executive committee's requests. At the executive committee's November 15 meeting, the plaintiff addressed the executive committee, criticized both the Collins-Schlesinger and Simon reports, and presented statements from consulting experts he had retained. Following that meeting, the executive committee recommended the imposition of various restrictions on the plaintiff's clinical and surgical privileges. The plaintiff appealed from the executive committee's recommendation, thereby staying the effect of the restrictions. In response to the plaintiffs appeal, a second ad hoc committee, chaired by Thomas J. Devers (Devers committee), was appointed to hold a hearing. In April, 1986, after completing the formal hearing process, the Devers committee recommended confirmation of the executive committee's recommendation to impose restrictions on the plaintiff's practice, and the plaintiff appealed from that decision to the hospital board of directors. In May, 1986, while that appeal was pending, Bray informed the plaintiff that another neurosurgeon on the hospital staff, Ali Nourizadeh, had written a letter to the executive committee raising several serious charges against the plaintiff. On June 9, 1986, the executive committee held a special meeting, at which the plaintiff was present, to consider the charges. Following that meeting, by letter dated June 10, 1986, the plaintiff was notified that, pursuant to article V, § 3 (b) of the medical staff bylaws, the executive committee had voted to recommend that he not be reappointed. Subsequently, the plaintiff appealed from the executive committee's recommendation. While that appeal was pending, in late June, 1986, the plaintiff withdrew his appeal from the Devers committee's confirmation of the executive committee's recommendation to impose restrictions on his prac tice, thereby triggering the immediate implementation of the restrictions. A three member committee subsequently began monitoring the plaintiffs practice for compliance with the restrictions. Concurrently, in response to the plaintiffs appeal from the executive committee's recommendation not to reappoint him to the medical staff, another ad hoc committee was formed, chaired by Martin Dinep (Dinep committee). After a series of hearings, the Dinep committee released its report, dated October 15, 1986, in which it unanimously upheld the executive committee's decision not to recommend the plaintiff's reappointment. Subsequently, the executive committee accepted the Dinep committee's report and the plaintiff appealed to the board of directors. An appellate review committee, composed of members of the board of directors, chaired by Anthony A. Cooper (Cooper committee), was formed to review the Dinep committee's conclusions. On January 20, 1987, after three evidentiary hearings and two sessions of deliberations, the Cooper committee concluded that the executive committee's recommendation not to reappoint the plaintiff was supported by the record. Consequently, the Cooper committee unanimously recommended that the board of directors confirm the executive committee's recommendation not to reappoint the plaintiff. On February 19,1987, the hospital officially notified the plaintiff that the board of directors had voted to terminate his medical staff privileges. The plaintiff initiated this action against the hospital, seeking money damages for breach of contract and negligent infliction of emotional distress, as well as injunctive relief in the form of reinstatement of his staff privileges. After the trial court rendered judgment for the hospital, the plaintiff appealed to the Appellate Court, claiming, inter alia, that the trial court improperly applied a test of substantial compliance in determining whether, in the course of terminating his staff privileges, the hospital had complied with the bylaw obligations to him. On appeal, the Appellate Court affirmed the judgment of the trial court, concluding, inter alia, that: (1) the test of substantial compliance is the proper standard by which to measure the hospital's performance under the bylaws; and (2) the hospital had not breached the bylaws by failing to renew the plaintiff's medical staff privileges. Owens v. New Britain General Hospital, 32 Conn. App. 56, 58, 627 A.2d 1373 (1993). We granted the plaintiff's petition for certification limited to the following issue: "Whether the Appellate Court correctly held that the defendant hospital need only substantially comply with its [medical staff] bylaws when terminating a physician's medical staff privileges and whether the failure to renew the plaintiff's medical staff privileges constituted a breach of those medical staff bylaws?" Owens v. New Britain General Hospital, 227 Conn. 923, 632 A.2d 701 (1993). We now affirm the judgment of the Appellate Court. Additional facts will be set forth as necessary. I The plaintiff first claims that the Appellate Court improperly concluded that the trial court had correctly applied a "substantial" rather than "strict" compliance test in assessing whether the hospital had sufficiently complied with the medical staff bylaw obligations to the plaintiff in the course of terminating his medical staff privileges, because the substantial compliance test does not adequately protect the public or physicians. We disagree. In Gianetti v. Norwalk Hospital, 211 Conn. 51, 59, 62, 557 A.2d 1249 (1989), we held that although the medical staff bylaws of the Norwalk Hospital did not constitute an enforceable contract per se between the hospital and the plaintiff as a member of the hospital medical staff, administrative decisions by the hospital affecting the plaintiffs rights as a medical staff mem ber under the bylaws were nevertheless subject to judicial review. In the present case, the parties do not dispute that the hospital, a private nonprofit corporation, was bound by its own bylaws in deciding to revoke the plaintiffs medical staff privileges. Additionally, the parties agree that such an administrative decision of the hospital is subject to some form of judicial review. The parties disagree, however, as to the proper test of compliance—an issue we did not reach in Gianetti v. Norwalk Hospital, supra, 211 Conn. 51. We resolve this issue in favor of the hospital and conclude that a substantial compliance test as adopted by the Appellate Court is the proper test by which to measure whether a hospital has sufficiently complied with its bylaws in terminating a physician's medical staff privileges. We arrive at this conclusion in appreciation of the overarching function that medical staff bylaws are designed to serve—the provision of quality medical care to the surrounding public community. See Davis v. Morristown Memorial Hospital, 106 N.J. Super. 33, 43, 254 A.2d 125 (1969) (in adopting medical staff bylaws, hospital should consider whether particular provision promotes " 'sound hospital standards' in 'faithfully furnishing facilities to the members of the medical profession in aid of their service to the public' "). Medical staff bylaws reflect what the medical community considers to be crucial to the effective administration of the hospital and the provision of quality medical care by physicians whose performance has earned them privileges. At the same time, the procedural protocol of the bylaws "provide, outside of the judicial system, a fair method for making decisions concerning staff privileges." Nanavati v. Burdette Tomlin Memorial Hospital, 107 N.J. 240, 251, 526 A.2d 697 (1987). We therefore recognize that the obligation to follow medical staff bylaws is paramount and that a hospital must afford its medical staff all the process and protections encompassed by its bylaws. See, e.g., Shulman v. Washington Hospital Center, 222 F. Sup. 59, 64 (D.D.C. 1963); Scappatura v. Baptist Hospital of Phoenix, 120 Ariz. 204, 208, 584 P.2d 1195 (1978); Berberian v. Lancaster Osteopathic Hospital Assn., 395 Pa. 257, 263-64, 149 A.2d 456 (1959). A hospital's obligation to follow bylaws can stem from a contractual relationship between the hospital and the physician. Berberian v. Lancaster Osteopathic Hospital Assn., supra, 263. It can also be based on a preexisting legal duty imposed by our state department of health regulations to adopt " 'bylaws, rules and regulations, including medical staff bylaws.' " Gianetti v. Norwalk Hospital, supra, 211 Conn. 59 (legal duty to adopt medical staff bylaws under § 19-13-D3 [b] [1] [A] of the Regulations of Connecticut State Agencies, "a fortiori, imposes a legal duty upon the Norwalk Hospital to abide by such bylaws"). The obligation can also stem from the recognition of a "fiduciary concept." Greisman v. Newcomb Hospital, 40 N.J. 389, 404, 192 A.2d 817 (1963) ("[hospital officials] must recognize that their powers, particularly those relating to the selection of staff members, are powers in trust which are always to be dealt with as such"). A hospital's obligation to follow its bylaws also arises from the public's substantial interest in the operation of hospitals, public or private. "Hospitals exist to provide health care to the public. In addition to serving the needs of their patients, hospitals also provide a place of employment for doctors and other professionals. The privilege to admit and treat patients at a hospital can be critical to a doctor's ability to practice his [or her] profession and to treat patients. Both doctors and patients can suffer if otherwise qualified doctors are wrongly denied staff privileges." Nanavati v. Burdette Tomlin Memorial Hospital, supra, 107 N.J. 248. Consequently, hospitals must treat physicians fairly in making decisions about their privileges because patients need physicians and they, in turn, need hospital privileges to serve their patients. Therefore, in establishing standards for granting or maintaining staff appointment or clinical privileges, hospitals must ensure that these standards are rationally related to the delivery of quality health care to patients. Id., 249. The public has an interest that staff decisions are not made arbitrarily. By requiring hospitals to adhere to their bylaws, the risk of arbitrary decisions is reduced. Balkissoon v. Capitol Hill Hospital, 558 A.2d 304, 308 (D.C. App. 1989). There must also be concern, however, for unnecessary judicial interference with those whose duty it is to make the decisions and who have the necessary expertise with which to act. Courts are generally unwilling "to substitute their judgment on the merits for the professional judgment of medical and hospital officials with superior qualifications to make such decisions." Mahmoodian v. United Hospital Center, Inc., 185 W. Va. 59, 65, 404 S.E.2d 750, cert. denied, 502 U.S. 863, 112 S. Ct. 185, 116 L. Ed. 2d 146 (1991). "In so specialized and sensitive an activity as governing a hospital, courts are well advised to defer to those with the duty to govern." Nanavati v. Burdette Tomlin Memorial Hospital, supra, 107 N.J. 251. Although a hospital is bound by its bylaws, judicial review of a hospital board's decision to suspend a physician's privileges focuses on the reasonableness of the action taken in relation to the interests of the parties and the public. Garrow v. Elizabeth General Hospital & Dispensary, 79 N.J. 549, 565, 401 A.2d 533 (1979). The special nature of the proceedings involved in matters relating to determinations of the professional competence and capability of a physician to practice medicine in a hospital setting prompted the Appellate Court to conclude that decisions concerning whether a physician is entitled to staff privileges should be left to the expertise of the hospital's staff and administration. The exercise of their discretion should be subject only to limited judicial surveillance to determine if the hospital substantially complied with its applicable bylaw procedures. This conclusion is consistent with the position held by the majority of the jurisdictions. By relying on breach of contract principles, these courts have applied a limited scope of judicial review to ensure that the hospital had substantially complied with its bylaws and to ensure that those bylaws provided basic notice and fair hearing procedures, including an impar tial tribunal. See, e.g., Shulman v. Washington Hospital Center, supra, 222 F. Sup. 63, 64; Eidelson v. Archer, 645 P.2d 171, 175 n.13 (Alaska 1982) (citing cases from other jurisdictions); Gaenslen v. Board of Directors, 185 Cal. App. 3d 563, 568, 232 Cal. Rptr. 239 (1985); Adkins v. Sarah Bush Lincoln Health Center, 129 Ill. 2d 497, 506-507, 509-10, 514, 544 N.E.2d 733 (1989); Pepple v. Parkview Memorial Hospital, Inc., 536 N.E.2d 274, 276 (Ind. 1989). Against this backdrop of competing interests, we conclude that the substantial compliance test ensures procedural fairness to the physician while preserving decisions concerning staff privileges for the expert judgment of hospital officials. II Having concluded that the substantial compliance test is the proper standard by which to measure whether the hospital sufficiently complied with its medical staff bylaws in terminating the plaintiffs medical staff privileges, we turn to the application of that test to the facts of this case. The plaintiff argues that the Appellate Court improperly sustained the trial court's findings that the hospital had not breached the bylaw obligations to provide him with: (1) notice of and an opportunity to respond to the cases that formed the basis of the Collins-Schlesinger report; (2) an opportunity during the Cooper committee hearing to present evidence of his compliance with the restrictions on his privileges; and (3) generally fair procedures. We reject each of the plaintiff's claims and conclude, consistent with the Appellate Court's decision, that the trial court correctly determined that the hospital had substantially complied with the bylaws. A Each of the plaintiffs claims presents a challenge to the factual findings and conclusions of the trial court with respect to the hospital's procedural compliance with the bylaws. We therefore begin, as the Appellate Court did, by setting forth the appropriate standard of our judicial review. We have long held that "where the factual basis of the court's decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous." Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). "A finding of fact is clearly erroneous when there is no evidence in the record to support it . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (Citations omitted; internal quotation marks omitted.) Crowell v. Danforth, 222 Conn. 150, 156, 609 A.2d 654 (1992). 1 The plaintiff first argues that the trial court improperly determined that the hospital did not breach its obligation under the medical staff bylaws to provide him with adequate notice and a sufficient opportunity to defend himself. Specifically, the plaintiff argues that prior to his hearing before the Devers committee, he was entitled under the notice provisions of the bylaws to a list of the patient charts supporting the Collins-Schlesinger report's claim of unnecessary surgery. In the absence of such a list, the plaintiff contends he was powerless to defend himself against the report's adverse conclusions. In support of his arguments, the plaintiff focuses on two of the hospital's uses of the Collins-Schlesinger report. First, the plaintiff asserts that the Devers committee used the substantive conclusions in the report as a basis for confirming the executive committee's recommendation to impose restrictions on his privileges. Second, the plaintiff asserts that the Dinep committee relied on his noncompliance with the Strauch measures, which implemented the Collins-Schlesinger report, as a ground for not reappointing him to the medical staff. We reject the plaintiff's arguments and conclude that the hospital did not violate the "notice" and "opportunity to respond" provisions of the bylaws through either use of the Collins-Schlesinger report. As already stated, the plaintiff voluntarily withdrew his appeal from the decision of the Devers committee confirming the executive committee's recommendation to impose restrictions on his privileges. On withdrawing his appeal, the plaintiff admitted his understanding that, pursuant to the bylaws, the executive committee's recommendation for restrictions would be forwarded for approval by the board of directors and that the recommendation was likely to be formally imposed by the board of directors. Article VIII, § 3 (d) of the medical staff bylaws provides in part: "The failure of a practitioner to request . . . review to which he is entitled by these bylaws within the time and in the manner provided for herein shall be deemed a waiver of his right to such . . . appellate review . . . with respect to the matter. When the hearing or appellate review waived relates to a recommendation of the staff executive committee . . . the recommendation shall become and remain effective against the practitioner pending the board of directors' decision on the matter." Under these bylaw provisions, by virtue of withdrawing his appeal from the Devers committee's confirmation of the executive committee's recommendation to impose restrictions on his practice, the plaintiff waived his right to any further appeal from that recommendation. Accordingly, we conclude that the plaintiff is now precluded from raising any claims concerning the propriety of the Devers committee's use of the Collins-Schlesinger report. We also conclude that the Dinep committee's use of the Collins-Schlesinger report did not deprive the plaintiff of notice of or an opportunity to defend himself against the cases that formed the basis of the report. In their report, Collins and Schlesinger state that their review consisted of, inter alia, an evaluation of: (1) approximately sixty charts, randomly selected from neurosurgical admissions between October, 1980, and September, 1982; (2) the dossiers of the three attending neurosurgeons in the section at the time; and (3) a computer printout of the cases admitted to the neurosurgical section of the hospital between October 1, 1980, and March 13,1982. The defendant asserts, and the plaintiff does not contest, that the plaintiff had been furnished with a copy of the report, prior to agreeing voluntarily to comply with the Strauch measures. Moreover, before the report was released, the plaintiff met with Collins and Schlesinger to discuss their review of his files and of the neurosurgical section in general. In light of these circumstances, we are persuaded that the plaintiff received adequate notice of the time frame and parameters of the Collins-Schlesinger review and had an opportunity to apprise himself of some, if not all, of the cases that formed the basis for the report's critical conclusions. By so providing the plaintiff with notice and an opportunity to defend himself, we conclude that the hospital sufficiently complied with the bylaws under the substantial compliance test. Accordingly, we conclude that the trial court properly determined that the plaintiff had ample notice of and an opportunity to respond to the issues considered by the Dinep committee concerning the Collins-Schlesinger report. 2 The plaintiff also argues that the hospital's reliance on his failure to abide by the Strauch measures as a ground for not recommending his reappointment was improper because Strauch lacked the authority under the bylaws to impose unilaterally the Strauch measures without resort to the review procedures set forth in articles VII and VIII of the bylaws. The plaintiff argues that when he withdrew his voluntary adherence to the measures, Strauch should have taken immediate action to impose the Strauch measures as restrictions on his privileges under the bylaws. The plaintiff contends that in failing to do so, the hospital improperly terminated his medical staff privileges on the basis of his failure to abide by the Strauch measures, after having taken no timely steps to render the measures enforceable against him. We reject this argument. Despite the plaintiffs claim to the contrary, Strauch timely took appropriate action under the bylaws to impose the Strauch measures as restrictions on the plaintiffs medical practice. The plaintiff does not contest that Strauch had the authority in the first instance to order the Collins-Schlesinger review of the neurosurgical section. On the basis of that review, Collins and Schlesinger concluded that the plaintiff had been performing unnecessary surgery. When the plaintiff failed voluntarily to rectify his deficient medical practices, Strauch ultimately sought corrective action under article VII of the bylaws. The plaintiff has not indicated and we do not find any provision of article VII indicating the time frame within which Strauch had to request such corrective action. In fact, article VII, § 1 (a) authorizes Strauch to request corrective action "[w]henever the activities or professional conduct of any practitioner with clinical privileges are considered to be lower than the standards or aims of the medical staff or to be disruptive to the operations of the hospital . . . (Emphasis added.) Strauch waited as long as he did to seek corrective action against the plaintiff because he initially afforded the plaintiff the chance to conform to proper medical procedures and safeguards voluntarily. We decline to penalize the hospital for these efforts and conclude that Strauch timely took action to impose the Strauch measures as restrictions on the plaintiffs privileges. We also conclude that the hospital did not "punish" the plaintiff for his failure to abide by the Strauch mea sures before they had been officially enforced. As stated, the Strauch measures were implemented in response to the Collins-Schlesinger report's very serious conclusion that the plaintiff had been performing unnecessary surgeries. The measures, therefore, were designed to prevent future unnecessary surgeries and to realize the requisite level of quality medical care within the neurosurgery section of the hospital. When it imposed Strauch's request for corrective action, the hospital did not rely on the fact that the plaintiff had withdrawn his earlier agreement to comply with the Strauch measures. Rather, the hospital took adverse action against the plaintiff because, on the basis of the initial conclusion of the Collins-Schlesinger report and the independent conclusion of the Simon report, he had been performing and was continuing to perform unnecessary surgeries. Moreover, when the executive committee, the Dinep committee and the Cooper committee each considered the hospital's decision not to recommend the plaintiff's reappointment, the Strauch measures had long been imposed as restrictions on the plaintiff's practice. Once it had ratified the Strauch measures as restrictions, the hospital focused on the plaintiff's continued failure to adhere to those restrictions, not on his earlier refusal to comport with the Strauch measures. Therefore, we conclude that the hospital properly terminated the plaintiff's medical staff privileges and did not incorrectly rely on his failure to comply voluntarily with the Strauch measures prior to their enforcement through the bylaws. B The plaintiff next claims that the trial court improperly found that the hospital substantially complied with its bylaws because it denied him an opportunity during the Cooper committee hearing adequately to rebut evidence of his noncompliance with the restrictions on his privileges in connection to specific cases that he alleges were first brought to his attention at the appellate review level. The following additional facts are necessary to the disposition of this claim. During the Cooper committee appellate review process, the executive committee, represented by Antoinette Capriglione, a staff physician, referred to several specific case examples demonstrating the plaintiff's alleged failure to comport with his practice restrictions. The plaintiff protested the inclusion of the cases, claiming that he had been unaware that his compliance with the practice restrictions was in question with respect to the cases and that in any event, he had never been afforded the opportunity to refute the allegations of noncompliance. Thereafter, on his request, the plaintiff was presented with a list of the cases approximately one week prior to the final Cooper committee hearing. At that hearing, the Cooper committee permitted the plaintiff to discuss the cases and to make oral reference to specific charts in the cases. Notwithstanding his ability to discuss the cases, the plaintiff claims that the Cooper committee violated the bylaws by its refusal: (1) to permit him to present objective evidence of the existence of required second opinions and consultations in the actual medical charts at the final hearing; or (2) to remand the issue of his compliance back to the fact-finding level to hear such evidence. We disagree. The Appellate Court directly addressed this claim and concluded that the Cooper committee did not violate the bylaws. The Appellate Court noted that § 6 (g) of the "Protocol for Conduct of Hearings and Appellate Reviews," promulgated pursuant to article VIII, § 4 of the medical staff bylaws, provides that it is within the Cooper committee's discretion to consider, "under unusual circumstances," " '[n]ew or additional matters not raised or presented during the original hearing or in the hearing committee and not otherwise reflected in the record of proceedings . . . " Owens v. New Britain General Hospital, supra, 32 Conn. App. 82. The Appellate Court reasoned that, although this bylaw provision authorized the Cooper committee to have considered new case examples of the plaintiff's noncompliance, it nevertheless did not rely on that evidence as a basis for its decision to affirm the executive committee's decision. Our exhaustive review of the record supports this conclusion. The Cooper committee report directly addressed its decision not to consider evidence of the plaintiff's compliance with the restrictions on his practice, which he had accepted when he withdrew his appeal from the Devers committee decision after the executive committee's June 9, 1986 decision not to recommend his reappointment. The Cooper committee report stated: "[The plaintiff requested that . . . Bray describe events relating to [the] supervision of [the plaintiff's] practice since the [executive committee's] decision of June 9,1986. [This committee] determined that its purpose was to review the June 9th decision and matters leading up to it [and] not to inves tigate subsequent events." (Emphasis added.) The report further stated: "[The plaintiffs] attorney claimed that the [executive committee] violated [the plaintiffs] rights by basing its June 9th decision upon cases which had not been discussed with [the plaintiff]. [This committee] concluded in deliberations, based upon consideration of the overall record and statements made during . . . sessions by . Bray and Capriglione, that two or three specific matters within the few weeks prior to the June 9th decision did not play a significant part in the [executive committee's] decision and that the process was therefore not unfair to [the plaintiff] in that regard." These passages persuade us that the Appellate Court correctly determined that the Cooper committee did not violate the bylaws. Even if the Cooper committee had relied on the case examples as a basis for its decision to affirm the executive committee's decision, we conclude that, in so doing, it operated within its discretion under the bylaws because the plaintiff had sufficient notice, and an opportunity to present evidence in defense of those cases. It is undisputed that, at his own request, the plaintiff received a list of the cases prior to the final Cooper committee hearing. It is also undisputed that the plaintiff was afforded an opportunity to discuss the cases and to refer orally to the medical charts at the final Cooper committee hearing. Moreover, despite his claim to the contrary, the plaintiff points to no authority precluding him from actually bringing in with him the medical charts to the hearing. We conclude, in accordance with the Appellate Court, that the trial court properly determined that to the extent the hospital considered any new material, "extra care was taken on [its] part . . . to conduct additional sessions to incorporate the new material so as to fairly put the plaintiff on notice and to permit him to respond adequately." Ill The plaintiffs final claim is that the trial court improperly concluded that the "cumulative effect" of the hospital's deviations from the bylaws did not deprive him of fundamentally fair process. As the Appellate Court determined, "[t]his claim merely reiterates all of the issues raised in the [plaintiffs] two previous claims . . . ." Owens v. New Britain General Hospital, supra, 32 Conn. App. 83-84. Because we have concluded that the trial court properly determined that the hospital substantially complied with the bylaw obligations to provide the plaintiff with adequate notice of and an opportunity to respond to the charges against him, we need not address this claim. The judgment of the Appellate Court is affirmed. In this opinion the other justices concurred. A third Strauch measure, banning surgery for intracranial aneurysms, is not relevant to this appeal. The Simon report stated in part: "[T]he statistics presented above indicated variance with acceptable standards of practice for lumbar surgery regarding patient selection, age of patient recurrence rates, infection rates and variance from some, but not all series regarding multiple simultaneous recurrence rates. The recurrence rates for cervical disc is unacceptable, and the lack of method of localizing discs in the cervical spine exposes [the plaintiff] to a substantial risk of operating at the wrong level." Although Strauch originally gave the plaintiff forty-five days to respond, at the plaintiffs request the deadline was extended to six months. Article VII, § 1 (a) of the medical staff bylaws provides in relevant part: "Whenever the activities or professional conduct of any practitioner with clinical privileges are considered to be lower than the standards or aims of the medical staff or to be disruptive to the operations of the hospital, corrective action against such practitioner may be requested by . . . the chief of any clinical department . All requests for corrective action shall be in writing, shall be made to the executive committee, and shall be supported by reference to the specific activities or conduct which constitute the grounds for the request." Specifically, Strauch recommended that the plaintiff's "surgical privileges be indefinitely suspended with respect to surgical procedures on and/or related to the spine and spinal cord so as to prohibit him from doing any elective or emergency surgical procedures (including all operations and therapeutic manipulations) related to (1) degenerative disc disease or its complications or sequelae (spinal stenosis, radiculitis, arachnoiditis, etc.) or (2) relief of back pain, including but not limited to procedures related to installation, modification, manipulation and/or removal of nerve stimulators of all kinds." Additionally, Strauch recommended "that any elective surgical procedure (including all operations and therapeutic manipulations) on the spine or spinal cord, other than those encompassed in the preceding paragraph, proposed to be done by [the plaintiff] be mandatorily reviewed by another neurosurgeon, at the discretion of the Chief of the Section of Neurosurgery, and that no such operation be permitted to be performed by [the plaintiff] unless the concurrence for such a procedure in the opinion of the reviewing neurosurgeon is present in writing in the patient's hospital record, dated within three days prior to the proposed operation." Article VII, § 1 (b) of the medical staff bylaws provides: "Whenever the corrective action could be a reduction or suspension of clinical privileges, the executive committee shall forward such request to the chief of the department wherein the practitioner has such privileges. Upon receipt of such request, the chief of the department shall immediately appoint an ad hoc committee of three attending physicians of the department involved to investigate the matter. The chief of the department shall appoint the chairman of this committee." Article VII, § 1 (d) of the medical staff bylaws provides in relevant part: "If the corrective action could involve a reduction or suspension of clinical privileges, or a suspension or expulsion from the medical staff, the affected practitioner shall be permitted to make an appearance before the executive committee prior to its taking action on such request. This appearance shall not constitute a hearing, shall be preliminary in nature, and none of the procedural rules provided in these bylaws with respect to hearings shall apply thereto." The executive committee unanimously passed the following motion: "[T]hat [the plaintiff] be informed that cases involving surgery must have a current corroborative second opinion, and if this is not in confirmation of the planned procedure a third opinion will be obtained to confirm, and if neither is in agreement with your proposed surgery the surgery will be canceled." Article VIII, § 1 (a) of the medical staff bylaws provides in relevant part: "Recommendations to the board of directors by the staff executive committee . . . will give rise to a practitioner's right to a hearing and appellate review if the recommendation . . . constitutes or relates to any of the following . 6. Reduction in, or suspension or revocation of, clinical privileges . . . ." Article VIII, § 3 of the medical staff bylaws provides in relevant part: "(a) If the staff executive committee has made a recommendation which, if ratified by decision of the board of directors, will adversely affect a practitioner's appointment to or status as a member of the medical staff or his exercise of clinical privileges, the practitioner shall have the right to a hearing before an ad hoc committee of the medical staff. If the staff executive committee, after considering the results of such a hearing, affirms its recommendation or modifies it so that it remains adverse to the practitioner, the practitioner shall have the right to an appellate review by the board of directors before the board makes a final decision on the matter. . . . "(c) A practitioner shall have thirty (30) days following his [or her] receipt of a notice . to file a written request for a hearing. . A timely request made by a practitioner shall stay the effect of a recommendation or action until such time as the matter has been finally decided by the board of directors . . . ." Article VIII, § 4 of the medical staff bylaws provides: "(a) In implementation of this Article, there shall be developed and maintained in effect at all times a protocol setting forth the hearing and appellate review procedures to be followed at this hospital. Such protocol shall be appended to these bylaws." Section 4 (a) of the hospital's "Protocol for Conduct of Hearings and Appellate Reviews," promulgated pursuant to article VIII, § 4 of the medical staff bylaws, provides: "When a hearing relates to an adverse recommendation by the staff executive committee, the hearing shall be conducted by an ad hoc hearing committee of not less than three (3) members of the medical staff appointed by the chief of staff in consultation with the staff executive committee. One of the members so appointed shall be designated as committee chairman. . . ." Section 5 (k) of the hospital's "Protocol for Conduct of Hearings and Appellate Reviews," promulgated pursuant to article VIII, § 4 of the medical staff bylaws, provides: "Within seven (7) days after final adjournment of a hearing, the hearing committee shall make a written report of its findings and recommendations and shall forward the same, together with the hearing record and all other documentation considered by it, to the staff executive committee . The report may recommend confirmation, modification, or rejection of the original adverse recommendation or action which provided the basis for the hearing . . . ." Section 6 (a) of the hospital's "Protocol for Conduct of Hearings and Appellate Reviews," promulgated pursuant to article VIII, § 4 of the medical staff bylaws, provides: "Within seven (7) days after . . . receipt of notice of an adverse recommendation or action following a hearing, an affected practitioner may request an appellate review thereof by the Board of Directors. . . ." Nourizadeh's letter alleged, inter alia, the following charges against the plaintiff: (1) a threat of harassment to Nourizadeh; (2) a threat to one of Nourizadeh's patients; and (3) the unexplained transfer of one of Nourizadeh's patients to the plaintiffs improper care. The special meeting was postponed to June 9, 1986, at the plaintiff's request. Article V, § 3 (b) of the medical staff bylaws provides in relevant part: "Each recommendation concerning the reappointment of a medical staff member and the clinical privileges to be granted upon reappointment shall be based upon such member's professional competence and clinical judgment in the treatment of hospital patients, his ethics and conduct, his attendance at medical staff meetings and participation in staff affairs, his compliance with the medical staff bylaws, rules and regulations, his cooperation with hospital personnel, his use of the hospital's facilities for his patients, his relations with other practitioners, and his general attitude toward hospital patients, the hospital and the public. . . ." Three days prior to the executive committee's June 9,1986 special meeting, the executive committee had voted to recommend the plaintiff's reappointment to the hospital medical staff, subject to the Strauch measures, during its regular meeting to consider staff reappointments. The executive committee's June 9 vote not to recommend the plaintiff's reappointment superseded its June 6 vote to reappoint the plaintiff. Article V, § 2 (e) of the medical staff bylaws provides in relevant part: "When the recommendation of the executive committee is adverse to the practitioner . . . in respect to appointment . . . the chief executive officer shall promptly so notify the practitioner . No such adverse recommendation shall be forwarded to the governing body until after the practitioner has exercised or has been deemed to have waived his right to a hearing as provided in Article VIII of these bylaws." The plaintiff's appeal from the executive committee's recommendation not to reappoint him to the medical staff was completely separate from his appeal from that committee's November decision to impose restrictions on his practice. See article VIII, § 3 (a) of the medical staff bylaws, footnote 9. During the Dinep committee's review of the plaintiff's failure to be reappointed, the hospital accidentally notified the plaintiff that the executive committee had voted during its regular meeting to reappoint him to the medical staff for the following year. See footnote 16. See article VIII, § 3 (a) of the medical staff bylaws, footnote 9. The plaintiff argued in the alternative that, even under a substantial compliance standard, the trial court's decision was incorrect because the trial court improperly: (1) found that the hospital had not breached the contractual bylaw obligations to provide him with adequate notice of the charges against him; (2) found that the hospital had not breached the contractual bylaw obligations to provide him with a fair opportunity to respond to the charges against him; and (3) determined that the cumulative effect of the hospital's several procedural violations did not deprive him of due process and fair procedure. Although, in its memorandum of decision, the trial court did not expressly articulate what standard it was applying, the parties agree that the trial court in essence applied a substantial compliance test. The plaintiff also argues that the trial court should have applied a strict compliance test because his right to practice medicine involves a "fundamental" right creating the obligation on the part of the hospital to adhere strictly to the bylaw procedures created to protect that right. To the extent that the plaintiff rests his argument on state or federal constitutional law, we reject it. The due process clauses of the state constitution; Conn. Const., art. I, § 8; and federal constitution; U.S. Const., amends. V and XIV; protect individuals against only governmental, rather than private, deprivations of property. J. Nowak, R. Rotunda & J. Young, Constitutional Law (2d Ed. 1983) p. 546. Under the facts of this case, the private hospital's actions terminating the plaintiff's privileges do not constitute state action and, therefore, are not subject to scrutiny for compliance with procedural "due process" that is constitutionally required when there is state action. Insofar as the plaintiff argues that, under the common law, "fundamental fairness" requires the hospital to provide him with a certain quantum of procedural safeguards, his argument is subsumed by our conclusion that the substantial compliance test adequately protects the plaintiff's interest in practicing medicine by ensuring the provision of notice and an opportunity to be heard before an impartial tribunal. In Gianetti v. Norwalk Hospital, supra, 211 Conn. 59-60, we noted that the hospital had a preexisting legal duty imposed by state health regulations to adopt and abide by its medical staff bylaws. Accordingly, we reasoned that the hospital's agreement with the plaintiff to abide by the bylaws, in and of itself, did not constitute valid consideration to support an enforceable contract. Id. After looking beyond the bylaws themselves, however, we concluded that a contractual relationship existed between the hospital and the plaintiff. Id., 62-63. Specifically, we stated that the hospital's extension of medical staff privileges to the physician, in return for his agreement to abide by the medical staff bylaws, established the contractual mutuality, supported by valid consideration, necessary to support an enforceable contract. Id., 63. We further stated that these undertakings of the plaintiff and the hospital, coupled with the hospital's duty to obey its bylaws, rendered the bylaws " 'an enforceable part of the contract' " between the hospital and the plaintiff. (Emphasis in original.) Id. Accordingly, we concluded that the hospital's administrative decisions concerning medical staff privileges under the bylaws were subject to judicial review. Id., 64. In Gianetti v. Norwalk Hospital, supra, 211 Conn. 64, we noted that some jurisdictions have focused on the distinction between public and private hospitals when resolving the issue of judicial reviewability of a hospital's administrative decision to exclude a physician from its medical staff. We further noted that the majority of jurisdictions have refused judicial review of exclusions from the medical staffs of private nonprofit hospitals, thereby according such hospitals the " 'absolute right' " to exclude any physician from its medical staff. Id., 64-65; see, e.g., Barrows v. Northwestern Memorial Hospital, 123 Ill. 2d 49, 52, 525 N.E.2d 50 (1988); Jain v. Northwest Community Hospital, 67 Ill. App. 3d 420, 426-27, 385 N.E.2d 108 (1978). The defendant hospital in Gianetti v. Norwalk Hospital, supra, 211 Conn. 51, as in the present case, was a private nonprofit corporation. Additionally, in Gianetti, as in this case, an enforceable contract existed between the plaintiff and the hospital. We were thus not called upon in Gianetti to decide whether, in the absence of such a contract, a private hospital's decision to deny or suspend a physician's staff privileges would be immune from judicial review. In the present case, we likewise leave that issue for another day. Prompted by these same concerns, courts have analogized the decisions of hospitals concerning staff privileges to decisions made by administrative agencies. See, e.g., Shulman v. Washington Hospital Center, supra, 222 F. Sup. 64 (courts are not in position to substitute their judgment for that of professional groups in matters concerning medical staff privileges); Balkissoon, v. Capitol Hill Hospital, supra, 558 A.2d 310 (hospital staffing decisions must be left to expertise of the staff and administration of the hospital); Kiracofe v. Reid Memorial Hospital, 461 N.E.2d 1134, 1140-41 (Ind. App. 1984) (court should review hospital decision regarding medical staff privileges to determine whether hospital used lair procedures and standards and whether the standards were applied in arbitrary and capricious fashion); Brieker v. Sceva Speare Memorial Hospital, 111 N.H. 276, 280, 281 A.2d 589, cert. denied, 404 U.S. 995, 92 S. Ct. 535, 30 L. Ed. 2d 547 (1971) (hospital board must make intelligent and reasonable judgment in good faith); Garrow v. Elizabeth General Hospital & Dispensary, supra, 79 N. J. 558 (because administrative agencies and hospital boards of trustees exercise discretion and bring expertise to their respective tasks, "[b]oth must also pay due respect to procedural safeguards whether because of constitutional due process or fundamental fairness"); Gotsis v. Lorain Community Hospital, 46 Ohio App. 2d 8, 18, 345 N.E.2d 641 (1974) (hospital's decisions concerning members of its staff must rest on sound, reasonable judgment, and courts will not intervene, unless judgment is arbitrary, capricious or discriminatory); Huffaker v. Bailey, 273 Or. 273, 280-81, 540 P.2d 1398 (1975) (court must sustain hospital board's good faith decision regarding medical staff privileges if supported by adequate factual basis). "Regardless of the phraseology of these courts, the prevailing standard for judicial review of the findings of a private hospital in these decisions affecting medical staff members' privileges appears to be either an arbitrary and capricious (or abuse of discretion) standard or a substantial evidence standard." Mahmoodian v. United Hospital Center, Inc., supra, 185 W. Va. 71. The prevailing standard for judicial review of the findings of a private hospital in decisions affecting medical staff privileges is also consistent with the level of evidence necessary upon judicial review to support a decision by an administrative agency. See, e.g., Miller v. National Medical Hospital of Monterey Park, Inc., 124 Cal. App. 3d 81, 84, 177 Cal. Rptr. 119 (1981) (hospital board's findings must be supported by " 'substantial evidence in light of whole record' "); Even v. Longmont United Hospital Assn., 629 P.2d 1100, 1103 (Colo. App. 1981) (findings of hospital board were supported by competent evidence, and are binding on review); Straube v. Emanuel Lutheran Charity Board, 287 Or. 375, 384, 600 P.2d 381 (1979), cert. denied, 445 U.S. 966, 100 S. Ct. 1657, 64 L. Ed. 2d 242 (1980) (en banc) (court must uphold hospital board's decision to discipline physician so long as reasonable procedures were followed and evidence exists from which the hospital board could have found that physician's conduct posed threat to patient's care). A minority of jurisdictions provide no review. See, e.g., Sarin v. Samaritan Health Center, 176 Mich. App. 790, 793-95, 440 N.W.2d 80, cert. denied, 433 Mich. 919 (1989) (no judicial review of private hospital's decision to terminate medical staff privileges, not even to ensure compliance with medical staff bylaws' methods for reaching that decision); Medical Center Hospitals v. Terzis, 235 Va. 443, 445-46, 367 S.E.2d 728 (1988) (statute on judicial review of hospitals' decisions adversely affecting existing medical staff members' privileges does not authorize judicial review of procedures employed by hospitals in reaching such decisions, provided hospitals' decisions are in writing and are based on certain statutorily permitted reasons). Neither party has pointed to, nor has our research disclosed, any jurisdiction that provides for anything greater than substantial compliance with applicable bylaws. The plaintiff specifically relies on § 2 of the "Protocol for Conduct of Hearings and Appellate Reviews," promulgated pursuant to article VIII, § 4 of the medical staff bylaws, which states in relevant part: "Notice of Hearing. The chief executive officer shall notify an affected practitioner . . . that a hearing has been scheduled in response to the practitioner's request. The notice shall be in writing and shall contain a concise statement of the acts or omissions with which the practitioner has been charged, a list of charts being questioned, or other reasons for an adverse recommendation or action. . . ." (Emphasis added.) Neither party disputes that the board of directors formally imposed the executive committee's recommendation. The plaintiff argues that, in disposing of this claim, the Appellate Court improperly concluded that by virtue of the plaintiff's earlier agreement to comply with the Strauch measures, he had waived his right to claim any breach of the bylaws resulting from the imposition of those measures. Because we resolve the plaintiff's claim on different grounds, we need not address this argument. Although the Appellate Court's analysis of the plaintiff's claim focuses only on the propriety of the Cooper committee's consideration of case examples evidencing the plaintiff's noncompliance after June 9,1986, both our interpretation of the plaintiff's claim and our review of the record has persuaded us to analyze the propriety of the Cooper committee's consideration of such case examples arising both prior to and after June 9, 1986. In fact, the plaintiff requested the cases for the express purpose of being afforded the opportunity to bring in "all the documentation . to show that, in fact, [he] had complied with everything." The plaintiff therefore, by his own admission, had an opportunity to review the patient charts for evidence of his compliance with the restrictions and to bring with him copies of the patient charts to the final Cooper committee hearing.

The plaintiff's petition for certification for appeal from the Appellate Court, 33 Conn. App. 945 (AC 12433), is denied.

Peters, C. J. The dispositive issue in this case is whether the governing statutes give this court subject matter jurisdiction over a writ of error brought to review the denial of a petition for a writ of habeas corpus after the habeas court has denied certification to appeal. The plaintiff in error, Floyd Simms (plaintiff), filed an amended petition for a writ of habeas corpus to challenge the legality of his detention by the defendant in error, the warden of the Connecticut correctional institution at Somers (state). In his petition for a writ of habeas corpus, the plaintiff maintained that his 1983 conviction of accessory to assault of a person sixty years of age or older in the first degree pursuant to General Statutes § 53a-59 (a) (3), 53a-59a and 53a-8 and robbery in the second degree pursuant to General Statutes § 53a-135 (a) (3) should be set aside or that he should be resentenced. His three count petition alleged ineffective assistance of trial counsel, ineffective assistance of appellate counsel and impairment of his rights to due process under the federal and state constitutions. The habeas court dismissed the count of the petition claiming a constitutional deprivation of due process and, after an evidentiary hear ing, denied the counts of the petition claiming ineffective assistance of counsel. The habeas court thereafter denied the plaintiffs petition for certification to appeal. Without attempting to appeal from this denial, the plaintiff filed this writ of error. We conclude that the writ of error must be dismissed. In this court, the plaintiffs contentions in support of his writ of error mirror the substantive and the procedural arguments that he presented to the habeas court. The state maintains, however, that we lack subject matter jurisdiction to review the merits of the plaintiff s case because, under General Statutes § 52-273, "[n]o writ of error may be brought in any civil or criminal proceeding for the correction of any error which might have been reviewed by process of appeal." We agree with the state. Once an issue of subject matter jurisdiction has come to our attention, we cannot adjudicate a case on its merits without first determining whether we have the authority to proceed. Gagnon v. Planning Commission, 222 Conn. 294, 297, 608 A.2d 1181 (1992); Concerned Citizens of Sterling v. Sterling, 204 Conn. 551, 556-57, 529 A.2d 666 (1987). "[Jjurisdiction of the subject matter is a question of law and cannot be waived or conferred by consent either in the trial court or here." Serrani v. Board of Ethics, 225 Conn. 305, 308, 622 A.2d 1009 (1993). "[T]he court has a duty to dismiss, even on its own initiative, any appeal that it lacks jurisdiction to hear." Sasso v. Aleshin, 197 Conn. 87, 89, 495 A.2d 1066 (1985); Tomlinson v. Board of Education, 226 Conn. 704, 718, 629 A.2d 333 (1993). The subject matter jurisdiction of this court is defined by statute. Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 759-60, 628 A.2d 1303 (1993); Grieco v. Zoning Commission, 226 Conn. 230, 231, 627 A.2d 432 (1993); State v. Ayala, 222 Conn. 331, 338-41, 610 A.2d 1162 (1992); State v. Curcio, 191 Conn. 27, 30, 463 A.2d 566 (1983); Chipman v. Waterbury, 59 Conn. 496, 497, 22 A. 289 (1890). The central issue before us, therefore, is whether § 52-273 confers jurisdiction on this court to review the disposition of a petition for a writ of habeas corpus after denial of certification to appeal. This issue can usefully be divided into the following subparts: (1) Does § 52-273 permit writs of error for review of judgments rendered in habeas corpus proceedings? (2) If § 52-273 does not permit such a writ of error, does Practice Book § 4143 nevertheless provide authority for such a writ of error? (3) If neither the statute nor the Practice Book permits a writ of error to be brought, what avenues of appellate review are available to challenge an adverse judgment in a habeas corpus proceeding? I On its face, the text of § 52-273 strongly suggests that the plaintiff may not bring a writ of error in the circumstances of this case. The statute disallows a writ of error "for the correction of any error which might have been reviewed by process of appeal." (Emphasis added.) Although the plaintiff does not have an unqualified right to appeal from the denial of his petition for a writ of habeas corpus, he would have had such a right if, in accordance with the provisions of General Statutes § 52-470 (b), either the habeas court or an appel late judge had certified that "a question is involved in the decision which ought to be reviewed . . . ." The availability of this qualified right of appeal is sufficient to deny the plaintiff access to a statutory right to a writ of error. See C. Tait, Connecticut Appellate Practice and Procedure (2d Ed. 1993) § 8.3. This case is one example of a request for a review of errors that, in the language of § 52-273, "might have been reviewed by process of appeal." As a matter of statutory construction, this result is entirely consistent with the manifest intention of the legislature, when it enacted § 52-470 (b), to limit the opportunity for plenary appellate review of decisions in cases seeking postconviction review of criminal convictions. The legislature amended the predecessor statute to § 52-470 (b) for this specific purpose. See Iovieno v. Commissioner of Correction, 222 Conn. 254, 259-60, 608 A.2d 1174 (1992). At the same time, it also amended the statute governing a petition for a new trial in a criminal case, now General Statutes § 54-95 (a), to require a similar certification as a condition on the right to appeal. Having restricted the right to appeal, under both statutes, to cases in which a judge or justice has specifically determined that further review is appropriate, the legislature could not have intended a writ of error to serve as an alternate, unrestricted route for appellate review. II Despite this consistent and unambiguous manifestation of legislative intent, the plaintiff maintains that court rules of procedure and judicial precedents entitle him to bring a writ of error. We are unpersuaded. The Practice Book provision on which the plaintiff principally relies is § 4143 (b) (1). Subsection (b) (1) provides: "No writ of error may be brought in any civil or criminal proceeding for the correction of any error where (1) the error might have been reviewed by process of appeal, or by way of certification, except that the state may bring a writ of error where it has been denied certification to appeal in a habeas corpus proceeding pursuant to Gen. Stat. § 52-470 (b) and a petitioner may bring a writ of error in a habeas corpus proceeding requiring certification to appeal where petitioner has been denied certification to appeal and the issues sought to be raised do not present any federal question cognizable by the federal district court." The plaintiff contends that he may invoke the provisions of § 4143 (b) because, in his view, its provisions are consistent with the provisions of § 52-273. We disagree. A textual comparison of the two provisions ineluctably demonstrates that, after a denial by the habeas court of certification to appeal that is not an abuse of discretion, the statute precludes access to a writ of error, while the Practice Book authorizes its use. To the extent that § 4143 (b) (1) is inconsistent with the provisions of the General Statutes, our jurisdiction to consider a writ of error is governed by the applicable statutes. Provisions of the Practice Book cannot confer jurisdiction on this court. See General Statutes § 51-14; Ambroise v. William Raveis Real Estate, Inc., supra, 226 Conn. 759-60; Grieco v. Zoning Commission, supra, 226 Conn. 231; State v. Ayala, supra, 222 Conn. 338-41; State v. Curcio, supra, 191 Conn. 30. The stark textual contrast between the statute and the Practice Book is heightened by the fact that, since the 1986 amendments to the Practice Book, the scope of review afforded by a writ of error is no longer limited to errors of law "apparent on the face of the record." Practice Book, 1963, § 3090 (now § 4143). Instead, Practice Book § 4144 now provides that procedures for a writ of error "shall be in accordance with the rules for appeals." See Bergeron v. Mackler, 225 Conn. 391, 393 n.3, 623 A.2d 489 (1993); C. Tait, supra, § 8.6. Permitting a writ of error in accordance with § 4143 of the Practice Book would therefore authorize a plenary review that is the functional equivalent of an ordinary appeal. Such a use of the writ of error would effectively write the certification requirement out of § 52-470 (b). A litigant disappointed by the outcome of a habeas corpus proceeding could always obtain plenary review of its merits, either on appeal if certification to appeal were granted, or through a writ of error if certification to appeal were denied. Even if such inconsistency would normally require the provisions of the Practice Book to give way to the governing provisions of the jurisdictional statutes, the plaintiff contends that this court's past practice of reviewing habeas corpus decisions on writs of error establishes the legitimacy of this procedural route. In essence, this argument suggests that decisions of this court estop the state from insistence on compliance with the governing statutes. To state this argument is to refute it. Constraints on our jurisdiction cannot be waived by anyone, including this court. Ambroise v. William Raveis Real Estate, Inc., supra, 226 Conn. 766-67; Castro v. Viera, 207 Conn. 420, 429-30, 541 A.2d 1216 (1988). To the extent that our precedents imply that a writ of error may be brought in the circumstances of this case, these precedents are mistaken and are hereby overruled. III The unavailability of appellate review of habeas corpus proceedings by means of a writ of error does not leave a disappointed litigant remediless to obtain review of the merits of the habeas corpus judgment. The litigant may, of course, persuade either the habeas court, or an appellate judge or justice, to permit a further appeal. The fact that certification to appeal may be sought from someone other than the judge hearing the habeas case is a significant protection of the rights that habeas corpus proceedings are intended to protect. Gaines v. Manson, 194 Conn. 510, 516, 481 A.2d 1084 (1984). Even if certification to appeal is denied, however, the disappointed litigant does not lack further recourse. The petitioner or the state, as the case may be, can nonetheless file an appeal in the proper appellate forum. In such an appeal, the first issue for the appel late tribunal will necessarily be whether it has jurisdiction to hear the appeal. Appellate tribunals are regularly called upon to determine their own jurisdiction, which may be brought into question either by a motion to dismiss or by appropriate briefing of the issue. For example, before reaching the merits of appellate litigation, appellate tribunals routinely resolve disagreements about the timeliness of an appeal, the presence or absence of a final judgment from which to appeal, or the occurrence of intervening events that may have rendered an appeal moot. A similar threshold jurisdictional question will be presented in any case in which, despite the absence of certification to appeal, an appellate tribunal is asked to determine the merits of a habeas corpus judgment involving a criminal conviction. Before addressing the merits, the appellate tribunal will have to decide whether the habeas court's denial of certification was an abuse of that court's discretion. Construing § 52-470 (b) to permit appellate scrutiny of the denial of certification to appeal is consistent not only with the salutary purposes of the writ of habeas corpus; Gaines v. Manson, supra, 194 A.2d 516; but with other statutes establishing certification requirements that expressly preclude further appellate review. "Because the legislature is always presumed to have created a harmonious and consistent body of law, we read statutes together when they relate to the same subject matter." Daly v. DelPonte, 225 Conn. 499, 510, 624 A.2d 876 (1993); Concerned Citizens of Sterling, Inc. v. Connecticut Siting Council, 215 Conn. 474, 482-83, 576 A.2d 510 (1990); Dart & Bogue Co. v. Slosberg, 202 Conn. 566, 575, 522 A.2d 763 (1987). Although § 52-470 (b) and 54-95 (a) both require certification to appeal, neither statute includes a provision that denial of the requisite certification is final and dispositive. By contrast, in General Statutes § 8-8, governing zoning appeals and in General Statutes § 51-197f, governing appeals from final judgments of the Appellate Court, the legislature has expressly stated that, upon the denial of certification to appeal, there shall be "no right to further review." See also General Statutes § 46b-231 (n) and (o), governing appeals from family magistrates. Although we have not previously articulated the standard of review on direct appeal of the denial of certifi cation under § 52-470 (b) or 54-95 (a), we have considered a similar issue in related cases. When we determined that a writ of error to review such a denial would require the showing of an abuse of discretion; Walker v. Commissioner of Correction, 223 Conn. 411, 414, 611 A.2d 413 (1992); we relied on case law under General Statutes § 54-96, which authorizes a trial court to permit the state to appeal questions of law in criminal cases. In that context, we have held that, on appeal, the issue is whether the record manifests a "clear and extreme abuse of discretion" or whether "injustice appears to have been done." State v. Avcollie, 174 Conn. 100, 110-11, 384 A.2d 315 (1977); State v. Bergin, 214 Conn. 657, 660-61, 574 A.2d 164 (1990); State v. S & R Sanitation Services, Inc., 202 Conn. 300, 312, 521 A.2d 1017 (1987). In similar fashion, therefore, we construe § 52-470 (b) to permit a disappointed habeas corpus litigant to invoke appellate jurisdiction for plenary review of the decision of the habeas court upon carrying the burden of persuasion that denial of certification to appeal was an abuse of discretion or that an injustice appears to have been done. The writ of error is dismissed. In this opinion Santaniello and Dupont, Js., concurred. In a companion case, Carpenter v. Meachum, 229 Conn. 193, 640 A.2d 591 (1994), we have today considered and rejected a constitutional challenge to the validity of General Statutes § 52-273. The Appellate Court affirmed the plaintiff's criminal conviction in State v. Simms, 14 Conn. App. 1, 539 A.2d 601 (1988). We affirmed the judgment of the Appellate Court. State v. Simms, 211 Conn. 1, 557 A.2d 914, cert. denied, 493 U.S. 843, 110 S. Ct. 133, 107 L. Ed. 2d 93 (1989). Each of the plaintiff's counts was premised on his contention that the trial court judge, Corrigan, J., should have recused himself, in large measure because he had presided over a previous trial that resulted in the plaintiff's conviction of the crime of felony murder and had commented on the plaintiffs lack of credibility when sentencing him for that crime. In its memorandum of decision, the habeas court noted that its dismissal of the third count of the amended petition for a writ of habeas corpus at the habeas hearing had been "because the 'cause and prejudice' grounds alleged therein to justify not raising these issues on direct appeal were insufficient to excuse that failure and for failure to allege 'no deliberate bypass' of the direct appeal process." The habeas court denied a motion to open the evidence that the plaintiff filed after the conclusion of the evidentiary hearing. General Statutes § 52-470 provides: "summary disposal of the case, appeal BY PERSON convicted OF CRIME, (a) The court or judge hearing any habeas corpus shall proceed in a summary way to determine the facts and issues of the case, by hearing the testimony and arguments therein, and inquire fully into the cause of imprisonment, and shall thereupon dispose of the case as law and justice require. "(b) No appeal from the judgment rendered in a habeas corpus proceeding brought in order to obtain his release by or in behalf of one who has been convicted of crime may be taken unless the appellant, within ten days after the case is decided, petitions the judge before whom the case was tried or a judge of the supreme court or appellate court to certify that a question is involved in the decision which ought to be reviewed by the court having jurisdiction and the judge so certifies." See 7 S. Proc., Pt. 5, 1957 Sess., pp. 2936, 2939-40; 7 H.R. Proc., Pt. 5, 1957 Sess., pp. 2881-83. General Statutes § 54-95 provides in relevant part: "appeal by defendant in criminal prosecution; stay of execution, (a) Any defendant in a criminal prosecution, aggrieved by any decision of the superior court, upon the trial thereof, or by any error apparent upon the record of such prosecution, may be relieved by appeal, petition for a new trial or writ of error, in the same manner and -with the same effect as in civil actions. No appeal may be taken from a judgment denying a petition for a new trial unless, within ten days after the judgment is rendered, the judge who heard the case or a judge of the supreme court or the appellate court, as the case may be, certifies that a question is involved in the decision which ought to be reviewed by the supreme court or by the appellate court. It shall be sufficient service of any such writ of error or petition for a new trial to serve it upon the state's attorney for the judicial district where it is brought." See part II regarding the plenary scope of review for writs of error. General Statutes § 51-14 provides in relevant part: "rules of COURT. . (a) The judges of the supreme court, the judges of the appellate court, and the judges of the superior court shall adopt and promulgate and may from time to time modify or repeal rules and forms regulating pleading, practice and procedure injudicial proceedings in courts in which they have the constitutional authority to make rules, for the purpose of simplifying proceedings in the courts and of promoting the speedy and efficient determination of litigation upon its merits. . . . Such rules shall not abridge, enlarge or modify any substantive right nor the jurisdiction of any of the courts. ." Furthermore, applying the rule of the Practice Book would create a distinction between postconviction cases brought under General Statutes § 52-470 (b), for which the writ of error would be available, and under General Statutes § 54-95 (a), for which the writ of error would be unavailable, even though the legislature has determined that these remedies should be treated alike. See C. Tait, supra, § 2.5. The plaintiff principally relies on four cases. Our review persuades us, however, that only three are relevant to the present discussion. In Laws v. Warden, 218 Conn. 479, 590 A.2d 436 (1991), we held that the respondent, as well as the petitioner, must obtain certification under General Statutes § 52-470 (b) in order to appeal from an adverse habeas corpus judgment. In that context, when we described Practice Book § 4143 (b) as clarifying an ambiguity in the underlying statute, the relevant statute was § 52-470 (b) and not General Statutes § 52-273. In Iovieno v. Commissioner of Correction, supra, 222 Conn. 254, we rejected the plaintiff's contention that a habeas court has discretion to consider an untimely filed petition for certification to appeal. The jurisdictional flaw in the plaintiff's pursuit of a writ of error was not called to our atten tion. We were, however, mistaken to have assumed that we had the jurisdiction to entertain that writ of error. In Commissioner of Correction v. Rodriquez, 222 Conn. 469, 610 A.2d 631 (1992), we sustained the state's action in bringing a writ of error to challenge the validity of habeas corpus proceedings in which the habeas court had ordered a new trial and had denied the state's request for certification to appeal. The jurisdictional flaw in the state's pursuit of a writ of error was again not called to our attention. We were, however, mistaken to have assumed that we had the jurisdiction to entertain that writ of error. In Walker v. Commissioner of Correction, 223 Conn. 411, 413-14 n.3, 611 A.2d 413 (1992), we permitted a writ of error to be used to affirm the decision of a habeas court denying the plaintiff's request for certification to appeal. The jurisdictional flaw in the plaintiff's pursuit of a writ of error was not raised by the parties or briefed by them. We were, however, mistaken to have addressed the merits without determining our jurisdiction to entertain that writ of error. Although some of our precedents suggest that a motion for review is the proper way to seek appellate consideration of the propriety of a denial of certification, the motion for review is not an appropriate vehicle for determining whether an appellate tribunal has jurisdiction. The scope of the motion for review is defined by Practice Book § 4053 to encompass orders "relating to the perfecting of the record for the appeal or the procedure of prosecuting or defending against the appeal, or any order made by the trial court concerning a stay of execution on appeal." The motion for review is therefore restricted to matters that are ancillary to an existing appeal. See C. Tait, supra, § 2.6 (e). Another alternate remedy that might provide access to appellate review of the merits of a habeas corpus judgment is a petition for review. That remedy is, however, statutory. To date, the legislature has provided such a remedy only for appeals of orders prohibiting attendance at any session of court; General Statutes § 51-164x (a); and of orders relating to the disclosure of the records of an investigatory grand jury. General Statutes § 54-47g (a). "[General Statutes] Sec. 8-8. appeal from board to court, review BY APPELLATE COURT. . . . "(o) There shall be no right to further review except to the appellate court by certification for review, on the vote of two judges of the appellate court so to certify and under such other rules as the judges of the appellate court establish. The procedure on appeal to the appellate court shall, except as otherwise provided herein, be in accordance with the procedures provided by rule or law for the appeal of judgments rendered by the superior court unless modified by rule of the judges of the appellate court." (Emphasis added.) "[General Statutes] Sec. 51-1971 further review by certification ONLY. Upon final determination of any appeal by the appellate court, there shall be no right to further review except the supreme court shall have the power to certify cases for its review upon petition by an aggrieved party or by the appellate panel which heard the matter and upon the vote of two justices of the supreme court so to certify and under such other rules as the justices of the supreme court shall establish. The procedure on appeal from the appellate court to the supreme court shall, except as otherwise provided, be in accordance with the procedure provided by rule or law for the appeal of judgments rendered by the superior court, unless modified by rule of the justices of the supreme court." (Emphasis added.) In its requirement for a certificate of probable cause, federal law places similar constraints on a federal petitioner's right to appeal from the denial of relief in habeas corpus proceedings challenging the validity of a state criminal conviction. See 28 U.S.C. § 2253; Fed. R. App. P. 22 (b); see also L. Yackle, Postconviction Remedies (1981) § 160. The Supreme Court of the United States has instructed federal courts that a certificate of probable cause should issue whenever a petitioner makes "a substantial showing of a denial of [a] federal right." (Internal quotation marks omitted.) Lozada v. Deeds, 498 U.S. 430, 431, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991); Barefoot v. Estelle, 463 U.S. 880, 892-93, 103 S. Ct. 3383, 77 L. Ed. 2d 1090 (1983). To make such a showing, "a petitioner who has been denied relief in a district court must demonstrate that the issues are debatable among jurists of reason; that a court could, resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further." (Emphasis in original; internal quotation marks omitted.) Lozada v. Deeds, supra, 432. We do not need to decide today whether the federal standard should guide the granting or denial of certification to appeal under General Statutes § 52-470 (b). Justice Berdon's dissent in the companion case of Carpenter v. Meachum, 229 Conn. 193, 203, 640 A.2d 591 (1994), therefore, raises issues that are not properly before us in this case.

The plaintiffs' petition for certification for appeal from the Appellate Court, 35 Conn. App. 646 (AC 12324), is granted, limited to the following issue: "In the circumstances of this case, did trees and wildlife on the property of the defendant university fall within 'natural resources' as that term is used in General Statutes § 22a-19 (a) and (b), so as to require the defendant commission expressly to consider the possible environmental impact of a proposed subdivision plan?"

Palmer, J. This case requires us to decide whether the beneficiary of a life insurance annuity policy or the insurance company that issued the policy bears the loss resulting from the insurer's payment of the policy proceeds to a person fraudulently substituted as the beneficiary. The trial court held that the defendant, Pacific Standard Life Insurance Company, was not liable to the plaintiff, John F. Bigley, executor of the estate of Norma C. White and the beneficiary of a life insurance annuity policy purchased by White from the defendant, because the defendant had paid the policy proceeds in good faith to a fraudulently substituted beneficiary. We reverse the judgment of the trial court. The relevant facts are undisputed. In May, 1987, White purchased a life insurance annuity policy from the defendant and named the plaintiff as beneficiary in his capacity as trustee of her estate. Michael Jurinske, an insurance agent and White's grandson, had sold the policy to White and had witnessed White's execution of the policy application. On January 15, 1988, White died in an automobile accident. At the time of her death, the value of the policy was $225,343.18. On January 21,1988, the defendant received a written request to change the beneficiary of White's policy. The change of beneficiary form, dated January 8,1988, bore the purported signature of White and sought a change in the beneficiary of the policy from the plaintiff to Jurinske, as trustee for two of White's great-grandchildren. The form also bore Jurinske's signature as a witness to White's purported execution of the form. The defendant approved the request, and on January 25,1988, mailed a notification letter to White's home acknowledging the change of beneficiary. On March 22,1988, the defendant, having received a copy of White's death certificate from Jurinske and no other claim to the proceeds of the policy, forwarded a check to Jurinske in the amount of the policy. The plaintiff brought this action, alleging that the defendant had negligently approved the forged change of beneficiary form, and that the defendant had breached the terms of the policy by failing to pay the proceeds to the plaintiff. The defendant denied the allegations and asserted four special defenses, namely that: (1) the action should be stayed in light of an order of the Superior Court for the state of California enjoining all actions against the defendant; (2) the defendant had been discharged from liability by virtue of its payment of the policy proceeds in accordance with the terms of the change of beneficiary form; (3) General Statutes § 38a-453 (c) bars the claims of the plaintiff; and (4) the plaintiffs claims are barred by his failure to question or challenge the fraudulent change of beneficiary request in a timely manner. A trial to the court ensued. The court found that Jurinske had fraudulently induced the defendant to pay the policy proceeds to him, rather than to the plaintiff, by forging White's signature on the change of beneficiary form. The court concluded that the defendant's good faith payment of the policy proceeds to Jurinske without knowledge of the fraud or notice of any competing claim relieved the defendant of its obligation to the plaintiff under the policy. We disagree. An insurer who is contractually obligated to remit the proceeds of a life insurance policy upon the death of the insured is discharged from liability under the policy if, in good faith, it pays the proceeds to the beneficiary designated by the policyholder. Weed v. Equitable Life Assurance Society of the United States, 288 F.2d 463 (5th Cir.), cert. denied, 368 U.S. 821, 82 S. Ct. 40, 7 L. Ed. 2d 27 (1961); Harper v. Prudential Ins. Co. of America, 233 Kan. 358, 662 P.2d 1264 (1983); Avondale v. Sovereign Camp, Woodmen of the World, 134 Neb. 717, 279 N.W. 355 (1938); 4 G. Couch, Insurance (2d Ed. Rev. 1984) § 27:176; see Iverson v. Scholl, Inc., 136 Ill. App. 3d 962, 483 N.E.2d 893 (1985); Bickers v. Shenandoah Valley National Bank, 197 Va. 145, 88 S.E.2d 889 (1955), reh. denied, 197 Va. 732, 90 S.E.2d 865 (1956). This general rule relieves the insurer from liability under the policy in circumstances where, for example, the insurer had paid the beneficiary designated by the policyholder without knowledge that: (1) the policyholder was incompetent or insane at the time the beneficiary was designated; Weed v. Equitable Life Assurance Society of the United States, supra, 463; New York Life Ins. Co. v. Federal National Bank, 151 F.2d 537 (10th Cir. 1945); State Life Ins. Co. v. Coffrini, 285 F. 560 (3d Cir. 1922); Metropolitan Life Ins. Co. v. Bramlett, 224 Ala. 473, 140 So. 752 (1932); (2) the beneficiary was criminally responsible for the death of the policyholder; In re Estate of Thompson, 99 Ill. App. 3d 303, 426 N.E.2d 1 (1981); Harper v. Prudential Ins. Co. of America, supra, 358; or (3) the beneficiary had exerted undue influence over the policyholder in order to secure the designation as beneficiary. Bosworth v. Wolfe, 146 Wash. 615, 264 P. 413 (1928). Unless the insurer has reason to believe that the beneficiary named by the policyholder is not entitled to receive the policy proceeds, payment to the policyholder's designated beneficiary discharges the insurer from liability under the policy. Payment of the policy proceeds to a person fraudulently substituted as beneficiary, however, does not relieve the insurer of its contractual obligation to pay the beneficiary actually designated by the policyholder. Western & Southern Life Ins. Co. v. Whiston, 30 Ill. App. 3d 844, 333 N.E.2d 72 (1975); Stavros v. Western & Southern Life Ins. Co., 486 S.W.2d 712 (Ky. App. 1972); Union Labor Life Ins. Co. v. Parmely, 270 Md. 146, 311 A.2d 24 (1973); G. Couch, supra, § 27:177; cf. McNabb v. Kentucky Central Life Ins. Co., 631 S.W.2d 253 (Tex. App. 1982). The life insurance annuity policy purchased by White expressly required the defendant to pay the policy proceeds to the beneficiary designated by White. Payment of the proceeds to Jurinske did not discharge the defendant from its contractual obligation to pay the plaintiff because Jurinske was not the beneficiary named by the policyholder. This conclusion is consistent with the general rule that a change of beneficiary of an insurance policy can be effected only by following the procedure prescribed by the policy. Aetna Life Ins. Co. v. Hartford National Bank & Trust Co., 146 Conn. 537, 541, 153 A.2d 448 (1959); O'Connell v. Brady, 136 Conn. 475, 480, 72 A.2d 493 (1950). The life insurance policy purchased by White sets forth only one method by which a change of beneficiary may be effected: "[TJhe owner [of the policy] may change the Beneficiary during the lifetime of the Insured by filing a satisfactory written request with us at our Executive office. . . ." (Emphasis added.) Because Jurinske, rather than the owner of the policy, signed the change of beneficiary form and submitted it to the defendant after the death of the insured, the request did not comply with the terms of the contract and, therefore, did not effect a change of beneficiary. The trial court did not reach the defendant's special defense that the plaintiff's claims are barred by his failure to question or challenge the fraudulent change of beneficiary request in a timely manner. The defendant will have the opportunity to prove that claim on retrial. The judgment of the trial court is reversed, and the case is remanded for a new trial. In this opinion the other justices concurred. Barry C. Knott has been substituted as the executor of White's estate and as the plaintiff in this case. The plaintiff appealed from the judgment of the trial court and the defendant cross appealed to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We were informed at oral argument that Jurinske had absconded with and squandered the policy proceeds. On December 11, 1989, the Superior Court for the state of California, which had appointed the California insurance commissioner to act as conservator for the then insolvent defendant, issued an order enjoining all persons from instituting or maintaining any action against the defendant or the conservator without both prior notice to the insurance commissioner and authorization from that court. General Statutes § 38a-453 provides in relevant part: "eights of creditors of INSURED AGAINST BENEFICIARY, (a) The beneficiary of any life insurance policy, being a person other than the insured, whether named as beneficiary in the original policy or subsequently named as beneficiary in accordance with the terms of the policy, shall be entitled to the proceeds of the policy as against the representatives or creditors of the insured, unless the policy was procured or the designation of a beneficiary was made with intent, express or implied, to defraud creditors. . . . "(c) The company issuing the policy shall be discharged of all liability thereunder by payment of the proceeds in accordance with the terms of the policy, unless, before such payment, the company has received written notice, from a creditor, executor or administrator of the insured, that the policy was procured or premiums were paid thereon with intent to defraud creditors. That notice may be disregarded by the company unless proper legal proceedings to enforce the claim are begun within three months from the giving of the notice." At the close of the plaintiffs case, the trial court granted the defendant's motion to dismiss the first count of the complaint, which alleged negligence by the defendant, for failure to make out a prima facie case. See Practice Book § 302. The plaintiff has not appealed from this ruling. The trial court held that an insurance company is discharged from liability under a life insurance policy even if, as here, it makes a good faith payment of the proceeds to a purported beneficiary not named by the policyholder. The trial court further concluded that the legislature adopted that general rule with the enactment of General Statutes § 38a-453 (c). The court misconstrued both the rule and § 38a-453 (c). As we have discussed, an insurer will be discharged from liability only when it pays the proceeds in good faith to the beneficiary actually designated by the policyholder. Moreover, § 38a-453 (c) applies where the "policy was procured or premiums were paid thereon with intent to defraud creditors" of the insured, circumstances not alleged in this case. Section 38a-453 (c) is therefore inapposite. The defendant contends that the plaintiff is estopped from recovering against the defendant because he had failed to notify the defendant of his claim to the policy proceeds in a timely manner, and because he had failed to apprise the defendant of certain facts that would have alerted the defendant to the fraudulent nature of the change of beneficiary form submitted by Jurinske. In its cross appeal, the defendant claims that the trial court improperly denied its request for a stay on comity grounds in view of the California state court order enjoining all actions against the defendant. We dismiss the cross appeal because the defendant is not aggrieved by the judgment of the trial court. See Practice Book § 4005; Cioffoletti v. Planning & Zoning Commission, 209 Conn. 544, 547 n.1, 552 A.2d 796 (1989); Orticelli v. Powers, 197 Conn. 9,11 n.1, 495 A.2d 1023 (1985). Although we may entertain such a claim where, as here, it has been raised in the party's preliminary statement of issues; Practice Book § 4013 (a) (1) (B); see, e.g., Air-Kaman, Inc. v. Groppo, 221 Conn. 751, 754 n.5, 607 A.2d 410 (1992); we decline to consider it at this time. On remand, the trial court will have the opportunity to consider the defendant's comity claim, should it arise, in light of existing factual circumstances.

The defendant Michael C. Bellobuono's petition for certification for appeal from the Appellate Court, 33 Conn. App. 826 (AC 12617), is denied.

Per Curiam. The judgment is affirmed.

The plaintiff's petition for certification for appeal from the Appellate Court, 30 Conn. App. 324 (AC 11188), is denied.

Per Curiam. The judgment is affirmed.

The named plaintiff's petition for certification for appeal from the Appellate Court, 31 Conn. App. 781 (AC 11545), is denied.

Per Curiam. The petitioner, Napier Taitón, filed a petition for a writ of habeas corpus to set aside, on the grounds of lack of due process and of ineffective assistance of counsel, his conviction for sexual assault in the first degree and for being a persistent felony offender. After an evidentiary hearing, the habeas court rendered a judgment dismissing the petition. The court concluded that the petitioner's claim of a due process violation based on an allegation of actual innocence could not be sustained because of a lack of credible evidence. The court further concluded that his claim of ineffective assistance of counsel could not be sustained because of a lack of a showing of prejudice. The Appellate Court affirmed the judgment of the habeas court in every respect. Talton v. Warden, 33 Conn. App. 171, 634 A.2d 912 (1993). We granted the petitioner's request for certification to appeal the same issues that he had presented to the habeas court and the Appellate Court. After examining the record on appeal, and after considering the briefs and arguments of the parties, we conclude that the judgment of the Appellate Court must be affirmed. The issues on which we granted certification were properly resolved in the thoughtful and comprehensive opinion of the Appellate Court. It would serve no useful purpose for us to repeat the discussion therein contained. State v. Rivera, 228 Conn. 756, 758, 638 A.2d 34 (1994); State v. Johnson, 228 Conn. 59, 61, 634 A.2d 293 (1993); State v. Leonard, 210 Conn. 480, 481, 556 A.2d 611 (1989). The judgment of the Appellate Court is affirmed. The petitioner's conviction was affirmed in State v. Talton, 197 Conn. 280, 497 A.2d 35 (1985). We granted certification to appeal, limited to the following questions: "1. Did the Appellate Court correctly conclude that, based on the record of the habeas proceeding, the habeas court properly determined that the recantation testimony of the victim-witness was not credible? "2. If the recantation testimony of the victim-witness was credible, did the Appellate Court properly decline to find that the appellant's due process rights were violated? "3. Did the Appellate Court properly conclude that the appellant failed to establish that he was fatally prejudiced by his trial counsel's arguably deficient performance and therefore that he was not denied his constitutional right to effective assistance of counsel?" Talton v. Warden, 228 Conn. 919, 636 A.2d 850 (1994).

Peters, C. J. The principal issue in this appeal is whether the state constitution prohibits a warrantless automobile search supported by probable cause but conducted while the automobile is impounded at a police station. The defendant, Jonathan L. Miller, was charged with criminal possession of a weapon in violation of General Statutes § 53a-217. The trial court, Damiani, J., rendered a judgment of conviction upon the defendant's plea of nolo contendere; see General Statutes § 54-94a; which was conditional upon his right to appeal the denial by the trial court, Miano, J., of his motion to suppress evidence obtained during his arrest and the search and seizure of his automobile. On the defendant's appeal, the Appellate Court reversed the trial court's judgment on the ground that the search of the defendant's automobile had violated article first, § 7, of the Connecticut constitution. State v. Miller, 29 Conn. App. 207, 614 A.2d 1229 (1992). The Appellate Court rejected, however, the defendant's claim that he was entitled to suppression of evidence that had allegedly been obtained through unconstitutionally extraterritorial conduct by the West Hartford police in Hartford. We subsequently granted the defendant's and the state's petitions for certification to appeal from the judgment of the Appellate Court, and we now affirm. The relevant facts are reported in the decision of the Appellate Court. State v. Miller, supra, 209-11. On March 17, 1990, three men allegedly robbed a supermarket in West Hartford. Id., 209. Witnesses observed two of the three alleged robbers flee the scene in a light gray Chrysler automobile with Connecticut license plate identification 428GFK. Id., 209-10. Shortly thereafter, the witnesses reported this information to the West Hartford police, who discovered that the automobile was registered to the defendant, whose address is 41 Arlington Street in Hartford. Id., 210. Police officers from West Hartford and Hartford then went to Arlington Street to apprehend the defendant, but neither he nor his automobile was present at that location. Id. Three West Hartford police officers, including detective Jay St. Jacques, remained at Arlington Street in unmarked police cars parked at both ends of the street. At the request of St. Jacques, all other police cars left the area. Id. About forty minutes later, a light gray Chrysler drove down Arlington Street. St. Jacques followed the automobile until it stopped. When the driver, who was the defendant, exited the automobile, St. Jacques shone his high beam lights on him, drew a weapon and identified himself as a police officer. Id. As the defendant attempted to reenter the automobile and start it, addi tional West Hartford police officers arrived. They removed the defendant from the automobile and patted him down, but discovered no incriminating evidence. Id., 210-11. After the officers had handcuffed the defendant and placed him in the back seat of one of the West Hartford police cars, St. Jacques retrieved the keys to the Chrysler from the defendant's pocket. St. Jacques unlocked the defendant's automobile and searched the passenger compartment, but discovered no incriminating evidence. Id., 211. The witnesses subsequently positively identified the defendant as one of the alleged robbers, and the police transported him to the West Hartford police station. The defendant's automobile was towed to the West Hartford police department garage, where the police secured it and conducted a warrantless search, which revealed a .357 Smith and Wesson revolver in the trunk. Id. The state charged the defendant with criminal possession of a weapon, in violation of § 53a-217. The defendant moved to suppress evidence, including the gun recovered from his automobile's trunk. In support of his motion, the defendant argued that the gun was the fruit of an illegal search and seizure of the automobile and of an illegal arrest. The trial court, Miano, J., denied the motion. The trial court, Damiani, J., subsequently rendered a judgment of conviction upon the defendant's conditional plea of nolo contendere. Pursuant to § 54-94a, the defendant appealed from the judgment of conviction to the Appellate Court claiming that (1) the West Hartford police had acted outside their territorial jurisdiction by performing an investigation, stakeout, Terry stop and warrantless seizure of the defendant's automobile in Hartford, and (2) the warrantless search of the defendant's automobile at the West Hartford police garage was not justified by any exception to the warrant requirement and thereby violated the fourth amendment to the United States constitution and article first, § 7, of the Connecticut constitution. Although the Appellate Court rejected the defendant's first claim, it reversed the judgment of the trial court on the ground that article first, § 7, of the Connecticut constitution prohibits the warrantless search of an automobile that has been impounded at a police garage. In this certified appeal, both the defendant and the state take issue with the decision of the Appellate Court. The defendant contends that article tenth, § 1, article first, § 7, and article first, § 9, of the Connecticut constitution prohibit municipal police from conducting an extraterritorial investigation, stakeout, Terry stop or warrantless seizure. The defendant asserts, therefore, that the Appellate Court improperly affirmed the trial court's denial of his motion to suppress on that ground. The state argues that the warrantless search of the defendant's automobile, while it was impounded at the West Hartford police station, was valid under article first, § 7, of the Connecticut constitution. The state contends, therefore, that the Appellate Court improperly reversed the trial court's denial of the defendant's motion to suppress on that ground. We reject both of these claims. I The defendant contends that the trial court should have suppressed the gun recovered by West Hartford police officers from his automobile because the officers acted in violation of article tenth, § 1, article first, § 7, and article first, § 9, when they conducted an investigation, stakeout, Terry stop and warrantless automobile seizure in Hartford. We disagree. A At the outset, we note that we need not decide whether the Terry stop of the defendant was invalid pursuant to the cited constitutional provisions. Even if the stop were unconstitutional, no evidence flowed from it and, therefore, the subsequent prosecution of the defendant was not tainted by it. See State v. Miller, supra, 216. Accordingly, any illegality in the stop would not require dismissal of the charges against the defendant or a reversal of his conviction. State v. Fleming, 198 Conn. 255, 262-63, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986). B Because, however, the discovery by the West Hartford police of the gun that the defendant seeks to have suppressed flowed from the investigation, stakeout and warrantless seizure of his automobile in Hartford, we must address the validity of those activities. The defendant contends that the extraterritorial conduct of the West Hartford police violated three provisions of the state constitution. We will address these three arguments seriatim. 1 First, the defendant contends that the home rule provision of the state constitution, contained in article tenth, § 1, prohibits a municipality from exercising any authority that is not expressly permitted by statute. Specifically, the defendant asserts that, because the conduct of the West Hartford police in Hartford exceeded the legislature's delegation of municipal authority, that conduct also violated article tenth, § 1. The defendant relies on General Statutes § 7-148, 7-276, 7-277a, 7-281, 29-7, 29-169, 29-176 and 54-lf as reflecting the relevant legislative limitations on municipal police officers' authority to engage in extraterritorial police activity. The defendant does not claim, however, that the alleged statutory violations themselves necessitate suppression of the gun. Rather, he relies solely on the alleged constitutional violations to support his claim that the trial court improperly denied his motion to suppress. We are not persuaded. "Municipalities, because they are creations of the state, have no inherent legislative authority." Simons v. Canty, 195 Conn. 524, 529, 488 A.2d 1267 (1985). Rather, the legislative authority of municipalities derives solely from express legislative grants. Article tenth, § 1, of the Connecticut constitution embodies this rule: "The general assembly shall by general law delegate such legislative authority as from time to time it deems appropriate to towns, cities and boroughs relative to the powers, organization, and form of government of such political subdivisions." Thus, "the sole font of municipal authority is legislative delegation in the form of a general statute or a special act adopted prior to the effective date of article tenth." Id., 530; see City Council v. Hall, 180 Conn. 243, 248, 429 A.2d 481 (1980). The home rule provision, however, limits only the legislative powers of municipalities. Although we may have broadly described the home rule provision in prior cases as limiting a municipality's general authority to conduct its affairs, home rule is a constraint only on municipalities' legislative powers. The language of article tenth, § 1, clarifies this limited scope: "The general assembly shall . . . delegate such legislative authority . . .''(Emphasis added.) Moreover, the home rule provision's focus is evident from the dual purposes of that provision: "[1] to relieve the General Assembly of the burdensome task of handling and enacting special legislation of local municipal concern and [2] to enable a municipality to draft and adopt a home rule charter or ordinance which shall constitute the organic law of the city . . . ." (Emphasis added; internal quotation marks omitted.) Shelton v. Commissioner of Environmental Protection, 193 Conn. 506, 521, 479 A.2d 208 (1984). The home rule provision thus "prohibits the legislature from encroaching on the local authority to regulate matters of purely local concern." (Emphasis added.) Id.; see also Carofano v. Bridgeport, 196 Conn. 623, 630, 495 A.2d 1011 (1985). Accordingly, it is beyond dispute that the home rule provision, contained in article tenth, § 1, of the Connecticut constitution, limits a municipality's legislative powers, and has no application to the scope of a municipality's other powers. Because the West Hartford police were not exercising legislative authority, the defendant's home rule argument is unpersuasive. The defendant contends, however, that even if the home rule provision by its terms concerns only the legislative authority of municipalities, we should invalidate the conduct of the West Hartford police in this case pursuant to the "penumbras" of article tenth, § 1. Specifically, the defendant claims that, because the conduct of the West Hartford police violated statutory constraints on municipal police officers' authority to conduct extraterritorial investigatory activities, the "penumbras" of the home rule provision were violated. Lacking further explanation by the defendant of the nature of these alleged "penumbras," however, and in light of home rule's origin in the status of municipalities as statutory creations with no inherent legislative power, we reject the defendant's proposed extension of article tenth, § 1. 2 Second, the defendant argues that the West Hartford police, by conducting the investigation, stakeout and warrantless automobile seizure in Hartford, violated article first, § 7, which, inter alia, proscribes unreasonable seizures. The defendant contends that, because the West Hartford police officers' conduct violated statutory constraints on their territorial authority, that conduct was per se unreasonable under article first, § 7. The state argues, to the contrary, that a seizure may be constitutionally reasonable even if it is not specifically authorized by statute. We agree with the state. Although statutes may, in some circumstances, help to define the contours of constitutional rights; see State v. Lamme, 216 Conn. 172, 180-81, 579 A.2d 484 (1990); cf. State v. Joyner, 225 Conn. 450, 468, 625 A.2d 791 (1993); we are not persuaded that the prohibition in article first, § 7, of unreasonable seizures encompasses the legislature's territorial restrictions on police conduct. See, e.g., General Statutes § 7-148, 7-276, 7-277a, 7-281, 29-7, 29-169, 29-176 and 54-lf set out in footnote 12. Legislative enactments are expressions of this state's public policy and do not necessarily define the outer boundaries of constitutional protections. Indeed, the legislature has the power to prohibit, as a matter of policy, that which we have held to be constitutional. Compare State v. DeFusco, 224 Conn. 627, 620 A.2d 746 (1993) (holding that warrantless police searches of curbside garbage containers are permissible under article first, § 7), with 1993 House Bill No. 7237, § 2 (seeking to prohibit such searches; no action was taken on the House floor regarding this bill). The defendant has pointed to nothing in the text, purpose or legislative history of the relevant statutes, however, to indicate that the legislature intended to equate the prohibited conduct with that which is constitutionally unreasonable pursuant to article first, § 7, of the Connecticut constitution. Accordingly, we reject the defendant's argument. . 3 Finally, the defendant argues that article first, § 9, which provides that "[n]o person shall be arrested, detained or punished, except in cases clearly warranted by law," prohibits the extraterritorial investigation, stakeout, Terry stop and warrantless automobile seizure in which the West Hartford police engaged in Hartford. Because we need not resolve the validity of the West Hartford police officers' detention of the defendant; State v. Fleming, supra; this claim requires us to decide only whether the investigation, stakeout and warrantless automobile seizure violated article first, § 9. We conclude that they did not. Although article first, § 9, constitutes "one of our state constitutional provisions guaranteeing due process of law"; State v. Lamme, supra, 177; our cases applying that provision have generally involved personal liberty. See, e.g., State v. Oquendo, 223 Conn. 635, 646-53, 613 A.2d 1300 (1992) (determining whether a seizure of the defendant had occurred); State v. Lamme, supra, 180 (validity of detention that is not based on probable cause); State v. Carroll, 131 Conn. 224, 227-29, 38 A.2d 798 (1944) (validity of warrantless arrest). The defendant provides no argument that the prohibition in article first, § 9, of restraints on personal liberty, such as arrests, detentions and punishment, that are not "clearly warranted by law" also includes a prohibition on illegal investigations, stakeouts and warrantless automobile seizures. Indeed, the crux of the defendant's argument is that, because the West Hartford police officers' conduct violated statutory constraints on extraterritorial police activities, it thereby violated article first, § 9. Accordingly, we hold that the West Hartford police officers' investigation, stakeout and warrantless automobile seizure did not violate article first, § 9. We thus conclude that the investigatory conduct in Hartford by the West Hartford police did not violate article tenth, § 1, article first, § 7, or article first, § 9, of the state constitution. The Appellate Court properly affirmed the trial court's refusal to suppress the gun on those grounds. II The state contends that the West Hartford police officers' warrantless search of the defendant's automobile at the West Hartford police station was permissible under article first, § 7, of the Connecticut constitution and, therefore, that the Appellate Court improperly reversed the trial court's denial of the defendant's motion to suppress on that ground. The state's claim directly raises the question whether the United States Supreme Court's decision in Chambers v. Maroney, 399 U.S. 42, 51-52, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970), which interpreted the fourth amendment to permit a warrantless automobile search supported by probable cause and conducted while the automobile was impounded at a police station, is valid as a matter of state constitutional law. We are persuaded that it is not valid. We begin our analysis of this state constitutional question of first impression with a summary of the origin of the automobile exception to the warrant requirement and the United States Supreme Court's subsequent expansion of that exception in Chambers. In Carroll v. United States, 267 U.S. 132, 153, 45 S. Ct. 280, 69 L. Ed. 543 (1925), the United States Supreme Court held that the fourth amendment is not violated by a roadside warrantless search of an automobile if the police have probable cause to search the automobile and if obtaining a warrant would be impracticable because of the possibility that the automobile will be moved out of the jurisdiction. The rule announced in Carroll has come to be called the automobile exception to the warrant requirement. Connecticut recognizes this exception as a matter of state constitutional law. See, e.g., State v. Dukes, 209 Conn. 98, 126, 547 A.2d 10 (1988). In Chambers v. Maroney, supra, the United States Supreme Court extended the automobile exception to validate a warrantless search of an automobile that had been impounded at a police station. In support of its decision, the court stated that "[flor constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment." Id., 52. The present case requires that we determine whether article first, § 7, permits this expansion of the automobile exception. We note, as a preliminary matter, that we are not bound in our state constitutional inquiry by the United States Supreme Court's decision in Chambers. "[W]e may find greater protection of individual rights under our state constitution than that provided by the federal constitution. 'It is well established that federal constitutional . . . law establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection for such rights. . . .'(Internal quotation marks omitted.) State v. Oquendo, [supra, 649]. Moreover, we have held that '[i]n the area of fundamental civil liberties—which includes all protections of the declaration of rights contained in article first of the Connecticut constitution—we sit as a court of last resort. . In such constitutional adjudication, our first referent is Connecticut law and the full panoply of rights Connecticut citizens have come to expect as their due. Accordingly, decisions of the United States Supreme Court defining fundamental rights are persuasive authority to be afforded respectful consideration, but they are to be followed by Connecticut courts only when they provide no less individual protection than is guaranteed by Connecticut law.'. . . State v. Marsala, 216 Conn. 150, 160, 579 A.2d 58 (1990). Recognizing that our state constitution 'is an instrument of progress . . . is intended to stand for a great length of time and should not be interpreted too narrowly or too literally' . . . State v. Oquendo, supra, 649; we have concluded in several cases that the state constitution provides broader protection of individual rights than does the federal constitution. See, e.g., id., 652; State v. Marsala, supra, 171; State v. Dukes, [supra, 112], and cases cited therein." State v. DeFusco, supra, 632. In our independent determination of whether to follow the Chambers rule as a matter of state constitutional law, several factors may be useful: "(1) the textual approach; see, e.g., Stolberg v. Caldwell, 175 Conn. 586, 597-98, 402 A.2d 763 (1978), appeal dismissed sub nom. Stolberg v. Davidson, 454 U.S. 958, 102 S. Ct. 496, 70 L. Ed. 2d 374 (1981) ('Unless there is some clear reason for not doing so, effect must be given to every part of and each word in the constitution.'); (2) holdings and dicta of this court, and the Appellate Court; see, e.g., Doe v. Maher, 40 Conn. Sup. 394, 448-49, 515 A.2d 134 (1986) (trial court used strict scrutiny to analyze sex discrimination claim based on the equal protection clause of the state constitution, relying, in part, on dicta from the Connecticut Supreme Court regarding what standard would be used once Connecticut's equal rights amendment was adopted); (3) federal precedent; see, e.g., State v. Lamme, [supra, 184] ('The adoption of federal constitutional precedents that appropriately illuminate open textured provisions in our own organic document in no way compromises our obligation independently to construe the provisions of our state constitution.'); (4) sister state decisions or sibling approach; see, e.g., State v. Gethers, 197 Conn. 369, 386-87, 497 A.2d 408 (1985); Cologne v. Westfarms Associates, [192 Conn. 48, 58-59,469 A.2d 1201 (1984)]; (5) the historical approach, including the historical constitutional setting and the debates of the framers; see, e.g., State v. Lamme, supra, 178-80; Cologne v. Westfarms Associates, supra, 60-62; Palka v. Walker, 124 Conn. 121, 126, 198 A. 265 (1938); and (6) economic/sociological considerations. See State v. Barton, [219 Conn. 529, 546, 594 A.2d 917 (1991)]; State v. Dukes, supra, 115; see generally State v. Jewett, 146 Vt. 221, 500 A.2d 233 (1985); M. Margulies, 'Connecticut's Free Speech Clauses: A Framework and an Agenda,' 65 Conn. B. J. 437 (1991) (an analytical framework for state constitutional analysis in the context of the free speech clauses); E. Peters, 'State Constitutional Law: Federalism in the Common Law Tradition,' 84 Mich. L. Rev. 583 (1986) (book review)." (Emphasis in original.) State v. Geisler, 222 Conn. 672, 685-86, 610 A.2d 1225 (1992). Applying these analytical tools, we note that neither the text nor the history of article first, § 7, provides any reason to depart from the United States Supreme Court's interpretation of the federal constitution in this case. As we have previously held, the text of article first, § 7, is similar to the text of the fourth amendment. See State v. Marsala, supra, 159. Additionally, the history of article first, § 7, does not illuminate the appropriate scope of the automobile exception because the modern nature and function of the automobile, on which that exception is predicated, were unknown in 1818. Cf. id., 167 n.12 (fourth amendment and article first, § 7, were both enacted to prohibit general warrants and writs of assistance). We turn, therefore, to the other analytical tools suggested in Geisler. This court's precedents involving the state constitution's warrant requirement express a strong policy in favor of warrants that supports the Appellate Court's conclusion that article first, § 7, provides broader protection than does the fourth amendment against warrantless searches of automobiles that have been impounded at police stations, even though probable cause exists. For example, in State v. Diaz, 226 Conn. 514, 544-47, 628 A.2d 567 (1993), we rejected the defendant's claim that article first, § 7, requires de novo review of the probable cause determination made by a judge issuing a warrant, in part because of our concern that such review would discourage the police from seeking warrants. Additionally, in State v. Geisler, supra, 695-96, we held that, despite the validity of the emergency exception to the state constitution's warrant requirement, the police must retreat from a house that they have entered pursuant to that exception as soon as the emergency ceases to exist. See also State v. DeFusco, supra, 642; State v. Duntz, 223 Conn. 207, 216, 613 A.2d 224 (1992); State v. Barton, supra, 552. Our constitutional preference for warrants reflects a goal of protecting citizens from unjustified police intrusions by interposing a neutral decisionmaker between the police and the object of the proposed search. See State v. Diaz, supra; cf. State v. Jackson, 162 Conn. 440, 444, 294 A.2d 517, cert. denied, 409 U.S. 870, 93 S. Ct. 198, 34 L. Ed. 2d 121 (1972) (purpose of fourth amendment is to require neutral and detached magistrate to make probable cause determination). Accordingly, a search is invalid if the police, without a justification rooted in a valid exception to the warrant requirement, have relied upon only their own probable cause evaluation, even if later found to be correct, before searching. We thus read the two clauses of article first, § 7, in conjunction—a warrant-less search is per se unreasonable, justified only by limited exceptions—rather than in disjunction—a search is valid if it is reasonable, and the presence of a warrant is just one factor in the determination of reasonableness. Cf., e.g., State v. Badgett, 200 Conn. 412, 423, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986) (construing fourth amendment to bar warrantless searches as per se unreasonable); see generally State v. Larocco, 794 P.2d 460, 467-69 (Utah 1990) (extensive discussion of the consequences of reading the two clauses of the fourth amendment in conjunction and in disjunction); R. Bloom, "Warrant Requirement—The Burger Court Approach," 53 U. Colo. L. Rev. 691 (1982). Our constitutional preference for warrants is overcome only in specific and limited circumstances. See, e.g., State v. Geisler, supra, 691 (recognizing emergency exception as matter of state constitutional law); State v. Delossantos, 211 Conn. 258, 266-67, 559 A.2d 164, cert. denied, 493 U.S. 866, 110 S. Ct. 188, 107 L. Ed. 2d 142 (1989) (recognizing exception for search incident to arrest as matter of state constitutional law); State v. Dukes, supra, 126 (recognizing automobile exception on the highway as a matter of state constitutional law). These recognized exceptions derive primarily from acknowledged interests in protecting the safety of the police and the public and in preserving evidence. In this case, the state offers two principal justifications for expanding the automobile exception to permit a warrantless automobile search that is conducted after the automobile has been impounded at a police station. First, the state asserts that it may be necessary, under certain circumstances, to delay a warrant-less automobile search until such time as the automobile is located in a safe, convenient place. This proffered justification primarily expresses a concern for the safety of the police while they are at the scene of an automobile seizure. We are not persuaded. The state's argument fails because it relies upon the fiction that the legitimate safety concern that may necessitate towing an automobile from the site of its seizure to the police station also provides justification for the warrantless search of that automobile at the station. We refused to accept a similar fiction in State v. Geisler, supra, 695-96, in which we held that the police must obtain a search warrant upon expiration of the emergency that initially justified the warrant-less entry into a suspect's home. Moreover, in State v. Badgett, supra, 427, we refused to extend the fiction that the passenger compartment of an automobile is always within reach of the arrestee to circumstances in which the arrestee is no longer at the scene when the warrantless search is undertaken. These fictions are inconsistent with our constitutionally mandated preference for warrants. We therefore reject the state's suggestion that the risks that lead police to tow an automobile to the police station also justify a warrantless search of the automobile after it has been impounded. Second, the state contends that a person's privacy interest in his or her automobile is invaded to the same extent whether a warrantless search of that automobile is conducted at the scene of its seizure or at the police station. The state argues, therefore, that a warrantless automobile search at the police station is constitutionally permissible whenever a warrantless on-the-scene search would be permissible. We disagree. We tolerate the warrantless on-the-scene automobile search only because obtaining a warrant would be impracticable in light of the inherent mobility of automobiles and the latent exigency that that mobil ity creates. See Carroll v. United States, supra, 153. The balance between law enforcement interests and individuals' privacy interests thus tips in favor of law enforcement in the context of an on-the-scene automobile search. If the impracticability of obtaining a warrant no longer exists, however, our state constitutional preference for warrants regains its dominant place in that balance, and a warrant is required. Our conclusion is supported by decisions of other courts that have limited the applicability of the automobile exception pursuant to their state constitutions. For example, in State v. Kock, 302 Or. 29, 33, 725 P.2d 1285 (1986), the Oregon Supreme Court held, pursuant to the Oregon constitution, that, although "[s]earehes of automobiles that have just been lawfully stopped by police may be searched without a warrant and without a demonstration of exigent circumstances when police have probable cause to believe that the automobile contains contraband or crime evidence . . . any search of an automobile that was parked, immobile and unoccupied at the time the police first encountered it . . . must be authorized by a warrant . or, alternatively, the prosecutor must demonstrate that exigent circumstances other than the potential mobility of the automobile exist." (Emphasis added.) See also State v. Larocco, supra, 469-70 (warrantless automobile searches are permissible under the state constitution only if supported by probable cause and if necessary to protect the police or the public or to prevent the destruction of evidence). Finally, we note that our holding will require suppression of unconstitutionally obtained evidence only if the state fails to establish that the evidence would subsequently have been obtained pursuant to the inevitable discovery doctrine. See State v. Badgett, supra, 432-34. In this case, the Appellate Court has ordered the trial court to determine whether the inevitable discovery rule would justify the trial court's denial of the defendant's motion to suppress the gun, despite the unconstitutionality of the search in which the gun was recovered. State v. Miller, supra, 236. In light of our demonstrated constitutional preference for warrants and our concomitant obligation narrowly to circumscribe exceptions to the state constitutional warrant requirement, we conclude that a warrantless automobile search supported by probable cause, but conducted after the automobile has been impounded at the police station, violates article first, § 7, of the Connecticut constitution. Accordingly, the Appellate Court properly upheld the defendant's claim that the gun should have been suppressed on that ground. The judgment is affirmed. In this opinion Borden, Berdon and Katz, Js., concurred. Initially, the state filed a long form amended information charging the defendant with robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), and conspiracy to commit robbery in the first degree in violation of General Statutes § 53a-134 (a) (4) and 53a-48 (a). After a trial to a jury before the court, Miaño, J., the defendant was acquitted of those charges. Subsequently, the state filed a substitute information charging the defendant with possession of a weapon by a felon in violation of General Statutes § 53a-217, as well as an additional charge of possession of a weapon in a motor vehicle in violation of General Statutes § 29-38, which was nolled. General Statutes (Rev. to 1989) § 53a-217 provides in relevant part: "CRIMINAL USE OF PISTOL, REVOLVER OR ELECTRONIC DEFENSE WEAPON: CLASS D FELONY, (a) A person is guilty of criminal possession of a pistol, revolver or electronic defense weapon when he possesses a pistol, revolver or electronic defense weapon and has been convicted of a capital felony, a class A felony, a class B felony, except a conviction under section 53a-86, 53a-122 or 53a-196a, a class C felony, except a conviction under section 53a-87, 53a-152, 53a-153 or 53a-196b, or a felony under sections 53a-60 to 53a-60c, inclusive, 53a-72a, 53a-72b, 53a-95, 53a-103, 53a-103a, 53a-114, 53a-136 or 53a-216. For the purposes of this section, 'convicted' means having a judgment of conviction entered by a court of competent jurisdiction. "(b) Criminal possession of a pistol, revolver or electronic defense weapon is a class D felony, for which two years of the sentence imposed may not be suspended or reduced by the court." General Statutes § 54-94a provides: "conditional nolo contendere PLEA. APPEAL OF DENIAL OF MOTION TO SUPPRESS OR DISMISS. When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court's denial of the defendant's motion to suppress evidence based on an unreasonable search or seizure, motion to suppress statements and evidence based on the involuntariness of a statement or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution." Article first, § 7, of the Connecticut constitution provides: "The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation." We granted the defendant's petition for certification to appeal, limited to the following issue: "Does the Connecticut constitution, in specific, article tenth, § 1, article first, § 7, or article first, § 9, prohibit municipal police from intentionally going into another municipality to perform investigations, stakeouts, Terry stops, and/or warrantless seizures?" State v. Miller, 224 Conn. 915, 617 A.2d 170 (1992). We granted the state's petition for certification to appeal, limited to the following issue: "In the circumstances of this case, did the warrantless search of the defendant's car at the West Hartford police station violate article first, § 7, of the Connecticut constitution?" State v. Miller, 224 Conn. 914, 617 A.2d 170 (1992). These facts were adduced at the trial court's hearing on the defendant's motion to suppress, which was held before Judge Miano, during the defendant's trial on charges of robbery in the first degree and conspiracy to commit robbery in the first degree. See footnote 1. See footnote 1. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). For the purpose of this appeal, we adopt the parties' characterization of the conduct of the West Hartford police in Hartford as "investigation, stakeout, Terry stop and warrantless seizure." The defendant also claimed that the gun seized from the trunk of his automobile was the fruit of an illegal arrest and, therefore, that it should have been suppressed. The Appellate Court rejected this claim, holding that the gun was not a fruit of the defendant's detention on Arlington Street, regardless of whether that detention was a Terry stop or an arrest. State v. Miller, 29 Conn. App. 207, 216, 614 A.2d 1229 (1992). The Appellate Court rejected the defendant's claim that the recovery of the gun by the West Hartford police flowed from their detention of the defendant in Hartford. State v. Miller, 29 Conn. App. 207, 216, 614 A.2d 1229 (1992); see also footnote 9. This issue is not before us. The parties do not dispute that the investigation and stakeout by the West Hartford police, as well as their warrantless seizure of the defendant's automobile, led to the recovery of the gun that the defendant seeks to have suppressed. General Statutes § 7-148 provides in relevant part: "scope op municipal powers. . . . "(c) powers. Any municipality shall have the power to do any of the following, in addition to all powers granted to municipalities under the constitution and general statutes . . . "(4) public services. (A) Provide for police protection, regulate and prescribe the duties of the persons providing police protection with respect to criminal matters within the limits of the municipality and maintain and regulate a suitable place of detention within the limits of the municipality for the safekeeping of all persons arrested and awaiting trial and do all other things necessary or desirable for the policing of the municipality . . ." General Statutes § 7-276 provides in relevant part: "powers op commissioners. . . . The members of [a town's] police department shall have all such authority with respect to the service of criminal process and the enforcement of the criminal laws as is vested by the general statutes in police officers and constables." General Statutes § 7-277a provides in relevant part: "police assistance agreements, (a) The chief executive officer of any town, city or borough or his designee may, whenever he determines it to be necessary in order to protect the safety or well-being of his municipality, request the chief executive officer of any other town, city or borough to furnish such police assistance as is necessary to meet such situation and the chief executive officer, or chief of police or board of police commissioners or other duly constituted authority with the approval of the chief executive officer of the municipality receiving such request may, notwithstanding any other provision or requirement of state or local law, assign and make available for duty in such other municipality, under the direction and command of an officer designated for the purpose, such part of the police forces under his control as he deems consistent with the safety and well-being of his municipality. ." General Statutes § 7-281 provides: "execution of criminal process IN TOWNS, CITIES AND BOROUGHS. EXECUTION OF ARREST WARRANTS. Active members of any legally organized police force in a town, city or borough shall have the same authority to execute criminal process in their respective towns, cities or boroughs as constables have in their respective towns, and, in addition, any such member having a warrant of arrest arising out of an offense allegedly committed in the town, city or borough in which such police force is located may execute such warrant in any part of the state." General Statutes § 29-7 provides in relevant part: "powers and duties of force, barracks. . . . All state policemen shall have, in any part of the state, the same powers with respect to criminal matters and the enforcement of the law relating thereto as sheriffs, policemen or constables have in their respective jurisdictions. . . ." General Statutes § 29-169 provides in relevant part: "cooperation with TASK FORCE BY GOVERNMENTAL UNITS. AGREEMENTS WITH OTHER STATES. COOPERATION WITH FEDERAL AUTHORITIES. REFERRAL OF EVIDENCE OF CRIME OR misconduct, (a) The state-wide organized crime investigative task force may duly request and may receive from every department, division, board, bureau, commission or other agency of the state, or of any political subdivision thereof, cooperation and assistance in the performance of its duties, including the temporary assignment of personnel to the statewide organized crime investigative task force which might be necessary in order to carry out its duties and responsibilities." General Statutes § 29-176 provides in relevant part: "state-wide narcotics TASK FORCE; FORMATION; AUTHORITY; STATE, FEDERAL AND LOCAL assistance, (a) There shall be within the division of state police within the department of public safety a state-wide narcotics task force for the effective cooperative enforcement of the laws of this state concerning the manufacture, distribution, sale and possession of narcotics and controlled substances. "(b) The task force shall be authorized to conduct any investigation authorized by this section at any place within the state as may be deemed necessary. "(c) The task force may request and may receive from any federal, state or local agency, cooperation and assistance in the performance of its duties, including the temporary assignment of personnel which may be necessary to carry out the performance of its functions. . . ." General Statutes § 54-lf provides in relevant part: "arrest without warrant, pursuit outside precincts, (a) . Peace officers, as defined in subdivision (9) of section 53a-3, in their respective precincts, shall arrest, without previous complaint and warrant, any person for any offense in their jurisdiction, when the person is taken or apprehended in the act or on the speedy information of others, provided that no constable elected pursuant to the provisions of section 9-200 shall be considered a peace officer for the purposes of this subsection, unless the town in which such constable holds office provides, by ordinance, that constables shall be considered peace officers for the purposes of this subsection. "(b) Members of . . . any local police department . . . shall arrest, without previous complaint and warrant, any person who the officer has reasonable grounds to believe has committed or is committing a felony. "(c) Members of any local police department . . . when in immediate pursuit of one who may be arrested under the provisions of this section, are authorized to pursue the offender outside of their respective precincts into any part of the state in order to effect the arrest. . . ." See footnote 3. Our analysis is limited to noninventory searches of automobiles that have been impounded at police stations. We note, however, that the Appel late Court remanded the case to the trial court for consideration of whether the gun would inevitably have been discovered in an inventory search. State v. Miller, 29 Conn. App. 207, 235-36, 614 A.2d 1229 (1992). Our decision in State v. Delossantos, 211 Conn. 258, 266, 559 A.2d 164, cert. denied, 493 U.S. 866, 110 S. Ct. 188,107 L. Ed. 2d 142 (1989), stated the automobile exception to the article first, § 7 warrant requirement in broad terms: "[0]ur automobile exception permits a warrantless search of an automobile whenever the police have probable cause to do so." (Internal quotation marks omitted.) That case did not require, however, that we decide whether the automobile exception allows a warrantless search of an automobile that has been impounded at a police station. Accordingly, we decline to read our generally stated assertion in Delossantos as implicitly deciding the question presented here. Moreover, we reject the state's suggestion that we decided this question in State v. Schoenbneelt, 171 Conn. 119, 368 A.2d 117 (1976). The defendant in that case challenged the warrantless search of his automobile, which had been impounded at a police station, under the federal and state constitutions. Id., 122-23. Our rejection of his claim rested entirely, however, on cases applying the fourth amendment, although we did not expressly disavow reliance on the Connecticut constitution. By contrast, in cases in which we have rested our decisions on state constitutional grounds, we have fully analyzed the relevant state constitutional provision and have expressly stated that the Connecticut constitution forms a basis of our decision. Compare State v. DeFusco, 224 Conn. 627, 631-39, 620 A.2d 746 (1993), with State v. Campbell, 224 Conn. 168, 181 n.10, 617 A.2d 889 (1992). Accordingly, we decline to read our silence in Schoenbneelt regarding the basis of our decision as an indication that the state constitutional question was resolved. In urging affirmance of the Appellate Court's conclusion that the automobile search in this case violated article first, § 7, the defendant concedes that he does not rely on either the text or the history of that provision. As we stated in State v. Januszewski, 182 Conn. 142, 155, 428 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981), a fourth amendment case, the automobile exception to the federal constitution's warrant requirement does not rely solely on the "actual or threatened mobility of an automobile." Rather, the automobile's inherent mobility and the "continuing possibility of being moved" underlie the exception. Our state constitutional decision today departs from our statements in Januszewski regarding the fourth amendment, therefore, only to the extent that we refuse, as a matter of state constitutional law, to extend the automobile exception to validate searches of automobiles impounded at the police station if there is no "continuing possibility [that the automobile will be] moved." Id. We recognize that requiring the police to secure a warrant in order to search an impounded automobile at the police station may burden the owner because the automobile will necessarily be held while the police seek the warrant. This factor does not, however, alter our conclusion. First, we regard that incremental burden as justified by our constitutional preference for warrants. Second, in most cases the police may be able to minimize this burden by establishing appropriate policies regarding inventory searches of impounded automobiles. We recognize, however, that most states facing this issue have adopted the Chambers rule as a matter of state constitutional law. See, e.g., State v. Redfeam, 441 So. 2d 200, 202 (La. 1983); Commonwealth v. Moses, 408 Mass. 136, 145-46, 557 N.E.2d 14 (1990); State v. Gallant, 133 N.H. 138, 146-47, 574 A.2d 385 (1990); People v. Blasich, 73 N.Y.2d 673, 681, 541 N.E.2d 40, 543 N.Y.S.2d 40 (1989). We are not persuaded by these decisions, however, because they rely primarily on the proposition that any justification for conducting a warrantless on-the-scene automobile search is sufficient justification for a search conducted after the automobile has been towed to the police station. As previously discussed, we reject that proposition as incompatible with our constitutional preference for warrants. We decline the defendant's invitation to reject the automobile exception entirely and instead to create an exception that requires exigency to justify warrantless searches of vehicles and possessions. We have recognized the automobile exception as a matter of state constitutional law; see State v. Dukes, 209 Conn. 98,126, 547 A.2d 10 (1988); and, in light of the particular circumstances of this case, see no reason to question those decisions.

The plaintiff's petition for certification for appeal from the Appellate Court, 32 Conn. App. 409 (AC 11914), is denied.

Foti, J. The defendants appeal from the discharge of a purchaser's lien. The plaintiffs, Merle C. Brown and Jo Anne Brown, have filed a motion to dismiss the appeal as untimely and for lack of a final judgment. We deny the motion. The facts are not in dispute. The defendants, Gary Rosen and Susan Rosen, held a purchaser's lien on the plaintiffs' property located at 54 Cross Highway, Red-ding, pursuant to General Statutes § 49-92a. The plaintiffs commenced an action to discharge that lien on the basis that it was invalid under the provisions of § 49-92a. The defendants moved to dismiss the plaintiffs' action for insufficient service of process. The trial court denied the defendants' motion to dismiss and discharged the purchaser's lien as invalid on August 1, 1994. The defendants appealed from the court's decision on August 12, 1994. The plaintiffs first claim that the defendants' appeal is untimely pursuant to General Statutes § 52-325c (b), which provides a seven day appeal period. A review of the statutory scheme governing purchaser's liens, however, reveals that § 52-325c (b) does not apply to this appeal. A purchaser seeking to place a purchaser's lien on certain property must record the contract for the conveyance of that land in the town records according to the provisions of § 49-92a. A party having an interest in that property may bring an action to discharge the lien pursuant to General Statutes § 49-92e. General Statutes § 49-92a through 49-92f, which govern purchaser's liens, are silent regarding the time for taking an appeal from the judgment on a complaint to discharge such a lien. The twenty day time limit set forth in Practice Book § 4009 thus applies to such appeals. Because the defendants appealed within twenty days of the issuance of notice of the final judgment rendered in this case, their appeal is timely. We briefly turn to the plaintiffs' assertion that a seven day appeal period applies to this case. The plaintiffs argue that the appeal is governed by General Statutes § 49-51, 52-326 and 52-325c (b). The plaintiffs' argument is confusing. Section 49-51 is a general provision regarding the discharge of invalid liens. Sec tion 52-326 provides that "[t]he provisions of sections 52-322 and 52-32U shall apply, mutatis mutandis, to any lis pendens recorded according to the provisions of section 52-325 or any invalid lien sought to be discharged under section 49-51." (Emphasis added.) Section 52-325c (b) provides a seven day appeal period for decisions on applications for the discharge of a notice of lis pendens. The plaintiffs' argument appears to be that because they sought the discharge of the lien under § 49-51, the provisions of § 52-325c (b) apply to the appeal under § 52-326. The plaintiffs' argument lacks merit. First, the plaintiffs did not bring their action to discharge the lien under § 49-51. Their complaint refers to § 49-92a. Even if the plaintiffs sought to discharge the lien under § 49-51, § 52-326 provides that § 52-322 and 52-32U apply to that case, but it is silent as to the applicability of § 52-325c (b), which sets forth the seven day appeal period. We conclude that the claim of the plaintiffs is unpersuasive. The plaintiffs next assert that because the defendants have appealed from the denial of their motion to dismiss, the appeal was not taken from a final judgment and must be dismissed. We disagree. The plaintiffs accurately represent that the denial of a motion to dismiss generally is not an appealable final judgment. Sasso v. Aleshin, 197 Conn. 87, 90, 495 A.2d 1066 (1985); State v. Malkowski, 189 Conn. 101, 104, 454 A.2d 275 (1983); Kioukis v. Kioukis, 185 Conn. 249, 251 n.1, 440 A.2d 894 (1981); Guerin v. Norton, 167 Conn. 282, 283, 355 A.2d 255 (1974); State v. Boucher, 119 Conn. 436, 437, 177 A. 383 (1935); State v. Harris, 4 Conn. Cir. Ct. 534, 536, 236 A.2d 479 (1967). That rule, however, is not dispositive of this appeal. The jurisdictional statement on the defendants' appeal form fails to indicate properly that the appeal was taken from the final judgment, which in this case was the discharge of the purchaser's lien. It is clear from the preliminary statement of issues, however, that the defendants awaited the entry of a final judgment on the discharge of the lien and then appealed, challenging also the earlier denial of their motion to dismiss for insufficient service of process. The deficiency on the defendants' appeal form, therefore, is a mere technical defect for which this court generally does not dismiss an appeal. We have often stated that we will not exalt form over substance. State v. Rosedom, 34 Conn. App. 141, 143, 640 A.2d 634 (1994); Wilton v. McGovern, 33 Conn. App. 517, 521, 636 A.2d 870, cert. denied, 228 Conn. 928, 640 A.2d 116 (1994); Connecticut National Bank v. Browder, 30 Conn. App. 776, 779, 622 A.2d 588 (1993); Tolland Bank v. Larson, 28 Conn. App. 332, 337, 610 A.2d 720 (1992). The motion to dismiss is denied. In this opinion the other judges concurred. General Statutes § 49-92a provides: "purchaser's lien, precedence, foreclosure. A purchaser's lien is created for the amount of the deposit paid pursuant to and stated in a contract for the conveyance of land by the recording of that contract in the records of the town in which the land is situated, provided the contract is executed by the owner and by the vendee of the land, witnessed and acknowledged in the same manner as required for a deed for the conveyance of land, and describes the particular land to which it refers. That purchaser's lien shall be prior to any other liens and encumbrances originating after the contract is recorded. A purchaser's lien may be foreclosed in the same manner as a mortgage. Transfer of title of the land to the vendee constitutes a release and discharge of the lien." See footnote 1. General Statutes § 49-92e provides: "action to claim discharge. Any person, having an interest in any real estate described in any recorded contract of sale creating a purchaser's lien which is invalid but not discharged of record, may give written notice to the lienor to discharge the lien in the office where recorded. If the request is not complied with in ten days, that person may bring his complaint to the court which would have jurisdiction of the foreclosure of the lien, if valid, claiming such discharge of the lien, and the court may adjudge the validity or invalidity of the lien and may award the plaintiff damages for the failure of the defendant to make discharge upon request. A certified copy of the judgment of invalidity, recorded on the land records of the town where such certificate of lien was filed, fully discharges the lien." Practice Book § 4009 provides in relevant part: "The party appealing shall, within twenty days, except where a different period is provided by statute, from the issuance of notice of the rendition of the judgment or decision from which the appeal is taken file an appeal . . . ." General Statutes § 49-51 provides: "discharge of invalid lien, (a) Any person having an interest in any real or personal property described in any certificate of lien, which lien is invalid but not discharged of record, may give written notice to the lienor sent to him at his last-known address by registered mail or by certified mail, postage prepaid, return receipt requested, to discharge the lien. Upon receipt of such notice, the lienor shall discharge the lien by sending a release sufficient under section 52-380d, by first class mail, postage prepaid, to the person requesting the discharge. If the lien is not discharged within thirty days of the notice, that person may apply to the superior court for such a discharge, and the court may adjudge the validity or invalidity of the lien and may award the plaintiff damages for the failure of the defendant to make discharge upon request. If the court is of the opinion that such certificate of lien was filed without just cause, it may allow, in its discretion, damages to any person aggrieved by such failure to discharge, at the rate of one hundred dollars for each week after the expiration of such thirty days, but not exceeding in the whole the sum of five thousand dollars or an amount equal to the loss sustained by such aggrieved person as a result of such failure to discharge the lien, which loss shall include, but not be limited to, a reasonable attorney's fee, whichever is greater. "(b) When a lien on real property is adjudged invalid or is otherwise discharged by the court, a certified copy of the judgment of invalidity or discharge recorded on the land records of the town where the certificate of lien was filed fully discharges the lien. If such a discharged or invalid lien is a lien filed on personal property pursuant to section 52-355a, a release of lien in the form prescribed by subsection (c) of section 52-380d, certified to by a clerk of the superior court, with reference to and the date of the court order of discharge or invalidity, fully discharges the lien on filing with the secretary of the state." General Statutes § 52-325c provides in relevant part: "(a) Any order entered as provided in subsection (b) of section 52-325b shall be deemed a final judgment for the purpose of appeal. "(b) No appeal shall be taken from such order except within seven days thereof. ." The jurisdictional statement on the appeal form indicates that the appeal was taken from the "denial of motion to dismiss granting of plaintiffs' application for discharge."

Per Curiam. The judgment is affirmed.

O'Connell, J. This is a fraudulent conveyance action in which the defendants appeal from the granting of summary judgment in favor of the plaintiffs. The dis-positive issue is whether the trial court properly decided that no genuine issue of material fact existed. We reverse the judgment of the trial court. The following facts are necessary for a disposition of this appeal. In late 1984 or early 1985, the plaintiffs became creditors of the defendant Vincent Romeo because of defective masonry work he had done on a stone wall on the plaintiffs' property. On October 24, 1990, the plaintiffs obtained a judgment against the defendant Vincent Romeo based on this defective work. In the interim, on June 20,1985, the defendant Vincent Romeo conveyed his interest in the subject real property to his wife, the defendant Maria Romeo. The sole consideration for this conveyance was "love and affection." The defendants admit that the reason for the conveyance was that the defendants' son was involved in an automobile accident while operating an uninsured motor vehicle owned by the defendant Vincent Romeo. The plaintiffs brought the present action pursuant to General Statutes (Rev. to 1991) § 52-552, alleging that the June 20, 1985 conveyance from the defendant Vincent Romeo to his wife Maria Romeo was fraudulent. The defendants filed a special defense claiming that the transfer was made without intent to defraud creditors. Both parties filed motions for summary judgment with supporting affidavits. The affidavit of each defendant states that the June 20, 1985 conveyance was not made with intent to defraud creditors. A summary judgment may be granted "if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Town Bank & Trust v. Benson, 176 Conn. 304, 306, 407 A.2d 971 (1978); see Practice Book § 384. A material fact is one "which will make a difference in the result of the case." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969). The controlling issue in the present case is whether the parties intended to defraud their creditors. "Whether the conveyance in question was fraudulent is purely a question of fact. . . . Fraudulent intent must be proved, if at all, by clear, precise and unequivocal evidence. ." (Citations omitted; internal quotation marks omitted.) Tyers v. Coma, 214 Conn. 8, 11, 570 A.2d 186 (1990). A question of intent raises an issue of material fact, which cannot be decided on a motion for summary judgment. Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 111, 639 A.2d 507 (1994). "The function of the trial court, in summary judgment proceedings, is not to decide issues of material fact, but rather to determine whether any such issues exist." Telesco v. Telesco, 187 Conn. 715, 718, 447 A.2d 752 (1982). Here, the trial court properly identified intent as a genuine issue of material fact, but it should not have proceeded to decide that issue. "The resolution of genuinely disputed issues must be left to later determination after a full hearing." Id. The judgment is reversed and the case is remanded for further proceedings. In this opinion the other judges concurred. The defendants also raised the following issues: (1) "Whether the transfer of real property from the defendant-appellant, Vincent Romeo, to the defendant-appellant, Maria Romeo, was fraudulent?" (2) "Whether there is sufficient evidence to find that the transfer of real property from the defendant-appellant, Vincent Romeo, to the defendant-appellant, Maria Romeo, was made with the intent to defraud creditors?" General Statutes (Rev. to 1991) § 52-552 was repealed shortly after this action was commenced and replaced by the Uniform Fraudulent Transfer Act. General Statutes § 52-552a through 52-552k. The defendant Vincent Romeo attached copies of income tax returns and a balance sheet purporting to show that he was not judgment proof. Practice Book § 384 provides as follows: "The judgment sought shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."

Per Curiam. The judgment is affirmed.

Dupont, C. J. The defendant appeals from the order of the trial court that transferred his trial for murder from the juvenile docket to the regular criminal docket pursuant to General Statutes § 46b-127. He claims that (1) the evidence presented at the transfer hearing failed to show probable cause that he intended to kill the victim and (2) that the trial court abused its discretion in relying on evidence allegedly not presented at the transfer hearing to support its decision. We affirm the judgment of the trial court. The state filed a delinquency petition in the Superior Court against the defendant, who was then fifteen years of age, claiming that he had committed the serious juvenile offense of murder in violation of General Statutes § 53a-54a in causing the death of the victim. Thereafter, the state moved to transfer the defendant to the regular criminal docket pursuant to General Statutes § 46b-127 because he had been charged with murder. After a hearing, the court granted the motion and this appeal followed. The trial court made written findings as required by § 46b-127. On March 10,1991, five young men, includ ing the defendant, were driving in the Brooklyn section of Waterbury in a stolen car. In the glove compartment of the car was a .25 caliber pistol that had been taken from a car stolen a day or two previously. The driver, Javier Gonzalves, saw the victim, Jason Regner, in a car and drove around the block to park near him. Gonzalves told the victim that the victim owed "John" some money. The defendant took the pistol from the car, walked up to Regner and said "Yo, Jay." The victim rolled down the driver's window about four inches. The defendant stuck the gun into the car and shot Regner in the left rear shoulder blade. The bullet penetrated his lungs and quickly killed him. The trial court found that no heated words were exchanged. On the basis of these findings, the court inferred that the defendant intended to kill Regner when he placed the gun into the car and fired at the victim's torso from close range. Accordingly, the court found probable cause to believe that the defendant intended to cause and did cause the victim's death. General Statutes § 46b-127 requires, as a precondition to transfer from the docket for juvenile matters to the regular criminal docket, that the court find "that there is probable cause to believe that the child has committed the act for which he is charged." "The quantum of evidence necessary to establish probable cause at a preliminary hearing is less than the quantum necessary to establish proof beyond a reasonable doubt at trial. . In making its finding, the court had to determine whether the government's evidence would warrant a person of reasonable caution to believe that the accused [had] committed the crime. . . . The quantum of evidence necessary to establish probable cause exceeds mere suspicion, but is substantially less than that required for conviction. Our cases have made clear that [t]here is often a fine line between mere suspicion and probable cause, and [t]hat line necessarily must be drawn by an act of judgment formed in light of the particular situation and with account taken of all the circumstances." (Citations omitted; internal quotation marks omitted.) In re Keijam T., 221 Conn. 109, 115-16, 602 A.2d 967 (1992). Our function on appeal is to determine whether the decision of the trial court that probable cause existed was clearly erroneous. Practice Book § 4061. "[Wjhere the factual basis of the court's decision is challenged we must determine whether the facts set out in the . . . decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980)." (Internal quotation marks omitted.) In re Ralph M., 211 Conn. 289, 316, 559 A.2d 179 (1989). We view the evidence and the permissible inferences drawn therefrom in the light most favorable to sustaining the trial court's determination of probable cause. In re Keijam T., supra, 116. The defendant concedes that the shooting was reckless or involved extreme indifference to human life, but that the facts were insufficient to find probable cause for an intent to kill as required by General Statutes § 53a-54a. He argued that the car was moving when the shot was fired and that firing into a moving car indicated recklessness rather than evidenced an intent to kill. Reviewing this evidence in the light most favorable to sustaining the finding of probable cause, we conclude that the court was entitled to infer that the defendant intentionally placed a gun into the passenger compartment of the victim's car and fired a shot that entered the victim's lung. A factfinder may infer an intent to kill " 'from circumstantial evidence such as the type of weapon used, the manner in which it was used, the type of wound inflicted and the events lead ing to and immediately following the death.' " In re Edwin N., 215 Conn. 277, 284, 575 A.2d 1016 (1990). The evidence was sufficient to support a finding of probable cause that the defendant intended to kill the victim. The defendant next claims that the trial court relied on its allegedly erroneous recollection of a witness' testimony in stating from the bench that it was the court's "feeling that at this time probable cause has been established by the state, based primarily on the testimony of Moisés Garcia and Evon Gardner." The court also stated that it would make its finding more specific in writing at a later time. The finding about which the defendant complains relates to the movement of the victim in his car. Our review of the trial court's written findings of fact show that the court's ultimate finding that the victim "jolted forward" as he was being shot is supported by the record. Any alleged mistake in a statement from the bench was corrected by the written findings, which were made after the transcript of the hearing was available to the court. The judgment is affirmed. In this opinion the other judges concurred. In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 2026, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court. General Statutes § 46b-127 (Formerly Sec. 51-308) provides in pertinent part: "mandatory transfer of child charged with certain felonies to REGULAR criminal docket. The court shall transfer to the regular criminal docket of the superior court from the docket for juvenile matters: (1) Any child referred for the commission of a murder under sections 53a-54a to 53a-54d, inclusive, provided any such murder was committed after such child attained the age of fourteen years . No such transfer shall be valid unless, prior thereto, the court has made written findings, after a hearing, that there is probable cause to believe that the child has committed the act for which he is charged. At such hearing, the child shall have the right to counsel and to confront the witnesses against him. The procedures provided in section 54-46a shall apply at such hearing, except that the child shall have the right to move to suppress any admission made by him on the ground that it was obtained in violation of the provisions of subsection (a) of section 46b-137 and to obtain discovery of exculpatory information. An order by the court under this section transferring a child from the docket for juvenile matters to the regular criminal docket of the superior court shall be a final judgment for purposes of appeal. Upon the effectuation of the transfer, such child shall stand trial and be sentenced, if convicted, as if he were sixteen years of age . . . ."

Schaller, J. The defendant appeals from the judgment of conviction, rendered after a jury trial, of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), sexual assault in a spousal relationship in violation of General Statutes § 53a-70b, and attempt to commit sexual assault in a spousal relationship in violation of General Statutes § 53a-49 (a) and 53a-70b. The defendant was found not guilty of a separate count that charged him with robbery in the first degree in violation of General Statutes § 53a-134 (a) (3). The defendant claims that the trial court improperly (1) permitted the DNA expert witness to testify that the possibility that the DNA profile of a semen sample found at the crime scene came from someone other than the defendant was not statistically significant, (2) permitted the expert to testify to the statistical probabil ity of the DNA match, (3) permitted the expert to testify to the statistical significance of a nonmatching DNA probe, (4) instructed the jury (a) to apply a conclusive presumption and directed a verdict of guilty, (b) on the threat of use of force, a statutory alternative the defendant claims was unsupported by the evidence, (c) on attempt, thus violating the defendant's right not to be convicted except upon proof beyond a reasonable doubt, and (d) on the presumption of innocence and the meaning of reasonable doubt in a manner that violated the defendant's due process right to a fair trial. We affirm the judgment of the trial court. The jury reasonably could have found the following facts. On February 11,1991, the victim, the estranged wife of the defendant, was assaulted by an unknown assailant wearing a ski mask, a jacket, and a long pea coat. At aproximately 12:35 p.m., the assailant appeared inside the victim's cellar with a hunting knife in his hand. He grabbed her by the hair, cut her finger with the knife, put a bag over her head and pulled her upstairs, where he handcuffed her hands, wrapped her head in duct tape, and sexually assaulted her for approximately one and one-half hours. During the assault, he also urinated on the victim's chest twice. The assailant spoke only twice. In response to the victim's plea that he not kill her because she was the mother of two children, he responded in a low voice, "I know." Just before he left the crime scene, the assailant also stated, "Give me fifteen minutes" in a similar low voice. At approximately 2 p.m. on the date of the assault, the victim's neighbor was operating a remote control car in the street in front of the victim's home. A vehicle that the neighbor recognized as belonging to the victim sped past. The neighbor recognized the driver as the defendant, Bruce C. Zoilo. The neighbor also observed that the defendant was adjusting a woolen cap on his head as he drove by. The neighbor then saw the victim standing in her driveway, wearing only a small jacket or vest. Her head was wrapped in duct tape that covered her eyes, and she was bleeding. The neighbor led the victim into his house and called paramedics, who had difficulty removing the tape from the victim's head, even with the use of trauma scissors. The victim had been married to the defendant for eight years at the time of the assault. The couple had separated because of the defendant's drug use. According to the defendant's friend, Paul Norris, the defendant, prior to the assault, had expressed a desire to take revenge on his wife for initiating the separation. The defendant asked Norris to participate in sexually assaulting the victim, but Norris refused. Shortly after the assault, the defendant arrived at the victim's home and stated that he was concerned that his wife had been raped. While the police were gathering evidence in the victim's home, the defendant requested several times that he be allowed to clean the house before the police entered it. The police uncovered a towel stained with semen, from which the prosecution was able to gather a DNA sample for analysis by Harold Deadman, a forensics expert from the Federal Bureau of Investigation (FBI), who testified at trial. I The defendant's first claim is that the trial court improperly allowed Deadman to testify as an expert witness that the chance that the DNA sample came from someone other than the defendant was "so small that . it would not be worth considering." The defendant asserts that this testimony is an opinion on an ultimate issue in the case and, therefore, should not have been admitted. Our standard of review for evidentiary matters allows the trial court great leeway in deciding the admissibility of evidence. " 'The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done.' State v. Boles, 223 Conn. 535, 549, 613 A.2d 770 (1992)." State v. Robinson, 227 Conn. 711, 732, 631 A.2d 288 (1993); State v. Merritt, 36 Conn. App. 76, 82, 647 A.2d 1021, cert. granted, 231 Conn. 926, 648 A.2d 165 (1994). This standard does not vary for the testimony of expert witnesses. "Generally, expert testimony may be admitted if the witness has a special skill or knowledge, beyond the ken of the average juror, that, as properly applied, would be helpful to the determination of an ultimate issue. . . . The exercise of such discretion is not to be disturbed unless it has been abused or the error is clear and involves a misconception of the law." (Citations omitted; internal quotation marks omitted.) State v. Forrest, 216 Conn. 139, 147, 578 A.2d 1066 (1990). We review the defendant's claim in view of this broad standard. The defendant asserts that identity is an essential fact, which the state must prove beyond a reasonable doubt to support a conviction. The determination of identity is solely the province of the jury. The defendant cites no case to support the proposition that an opinion as to evidence linking the defendant to a crime is an opinion on an ultimate issue. Our Supreme Court, in fact, has held that expert opinion testimony linking a defendant to a crime scene is admissible. State v. Hasan, 205 Conn. 485, 534 A.2d 877 (1987) (opinion that footprints belonged to defendant's shoes properly admitted); State v. Ortiz, 198 Conn. 220, 502 A.2d 400 (1985) (opinion that bite marks belonged to defendant properly admitted). Deadman's opinion as to the identity of the sperm donor similarly linked the defendant to the crime scene in this case. We are unpersuaded by the defendant's argument that the trial court improperly allowed the expert witness to give an opinion on an ultimate issue by permitting testimony that the defendant was the likely source of the semen sample. Our Supreme Court has held that expert testimony on the ultimate issue of intent is inadmissible. State v. Walton, 227 Conn. 32, 59-60, 630 A.2d 990 (1993); State v. Vilalastra, 207 Conn. 35, 41, 540 A.2d 42 (1988). Nevertheless, " '[ejxperts can . . . sometimes give an opinion on an ultimate issue where the trier, in order to make intelligent findings, needs expert assistance on the precise question on which it must pass.' . . ." (Citations omitted.) State v. Vilalastra, supra, 41, quoting C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 7.17.3, p. 186. The trial court does not overstep its discretionary bounds where the opinion was necessary to aid the jury in understanding the expert witness' testimony. State v. Forrest, supra, 216 Conn. 147; State v. Vilalastra, supra, 42. Deadman gave complex testimony concerning DNA and statistical probabilities relating to the science of matching DNA probes. A series of radioactive probes determines the DNA profile of a given sample. The testimony in question was admitted to assist the jury in understanding the testimony of the expert witness concerning his DNA analysis. We conclude that the trial court did not abuse its discretion by allowing the expert to give an opinion as to the identity of the semen sample because his opinion could reasonably have aided the jury in understanding the DNA testimony. II The defendant next asserts that the trial court improperly allowed Deadman to testify to the statistical probability of the DNA match. The thrust of the defendant's argument is that the methods of analysis used by the FBI are not generally accepted by the scientific community and are, therefore, unreliable. The defendant argues that the testimony is inadmissible under the Frye standard for admissibility of scientific evidence. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The defendant urges review of the admissibility of testimony based on the FBI's methods of statistical analysis. Having cited case law from other jurisdictions and scientific articles concerning the reliability of the FBI's methods, the defendant urges us to review the trial court's factual finding that the evidence met the Frye standard. We decline to review factual findings as to whether the DNA testimony satisfied the Frye standard for admissibility of scientific evidence. Although we will review a trial court's ruling as to whether a Frye finding must be made, we will not conduct an appellate level review of the facts relating to a Frye finding. State v. Merritt, supra, 36 Conn. App. 91. " Tt is not the function of this court to find facts. State v. Reagan, 209 Conn. 1, 8, 546 A.2d 839 (1980).' State v. Rios, 30 Conn. App. 712, 716, 622 A.2d 618 (1993)." State v. Shanks, 34 Conn. App. 103, 112-13, 640 A.2d 155, cert. denied, 229 Conn. 921, 642 A.2d 1216 (1994). Likewise, we are not required to review a claim that was improperly preserved at trial. "The court on appeal shall not be bound to consider a claim unless it was distinctly raised at the trial . . . ." Practice Book § 4185. We, therefore, examine the record to discern whether the issue in question was raised at trial. The defendant failed to preserve objections made to the testimony concerning statistical probabilities. Although the state made an offer of proof in response to the defendant's objection to the procedure's reliability, during this offer of proof, the defendant's counsel withdrew his objection to Deadman's testimony as to his statistical analysis. "We will not review on appeal rulings that the defendant requested or accepted at trial. State v. Rutan, 194 Conn. 438, 446, 479 A.2d 1209 (1984)." State v. Murdick, 23 Conn. App. 692, 699, 583 A.2d 1318, cert. denied, 217 Conn. 809, 585 A.2d 1233 (1991). We conclude that because the defendant withdrew his objections to the statistical probability testimony, he did not preserve the claim sufficiently. See id. Nevertheless, the defendant urges review of the admissibility of the statistical analysis evidence under the plain error rule. Practice Book § 4185. The defendant argues that the issue of acceptance of DNA statisti cal probability testimony is so important to the development of the law in this state that it would be a miscarriage of justice not to decide the issue. We will reverse a trial court's rulings on the basis of plain error only in the most limited circumstances. State v. Jackson, 34 Conn. App. 599, 608, 642 A.2d 738, cert. granted, 231 Conn. 917, 648 A.2d 165 (1994). "[I]t is . . . well established that plain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. State v. Wright, 207 Conn. 276, 288-89, 542 A.2d 299 (1988); State v. Miller, 202 Conn. 463, 469, 522 A.2d 249 (1987). . . . State v. Boles, 223 Conn. 535, 551, 613 A.2d 770 (1992); State v. Sawyer, 32 Conn. App. 854, 856-57, 632 A.2d 372, cert. denied, 228 Conn. 911, 635 A.2d 1230 (1993)." (Internal quotation marks omitted.) State v. Jackson, supra, 608. The trial court's ruling that Deadman's testimony as to statistical probabilities was admissible does not merit plain error review. After hearing the expert testimony concerning the methods used by the FBI, the trial court made a Frye finding as to the acceptance of the DNA testimony within the scientific community and admitted the testimony. The state, moreover, presented additional evidence to support the inference that the defendant was the assailant in this case, such as testimony concerning the defendant's behavior on the day of the attack and Norris' testimony about the defendant's proposal that they assault the victim. Under the circumstances, we cannot say that the admission of Deadman's testimony as to statistical probabilities involves plain error. III The defendant next asserts that the trial court should not have permitted Deadman to testify as to the statistical significance of the nonmatching band generated by one of the four probes. The expert testified that the analysis of the third DNA probe was inconclusive and could not be used to match the DNA sample to the defendant. The expert then testified as to his analysis of the DNA sample despite his statement that the third probe was inconclusive. The defendant claims that this testimony potentially was confusing to the jury because the expert's testimony was internally inconsistent. The defendant did not properly preserve any objection to Deadman's testimony relating to the third probe of the DNA analysis. The defendant's counsel did not object to the testimony as it was presented at trial. In fact, as the state offered slides and transparencies relating to testimony concerning the third probe, the defendant's counsel specifically stated, both during the offer of proof and in the presence of the jury, that he had no objection to the admission of these items. "Practice Book § 4185 requires that appealable claims of error be distinctly raised at trial. See also Practice Book § 288; State v. Weidenhof, 205 Conn. 262, 273, 533 A.2d 545 (1987)." State v. Forrest, supra, 216 Conn. 146. We, therefore, decline to review the claim raised by the defendant. The defendant, relying on his argument presented for the second issue, again urges plain error review of the admission of Deadman's testimony as to the non-matching third probe. The defendant cites no case that supports the proposition that the uncontested admission of confusing testimony is plain error. We therefore conclude that this argument does not raise an error so obvious that its rejection will destroy confidence in the judiciary. IV The defendant next raises several issues concerning the trial court's instructions to the jury. None of these claims was properly preserved at trial. The defendant urges review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). Under Golding, "a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." Id., 239-40. "The first two conditions are determinations of whether a defendant's claim will be reviewed, and the third condition involves a review of the claim itself." State v. Crosby, 34 Conn. App. 261, 264, 641 A.2d 406, cert. denied, 230 Conn. 903, 644 A.2d 916 (1994). Furthermore, "[t]he appellate tribunal is free . . . to respond to the defendant's claim by focusing on whichever condition is most relevant in the particular circumstances." State v. Golding, supra, 213 Conn. 240. We conclude that the record is sufficient to review the defendant's claims; thus, we will examine the claims under the remaining prongs of the Golding test. A The defendant argues that the trial court charged the jury to make a conclusive presumption and directed a verdict of guilty, thus committing error under Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2540, 61 L. Ed. 2d 39 (1979). The defendant's claim is that the trial court's instruction relating to the element of consent in the kidnapping charge relieved the state of its burden to prove the element beyond a reasonable doubt. The defendant focuses on the following language in the trial court's instruction: "If the acts complained of were accomplished by the use of force or violence no further proof is required to establish lack of consent upon the victim's part." In examining a challenge to a trial court's instructions to a jury, we will look at the charge as a whole rather than consider particular language in isolation. State v. Palmer, 206 Conn. 40, 46, 536 A.2d 936 (1988). "It is well established that individual jury instructions are not to be judged in artificial isolation, but must be viewed in the context of the overall charge. Cupp v. Naughten, 441 U.S. 141, 146-47, 94 S. Ct. 396, 38 L. Ed. 2d 368 (1973); State v. Silano, 204 Conn. 769, 773, 529 A.2d 1283 (1987); State v. Dolphin, 195 Conn. 444, 451, 488 A.2d 812, cert. denied, 474 U.S. 833, 106 S. Ct. 103, 88 L. Ed. 2d 84 (1985)." State v. Palmer, supra, 46. Thus, we consider the defendant's assertions that the trial court's instructions were improper in light of the entire charge. Although the defendant asserts that this claim is of constitutional magnitude, we conclude that the instruction in question does not rise to the level of a constitutional violation sufficient to pass the second prong of Golding. "Patently nonconstitutional claims that are unpreserved at trial do not warrant special consideration simply because they bear a constitutional label." State v. Golding, supra, 213 Conn. 240; see also State v. Walton, supra, 227 Conn. 64. Our Supreme Court has upheld an instruction that includes a nonmandatory presumption. State v. Palmer, supra, 206 Conn. 40. Although "[i]n Sandstrom v. Montana, supra, [442 U.S.] 517-24, the United States Supreme Court held that a jury instruction that 'the law presumes that a person intends the ordinary consequences of his voluntary acts' violated the defendant's due process rights because a reasonable jury could have interpreted the instruction as a conclusive or burden-shifting presumption and thus relieved the state of its burden of proving every element of the crime. . . . Sandstrom does not invalidate, for example, the use of an 'entirely permissive inference or presumption, which allows — but does not require — the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and that places no burden of any kind on the defendant.' Ulster County Court v. Allen, 442 U.S. 140, 157, 99 S. Ct. 2213, 60 L. Ed. 2d 777 (1979) . . . ." (Citations omitted.) State v. Amarillo, 198 Conn. 285, 300-302, 503 A.2d 457 (1980); State v. Palmer, supra, 47. The instruction in question did not require the jury to make a conclusive presumption as to the element of consent. The language to which the defendant points is offset by the preceding sentence of the charge, which states: "The essential nature of kidnapping requires that before you can convict you must find that the restraint and abduction were effected against the victim's will or at least without the victim's consent." The trial judge then gave the instruction with which the defendant takes issue, but only after giving the qualifying instruction, which removed the charge from the realm of Sandstrom error. Because there is no Sandstrom violation, the claim fails to satisfy the second prong of the Golding test. B The defendant next asserts that the trial court should not have instructed the jury on the threat of the use of force in relation to the charge of sexual assault in a spousal relationship. The defendant argues that the statutory alternative was not supported by the evidence, and, alternatively, that the charge sanctioned a nonunanimous verdict. The defendant's claim fails to satisfy the second prong of the Golding analysis because the instruction in question does not rise to the level of a constitutional violation. "[T]he United State Supreme Court has held that a factual insufficiency regarding one statutory basis, which is accompanied by a general verdict of guilty that also covers another, factually supported basis, is not a federal due process violation. Griffin v. United States, 502 U.S. 46, 112 S. Ct. 466, 116 L. Ed. 2d 371 (1991)." State v. Chapman, 229 Conn. 529, 539, 643 A.2d 1213 (1994). Thus, the defendant's claim that his federal constitutional rights were violated by the instruction at issue is not entitled to Golding review. The defendant's claim that the same instruction violated his state constitutional right to a fair trial fails to satisfy the third prong of Golding because the defendant's constitutional right was not clearly violated. Our Supreme Court in State v. Chapman, supra, 229 Conn. 529, did not decide the issue of whether an instruction as to a statutory alternative unsupported by the evidence violates a state constitutional right. Even if we assume, arguendo, that this claim involves a state constitutional right, an examination of the record compels us to conclude that, in fact, the instruction in question is supported by the evidence. The defendant argues that the state presented no evidence that the victim faced a threat of the use of force. The defendant points out that on the two occasions when the assailant spoke, his words were not threatening. Even conceding this point, the jury reasonably could have found that the knife in the assailant's hand was a sufficient threat to support the statutory alternative concerning which the court instructed. The defendant's assertion that the charge in question sanctioned a nonunanimous verdict is not a constitutional issue sufficient to pass the second prong of Golding. A similar claim has been rejected by our Supreme Court, even in the instance where a trial judge expressly sanctioned a nonunanimous verdict. State v. Tucker, 226 Conn. 618, 629 A.2d 1067 (1993). "The use of force and the threat of the use of force are quite simply two alternative methods of compulsion used by an actor to commit the one crime of sexual assault in the first degree. . . . To invalidate a jury instruction that mirrors the disjunctive language of the statute defies both logic and experience. . . . '[Sjpecific unanimity instructions are not required if the alternative bases of liability are not "conceptually distinct." . . .' State v. Bailey, 209 Conn. 322, 334-35, 551 A.2d 1206 (1988)." (Citations omitted.) State v. Tucker, supra, 646-47. We conclude that the trial court's instruction on the threat of the use of force as a statutory alternative did not implicate the defendant's right to a fair trial. C The defendant next asserts that the trial court's instruction on attempt violated the defendant's right not to be convicted except upon proof beyond a reasonable doubt. The defendant claims that the trial court incorrectly charged the jury on the state of mind necessary to support a conviction of attempted sexual assault in a spousal relationship. The defendant argues that the court improperly instructed the jury that "[a] person is guilty of attempt to commit a crime if acting with the kind of mental state required for the commission of the crime he 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 . He must have acted with the same state of mind required for sexual assault in a spousal relationship." The defendant's claim appears to be that this instruction is improper because the trial court failed to use the phrase "specific intent" to describe the requisite intent for the attempted crime. Although the defendant's claim is sufficiently constitutional in nature to satisfy Golding's second prong; see State v. Zaporta, 36 Conn. App. 250, 264, 650 A.2d 582 (1994); State v. Graham, 33 Conn. App. 432, 442, 636 A.2d 852, cert. denied, 229 Conn. 906, 640 A.2d 117 (1994); the instruction fails to satisfy the third prong of Golding because the instruction did not clearly violate the defendant's right to a fair trial. The instruction in question complied with the statutory definition of the requisite intent and with the case law on the issue. General Statutes § 53a-49 (a) provides that "[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: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (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." "It is plain from a reading of General Statutes § 53a-49 (a) that the intent required for attempt liability is the intent required for the commission of the substantive crime." State v. Almeda, 189 Conn. 303, 307, 455 A.2d 1313 (1983). The trial court's instruction on the requisite intent for the substantive crime is not challenged on appeal and adequately informed the jury of the state of mind necessary to find the defendant guilty of the substantive offense; likewise, the instruction concerning the intent required for the attempt charge is adequate. We conclude that the trial court's instruction on attempt did not clearly violate the defendant's constitutional right to be found guilty only upon proof beyond a reasonable doubt. D Finally, the defendant argues that the trial court improperly instructed the jury on the presumption of innocence and reasonable doubt in violation of the defendant's due process right to a fair trial. The defendant specifically takes issue with the following parts of the trial court's instructions: (1) the "rules of law . . . are made to protect the innocent and not the guilty," (2) "a reasonable doubt . . . is a doubt held by a reasonable person," and (3) "if . . . the evidence . . . produces in your mind a settled and abiding belief that you would be willing to act upon in matters of the highest importance relating to your own affairs, then in that event you would be free from a reasonable doubt." We review these instructions seriatim. The first instruction fails to satisfy the second prong of Golding. Language similar to that used here has been upheld by our Supreme Court. State v. Francis, 228 Conn. 118, 635 A.2d 762 (1993). The phrase "the law is made to protect society and innocent persons, and not to protect guilty ones" gives rise to "no constitutional error in connection with this instruction." Id., 136; see also State v. Walton, supra, 227 Conn. 67; State v. Tucker, supra, 226 Conn. 651-52. We conclude that the instruction in question does not rise to the level of a constitutional violation and, therefore, fails to satisfy Golding's second prong. Likewise, the claim regarding the second instruction does not rise to the level of a constitutional violation. "The challenged instructions are similar or identical to jury instructions that have previously been approved by our Supreme Court. State v. DePastino, 228 Conn. 552, 572, 638 A.2d 578 (1994) ('a doubt for which a valid reason can be assigned'); State v. Gomez, 225 Conn. 347, 353, 622 A.2d 1014 (1993) ('a doubt for which a reasonable man or woman can give a valid reason'); State v. Adams, 225 Conn. 270, 290, 623 A.2d 42 (1993) ('a doubt for which a valid reason can be assigned'); 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) ('one for which you can, in your own mind, conscientiously give a reason'); State v. Johnson, 29 Conn. App. 584, 590, 617 A.2d 174 (1992) ('a doubt for which a valid reason may be assigned'), appeal dismissed, 228 Conn. 59, 634 A.2d 293 (1993) (certification improvidently granted)." State v. Goodman, 35 Conn. App. 438, 441-42, 646 A.2d 849 (1994). The challenged instruction, therefore, does not satisfy the second prong of Golding. Finally, the. third instruction that the defendant asserts is improper is almost identical to language contained in his request to charge and, therefore, is induced error, which we decline to review. State v. Walton, supra, 227 Conn. 67; State v. Hinckley, 198 Conn. 77, 81 n.2, 502 A.2d 388 (1985). The "willing to act" language does not appear in the defendant's request to charge but fails to satisfy the second prong of Golding. Although expressing disapproval of this instruction, our Supreme Court has upheld this language because it does not rise to the level of constitutional error. State v. Johnson, 214 Conn. 161, 179, 571 A.2d 79 (1990); State v. Smith, 210 Conn. 132, 150, 554 A.2d 713 (1989). Accordingly, we decline to review this instruction as it does not implicate the defendant's constitutional rights. The judgment is affirmed. In this opinion the other judges concurred. This appeal was taken originally to the Supreme Court. Pursuant to Practice Book § 4028, the Supreme Court transferred the appeal to this court. General Statutes § 53a-92 (a) provides in pertinent part: "A person is guilty of kidnapping in the first degree when he abducts another person and . (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually . . . ." General Statutes § 53a-70b (b) provides: "No spouse or cohabitor shall compel the other spouse or cohabitor to engage in sexual intercourse by the use of force against such other spouse or cohabitor, or by the threat of the use of force against such other spouse or cohabitor which reasonably causes such other spouse or cohabitor to fear physical injury." General Statutes § 53a-49 (a) provides: "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: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (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." "In Frye, the court set forth a special rule for the admission of testimony regarding scientific evidence. The court stated that '£j]ust when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.' (Emphasis added.) Frye v. United States, supra, 293 F. 1014." State v. Merritt, supra, 36 Conn. App. 82. "While our Supreme Court has never explicitly adopted a statement of Frye that includes reference to the reliability of the scientific test or procedure, it has, in essence, affirmed that relationship." Id., 82 n.3; see also State v. Hasan, supra, 205 Conn. 490. In State v. Sivri, 231 Conn. 115, 154 n.31, 646 A.2d 169 (1994), a case challenging the admissibility of population frequency statistics to determine the significance of a DNA match, our Supreme Court noted that the United States Supreme Court has abandoned the Frye test. To date, our court has not followed suit. The trial court here applied the Frye test and, under the current state of the law in Connecticut, it was not plain error for it to do so. Because we hold that review of this unpreserved claim is not warranted, we express no opinion as to the continued viability of the Frye test in Connecticut. The defendant requested the following instruction: "Proof beyond a reasonable doubt must, therefore, be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it in the most important of his own affairs." The defendant's brief does not clearly state how this language differs from the trial court's instruction in such a way as to violate a constitutional right of the defendant.

Spear, J. The sole issue on the appeal by the named plaintiff is whether a clause that required the defendant owners to pay the plaintiff broker $50,000 to terminate a brokerage contract was an unenforceable penalty. The issue on the defendants' cross appeal is whether a brokerage contract made "as of" July 1, 1988, satisfies the date requirement of General Statutes § 20-325a (b) (3) where the plaintiff broker was not incorporated until August 15,1988, and did not sign the contract until October, 1988. We affirm the judgment of the trial court. The plaintiff sought money damages from the defendants for breach of a contract that gave the plaintiff the exclusive right to market and sell units in a 178 unit condominium development that the defendants were constructing in Greenwich. The contract provided that the plaintiff would receive a draw of $12,000 a month against a 1 percent commission for each unit sold. The defendants were also responsible for certain of the plaintiffs employee costs and miscellaneous expenses. The defendants counterclaimed in two counts alleging (1) that the plaintiff had breached the contract and (2) that the defendants were entitled to a refund of the plaintiffs draw that exceeded earned commissions. The case was tried to an attorney trial referee who recommended judgment for the plaintiff as against Colonnade One in the amount of $63,250. The referee also recommended that the plaintiff be awarded attorney's fees incurred to recover the $50,000 termination fee that was included in the recommended judgment. The referee further recommended that judgment be rendered in favor of the plaintiff on both counts of the defendants' counterclaim. After a hearing on the objections and exceptions to the referee's report, the trial court found that the $50,000 fee was in fact a penalty, which could not be recovered. The court rendered judgment for the plaintiff against all of the defendants in the amount of $13,250 plus interest from April 2, 1990, for money "wrongfully detained." The court denied the plaintiff's claim for attorney's fees and rendered judgment in favor of the plaintiff on the defendants' counterclaim. The plaintiff claims in its appeal that it was entitled to the $50,000 termination fee and attorney's fees. The defendants claim in their cross appeal that the contract was unenforceable because it did not satisfy the date requirement of § 20-325a (b) (3). I We first address the issue raised in the defendants' cross appeal as to the enforceability of the contract. There is no dispute that the subject contract was a real estate brokerage agreement that must comply with all of the provisions of § 20-325a (b) to be enforceable. It is also undisputed that the plaintiff was incorporated on August 15, 1988, that the contract was signed by all of the parties in October, 1988, that the plaintiff was licensed at the time that this action was brought and that the plaintiff was licensed at the time that the services were rendered. The statutory scheme of § 20-325a requires that a party who sues for a real estate commission must first show that the written contract or authorization under which the claim is made satisfies the facial requirements of the statute as to names, addresses, date, conditions and signatures. Additionally, the party must also show licensing at the two critical times: (1) at the time the action is brought; and (2) at the time the services are rendered. Section 20-325a (b) (3) of the statute can be satisfied either by a written contract that states the date on which it was entered into by the parties or a written authorization that shows the date on which the services of the broker were authorized by the owner. The defendants claim that neither date requirement of General Statutes § 20-325a (b) (3) was met. We disagree. A The trial court found that the broker's services were "authorized" as of July 1,1988, and, therefore, the contract satisfied the statute. The defendants assert that the plaintiff could not possibly have received authorization from the defendants as of July 1,1988, because the plaintiff did not come into existence until August 15, 1988. We agree. The trial court relied on Arruda Realty, Inc. v. Doyon, 35 Conn. Sup. 617, 401 A.2d 625, cert. denied, 176 Conn. 763, 394 A.2d 201 (1978). In ruling on an appeal from a summary judgment, that court held that a listing agreement that stated, " '[tjhis agreement will be effective commencing Sept. 17,1976' "; id., 619; complied with the date requirement of § 20-325a (b) because "authorization could be found to have been given on September 17, 1976." (Emphasis added.) Id., 620. Authorization is official approval or permission. See Webster's Third New International Dictionary. By signing the contract, the defendant owners authorized the plaintiff broker's services from that date forward. Retroactive authorization of those services that were rendered prior to the contract's signing date could have been accomplished only by the defendants' ratification of those acts that constituted the services. "Ratification is defined as the affirmance by a person of a prior act which did not bind him but which was done or professedly done on his account. . . . Ratification requires acceptance of the results of the act with an intent to ratify, and with full knowledge of all the material circumstances." (Citation omitted; emphasis added; internal quotation marks omitted.) Russell v. Dean Witter Reynolds, Inc., 200 Conn. 172, 185, 510 A.2d 972 (1986). Authorization by ratification could be found for actions that occurred from the date that the contract was signed retroactive to August 15, 1988, when the plaintiff corporation came into existence. The plaintiff did not exist, however, during the period from July 1, 1988, to the time of its incorporation on August 15, 1988. It could not have performed any acts during that period that were capable of ratification by the defendant. Retroactive authorization as of July 1,1988, was not possible, and, therefore, the trial court's legal conclusion that there was such authorization cannot stand. B The defendants also assert that the July 1,1988 date did not comply with the alternative statutory requirement that a brokerage contract show the date on which it was entered into by the parties because the contract was actually signed on October 15,1988. The trial court did not rule on this claim because it found authoriza tion for the broker's services as of July 1, 1988. We conclude that the contract date requirement of the statute, rather than the authorization date, was satisfied here. The parties briefed and argued both date alternatives and "[t]his court is authorized to rely upon alternative grounds supported by the record to sustain a judgment." (Internal quotation marks omitted.) Kelley v. Bonney, 221 Conn. 549, 592, 606 A.2d 693 (1992); Latimer v. Administrator, 216 Conn. 237, 252, 579 A.2d 497 (1990); In re Jennifer G., 29 Conn. App. 689, 692, 617 A.2d 921 (1992). We first note that the cases cited by the defendants in support of their claim that the July 1 date does not comply with the contract date provision of the statute furnish little guidance as they all involved omissions that were apparent on the face of each document. New England Land Co. v. DeMarkey, 213 Conn. 612, 569 A.2d 1098 (1990) (failure to identify particular sales price); Hossan v. Hudiakojf, 178 Conn. 381, 423 A.2d 108 (1979) (failure to include broker's address); Boline v. Albert, 23 Conn. App. 688, 583 A.2d 945 (1991) (failure to include special conditions of agreement); Rostenberg-Doern Co. v. Weiner, 17 Conn. App. 294, 552 A.2d 827 (1989) (failure to include rate of broker's commission). These cases shed no light on the issue of whether an execution date that is different from the date on the face of the contract renders the date on the contract invalid pursuant to § 20-325a (b) (3). We conclude that the July 1,1988 date satisfies the statute because it is the date on which the parties chose to become contractually bound. This "as of" date is the effective date of the contract for two reasons. First, the parties are free to contract as they wish and, second, a corporation may adopt rights and obligations that predate its existence. Parties are always free to contract as they see fit as long as the contract does not violate any law or public policy. "It is established well beyond the need for citation that parties are free to contract for whatever terms on which they may agree." Holly Hill Holdings v. Low-man, 226 Conn. 748, 755, 628 A.2d 1298 (1993); see also Collins v. Sears, Roebuck & Co., 164 Conn. 369, 377, 321 A.2d 444 (1973); 17A Am. Jur. 2d, Contracts § 174 (1991). We discern no reason here why the parties could not agree on the date when they would become contractually bound, whether that date was before (or after) the date on which they actually signed the contract. A corporation can acquire rights and subject itself to duties with respect to preincorporation matters. A contract made in the name of an inchoate corporation can be enforced after the corporation is organized on the principle of ratification. Cramer v. Burnham, 107 Conn. 216, 219, 140 A. 477 (1928). We note that such ratification here would not be subject to the infirmity discussed above where we concluded that the doctrine of ratification could not be used to show that the defendants authorized the plaintiff's services as of July 1, 1988. By signing the contract, the plaintiff did not receive authorization as of July 1,1988, but rather gave its authorization to others for acts performed between July 1,1988, and the date of the contract. Such authorization would be by way of ratification of those acts, including any acts that were performed prior to the plaintiff's incorporation. There is no claim that any acts subject to such ratification by the plaintiff were performed by a person or entity that was not in existence on July 1,1988. The attorney trial referee specifically found that Constance Greene, the plaintiff's president, and Colonnade One, the other party to the contract, were in existence on July 1, 1988. A corporation can also be liable for the value of goods sold to its incorporators prior to incorporation where the articles were for the corporation's use and benefit; Langendorfer v. Morse Oil Co., 115 Conn. 706, 161 A. 193 (1932); and we have held that a corporation has the right to sue on a preincorporation debt owed to its predecessor. Canton Motorcar Works, Inc. v. DiMartino, 6 Conn. App. 447, 452-53, 505 A.2d 1255, cert. denied, 200 Conn. 802, 509 A.2d 516 (1986). Under the circumstances here, we see no reason why the plaintiff could not bind itself to a contract dated earlier than its date of incorporation. We conclude that § 20-325a (b) (3) is satisfied because July 1,1988, is the effective date that the parties agreed to be bound by the contract. C The defendants' last claim with respect to the date is that because the plaintiff did not exist on July 1,1988, it could not have been licensed on that date, and that § 20-325a thus prohibits this action. We disagree. Section 20-325a (a) requires that, in order to bring an action for a broker's commission, the plaintiff must (1) be licensed and (2) have been licensed at the time that services were rendered. There is no claim that the plaintiff was not licensed when it brought this action. Although there are penalties for engaging in the real estate brokerage business without a license, § 20-325a does not require that the party who brings an action for a real estate commission be licensed at the time the contract is made or authorized. The defendants do not assert that the plaintiff performed any of the services for which compensation was claimed prior to its being licensed. Lastly, there is no claim that the trial court awarded the plaintiff any commissions for unlicensed services. On the contrary, the evidence clearly shows that the plaintiff was properly licensed at the time that the action was brought and during the times that the services were rendered. Under these circumstances, § 20-325a presents no bar to the plaintiffs action and subsequent recovery. II On its appeal, the plaintiff claims that it is entitled to a $50,000 fee pursuant to § 12B (iii) (a) of the contract because the defendants terminated the contract without cause. The plaintiff first asserts that the trial court improperly substituted its own factual finding of a penalty for that of the attorney trial referee who found an enforceable termination fee. The plaintiff also asserts that the $50,000 fee could not be a penalty because it was an alternative performance that was bargained for by the parties. We disagree with both of the plaintiffs contentions. A The plaintiffs claim that the trial court substituted its factual findings for those of the attorney trial referee is without merit. The trial court rejected the referee's legal conclusion that the $50,000 fee provided for in § 12B (iii) (a) was properly payable as a termination fee. On the same facts as found by the referee, the trial court came to a different legal conclusion, i.e., that the subject clause was a penalty and not a termination clause. The attorney trial referee made no specific findings in his report as to the intent of the parties regarding the $50,000 fee. He found that the plaintiff was terminated without cause and, therefore, was legally entitled to the specified termination fee. He reasoned that as the contract was plain and unambiguous, it "must be followed in accordance with its terms." It is clear that the attorney trial referee dealt with this provision as a matter of law that could be resolved by analyzing the plain language of the contract. This approach was proper because "[w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law." (Internal quotation marks omitted.) Bank of Boston Connecticut v. Schlesinger, 220 Conn. 152, 158, 595 A.2d 872 (1991). The trial court, however, is not bound by the legal conclusions of an attorney trial referee. Practice Book § 443 provides in relevant part that "[t]he court shall render such judgment as the law requires upon the facts in the report as it may be corrected." "The views of [an attorney trial referee] upon the law carry no more force than those of the parties in their arguments at the hearing before the court that is to enter judgment." Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 510, 508 A.2d 415 (1986). "The reviewing court is the effective arbiter of the law and the legal opinions of [an attorney trial referee], like those of the parties, though they may be helpful, carry no weight not justified by their soundness as viewed by the court that renders judgment." Id. The trial court properly concluded that the termination fee was a penalty as it was not related to any damages that the plaintiff would suffer in the event of a breach by the defendants. "If the provision was inserted for the purpose of deterring the defendant from breaching his contract and of penalizing him for doing so, instead of specifying a sum which the parties in good faith agreed upon as representing the damages which would ensue from a breach, it is to be regarded as imposing a penalty." May v. Young, 125 Conn. 1, 9, 2 A.2d 385 (1938); Hanson Development Co. v. East Great Plains Shopping Center, Inc., 195 Conn. 60, 65, 485 A.2d 1296 (1985). The penal nature of the clause is reinforced by § 12B (iii) (b) of the contract that provides for a $100,000 fee if termination occurs subsequent to the sale of eighty-four units. This doubling of the fee after the project achieved a certain level of success could only serve as a deterrent to the defendants' terminating the plaintiff's services without cause. We are unpersuaded by the plaintiff's claim that termination of the contract was a right that the defendants bargained for in exchange for the payment of $50,000. The "right" to terminate under the circumstances here is legally indistinguishable from the power to breach a contract possessed by any party whose contractual duties are executory. The contract language itself mandates this conclusion. Section 12B (ii) provides in pertinent part: "Termination by Cause: This Agreement may be terminated by either affected party for cause, which shall be defined as a material breach by either party of its obligation set forth in this Agreement. . . . If the Agreement is terminated by Broker [for cause], it shall be treated as a termination without cause by Owner as described in subparagraph 12B (iii) of this section below, and Broker shall be entitled to receive compensation in accordance with the provisions of subparagraph 12B (iii)." Pursuant to this clause, a termination by the defendant without cause is treated the same way as if the defendant had breached the agreement. Furthermore, termination without cause by the defendants would not extinguish their obligations under the contract. The duty to pay certain commissions after termination and to indemnify the plaintiff could not be discharged by payment of the $50,000. This is precisely the situation that obtains upon a breach; the breaching party is not discharged from contractual responsibilities. Batter Building Materials Co. v. Kirschner, 142 Conn. 1, 10, 110 A.2d 464 (1954); Rokalor, Inc. v. Connecticut Eating Enterprises, Inc., 18 Conn. App. 384, 392, 558 A.2d 265 (1989). The trial court correctly concluded that the termination fee clause calls for the payment of a penalty for breach of the contract. B The plaintiff further asserts that the trial court found that § 12B (in) was a liquidated damage clause and that such finding was contrary to the findings of the attorney trial referee. The trial court did not find that the termination fee provision was a liquidated damage clause and alluded to liquidated damages only by way of observing that: "The report of the attorney trial referee does not contain findings sufficient to satisfy the conditions for an enforceable liquidated damages provision and therefore, the court concludes that the payment of the termination fee constitutes an unenforceable penalty provision." The conditions that the court mentioned are well known. "It is well settled that a seller may not retain a stipulated sum as liquidated damages and also recover actual damages. . It is equally well settled that a contract provision which imposes a penalty for breach of contract is invalid, but a provision which allows liquidated damages for breach of contract is enforceable if certain conditions are satisfied. . . . The requisite three conditions are that: (1) the damage which was to be expected as a result of a breach of contract was uncertain in amount or difficult to prove; (2) there was an intent on the part of the parties to liquidate damages in advance; and (3) the amount stipulated was reasonable." (Citation omitted.) Hanson Development Co. v. East Great Plains Shopping Center, Inc., supra, 195 Conn. 64-65; see also Norwalk Door Closer Co. v. Eagle Lock & Screw Co., 153 Conn. 681, 686, 220 A.2d 263 (1966). The plaintiff's assertion that the trial court found a liquidated damage clause rests on its claim that the trial court's finding of a penalty was an implicit finding that the parties intended to liquidate damages. As no such intent was found by the attorney trial referee, the plaintiff claims that such a finding by the trial court was improper. The flaw in this reasoning is apparent. It was because the attorney trial referee made no finding of an intent to liquidate damages and made no other liquidated damage findings that the trial court refused to find a liquidated damage clause. C "The party seeking to repudiate a clause that fixes a sum as damages has the burden of showing that the agreed sum is so exorbitant as to be in the nature of a penalty." St. Margaret's-McTernan School, Inc. v. Thompson, 31 Conn. App. 594, 598, 627 A.2d 449 (1993). The plaintiff was allowed a draw against unearned commissions. It actually received the sum of $228,000 although the trial referee found that only $124,120 had been in fact earned. The trial court, while adopting that finding, rejected the attorney trial referee's recommendation that the defendants be reimbursed for the excess draw over commissions earned. That rejection was not made a ground of the defendants' cross appeal. In Syncsort, Inc. v. Indata Services, 14 Conn. App. 481, 486, 541 A.2d 543, cert. denied, 209 Conn. 804, 548 A.2d 443 (1988), this court stated that "the plaintiff is not seeking recovery for the use of its product but is seeking to impose an unconscionable penalty upon the defendant for its election not to proceed with the contract." A penalty for not proceeding with the contract is precisely what the plaintiff seeks here. The plaintiff's retention of the excess draw over commissions earned plus the award of $13,250 plus interest in the judgment here has fully compensated the plaintiff under the contract. The defendants have carried their burden of showing that the payment of an additional $50,000 as a termination fee would be nothing more than a penalty. D The plaintiffs final effort to prevail on the termination fee issue is its claim that the clause is actually one for an alternative performance. The plaintiff relies solely on a treatise by Professor Corbin who describes the doctrine as follows: "In an alternative contract the performance of either alternative completely discharges the promisor's duty and entitles him to the performance that was promised in exchange. The payment of damages for breach of a promise never entitles the wrongdoer to the performance promised him in exchange . . . . Where the parties intend the payment to be the agreed price of the privilege of not performing the promise, the language that they employ is very different. . In the case of a true alternative contract, the performance of either alternative operates as a complete discharge of the promisor's duty and prevents any further remedy against him, direct or indirect. . . . The payment of damages, whether liquidated or unliquidated, never does this." (Emphasis added.) 5 A. Corbin, Contracts (1964) § 1070, pp. 393-97. The contract provisions that provide for damages in addition to the termination fee vitiate this claim. Payment of the $50,000 fee would not completely discharge the defendants' contractual duties; therefore, the doctrine of alternative performance could not apply here. The judgment is affirmed. In this opinion the other judges concurred. The trial court rendered judgment on the complaint in favor of the named plaintiff, CMG Realty of Connecticut, Inc. (CMG Realty). The plaintiff Constance Greene, a licensed real estate broker and president of CMG Realty, withdrew her complaint prior to trial. As used in this opinion, the plaintiff refers to CMG Realty. The defendants are Colonnade One at Old Greenwich Limited Partnership (Colonnade One), Old Colonnade Limited Partnership, Collins Colonnade Limited Partnership, Arthur Collins and YTB (Leasing) America, Inc. The trial court rendered judgment against all of the defendants as partners even though only Colonnade One was a party to the contract at issue. We will not review the defendants' claims that exhibit D, which is the basis for $12,000 of the judgment, did not meet the requirements of General Statutes § 20-325a. See footnote 7. That claim was not raised in the trial court and we decline review pursuant to Practice Book § 4185, which provides in pertinent part: "The court on appeal shall not be bound to consider a claim unless it was distinctly raised at the trial . . . ." General Statutes § 20-325a provides in pertinent part: "actions to RECOVER COMMISSIONS ARISING OUT OF REAL ESTATE TRANSACTIONS, (a) No person who is not licensed under the provisions of this chapter, and who was not so licensed at the time he performed the acts or rendered the services for which recovery is sought, shall commence or bring any action in any court of this state, after October 1,1971, to recover any commission, compensation or other payment in respect of any act done or service rendered by him, the doing or rendering of which is prohibited under the provisions of this chapter except by persons duly licensed under this chapter. "(b) No person, licensed under the provisions of this chapter, shall commence or bring any action in respect of any acts done or services rendered after October 1,1971, as set forth in subsection (a), unless such acts or services were rendered pursuant to a contract or authorization from the person for whom such acts were done or services rendered. To satisfy the requirements of this subsection any such contract or authorization shall (1) be in writing, (2) contain the names and addresses of all the parties thereto, (3) show the date on which such contract was entered into or such authorization given, (4) contain the conditions of such contract or authorization and (5) be signed by the owner or an agent authorized to act on behalf of the owner only by a written document executed in the manner provided for conveyances in section 47-5, and by the real estate broker or his authorized agent." (Emphasis added.) The complaint alleges, inter alia, that the defendant Colonnade One terminated the agreement for no cause and as a result obligated itself to pay the plaintiff $50,000 as a termination fee. There is no express allegation that Colonnade One breached the contract by failing to pay the termination fee. That was the issue, however, that was tried. We will treat the case as the parties treated and presented it at trial. See Lambrakos v. Carson, 174 Conn. 482, 485, 391 A.2d 142 (1978); State v. Beauton, 170 Conn. 234, 237, 365 A.2d 1105 (1976); Ives v. Burgess, 155 Conn. 698, 699, 231 A.2d 276 (1967). The attorney trial referee also recommended an offer of judgment interest award based on General Statutes § 52-192a because his recommended judgment exceeded the $49,000 offer of judgment. There is no need to discuss this issue as we affirm a judgment of less than $49,000. This sum represents $12,000 for the monthly draw of March, 1990, and $1250 as salary reimbursement for a public relations employee of the plaintiff. The judgment file states that the defendants' objections to the report "should be denied." The defendants only objection was as to the $50,000 termination fee and the court's memorandum of decision and judgment make it clear that the court actually sustained that objection. The plaintiff asks that we remand the case to the Superior Court for further proceedings on its claim for attorney's fees in the event that we reverse the trial court as to the termination fee. Our affirmance of the trial court's judgment obviates the need for such a remand. See footnote 4. There is no claim that the plaintiff had a "de facto" existence prior to its date of incorporation. See footnote 4. General Statutes § 20-312 prohibits one from acting as a real estate broker without a license. General Statutes § 20-325 (a) provides in pertinent part that "[a]ny person who engages in the business of real estate broker . . . without obtaining a license . . . shall be fined not more than one thousand dollars or imprisoned not more than six months or both Section 12B (iii) of the contract provides in relevant part: "Should Owner decide to terminate the services of Broker without cause, which shall, without limitation, include project delay or hold, Owner shall be liable to pay Broker as follows: (a) If termination occurs prior to the sale of eighty-four (84) Units, the sum of Fifty Thousand ($50,000.00) Dollars . . . ." Section 4A (ii) of the contract provides that the broker shall be paid a commission: "If, within one hundred twenty (120) days after termination of this Agreement, the Listed Property or any Unit thereof is sold, transferred or otherwise conveyed to any person or entity listed on the Registration List referred to hereinafter, or if a Unit is placed under a purchase agreement executed by such purchaser within said one hundred twenty (120) days, and said purchase agreement is subsequently signed by Owner. Within thirty (30) days following the termination of this Agreement, Broker shall supply Owner with a 'Registration List' enumerating the names of all persons or entities with whom or which Broker has entered into negotiations during the term of this Agreement in an effort to effect a sale, but theretofore has not been consummated . . . ." Section 101 of the contract provides: "Owner agrees that if, at any time within one year after any termination of this Agreement, Owner employs directly or indirectly, any person who was a broker, Sales Manager, or sales professional of Broker either as an employee or independent contractor of Broker during the term of this Agreement, then Owner will pay Broker one-half (1/2) of the commissions of any Units in the same manner as though this Agreement had remained in force for said one-year period." Section 8A of the contract provides in pertinent part: "Owner shall indemnify and hold Broker, and Broker's agents, directors, officers, and employees harmless from any claims, lawsuits, or actions, at law or in equity, of any kind or nature whatsoever relating to those claims arising directly or indirectly from Owner's breach of a purchase agreement relating to any Unit, or from any misrepresentation made by Owner and not attributable to Broker, or from any breach by Owner of the terms hereof, or from the violation by Owner of any state or federal laws with respect to prohibition against discrimination, or from the violation by Owner of any legal requirements relating to the sale of Units. Said indemnity shall include reasonable counsel fees and costs of suit. . . . These indemnifications shall survive the termination of this Agreement." We note that the attorney trial referee stated on the record at the conclusion of the evidence: "[The termination fee clause] doesn't necessarily state the claim for liquidated damages but it has the effect of stating a damage amount that in fact has no relevance to any evidence that I've heard."

The defendant's petition for certification for appeal from the Appellate Court, 31 Conn. App. 214 (AC 11225), is granted, limited to the following issue: "May the trial court render a judgment of civil contempt for failure to comply with an order of the court after an appellate court has revised the underlying order?"

Per Curiam. The judgment is affirmed.

The defendant's petition for certification for appeal from the Appellate Court, 31 Conn. App. 621 (AC 11960), is denied.

Freedman, J. This appeal comes to us on a reservation of legal issues pursuant to General Statutes § 52-235 and Practice Book § 4147. The stipulation of the parties presents two questions for the advice of this court: "(a) Is the [Land Disposition Agreement] for the conveyance of parcel #18 owned by the Town of East Haven within the East Haven Industrial Park a public works contract as defined in General Statutes § 49-41? [and] (b) When the private party to a General Statutes § 49-41 public works contract has not provided a labor and material payment bond in the amount of the contract, is the act of forebearing from entering into the contract a ministerial act of the public official with respect to a materialman supplying the contract?" Because the involvement of the town of East Haven in the construction contemplated on parcel eighteen was minimal, we conclude that the contract conveying the land in question to a private entity for development is not a public works contract within General Statutes (Rev. to 1987) § 49-41. We therefore answer the first question in the negative and need not answer the second question. For purposes of this reservation, the parties stipulated to the following facts. The town of East Haven is a Connecticut municipality, and a subdivision of the state of Connecticut. The town of East Haven, by virtue of General Statutes § 7-136 and 7-486, as amended, established the East Haven economic development commission (commission). The commission has been involved with the development of a particular area in East Haven known as the East Haven Industrial Park (industrial park), pursuant to an industrial development plan. The industrial park consists of approximately 228 acres of land and is dedicated to building a strong tax base for the town of East Haven by appealing to certain businesses to locate there. In order to enable East Haven and the commission to achieve the objectives of an industrial park, the state has undertaken to provide, and has provided, substantial aid and assistance to the commission to meet the net project costs for obtaining the land and development of the industrial park in the form of bond moneys allowing the town of East Haven and the commission to buy out or to foreclose on various parcels to create the 228 acre industrial park. The industrial park development has added jobs and increased the tax base of East Haven and has done so particularly with respect to parcel eighteen purchased by the New Haven Tobacco Company (Tobacco). Tobacco, a privately held corporation, entered into the commission's standard land disposition agreement (agreement) with the town of East Haven and the commission on March 10,1987. Within the confines of the restrictions placed on it by the agreement, Tobacco's business was and is operated exclusively by the private entity and consists of manufacturing and storing goods for its own private profit. The structure built on parcel eighteen is not open to the general public and no governmental functions are conducted on its premises. The agreement specified that the town of East Haven and the commission would sell parcel eighteen of the industrial park to Tobacco for $80,704 under specified terms. Tobacco signed the agreement and tendered its deposit on March 10, 1987. The agreement was recorded on land records in East Haven on the same day. The agreement was fully executed and acknowledged by the town of East Haven, the commission and Tobacco. Both Robert Norman, acting for the town of East Haven, and Joseph Bittner, acting for the commission in signing the agreement, were acting within the scope of their respective public authorities. The agreement contains many conditions regarding revesting of title, construction, use and maintenance. A further condition of the agreement is that the foundation of Tobacco's proposed building on parcel eighteen had to be constructed prior to the conveyance of parcel eighteen to Tobacco. Within the confines of the agreement's conditions and restrictions, Tobacco undertook the construction of an office and manufacturing building. Normally, building plans would be approved by the commission before an agreement was signed. The foundation construction condition is written into the standard agreement to safeguard against land speculation by potential redevelopers. The commission was wary of nonconstruction by the redeveloper and then a resale of the parcels because the parcels were sold by the commission at a price somewhat below the fair market value. The construction of the foundation before conveyance was intended to have the redeveloper fulfill its commitment to construct its proposed building. Tobacco entered into a construction contract with Long Construction Company (Long) for the construction of its proposed office and manufacturing building on parcel eighteen. In accordance with the agreement, all plans and specifications with respect to the construction of improvements were reviewed by the commission to ensure its conformity with industrial development plans for the industrial park. Only Tobacco negotiated with Long regarding construction tasks such as prices, payment terms and subcontractors to be used on the job. The moneys used to obtain, grade and prepare the 228 acres of land to become the industrial park, including parcel eighteen, were public. The commission, through the agreement, imposed conditions on the use, construction and maintenance of parcel eighteen. The moneys used for the construction of the building itself were not from public funds but from private capital supplied by Tobacco. On March 10,1987, parcel eighteen was expected to be conveyed to Tobacco after the foundation was completed. On June 16,1988, the property, with the completed foundation, was conveyed to Tobacco subject to the right of reversion to the commission provided in the agreement. The deed was recorded in the East Haven land records on June 21,1988. Tobacco presently enjoys the benefit of having its business within the industrial park. After the recording of the agreement on the East Haven land records and after Tobacco and Long had entered into their construction agreement, a foundation was erected on parcel eighteen. The plaintiff, L. Suzio Concrete Company, Inc. (Suzio), supplied the materials for the foundation erected on parcel eighteen to Long from September 10,1987, to March 23,1988. Suzio was left a total unpaid balance of $35,896.27 plus interest for materials delivered to the parcel eighteen foundation. Between May 16 and May 26,1988, Suzio sought to place a mechanic's lien on parcel eighteen, but its search of title on the East Haven land records showed parcel eighteen was owned by the municipality. Between May 16 and May 26,1988, Suzio inquired of the town and of the commission if a bond had been obtained and was advised that no bond had been obtained regarding parcel eighteen. On May 27,1988, Suzio made demands on Long, Tobacco, the town of East Haven and the commission for payment in the amount of $35,896.27 for materials delivered to parcel eighteen. Long filed for bankruptcy on July 17, 1989, and obtained relief. At no time did the defendants Bittner or Norman, or any other agent of either the town of East Haven or the commission request, receive, or obtain from Tobacco or any other entity, a bond regarding the agreement for parcel eighteen, particularly a labor and material payment bond for improvements to parcel eighteen during the period of time that the town was record owner of the property and during which time the foundation was being constructed with Suzio's materials. Suzio brought this civil action against Tobacco, the town of East Haven, its mayor, the commission and its chairman for entering into a public works contract without first obtaining a bond in accordance with the mandates of General Statutes § 49-41. All claims against Tobacco have been withdrawn by both Suzio and the East Haven defendants. The town of East Haven, by agreement, will indemnify the mayor and the commission chairperson against any judgment rendered against them in this action. The first question reserved for our advice requires us to determine whether the agreement here was a contract for the construction of a "public work" of the town of East Haven within the meaning of General Statutes § 49-41. At the time that the agreement was signed, § 49-41 (a) provided, in pertinent part, that "[bjefore any contract exceeding one thousand dollars in amount for the construction, alteration or repair of any public building or public work of the state or of any subdivision thereof is awarded to any person, that person shall furnish to the state or the subdivision a bond in the amount of the contract . . . ." Neither § 49-41 nor the case law interpreting it provides any definition of what constitutes a "public work" of a town which invokes the bonding requirements of the statute. Because § 49-41 is intended to operate in general conformity with the federal statutes popularly known as the Miller Act, 40 U.S.C. § § 270a through 270e; Nor'easter Group, Inc. v. Colossale Concrete, Inc., 207 Conn. 468, 476 n.7, 542 A.2d 692 (1988); Internal Harvester Co. v. L. G. DeFelice & Son, Inc., 151 Conn. 325, 331-33, 197 A.2d 638 (1964); we look to the interpretation of the federal statute for guidance. The Miller Act, like § 49-41, does not define the term "public work." The United States Supreme Court has concluded, however, that public works under the Miller Act are "projects of the character heretofore constructed or carried on . . . with public aid to serve the interests of the general public." United States Use of Noland Co. v. Irwin, 316 U.S. 23, 30, 62 S. Ct. 899, 86 L. Ed. 1241 (1942). While the cases applying the Miller Act and its counterparts under state statutes have identified various factors that are used in determining whether a particular construction project qualifies as a public work; see generally annot., 48 A.L.R. 4th 1170, 1182-85; no one factor is determinative. The application of the Irwin definition is necessarily made on a case-by-case basis, and where a project involves publicly assisted construction of buildings for private use, such as is at issue in this case, the determination of whether the project is a public work turns on "the facts determining the degree of intimacy of the [governmental] connection with the particular project." Id., 1202. We conclude that the agreement involving parcel eighteen of the East Haven industrial park was not a contract for a public work within § 49-41. The purpose of the agreement was to promote local economic development pursuant to chapter 132 of the General Statutes through the acquisition and transfer of real property. See General Statutes § 8-193. The agreement was simply a contract to sell real property in the industrial park, with conditions attached to ensure the development and use of the property in a manner consistent with the local plan of development. One such condition, of course, was the construction of a foundation prior to conveyance. This condition, however, was only intended to prevent land speculation in the industrial park, thereby ensuring the proper development of the industrial park. The foundation condition in the agreement did not convert the agreement into a contract for the construction of the foundation. The contract detailing the specifications for the entire building to be constructed on parcel eighteen, including the foundation, was the contract subsequently entered into between Tobacco and Long. This contract for the actual construction of the building was negotiated between Tobacco and Long without municipal involvement. Tobacco and Long determined the payment arrangements, the subcontractors and the various construction specifications. The completed building houses Tobacco's business and is operated by a private entity for the manufacture and storage of goods for private profit. The completed building is privately owned, not open to the general public, and no governmental functions are conducted on the premises. The plaintiff stresses the fact that the municipality was the record owner of parcel eighteen when the agreement was signed and when the plaintiff delivered its concrete to the general contractor at the construction site on parcel eighteen. We are not persuaded that this fact alone changes the essentially private nature of the construction work done on parcel eighteen into public work for purposes of § 49-41. At all times relevant to this case, it was expressly contemplated that parcel eighteen would be conveyed by the town to Tobacco once construction of the foundation was com pleted. The property was, in fact, conveyed to Tobacco less than three months after the plaintiff last delivered materials to the construction site. Under similar circumstances, the Supreme Court of Rhode Island determined that a facility owned and financed by the Rhode Island Port Authority and Economic Development Corporation but operated exclusively by private industry was not a "public work" under a Rhode Island bonding statute similar to § 49-41. James J. O'Rourke, Inc. v. Industrial National Bank, 478 A.2d 195 (R.I.1984). After noting the lack of state involvement in the construction or operation of the meat processing plant at issue, the O'Rourke court concluded that the manufacturing plant there "cannot be classified as a public work. By no stretch of the imagination can the plant be considered a public building; it is not open to the general public and no governmental functions are conducted with public funds, and the necessary private capital was supplied by the bank. Whatever profits result from [the plant's operations] will be earmarked for [the corporation's] shareholders rather than the State of Rhode Island." Id., 198. Likewise, the Minnesota Court of Appeals, in determining whether a bus remanufacturing plant constructed on a parcel developed in part through tax increment financing was a public work for purposes of the Minnesota bonding statute, concluded that such publicly assisted, private development projects "are not even colorably public works. Public works are typified by sewer systems, streets and roads, schools and other projects owned and paid for by the government, exempt from property taxes and put to the common use. A private, commercial, industrial project is simply not the same kind of enterprise." Judd Supply Co. v. Merchants & Manufacturers Ins. Co., 448 N.W.2d 895, 899 (Minn. App. 1989). Because the LDA at issue in the present case was, at its core, a contract for the sale of land and because the involvement of the town of East Haven in the construction that took place on the land was minimal at best, we conclude that the agreement for the conveyance of parcel eighteen owned by the town of East Haven within the East Haven industrial park is not a public works contract under § 49-41. In light of our negative answer to the first question reserved for our advice, we will not address the second question presented to us. Barr v. First Taxing District, 147 Conn. 221, 158 A.2d 740 (1960). To the first question in the reservation, we answer "No." The second question will not be answered. No costs will be taxed to either party. In this opinion the other judges concurred. "[General Statutes] Sec. 52-235. reservation of questions of law. (a) The superior court, or any judge of the court, with the consent of all parties of record, may reserve questions of law for the advice of the supreme court or appellate court in all cases in which an appeal could lawfully have been taken to said court had judgment been rendered therein. "(b) The court or judge making the reservation shall, in the judgment, decree or decision made or rendered in such cases, conform to the advice of the supreme court or the appellate court." "[Practice Book] Sec. 4147. [RESERVATIONS]--IN general "A reservation shall be taken to the supreme court or to the appellate court from those cases in which an appeal could have been taken directly to the supreme court or to the appellate court, respectively, had judgment been rendered. Reservations in cases where the proper court for the appeal cannot be determined prior to judgment shall also be taken directly to the supreme court. "All questions presented for advice shall be specific and shall be phrased so as to require a Yes or No answer. "The court will not entertain a reservation for its advice upon questions of law arising in any action unless the question or questions presented are such as are, in the opinion of the court, reasonably certain to enter into the decision of the case, and it appears that their present determination would be in the interest of simplicity, directness and economy of judicial action. "The advice of the appellate court on a reservation may be reviewed by the supreme court only upon the granting of certification as provided by chapter 72." The parties to this appeal are the plaintiff and the following defendants: the town of East Haven; its mayor, Robert M. Norman; the East Haven economic development commission; and the commission's chairperson, Joseph T. Bittner. The named defendant is not a party to this appeal, all claims against that party having been withdrawn prior to this appeal. "[General Statutes (Rev. to 1987)] Sec. 49-41. public structures. BONDS FOR PROTECTION OF EMPLOYEES AND MATERIALMEN, (a) Before any contract exceeding one thousand dollars in amount for the construction, alteration or repair of any public building or public work of the state or of any subdivision thereof is awarded to any person, that person shall furnish to the state or the subdivision a bond in the amount of the contract which shall be binding upon the award of the contract to that person, with a surety or sureties satisfactory to the officer awarding the contract, for the protection of persons supplying labor or materials in the prosecution of the work provided for in the contract for the use of each such person, provided that no such bond shall be required to be furnished in relation to any general bid in which the total estimated cost of labor and materials under the contract with respect to which such general bid is submitted is less than ten thousand dollars or in relation to any sub-bid in which the total estimated cost of labor and materials under the contract with respect to which such sub-bid is submitted is less than twenty thousand dollars. "(b) Nothing in this section or sections 49-41a to 49-43, inclusive, shall be construed to limit the authority of any contracting officer to require a performance bond or other security in addition to the bond herein referred to, except that no such officer shall require a performance bond in relation to any general bid in which the total estimated cost of labor and materials under the contract with respect to which such general bid is submitted is less than ten thousand dollars or in relation to any sub-bid in which the total estimated cost of labor and materials under the contract with respect to which such sub-bid is submitted is less than twenty thousand dollars."

The claimant John Muldoon's petition for certification for appeal from the Appellate Court, 33 Conn. App. 695 (AC 12112/12113), is granted, limited to the following issue: "Under the circumstances of this case, did the Appellate Court properly conclude that the prior stipulation barred the claimant's claim, as a matter of law?"

Borden, J. The sole issue in this certified appeal is whether the Appellate Court properly concluded that the fourth amendment exclusionary rule did not apply to the hearing on the state's motion for revocation of the defendant's probation. The defendant appeals, following our grant of certification, from the judgment of the Appellate Court. That judgment affirmed the judgment of the trial court revoking the defendant's probation and ordering that the defendant's previously suspended sentence be executed. State v. Jacobs, 30 Conn. App. 340, 620 A.2d 198 (1993). The trial court had refused to hold an evidentiary hearing on the defendant's motion to suppress evidence seized pursuant to two search warrants, on the ground that the exclusionary rule does not apply to probation revocation proceedings. We affirm the judgment of the Appellate Court. The facts are undisputed. On March 23, 1990, pursuant to a conviction for possession of marijuana with intent to sell in violation of General Statutes (Rev. to 1989) § 21a-277, the trial court, Damiani, J., sentenced the defendant to five years incarceration, execution suspended, and placed him on probation for three years. That conviction followed a search of the defendant's residence that had yielded eight pounds of marijuana, a high capacity semiautomatic pistol and another weapon. One of the conditions of probation was that the defendant not violate the criminal laws of this state. On August 2, 1990, the defendant called the Ham-den police to his residence in order to investigate a burglary. While at the defendant's residence, Investigator Boguslaw Kicak questioned the defendant about a gun case that was in plain view. The defendant stated that he owned a Starr .45 caliber semiautomatic pistol, and that he had a permit for the weapon. Subsequent investigation by the Hamden police department disclosed, however, that the defendant's permit had been revoked because of his conviction for possession of marijuana, an unclassified felony. Consequently, the Hamden police department sought a warrant to search the defendant's residence and seize the pistol, ammunition, other firearms, and various other items, asserting that the items sought to be seized were evidence of the com mission of the offense of criminal possession of a firearm by a convicted felon in violation of General Statutes (Rev. to 1989) § 53a-217. The affiants on the search warrant affidavit, who stated the foregoing facts, were Kicak and Officer Linda Guerra. On August 17, 1990, after a Superior Court judge issued the warrant, Guerra and Kicak searched the defendant's residence pursuant to the warrant. Guerra found and seized the Starr pistol and another, loaded, semiautomatic revolver. During the search, Guerra observed in plain view two zipper sealed plastic bags containing a green, plant-like material that, on the basis of her experience in law enforcement, she believed to be marijuana. Kicak field tested the material, and it tested positive for marijuana. Despite these observations, the officers did not seize the plastic bags, although they were aware of the defendant's conviction of possession of marijuana with intent to sell. Instead, on the same day, Guerra and Kicak sought and secured a second search warrant for marijuana and related paraphernalia. In their supporting affidavit for the second warrant, Guerra and Kicak described the first search. They stated that the defendant had been charged with violating § 53a-217 as a result of the search, and that they had seen in plain view the two plastic bags, the contents of which had field tested positive for marijuana. Acting pursuant to this second warrant, the police searched the defendant's residence, and seized a substantial amount of marijuana and drug paraphernalia. Thereafter, the defendant's probation officer moved to revoke the probation on the basis of, inter alia, the defendant's possession of the marijuana and paraphernalia seized during the second search. The defendant moved to suppress the evidence seized, asserting that when Kicak and Guerra applied for the warrants to search the defendant's residence, they knew or had reason to know that the defendant was on probation. The trial court, Schimelman, J., refused to hold an evidentiary hearing on the defendant's motion to suppress, on the ground that the exclusionary rule does not apply to revocation of probation proceedings. After a hearing on the motion to revoke probation, the trial court found that the state had proven by reliable and probative evidence that the defendant, by possessing marijuana, had violated the condition of his probation that he not violate any criminal law of this state. Accordingly, the trial court revoked the probation and imposed the sentence of five years incarceration. On appeal to the Appellate Court, the defendant claimed that: (1) the exclusionary rule applied to the revocation of probation proceedings; (2) the first search warrant failed to establish probable cause; and (3) therefore, the evidence was illegally seized and should have been suppressed. State v. Jacobs, supra, 30 Conn. App. 340. The Appellate Court rejected his contentions, and affirmed the judgment of the trial court. Id., 346. This appeal followed. The defendant repeats in this court his basic position as he asserted it in the Appellate Court. He claims that: (1) the fourth amendment exclusionary rule applies to a revocation of probation proceeding if the officers performing the search knew or should have known of the defendant's probationary status; (2) the officers in his case had, or had reason to have, that knowledge; (3) if a pretextual motive on the part of the police is required for the application of the exclusionary rule, that requirement was met here because the first warrant facially lacked probable cause to believe that the defendant had committed any crime; and (4) the defect in the first warrant invalidated the search performed pursuant to the second warrant. We disagree. The defendant's arguments rest on two essential premises, namely, that: (1) dictum of this court in Payne v. Robinson, 207 Conn. 565, 573, 541 A.2d 504, cert. denied, 488 U.S. 898, 109 S. Ct. 242, 102 L. Ed. 2d 230 (1988), applies to this case so as to require the application of the exclusionary rule; and (2) the first warrant was defective because it rested on the legally incorrect assertion that the defendant's possession in his residence of the Starr pistol was a violation of § 53a-217. See footnote 2. With respect to the first premise, we conclude that the dictum in Payne has no application to this case because in this case, unlike Payne, the search was conducted pursuant to a warrant. With respect to the second premise, we conclude that, although there may be probation revocation cases in which even a search pursuant to a warrant might be subject to the exclusionary rule, this is not such a case. Payne v. Robinson, supra, 207 Conn. 565, was a habeas corpus case in which the petitioner challenged the validity of his revocation of probation. The basis of the petitioner's challenge was the warrantless search of his car. The petitioner was on probation at the time of the search, but the officer conducting the search had no knowledge of the probationary status. Id., 571. In that context, we held that the fourth amendment exclusionary rule did not apply. Id., 571-72. We reasoned that, because the purpose of probation revocation proceedings is to determine whether the probationer is complying with the conditions of probation, the state has a strong interest in accurate fact-finding that would be impaired by the application of the exclusionary rule. Id. Against that interest we balanced the deterrent effect of the rule. We concluded that application of the exclusionary rule would have only a marginal deterrent effect. Because there was already a deterrent effect created by the application of the rule to any criminal proceedings, and because the use of evidence in a probation revocation proceeding falls outside a police officer's zone of primary interest, we concluded that "exclusion of such evidence will not significantly affect a police officer's motivation in conducting a search." Id. We specifically did "not reach the question of whether the exclusionary rule would apply in probation revocation proceedings when the police officer who conducted the search was aware or had reason to be aware of the suspect's probationary status." Id., 573. We stated in dictum that "[i]f illegally obtained evidence was admissible in such circumstances, the police officer might very well discount the fact that such evidence was inadmissible at a criminal trial, believing that incarceration of the probationer would instead be achieved through the revocation of his probation. Application of the exclusionary rule to the probation hearing might therefore contribute significantly to the deterrence of illegal searches." Id. The defendant argues, as he did in the Appellate Court, that this dictum should be converted into a holding. He contends that this record demonstrates that Kicak and Guerra knew or had reason to know of his probationary status when they performed the first search, and that, therefore, the dangers contemplated by our dictum in Payne require the application of the exclusionary rule. In such a case, he asserts, unless the exclusionary rule applies, the police have nothing to lose: if the evidence were ruled admissible in criminal proceedings brought against the defendant stemming from the search, he would likely be convicted and incarcerated; if, however, the evidence were suppressed, it could still lead to his incarceration for revocation of probation. Contrary to the argument of the defendant, however, we conclude that this is not an appropriate case for deciding whether the Payne dictum is correct. The presence of a warrant makes this case critically different, and leads us to conclude that this case presents the same balance of interests that we determined in Payne did not "favor the application of the exclusionary rule . . . ." Id., 571. Put another way, even if police officers know or have reason to know that the target of their search is on probation, the presence of a warrant sufficiently guards against the risk that, unless the exclusionary rule applies, the officers will not be deterred from performing an illegal search. We note initially that, unlike criminal trials, in which the exclusionary rule typically applies, in probation revocation hearings, the exclusionary rule typically does not apply. Id. Thus, a probationer has the burden of persuading us that the exclusionary rule should nonetheless apply. The defendant has failed to carry that burden in this case. Unlike a warrantless search, a search authorized by a warrant presupposes that the officer has persuaded a Superior Court judge that probable cause exists to believe that the defendant has committed a crime and that evidence of that crime exists at the place to be searched. State v. Johnson, 219 Conn. 557, 563, 594 A.2d 933 (1991); State v. Barton, 219 Conn. 529, 544, 594 A.2d 917 (1991). Indeed, as State v. Smith, 207 Conn. 152, 162-69, 540 A.2d 679 (1988), makes clear, the probation process operates as an arm of the judiciary, not of the police or prosecution. We have laid heavy emphasis on the need for protecting the integrity of the warrant-issuing process; see State v. Diaz, 226 Conn. 514, 628 A.2d 567 (1993); and have, on that ground, eschewed the good faith exception to the exclusionary rule under our state constitution. State v. Marsala, 225 Conn. 10, 620 A.2d 1293 (1993). When a police officer seeks a search warrant in this state, therefore, he knows or should know that the validity of his ensuing search will be gauged by the four corners of the documents that he presents in support of his application. We believe that this knowledge, and the necessity of presenting his evidence to the scrutiny of a judge, are sufficient to deter from illegality a police officer who is bent on incarcerating a probationer either by criminal prosecution or by revocation of probation. Thus, the intervention of the warrant-issuing process, which is governed and performed, not by the police officer but by a judge, will ordinarily be sufficient to guard against any substantial risk that "the police officer might . . . discount the fact that such evidence was inadmissible at a criminal trial, believing that incarceration of the probationer would instead be achieved through the revocation of his probation." Payne v. Robinson, supra, 207 Conn. 573. This risk is further reduced by the fact that the judicial branch form for a search warrant application; JD-CR-61 Rev. 1-89; which was in fact used by Kicak and Guerra in this case, requires the affiant to swear that he "has not presented this application in any other court or to any other judge." Thus, when a warrant is necessary for a search, as in this case, a police officer is unlikely to present an inadequate search warrant affidavit to a judge simply because he believes that, even if it is denied, he can nonetheless proceed without the warrant and prevail in the revocation proceedings. To do so would necessarily jeopardize, perhaps permanently, the criminal case, which is within the officer's " 'zone of primary interest' id., 571; in favor of probation revocation proceedings, which are not within that zone. Cases in other jurisdictions support the conclusion that, for purposes of the application of the exclusionary rule, a warrant sufficiently protects against the risk of police illegality in the context of a probation revocation proceeding. Most federal and state jurisdictions hold that, in general, the exclusionary rule does not apply to probation revocation proceedings. See Commonwealth v. Olsen, 405 Mass. 491, 541 N.E.2d 1003 (1989), and cases cited therein. In the few cases we have found in those jurisdictions in which the search was performed pursuant to a warrant, the court held the exclusionary rule inapplicable. See United States v. Farmer, 512 F.2d 160 (6th Cir.), cert. denied, 423 U.S. 987, 96 S. Ct. 397, 46 L. Ed. 2d 305 (1975); State v. Alfaro, 127 Ariz. 578, 623 P.2d 8 (1980); Commonwealth v. Olsen, supra, 491. We need not decide, however, whether the exclusionary rule would nonetheless apply if the search were performed pursuant to a warrant that was so patently defective that no reasonable police officer would have requested it and no reasonable judge would have issued it. It may be that such a circumstance would be the equivalent of egregious, shocking or harassing police misconduct that would require the application of the exclusionary rule to probation revocation proceedings. See Commonwealth v. Olsen, supra, 405 Mass. 491. This case does not present that factual scenario. We assume for purposes of this case that the defendant is correct in asserting that the first warrant was defective because General Statutes (Rev. to 1989) § 53a-217, the offense asserted in the first search warrant application, does not list conviction under § 21a-277 as one of the prior offenses that disqualify a person from possessing a firearm. Under this construction of § 53a-217, the defendant's conviction under § 21a-277 was not a valid basis for the issuance of the first warrant, and Kicak and Guerra were mistaken in requesting, and the judge was mistaken in issuing, the warrant. Nonetheless, the warrant was not so patently defective that no reasonable police officer would have requested it and no reasonable judge would have issued it. Unquestionably, had Kicak, Guerra or the issuing judge, before issuing the warrant, read § 53a-217 carefully and compared the offenses listed therein to the statute under which the defendant had been convicted, namely, § 21a-277, they would have discovered that issuance of the warrant was problematic. In a criminal prosecution, failure to discover and to resolve this problem correctly would have required suppression of the evidence. In the present circumstances, however, we cannot say that it was patently unreasonable or egregious to have assumed, without checking the statutes, that one who has been convicted of the felony of possession of marijuana with the intent to sell was legally disqualified from owning a firearm. The facts of this case demonstrate, moreover, that, despite the legal invalidity of the first warrant, and con trary to the defendant's assertion that the invalidity evidenced the officers' pretextual motive, the police officers' course of conduct appears to have constituted an attempt to respect the defendant's constitutional rights. Approximately four months after the imposition of the defendant's probationary status for possession of marijuana with intent to sell, the police learned that he was in possession of a firearm for which his permit had been revoked. Instead of returning to his residence to search for the weapon on the basis of his probationary status, they sought and secured a search warrant from a Superior Court judge. While executing that warrant, they discovered marijuana in plain view in the defendant's bedroom. Again, instead of seizing the marijuana based upon a "plain view" of contraband exception to the warrant requirement, they sought and secured a second warrant from a judge. The judgment of the Appellate Court is affirmed. In this opinion Peters, C. J., Katz and M. Hennessey, Js., concurred. We granted certification to appeal, limited to the following question: "Did the Appellate Court properly conclude that, under the circumstances of this case, the fourth amendment exclusionary rule did not apply to these revocation proceedings?" State v. Jacobs, 225 Conn. 920, 652 A.2d 822 (1993). General Statutes (Rev. to 1989) § 53a-217 provides in relevant part: "criminal use of pistol, revolver or electronic defense weapon: class D felony, (a) A person is guilty of criminal possession of a pistol, revolver or electronic defense weapon when he possesses a pistol, revolver or electronic defense weapon and has been convicted of a capital felony, a class A felony, a class B felony, except a conviction under section 53a-86, 53a-122 or 53a-196a, a class C felony, except a conviction under section 53a-87, 53a-152, 53a-153 or 53a-196b, or a felony under sections 53a-60 to 53a-60c, inclusive, 53a-72a, 53a-72b, 53a-95, 53a-103, 53a-103a, 53a-114, 53a-136 or 53a-216. For the purposes of this section, 'convicted' means having a judgment of conviction entered by a court of competent jurisdiction." Thus, we need not decide, and therefore continue to leave for another day, whether our dictum in Payne v. Robinson, supra, 207 Conn. 565, is valid if the search is performed without a warrant. The state argues in response that, although the warrant may have been technically defective and thus would have been a valid basis for a motion to suppress in a criminal prosecution, the warrant was not invalid for purposes of a revocation proceeding because such a search warrant aimed at a probationer may issue on less than probable cause. Our conclusion that the exclusionary rule does not apply despite the invalidity of the warrant makes it unnecessary to consider this argument.

The plaintiff's petition for certification for appeal from the Appellate Court, 36 Conn. App. 913 (AC 12361), is denied.

The plaintiff's petition for certification for appeal from the Appellate Court, 32 Conn. App. 203 (AC 11150), is granted, limited to the following issue: "Did the Appellate Court properly dismiss this appeal from a stipulated judgment in a personal injury action involving a workers' compensation claim, when the parties had reserved, in stipulating to the judgment, the right to appeal and to challenge the trial court's earlier granting of the employer's motion to intervene?" The Supreme Court docket number is SC 14852. Decided October 15, 1993 Kerry M. Wisser, in support of the petition. Thomas H. Cotter, in opposition.

The petitioner Edward Falby's petition for certification for appeal from the Appellate Court, 32 Conn. App. 438 (AC 11647), is denied.

The defendant's petition for certification for appeal from the Appellate Court (AC 12285) is granted, limited to the following issue: "Did the Appellate Court properly dismiss the defendant's appeal from the trial court's order denying his motion to implead?"

Landau, J. This is an appeal from the judgment of the Superior Court that followed the granting of a motion to strike Paul Zanoni as a party plaintiff from the appeal to that court from two decrees entered by the Probate Court in the district of Newington. A walk down the somewhat worn factual and procedural path is helpful. Rosalie Zanoni and Paul Zanoni appealed from two decrees of the Probate Court with regard to the estate of Helen Benny. Rosalie Zanoni, daughter of the decedent, is the devisee of the estate's only assets. Paul Zanoni is not a relative, beneficiary, devisee, or creditor of the Benny estate. On March 27, 1991, Rosalie Zanoni was removed as executrix of the estate and Richard Pikor was appointed administrator de bonis non cum testamento annexo (d.b.n.c.t.a.) of the Benny estate. Pikor served in that capacity continuously until December 1, 1992, when the Probate Court accepted his resignation. On that date, the Probate Court appointed Karen Renzulli Lynch as successor administratrix d.b.n.c.t.a. of the estate and denied the plaintiffs' application for removal of Pikor for cause. In December, 1992, Rosalie Zanoni and Paul Zanoni filed an appeal in the Superior Court contesting the actions of the Probate Court. On April 26,1993, Lynch filed a motion to strike Paul Zanoni as a party plaintiff on the ground of misjoinder. That court found, after a hearing in which Paul Zanoni acknowledged that he did not file a claim against the estate, that Paul Zanoni was not a creditor of the estate. It further found that Paul Zanoni had no legal interest in the appeal, that he was not aggrieved within the meaning of General Statutes § 45a-186, and therefore was not a proper party to the appeal. On August 5, 1993, Paul Zanoni appealed that judgment of the Superior Court. Subsequently, while the appeal was pending in this court, judgment was rendered for the defendants in the underlying action. The remedy for misjoinder of parties is by motion to strike and the trial court appropriately considered it. Practice Book § 198. Because, however, the underlying action no longer is pending, the appeal has been rendered moot. The relief sought in that action was denied by the judgment for the defendants. No appeal was taken from that judgment. " '[I]t is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.' " Jones v. Ricker, 172 Conn. 572, 576, 375 A.2d 1034 (1977), quoting Reynolds v. Vroom, 130 Conn. 512, 515, 36 A.2d 22 (1944); Phaneuf v. Commissioner of Motor Vehicles, 166 Conn. 449, 452, 352 A.2d 291 (1974); Gormley v. Panuzio, 166 Conn. 1, 3, 347 A.2d 78 (1974). Because no practical relief can follow the determination of the issue raised, we will not decide it. The appeal is dismissed. In this opinion the other judges concurred. Lynch also challenged the probate appeal on the ground that the appeal was legally deficient because it appealed two separate Probate Court decrees. The Superior Court denied that part of the motion to strike. That ruling is not challenged in this appeal. General Statutes § 46a-186 provides in pertinent 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 . . . ."

The plaintiffs' petition for certification for appeal from the Appellate Court, 31 Conn. App. 643 (AC 11524), is granted, limited to the following issue: "Did the Appellate Court properly conclude that: (a) Canterbury Zoning Regulation § 4.12.3 requires, as a condition precedent to subdivision approval, inland wetlands approval; and (b) the zoning regulation conflicts with General Statutes § 8-26?"

Katz, J. The plaintiff, deputy sheriff Joseph Antinerella, an at-will employee, sued the defendant, Alfred J. Rioux, as an individual and in his capacity as high sheriff of Hartford county, for wrongfully terminating the plaintiff's employment for the alleged purposes of misappropriating the plaintiff's business of serving process and furthering the defendant's own illegal fee splitting enterprise. The principal issue on appeal is whether the trial court properly dismissed the suit on the grounds that the doctrine of sovereign immunity and the immunity provisions of General Statutes § 4-165 shielded the defendant from suit in his capacity as sheriff and as an individual, respectively. Because we conclude that the defendant's alleged conduct exceeded his authority and was outside the scope of his employment as high sheriff, he is not immune from suit. Accordingly, we reverse. The plaintiff brought a five count complaint seeking damages and injunctive relief against the defendant individually and in his capacity as sheriff for: (1) violation of the Connecticut Unfair Trade Practices Act (General Statutes § 42-110a et seq.); (2) tortious interference with the plaintiff's contractual relationships; (3) racketeering activities; (4) illegal conspiracy; and (5) breach of contract. The plaintiff alleged in each of the five counts in his complaint the following facts that, for the purposes of this appeal, we consider to be accurate. From 1980 through 1991 the plaintiff maintained a highly profitable business with clients statewide as a deputy sheriff serving process and papers and executing process in Hartford county. To assist him in this business, the plaintiff employed Lori Chirico as a secretary to handle collections, type returns of service and deal with clients. As a result, Chirico became thoroughly familiar with all of the plaintiff's accounts and customer lists. In 1990, the defendant hired Chirico as his personal secretary, although his appointment of her as a special deputy allowed him to pay her with state funds. At or around the same time, the defendant entered into agreements with several deputy sheriffs he had appointed. Under the agreements, the defendant was to forward business he had obtained from law firms and state agencies to designated deputy sheriffs who would thereafter serve process, and, in turn, pay him 40 percent of the statutory rate in violation of General Statutes § 6-46 and 53a-161c. Each count contained the critical allegation that the defendant, after forming the agreement with the deputy sheriffs, terminated the plaintiffs employment for the purposes of obtaining the plaintiffs business and personally benefiting from the forbidden and illegal fee splitting arrangements the defendant had devised. Thereafter, the plaintiff, on the basis of these shared facts, asserted particular legal claims accompanied by additional supporting allegations. The plaintiff claimed that the defendant, by his illegal conduct, tortiously interfered with the plaintiffs contractual relationships and breached his employment contract. The plaintiff further alleged that the defendant's efforts to engage in unfair methods of competition and unfair and deceptive acts or practices in the distribution of service of process, and the restraint, termination and confiscation by the defendant of the plaintiffs business for his own personal gain were in violation of General Stat utes § 42-110b et seq. Moreover, the plaintiff claimed that the defendant, by having engaged in racketeering activities in violation of General Statutes § 53a-159, 53a-161 and 53a-161c, caused him serious economic and personal injury in violation of General Statutes § 53-395 et seq. The defendant moved to dismiss the plaintiffs complaint, arguing that the action against him in his official capacity was barred by the doctrine of sovereign immunity and that the action against him in his individual capacity was barred by the immunity provisions of General Statutes § 4-165. The trial court granted the defendant's motion and dismissed the plaintiff's complaint. The trial court in its memorandum of decision concluded that the defendant was personally immune from suit because, pursuant to § 6-37 and 6-45, the high sheriff has the unlimited statutory authority to hire and fire a deputy sheriff "at his pleasure regardless of his motives or the propriety of his reasons for such dismissal." The trial court also noted that, to defeat the doctrine of sovereign immunity, the plaintiff had to point to a legislative enactment indicating the state's consent to be sued. The trial court concluded that the plaintiff's reliance on General Statutes § 6-30 and 6-30a was misplaced, and, that in the absence of any other provision expressly authorizing suit against the sheriff for wrongful termination of employment, the doctrine of sovereign immunity insulated the defendant from suit in his official capacity. On appeal, the plaintiff argues that because the defendant fired him to further his own financial gain through a fee splitting agreement with various deputy sheriffs in violation of General Statutes § 6-36 and 6-46, the defendant exceeded his authority as high sheriff and, therefore, cannot claim the protection of sovereign immunity. The plaintiff similarly contends that because the defendant's behavior exceeded the scope of his employment, the defendant cannot claim the personal immunity afforded by § 4-165. Finally, the plaintiff argues that the express exception contained in § 4-165, eliminating immunity for a state employee acting in a wanton, reckless or malicious fashion, precludes the defendant from asserting the immunity defense. We agree with the plaintiff and therefore conclude that the trial court should not have dismissed the complaint. I "We have . . . recognized that because the state can act only through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state.' Sentner v. Board of Trustees, 184 Conn. 339, 342, 439 A.2d 1033 (1981). In its pristine form the doctrine of sovereign immunity would exempt the state from suit entirely, because the sovereign could not be sued in its own courts and 'there can be no legal right as against the authority that makes the law on which the right depends.' Kawananakoa v. Polyblank, 205 U.S. 349, 353, 27 S. Ct. 526, 51 L. Ed. 834 (1907); Bergner v. State, 144 Conn. 282, 284-85, 130 A.2d 293 (1957). This absolute bar of actions against the state has been greatly modified both by statutes effectively consenting to suit in some instances as well as by judicial decisions in others." Doe v. Heintz, 204 Conn. 17, 31, 526 A.2d 1318 (1987); see also 57 Am. Jur. 2d, Municipal, County, School and State Tort Liability § 61 et seq. (1988). "It does not necessarily follow, however, that every action in which state officials or members of state agencies are named defendants and designated by official titles should be treated as an action against the state such as to clothe the defendants with immunity from suit." Simmons v. Parizek, 158 Conn. 304, 307, 259 A.2d 642 (1969). Sovereign immunity does not bar suits against state officials acting in excess of their statu tory authority or pursuant to an unconstitutional statute. Horton v. Meskill, 172 Conn. 615, 624, 376 A.2d 359 (1977). " 'In those cases in which it is alleged that the defendant officer is proceeding . in excess of his statutory authority, the interest in the protection of the plaintiffs right to be free from the consequences of such action outweighs the interest served by the sovereign immunity doctrine. . . .' " Id., quoting J. Block, "Suits Against Government Officers and the Sovereign Immunity Doctrine," 59 Harv. L. Rev. 1060, 1080-81 (1946). In such instances, the need to protect the government simply does not arise and "the government cannot justifiably claim interference with its functions . . . .'" Horton v. Meskill, supra, 172 Conn. 624. " 'Where[, however,] no substantial claim is made that the defendant officer is acting pursuant to an unconstitutional enactment or in excess of his statutory authority, the purpose of the sovereign immunity doctrine requires dismissal of the suit for want of jurisdiction.' " Id. In light of these principles, the dispositive issue faced by the trial court in this case in determining whether to dismiss the action on the grounds of sovereign immunity was whether the defendant had allegedly acted in excess of his statutory authority when he terminated the plaintiff's employment. Although we have recognized the legal principle that sovereign immunity does not apply to suits against state officials acting in excess of their statutory authority, we have never had occasion actually to apply that doctrine. This case presents the first opportunity to do so. We begin with a discussion of the standard for appellate review of a trial court's dismissal of a complaint for lack of jurisdiction. "[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." Amore v. Frankel, 228 Conn. 358, 364, 636 A.2d 786 (1994). "When a [trial] court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light." Reynolds v. Soffer, 183 Conn. 67, 68, 438 A.2d 1163 (1981). Because this case comes to us on a threshold sovereign immunity issue, pursuant to a motion to dismiss; Practice Book § 143; we do not pass on whether the complaint was legally sufficient to state a cause of action. Gurliacci v. Mayer, 218 Conn. 531, 544, 590 A.2d 914 (1991). In the posture of this case, we examine the pleadings to decide if the plaintiff has alleged sufficient facts: (1) with respect to sovereign immunity, to support a conclusion that the defendant acted in excess of his statutory authority; and (2) with respect to personal immunity under § 4-165, to support a conclusion that the defendant was acting outside the scope of his employment or wilfully or maliciously. Id., 542; see Barde v. Board of Trustees, 207 Conn. 59, 64, 539 A.2d 1000 (1988). The plaintiff maintains that he has met his burden. The defendant argues, however, that the plaintiff's allegation that the defendant had engaged in or had planned to engage in prohibited conduct after the plaintiffs dismissal does not constitute an act in excess of authority. Such an argument reflects a formalistic and myopic view of the complaint and contradicts the modern trend to read pleadings broadly and realistically rather than narrowly and technically. See Beaudoin v. Town Oil Co., 207 Conn. 575, 588, 542 A.2d 1124 (1988), and cases cited therein. We conclude that the factual allegations, common to each of the five 'counts, broadly, rather than narrowly, construed make out a claim that the defendant was acting in excess of his statutory authority when he terminated the plaintiffs employment in order to accomplish that which § 6-36 and 6-46 specifically prohibit. Each of the five counts contained in the complaint expressly states that "[tjhe defendant, Alfred J. Rioux did intentionally terminate the plaintiff, Joseph Antinerella for the express purpose of obtaining his business and personally benefitting under the forbidden and illegal fee splitting arrangements he had with appointed deputy sheriffs." The plaintiff also alleged that: (1) the defendant "has engaged in unfair methods of competition and unfair and deceptive acts or practices in the distribution of service of process, the restraint of the [pjlaintiff s business, the termination of the [pjlaintiff s business and the taking of the [pjlaintiff s business for his own personal gain in violation of [General Statutes § 42-110a et seq.J"; (2) "[tjhe [djefendant's tortious interference arises out of his scheme and conspiracy to obtain the [pjlaintiff s client list and establish a system by which the customers and clients of the [pjlaintiff would thereafter be necessitated or required to use the services of the [djefendant thereby providing him with personal gain for the [djefendanf s tortious interference with the [pjlaintiff s contractual relationships"; (3) the defendant: (a) "[cjonspired to take the [pjlaintiff s business"; (b) "[tjerminated the [pjlaintiff s license to serve process without good or reasonable cause"; and (c) "[cjonspired with deputy sheriffs to fabricate false accusation and allegations against [the plaintiff] to use as a basis to terminate [the plaintiff]"; and (4) the "[defendant did engage in activity in violation of [General Statutes § 6-46] of receiving compensation from deputy sheriffs, in fee splitting, which activity was established to provide benefit to the [defendant upon [the plaintiffs] termination." Construing the pleaded facts in the light most favorable to the plaintiff; Duguay v. Hopkins, 191 Conn. 222, 227, 464 A.2d 45 (1983); we, therefore, presume that the defendant discharged the plaintiff in order to take his business and personally benefit under the statutorily forbidden and illegal fee splitting arrangement he had made with several appointed deputy sheriffs. That termination of his employment under the facts and circumstances of this case constituted an action in excess of his authority. The defendant argues that because § 6-45 authorizes him to terminate the employment of deputies at will, his termination of the plaintiffs employment could not have been in excess of his statutory authority. We disagree. Not all uses of that authority are protected. For example, had the defendant used his authority to transport a prisoner, pursuant to General Statutes § 6-32d, for the express purpose of arranging for that prisoner to be assaulted, such intentional criminal behavior would not be shielded. Similarly, despite the sheriffs authority to hire and fire contained in § 6-45, the plaintiffs allegations as set forth in the complaint describe a course of conduct that is egregious in nature. The defendant also posits that because his appointment of deputy sheriffs is solely within his discretion, deputy sheriffs have no entitlement and, therefore, cannot claim interference with any business interest. In Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385 (1980), we provided a public policy exception to the employment at-will rule in an effort to balance the competing interests of employer and employee. The employer must be allowed to make personnel decisions without fear of incurring civil liability. The employee, however, must be protected against actions by his employer that contravene public policy. "Given the inherent vagueness of the concept of public policy, it is often difficult to define precisely the contours of the exception. [We look to see whether] the plaintiff has . . . alleged that his discharge violated any explicit statutory or constitutional provision . . . [or whether] he alleged that his dismissal contravened any judicially conceived notion of public policy." Morris v. Hartford Courant Co., 200 Conn. 676, 680, 513 A.2d 66 (1986). Application of that doctrine is particularly appropriate under the facts and circumstances of this case when, according to the allegations considered to be true for purposes of the motion to dismiss, the defendant has acted to accomplish what statutes specifically prohibited him from doing. Sections 6-36 and 6-46 reflect the clear public policy that a high sheriff may not engage in fee splitting. It would be totally incongruous for the legislature to prohibit any fee splitting by the high sheriff, but nevertheless for us to allow him to advance the scheme by terminating the plaintiffs employment with total immunity. Sections 6-36 and 6-46 are indicative of the public policy that the defendant's scheme was aimed at circumventing. This case presents claims that genuinely involve the mandates of public policy derived directly from state statutes. "Certainly when there is a relevant state statute we should not ignore the statement of public policy that it represents." Sheets v. Teddy's Frosted Foods, Inc., supra, 179 Conn. 480. Had the plaintiff been the one to discover the defendant's illegal fee splitting scheme and the one to "blow the whistle" on the defendant, and had the defendant thereafter fired the plaintiff in order to continue his illegal conduct, undoubtedly, the plaintiff could bring an action for retaliatory discharge. Id. We see no reason to differentiate between that employee and this plaintiff, whose employment was also terminated in order that his employer could perpetuate a fee splitting arrangement, a scheme clearly prohibited by statute. We reject the defendant's contention that the plaintiff's allegations do not support his claim that his employment had been terminated in violation of a distinct public policy. We are persuaded that the plaintiff's complaint, read so as to sustain its validity, amply charges that "his discharge involve[d] 'impropriety . . . derived from some important violation of a public policy.'" Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 572, 479 A.2d 781 (1984). Finally, the defendant argues that § 6-36 and 6-46, which authorize the removal from office of any high sheriff who engages in fee splitting, were intended by the legislature to provide a sufficient remedy to deter such illegal conduct and to protect deputy sheriffs from such intimidation. According to the defendant, neither statute provides any rights of employment to a deputy, limits the authority of the high sheriff to dismiss deputy sheriffs or allows for private enforcement of their provisions. The defendant further asserts that the ethics commission is empowered to impose the appropriate remedy for violation of General Statutes § 1-84 (c) and 1-85. See General Statutes § 1-88 and 1-89. These statutes provide for a public remedy and are indicative of our public policy, consistent with the legislature's obvious interest in ensuring that elected officials conduct themselves within the parameters of the law, that any sheriff who has engaged in this kind of prohibited conduct has abused his authority and deserves to be removed from office. That does not mean, however, that a private remedy for the same conduct can never coexist. In determining whether a statute prohibiting certain conduct also affords a private cause of action for damages, we generally apply the rule of statutory construction that "[w]hen the legislature has authorized supplementary private causes of action, it has done so expressly. See, e.g., General Statutes § 22a-16 (Connecticut Environmental Protection Act) and 42-110g (a) (Connecticut Unfair Trade Practices Act)." Middletown v. Hartford Electric Light Co., 192 Conn. 591, 596, 473 A.2d 787 (1984). As part of this analysis, we assess whether the legislature concluded that private interests were amply served without private causes of action. For example, in the area of environmental law, we have examined the administrative regulatory process to see if private persons had been afforded access by way of complaints to the Connecticut department of environmental protection or the council on environmental quality. Id. Sections 6-36 and 6-46 provide solely for the public's rights to be vindicated through the authority of the Superior Court and the General Assembly to terminate the high sheriff's employment. Although we find nothing in any of the pertinent provisions that specifically prohibits a private cause of action by an injured dep uty sheriff whose employment has been terminated by the high sheriff in order to effectuate an illegal purpose, these statutes do "not [expressly] authorize a private cause of action for damages. Thus the plaintiffs action is necessarily at common law." Boehm v. Kish, 201 Conn. 385, 389, 517 A.2d 624 (1986). We already have recognized the existence of a common law action for an at-will employee whose employment has been terminated in violation of a distinct public policy. Because this case involves a significant matter of clear and well defined public policy, this plaintiff is no less entitled to a modicum of judicial protection. We conclude that the mandates of public policy derived directly from § 6-36 and 6-46 impose some limits on the defendant's unbridled discretion to terminate a deputy's employment and that the plaintiff is entitled to vindicate his claims through a private cause of action. The " '[p]ublic office [held by the defendant] is a trust conferred by public authority for a public purpose. . . .' " Gaynor-Stafford Industries, Inc. v. Water Pollution Control Authority, 192 Conn. 638, 648, 474 A.2d 752, cert. denied, 469 U.S. 932, 105 S. Ct. 328, 83 L. Ed. 2d 265 (1984); State ex rel. Stage v. Mackie, 82 Conn. 398, 401, 74 A. 759 (1909). " 'The rights, authority and duty . . . conferred upon the sheriff by law, clearly invest him with a portion of the sovereign power of the government to be exercised by him for the public good.' " In re Application of Griffiths, 162 Conn. 249, 256, 294 A.2d 281 (1972), rev'd on other grounds, 413 U.S. 717, 93 S. Ct. 2851, 37 L. Ed. 2d 910 (1973); Sibley v. State, 89 Conn. 682, 685, 96 A. 161 (1915). "In the American system, sovereignty is inherent in the people. They can delegate it to a government which they create and operate by law. They can give to that government the power and authority to perform certain duties and furnish certain services. The government so created and empowered must employ people to carry on its task. Those people are agents of the government. They exercise some part of the sovereignty entrusted to it. They occupy a status entirely different from those who carry on a private enterprise. They serve the public welfare and not a private purpose." Norwalk Teachers' Assn. v. Board of Education, 138 Conn. 269, 276, 83 A.2d 482 (1951). Our decision today supports the central statutory purpose of eradicating illegal behavior by people in authority. It also, however, allows persons who have suffered injuries as a result of these illegalities to be made whole. When an elected official acts within the limits of his or her authority, we have little occasion to supervise, review, restrain or punish. LaTorre v. Hartford, 167 Conn. 1, 9, 355 A.2d 101 (1974); and no reason to circumvent the doctrine of sovereign immunity. When, however, the state employee acts solely to further his or her own illegal scheme and not to carry out government policy, there is no reason to provide immunity from suit. Termination of his or her employment serves one purpose while allowing for damages to flow to the injured party serves another. Although there is a mounting trend to eliminate the immunity defense in many jurisdictions; see 18 E. McQuillin, Municipal Corporations (3d Ed. Rev. 1993) § 53.02.10, p. 141 n.37; the plaintiff is not seeking judicial abrogation of sovereign immunity. By our decision we do not chip away at the doctrine, relax its parameters or expand any well developed exceptions. Rather than rely on any exception to the rule, we hold simply that the doctrine does not apply when there is a substantial allegation of wrongful conduct to promote an illegal purpose in excess of the officer's statutory authority. II The second issue pertains to the plaintiff's suit against the defendant in his individual capacity. The defendant claims that he is immune from suit by virtue of General Statutes § 4-165. Section 4-165, however, is implicated only after it has been determined that the state may rightfully be sued. McKinley v. Musshorn, 185 Conn. 616, 621, 441 A.2d 600 (1981). The trial court determined that because sovereign immunity applied, neither the state nor the defendant individually could be subject to suit. Because we have concluded that the defendant is not shielded by the sovereign immunity doctrine, we must determine what, if any, protection § 4-165 affords the defendant in his individual capacity. The umbrella of personal immunity provided by § 4-165 applies only to a state officer or employee who causes injury or damage while acting "within the scope of his [or her] employment." We have interpreted similar language in the context of an action, pursuant to General Statutes § 53-39a, for indemnification by an officer against his employing governmental unit for economic loss he sustained in successfully defending himself against the state's prosecution for a crime he had allegedly committed while acting " 'in the course of his duty' " as an officer. Link v. Shelton, 186 Conn. 623, 627, 443 A.2d 902 (1982). In interpreting the phrase "in the course of his duty" as used in § 53-39a, we focused on whether the employee was reasonably fulfilling the duties of employment or doing something incidental to it. Id. In light of the allegations that the defendant's wrongful conduct was intended to effectuate an illegal fee splitting scheme for which the defendant himself could be fired, it would be inconsistent and inappropriate for us to consider such conduct by the defendant to be incidental to his employment as high sheriff or beneficial to the government as his employer. The defendant argues that when he terminated the plaintiff's employment, he was merely using his authority pursuant to § 6-45 and that he, therefore, was still acting within the scope of his employment. Once again, the defendant's misuse of his authority was personal to him and was not " 'primarily employer rooted' " or "reasonably incidental to the performance of employment duties." Manale v. Dept. of Police, 673 F.2d 122, 126 (5th Cir. 1982). The defendant's alleged conduct was not designed to advance any interest of his employer, the state, and did not serve any legitimate state interest. Rather, the defendant's alleged actions were motivated by purely personal considerations entirely extraneous to his employer's interest. Therefore, we conclude that § 4-165, by its own explicit and unambiguous terms, provides the defendant with no protection from suit. The trial court relied on § 6-45 as a blanket authorization for the defendant "to dismiss deputies at his pleasure regardless of his motives or the propriety of his reasons for such dismissal." The trial court noted that § 6-45 expressly authorized the defendant to terminate the plaintiffs employment. The trial court reasoned, therefore, that the defendant could not be personally liable when acting in his official capacity with express authority. We have already concluded that § 6-45 is not authorization to act for an illegal purpose and that sovereign immunity will not protect the defendant against the allegations that he acted in excess of his authority. We hold that personal immunity provided by § 4-165 is likewise unavailable. We conclude, therefore, that the trial court should not have dismissed the plaintiffs action brought against the defendant individually. The judgment is reversed, and the case is remanded for further proceedings according to law. In this opinion the other justices concurred. Louri Antinerella, Joseph Antinerella's wife, is also a plaintiff in this case. She seeks damages for the deprivation of the services, support and consortium of her husband. Because her claim is wholly derivative of Joseph Antinerella's and will thus survive or be barred according to the disposition of the issues on appeal as applied to him, this opinion does not refer to her separately in her role as plaintiff. The plaintiff appealed from the judgment of dismissal of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). As a special deputy, Chirico was required by statute to transport prisoners, maintain the orderly form of the court and, in the event of a riot, be available to suppress it. See General Statutes § 6-43. General Statutes § 6-46 provides: "sheriff may recover on bond of DEPUTY. NOT TO DEMAND FEE FROM deputy. If any sheriff is sued on account of the default of his deputy, he may recover on the bond of such deputy fifteen dollars in addition to the amount recovered from him or which he has been compelled to pay on account of such default. If any sheriff demands or receives any compensation from any deputy, he shall, by the superior court in the county for which he is sheriff, on the information of the state's attorney, be removed from office and adjudged forever disqualified to hold the office of sheriff." General Statutes § 53a-161c provides: "receiving kickbacks: class d felony, (a) A person is guilty of receiving kickbacks whenever he by force, intimidation or threat of procuring dismissal from employment induces any person who is employed in the construction, completion or repair of any public building, public work, or building or work financed in whole or in part by loans or grants from the state, or who has a contract with the state, to give up any part of the compensation to which he is entitled. "(b) Receiving kickbacks is a class D felony." General Statutes § 42-110b provides: "UNFAIR TRADE PRACTICES prohibited. legislative INTENT, (a) No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. "(b) It is the intent of the legislature that in construing subsection (a) of this section, the commissioner and the courts of this state shall be guided by interpretations given by the Federal Trade Commission and the federal courts to Section 5 (a) (1) of the Federal Trade Commission Act (15 U.S.C. 45 (a) (1)), as from time to time amended. "(c) The commissioner may, in accordance with chapter 54, establish by regulation acts, practices or methods which shall be deemed to be unfair or deceptive in violation of subsection (a) of this section. Such regulations shall not be inconsistent with the rules, regulations and decisions of the federal trade commission and the federal courts in interpreting the provisions of the Federal Trade Commission Act. "(d) It is the intention of the legislature that this chapter be remedial and be so construed." General Statutes § 53a-159 provides: "BRIBE receiving BY A LABOR official: class d felony, (a) A labor official is guilty of bribe receiving by a labor official if he solicits, accepts or agrees to accept any benefit from another person upon an agreement or understanding that such benefit will influence him in respect to any of Ms acts, decisions or duties as such labor official. "(b) Bribe receiving by a labor official is a class D felony." General Statutes § 53a-161 provides: "RECEIVING A COMMERCIAL BRIBE: CLASS A misdemeanor, (a) An employee, agent or fiduciary is guilty of receiving a commercial bribe when, without consent of Ms employer or principal, he solicits, accepts or agrees to accept any benefit from another person upon an agreement or understanding that such benefit will influence his conduct in relation to his employer's or principal's affairs. "(b) Receiving a commercial bribe is a class A misdemeanor." See footnote 4 for General Statutes § 53a-161c. General Statutes § 53-395 provides: "PROHIBITED ACTIVITIES, (a) It is unlawful for any person who has knowingly received any proceeds derived, directly or indirectly, from a pattern of racketeering activity or through the collection of an unlawful debt to use or invest, whether directly or indirectly, any part of such proceeds, or the proceeds derived from the investment or use thereof, in the acquisition of any title to, or any right, interest or equity in, real property or in the establishment or operation of any enterprise. "(b) It is unlawful for any person, through a pattern of racketeering activity or through the collection of an unlawful debt, to receive anything of value or to acquire or maintain, directly or indirectly, any interest in or control of any enterprise or real property. "(c) It is unlawful for any person employed by, or associated with, any enterprise to knowingly conduct or participate in, directly or indirectly, such enterprise through a pattern of racketeering activity or through the collection of an unlawful debt." General Statutes § 4-165 provides: "immunity op state oppicees and EMPLOYEES feom personal liability. No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his duties or 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 this chapter. For the purposes of this section 'scope of employment' shall include, but not be limited to, representation by an attorney appointed by the public defender services commission as a public defender, assistant public defender or deputy assistant public defender or an attorney appointed by the court as a special assistant public defender of an indigent accused or of a child on a petition of delinquency, representation by such other attorneys, referred to in section 4-141, of state officers and employees, in actions brought against such officers and employees in their official and individual capacities, the discharge of duties as a trustee of the state employees retirement system, the discharge of duties of a commissioner of superior court hearing small claims matters or acting as a fact-finder, arbitrator or magistrate or acting in any other quasi-judicial position, and the discharge of duties of a person appointed to a committee established by law for the purpose of rendering services to the judicial department; provided such actions arise out of the discharge of the duties or within the scope of employment of such officers or employees. For purposes of this section, members or employees of the soil and water district boards established pursuant to section 22a-315 shall be considered state employees." General Statutes § 6-37 provides: "deputies, chief deputy. Each sheriff may appoint deputies to act under him, who shall have the same powers as such sheriff to serve civil process, and each such deputy shall be responsible for his neglect, wrongdoing, malfeasance, misfeasance and default in the execution of the service of process. Each sheriff shall appoint one of such deputies to be a chief deputy, who shall, in the absence, illness or disability of the sheriff or by his direction, exercise all the powers and perform all the duties of the sheriff prescribed by statute; and, in the event of the death, resignation or removal of the sheriff, shall exercise such powers and perform such duties until the vacancy in the office of sheriff has been filled." General Statutes § 6-45 provides: "appointments and removal of deputies. Appointments of deputy sheriffs shall be in writing, under the hand of the sheriff, and recorded in the records of the superior court in the county for which they are appointed. The sheriff may, at his pleasure, dismiss from office the deputies appointed by him, but only upon his delivering to the person removed a written discharge and filing a copy thereof with the clerk of the superior court in such county for record in the records of said court." General Statutes § 6-30 provides: "bond. No person shall enter upon the duties of sheriff until he executes a bond of ten thousand dollars, to the acceptance of the governor, payable to the state, conditioned that he will faithfully discharge the duties of his office, including his duties when serving as deputy of another sheriff under the provisions of section 6-38, and answer all damages which any person may sustain by his unfaithfulness, malfeasance, wrongdoing, misfeasance or neglect; and the governor may, at any time, demand of any sheriff a new bond and, on neglect or refusal to give it, such sheriff shall be considered to have resigned his office. Each sheriff shall receive a commission and his bond shall be lodged with the secretary and recorded in the records of the state and a copy thereof, certified by the secretary, shall be evidence of its execution." General Statutes § 6-30a provides: "personal liability insurance. Each sheriff and deputy sheriff, on or after October 1,1976, shall be required to carry personal liability insurance for damages caused by reason of his tortious acts in not less than the following amounts: For damages caused to any one person or to the property of any one person, one hundred thousand dollars and for damages caused to more than one person or to the property of more than one person, three hundred thousand dollars. For the purpose of this section 'tortious act' means negligent acts, errors or omissions for which such sheriff or deputy sheriff may become legally obligated to any damages for false arrest, erroneous service of civil papers, false imprisonment, malicious prosecution, libel, slander, defamation of character, violation of property rights or assault and battery if committed while making or attempting to make an arrest or against a person under arrest; provided, it shall not include any such act unless committed in the performance of the official duties of such sheriff or deputy sheriff." General Statutes § 6-36 provides: "removal from office by general assembly. If any sheriff (1) knowingly demands or receives illegal fees for serving process, (2) illegally detains any money collected by him or (3) refuses to satisfy any execution issued against him, the general assembly shall remove him from office. The terms 'knowingly demands' and 'receives,' as used in this section, include billing for and the receipt of fees for work by a sheriff who did not actually perform the work for which billing is made or for which payment has been received." See footnote 4 for General Statutes § 6-46. The plaintiff also relies on General Statutes § 6-30 and 6-30a as authorizing his claim. Because we agree with the plaintiff that the defendant's conduct, if proved, exceeded his authority and that sovereign immunity therefore does not bar the action, we do not decide whether either of these statutes provides the express consent of the state to be sued, as the plaintiff suggests. This court has also "entertained suits [against state officials] . . . in which declaratory relief is sought as well as related injunctive relief; Rogan v. Board of Trustees for State Colleges, 178 Conn. 579, 424 A.2d 274 (1979); and also suits seeking only to enjoin state officers from illegal or unconstitutional acts. Sentner v. Board of Trustees, supra, [184 Conn.] 344-45; see University of Connecticut Chapter, AAUP v. Governor, 200 Conn. 386, 388, 512 A.2d 152 (1986); Duguay v. Hopkins, 191 Conn. 222, 227 n.4, 464 A.2d 45 (1983). With respect to the . . . injunctive relief sought by the plaintiffs . . . these precedents plainly establish that sovereign immunity is unavailable as a defense . . . Doe v. Heintz, supra, 204 Conn. 31-32; see also Krozser v. New Haven, 212 Conn. 415, 562 A.2d 1080 (1989), cert. denied, 493 U.S. 1036, 110 S. Ct. 757, 107 L. Ed. 2d 774 (1990). General Statutes § 6-32d provides: "responsibility for transportation and CUSTODY OF PRISONERS. Except as otherwise agreed between the advisory board and the department oi' correction or other appropriate agency, the responsibility for transportation and custody of prisoners shall be assumed as follows: "(1) Each high sheriff shall be responsible for the transportation of male prisoners between courthouses within his county and: (A) Community correction centers, until sentencing; (B) other places of confinement after arraignment and until sentencing; and (C) the place of initial confinement, after sentencing. In addition, each high sheriff shall be responsible for the transportation of adult female prisoners between courthouses within his county and community correction centers, not including the correctional institution at Niantic. If such transportation is in other than state vehi cles, the owner of the vehicle used shall be reimbursed by the state at the rate then established for state employees within the office of policy and management. "(2) The department of correction shall be responsible for the transportation of adult female prisoners between places of confinement and either courthouses or community correction centers, at the discretion of the commissioner of correction. "(3) Each high sheriff shall be responsible for the custody of prisoners at courthouses within his county, except that the local police operating any lockup which is designated by the chief court administrator as a courthouse lockup shall be responsible for the custody of prisoners within that lockup. In addition, if such designated lockup is not in the same building as the courthouse serviced by it, the local police operating such designated lockup shall be responsible for escorting prisoners from the lockup to the courthouse. The town in which such a designated lockup is located shall be reimbursed pursuant to section 7-135a." This is equally trae for other persons in law enforcement. General Statutes § 29-9 provides: "ACCEPTANCE OR OFFERING OF GIFTS OR REWARDS BY OR to state or local police, (a) Any state police officer appointed as provided in section 29-4, any police officer of any city, town or borough and any person having the power of arrest who, directly or indirectly, receives a reward, gift or gratuity for the purpose of influencing his behavior in office, or any person who gives, offers or promises to a police officer or any person having the power of arrest any reward, gift or gratuity with the intent to influence his behavior in office, shall be fined not more than one hundred dollars or imprisoned not more than six months or both, and the police officer shall be dishonorably discharged from the division of state police or from the police department. "(b) The provisions of subsection (a) shall not apply to rewards, gifts or gratuities which are approved by the commissioner of public safety, or the police chief or board of police commissioners, as the case may be, and are given to the police officer on account of his official services." It is mandated that a state police officer be dishonorably discharged if he receives a gratuity for the purpose of influencing his behavior. Therefore, were someone to bribe a state officer to "look the other way" while he assaulted a prisoner in the officer's custody, the officer would be discharged. Although this statute provides for the officer's discharge, and indeed authorizes a fine and imprisonment for this wrongful conduct, there is nothing in its language that suggests that the injured prisoner would not be able to bring an action against the officer. Whether his claim could survive a motion to dismiss based on sovereign immunity would depend strictly on the allegations in his complaint. See footnote 8. In Brown v. Housing Authority, 23 Conn. App. 624, 583 A.2d 643 (1990), cert. denied, 217 Conn. 808, 585 A.2d 1233 (1991), a case brought under the theory of respondeat superior for damages suffered as a result of an assault and battery committed by the defendant's employee, the Appellate Court applied the master-servant doctrine to decide whether the defendant was acting "within the scope of his employment" when he assaulted the plaintiff. " ' "A master is liable only for those torts of his servant which are done with a view of furthering his master's business within the field of this employment—for those which have for their purpose the execution of the master's orders or the doing of the work assigned to him to do." ' Bradlow v. American District Telegraph Co., 131 Conn. 192, 196, 38 A.2d 679 (1944); Turner v. American District Telegraph & Messenger Co., 94 Conn. 707, 110 A. 540 (1920)." Brown v. Housing Authority, supra, 628. Although it is more often " 'the function of the jurors to determine from the facts before them whether, under this test, a servant was acting within the scope of his employment,' " the Appellate Court noted that sometimes the acts of a servant are " 'so clearly without the scope of his authority that the question is one of law.' " Id., quoting Bradlow v. American District Telegraph Co., supra, 195. The Appellate Court concluded that the employee's "intentional, criminal acts were in no way connected to the defendant's business." Brown v. Housing Authority, supra, 23 Conn. App. 628. " ' "In the course of his employment" means while engaged in the service of the master, and it is not synonymous with the phrase "during the period covered by his employment." ' Levitz v. Jewish Home for Aged, Inc., 156 Conn. 193, 198, 239 A.2d 490 (1968)." Brown v. Housing Authority, supra, 23 Conn. App. 628; see also Mitchell v. Resto, 157 Conn. 258, 262, 253 A.2d 25 (1968) ("it must be the affairs of the principal, and not solely the affairs of the agent, which are being furthered in order for the doctrine to apply"). In light of our resolution of this case on the ground that the defendant acted outside the scope of his employment, we need not address the plaintiff's claim that General Statutes § 4-165 does not protect a state officer who has exhibited "wanton, reckless or malicious" conduct.

Per Curiam. The judgment is affirmed.

The defendant's petition for certification for appeal from the Appellate Court, 33 Conn. App. 359 (AC 11289), is denied.

Lavery, J. The defendant appeals from a judgment of conviction, rendered after a jury trial, of possession of narcotics with intent to sell in violation of General Statutes § 21a-278, and conspiracy to sell narcotics in violation of General Statutes § 21a-278 and 53a-48. The defendant claims (1) that the trial court's denial of his motions to excuse two venirepersons for cause denied him his right to a fair and impartial jury and (2) that the trial court improperly instructed the jury on reasonable doubt. We affirm the judgment of the trial court. The facts pertinent to the defendant's first claim are as follows. The defendant and his codefehdant each were allotted eight peremptory challenges. The first venireperson to be questioned was Thomas Stretton, a police officer in the town of Cheshire, whom the defendant sought to remove for cause. The trial court denied the challenge for cause. The defendant removed Stretton by exercising his first peremptory challenge. After three jurors had been selected, the defendant challenged venireperson Phillip Travisano for cause. This challenge was denied and the defendant exercised his eighth and final peremptory challenge to remove Travisano. After voir dire of the venireperson that followed Travisano, the following colloquy took place: "The Court:You're out of challenges? "[Defense Counsel]: That's correct, Your Honor. I have no challenge for cause." That person became the fourth juror; the fifth and sixth jurors and one alternate were subsequently accepted by both defendants without challenge. The defendant requested no additional peremptory challenges from the court. In examining the defendant's claim that he was deprived of a fair and impartial jury, we focus not on the challenged venirepersons but on those who actually sat on the jury that decided the defendant's case. Ross v. Oklahoma, 487 U.S. 81, 86, 108 S. Ct. 2273, 101 L. Ed. 2d 80 (1988); State v. Tucker, 226 Conn. 618, 631, 629 A.2d 1067 (1993); State v. Pelletier, 209 Conn. 564, 572-73, 552 A.2d 805 (1989). In the case at hand, as well as in Ross v. Oklahoma, supra, 86, none of the jurors who ultimately sat on the case was challenged for cause. Likewise, as in Ross, the defendant never suggested that any of the jurors that actually sat were not impartial. In addition, the defendant did not request an additional peremptory challenge to exercise against any of the seated jurors nor was there any indication that the defendant would have used a peremptory challenge against any of them if one had been available. Since no juror was forced on the defendant, he was not deprived of a fair and impartial jury by the trial court's failure to excuse two venirepersons for cause. State v. Pelletier, supra, 572-73. The right to exercise peremptory challenges against prospective jurors is granted to Connecticut criminal defendants by the state constitution, which provides that "[i]n all civil and criminal actions tried by a jury, the parties shall have the right to challenge jurors peremptorily, the number of such challenges to be established by law. ." Conn. Const., amend. IV. This right is also protected by General Statutes § 54-82g and 54-82h. In State v. Esposito, 223 Conn. 299, 313, 613 A.2d 242 (1992), our Supreme Court stated: "Accordingly, we agree with numerous other courts throughout the nation that it is reversible error for a trial court to force an accused to use peremptory challenges on persons who should have been excused for cause, provided the party subsequently exhausts all of his or her peremptory challenges and an additional challenge is sought and denied." (Internal quotation marks omitted.) In this case, the defendant failed to request any additional challenges. Immediately after the defendant had exhausted his peremptory challenges, he acknowledged, with respect to the next venireperson who became a juror, that he had no challenge for cause. He did not inform the trial court that an additional peremptory challenge was necessary to protect his rights to a fair and impartial jury. His mere statement that he had no challenge for cause did not imply a request for an additional peremptory challenge. Without challenging for cause or requesting an extra peremptory challenge, the defendant expressly accepted all subsequently seated jurors and the single alternate. The defendant has not sustained his burden on this claim. The defendant's second claim is that by defining a reasonable doubt as one "in which a reasonable man or woman can give a valid reason" the trial court violated the defendant's right to due process of law under the federal and state constitutions and his right to a speedy and public trial by an impartial jury. We find no merit to this claim. The Supreme Court has consistently upheld this definition of a reasonable doubt and concluded that when viewed in the context of an entire charge the definition does not dilute the state's burden of proof. State v. Kelley, 229 Conn. 557, 567-68, 643 A.2d 854 (1994). The court's charge in this case, when viewed as a whole, clearly defined the standard for proof beyond a reasonable doubt. The judgment is affirmed. In this opinion the other judges concurred.

Per Curiam. The judgment is affirmed.

Katz, J. The defendant, John Dinoto, was charged in an eight count information with two counts of the crime of sexual assault in the first degree in violation of General Statutes § 53a-70 (a), three counts of the crime of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1), one count of the crime of sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1), and two counts of the crime of risk of injury to a child in violation of General Statutes § 53-21. The charges involve two victims, T and J, who were alleged to have been sexually assaulted on separate occasions. After a jury convicted the defendant on all counts, the defendant appealed to the Appellate Court from the judgment of conviction of one count of sexual assault in the first degree (count five) and one count of sexual assault in the third degree (count seven), both pertaining to T, and from the judgment of conviction of two counts of risk of injury to a child (counts three and eight), pertaining to T and J, respectively. The defendant argued, inter alia, that the trial court improperly had charged the jury on the alternative theories of "use of force and threat of use of force" in defining the crimes of sexual assault in the first and third degrees. The Appellate Court noted that the state had alleged only that the defendant had violated these statutes by the use of force, and that no evidence had come before the jury from which it could have concluded that either of the sexual assaults of T had been committed by the threat of use of force. Thus, the Appellate Court concluded that the trial court committed reversible error by instructing the jury that it could consider both statutory alternatives and reversed the judgment of conviction on counts five and seven. State v. Dinoto, 32 Conn. App. 217, 221, 628 A.2d 618 (1993). In so concluding, the Appellate Court relied explicitly on its earlier opinion in State v. Chapman, 28 Conn. App. 360, 610 A.2d 1328 (1992), with the knowledge that certification to appeal had been granted on that case. See State v. Chapman, 223 Conn. 923, 614 A.2d 827 (1992). The state thereafter petitioned this court for certification, which we granted, limited to the following three issues: "(1) Under the facts of this case, did the Appellate Court properly conclude that the trial court's jury instruction regarding sexual assault in the first degree was incorrect because it referred to compelled sexual intercourse by threat of force? (2) If the answer to question (1) is yes, was reversal of the conviction required by (a) the federal due process clause; or (b) the due process clause of article first, § 8, of the Connecticut constitution? (3) Was the Appellate Court correct in failing to consider whether any error in the trial court's instruction was harmless?" State v. Dinoto, 227 Conn. 921, 632 A.2d 697 (1993). Because we conclude that the trial court's instructions, read in their entirety under the facts and circumstances of this case, did not improperly enlarge the offense charged, or allow the jury to consider the defendant's guilt of that offense based on a "statutory alternative for which there was no support in the evidence," we answer the first certified question in the negative and reverse that part of the judgment of the Appellate Court. Recently, this court held in State v. Chapman, 229 Conn. 529, 545-48, 643 A.2d 1213 (1994), that where there had been no explicit evidence of the threat of use of force it was improper for the trial court to instruct the jury that "a person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person or by the threat of the use of force against such person which reasonably causes such person to fear physical injury." As we have repeat edly stated: "It is improper for the trial court to read an entire statute to a jury when the pleadings or the evidence support a violation of only a portion of the statute." Id. In light of the state's concession in the Appellate Court that it had presented no evidence of the explicit threat of the use of force; see State v. Diggs, 219 Conn. 295, 298-302, 592 A.2d 949 (1991); we concluded that the trial court had acted improperly. We then determined that, upon an appropriate harmless error analysis, the error was harmless. In its jury instruction pertaining to the two counts of sexual assault in the first degree, the trial court in this case charged in accordance with General Statutes § 53a-70 (a) (1) that "[a] person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person or a third person or by the threat of the use of force against such person. Which reasonably causes such person to fear physical injury. . . . Now if you find the required sexual intercourse had been proven beyond a reasonable doubt, you must determine whether the defendant used or threatened the use of force. . . . Now, the first count as charged is sexual assault in the first degree. It's the first count on the information and that's the one having to do with [J] on the boat and it has to do with a claim of vaginal intercourse. The other count of sexual assault in the first degree has to do in the fifth count of the information and it has to do with [T] where the claim that the intercourse was fellatio and it occurred in the graveyard. Those are the two counts where the State claims that the crime of sexual assault in the first degree occurred." At the conclusion of the trial court's charge, the assistant state's attorney alerted the trial court to the fact that it had instructed the jury on alternative methods of committing the various crimes that had not been set forth in the substitute information and the bill of particulars. In response, the defendant's trial counsel specifically stated that he did not want the court to correct its error, and that he did not have any problems with the fact that the trial court's instructions had enlarged the offenses with which the defendant was charged. State v. Dinoto, 32 Conn. App. 219 n.1. The state argues that, because the evidence as to the first count of the information charging the defendant with sexual assault in the first degree of J, which was never the subject of any appeal, established that the defendant not only had used actual force against that victim but had also explicitly threatened to kill her, the trial court's challenged instructions did not authorize the jury to consider a theory for which there was no support in the evidence. We agree. During her testimony regarding the first degree sexual assault that had occurred on the defendant's boat in the summer of 1984 (count one), J testified that when she had resisted the defendant's efforts to have sexual intercourse with her, he, in addition to having used actual physical force, had explicitly threatened to kill her if in resisting him she were to awaken her sister in the other bed in the cabin. Under the facts and circumstances of this case, therefore, there was evidence of the explicit threat of the use of force by the defendant toward J, the victim of the unchallenged first degree sexual assault charge. As a result, the trial court properly charged the jury to consider the use of force and threat of use of force as applied to that count. In defining § 53a-70 (a) (1), the trial court did not charge the jury separately concerning the two first degree sexual assault counts. Rather, the trial court cautioned the jurors of its intent to define the crime only once, told them that they were to consider both counts of first degree sexual assault, and advised them to apply the instructions as given to the appropriate counts. This admonishment persuades us that, in rendering their verdict, the jurors could not reasonably have been misled by any reference to the inapplicable portion of the statute. See State v. Carter, 189 Conn. 611, 631, 458 A.2d 369 (1983). We hold that because there was evidence of an explicit threat of force by the defendant against J, the trial court's instructions allowing the jury to consider whether the defendant had used or threatened to use force in deciding whether he was guilty of first degree sexual assault did not invite the jury to consider his guilt of first degree sexual assault of T based on a theory of culpability for which there was no supporting evidence. The judgment of the Appellate Court regarding the first degree sexual assault count (count five) is reversed and the case is remanded to that court with direction to affirm the judgment of the trial court on that count. In this opinion Peters, C. J., Borden and Palmer, Js., concurred. General Statutes § 53a-70, as amended by No. 93-340, § 14, of the 1993 Public Acts, provides in relevant part: "sexual assault in the first DEGREE: CLASS B FELONY: ONE YEAR NOT SUSPENDABLE. (a) A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person . . . ." General Statutes § 53a-71, as amended by No. 93-340, § 2, of the 1993 Public Acts, provides in relevant part: "sexual assault in TIIE SECOND DEGREE: CLASS C FELONY: NINE MONTHS NOT SUSPENDABLE. (a) A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and: (1) such other person is thirteen years of age or older but under sixteen years of age and the actor is more than two years older than such person . . . ." This statute has been changed since the time of the defendant's crimes in ways that are irrelevant to this appeal. General Statutes § 53a-72a provides in relevant part: "SEXUAL ASSAULT in the third degree: class D felony, (a) A person is guilty of sexual assault in the third degree when such person (1) compels another person to submit to sexual contact (A) by the use of force against such other person or a third person, or (B) by the threat of use of force against such other person or against a third person, which reasonably causes such other person to fear physical injury to himself or herself or a third person . . . ." General Statutes § 53-21 provides: "injury or risk of injury to, or IMPAIRING MORALS OF, CHILDREN. Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both." With regard to the convictions of risk of injury to a child, the defendant challenged the trial court's instruction to the jury allowing it to consider both alternative methods of violating § 53-21 although the state had charged him only with perpetrating acts on the victims, not with creating a situation inimical to their welfare. Despite this deficiency, the Appellate Court held, in light of the jury's verdicts as to the counts alleging sexual assault, that "the jury must necessarily have found that the defendant violated § 53-21 by doing acts directly perpetrated on the person of each minor victim," the method of violating § 53-21 under which he had been charged. State v. Dinoto, 32 Conn. App. 217, 223, 628 A.2d 618 (1993). That part of the Appellate Court decision is not before this court on certification. Because of its earlier concession before the Appellate Court that no evidence of a threat, whether explicit or implied, had been made, we would not allow the state to argue to us that evidence of an implied threat could be inferred from the use of force. The trial court also charged the jury in connection with the crime of sexual assault in the third degree as follows: "In order to convict the defend ant of the crime of sexual assault in the third degree the State must prove each of the following elements beyond a reasonable doubt. Sexual contact had taken place and the defendant compelled the victim to submit to such sexual contact by the use of force or by the threat of such use of force. "Now, if you find that the required sexual contact has been proved beyond a reasonable doubt you must find that the defendant used force or also threatened the use of force against the victim. Use of force means either the use of, it means the use of actual physical force or superior physical strength against the victim." The state never sought certification from the judgment of the Appellate Court reversing the defendant's conviction of this offense.

Per Curiam. The judgment is affirmed.

Freedman, J. This matter is before us on remand from the Supreme Court. Previously, in Stamford v. Kovac, 31 Conn. App. 599, 626 A.2d 792 (1993), we concluded that the trial court had improperly accepted the report of the attorney trial referee and had rendered judgment against the defendant without allowing oral argument on the defendant's exceptions and objections to the initial and supplemental reports of the referee. The Supreme Court granted certification, reversed our judgment and remanded the case to this court for consideration of the remaining issues raised by the defendant. Stamford v. Kovac, 229 Conn. 627, 642 A.2d 1190 (1994). This is an action brought by the plaintiff seeking to enjoin claimed violations of the Inland Wetlands and Watercourses Act, General Statutes § 22a-36 through 22a-45, as well as local regulations that implement that act. The plaintiff claimed that the defendant had illegally dumped fill and debris in regulated areas without a permit. After a trial before an attorney trial referee, the referee found in favor of the plaintiff and recommended injunctive relief and an award of attorney's fees and costs. The trial court accepted the report of the attorney trial referee and rendered judgment thereon, and the defendant appeals. On appeal, the defendant claims that the trial court incorrectly (1) found a violation of the inland wetlands statute, (2) sustained the attorney trial referee's preclusion of testimony by certain expert witnesses, and (3) awarded costs, fees and expenses that included the overhead costs of the municipal enforcement agency and attorney's fees for services performed by salaried city attorneys. The attorney trial referee made the following findings of fact. The defendant owns property located at the southwest corner of Northwood Lane and Long Ridge Road in Stamford, which includes a well defined watercourse and extensive wetlands area. On August 28, 1985, the defendant filed an application with the Stamford environmental protection board (EPB) for a permit to construct a dwelling on his property. As part of the application, the defendant submitted certain plans prepared by a surveyor, Fiorenzo Corbo, and a soil scientist, Thomas W. Pietras, of Soil Science Services. According to these plans, the wetlands were delineated by a yellow north to south line (the Pietras line) and all property to the west of the yellow line constituted wetlands. These plans were presented to the plaintiff by the defendant and were represented by the defendant to be a correct delineation of the wetlands. In reliance on these plans, the plaintiff approved the defendant's application with several conditions. The attorney trial referee further found that on several occasions prior to February 2, 1987, the defendant, "without legal authority," performed grading and filling operations on said wetlands and was instructed by the plaintiff to cease such operations. The defendant then submitted to the plaintiff a proposed revised plan that showed the eastern edge of the wetlands in the same location as the north to south yellow line shown on the plans prepared by Corbo and Pietras, and indicated all of the wetlands as a crosshatched area on the plan. The revised plan showed that all proposed construction was to be confined to uplands at a distance greater than twenty-five feet from the wetlands. On the basis of the revised plan, and in reliance on the twenty-five foot buffer shown thereon, the plaintiff determined that no EPB permit was required. The attorney trial referee found that prior to October 20,1987, the defendant permitted up to 500 cubic yards of fill to be deposited in the wetlands and in the established twenty-five foot buffer area, in violation of the plaintiff's wetlands regulations and in violation of the terms of the application submitted by the defendant. This condition was discovered in an October 20, 1987 staff inspection by the plaintiff. On October 23, 1987, the plaintiff issued a cease and desist order to the defendant and, on October 29,1987, a show cause hearing was conducted before the EPB. The EPB ordered that the cease and desist order continue in effect as modified to require the defendant to perform certain specified corrective action. On November 16, 1987, a staff inspection by the EPB revealed that, with the permission of the defendant, County Excavating and Blakeslee Arpaia and Chapman were dumping and grading materials on the wetlands and buffer area adjacent to the wetlands. Prior to December 2, 1987, the defendant removed or caused to be removed some but not all of the fill from the wetlands area. On December 17, 1987, the plaintiff received from the defendant a revised report prepared by J. L. Jarvis of Soil Science Services showing a new wetlands line (the Jarvis line) located to the west of the original wetlands line. The wetlands line on this report reduced the amount of wetlands to the defendant's benefit. The attorney trial referee found that the Jarvis line was not accurate and did not reflect a natural wetlands line. Rather, it reflected conditions after the performance of unauthorized and unlawful dumping, filling and grading in the wetlands by the defendant and, thus, did not reflect the original, natural wetlands. The attorney trial referee found that the natural wetlands line was the Pietras line. On the basis of these facts, the referee recommended that an injunction issue against the defendant. The trial court accepted the report of the attorney trial referee and rendered judgment thereon. I The defendant first asserts that the trial court incorrectly found that he violated the Inland Wetlands Act. The defendant claims that due to a discrepancy between the dates of the finished survey and Corbo's field notes, the Corbo survey was incorrect. Therefore, the defendant argues, the Corbo survey should not have been the basis for determining that the Inland Wetlands Act had been violated. The plaintiff argues, however, that the court properly determined that the yellow line on the Corbo survey correctly depicted the wetlands. We agree with the plaintiff. "In addressing a challenge to the facts found by the trial referee and adopted by the trial court, this court's function is to determine whether those findings were clearly erroneous. Practice Book § 4061. Because the resolution of conflicting factual claims falls within the province of the trial court, we can reverse the judgment only if the findings are clearly erroneous. Nor'easter Group, Inc. v. Colossale Concrete, Inc., 207 Conn. 468, 473, 542 A.2d 692 (1988). We cannot retry the facts or pass on the credibility of the witnesses. Id." Plikus v. Plikus, 26 Conn. App. 174, 177, 599 A.2d 392 (1991). The record in the present case supports the attorney trial referee's finding that the Corbo survey rather than the Jarvis survey accurately showed the wetlands on the defendant's property. At trial, soil scientist Kenneth Stevens testified that both the Pietras and the Jarvis lines were correct but that "the wetland line prepared by Jamie Jarvis was prepared because of fill on top of wetlands." We conclude, on the basis of this testimony, that the attorney trial referee's finding that the wetlands line on the Corbo survey correctly depicted the wetlands was not clearly erroneous. The defendant also asserts that the trial court improperly applied a twenty-five foot buffer to the wetlands when the regulation providing for such a buffer was first adopted by the EPB on June 5,1989, almost two years after the claimed violation. The plaintiff posits that the defendant had acquiesced in the requirement of the twenty-five foot buffer as a condition of approval. The trial court's memorandum of decision on the defendant's objections to the attorney trial referee's report noted that the defendant had acquiesced with regard to the twenty-five foot buffer. The record adequately supports this conclusion. In October, 1985, the defendant's application was granted with conditions, one of which was that a modified plan that located the house twenty feet from the regulated wetlands be submitted prior to the issuance of a permit. Subsequently,, by letter dated August 20, 1986, the defendant was informed that if all activities took place outside of the twenty-five foot buffer, no permit would be required. In February, 1987, the defendant submitted a revised house location plan showing the twenty-five foot buffer. On the basis of this evidence, we cannot say that the trial court's findings were clearly erroneous. II The defendant next claims that the trial court improperly sustained the attorney trial referee's preclusion, pursuant to Practice Book § 220 (D), of two expert witnesses, Dominick M. Schefiliti, a professional engineer and land surveyor, and Robert T. Hamilton, a profes sional land surveyor. The defendant admitted at trial that no formal disclosure of these experts had been made, but argues that they nonetheless should have been permitted to testify. The trial court found that no good cause was shown at trial that would justify allowing these experts to testify. We agree. We recently "note[d] the emphatic tone of the final sentence of § 220 (D) which reads in relevant part that if there has not been a compliance with this section 'such expert shall not testify except in the discretion of the court for good cause shown.' (Emphasis added.)" Sung v. Butterworth, 35 Conn. App. 154, 159, 644 A.2d 395 (1994). " 'Neither § 220 (D) nor the cases interpreting it define what constitutes "good cause." The language of the rule, however, makes clear that the trial court is to exercise broad discretion in determining whether good cause exists in a given case.' Berry v. Loiseau, [223 Conn. 786, 800, 614 A.2d 414 (1992)]. In determining whether the trial court has abused its discretion, an appellate court should entertain every reasonable presumption in favor of the trial court's decision." Knock v. Knock, 224 Conn. 776, 782-83, 621 A.2d 267 (1993). On the basis of the record before us, we conclude that the trial court correctly sustained the attorney trial referee's preclusion of these expert witnesses. The attorney trial referee noted that had the defendant intended to call Schefiliti as an expert witness, he should have filed a motion for extension of time to disclose an expert. Because no such motion was made, and because counsel for the defendant was apprised in 1989 of the subject of Schefiliti's testimony, the attorney trial referee precluded Schefiliti from testifying. Hamilton was called as a witness to testify regarding a survey done on February 15, 1991, the purpose of which was to "locate the top and bottom of the existing fill lines." Hamilton was never disclosed as an expert, however, prior to March 27, 1991. Although recognizing the importance of the proposed testimony, the attorney trial referee precluded Hamilton from testifying because of noncompliance with § 220. On the basis of the foregoing, the trial court correctly sustained the attorney trial referee's preclusion of testimony by both expert witnesses. Ill The defendant's final argument is that the trial court improperly awarded EPB staff costs of $4618.65 and counsel fees of $12,406.25 to the plaintiff, pursuant to General Statutes § 22a-44 (b). In Conservation Commission v. Price, 5 Conn. App. 70, 74, 496 A.2d 982 (1985), we stated that "an assessment of attorney's fees [pursuant to General Statutes § 22a-44 (b)] is discretionary with the court, by the statute's express terms." We further noted that "it is clear from the express terms of General Statutes § 22a-44 (b) that costs and fees were intended 'to restore the affected wetlands or watercourses to their condition prior to the violation, whenever possible,' and to place the financial burden of restoration upon the violator. " (Emphasis added.) Id., 75. The defendant argues that the trial court incorrectly interpreted the phrase "all costs, fees and expenses" to apply to "the 'overhead' of the agency, including supplies." The plaintiff counters that the court properly entered this award pursuant to General Statutes § 22a-44 (b), which provides in relevant part that "[a]ll costs, fees and expenses in connection with such action shall be assessed as damages against the violator together with reasonable attorney's fees which may be allowed, all of which shall be awarded to the commissioner, municipality, district or person which brought such action." "If the language of a statute is clear and unambiguous, its meaning is not subject to construction. . . . When application of the statute to a particular situa tion reveals a latent ambiguity in seemingly unambiguous language, however, we turn for guidance to the purpose of the statute and its legislative history to resolve that ambiguity." (Citation omitted.) University of Connecticut v. Freedom of Information Commission, 217 Conn. 322, 328, 585 A.2d 690 (1991). In the present case, we conclude that the language of § 22a-44 (b) is clear and unambiguous; thus, there is no need to review its legislative history. The statute does not define the terms "costs," "fees" and "expenses." "Where a statute does not define a term, it is appropriate to look to the common understanding expressed in the law and in dictionaries." Doe v. Manson, 183 Conn. 183, 186, 438 A.2d 859 (1981). Because the statute does not define these terms, they must be given their plain and ordinary meanings. Id.; see also Bolt Technology Corp. v. Commissioner of Revenue Services, 213 Conn. 220, 228, 567 A.2d 371 (1989). The word "costs" is defined in Black's Law Dictionary (6th Ed. 1990) as "[a] pecuniary allowance, made to the successful party (and recoverable from the losing party), for his expenses in prosecuting or defending an action or a distinct proceeding within an action." The word "fee" is defined as "[a] fixed charge or perquisite charged as recompense for labor; reward, compensation, or wage given to a person for performance of services or something done or to be done." "Expense" is defined as "[a]n outlay; charge; cost; price. The expenditure of money, time, labor, resources and thought." We conclude that the phrase "costs, fees and expenses" in § 22a-44 (b) includes all direct costs, fees and expenses incurred by the agency in connection with an action brought to restrain a continuing violation of the Inland Wetlands and Watercourses Act. Here, the attorney trial referee's award of $4618.65 for "EPB staff costs" was accepted by the trial court. The record reveals that this amount was calculated by taking the employees' hourly rates, adding to it the hourly cost of the benefits received by the employees, and multiplying that amount by the number of hours that the employees worked on this matter. To this amount was added a fee for copying or document preparation. On the basis of the foregoing, and considering the policy of § 22a-44 (b) to "place the financial burden of restoration upon the violator"; Conservation Commission v. Price, supra, 5 Conn. App. 74; we conclude that these direct costs, fees and expenses are recoverable pursuant to § 22a-44 (b). Therefore, the defendant's claim must fail. The defendant also claims that any award of counsel fees in this case was an abuse of discretion as the attorneys for the plaintiff were salaried city attorneys. As the trial court noted, however: "There is nothing in § 22a-44 which countenances any distinction between fees paid a salaried employee and those paid an outside attorney at a specific hourly rate." In Benavides v. Benavides, 11 Conn. App. 150, 526 A.2d 536 (1987), we held that in family matters, the prevailing party may be awarded counsel fees even when that party is represented without fee by a nonprofit legal services organization. We noted in Benavides that "[a] party should not be encouraged to litigate under the assumption that no counsel fee will be awarded in favor of the indigent party represented by public legal services . . . ." Id., 154. Similarly, here, the defendant should not be encouraged to pursue the defense of his claims under the assumption that he will not be required to pay the fees of the plaintiffs attorney. The defendant additionally argues that because of the previous action qr inaction on the part of the plaintiffs counsel, resulting in the failure to settle the case and a "horrendous trial experience," the award of attorney's fees to the plaintiff was an abuse of discretion. The trial court noted that, even if the defendant's representations are true, there was no evidence that the plaintiff's failure to settle the case was "done other than in the client's best interest." On the basis of the record before us, we cannot say that the award of counsel fees to the plaintiff was an abuse of discretion. See Conservation Commission v. Price, supra, 5 Conn. App. 74. The judgment is affirmed. In this opinion the other judges concurred. Although there is no specific finding by the attorney trial referee as to the date the application was approved, the record reveals that it was approved in October, 1985. Specifically, the defendant challenges the attorney trial referee's conclusion that the yellow line on the Corbo survey correctly depicted the wetlands because the yellow line was put on the survey on June 19, 1985, whereas Corbo's notes, which were the basis for the yellow line, were dated June 29, 1985. Stevens testified as follows: "Q. Let me rephrase. Today, as you sit here, is it your belief that Mr. Pietras was correct, that as of the date of his report in 1985, the wetland line shown in lot D was the correct line between wetland soils and upland soils? "A. Yes. "Q. And is it your opinion, as you sit here today, based upon your experience, based upon your observation of the events that you just discussed, that the wetland line prepared by Jamie Jarvis was prepared because of fill on top of the wetlands? "A. Yes." The memorandum of decision states the following: "The defendant next claims that no requirement for a twenty-five foot buffer existed and therefore any fill that was deposited within twenty-five feet of the wetland was done so lawfully. The simple answer to this is that the twenty-five foot buffer was made an express condition of the approval issued by the plaintiff to the defendant on August 20,1986. The record is clear that the defendant acquiesced in this condition when he commenced work on the land in accordance with the approval issued." Practice Book § 220 (D) provides in pertinent part: "[A]ny plaintiff expecting to call an expert witness at trial shall disclose the name of that expert, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion, to all other parties within 60 days from the date the case is claimed to a trial list. Each defendant shall disclose the names of his or her experts in like manner within 120 days from the date the case is claimed to a trial list. ." The attorney trial referee noted that "the most germane issue to the case" was where the correct line was located based on the flags placed by the soil scientist. The referee then stated: "It was the issue in 1985, it was the issue in 1987, and it certainly was the issue when this case was brought in 1989. And counsel for the defendant in 1989 could well have been apprised of the fact that this was going to be the key issue. The way to go around § 220 is . . . [t]o ask the court by appropriate short calendar motion for the late filing of an expert report and the courts are generally very lenient about it. But, the very purpose of § 220 is just this: That a witness can't be hired the week of the trial without the court's permission and put forward without adequate opportunity of the other side to have their own expert, and it's trial by ambuscade." The attorney trial referee stated: "[I]t may very well be that the evidence that this witness has to give is very pertinent to the decision of the case. But a trial having begun on February 13, and the witness having done his work on February 15, and it being disclosed at this time, on March 27, is just out of line with the compliance with disclosure, and with § 220." General Statutes § 22a-44 (b) provides: "Any person who commits, takes part in, or assists in any violation of any provision of sections 22a-36 to 22a-45, inclusive, including regulations adopted by the commissioner and ordinances and regulations promulgated by municipalities or districts pursuant to the grant of authority herein contained, shall be assessed a civil penalty of not more than one thousand dollars for each offense. Each violation of said sections shall be a separate and distinct offense, and, in the case of a continuing violation, each day's continuance thereof shall be deemed a separate and distinct offense. The superior court, in an action brought by the commissioner, municipality, district or any person, shall have jurisdiction to restrain a continuing violation of said sections, to issue orders directing that the violation be corrected or removed and to assess civil penalties pursuant to this section. All costs, fees and expenses in connection with such action shall be assessed as damages against the violator together with reasonable attorney's fees which may be allowed, all of which shall be awarded to the commissioner, municipality, district or person which brought such action. The moneys collected pursuant to this section shall be used by the commissioner of environmental protection, to restore the affected wetlands or watercourses to their condition prior to the violation, wherever possible." The trial court found that "the terms 'costs and expenses' are easily broad enough to support the referee's award of actual costs incurred by the environmental protection board in paying for its personnel, employee benefits and supplies." Specifically, the record indicates that the figure of $4618.65 was arrived at by adding the total cost of the salary and benefits of Richard Talamelli, environmental planner for the city of Stamford, EPB, and David Emerson, executive director of the EPB, with the cost of copying and document preparation at the EPB. According to the record, the total cost for the salary and benefits of Talamelli was $4063.04 and the total cost for the salary and benefits of Emerson was $288.61. Additionally, the amount charged for copying and document preparation was $267. The total amount was $4618.65.

Per Curiam. The judgment is affirmed and the case is remanded for the purpose of setting new law days.

The defendant's petition for certification for appeal from the Appellate Court, 35 Conn. App. 173 (AC 12008), is denied.

Peters, C. J. The dispositive issue in this appeal is whether General Statutes § lA-lMa imposes liability on the lessor of a motor vehicle for the tortious operation of that motor vehicle by a person who is not an "authorized driver" within the terms of the lease agreement. The plaintiff, Joseph Pedevillano, brought an action claiming that he had sustained serious personal injuries as a result of the negligent and reckless con duct of the defendant Jose Bryon (driver), who was driving a car that had been leased from the defendant Rental Car Resources, Inc. (lessor). After a default by the driver and a hearing to determine damages, a jury returned a verdict for the plaintiff against the driver in the amount of $354,000. The trial court rendered a judgment accepting the jury's verdict, from which the driver has not appealed. The trial court also, however, granted a motion for summary judgment in favor of the lessor. The plaintiff appealed to the Appellate Court from the granting of the motion for summary judgment, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm the judgment of the trial court. The relevant facts are undisputed. The driver caused serious personal injury to the plaintiff while operating a vehicle that the lessor had rented to Miguel Santana. Santana had procured the vehicle, either for his own use to replace a disabled vehicle or for the driver's use at the driver's request. The driver was neither a spouse nor an employer of Santana, nor were they jointly engaged in legal business activities. The lease agreement between Santana and the lessor had an express provision defining who would qualify as an "authorized driver" under the lease. The plaintiff advances four contentions in his brief in support of his argument for reversal of the trial court's granting of the lessor's motion for summary judgment. He maintains that: (1) literally construed, § 14-154a imposes unconditional liability on a lessor for injuries caused by any user of the lessor's vehicles; (2) liberally construed in light of its remedial purposes, § 14-154a imposes liability on a lessor for injuries caused by a person who uses the vehicle with the permission of an authorized lessee; (3) regardless of the relationship between the driver and the lessor, the plaintiff has a right to recover for his injuries because § 14-154a automatically makes the plaintiff a third party beneficiary of the lease agreement; and (4) the lessor was not entitled to summary judgment because the supporting affidavits leave unresolved certain questions of fact that make summary judgment inappropriate. We are unpersuaded. Our assessment of the plaintiff's various claims under § 14-154a must start with the text of that statute. It provides, in to to, that "[a]ny person renting or leasing to another any motor vehicle owned by him shall be liable for any damage to any person or property caused by the operation of such motor vehicle while so rented or leased, to the same extent as the operator would have been liable if he had also been the owner." We have repeatedly stated our view of the purpose of the statute. "[It] cannot be regarded otherwise than as an expression of legislative judgment as to the extent—beyond the limitations of the general principles of respondeat superior and the 'family-car doctrine'—to which the owner of a motor vehicle which he entrusts to another should be liable for the acts of the latter. . . . We have consistently construed the statute as imposing on one who rents or leases a motor vehicle to another the same liability as that of its operator, provided the vehicle, at the time in question, is being operated by one in lawful possession of it pursuant to the terms of the contract of rental. " (Citations omitted; emphasis added; internal quotation marks omitted.) Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 280, 284, 472 A.2d 306 (1984); Fisher v. Hodge, 162 Conn. 363, 369, 294 A.2d 577 (1972); Graham v. Wilkins, 145 Conn. 34, 37, 138 A.2d 705 (1958); Farm Bureau Mutual Automobile Ins. Co. v. Kohn Bros. Tobacco Co., 141 Conn. 539, 542, 107 A.2d 406 (1954); Connelly v. Deconinck, 113 Conn. 237, 240, 155 A. 231 (1931); Levy v. Daniels' U-Drive Auto Renting Co., 108 Conn. 333, 336, 143 A. 163 (1928); Marshall v. Fenton, 107 Conn. 728, 731, 142 A. 403 (1928). In light of this long-standing interpretation of § 14-154a, we may readily dispose of the plaintiffs broad contention that the statute imposes unlimited liability on the lessor for any injury caused by any motor vehicle that it owns. If the plaintiff were correct, a lessor would be responsible for the tortious misconduct of a thief who stole a vehicle from the lessor's parking lot. Indeed, any automobile dealer, if the dealership engaged in lease as well as in sales transactions, might be liable for tortious misconduct arising out of the theft of any car on its sales lot. Nothing in the language of the statute, its statutory history, or our prior case law, suggests that the statute extends that far. Our decision in Connelly v. Deconinck, supra, 113 Conn. 240, is directly to the contrary. At oral argument in this court, the plaintiff acknowledged that this argument is untenable. We are equally unpersuaded that, even liberally construed, § 14-154a imposes unlimited liability on any lessor that voluntarily entrusts a motor vehicle to a lessee. In effect, the plaintiff argues that, under the statute, any voluntary entrusting confers upon the lessee the unconditional authority to permit any person of the lessee's choice to drive the vehicle. As a consequence, according to the plaintiff, any voluntary entrusting imposes on the lessor the duty to pay damages for any personal injuries caused by any person who drives the vehicle with the lessee's consent. The plaintiffs argument is necessarily predicated on the proposition that the lessee's scope of authority and the lessor's statutory liability are determined by the statute without regard to the terms of the lease agreement pursuant to which the voluntary entrusting occurred. There is no binding authority for that proposition. The statute does not, in its terms, preclude a lessor from imposing reasonable restrictions on the identity of those to whom it is willing to entrust its property and for whose conduct it is willing to assume risk. In the cases in which we have found a basis for enforcing statutory liability, the tortfeasor invariably has been found to have been a person who had possession of the vehicle in accordance with the lease agreement. Gionfriddo v. Avis Rent A Car System, Inc., supra, 192 Conn. 284; Fisher v. Hodge, supra, 162 Conn. 367-68; Graham v. Wilkins, supra, 145 Conn. 37-41; Farm Bureau Mutual Automobile Ins. Co. v. Kohn Bros. Tobacco Co., supra, 141 Conn. 541; Connelly v. Deconinck, supra, 113 Conn. 238-39; Levy v. Daniels' U-Drive Automobile Renting Co., supra, 108 Conn. 334. It bears emphasis, however, that the lessor's right to limit the identity of authorized drivers does not, in light of the purpose of § 14-154a, relieve the lessor of liability to third parties for misconduct by such authorized drivers, even when such misconduct violates express contractual restrictions on the use of the vehicle. See Gionfriddo v. Avis Rent A Car System, Inc., supra, 284. As an alternative to his argument relying on entrusting, the plaintiff contends that, by operation of law, § 14-154a confers upon him the status of a common law third party beneficiary of the lease agreement between the lessor and Santana without regard to the specific limitation on authorized drivers contained in that agreement. We disagree. As a matter of contract law, the rights of a third party beneficiary are necessarily circumscribed by the terms of the contract that the beneficiary seeks to enforce. See, e.g., Knapp v. New Haven Road Construction Co., 150 Conn. 321, 325, 189 A.2d 386 (1963); Colonial Discount Co. v. Avon Motors, Inc., 137 Conn. 196, 201, 75 A.2d 507 (1950). The plaintiff has cited no authority to indicate that the legislature intended, by enacting § 14-154a, to enlarge a beneficiary's rights in the manner he has suggested. Finally, we are unpersuaded by the plaintiff's argument that, if his right to recovery depends upon a construction of the terms of the lease agreement, there is an unresolved question of fact whether the driver in this case was an "authorized driver" as that term was defined in the lease agreement. The lease agreement defined the persons who might lawfully operate the leased vehicle with Santana's permission: Santana's spouse, employer or "co-workers if engaged in business related activities with the Renter"; a parking attendant; or a person using the car "during an emergency situation." See footnote 2. The plaintiff relies on the driver's affidavit as raising a factual question about whether Santana and the driver could be considered coworkers. Because the driver, in that affidavit, describes himself and Santana as being jointly engaged in illegal drug activities, the plaintiff maintains that they were "engaged in business related activities" and therefore were coworkers within the terms of the lease agreement. We disagree. An implicit limitation on the term "business related activities" is that such activities must be legal activities rather than illegal activities. Thus construed, as the trial court held, the "authorized driver" provision in the lease agreement entitled the lessor to summary judgment in this case. The judgment is affirmed. In this opinion the other justices concurred. General Statutes § 14-154a provides: "Liability of owner for damage caused by rented or leased car. Any person renting or leasing to another any motor vehicle owned by him shall be liable for any damage to any person or property caused by the operation of such motor vehicle while so rented or leased, to the same extent as the operator would have been liable if he had also been the owner." Section 4 of the lease agreement provides: "authorized drivers: The Renter and the following validly licensed individuals with Renter's permission ('Authorized Drivers') may operate the Vehicle: Renter's spouse, employer or co-workers if engaged in business related activities with the Renter, persons parking the Vehicle at commercial establishments or persons during an emergency situation. All other additional Authorized Drivers must appear at the time of rental and be named on the face of this Agreement. All Authorized Drivers must have a valid drivers license and be at least 21 years old. Other qualifications and charges may be in place at the time of rental." We recognize that, in Fisher v. Hodge, supra, 162 Conn. 367-68, in which we concluded that the tortfeasor was a driver who had authority to drive the car within the terms of the lease agreement, we went on to state that § 14-154a imposes liability on a lessor "regardless of the provisions of the rental contract restricting the use of the automobile to specified individuals." Id., 368-69. This dictum is not consistent with our decisions in preceding or subsequent cases, and it is hereby overruled. We note that the plaintiff does not contend that the definition of the class of "authorized drivers" in the lease agreement was either unconscionable in its inception or invoked by the lessor in bad faith.

Landau, J. The defendant, David William Salerno, appeals from a judgment of conviction, rendered after a jury trial, of criminal attempt to possess a narcotic substance with intent to sell in violation of General Statutes § 53a-49 and 21a-277 (a). On appeal, the defendant claims that the trial court (1) improperly denied his motion to dismiss the prosecution on the grounds of "outrageous governmental conduct," and (2) abused its discretion in denying his motions for a mistrial and for a new trial. We affirm the judgment of the trial court. The jury reasonably could have found the following facts. On February 17,1992, the defendant purchased, for $8000 and a promise to pay an additional $7000, what he believed was one kilogram of cocaine from a Danbury police operative. His arrest on that day was the culmination of a reverse sting operation conducted by the police. In November, 1991, the defendant became friendly with Johnny Soto, who accompanied Diego Builes, a drug dealer, on his cocaine delivery rounds. The defendant was a customer of Builes. In February, 1992, the defendant contacted Soto and asked for his help in obtaining some cocaine. The defendant did not know that Soto was an informant for Detective Daniel Trompetta of the Danbury police. Soto told the defendant that he knew a cocaine supplier named A1 (Alfonso Estubinian, another informant for the Danbury police) and it was agreed among the parties that the defendant would purchase one kilogram of cocaine from Estubinian for $9000 and a promise to pay another $6000. The delivery was to be made on February 15, 1992, at the parking lot of the Ramada Inn in Danbury. Soto and the defendant met Estubinian, who was wearing a transmitter that was monitored by the police, at the agreed time and place, but the transaction was not completed because the defendant did not have the $9000. Another meeting was scheduled for February 17. On February 17, Soto and the defendant again met and drove in separate vehicles toward the meeting place. Before arriving there, the defendant joined Soto in his car so that they could arrive together. Estubinian was outfitted with a transmitter and the police again monitored and recorded the conversation. The defendant showed Estubinian $8000 and Estubinian went to retrieve the kilogram of cocaine, signaling to the police that the deal was imminent. When Estubinian handed the package to the defendant, the police converged on the scene, arrested the defendant with the kilogram on his lap, and seized the money. The kilogram was flour packaged as narcotics. At trial, the defendant argued entrapment as a defense. He maintained that the police had induced him to commit the crime and that he was not otherwise predisposed to being an upper level drug dealer. The jury, instructed by the trial court on the defense of entrapment, returned a conviction and this appeal followed. I The defendant first claims that the trial court improperly declined to dismiss the prosecution against him on the grounds of "outrageous governmental conduct." This assertion subsumes two contentions: (1) that the actions of the police were so outrageous as to be fundamentally unfair and therefore a denial of federal constitutional due process; and (2) that the actions of the police were so outrageous as to be fundamentally unfair and therefore a denial of state constitutional due process. On October 28,1992, during the state's case-in-chief, the defendant moved to dismiss the prosecution against him. The basis of the defendant's due process arguments was that the charges against him were the result of illegal conduct by state law enforcement officials. The state responded that the actions of the police in this case were not fundamentally unfair, and that although the defendant was entitled to seek suppression of evidence, he was not entitled to a dismissal of the charges. Initially, the trial court denied the motion to dismiss as premature because the state had yet to rest its case. The court did, however, discuss State v. Fleming, 198 Conn. 255, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986), and stated that the appropriate remedy for the defendant in this case would be a motion to suppress. The defendant did not question the court's comments. At the conclusion of the state's case-in-chief, the defendant renewed his motion to dismiss, again asserting outrageous governmental conduct. The trial court ruled that "[t]he court has heard a lengthy argument on this particular proposition before. And while it indicated it was not the proper time to make it, this certainly is. And the court again rules that the motion to dismiss is denied." The state asserts that the record is inadequate for review of this issue. We agree. It is the responsibility of the appellant to provide this court with an adequate record for review. Practice Book § 4061; State v. Rosedom, 34 Conn. App. 141, 144, 640 A.2d 634 (1994). A lack of pertinent factual findings and legal conclusions will render a record inadequate. State v. Rios, 30 Conn. App. 712, 719-20, 622 A.2d 618 (1993) (O'Connell, J., concurring). Similarly, ambiguity in a record can render it inadequate. State v. Murray, 225 Conn. 524, 527, 624 A.2d 377 (1993). After reviewing the record, we cannot discern the reasoning of the trial court when it denied the motion to dismiss. The trial court's discussion of Fleming suggests that its ruling was based on its interpretation and application of that decision. On the other hand, the trial court's comment that it "has heard lengthy argument on [the outrageous governmental conduct] proposition before" suggests that the court ruled on the substance of the motion. There are, however, no articulated factual findings or legal conclusions regarding outrageous governmental conduct. We disagree with the defendant's contention that "it is abundantly clear" that the trial court "obviously perceived the issue raised by his motion as a suppression issue going to the legality of his arrest." It is just as clear from the trial court's comments that it may have ruled on the substance of the motion. This court's role " 'is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court.' " State v. Hoeplinger, 27 Conn. App. 643, 647, 609 A.2d 1015, cert. denied, 223 Conn. 912, 612 A.2d 59 (1992). The record regarding the defendant's claim of outrageous governmental conduct is inadequate because the basis of the challenged ruling is ambiguous; see State v. Murray, supra, 225 Conn. 527; and because it is devoid of necessary factual findings and legal conclusions. "When our rules of practice are not followed, and the record is not rectified, we are left to guess or speculate as to the existence of a factual predicate." State v. Rosedom, supra, 34 Conn. App. 145-46. As it is not the function of this court to find facts, we decline to review this claim. II The defendant's second claim is that the trial court improperly denied his motions for a mistrial and a new trial. The following facts are necessary for the resolu tion of this claim. During cross-examination by the state, the defendant testified that he did not know Builes and had never met him. He further testified that he had not been with Montenaro in a pickup truck at a McDonald's restaurant off exit five of Interstate 95 on December 4, 1991, and that he had not left that truck, or approached a car occupied by Soto and Builes or taken possession of a package from Builes. In rebuttal, the state recalled Trompetta who testified that on December 4,1991, while assisting Bridgeport police officers in a surveillance of McDonald's off exit five of Interstate 95, he had observed a car occupied by Soto and Builes enter the parking lot and park next to a pickup truck. The truck was occupied by three males, one who Trompetta believed was Montenaro and another, the defendant. On cross-examination, Trompetta testified that he personally did not know who owned the truck, but that the Bridgeport police had informed him that it belonged to Montenaro. Trompetta further responded that he knew what Montenaro looked like and described him to the jurors. He then testified that he saw someone in the truck "who the Bridgeport police told me was Gary Montenaro." The defendant moved to have Trompetta's testimony stricken. The trial court granted the defendant's motion and immediately gave a cautionary instruction to the jury. Outside of the presence of the jury, the defendant orally moved for a mistrial, claiming that the damage done by Trompetta's stricken testimony could not be "cleansed" from the minds of the jurors by the instruction. The court denied this motion. The defendant neither requested that a second curative instruction be included in the final charge to the jury, nor took an exception to the absence of any such instruction. "Due process requires that a criminal defendant be given a fair trial before an impartial jury. U.S. Const., amend XIV; Conn. Const., art. I, § 8; State v. Brigandi, 186 Conn. 521, 542, 442 A.2d 927 (1982). A new trial, however, is not required every time ' "a juror has been placed in a potentially compromising situation . . . [because] it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote." ' Rushen v. Spain, 464 U.S. 114, 118, 104 S. Ct. 453, 78 L. Ed. 2d 267 (1983), quoting Smith v. Phillips, 455 U.S. 209, 217, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982). "The general rule in Connecticut is that a mistrial is granted only where it is apparent to the court that as a result of some occurrence during trial a party has been denied the opportunity for a fair trial. State v. Hancich, 200 Conn. 615, 624-25, 513 A.2d 638 (1986); State v. Gaston, 198 Conn. 490, 495-96, 503 A.2d 1157 (1986); State v. Ubaldi, 190 Conn. 559, 562, 464 A.2d 1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983); State v. Gooch, 186 Conn. 17, 25, 438 A.2d 867 (1982); State v. Turcio, 178 Conn. 116, 143, 422 A.2d 749 (1979), cert. denied, 444 U.S. 1013, 100 S. Ct. 661, 62 L. Ed. 2d 642 (1980). The trial court enjoys wide discretion in deciding whether a mistrial is warranted; Speed v. DeLibero, 215 Conn. 308, 315, 575 A.2d 1021 (1990); State v. Nowakowski, 188 Conn. 620, 624, 452 A.2d 938 (1982); and its evaluation as to events occurring before the jury is to be accorded the highest deference. United States v. Grasso, 600 F.2d 342, 343 (2d Cir. 1979). Every reasonable presumption will be given in favor of the trial court's ruling; State v. Rodriguez, 10 Conn. App. 176, 179, 522 A.2d 299 (1987); because the trial court, which has a firsthand impression of the jury, is in the best position to evaluate the critical question of whether the juror's or jurors' exposure has prejudiced a defendant. See, e.g., United States v. Wiley, 846 F.2d 150, 157 (2d Cir. 1988); State v. Asherman, 193 Conn. 695, 736, 478 A.2d 227, cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985). It is only when an abuse of discretion is manifest or where an injustice appears to have been done that a reversal will result from the trial court's exercise of discretion. State v. Rodriguez, 210 Conn. 315, 326, 554 A.2d 1080 (1989); State v. Fleming, [supra, 198 Conn. 264]." State v. Harvey, 27 Conn. App. 171, 177-78, 605 A.2d 563, cert. denied, 222 Conn. 907, 608 A.2d 693 (1992). The trial court was well aware of the effect of Trompetta's testimony. It found, on the basis of its own observations, that the jurors were not "particularly attentive to, interested in or affected in any way by [Trompetta's] testimony." It nonetheless struck the testimony and instructed the jury to disregard any and all of Trompetta's testimony. The court was "satisfied that its curative instruction [had] in fact solved the problem." In the court's articulation directed to the defendant's motion for a new trial, it reiterated its earlier statement and stated that the court "also note[s] that the jury's reaction to the curative instruction was that two jurors nodded their heads less than enthusiastically on being told to disregard [Trompetta's testimony] and not to consider it in any way whatsoever. Assuming, arguendo, the existence of some prejudice from this testimony, any such prejudice was minimized, if not eliminated." The trial court occupied the best van tage point for assessing courtroom events. We, therefore, must afford great deference to its conclusions. We cannot say that the conduct at issue, in light of the curative measures administered by the court, so jeopardized the defendant's right to a fair trial that the trial court abused its discretion in denying his motion for a mistrial or for a new trial. The defendant's right to a fair trial was more than adequately protected and his claim to the contrary must fail. The judgment is affirmed. In this opinion the other judges concurred. General Statutes § 53a-49 (a) provides: "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: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (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." General Statutes § 21a-277 (a) provides in pertinent part: "Any person who . . . possesses with the intent to sell . a narcotic substance . for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned; and for second offense shall be imprisoned not more than thirty years and may be fined not more than one hundred thousand dollars, or be both fined and imprisoned . . . ." A reverse sting occurs when a suspected drug dealer is introduced to a police operative posing as a supplier of controlled substances who attempts to sell the dealer simulated narcotics. In his brief, the defendant claimed a third issue — that the actions of the police were so outrageous as to constitute entrapment as a matter of law. In his reply brief, in light of State v. Lee, 229 Conn. 60, 640 A.2d 553 (1994), he withdrew all statutory claims relating to "objective entrapment" or "entrapment as a matter of law." At the hearing, the defendant asserted that "[t]he claim is due process. It's based on fundamental fairness. And the gist of the claim . is over involvement of law enforcement in the illegal conduct. And — in other words, Your Honor, in a situation where the government or the state or law enforcement in essence places its imprimatur — its stamp of approval on conduct— involves the defendant into the situation and then ultimately makes an arrest." Salerno also pointed out that the cases on which his claim relied were decided "not on entrapment." Convicted of the crime of felony murder in connection with the death of an individual during the robbery of a package store, Fleming appealed to the Supreme Court claiming that the charges against him should have been dismissed because his arrest was illegal. The court held that an illegal arrest imposes no jurisdictional bar, under either the state or federal constitutions, to a defendant's subsequent prosecution where the fairness of that prosecution has not been impaired by that illegal arrest, and that State v. Licari, 153 Conn. 127, 214 A.2d 900 (1965), to the extent that it holds to the contrary, was overruled. The defendant baldly concludes that outrageous governmental conduct exists. Without the trial court's findings of fact, the defendant's claim of outrageous governmental conduct cannot be resolved without this court's finding facts drawn from the conflicting testimony of the several witnesses. The rules of practice offer assistance to the appellant in providing a reviewing court with an adequate record. See State v. Rios, supra, 30 Conn. App. 716-20. The defendant did not avail himself of this option. The trial court stated: "The motion is well taken. The jury will disregard it at this point. He is reporting hearsay. It's excluded and I'm directing you not to consider it — any part of it. And you're obligated to follow that instruction. It is ordered stricken. You will not consider it." The defendant, in his brief, alleges that "at the time Trompetta testified on the state's rebuttal case, he and the prosecutor deliberately led the court, the jury and the defense to believe that he was testifying based upon his own personal knowledge." In his reply brief, the defendant asserts that Trompetta's testimony was "offered with full advance knowledge on the part of either the prosecutor, or Trompetta, or both." The defendant, however, made no claim of prosecutorial misconduct at the time of trial. In fact, he stated to the trial court, "I didn't know if [the prosecuting attorney] knew [of Trompetta's lack of personal knowledge] or not when he put the witness on the stand." The defendant pressed no claim of prosecutorial misconduct at the time of trial; moreover, his present suggestion of prosecutorial misconduct is unsupported and speculative. He has suggested no exceptional circumstances to warrant departure from the general rule that limits appellate review to those issues on which the trial court has had an opportunity to rule. Knight v. Bourbeau, 194 Conn. 702, 704 n.3, 485 A.2d 919 (1984). The trial court ruled: "This evidence was [admitted] for the limited purpose of challenging the credibility of [the defendant] on a particular point. It is not an essential element of the case, to be sure. And the court is satisfied that its curative instruction has in fact solved the problem. At this point your motion for mistrial is denied." Prior to the verdict, on November 23,1992, the defendant filed a written motion for mistrial requesting that the trial court reconsider its denial of his oral motion for mistrial. This was denied in court on November 23,1992. On November 25, 1992, the defendant filed a motion for judgment of acquittal based on the theory of "legal impossibility" and "insufficiency of evidence." The trial court denied this motion on March 23, 1993. On November 25,1992, the defendant filed a motion for a new trial based on Trompetta's stricken testimony that repeated the reasons set forth in his written motion for mistrial. On April 29,1993, the defendant requested an articulation on his motion for a new trial. On July 27, 1993, the trial court filed its articulation, in which it reiterated its earlier denial of the motions for mistrial and stated: "[U]pon the objection by [the defendant] to the testimony of Detective Trompetta as hearsay, and hearing counsel fully on the objection, the court sustained it and immediately instructed the jury to disregard it. The court perceived no change in the facial expressions of any of the jurors much less any change in posture that might suggest that the individual members thereof were particularly attentive to, interested in or affected in any way by that testimony. The court is satisfied that it made no impression upon them whatsoever. It might also note that the jury's reaction to the curative instruction on being told to disregard the evidence and not to con sider it in any way whatsoever. Assuming, arguendo, the existence of some prejudice from this testimony, any such prejudice was minimized, if not eliminated." On August 6,1993, a hearing was held "[i]n view of the representation that no ruling was ever entered on the defendant's motion for a new trial." On September 17,1993, the trial court issued a memorandum of decision in which it reiterated its observations of the jury's reaction to the stricken testimony and the court's curative instruction, and denied the defendant's motion for a new trial.

Per Curiam. The judgment is affirmed.

Foti, J. The plaintiff appeals from the orders issued by the trial court incident to her motion to have the defendant adjudged in contempt, and from the denial of her requests for statutory interest and attorney's fees. On appeal, the plaintiff asserts that the trial court improperly (1) refused to find the defendant in contempt, (2) failed to assess statutory interest against the defendant, and (3) disallowed attorney's fees. We reverse the judgment in part and remand the case for a new hearing. The record discloses the following facts. The parties were divorced on September 7, 1977. As part of that judgment, the defendant was ordered to pay the plaintiff $1000 per month as unallocated alimony and child support, to be reduced to $666.67 per month as alimony when the minor child reached majority. This order was unlimited as to time. The defendant is a senior executive for IBM. On January 4, 1993, the court found the defendant to be in arrears on his alimony payments from 1984 through 1992 in the amount of $44,668. The defendant continually failed to pay both the arrearage and his monthly support obligation. The plaintiff then filed a motion against the defendant for contempt and for wage withholding. At the July 12,1993 hearing on that motion, the court found the arrearage had increased to $49,334.69. The defendant and his counsel walked out of the hearing in protest of the court's assertion of jurisdiction. At the close of the hearing, the court denied the plaintiff's motion for contempt, denied her request for statutory interest, as well as her request for attorney's fees. The court did order that a wage execution issue on the current alimony order of $666.66 per month plus $100 per month on the arrearage of $49,334.69. The plaintiff first argues that because the defendant offered no evidence, and the court made no finding, that he was unable to pay the admittedly accumulated arrearage, a contempt finding was appropriate. She further contends that because the legal standard for contempt had been satisfied and because the circumstances of this matter are outrageous, she was entitled to such a finding. While we might agree that a finding of contempt is appropriate under these circumstances, our standard of review is quite different. We must determine whether the trial court abused its discretion in failing to find that the actions or inactions of the defendant were in contempt of a court order. See Niles v. Niles, 9 Conn. App. 240, 245, 518 A.2d 932 (1986). Civil contempt is conduct directed against the rights of the opposing party. Tatro v. Tatro, 24 Conn. App. 180, 185, 587 A.2d 154 (1991). "Contempts of court may be classified as either direct or indirect, ' "the test being whether the contempt is offered within or outside the presence of the court." ' Cologne v. Westfarms Associates, 197 Conn. 141, 150, 496 A.2d 476 (1985)." Sgarellino v. Hightower, 13 Conn. App. 591, 595, 538 A.2d 1065 (1988). A finding of indirect civil contempt must be established by "sufficient proof" that is premised on competent evidence presented to the trial court and based on sworn testimony. Id. A trial-like hearing should be held if issues of fact are disputed. Nelson v. Nelson, 13 Conn. App. 355, 367, 536 A.2d 985 (1988). The plaintiff argues that the defendant has repeatedly disobeyed court orders and has shown no willingness to satisfy his arrearage. The plaintiff claims that the defendant has defied the court and misused its processes in order to deny the plaintiff that to which the court has determined she is entitled. Despite these arguments, the trial court refused to make a finding of contempt. A finding of contempt is a question of fact. State v. Jackson, 147 Conn. 167, 170, 158 A.2d 166 (1960). A review of the record shows that the court found no facts to support a conclusion that the nonpayment by the defendant was either wilful or not wilful. The court stated: "I can't make a finding [of contempt] upon the record that [the failure of the defendant to comply with the court order is] wilful." After further discussion, the court reiterated: "Well still, I can't make that finding [of contempt] in view of the present status of the record. So I don't intend to issue any orders as to interest at the present time." While we do not conclude that the trial court abused its discretion in failing to find the defendant in contempt, we do conclude that the trial court failed to exercise that discretion at all. The court denied the plaintiffs motion, but that order was not based on findings of fact. Therefore, no exercise of discretion took place. The evidence as presented to the trial court was sufficient to allow the court to exercise its discretion one way or the other, yet it failed to do so. An order of the court must be obeyed until it has been modified or successfully challenged. Connecticut National Bank v. Investors Capitol Corp., 29 Conn. App. 48, 56, 613 A.2d 1370, cert. denied, 224 Conn. 902, 615 A.2d 1044 (1992). The record is clear that the defendant neither modified nor successfully challenged the court order regarding alimony payments. Noncompliance with an order of the court alone does not necessarily dictate that a finding of contempt be entered. Marcil v. Marcil, 4 Conn. App. 403, 405, 494 A.2d 620 (1985). For example, the inability to comply is a good defense to a claim of contempt. Mallory v. Mallory, 207 Conn. 48, 57, 539 A.2d 995 (1988). The contemnor must establish that he cannot comply, or was unable to do so. Zivic v. Zivic, 26 Conn. App. 5, 10, 596 A.2d 475 (1991); Tatro v. Tatro, supra, 24 Conn. App. 186. It is within the sound discretion of the court to deny a claim of contempt when there is an adequate factual basis to explain the failure. Marcil v. Marcil, supra, 405. The lack of any basis or explanation, however, should reasonably allow the conclusion that the contemmor has the ability to comply with the order of the court. Here, the defendant has not demonstrated that he was unable to comply with the order of the court. Both the defendant and his counsel excused themselves from participation in the July 12 hearing. The defendant presented no evidence and made no claims. He never denied his noncompliance with the court orders. The defendant submitted a financial affidavit but could not be cross-examined on his current financial status. Before leaving the courtroom, the defendant, through his counsel, indicated that he did not dispute that alimony payments had ceased and that an arrearage of approximately $44,000 existed as of January, 1993. The defendant also did not dispute that the court was able to calculate the arrearage as of the date of the hearing. The defendant was aware that he could dispute the plaintiffs affidavit concerning the arrearage, and cross-examine her current testimony. He chose instead not to participate, and waived his right to do so. Hill v. Hill, 35 Conn. App. 160, 167, 644 A.2d 951 (1994). Under the circumstances of this case, we conclude that the court failed to exercise its discretion, despite having sufficient evidence before it to do so. This evidence consisted of the plaintiffs testimony, her affidavit from a prior hearing, and the court records. As a reviewing court, we cannot find facts. Fact-finding is a function of the trial court. Griffin v. Planning & Zoning Commission, 30 Conn. App. 643, 652, 621 A.2d 1359 (1993). Because of the necessity of a remand for a new hearing, we find it unnecessary to address the plaintiffs other claims dealing with the court's denial of her claims for statutory interest and attorney's fees. The judgment is reversed only as to the denial of the plaintiff's motion for contempt and her requests for attorney's fees and statutory interest, and the case is remanded for further proceedings consistent with this opinion. The judgment is affirmed as to the finding of arrearage, the order of payments and the wage execution. In this opinion the other judges concurred. The plaintiff filed a cross appeal after the defendant filed his appeal on July 16, 1993. On October 25, 1993, the defendant's appeal was withdrawn, leaving the plaintiffs cross appeal, which became the present appeal. The defendant filed a "special appearance" so as not to concede jurisdiction. We note that no such procedure is either recognized or required. The defendant subsequently conceded jurisdiction during oral argument before this court. The defendant, during oral argument, represented that an agreement existed between the plaintiff and the defendant that excused him from his obligation. The defendant could point to no evidence on the record to support this allegation. He agrees that such an allegation, contained in his objection to the plaintiff's motion, is not evidence before the trial court. The defendant's financial affidavit claims a gross monthly income of almost $8000 and total assets approaching $125,000. He claims monthly expenses of over $7000. The plaintiff daims statutory interest pursuant to General Statutes § 37-3a. The plaintiff daims attorney's fees pursuant to General Statutes § 46b-62. It would appear from the record that the trial court, on June 29, 1993, granted the plaintiff's motion for attorney's fees but required "the motion to be redaimed to determine the proper amount." Thereafter, on July 12,1993, at the completion of the hearing, the plaintiff's counsel stated: "You will recall that several weeks ago we filed a motion for attorney's fees filed May 21,1993, concerning the appeal in the amount of $7500. At the time, we had not provided a full itemized bill to the court and the court indicated that it would order the attorney's fees but in terms of the amount, [it wanted] to see the itemized and detailed statement and we're prepared to offer that at this time." The court replied: "You may offer it but I don't intend to award counsel fees at the present time." Thereafter, the plaintiff's counsel requested that the trial court act on another motion for attorney's fees in the amount of $8819 filed on July 1,1993. The court replied: "Again, counsel, I don't intend to make any orders for counsel fees." The court thereupon heard testimony by the plaintiff and denied her requests for counsel fees, without prejudice, and stated, "You could request the court to revisit [both requests for attorney's fees]."

Per Curiam. The judgment is affirmed.

Per Curiam. The judgment is affirmed.

Per Curiam. Our review of the record, briefs, and oral arguments of the parties leads us to conclude that the record is not adequate to afford review of the issues raised by the state. The state's appeal is taken from the trial court's dismissal of the case on the application of both the state and the defendant, after the trial court denied the state's motion for permission to videotape the testimony of the child victim out of the presence of the defendant. See General Statutes § 54-86g. While the record discloses that the trial court found that the state had made a "prima facie" showing of entitlement to videotape the child's testimony, the record fails to reflect a finding by the trial court that the state had satisfied its statutory burden of establishing "by clear and convincing evidence, that the child would be so intimidated, or otherwise inhibited, by the physical presence of the defendant that a compelling need exists to take the testimony of the child outside the physical presence of the defendant in order to insure the reliability of such testimony." General Statutes § 54-86g (a). Thus, it is impossible on the basis of the record before us to ascertain the basis on which the trial court denied the state's motion for permission to videotape the testimony of the victim. It is a well established principle of appellate procedure that the appellant has the duty of providing this court with a record adequate to afford review. Practice Book § 4061; Holmes v. Holmes, 32 Conn. App. 317, 319, 629 A.2d 1137, cert. denied, 228 Conn. 902, 634 A.2d 295 (1993). Where the factual or legal basis of the trial court's ruling is unclear, the appellant should seek articulation pursuant to Practice Book § 4051. Matza v. Matza, 226 Conn. 166, 187-88, 627 A.2d 414 (1993). Our review of the trial court's oral decision leaves us with the firm conviction that the legal and factual predicate for the trial court's decision is unclear and ambiguous. "Moreover, to the extent that the trial court's memorandum of decision may be viewed as ambiguous in this respect, we read an ambiguous record, in the absence of a motion for articulation, to support rather than to undermine the judgment. Matza v. Matza, [supra, 226 Conn. 188]; Walton v. New Hartford, 223 Conn. 155, 165, 612 A.2d 1153 (1992)." Water Street Associates Ltd. Partnership v. Innopak Plastics Corp., 230 Conn. 764, 773, 646 A.2d 790 (1994). Because the state, as the appellant, failed to file such a motion, we must assume that the trial court acted properly. Id., 773-74; Matza v. Matza, supra, 188. The judgment is affirmed. General Statutes § 54-96 provides: "Appeals from the rulings and decisions of the superior court, upon all questions of law arising on the trial of criminal cases, may be taken by the state, with the permission of the presiding judge, to the supreme court or to the appellate court, in the same manner and to the same effect as if made by the accused."

Per Curiam. The judgment is affirmed and the case is remanded for the purpose of setting new law days.

O'Connell, J. The defendant appeals from his conviction, after a jury trial, of two counts of aiding and abetting manslaughter in the first degree in violation of General Statutes § 53a-8 and 53a-55 (a) (l). On appeal, the defendant claims that the trial court improperly (1) instructed the jury concerning the use of prior inconsistent statements, (2) denied him his right of cross-examination, and (3) instructed the jury on consciousness of guilt. We affirm the judgment of the trial court. The jury could reasonably have found the following facts. At approximately 3 a.m. on September 21,1991, police responded to a report of shots fired at the Athenian Diner on Whalley Avenue in New Haven. At the scene, the police found a hostile crowd of fifty to 100 people surrounding two wounded men lying on the ground. These two men, Hury Poole and Andrew Paisley, were later pronounced dead at a hospital. Another victim, Christopher Roach, had been shot in the arm. An altercation had originated in the diner and continued outside. A crowd gathered, including the defendant; his friend Daryl Valentine, who was the shooter; and Byron McFadden, who would later testify at trial. As Roach, Poole and Paisley joined the crowd, Roach heard the defendant shout, "Shoot him, shoot him, f___it, shoot him." Valentine shot Poole and Paisley, ran to a car parked in the driveway of the diner and got in on the passenger side. Roach ran after him. As Roach approached the car, Valentine fired at him, hitting him in the arm. The car with Valentine in it sped away, followed shortly thereafter by the defendant, who drove off in his own car. Additional facts are included in the analysis. I The defendant first claims that the trial court improperly instructed the jury that it could consider the prior inconsistent statements of two witnesses in weighing the witnesses' credibility. The defendant argues that the court should have instructed the jury that the prior statements could be used for substantive purposes as well as for impeachment. State v. Whelan, 200 Conn. 743, 752, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986). " 'For many years Connecticut followed the common-law rule; namely, prior inconsistent statements were inadmissible hearsay when offered for substantive purposes. In 1986 Connecticut altered its rule to admit certain prior inconsistent statements if given under "prescribed circumstances reasonably assuring reliability." . . . Rather than adopt a rule admitting all such statements, however, [Whelan] restricted the new exception to "prior written inconsistent statements signed by the declarant who has personal knowledge of the facts stated, when the declarant testifies at trial and is subject to cross-examination.". . .' " (Citations omitted; emphasis in original.) State v. Holloway, 209 Conn. 636, 649, 553 A.2d 166, cert. denied, 490 U.S. 1071, 109 S. Ct. 2078, 104 L. Ed. 2d 643 (1989). It is not disputed that the witnesses' statements in the present case qualify under Whelan. Although the defendant filed a written request to charge in connection with the prior statements, he did not include a request that the statements could be used for substantive purposes, nor did he take exception to the charge as given. Practice Book § 852. Because the defendant did not preserve the claim for review, we will consider it only if it qualifies under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Under Golding, a defendant can assert a constitutional claim not preserved for trial, only if all of the following conditions are met: "(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fun damental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." Id. If any one of the conditions is missing, the defendant's claim will fail. Id., 240. The second Golding prong, which requires the defendant to show that the unpreserved claim was of constitutional magnitude, is implicated here. This is not a case of first impression. The defendant acknowledges that on more than one occasion our Supreme Court has declared that failure to give a proper Whelan instruction presents an evidentiary and not a constitutional claim. State v. Wooten, 227 Conn. 677, 701, 631 A.2d 271 (1993); State v. Tatum, 219 Conn. 721, 738, 595 A.2d 322 (1991); State v. Holloway, supra, 209 Conn. 650-51. Despite the foregoing precedents, the defendant urges us to reconsider the matter and to determine that an erroneous Whelan instruction constitutes a matter of constitutional dimension. This, we cannot do. We will not reexamine or reevaluate Supreme Court precedent. Whether a Supreme Court holding should be reevaluated and possibly discarded is not for this court to decide. Greger v. Greger, 22 Conn. App. 596, 599, 578 A.2d 162, cert. denied, 216 Conn. 820, 581 A.2d 1055 (1990). Accordingly, the defendant is not entitled to Golding review of this issue. The defendant fares no better under his claim for plain error review. Such "review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings." State v. Boles, 223 Conn. 535, 551, 613 A.2d 770 (1992). The failure by the trial court to give, sua sponte, an instruction that the defendant did not request, that is not of constitutional dimension and that is not mandated by statute or rule of practice is not such an obvious error that it will affect the fairness and integrity of and public confidence in the judicial proceedings. We decline to review this unpreserved claimed instructional error. II The defendant next claims that the trial court improperly limited his cross-examination of Roach in violation of his confrontation rights under amendments six and fourteen to the United States constitution, and article first, § 8, of the Connecticut constitution. The defendant furnished a separate analysis of his claim under the state constitution. Roach gave two statements to the police. In the first statement, given on September 30, 1991, a few days after the shooting, he said that he had been very drunk at the time of the crime but was certain that the defendant's involvement had been limited to a fight with the two victims before they were shot. He also said that he did not remember having seen the defendant's car that night. On October 5, 1991, Roach was involved in a shooting that resulted in his being arrested and charged with attempted assault in the first degree, criminal use of a firearm, reckless endangerment and unlawful discharge of a firearm. The complainant in that case was the defendant in this case. Thereafter, on February 16, 1993, Roach gave the police a second sworn statement in which he remem bered the details of the incident at the Athenian Diner. Specifically, he remembered having seen the defendant's car parked immediately in front of Valentine's vehicle. The trial court allowed the defendant to cross-examine Roach concerning the nature of the charges against him and the fact that the defendant was the complainant. The trial court, however, would not allow the defendant to cross-examine the witness concerning the details of the incident giving rise to Roach's arrest, including such matters as the exact circumstances of the crimes, methods of committing the crimes and the relationship of a particular witness to the defendant. The court ruled that such details were not necessary for the jury to assess any bias or motive that the witness might have in testifying in the present case. "It is firmly established that cross-examination regarding motive, bias, interest and prejudice is a matter of right and may not be unduly restricted. . . . The right to cross-examine adverse witnesses is not absolute, however, and limitations on the scope of cross-examination are within the sound discretion of the trial court, as long as the defendant has been allowed sufficient cross-examination to meet the requirements of the confrontation clause. . . . The defendant's constitutional right to confrontation is satisfied if he is given the opportunity to expose facts from which the jury can appropriately draw inferences concerning a witness' reliability." (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Cobb, 27 Conn. App. 601, 611-12, 605 A.2d 1385 (1992). Restrictions on the scope of cross-examination are within the sound discretion of the trial court. State v. Castro, 196 Conn. 421, 425, 493 A.2d 223 (1985). Every reasonable presumption should be given in favor of the correctness of the trial court's ruling. State v. Johnson, 21 Conn. App. 291, 296-97, 573 A.2d 1218 (1990). "To establish an abuse of discretion, it must be shown that restrictions imposed on cross-examination were clearly prejudicial." Id., 297. No prejudice was shown to have occurred in this case. Ill In his final claim, the defendant contends that the trial court's jury instruction concerning consciousness of guilt was not supported by the evidence. There were two categories of consciousness of guilt evidence at trial, inconsistencies between the defendant's two sworn statements and evidence of flight. In seeking to introduce evidence of a defendant's consciousness of guilt, "[i]t is relevant to show the conduct of an accused [e.g., flight], as well as any statement made by him subsequent to an alleged criminal act, which may be inferred to have been influenced by the criminal act." (Emphasis added.) State v. Burak, 201 Conn. 517, 533, 518 A.2d 639 (1986), citing State v. Reid, 193 Conn. 646, 655, 480 A.2d 463 (1984). Once the evidence is admitted, if it is sufficient for a jury to infer from it that the defendant had a consciousness of guilt, it is proper for the court to instruct the jury as to how it can use that evidence. It is then for the jury to consider any ambiguity in the evidence. State v. Knighton, 7 Conn. App. 223, 508 A.2d 772 (1986). Turning first to the flight aspect, the defendant argues that an instruction on flight as consciousness of guilt is not warranted unless the defendant knew he was wanted by the police. That is not the law in this state. State v. Piskorski, 177 Conn. 677, 723, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979). The standard is whether the evidence is relevant. Id. "Generally speaking, all that is required is that the evidence have relevance, and the fact that ambiguities or explanations may exist which tend to rebut an inference of guilt does not render evidence of flight inadmissible but simply constitutes a factor for the jury's consideration." Id. At trial, McFadden testified that he had seen the defendant get into his car and leave the scene. A police officer testified that he had seen the defendant driving rapidly down Whalley Avenue away from the shooting scene minutes after the incident. The testimony of both witnesses was relevant because it explained why the defendant was not at the crime scene when the police arrived. The other facet of consciousness of guilt was the defendant's inconsistent sworn statements to police. "In the present case, the defendant's statements were relevant because they were made subsequent to an alleged criminal act and they may be inferred to have been influenced by that alleged act. Those statements were, therefore, properly admitted. The defendant's statements . . . were [also] sufficient to allow the jury to infer that the statements were influenced by the alleged criminal act. Thus, the trial court was correct both in admitting them and, subsequently, in giving a consciousness of guilt instruction to the jury regarding them. It was then for the jury to consider possible alternative explanations for the statements." State v. Aleksiewicz, 20 Conn. App. 643, 653, 569 A.2d 567 (1990). There was sufficient evidence to support the consciousness of guilt instruction. It was proper to instruct the jury that if it found that the defendant intentionally made false statements concerning the crime that the jury could conclude that such statements showed a guilty connection with the crime. Id., 652. Sufficiency of evidence was the sole objection to the consciousness of guilt instruction that the defendant raised in the trial court. A party is not entitled to have a claim reviewed on appeal on grounds different from those presented at trial. State v. Braman, 191 Conn. 670, 684-85, 469 A.2d 760 (1983). To hold otherwise would result in trial judges' being found to have erred on questions never fairly presented to them. State v. Brice, 186 Conn. 449, 457, 442 A.2d 906 (1982). Accordingly, we will not consider any other claims asserting impropriety of the trial court's consciousness of guilt instruction. The judgment is affirmed. In this opinion the other judges concurred. The defendant was initially charged with two counts of aiding and abetting murder in violation of General Statutes § 53a-8 and 53a-54a and one count of aiding assault in the first degree in violation of General Statutes § 53a-8 and 53a-59 (a) (1). The trial court granted the defendant's motion for judgment of acquittal on the assault charge and, after the state filed a substitute information charging two counts of aiding and abetting murder, the jury found the defendant guilty of two lesser included offenses of aiding manslaughter in the first degree. Valentine was charged separately and is not involved in this appeal. The jury instruction relating to prior inconsistent statements was as follows: "In assessing the credibility of a witness, you may consider whether a witness has on prior occasions made a statement or statements which are inconsistent with his testimony on the witness stand. As with all questions of credibility, however, it is exclusively your function to determine the extent to which any such inconsistency might affect the credibility of a particular witness." Practice Book § 852 provides: "The supreme court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of objection. Upon request, opportunity shall be given to present the exception out of the hearing of the jury." Practice Book § 4185 provides: "The court on appeal shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. ." "While the defendant made no offer of proof to support the evidence to which the state objected, the defendant did take proper exceptions to the court's rulings and clearly stated that he was attempting to elicit evidence of bias. We are unaware of any of our cases, and the state has not presented us with any, requiring an offer of proof in order to preserve a claim of infringement on the right of cross-examination." State v. Santiago, 224 Conn. 325, 330-31 n.6, 618 A.2d 32 (1992). The relevant portion of the court's instruction was as follows: "Also, in this state the law recognizes a principle known as consciousness of guilt. When a person is on trial for a criminal offense, it is proper to show his conduct as well as any declarations made by him subsequent to the alleged criminal offense which may fairly have been influenced by that criminal act. The state here claims that the defendant made certain statements to investigators concerning his activities of September 21,1991, and the state further claims that these statements were false in whole or in part. If you find that the defendant intentionally made material false statements in connection with the alleged crime, you may find that such statements tend to show a guilty connection with the crime. "You have also heard testimony from which you may conclude that the defendant fled from the scene of the shootings. Unexplained flight may also tend to show consciousness of guilt. It is for you, however, to decide whether such conduct, if you find it to be proved, reflects consciousness of guilt and what weight if any is to be attributed to such conduct. You may consider all of the conduct of the defendant subsequent to the alleged event in determining whether any of such conduct justifies a finding of a guilty conscience. Those are general principles that apply to most cases and to this case in some circumstances."

Dupont, C. J. The defendant appeals from the trial court's issuance of a contempt order against him for failure to make support payments to the plaintiff. We find error. Pursuant to an adjudication of paternity, the defendant was ordered in January, 1983, to pay the plaintiff $27.50 per week for support of their child. The defendant's payments were subsequently increased by $5 per week because of the defendant's arrearage. In 1986, the defendant, who was employed by Colt Industries, participated in a labor strike called by his union. Thereafter, the defendant's income consisted of $100 per week in strike benefits. On May 16,1986, the defendant's counsel contacted the family relations officer in Hartford in charge of this case, who orally agreed to a reduction in support payments to $10 per week while the defendant was on strike. Subsequently, the plaintiff moved from Hartford to Manchester, and the case was transferred to the family relations division of the Superior Court in Manchester. The family relations officer in Manchester stated at the contempt hearing that he informed the defendant that a court order, rather than an oral modification, was necessary to reduce the support payments. The defendant thereafter filed a motion to modify support payments which was denied on August 18,1986. On September 15,1986, the defendant was found in contempt for his failure to pay $32.50 per week in support, despite his protestations that he had in good faith complied with the oral agreement to reduce the support payments. He was briefly incarcerated until he purged himself of the contempt by paying the plaintiff $732.50. The defendant claims that the trial court erred (1) in failing to consider the defendant's participation in a labor strike, (2) in disregarding the oral agreement to modify the support payments, (3) in basing its finding of contempt on unsworn representations of the plaintiff and the family relations officer and failing to afford the defendant the opportunity for cross-examination, (4) in disregarding the failure of defense counsel to receive notice of the trial court's denial of the defendant's motion to modify support payments, and (5) in failing to find that the Manchester family relations officer was obligated to give full force and effect to the oral modification made by the Hartford family relations officer. I Before considering the defendant's claims of error, we must determine whether we have jurisdiction to hear this case. The plaintiff claims that the defendant's appeal is moot in that no practical relief can follow from a determination of this appeal because the defendant's payment purged the contempt finding. " '[T]he existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.' " Shays v. Local Grievance Committee, 197 Conn. 566, 571, 499 A.2d 1158 (1985); McCallum v. Inland Wetlands Commission, 196 Conn. 218, 225, 492 A.2d 508 (1985). Therefore, the dispositive question is what, if any, actual relief could be granted the defendant by this court. See Papa v. New Haven Federation of Teachers, 186 Conn. 725, 731-32 n.6, 444 A.2d 196 (1982). In determining the mootness of an appeal in a civil matter, the principles developed for determining mootness in criminal appeals in which an appellant has fully served his sentence may be examined. "Where collateral legal disabilities are imposed as a matter of law because of a criminal conviction, it is well established that a case will not be declared moot, even where the sentence has been fully served." Shays v. Local Grievance Committee, supra, 572 n.4; see Pennsylvania v. Mimms, 434 U.S. 106, 108 n.3, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977); Sibron v. New York, 392 U.S. 40, 53-57, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968); Phaneuf v. Commissioner of Motor Vehicles, 166 Conn. 449, 452, 352 A.2d 291 (1974). Although our Supreme Court "[assumed], without deciding the matter, that no such collateral consequences attend a conviction for contempt"; Shays v. Local Grievance Committee, supra, 572 n.4; we find that such collateral consequences do attach in this case. The trial court's contempt order may impact on the defendant's future status in this action. For example, a future citation for contempt, given the first finding of contempt which is the subject of this case, would make the defendant appear more recalcitrant than he might be, in fact. Such an impression is likely to affect a trial court's determination of the penalty attendant on any future finding of contempt in this case. We can afford the defendant practical relief from these collateral consequences by setting aside the trial court's contempt order. "Where collateral legal disabilities have arisen, actual relief can be granted by way of a reinstatement of the appellant's prior legal status." Phaneuf v. Commissioner of Motor Vehicles, supra, 452-53. This court's ability to grant relief to the defendant negates the plaintiff's argument of mootness and makes this case appropriate for appellate review. II We first address the plaintiff's third claim of error which relates to the trial court's finding of contempt in the absence of any sworn testimony and in the absence of an opportunity by the defendant for cross-examination. We find error in the trial court's reliance solely on the unsworn representations of the plaintiff and the family relations officer as a basis for the contempt finding. Contempts of court may be classified as either direct or indirect, " 'the test being whether the contempt is offered within or outside the presence of the court.' " Cologne v. Westfarms Associates, 197 Conn. 141, 150, 496 A.2d 476 (1985). A direct contempt consists of words spoken or acts committed in the presence of the court or during its intermissions which tend to subvert, embarrass or prevent justice. 17 Am. Jur. 2d, Contempt § 6. The defendant's failure to comply with the support order is, therefore, an indirect contempt because it occurred outside the presence of the trial court. "[A] finding of indirect civil contempt must be established by 'sufficient proof' that is premised upon compe tent evidence presented to the trial court in accordance with the rules of procedure 'as in ordinary cases.' Potter v. Board of Selectman, [174 Conn. 195, 197, 384 A.2d 369 (1978)], quoting Huntington v. McMahon, [48 Conn. 174, 196 (1880)]." Cologne v. Westfarms Associates, supra, 155. This includes the requirement that a finding of indirect contempt be based upon sworn testimony. Cologne v. Westfarms Associates, supra, 155. Therefore, the trial court's finding of contempt, based entirely on unsworn representations by the plaintiff and the family relations officer, was erroneous. As we find error in this regard, we need not address the defendant's other claims of error. There is error, the judgment finding the defendant in contempt is set aside and the case is remanded with direction to deny the contempt motion. In this opinion the other judges concurred. Following the oral agreement between the defendant's counsel and the family relations officer, the defendant made four support payments to the plaintiff: $10 on May 27,1986; $20 on June 13,1986; $30 on July 21,1986; and $120 on August 18, 1986. Counsel for the defendant stated at the contempt hearing that he did not receive notice of the denial of the motion to modify due to his failure to file an appearance in the modification action. The defendant also stated that he did not receive notice. The record indicates, however, that a copy of the denial was sent to the defendant.

Stoughton, J. This is an appeal from the dismissal of a petition for termination of parental rights which was filed in the Probate Court and transferred to the Superior Court. We find no error. On December 3, 1984, the adoptive parents of Jason filed a petition pursuant to General Statutes § 45-61c in the Court of Probate for the district of Newington. The attorney for the minor child contested the petition and requested that the matter be transferred to the Superior Court under the provisions of § 45-61c (g). The matter was transferred to the Superior Court on January 21, 1987. On June 13, 1987, the commissioner of the department of children and youth services (DCYS), the previously appointed guardian of Jason, moved to dismiss the petition. The motion to dismiss was granted, and the adoptive parents have appealed. They claim that the trial court erred (1) in holding that the adoptive parents have no standing to petition for termination of their parental rights with respect to a child committed to the DCYS, (2) in holding that a child over the age of fourteen years cannot be estopped to deny his consent to a petition for the termination of parental rights, and (3) in holding that the child's failure to join in the petition did not constitute a waivable jurisdictional defect. The trial court found inter alia, the following among other facts. Jason was born on October 21,1970, and, the parental rights of his biological parents having been terminated, was adopted by the petitioners on January 12, 1981. After a year of escalating conflicts and runaways, the adoptive parents asked DCYS to place Jason in foster care. On February 8, 1984, the adoptive parents admitted that Jason was homeless and agreed to his commitment to DCYS. The commitment continued to the time of the hearing. In response to a petition for support filed by the bureau of collection services, the adoptive parents agreed to a support order. When no payment was made on the order, the bureau filed a motion for contempt. Two days before the scheduled hearing on the motion, the adoptive parents initiated the action for termination of their parental rights. DCYS moved to dismiss the petition claiming that the court lacked subject matter jurisdiction for two reasons. The first claim was that the youth was committed to DCYS at the time of the petition, and the petition was neither brought in the Superior Court for juvenile matters which pursuant to General Statutes § 46b-121 has jurisdiction over such matters, nor was it brought by any of the persons authorized by General Statutes § 17-43a to petition for termination of parental rights with reference to a committed child. The second claim was that the minor child had not joined in the petition as required by General Statutes § 45-61c. In a well reasoned memorandum of decision, the trial court considered the relevant statutory provisions and their legislative history. It then reached the following conclusions: (1) the Superior Court, sitting as a Court of Probate following transfer of a contested termination petition filed under § 45-61c, lacks jurisdiction to entertain such petition when the subject child is committed to DCYS under § 46b-129; (2) only DCYS or the attorney for a committed child may file petitions to terminate parental rights of committed children, which petitions must originate in the Superior Court; (3) neither the Probate Court nor the Superior Court may entertain petitions to terminate the parental rights of any child over the age of fourteen who has not affirmatively joined in such petition. We find that the third of these conclusions is dispositive of this appeal. Even if we assume without deciding that the parents may petition the Court of Probate to terminate their parental rights over a committed child pursuant to the provisions of § 45-61c (a), as the petitioners maintain they are entitled to do, § 45-61c (a) contains the proviso that where the minor child with respect to whom the petition is brought has attained the age of twelve, the minor child shall join the petition. It is not necessary for us to decide whether the parents may petition the Court of Probate in such circumstances because the petitioners do not assert any authority other than § 45-61c for their petition, and the record is clear that the child was over fourteen and did not join in the petition. The jurisdiction of the Court of Probate is governed entirely by statute and it may only act as authorized by statute. Palmer v. Hartford National Bank & Trust Co., 160 Conn. 415, 428, 279 A.2d 726 (1971). A court which exercises a limited and statutory jurisdiction is without jurisdiction to act unless it does so under the precise circumstances and in the manner particularly prescribed by the enabling legislation. Heiser v. Morgan Guaranty Trust Co., 150 Conn. 563, 565, 192 A.2d 44 (1963). Where the petition does not show that the minor child joined in the petition, the Court of Probate lacked jurisdiction to entertain it. Since the Probate Court lacked jurisdiction of the subject matter, so too did the Superior Court after the transfer to it of the petition, and the court was correct in dismissing the petition. The claim by petitioner that the statutory requirement that a child of a certain age join in the petition may be satisfied by evidence of the child's conduct or behavior, or that the child should be estopped from denying consent by his conduct or behavior, we find unpersuasive. The legislative requirement that the child join in the petition is clearly expressed, and we agree with the trial court that this consent cannot be waived by conduct. There is no error. In this opinion the other judges concurred. "[General Statutes] Sec. 46b-121. (Formerly Sec. 51-302). juvenile matters defined, authority of COURT. Juvenile matters include all proceedings concerning uncared-for, neglected or dependent children and youth' and delinquent children within this state, termination of parental rights of children committed to a state agency, matters concerning families with service needs and contested termination of parental rights transferred from the probate court, but does not include matters of guardianship and adoption or matters affecting property rights of any child or youth over which the probate court has jurisdiction. In such juvenile matters, the superior court shall have authority to make and enforce such orders directed to parents, including any person who acknowledges before such court paternity of a child born out of wedlock, guardians, custodians or other adult persons owing some legal duty to a child or youth therein, as it deems necessary or appropriate to secure the welfare, protection, proper care and suitable support of a child or youth subject to its jurisdiction or otherwise committed to or in the custody of the commissioner of children and youth services. Said court shall also have authority to grant and enforce injunctive relief, temporary or permanent in all proceedings concerning juvenile matters. If any order for the payment of money is issued by said court, the collection of such money shall be made by said court, except orders for support of children committed to any state agency or department, which orders shall be made payable to and collected by the department of administrative services. In juvenile matters, the court shall have authority to make and enforce orders directed to persons liable hereunder on petition of said department of administrative services made to said court in the same manner as is provided in section 17-324, in accordance with the provisions of subsection (b) of section 17-31i, section 17-32, 17-82e, 17-295, 17-295a, 46b-129 or 46b-130, and all of the provisions of section 17-324 shall be applicable to such proceedings. Any judge hearing a juvenile matter may make any other order in connection therewith within his authority to grant as a judge of the superior court and such order shall have the same force and effect as any other order of the superior court." General Statutes § 17-43a provides in pertinent part: "In respect to any child committed to the commissioner of children and youth services in accordance with section 46b-129, either the commissioner, or the attorney who represented such child in the prior commitment proceeding, or an attorney appointed by the superior court on its own motion, or an attorney retained by such child after attaining the age of fourteen may petition the court for the termination of parental rights with reference to such child, including the right to petition the court for the revocation of the commitment of the child. The petition shall be in the form and contain the information set forth in subsection (b) of section 45-61c . . . ." "[General Statutes] Sec. 45-61c. petition to terminate parental rights, (a) Any of the following persons may petition the court of probate to terminate parental rights of all persons who may have parental rights regarding any minor child or for the termination of parental rights of only one parent provided the application so states: (1) Either or both parents, including a parent who is a minor; (2) the guardian of the child; (3) the selectmen of any town having charge of any foundling child; (4) a duly authorized officer of any child care agency or child-placing agency or organization or any children's home or similar institution approved by the commissioner of children and youth services; (5) a blood relative of the child, descented from a common ancestor not more than three generations removed from the child, if the parent or parents have abandoned or deserted the child; (6) the commissioner of children and youth services, provided the custodial parent of such minor child has consented to the termination of parental rights and the child has not been committed to the commissioner, and no application for commitment has been made; provided in any case hereunder where the minor child with respect to whom the petition is brought has attained the age of twelve, the minor child shall join the petition."

O'Connell, J. The defendant appeals from the judgment of conviction, after a jury trial, of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a). He claims the court erred (1) in refusing to allow him to cross-examine his codefendant after the codefendant testified concerning events of the crime involving both of them, and (2) in denying his motion for judgment of acquittal because of insufficiency of evidence to justify conviction. We find no reversible error. The jury could reasonably have found the following facts. While the defendant and a codefendant; see State v. Garcia, 13 Conn. App. 67, 534 A.2d 906 (1987); were inmates at the Litchfield Correctional Center, they used physical force to compel another inmate to perform sexual acts upon them. In testifying on his own behalf, the codefendant made reference to the defendant's involvement in the crimes. I The defendant's first claim of error raises the issue of whether a defendant's right of cross-examination applies only to witnesses called by the state, or is equally applicable to witnesses called by a codefendant, including the codefendant himself. The defendant bases his claim on the confrontation clauses of the federal and state constitutions. This is a case of first impression in Connecticut, but looking to other jurisdictions, we find that in the seminal case of State v. Crooker, 123 Me. 310, 122 A. 865 (1923), the Maine Supreme Court held that a defendant may cross-examine any witness who offers testimony adverse to him. See annot. 33 A.L.R. 821. Of the few jurisdictions and treatises that have considered the question, all have been in general agreement with the Crooker court. See United States v. Polizzi, 500 F.2d 856, 903 (9th Cir. 1974), cert, denied, 419 U.S. 120 (1975); United States v. Zambrano, 421 F.2d 761, 763 (3d Cir. 1970); State v. Mayberry, 52 N.J. 413, 245 A.2d 481 (1968); State v. Martin, 53 N.M. 413, 209 P.2d 525 (1949); 81 Am. Jur. 2d, Witnesses § 470, p. 447; 5 J. Wigmore, Evidence (Chadbourn Rev.) § 1394, p. 147. The cases and text writers analogize this right to a party's conditional right to impeach his own witness, thereby recognizing a right of cross-examination substantially narrower than that applicable to prosecution witnesses. A condition precedent to this special right In addition to the foregoing constitutional bases, the principle is firmly entrenched in the common law. In 1902, this precise question was decided by the King's Bench. Rex v. Hadwen, 1 K.B. 581 (1902). Writing for the court, Lord Alverston, C. J., said in part: "That question is, whether, where two prisoners indicted jointly are defended separately, and one elects to give evidence [on his own behalf] . . . and in the course of that evidence inculpates the other prisoner, counsel for the latter prisoner can cross-examine the former, or whether he can only be cross-examined by counsel for the prosecution. . . . [I]t is in the interests of justice that the counsel for the prisoner inculpated should be able to cross-examine. The case may arise where the evidence for the prosecution is so strong against a prisoner that it might not be thought necessary to test strictly the inculpating evidence of the other prisoner." Id., 583. The trial court in the present case stated the law correctly, namely, that cross-examination of the codefendant should be barred if the codefendant's testimony was not adverse to the interests of this defendant. The court misapplied the law, however, because its recollection of the codefendant's testimony was faulty. The transcript discloses that the codefendant testified that the defendant was "involved in this" and also that the victim had been in the defendant's cell the night of the assault. This testimony had some degree of probative value against the defendant and he was entitled to an opportunity to cross-examine the codefendant concerning it. The state concedes that, under the facts of this case, it was error for the trial court to deny the defendant the opportunity to cross-examine his codefendant. This concession notwithstanding, the state argues that in view of other evidence in the case it was harmless error. The defendant, on the other hand, contends that it is constitutionally impermissible to find such an error harmless and that automatic reversal is mandated. We agree with the state. "In Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), the [United States Supreme] Court held that since a defendant had a right to cross-examine a co-defendant it was reversible error to admit evidence of a co-defendant's confession where that co-defendant did not take the stand and subject himself to such cross-examination." United States v. Zambrano, supra, 763. Bruton, however, does not purport to overrule the conclusion of Chapman v. California, 386 U.S. 18, 22, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), that in the setting of a particular case some constitutional errors may be deemed harmless and not require automatic reversal. The later cases of Harringtons. California, 395 U.S. 250, 89 S. Ct. 1726, 23 L. Ed. 2d 284 (1969), and Delaware s. Van Arsdall, 475 U.S. 673, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986), held denial of crossexamination subject to harmless error analysis. "[N]ot all 'trial errors which violate the Constitution automatically call for reversal.' " Harrington s. California, supra, 251-52, quoting Chapman s. California, supra, 23. Both cases utilized a case by case examination of the facts to determine whether the error was harmless beyond a reasonable doubt. In VanArsdall, the court considered a variety of factors such as the importance of the testimony to the state's case, whether the testimony was cumulative, the presence of corroborating or contradictory testimony, the extent of cross-examination permitted and the strength of the state's case, in determining whether the error affected the reliability of the fact-finding process. Delaware v. Van Arsdall, supra, 1438. In addition, the court refused to accept the argument that reversible error must be found because it was impossible to predict how the jury would have reacted if it had heard the excluded testimony. Id. In the present case, the codefendant's testimony added only slight, if any, strength to the state's case against this defendant, whose own testimony was consistent with that of the codefendant. Both defendants admitted the sexual acts with the victim, but claimed that they were commercially bartered transactions for cigarettes and accordingly consensual. The defendant is unable to articulate any specific incriminating aspect of the codefendant's testimony other than that placing him at the scene of the assaults. The jury, however, learned of this from the defendant's own testimony as well as from other witnesses. The defendant argues that Connecticut has adopted a rule under our state constitution which is narrower than the federal rule exemplified in the Van Arsdall case. According to this argument, any refusal to allow cross-examination is prejudicial per se and not subject to harmless error analysis. State v. Esposito, 192 Conn. 166, 471 A.2d 949 (1984), which is relied on by the defendant, does not support this proposition. The Esposito court spoke in language that clearly left room for discretionary analysis of the situation, and the following year the harmless error doctrine for errors of constitutional import was expressly recognized in State v. Bruno, 197 Conn. 326, 335-36, 497 A.2d 758 (1985), cert, denied, 475 U.S. 1119, 106 S. Ct. 1635, 90 L. Ed. 2d 181 (1986); see also id., 336 (Shea, J., concurring). Under the circumstances of this case we conclude that the court's error in denying cross-examination of the codefendant was harmless beyond a reasonable doubt. II The defendant's second claim of error is that the evidence was insufficient to sustain a conviction of either count of sexual assault in the first degree. The defendant claims that the testimony of the victim concerning force exerted by the defendant is conflicting and unreliable. It is rudimentary that we do not retry the facts or evaluate the credibility of witnesses. Bowman v. Williams, 5 Conn. App. 235, 238, 497 A.2d 1015 (1985). The standard is whether " '[t]he jury could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established the defendant's guilt beyond a reasonable doubt.' " State v. Dumlao, 3 Conn. App. 607, 613, 491 A.2d 404 (1985), quoting State v. Giorgio, 2 Conn. App. 204, 211, 477 A.2d 134 (1984). In addition, the evidence must be given a construction most favorable to sustaining the jury's verdict. State v. Dumlao, supra. Applying that standard to this case, we find there was sufficient evidence, if believed by the jury, to sustain the convictions. There is no error. In this opinion the other judges concurred. A pretrial motion to sever the cases was withdrawn and the denial of a subsequent motion, made at trial, has not been assigned as error. U.S. Const., amend.; Conn. Const., art. I, § 8. For Connecticut's evolving rule permitting impeachment of a party's own witness, see State v. Whelan, 200 Conn. 743, 747, 513 A.2d 86, cert, denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), and State v. Graham, 200 Conn. 9, 17, 509 A.2d 493 (1986). of cross-examination is that the testimony of the witness actually must be opposed or contrary to the position of the defendant. United States v. Mercks, 304 F.2d 771, 772 (4th Cir. 1962); State v. Mason, 215 S.C. 457, 56 S.E.2d 90 (1949); People v. Braune, 363 Ill. 551, 2 N.E.2d 839, 841 (1936). "If . . . such consent [to examination of psychiatric records] is not forthcoming then the court may be obliged to strike the testimony of the witness." (Emphasis added.) State v. Esposito, 192 Conn. 166, 179-80, 471 A.2d 949 (1984); but see In re Robert H., 199 Conn. 693, 711, 509 A.2d 475 (1986), for an indication to the contrary.

Dupont, C. J. The petitioner appeals from the trial court's dismissal of his habeas corpus petition and the denial of permission to file late appeals in two cases. We find error. In July, 1979, the petitioner was convicted of robbery in the first degree in violation of General Statutes § 53a-134, and of assault in the third degree in viola tion of General Statutes § 53a-61. He was sentenced for these convictions to a term of imprisonment of two and one-half to five years and to one year, respectively. No appeal was taken from these convictions. In September, 1981, following his release from incarceration, the petitioner was convicted of possession of narcotics in violation of General Statutes § 21a-279, and of assault in the third degree. He was sentenced to a term of imprisonment of eighteen months to three years on the former charge and to one year on the latter, to be served concurrently. No appeal was taken from these convictions. The petitioner was also found in violation of the probation stemming from his 1979 conviction and his probation was extended to five years. On December 20, 1984, the petitioner was sentenced to a term of incarceration of one year for violation of his probation, due to the 1981 convictions. His service of that sentence expired on August 21, 1985. The petitioner filed a petition for a writ of habeas corpus dated February 25, 1985, alleging ineffective assistance of counsel based on his counsel's failure to appeal the convictions of 1979 and 1981, despite the assurances of counsel that appeals would be taken. On May 20,1986, the petitioner filed a motion requesting permission to file a late appeal from both his 1979 and 1981 convictions. On March 10,1987, the court denied the petitioner's motion for permission to file late appeals, and granted the respondent's motion to dismiss the habeas corpus petition. In response to the petitioner's motion for articulation, the court stated that since the petitioner's sentence for probation violation had expired, the petition for a writ of habeas corpus was moot, and therefore should be dismissed. The trial court subsequently granted the petitioner's request for certification to appeal the dismissal of his petition for habeas corpus to this court. The petitioner claims that the trial court erred (1) in dismissing as moot his habeas corpus petition, and (2) in denying his motion for permission to file late appeals when his failure to appeal timely was due to ineffective assistance of counsel. The sole argument made by the respondent in his appeal brief is that the petitioner's claims of error should not be reviewed because he failed to comply with Practice Book § 4065 (c). The respondent argues that the petitioner has failed to refer appropriately to the record or transcripts in the statement of facts contained in his brief. Practice Book § 4065 (c) provides in pertinent part: "The statement of facts shall be in narrative form, and shall be supported by appropriate references to the page or pages of the record or transcript upon which the party relies." While a failure to comply fully with this section may preclude appellate review; Taylor v. American Thread Co., 200 Conn. 108, 112, 509 A.2d 512 (1986); such review, while more difficult, may nevertheless be appropriate. McGaffin v. Roberts, 193 Conn. 393, 399 n.6, 479 A.2d 176 (1984), cert. denied, 470 U.S. 1050,105 S. Ct. 1747, 84 L. Ed. 2d 813 (1985). In this case, the petitioner has made reference in his statement of facts to the appropriate pleadings, contained in the record. No transcript was available to the petitioner because the motion to dismiss was decided without oral argument. The record, together with the pleadings, is sufficient to allow review. We agree with the petitioner's claim that the court erred by dismissing his petition on the ground of mootness. The petitioner was in custody at the time he filed his petition for habeas corpus. The expiration of his sentence prior to the decision of the court below did not render his claims moot. Barlow v. Lopes, 201 Conn. 103, 105 n.2, 513 A.2d 132 (1986); Herbert v. Manson, 199 Conn. 143, 143-44 n.l, 506 A.2d 98 (1986); see also Murray v. Lopes, 205 Conn. 27, 31, 529 A.2d 1302 (1987). "In attacking the legality of his conviction, the petitioner has stated a claim that survives his release from incarceration and parole. Carafas v. LaVallee, 391 U.S. 234, 238, 88 S. Ct. 1556, 20 L. Ed. 2d 554 (1968)." Herbert v. Manson, supra. At oral argument in this court, the respondent stated that he might not have filed his motion to dismiss had Herbert v. Manson, supra, already been decided at the time. The state further argued, however, that the petition of habeas corpus did not raise the issue of whether there were collateral consequences which would save the petition from a mootness claim, and that therefore the petition was properly dismissed. The record indicates that the petitioner, in his objections to the state's motion to dismiss on the ground of mootness, alleged that he had suffered penalties and disabilities in the past and would in the future. These allegations were sufficient to raise the issue of collateral consequences. The petitioner also claims that the court erred in denying him permission to file late appeals from his underlying convictions. It is not disputed that the petitioner did not appeal from the 1979 and 1981 convictions. After a determination in a habeas corpus proceeding that a petitioner has been deprived of a constitutional right of appeal, the trial court is authorized to allow a late appeal, despite any rule or statute to the contrary. State v. Stead, 186 Conn. 222, 226 n.6, 440 A.2d 299 (1982); Fredericks v. Reincke, 152 Conn. 501, 503, 208 A.2d 756 (1965). The trial court here held no hearing to determine if the petitioner had forfeited his appellate rights but simply denied him permission to file late appeals. If a petitioner in a habeas corpus action seeks the relief of permission to file a late appeal, the question to be resolved is whether he deliberately bypassed appellate review of his conviction. Tyler v. Bronson, 12 Conn. App. 621, 623, 533 A.2d 570 (1987). The court in this case made no such determination. There is error, the judgment dismissing the petition is vacated and the case is remanded for further proceedings in accordance with this opinion. In this opinion the other judges concurred.

Per Curiam. The defendant administratrix of the estate of William Smith appeals from the judgment of the trial court dismissing her counterclaim. Our study of the record, transcripts and briefs, along with our review of applicable law, fails to disclose that the trial court abused its discretion in concluding that the defendant's counterclaim presented substantially different issues of fact and law. Nor does our study show that separate trials would require almost no duplication of effort. See, e.g., Conservation Commission v. Price, 193 Conn. 414, 433, 479 A.2d 187 (1984); Wallingford v. Glen Valley Associates, Inc., 190 Conn. 158, 161, 459 A.2d 525 (1983); Jackson v. Conland, 171 Conn. 161, 166-67, 368 A.2d 3 (1976). There is no error.

Daly, J. The defendant was convicted by a jury of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (l) and possession of cocaine in violation of General Statutes § 21a-279. He claims that the court erred (1) in limiting his cross-examination, (2) in denying his motion for admission of the results of a polygraph test, (3) in failing to strike the testimony of the state's expert rebuttal witness, and (4) in failing to grant his motions for judgment of acquittal, for a new trial, and for judgment of acquittal notwithstanding the verdict. We find no error. The jury could have reasonably found the following facts. On October 12,1985, the defendant and the victim, who had been friends for several years, met in a bar in Bridgeport. The victim invited the defendant to attend a party in Stamford later that evening. Instead of attending the party, the two checked into a hotel room in Stamford at approximately 11:30 p.m. that eve ning. Both the victim and the defendant remained in the room for several hours drinking, socializing, and ingesting cocaine. At approximately 5:30 a.m. the following morning, the defendant summoned a security guard to the room claiming that the victim had suffered a stroke. When the security guard entered the room, he observed the victim on the floor partially covered by a bed sheet. He checked for a pulse but found none. The security guard called the police for assistance. Terrance Shea, a Stamford fireman and emergency medical technician, responded to the scene shortly thereafter. Shea checked the victim's pulse and upon finding none began efforts to resuscitate the victim. Resuscitation efforts continued until the victim arrived at Stamford Hospital, but the victim never responded and was pronounced dead. At trial, the state produced Arkady Katsnelson, an associate chief medical examiner, who testified that the victim died as a result of manual strangulation. Katsnelson further testified that he found an abrasion on the victim's neck below the left ear which seemed to have been caused by someone's fingernail. Katsnelson also noted a separation of the victim's hyoid bone, a U-shaped bone deep inside of the neck, hemorrhages to the victim's neck, eye, heart, and lungs, and cocaine in the victim's blood and nose. The defendant called Elliot Gross, the former chief medical examiner in Connecticut, to support his theory that the victim died of cocaine intoxication. Gross, after reviewing the records and examining the larynx, tongue and hyoid bone which were made available to him through the chief medical examiner's office, testified that the victim's injuries and hemorrhages were due to the resuscitation efforts. On cross-examination, Gross conceded that microscopic slides of the areas of hemorrhaging could determine if the injuries had occurred before or after death, but that he did not order such slides in this case. The state then called William Q. Sturner, chief medical examiner for the state of Rhode Island, as a rebuttal witness. Sturner rebutted Gross' opinion by testifying that the injuries he observed were inconsistent with resuscitation. He based his testimony in large part on his examination of microscopic slides made from the area of hemorrhaging, the type of slides the defendant's expert chose not to order. By examining the microscopic slides of where the hemorrhaging occurred, Sturner was able to determine that the hemorrhages occurred before the victim stopped breathing, and therefore were not the result of resuscitation efforts. Sturner concluded that the death of the victim was by strangulation. I In his first claim of error, the defendant contends that the trial court erred in limiting the defendant's examination of Sergeant Robert C. Tymon. The defendant claims (1) that his cross-examination of Tymon was impermissibly restricted, and (2) that he should have been allowed to introduce certain hearsay evidence through Tymon on direct examination. We disagree. A Tymon, the officer in charge of the detective squad which investigated the victim's death, testified in the state's case-in-chief about his involvement in the case. On direct examination, Tymon identified the defendant as the person he took to the hospital for treatment. Additionally, Tymon testified that he took fingernail scrapings from the defendant. It is evident from the record that Tymon was called by the state to elicit infor mation regarding the identification of the defendant as the one from whom he took fingernail scrapings. On cross-examination, the defendant sought to question Tymon regarding the investigation and his interviewing of witnesses. The state objected to the questions on the basis that the questions were outside the scope of direct examination. The defendant's response was simply that questions regarding areas of the investigation were permissible. The defendant did not claim that his questions went to the matter of the credibility of the witness. The court sustained the state's objection and ruled that the defendant could call Tymon in his case. It is a well established rule that cross-examination is restricted to matters covered on direct. State v. Pierson, 201 Conn. 211, 224, 514 A.2d 724 (1986); State v. Scott, 11 Conn. App. 102, 107, 525 A.2d 1364, cert, denied, 204 Conn. 811, 528 A.2d 1157 (1987). "A question [on cross-examination] is within the scope of the direct examination if it is designed to 'rebut, impeach, modify, or explain any of the defendant's direct testimony.' " State v. Sharpe, 195 Conn. 651, 657, 491 A.2d 345 (1985), quoting State v. Zdanis, 173 Conn. 189, 196, 377 A.2d 275 (1977). The trial court is given broad discretion to determine whether a particular line of cross-examination is within the scope of the direct examination. State v. McCarthy, 197 Conn. 247, 261, 496 A.2d 513 (1985); State v. Apostle, 8 Conn. App. 216, 230, 512 A.2d 947 (1986). A review of the record in this case indicates that the trial court did not abuse its discretion in limiting the defendant's cross-examination. B The defendant called Tymon on direct examination and inquired about his investigation of the death of the victim. Tymon testified that he had questioned Gordon Anderson of California, who was staying in the room next to the one shared by the victim and the defendant on the night in question. The state objected to any testimony concerning the conversation between Anderson and the witness on the grounds of hearsay. The state's objection was sustained. The defendant concedes that the testimony was hearsay but argues that the testimony should have been admitted under the "residual exception" to the hearsay rule. "When a defendant offers evidence that is hearsay, his proffer runs counter to our well established preference for having a witness appear personally in court, under oath, so that his testimony can be subjected to cross-examination and his credibility adjudged in accordance with his demeanor." State v. Aillon, 202 Conn. 385, 390, 521 A.2d 555 (1987). Hearsay evidence, however, can be admissible if it is both reliable and necessary. State v. Sharpe, supra, 664. "The necessity factor, [our Supreme Court has said], is reflected in the prerequisite that the declarant be unavailable." State v. Frye, 182 Conn. 476, 480, 438 A.2d 735 (1980). The moving party has the burden of proving the declarant's unavailability. Id.; C. McCormick, Evidence (3d Ed. 1984) § 253. "Absent a showing by the proponent of the proffered hearsay statement of the unavailability of the declarant, the declarant's statement will be excluded from evidence." State v. Frye, supra, 481. In meeting his burden of proving the unavailability of a declarant, the proponent of proffered hearsay testimony must demonstrate that he has used due diligence to procure the attendance of the absent witness. State v. Weinrib, 140 Conn. 247, 251, 99 A.2d 145 (1953). All that is required by the proponent of the hearsay testimony is a good faith effort to procure the declarant's attendance. State v. Aillon, supra, 392. In this case, the defendant failed to prove unavailability. The defendant's mere assertion that he could not find "any Gordon Anderson in Corbalitos, California" does not amount to a good faith effort. Since we conclude that Anderson was not shown to be unavailable, we need not reach the issue of trustworthiness. State v. Frye, supra, 480. II The defendant's second claim of error is that the trial court erred in denying the admission of the results of a polygraph test. The defendant correctly recognizes that our Supreme Court has consistently held polygraph evidence to be inadmissible, but urges this court to reassess this position. We see no reason to do so at this time. Our Supreme Court has recently rejected the use of polygraph tests. State v. Miller, 202 Conn. 463, 484-86, 522 A.2d 249 (1987). In Miller, the court ruled in accordance with the well established rule of this state that the "questionable accuracy" of polygraph tests serves as a compelling reason for excluding such evidence. Id., 486. It is not our function to overrule established Supreme Court precedent. O'Connor v. O'Connor, 4 Conn. App. 19, 20, 492 A.2d 207 (1985), rev'd on other grounds, 201 Conn. 632, 519 A.2d 13 (1987). Ill The defendant's third claim is that the trial court erred in ruling that the rebuttal testimony of Sturner was admissible. Sturner's testimony was largely based on medical slides that were examined the day before testifying. After examining these slides, Stumer established that the victim's death was caused by strangu lation. The defendant argues that the testimony of Sturner should have been stricken because (1) it was inappropriate for rebuttal, and (2) the slides that were the basis of his testimony were never made available to the defendant pursuant to his discovery request. A We first note that rebuttal testimony is necessarily limited to refuting evidence and impeaching or rehabilitating witnesses, not for merely bolstering one's case. "The admission of rebuttal evidence is ordinarily within the sound discretion of the trial court." State v. Lisella, 187 Conn. 335, 337, 445 A.2d 922 (1982); see also B. Holden & J. Daly, Connecticut Evidence (Sup. 1983) § 12; State v. Addazio, 169 Conn. 416, 427, 363 A.2d 153 (1975); Vazzano v. Slater, 6 Conn. App. 1, 5, 502 A.2d 440 (1986). "Unless the court in its discretion permits it, the state is not permitted on rebuttal to present witnesses who merely support the state's case, but is confined to testimony which is directed at refuting the evidence given by the defendant." State v. Addazio, supra, 427. It is abundantly clear from the record that Sturner's testimony refuted Gross' testimony. It was, therefore, appropriate for rebuttal. B The defendant also argues that the rebuttal testimony should have been stricken because the slides used by Sturner were never made available to him. The defendant relies on three arguments in support of this claim of error. First, the defendant cites Practice Book § 741 (6), which prohibits the introduction of any results of scientific tests that are not submitted to the other party. The defendant also argues that testimony concerning the slides should have been stricken under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Finally, the defendant argues that he was deprived of his constitutional right of confrontation of witnesses against him under the sixth and fourteenth amendments to the United States constitution. "The purpose of criminal discovery is to prevent surprise and to afford the parties a reasonable opportunity to prepare for trial." State v. Festo, 181 Conn. 254, 265, 435 A.2d 38 (1980). There was no such element of surprise in this case. The defendant's expert, a former chief medical examiner for Connecticut, was aware of the use of microscopic slides in the manner used by Sturner. Furthermore, the defendant's expert testified on cross-examination that medical slides would be helpful in determining when the death occurred but that he chose not to use such slides. The state fully cooperated with Gross' requests for specimens retained from the autopsy, including his request to have the larynx prepared in a certain way. The state should not be punished, when it has fully cooperated with the defendant's expert, but has presented an expert who performed a more thorough evaluation of the cause of death. The defendant's assertion that the surprise was due to the state's withholding of information is without merit. The record indicates that Sturner examined the slides the day before he testified. Although this left little time for the defendant to examine the slides, the state informed the defendant that they were agreeable to a continuance. The defendant, however, rejected the offer of a continuance and cannot now be heard to argue that he had no time to prepare. State v. Weiderihoff, 205 Conn. 262, 275, 533 A.2d 545 (1987), quoting State v. Scognamiglio, 202 Conn. 18, 25, 519 A.2d 607 (1987) ("Action induced by an appellant cannot ordinarily be a ground of error."); State v. Gonzalez, 13 Conn. App. 40, 44-45, 534 A.2d 623 (1987). We find the defendant's argument fails for these two reasons. The record indicates that the slides were not available until the day before Sturner's testimony was given. If the defendant accepted the state's offer for a continuance, the defendant would have had the time to examine the slides. The trial court, having no motion for a continuance before it, did not err in concluding that the defendant had sufficient time to examine the slides and to prepare a proper cross-examination. IV The defendant's final claim is that the trial court erred in denying the motion to acquit, motion for a new trial, and motion for acquittal notwithstanding the verdict. After reviewing each claim, we find that the trial court did not err. The defendant first argues that the trial court erred in not granting his motion to acquit, made at the conclusion of the state's case and renewed after the close of all the evidence, based on insufficient evidence. "Although the defendant was indicted for murder, his subsequent conviction of the lesser included offense of manslaughter implicitly acquitted him of the murder charge. State v. Rodriguez, 180 Conn. 382, 398-99, 429 A.2d 919 (1980). In these circumstances, his challenge to the indictment is academic, and thus we need not address that claim. See State v. Nardini, 187 Conn. 109, 112, 445 A.2d 304 (1982)." State v. Shipman, 195 Conn. 160, 162, 486 A.2d 1130 (1985). The defendant's additional claims of error with respect to the denial of the motion for a new trial and the motion for acquittal notwithstanding the verdict are, in essence, challenges to the sufficiency of evidence. Our Supreme Court has concisely summed up our scope of review for such claims in State v. Simino, 200 Conn. 113, 116, 509 A.2d 1039 (1986): "When a claim on appeal challenges the sufficiency of the evi dence, we undertake a two part task. We first review the evidence presented at trial, construing it in the light most favorable to sustaining the jury's verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt." Id., 116-17. The evidence in this case overwhelmingly supports the jury's verdict. The central factual issue was whether the victim was manually strangled. The state presented expert medical testimony to establish the defendant's guilt, which was contradicted by the defendant. See id. A careful review of the evidence indicates that the evidence, if believed by the jury, was sufficient to convict the defendant of manslaughter in the first degree. There is no error. In this opinion the other judges concurred. General Statutes § 53a-55 (a) provides in pertinent part: "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. ." Although the defendant was convicted of the offense of possession of cocaine, we note that he has not raised any claim of error regarding this particular conviction. Our review is, therefore, limited to the manslaughter conviction. See, e.g., Butsch v. Planning & Zoning Commission, 6 Conn. App. 686, 688 n.2, 506 A.2d 1093 (1983). We note, further, that even if the restriction on cross-examination was error, it would have been harmless since the defendant was granted the opportunity to call the witness in his case-in-chief, which was eventually done. B. Holden & J. Daly, Connecticut Evidence (Sup. 1983) § 10c (2).

Norcott, J. The defendant appeals from the judgment of the trial court revoking his probation. We find no error. The defendant was originally charged with evading responsibility in violation of General Statutes § 14-224. This charge stemmed from an automobile accident with one Pamela Anderson. As a result of a plea bargain, however, the defendant pleaded guilty to the crime of failure to appear in the second degree in violation of General Statutes § 53a-173. The defendant received a sentence of three months, execution suspended, and was placed on probation for one year with the special condition that he make restitution of $750 to Anderson "per small claims court." The defendant never paid any of the restitution despite the efforts of his probation officer and the victim. Ultimately, the defendant was arrested for being in violation of probation in violation of General Statutes § 53a-32. On May 8, 1987, a hearing was held to determine whether the defendant's probation should be revoked. At the conclusion of the probation revocation hearing, the trial court found that the defendant had violated the special condition of his probation and sentenced him to serve thirty days of his three month suspended sentence. The defendant then filed a motion for rehearing. At oral argument on the defendant's motion for rehearing, the defendant claimed for the first time that he was unable to pay the entire amount of restitution at once. The trial court, however, found that the defendant was not indigent and had willfully violated the terms of his probation. The court denied the motion. " '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)." State v. Navikaukas, 12 Conn. App. 679, 682, 533 A.2d 1214 (1987). In this case, there is no question that the defendant violated the conditions of his probation. The only question is whether the defendant should be incarcerated because the rehabilitative purpose of probation cannot continue to be served. In Bearden v. Georgia, 461 U.S. 660, 672, 103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983), the United States Supreme Court held that when attempting to determine whether the rehabilitative purpose of probation can continue to be served, the sentencing court must inquire into the reasons for the failure to pay restitution. "If the probationer willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation and sentence the defendant to imprisonment within the authorized range of its sentencing authority. 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.; State v. Martinik, 1 Conn. App. 70, 71-72, 467 A.2d 1247 (1983). In this case, the court concluded that the defendant's failure to pay was willful and that the rehabilitative purpose of probation could no longer be served. Such a conclusion is adequately supported by the record. We will not substitute our judgment for that of the trial court. State v. Navikaukas, supra, 683. 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 setting forth that the defendant has, in the judgment of the probation officer, violated the conditions of his probation. . . . (b) If such violation is estab lished, 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."

O'Connell, J. The defendant appeals from the judgment of conviction, after a jury trial, of assault in the second degree in violation of General Statutes § 53a-60 (a) (2), assault in the third degree in violation of General Statutes § 53a-61 (a) (1), and threatening in violation of General Statutes § 53a-62 (a) (l). The defendant claims the court erred (1) in admitting evidence of other beatings inflicted by the defendant upon the victim, (2) in allowing testimony of the defendant's drug use, and (3) in improperly instructing the jury on reasonable doubt. The defendant further claims that he was denied a fair trial because of improper prosecutorial comments concerning his failure to testify. We find no reversible error. The jury could reasonably have found the following facts. At various times on June 10 and 11, 1986, the victim, who had previously lived with the defendant, encountered him on the streets of New London. The defendant demanded money from the victim, and, when it was not provided, the defendant beat, kicked and cut the victim and threw her from a third floor porch to a lower landing. He also threatened her for reporting this brutality to the police. At trial, the victim testified on redirect examination that during their cohabitation, she and the defendant got along amicably as long as she gave the defendant money and drugs, but that he beat her whenever she did not. The defendant did not testify. The circumstances surrounding the state's attorney's comments regarding this failure to testify are set forth in the course of the ruling on that claim. I The first two claims of error concern the admission of evidence of the defendant's prior misconduct. The defendant does not strenuously press his claim concerning prior drug use. In a nonresponsive answer to a question posed by the defendant on cross-examination, concerning the victim's relationship with the defendant, the victim alluded to the defendant's drug use. No motion to strike the unresponsive reply was made by the defendant at that time and it was allowed to stand. Although perhaps inadmissible, once the defendant allowed the bars to be let down to an incompetent or irrelevant field of inquiry by failing to object to the victim's response, he could not complain if his adversary was also allowed to avail himself of the opening. State v. Roy, 173 Conn. 35, 49-50, 376 A.2d 391 (1977). The defendant does, however, vigorously argue error in his second claim, regarding the admission of evidence that he beat the victim on previous occasions. On cross- examination of the victim, the defendant introduced evidence intended to show that he and the victim got along harmoniously when they lived together. On redirect examination, the court allowed the state to inquire into this relationship to show that this was not so, and that the victim had been subjected to beatings by the defendant during that period. We recognize that evidence of guilt of other crimes is normally inadmissible because of the danger that the jury will infer that if a person committed an earlier crime he probably committed the present crime as well. State v. Ouellette, 190 Conn. 84, 95, 459 A.2d 1005 (1983). This rule, however, is not without its exceptions. In this case, "[t]he field of inquiry was opened by the defendant and he cannot complain if the state attempted to clarify that field, even if the evidence would otherwise be inadmissible. State v. Roy, [supra, 50]; see State v. Glenn, 194 Conn. 483, 498-99, 481 A.2d 741 (1984)." State v. Bowman, 3 Conn. App. 148, 154, 485 A.2d 1343 (1985). The trial court did not commit error in allowing evidence of prior drug use or prior beatings of the victim by the defendant to be admitted. II With regard to the defendant's third claim concerning the court's jury instruction on reasonable doubt, the transcript shows that at one point in the jury instruction the court stated: "[I]f the facts you may find proven on the evidence you deem credible [are] consistent with or may be reasonably explained by any other hypothesis, then the accused is guilty. " (Emphasis added.) The statement is unquestionably wrong. To be correct the instruction should have stated that under such circumstances the defendant should have been found not guilty. It is significant, however, that such a clear misstatement of a rudimentary legal principle brought no outcry from either counsel. It is possible, however, that the instruction as presented in the transcript was not that actually given by the court, but is rather the result of a typographical error on the part of the transcript's preparer. Nonetheless, we must accept the transcript as it appears. We observe that when defense counsel, actually present in the courtroom at the time of a claimed error, fails to object and except, we may presume that he did not view the allegedly objectionable language to be as egregious as appellate counsel now urges; nor did he view the error as so prejudicial that his client's right to a fair trial was seriously jeopardized. State v. Lubesky, 195 Conn. 475, 484, 488 A.2d 1239 (1985). State v. Bradley, 12 Conn. App. 163, 168, 529 A.2d 1343 (1987). "This assumption is reinforced by the defendant's failure to include the claim in his preliminary statement of the issues as is required by Practice Book [4013]." State v. Salz, 8 Conn. App. 125, 138-39, 512 A.2d 921, cert, denied, 201 Conn. 807, 515 A.2d 380 (1986). Because of the absence of proper preservation, we address this claimed error under the doctrine of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), because the defendant's constitutional right to a fair trial is implicated. " 'On appeal, the adequacy of jury instructions is not determined by the giving of any one instruction, but by examining the instruction as a whole.' " State v. Brown, 199 Conn. 14, 27, 505 A.2d 690 (1986). The trial court correctly explained each of the elements of the crimes charged, and in the course of so doing instructed the jury more than forty times to the effect that each element must be proved beyond a reasonable doubt in order to find the defendant guilty of any crime. At the very least, we are confronted with an inadvertent slip of the tongue by the trial court. Notwithstanding that the instruction as given involves a constitutional right, reversible error is not an inevitable appellate result. " 'An erroneous instruction, even of constitutional dimension, is harmless if, viewed in the context of the charge as a whole, there is no reasonable possibility that the jury was misled.' " State v. Cobb, 199 Conn. 322, 325, 507 A.2d 457 (1986). Examining this charge as a whole, we conclude that it is not reasonably possible that the jury was misled. State v. Shifflet, 199 Conn. 718, 754, 508 A.2d 748 (1986). The trial court's error was harmless. Ill As his final claim of error, the defendant raises a comment made by the prosecutor regarding the defendant's failure to testify. Despite the defendant's failure to preserve the issue in a proper manner, it is reviewable under State v. Evans, supra, 71. State v. Magnotti, 198 Conn. 209, 215, 502 A.2d 404 (1985). General Statutes § 54-84 prohibits a prosecutor from commenting on the fact that an accused does not testify. It is essential, however, that we examine the circumstances under which the state's remark was made. In his closing argument, defense counsel noted the paucity of eyewitnesses called to testify on the state's behalf, and argued that "to prove [a crime] in a court of law you better come up with a witness. There is none in this whole case . . . ." In rebuttal, the state argued that "[i]f there are only two people there, they are the only ones who can testify as to what happened. And the defendant doesn't take the stand which is his right. That leaves only one person; that is the victim." (Emphasis added.) It is apparent that the remarks of the state's attorney were invited by the comments of defense counsel. When a prosecutor's allegedly improper argument is in direct response to matters raised by defense counsel, the defendant has no grounds for complaint. United States v. Estremera, 531 F.2d 1103, 1110 (2d Cir. 1976), cert, denied, 425 U.S. 979, 96 S. Ct. 2184, 48 L. Ed. 2d 807 (1976); United States v. Hoog, 504 F.2d 45, 50 (8th Cir. 1974). In reviewing the challenged comment in the context of the entire trial; State v. Haskins, 188 Conn. 432, 457, 450 A.2d 828 (1982); we conclude that in the totality of the circumstances the defendant was not deprived of a fair trial. There is no error. In this opinion the other judges concurred. General Statutes § 53a-60 provides in pertinent part: "assault in THE second degree: class d felony, (a) A person is guilty of assault in the second degree when: . . . (2) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . ." General Statutes § 53a-61 provides in pertinent part: "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 such person or to a third person . . . ." General Statutes § 53a-62 provides in pertinent 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 . . . ." The question posed to the victim by defense counsel and her reply are as follows: "Q. But you admit that you gave [the defendant] money when he asked for it? "A. I was supporting two habits. "Q. Your answer is yes? "A. Yes." For example, prior misconduct may be allowed into evidence to prove " 'many different things, such as intent, identity, malice, motive or a system of criminal activity.' " State v. Brown, 199 Conn. 47, 56, 505 A.2d 1225 (1986). Because the transcript was prepared by a steno typist and not a court monitor, no audio recording of the actual testimony was made which could have been checked to test the veracity of the transcript. This observation, however, is not intended to inject this court into a controversy concerning the superiority of the services supplied by court reporters vis-a-vis court monitors. We note that appellate counsel did not try the case. "[General Statutes] Sec. 54-84. testimony or silence of accused. (a) Any person on trial for crime shall be a competent witness, and at his or her option may testify or refuse to testify upon such trial. The neglect or refusal of an accused party to testify shall not be commented upon by the court or prosecuting official, except as provided in subsection (b) of this section. "(b) Unless the accused requests otherwise, the court shall instruct the jury that they may draw no unfavorable inferences from the accused's failure to testify. In cases tried to the court, no unfavorable inferences shall be drawn by the court from the accused's silence." The full text of the assistant state's attorney's comment on rebuttal regarding the defendant's failure to testify is as follows: "Counsel made a deal of the fact that there was no witness at the threatening. There was no evidence at the first assault. Well, if there aren't any witnesses, we are not going to put people on the witness stand to perjure themselves. If there are only two people there, they are the only ones who can testify as to what happened. And the defendant doesn't take the stand, which is his right. That leaves only one person; that is the victim. We can't put somebody else there and have somebody else testify as to what they saw when they didn't see anything. So she is the only one that can testify as to what happened to her. And you saw the injuries."

Callahan, J. The plaintiff, Expressway Associates II (Expressway), brought an action against Friendly Ice Cream Corporation of Connecticut, also known as Friendly Ice Cream Corporation (Friendly's), claiming injunctive relief and damages for Friendly's alleged interference with a designated right-of-way claimed by Expressway over land owned by Friendly's in the town of Glastonbury. Expressway's complaint alleged that Friendly's had laid out parking spaces and placed obstacles within its right-of-way and had restricted the right-of-way to one-way traffic. In its claims for relief, Expressway sought an end to interference with its easement, removal of the parking spaces and obstacles, elimination of the one-way traffic restriction and damages. After a trial, the trial court determined that Expressway's claimed right-of-way was contingent upon Expressway giving notice to Friendly's that Expressway was about to commence construction of a building on its site, the dominant estate, which was served by the right-of-way. The trial court found that such notice was required by the documents creating the right-of-way and that no such notice had been given. It further found that construction had not been commenced on Expressway's land and that construction could not be commenced because Expressway, to that point, had been unable to obtain the necessary permits from the town. The trial court concluded that because the contingency necessary to inaugurate the right-of-way had not occurred, Expressway had failed to show that it had been irreparably harmed by Friendly's incursions and denied Expressway an injunctive remedy. The trial court also found that Expressway had failed to prove that it was entitled to damages. The trial court's decision effectively allowed Friendly's to continue to use the area of the designated right-of-way for its own purposes pending notice from Expressway that it was about to begin construction on its property. Expressway appealed the trial court's decision to the Appellate Court. Expressway Associates II v. Friendly Ice Cream Corporation of Connecticut, 22 Conn. App. 124, 576 A.2d 575 (1990). The Appellate Court determined that the trial court had misread the documents that created Expressway's right-of-way. Id., 126. Contrary to the trial court's holding, the Appellate Court concluded that notice was required only as a precondition for Expressway's construction of a permanent roadway over the area encompassed by the right-of-way at some time in the future. Id., 128-29. Accordingly, the Appellate Court held that despite the contingency concerning the road, Expressway had a present right-of-way over the designated area and that Friendly's could not use its land within the bounds of the right-of-way "for any purpose that would deprive the plaintiff of its right to use the right-of-way." Id., 129. The Appellate Court, therefore, reversed the judgment and remanded the case with direction to the trial court to render judgment for Expressway granting the injunctive relief sought and for further proceedings to determine the amount of damages. Id., 131. We granted certification limited to a single issue: "Was the Appellate Court correct in including further proceedings with respect to damages in the remand when the plaintiff failed to prove damages at trial and conceded that it was entitled only to nominal damages?" Expressway Associates II v. Friendly Ice Cream Corporation of Connecticut, 216 Conn. 811, 580 A.2d 56 (1990). It is axiomatic that the burden of proving damages is on the party claiming them. Gargano v. Heyman, 203 Conn. 616, 620, 525 A.2d 1343 (1987); Conaway v. Prestia, 191 Conn. 484, 493-94, 464 A.2d 847 (1983); Dixon v. Trubisz, 17 Conn. App. 216, 217-18, 551 A.2d 1259 (1988). When damages are claimed they are an essential element of the plaintiff's proof and must be proved with reasonable certainty. Simone Corporation v. Connecticut Light & Power Co., 187 Conn. 487, 495, 446 A.2d 1071 (1982); Bianco v. Floatex, Inc., 145 Conn. 523, 525, 144 A.2d 310 (1958). Damages "are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty." Humphrys v. Beach, 149 Conn. 14, 21, 175 A.2d 363 (1961); Gargano v. Heyman, supra, 621; Simone Corporation v. Connecticut Light & Power Co., supra, 494-95; Bronson & Townsend Co. v. Battistoni, 167 Conn. 321, 326-27, 355 A.2d 299 (1974); Anderson v.Zweigbaum, 150 Conn. 478, 482, 191 A.2d 133 (1963). In order to be entitled to more than nominal damages for Friendly's interference with its right-of-way, Expressway was required to demonstrate at trial either the diminution in the value of its property because of Friendly's interference with its easement; Kelly v. Ivler, 187 Conn. 31, 47, 450 A.2d 817 (1982); see Buckley v. Maxson, 120 Conn. 511, 519, 181 A. 922 (1935); the cost to return the easement to its original state; Kelly v. Ivler, supra; see Center Drive-In Theatre, Inc. v. Derby, 166 Conn. 460, 467-68, 352 A.2d 304 (1974); or the difference in the value of the easement before the interference and its value after it was obstructed. Kelly v. Ivler, supra; see generally System Fuels, Inc. v. Barnes, 363 So. 2d 747, 749 (Miss. 1978); 28 C. J.S., Easements § 114 (a). Expressway, despite opportunity, failed to produce evidence at trial to prove any of these factors. The parties to this case were notified by the court on January 19,1989, that it was to be tried on February 10, 1989, and it was actually tried on that date. There is no indication in the notice scheduling the matter for trial that it was assigned only for a hearing on Expressway's claim for injunctive relief. Further, there is nothing in the record to suggest that the issue of dam ages was not to be addressed on February 10, 1989, or that Expressway was prevented or constrained from attempting to prove any damages it may have suffered as a result of Friendly's actions. Moreover, in closing arguments, Expressway's counsel, in emphasizing its need for an injunction, stated that "[tjhere's no civil suit that can be brought at the moment, that I can think of anyway, to claim damages because there aren't any damages, they're speculative." (Emphasis added.) "The general rule is that admissions, if relevant and material, made by an attorney incidental to the general authority of the attorney to represent his client in connection with and for the purpose of controlling the matter committed to him are admissible against the client." Collens v. New Canaan Water Co., 155 Conn. 477, 496, 234 A.2d 825 (1967); Lickteig v. Buckholtz, 129 Conn. 399, 401-402, 28 A.2d 871 (1942); Allen v. Nissley, 184 Conn. 539, 543, 440 A.2d 231 (1981); Evans Products Co. v. Clinton Building Supply, Inc., 174 Conn. 512, 517, 391 A.2d 157 (1978); Wesson v. F.M. Heritage Co., 174 Conn. 236, 243, 386 A.2d 217 (1978). We see no reason to vary that general rule in this instance, particularly when the evidence at trial was consistent with counsel's statement. We conclude in this case, as we did in Loew's Enterprises, Inc. v. International Alliance of T.S.E., 127 Conn. 415, 421-22, 17 A.2d 525 (1941), that "[tjhe plaintiff was in effect seeking as its sole remedy an injunction. There is no basis in its claims or in the facts proven which would justify a remand of the case for a retrial of issues in a claim for damages." The Appellate Court noted in its decision, however, that it was undisputed that Friendly's had laid out parking spaces and had placed obstacles in Expressway's right-of-way. It concluded that it was clear, therefore, that Expressway had proven that Friendly's had interfered with its rights in the designated area. Express way Associates II v. Friendly Ice Cream Corporation of Connecticut, supra, 22 Conn. App. 131. Proof of a legal injury to a real property right entitles a plaintiff to at least token or nominal damages even if no specific actual damages are proven. In this case, therefore, despite the fact that Expressway failed to prove actual damages, it is entitled to nominal damages. It is not, however, entitled to another trial on the issue of damages. Kelly v. Ivler, supra, 46; Riccio v. Abate, 176 Conn. 415, 419 n.2, 407 A.2d 1005 (1979); Maganini v. Coleman, 168 Conn. 362, 364, 362 A.2d 882 (1975); Dimmock v. New London, 157 Conn. 9, 16, 245 A.2d 569 (1968); Patalano v. Chabot, 139 Conn. 356, 362, 94 A.2d 15 (1952). The judgment of the Appellate Court is reversed, therefore, to the extent that it ordered further proceedings to determine the amount of damages to be awarded to Expressway and the case is remanded to the Appellate Court with direction to remand it to the trial court with direction to render a judgment for Expressway for $1 in damages. In this opinion the other justices concurred.

Per Curiam. There is no error.

Per Curiam. In this habeas corpus action, the petitioner claims that his conviction should be set aside because the pool of veniremen available for selection of a petit jury at his trial in 1974 was not representative of a fair cross-section of the population of Fair-field county, in violation of his right under the sixth amendment to our federal constitution to a trial "by an impartial jury of the State and district wherein the crime shall have been committed." He also claims a violation of his sixth amendment right "to have the assistance of counsel for his defense" in that his attorney at trial failed to challenge the array from which his jury was selected. The basis for the petitioner's claim that the jury pool was not representative of the Fairfield county population was that black people were not included in proportion to their number in the county. Because he is white, and thus is not a member of the underrepresented minority group, the petitioner has not claimed a violation of his federal fourteenth amendment right to "the equal protection of the laws." Fay v. New York, 332 U.S. 261, 287, 67 S. Ct. 1613, 91 L. Ed. 2043, reh. denied, 332 U.S. 784, 68 S. Ct. 27, 92 L. Ed. 367 (1947). He was eligible, however, to assert a fair cross section claim upon the ground that discrimi nation against any significant minority group would render the jury array not fairly representative of the "district wherein the crime [was] committed." Peters v. Kiff, 407 U.S. 493, 504, 92 S. Ct. 2163, 33 L. Ed. 2d 83 (1972). After concluding that the petitioner had not deliberately bypassed his opportunity to challenge the array in the trial court, the habeas court rejected both his claim of a fair cross section violation and his claim of ineffective assistance of counsel. It rendered judgment dismissing the petition. The petitioner's appeal from that judgment was argued in this court as a companion case to the appeals of thirty-one other petitioners who had raised equal protection claims based upon underrepresentation of black or Hispanic people on jury arrays in Fairfield county resulting from the town quota system of jury pool composition established by General Statutes (Rev. to 1975) § 51-220, which was in effect while their cases were pending in the trial court. See Johnson v. Commissioner of Correction, 218 Conn. 403, 589 A.2d 1214 (1991). Without addressing the merits of the equal protection claims, we affirmed the judgments dismissing those petitions. Id. For reasons similar to those expressed in Johnson, we affirm the dismissal of the petition in this case without considering the merits of the petitioner's fair cross section claim. In Johnson we held that the procedural default of the petitioners in failing to challenge the array of jurors before trial, as required by Practice Book § 810 and 811, barred habeas review of the merits of the petitioners' equal protection claims. For the same reason, we conclude that the failure of this petitioner before trial to challenge the array available for selection of a petit jury for his trial precludes habeas review of his fair cross section claim. In Johnson we also held that the failure of trial counsel for each petitioner to challenge the array of jurors available for selection on grand or petit juries did not constitute ineffective assistance of counsel under the standard for performance of defense counsel established in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). For the reasons given in Johnson, as well as the further consideration that competent counsel would not ordinarily have any reason to believe that a jury array including more black people would be more favorably disposed toward a white defendant, we reject this petitioner's claim that his counsel was ineffective for failure to challenge the array of jurors in his case. Accordingly, we agree with the habeas court that the petition should be dismissed. The judgment is affirmed. The United States Supreme Court has recently extended to a white criminal defendant standing to attack the use of peremptory challenges of black jurors by the prosecution as racially discriminatory and violative of the right to equal protection of the laws. Powers v. Ohio, U.S. , 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991); see Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). Our disposition of the present case would not be affected if this defendant had asserted an equal protection challenge rather than a fair cross section challenge to the composition of the jury that found him guilty.

Per Curiam. The defendant, Antonio Osman, was convicted by a jury, as charged in a two count information, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3) and of conspiracy to commit robbery in the first degree in violation of General Statutes § 53a-48 and 53a-134 (a) (3). He appealed to the Appellate Court the trial court's refusal to set aside the jury's verdict and to render a judgment of acquittal on both counts of the information. In his appeal he claimed that there was insufficient evidence presented at trial to identify him as a participant or conspirator in the robbery charged and that a pellet gun he had allegedly used in the robbery was not a dangerous instrument as defined by General Statutes § 53a-3 (7). The Appellate Court agreed with the defendant that the pellet gun was not a dangerous instrument as charged in the first count of the information and as required for a conviction of robbery in the first degree under § 53a-134 (a) (3). State v. Osman, 21 Conn. App. 299, 307, 573 A.2d 743 (1990). A divided court determined, however, that the evidence was sufficient to prove beyond a reasonable doubt the identification of the defendant as a participant in the robbery. Id., 303-305. The Appellate Court consequently remanded the case to the trial court with direction to set aside the judgment of guilty of robbery in the first degree on the first count and to render a judgment of guilty of robbery in the third degree in violation of General Statutes § 53a-136 and to resentence the defendant accordingly. Id., 314. As to the second count of the information, a majority of the court found that a tire iron wielded by an alleged coparticipant and coconspirator in the robbery had been, as utilized, a dangerous instrument, and that its possession was adequately charged and instructed upon, and sufficed to support the jury's verdict that the defendant was guilty of conspiracy to commit robbery in the first degree. Id., 309. We granted certification limited to the following issues: "(1) Did the Appellate Court correctly conclude that the evidence adduced at trial to prove identification was sufficient to sustain, logically and beyond a reasonable doubt, the jury's guilty verdict on first degree robbery and conspiracy to commit first degree robbery? (2) Did the Appellate Court correctly determine that evidence of a coparticipant's use or threatened use of a tire iron was sufficient to sustain the defendant's conviction of conspiracy to commit first degree robbery, in violation of [General Statutes] § 53a-48 and 53a-134 (a) (3), where that theory of liability was neither charged in the information nor instructed upon at trial?" State v. Osman, 216 Conn. 801, 577 A.2d 717 (1990). The robbery that precipitated the charges against the defendant occurred at a Cumberland Farms convenience store in Manchester on May 11, 1986, at approximately 9:15 p.m. At that time, two young males, one armed with a pellet gun and the other with a tire iron, entered the store, threatened the husband and wife tending the store and escaped with money from the cash register. One of the men wore a Halloween mask and the other had a bandanna covering his face. Neither victim was able to identify either of the participants in the robbery. All the evidence linking the defendant to the crime, therefore, was circumstantial. There is no distinction between circumstantial and direct evidence so far as probative force is concerned. State v. Smith, 212 Conn. 593, 599, 563 A.2d 671 (1989); State v. Uretek, Inc., 207 Conn. 706, 715, 543 A.2d 709 (1988); State v. Walker, 206 Conn. 300, 315-16, 537 A.2d 1021 (1988); State v. Magnano, 204 Conn. 259, 287, 528 A.2d 760 (1987); State v. Rodgers, 198 Conn. 53, 58, 502 A.2d 360 (1985); State v. D'Antuono, 186 Conn. 414, 421, 441 A.2d 846 (1982). Further, the evidence presented at trial must be construed in a fashion most favorable to sustaining the jury's verdict. State v. Mandrell, 199 Conn. 146, 154, 506 A.2d 100 (1986); State v. Haddad, 189 Conn. 383, 387, 456 A.2d 316 (1983); State v. Brice, 186 Conn. 449, 459, 442 A.2d 906 (1982); State v. Jackson, 176 Conn. 257, 262, 407 A.2d 948 (1978); State v. Brunori, 22 Conn. App. 431, 435, 578 A.2d 139, cert. denied, 216 Conn. 814, 580 A.2d 61 (1990). We also acknowledge that the trial court's findings of fact are entitled to great weight and that a conviction based on the facts found by the trier will be affirmed if the trier of fact "could reasonably have inferred [from the evidence] that the defendant was guilty beyond a reasonable doubt." State v. Cobbs, 203 Conn. 4, 7, 522 A.2d 1229 (1987); State v. Mandrell, supra, 153-54; State v. Scielzo, 190 Conn. 191, 196, 460 A.2d 951 (1983); State v. D'Antuono, supra, 421; State v. Perez, 182 Conn. 603, 607, 438 A.2d 1149 (1981). The trial court's findings of fact are not conclusive, however, and we will reverse a judgment where the state's evidence is improbable and unconvincing and where all the facts found are insufficient to prove the guilt of the defendant beyond a reasonable doubt. State v. Cobbs, supra, 11, 13; State v. Mandrell, supra, 154; State v. Payne, 186 Conn. 179, 184, 440 A.2d 280 (1982); State v. Mayell, 163 Conn. 419, 427-28, 311 A.2d 60 (1972); State v. Kelsey, 160 Conn. 551, 553-54, 274 A.2d 151 (1970). The case where that occurs is rare, and rightfully so, because of the great deference afforded the factual findings of the trier. This, however, is one of those rare cases. Because the facts are set forth at great length and detailed and dissected in both the majority and dissenting opinions in State v. Osman, supra, 21 Conn. App. 299, it would be gilding the lily and serve no useful precedential purpose to repeat them here. Suffice it to say that our review of the record convinces us that the cumulative effect of the evidence elicited at the defendant's trial was insufficient to establish beyond a reasonable doubt the defendant's identity as one of the two young men who robbed the Cumberland Farms convenience store in Manchester on May 11,1986. To have arrived at its decision that the defendant was one of the robbers, the jury would have had to resort to speculation and conjecture and to have drawn unwarranted inferences from the facts presented. When that occurs, the jury's verdict must be set aside. State v. Cobbs, supra, 13; State v. Mandrell, supra, 154; State v. Haddad, supra, 388; State v. Payne, supra, 184; State v. Mayell, supra, 428; State v. Brunori, supra, 440. Our resolution of the first certified issue makes it unnecessary that we consider the second issue certified. The judgment of the Appellate Court is reversed, and the case is remanded to that court with direction to remand the case to the trial court with direction to ren der judgment that the defendant is not guilty of the charges contained in the two counts of the information on which he was tried or of any lesser included offenses thereof, and to order that the defendant be discharged. General Statutes § 53a-134 (a) (3) provides: "robbery in the first degree: class b felony, (a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime . (3) uses or threatens the use of a dangerous instrument." "[General Statutes] Sec. 53a-48. conspiracy, renunciation, (a) A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy. "(b) It shall be a defense to a charge of conspiracy that the actor, after conspiring to commit a crime, thwarted the success of the conspiracy, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose." General Statutes § 53a-3 (7) provides: "definitions. Except where different meanings are expressly specified, the following terms have the following meanings when used in this title "(7) 'Dangerous instrument' means any instrument, article or substance which, under the circumstances in which it is used or attempted or threatened to be used, is capable of causing death or serious physical injury, and includes a 'vehicle' as that term is defined in this section." "[General Statutes] Sec. 53a-136. robbery in the third degree: class D felony, (a) A person is guilty of robbery in the third degree when he commits robbery. "(b) Robbery in the third degree is a class D felony." The alleged copartieipant in the robbery was not tried with the defendant. As to the first count of the information, the Appellate Court actually concluded that the evidence supported only a conviction of robbery in the third degree in violation of General Statutes § 53a-136. The certification granted is therefore inaccurate to the extent that it indicates that the Appellate Court sustained the trial court's judgment that the defendant was guilty of robbery in the first degree. The real question in the first issue certified, however, is whether there was sufficient evidence elicited at trial to prove the identification of the defendant as a participant in the robbery and conspiracy. The unfortunate scrivener's error in the first issue certified is therefore immaterial to our decision.

Per Curiam. After a plenary examination of the record, transcripts and briefs filed in this matter, and after having afforded those claims of error, which are properly before this court, the appropriate scope of review, we conclude that there is no merit to the defendant's averments of error. There is no error.

Borden, J. The dispositive issue of this appeal is whether, under the fourth amendment to the United States constitution, the defendant had a reasonable expectation of privacy in certain closed containers located in the area under a highway bridge abutment where he was living. The defendant appeals from the judgment of conviction, after a jury trial, of felony mur der in violation of General Statutes § 53a-54c, and robbery in the first degree in violation of General Statutes § 53a-134 (a) (l). He claims that the trial court improperly: (1) denied his motion to suppress certain evidence gathered as a result of a search and seizure of certain personal property located under the bridge abutment where he had been living; (2) denied his motion to dismiss for lack of a speedy trial; (3) admitted into evidence certain testimony about a larceny he allegedly committed subsequent to the murder and robbery; and (4) denied him access to the mental health records of a state's witness. We conclude that the trial court should have granted the motion to suppress, and we reverse the judgment. The jury could reasonably have found the following facts. The defendant owed money to Mark Allen for drugs. On July 30,1987, the defendant, who was driving the car of the victim, a male homosexual, took Allen to the victim's condominium in Branford in order to pay his debt to Allen by stealing the victim's video cassette recorder and other items. The defendant told Allen that he and the victim had a homosexual relationship, and that Allen should pretend that he was interested in engaging in sex with the victim and the defendant. At the condominium, the three men had drinks and thereafter went upstairs, where the defendant and the victim took a shower together. After kissing and fondling the victim, the defendant began beating him. Allen, who had declined to become involved in the sexual activity, pulled the defendant off the victim, who was bleeding from his nose and mouth and had stopped moving. Allen then left the bedroom to search for items to steal. The defendant remained in the bedroom, where he strangled the victim with a cord. Allen left the condominium with a quantity of coins, the victim's video cassette recorder, and some other items. He stole the victim's car, leaving the defendant in the condominium with the victim. On July 31, 1987, the victim's body was discovered on the floor of his bedroom, which was in disarray, with bloodstains in various locations throughout the room. The victim had been beaten, and had been strangled to death with a ligature. On August 5,1987, the police arrested Allen in connection with the murder and robbery. Allen gave several statements in which, although he denied involvement in the victim's death, he admitted being in the victim's condominium that day and stealing his video cassette recorder, his car, and other items. In his statements, Allen implicated the defendant in the murder of the victim. On the basis of this information, the police secured an arrest warrant for the defendant and arrested him on the night of August 5, 1987. I The defendant claims that the trial court improperly denied his motion to suppress certain evidence that the Branford police had seized from an area under a highway bridge abutment where the defendant had been living at the time of his arrest. This claim, divided into two parts, is that: (1) under the fourth amendment to the United States constitution, the police violated his rights by invading his "home" under the bridge abutment without a warrant; and (2) the police violated those rights when, without a warrant, they seized his belongings, including a closed duffel bag and a closed cardboard box containing personal items, and searched them. We conclude that, on the facts presented here, the defendant had a reasonable expectation of privacy in the contents of his duffel bag and cardboard box. Accordingly, the warrantless search of his duffel bag and cardboard box by the police violated his fourth amendment rights and the evidence yielded by that search should have been suppressed. The evidence produced at the hearing on the defendant's motion to suppress disclosed the following facts. Shortly after midnight on the morning of August 6, 1987, while the defendant was in custody, Detective Anthony Morro of the Branford police department met the defendant's girlfriend, Linda Spencer, at Friendly's Restaurant in West Haven, where she was employed. At Morro's request, Spencer told him that she would take him to the place where the defendant had been living at the time of the murder. Spencer directed Morro to a bridge abutment underneath the highway overpass by the State Street entrance ramp to route 1-91 in New Haven. The abutment was separated from the entrance ramp roadway by a steep embankment that was covered by crushed stone and heavy underbrush. The state department of transportation owns the property involved. Morro climbed up the embankment and, using a flashlight to illuminate the area, saw several items, including a blanket used as a mattress, a rolled-up sleeping bag, a closed cardboard box, a suitcase, a small closed duffel bag, and paper trash bearing the Friendly's Restaurant insignia. The defendant, using the metal and cement beams of the highway support structure as shelves, had placed all of his belongings on the beams, with the exception of the duffel bag, the blanket, and the trash, which were left on the ground. Morro opened the duffel bag and found therein a paper bag containing a large quantity of quarters. He did not open the other items at that time. Morro then called the Bran-ford police department evidence officer to the scene. They photographed and tagged all of the items and brought them to the police department, where they were opened and "inventoried" by Sergeant William Carroll. The cardboard box contained a size 38 belt, and the duffel bag contained approximately $700 in coins, mostly quarters, a pair of white pants stained with what was later determined to be blood, and several pieces of jewelry. The defendant asserted ownership of all the items taken by the police and their contents, except for the belt, which he claimed to have acquired when it had been left on a park bench by a woman with whom he had been drinking. Although the defendant had been living under the bridge abutment for about one month, he previously had been living in an apartment on Chapel Street in New Haven until the second or third week in June, 1987, when he moved out after an argument with his roommate. For approximately two weeks thereafter he lived beside a fence near the Trumbull Street entrance to 1-91. He left that location when another homeless man started camping nearby, and moved to the State Street abutment area. He was still living under the bridge when he was arrested on August 5, 1987. While he was living there he had no other home. During the one month period of time that the defendant lived there, he was the only person occupying that space. Although he would leave the area every day, he would secure his belongings so that they could not be seen from the bottom of the embankment because he was worried about theft. At night, he slept there behind a bush. The defendant knew that the area was state property and that there was no reason why someone else could not enter or live in the area where he was living. In fact, the defendant acknowledged that, while he was living there, a highway worker clearing brush came upon him. The trial court found that the defendant had manifested a subjective expectation of privacy in the items seized, but, because of their location, that his expectation was not reasonable. It also found, moreover, that "it would be reasonable to assume that someone could look at the items and assume that everything had been abandoned" and that the defendant had no reasonable expectation of privacy in the contents of the items because "[t]hey were left there for anyone to observe and for anyone to open." The court accordingly denied the motion to suppress. At trial, several items found underneath the bridge abutment were presented to connect the defendant to the robbery and murder of the victim. The state introduced the white bloodstained pants and the size 38 belt into evidence. The pants linked the defendant directly to the death of the victim because Allen identified them as those worn by the defendant during the crimes. Evidence was also presented that the victim had a size 38 waist, thereby connecting the belt found in the defendant's cardboard box to the victim. The coins, the jewelry, the dagger and the bayonet; see footnote 7, supra; were introduced into evidence in order to link the defendant with a subsequent larceny from Charles C, another homosexual, who testified that the defend ant had stolen the items from him six days after the murder and robbery of the victim. The evidence regarding that larceny forms the basis of the defendant's third claim in this appeal. A The defendant first makes the broad claim that the police violated his rights under the fourth amendment when, without a search warrant, they "invaded his home" under the abutment and seized items found there. The defendant argues that he had a legitimate expectation of privacy in the area where he was living that was protected from a warrantless search. Relying solely on his homelessness, he argues that he treated the space as his home, that he had exclusive possession since he was living there alone, and that he was no less entitled to privacy under the fourth amendment because he was homeless than are the more fortunate members of society. The state responds that the defendant had no reasonable expectation of privacy in the area in question. It argues that the area in question was not protected by the fourth amendment because: (1) it was in effect an open field; (2) the defendant was not legitimately residing there, but was an interloper on public land; and (3) it was an area accessible to the public at large, and thus was by its nature "incapable of sheltering a reasonable expectation of privacy." We need not decide in this case whether the defendant had a reasonable expectation of privacy in the bridge abutment area. We assume for purposes of this decision that the state is correct that the defendant's broad claim of fourth amendment protection in the area involved must fail. We conclude, nonetheless, that the defendant's alternate, more narrow claim—that he had a reasonable expectation of privacy in his duffel bag and cardboard box located there—has merit. B The application of the fourth amendment prohibition against unreasonable searches and seizures requires the defendant to establish that he had a legitimate expectation of privacy in the invaded area. State v. Reddick, 207 Conn. 323, 330, 541 A.2d 1209 (1988). "Absent such an expectation, the subsequent police action has no constitutional ramifications." State v. Brown, 198 Conn. 348, 355, 503 A.2d 566 (1986). The determination of whether such an expectation exists is to be made on a case by case basis; State v. Reddick, supra, 331; and requires a two-part inquiry: "first, whether the individual has exhibited an actual subjective expectation of privacy, and second, whether that expectation is one society recognizes as reasonable." Id. Whether a defendant's actual expectation of privacy in a particular place is one that society is prepared to recognize as reasonable involves "a fact-specific inquiry into all the relevant circumstances." State v. Brown, supra, 356. Although "the Fourth Amendment protects people, not places"; Katz v. United States, 389 U.S. 347, 351, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967); the place searched is highly relevant to the fourth amendment analysis because "expectations of privacy in some places are afforded greater constitutional legitimacy than in others." State v. Brown, supra; United States v. Ruckman, 806 F.2d 1471, 1473 (10th Cir. 1986) (determination of protection of fourth amendment requires, in given case, reference to place; defendant had no reasonable expectation of privacy in cave, located on public land, where he lived); see also Rakas v. Illinois, 439 U.S. 128, 143, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978), reh. denied, 439 U.S. 1122, 99 S. Ct. 1035, 59 L. Ed. 2d 83 (1979) (capacity to claim protection of fourth amendment depends "upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place"). Indeed, some places, such as the open fields, afford no legitimate expectation of privacy. Oliver v. United States, 466 U.S. 170, 176, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984). The determination that a particular place is protected under the fourth amendment requires that it be one "in which society is prepared, because of its code of values and its notions of custom and civility, to give deference to a manifested expectation of privacy." United States v. Taborda, 635 F.2d 131, 138 (2d Cir. 1980). It must be "one that society is prepared to recognize as 'reasonable.' " Katz v. United States, supra, 361 (Harlan, J., concurring). Legitimate expectations of privacy derive from "concepts of real or personal property law or [from] understandings that are recognized and permitted by society. One of the main rights attaching to property is the right to exclude others, see W. Blackstone, Commentaries, Book 2, ch. 1, and one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of this right to exclude." Rakas v. Illinois, supra, 144 n.12. Of course, one need not have an "untrammeled power to admit and exclude" in order to claim the protection of the fourth amendment, so long as the place involved is one affording an expectation of privacy that society regards as reasonable. Minnesota v. Olson, 495 U.S. 91, 99-100, 110 S. Ct. 1684, 109 L. Ed. 2d 85 (1990) (overnight guest has reasonable expectation of privacy in host's home). Under some circumstances, the determination of whether an expectation of privacy is reasonable involves a balancing of interests. Hudson v. Palmer, 468 U.S. 517, 527, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984) (no reasonable expectation of privacy in prison cell because society's interest in security of penal institutions outweighs prisoner's interest in privacy within his cell). The courts have identified a number of factors indicating that a person's expectation of privacy in a particular place is one that society is not prepared to recognize as reasonable. Where the person occupying the property is a trespasser, ordinarily he has no reasonable expectation of privacy in that place. United States v. Ruckman, supra; Amezquita v. Hernandez-Colon, 518 F.2d 8,11 (1st Cir. 1975), cert. denied, 424 U.S. 916, 96 S. Ct. 1117, 47 L. Ed. 2d 321 (1976); see also Rakas v. Illinois, supra, 143-44 n.12 (wrongful presence on property gives rise to no reasonable expectation of privacy). Furthermore, leaving one's property in an area "readily accessible to animals, children, scavengers, snoops, and other members of the public" may render one's expectation of privacy less than reasonable. California v. Greenwood, 486 U.S. 35, 40, 108 S. Ct. 1625, 100 L. Ed. 2d 30 (1988) (no reasonable expectation of privacy in garbage bags, or their contents, left for collection outside curtilage of home). "Hence, '[wjhat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.' " Id., 41, quoting Katz v. United States, supra, 351. The rationale for this factor is that when a person leaves his property within reach of the public generally, it is pointless to exclude the police alone, for that "would impede effective law enforcement while adding little to the individual's interest in privacy." United States v. Most, 876 F.2d 191, 198 (D.C. Cir. 1989). We acknowledge, however, as stated by the dissent in United States v. Ruckman, supra, that factors such as whether the defendant was a trespasser and whether the place involved was public "are, of course, relevant as helpful guides, but should not be undertaken mechanistically. They are not ends in themselves; they merely aid in evaluating the ultimate question in all fourth amendment cases—whether the defendant had a legitimate expectation of privacy, in the eyes of our society, in the area searched." Id., 1476 (McKay, J., dissenting). With these guidelines in mind, we turn, then, to the defendant's alternate claim, namely, that the police violated his fourth amendment rights when they searched his duffel bag and cardboard box at the scene and subsequently at the police station. The defendant relies principally on the well established propositions that, absent certain exceptions not applicable here, an individual, by placing his personal effects inside luggage or other appropriate closed containers, manifests an expectation of privacy that the contents will remain free from public inspection, and that police intrusion into such containers ordinarily requires a warrant. See Arkansas v. Sanders, 442 U.S. 753, 765, 99 S. Ct. 2586, 61 L. Ed. 2d 235 (1979); United States v. Chadwick, 433 U.S. 1, 11, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977). The defendant also argues that the trial court misapplied the doctrine of abandonment in ruling that the police were not required to obtain a warrant before searching his belongings. The state argues, however, that the defendant did not retain a reasonable expectation of privacy in his luggage that he left under the bridge abutment. It asserts that the trial court properly determined that he abandoned any reasonable expectation of privacy in those goods by leaving them in a place accessible to the public, and that he "could not reasonably expect that his possessions would remain shielded from the curiosity of passersby or from the scrutiny of the police." The state also contends that, since the police would have been entitled to search the articles when they were found, their removal to the police station for a more thorough search was equally valid. We conclude that, although this claim presents a close question, the defendant did have a reasonable expectation of privacy in the contents of his duffel bag and box that was violated by their warrantless search. We first note that this narrow claim of the defendant, unlike his broad claim to a protected expectation of privacy in the bridge abutment area, rests on an understanding that is generally recognized and permitted by society; Rakas v. Illinois, supra, 144 n.12; namely, the general understanding that the contents of luggage and other closed containers are entitled to remain private. We also note that, unlike the defendant's first claim, this claim does not rest solely on his homelessness. That is but one factor among several, the principal ones being the nature of the containers searched and the circumstances surrounding their search. This claim requires us to confront a tension in the reasonable expectation of privacy jurisprudence of the fourth amendment that is not easily resolved. That tension is between, on one hand, the deference ordinarily afforded to expectations of privacy in luggage and other appropriate closed containers and, on the other hand, the proposition that property left by persons in open fields or public places may not command fourth amendment protection. We conclude that, under the facts of this case, that tension must be resolved in favor of the deference afforded to closed containers. It is useful to note at the outset of this discussion the precise contours of what this claim does not involve, and what we do not decide with respect to it. We are not concerned with a claim of a reasonable expectation of privacy in any goods or effects of the defendant other than his duffel bag and his cardboard box, because only the search of those closed containers yielded evidence that was introduced against the defendant in this case. We are not concerned, moreover, with the legitimate expectation of privacy that a homeless person living out of doors has with respect to his goods and effects that he has with him or under his immediate control. Indeed, Oliver v. United States, supra, 179 n.10, makes clear that even one who enters an open field retains the protection of the fourth amendment against unreasonable searches and seizures of such goods and effects. We do not decide, moreover, whether the fourth amendment protects the goods and effects of all homeless persons, regardless of their particular circumstances. Those claims will have to await their assertion in light of their own factual contexts. Furthermore, we assume that the police were entitled to seize the defendant's duffel bag and cardboard box upon probable cause to believe that they contained evidence, and to preserve them while a proper search warrant was secured. See United States v. Jacobsen, 466 U.S. 109, 115, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984); United States v. Chadwick, supra. We also do not decide under what circumstances the police may open a closed container that they come upon in a public place for purposes other than searching for evidence, such as preserving its safety or determining its ownership. See Unites States v. Sumlin, 909 F.2d 1218 (8th Cir.), cert. denied, U.S. , 111 S. Ct. 559, 112 L. Ed. 2d 566 (1990) (defendant's expectation of privacy in stolen handbag not violated when police opened bag to determine its ownership). What this claim does involve, however, is whether the fourth amendment applies to the unique factual circumstances of this case, where the closed containers were found by the police in a secluded place that they knew the defendant regarded as his home, where the defendant's absence from that place at the time of the search was due to his arrest and custody by the police, and where the purpose of the search was to obtain evidence of the crimes for which he was in custody. We begin with an analysis of the so-called luggage or closed container cases. Traditionally, great deference has been afforded under the fourth amendment to the expectation of privacy in luggage or closed containers. By placing personal effects inside a piece of luggage, one "manifest[s] an expectation that the contents would remain free from public examination. No less than one who locks the doors of his home against intruders, one who safeguards his personal possessions in this manner is due the protection of the Fourth Amendment Warrant Clause." United States v. Chadwick, supra, 11. "Luggage contents are not open to public view, except as a condition to a border entry or common carrier travel; nor is luggage subject to regular inspections and official scrutiny on a continuing basis . [Ljuggage is intended as a repository of personal effects." Id., 13. The Chadwick decision also made clear that it is the contents or interior of luggage or closed containers in which a reasonable expectation of privacy may inhere, not the visible exterior or location of the containers. "Respondents' principal privacy interest in the footlocker was, of course, not in the container itself, which was exposed to public view, but in its contents. A search of the interior was therefore a far greater intrusion into Fourth Amendment values than the impoundment of the footlocker. Though surely a substantial infringement of respondents' use and possession, the seizure did not diminish respondents' legitimate expectation that the footlocker's contents would remain private." Id., 13-14 n.8. In a different but closely related context the United States Supreme Court has stated: "A container which can support a reasonable expectation of privacy may not be searched, even on probable cause, without a warrant. See United States v. Ross, 456 U.S. [793, 809-12, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982)]; Robbins v. California, 453 U.S. [420, 426-27, 101 S. Ct. 2841, 69 L. Ed. 2d 744 (1981)] (plurality opinion); Arkansas v. Sanders, 442 U.S., at 764-765; United States v. Chadwick, 433 U.S. 1 (1977)." United States v. Jacobsen, supra, 120 n.17 (package entrusted to possession of private carrier). "Letters and other sealed packages are in the general class of effects in which the public at large has a legitimate expectation of privacy; warrantless searches of such effects are presumptively unreasonable. Even when government agents may lawfully seize such a package to prevent loss or destruction of suspected contraband, the Fourth Amendment requires that they obtain a warrant before examining the contents of such a package." Id., 114. Moreover, "[t]he reasonableness of an official invasion of the citizen's privacy must be appraised on the basis of the facts as they existed at the time that invasion occurred." Id., 115. This case law leads us to conclude that, although the United States Supreme Court has not specifically articulated the principle as such, the fourth amendment focus on the place invaded, when applied to luggage or other appropriate closed containers, refers to their interior or contents. Thus, although the inquiry in determining whether there is a reasonable expectation of privacy involves an inquiry into the particular place invaded, when the search is of a piece of luggage the principal "place" for fourth amendment purposes is the interior of the luggage and its contents. The genesis of the closed container cases lies in Ex Parte Jackson, 96 U.S. 727, 24 L. Ed. 877 (1878), in which the United States Supreme Court held that sealed packages in the mail cannot be opened without a warrant. See Walter v. United States, 447 U.S. 649, 653, 100 S. Ct. 2395, 65 L. Ed. 2d 410 (1980). The court reaffirmed Jackson in United States v. Van Leeuwen, 397 U.S. 249, 90 S. Ct. 1029, 25 L. Ed. 2d 282 (1970). Then, in Chadwick, the court struck down a warrant-less search of a locked footlocker that was seized from an automobile contemporaneously with the arrest of the defendants, as they were in the process of loading the footlocker into their automobile. United States v. Chadwick, supra, 4. The court held that although the police may have been justified in seizing the footlocker upon probable cause to believe that it contained contraband, the defendants' reasonable expectation of privacy in its contents rendered invalid the warrant-less search of it one hour later while it was in the exclusive control of the police. Id., 15. Subsequently, in Arkansas v. Sanders, supra, the court reaffirmed Chadwick and invalidated a warrant-less search of a suitcase that the defendant had placed in the trunk of the taxi in which he was the passenger. The court stated: "Where—as in the present case— the police, without endangering themselves or risking loss of the evidence, lawfully have detained one suspected of criminal activity and secured his suitcase, they should delay the search thereof until after judicial approval has been obtained." Id., 766. Similarly, in State v. Edwards, 214 Conn. 57, 570 A.2d 193 (1990), this court held that the defendant had a reasonable expectation of privacy in his backpack that was located in an apartment where he was temporarily residing, and that the consent of the lessee of the apartment to search the apartment could not vitiate that expectation. We held that it is not necessary " 'that a person assertively clutch an object in order to retain the protection of the fourth amendment' id., 75, quoting United States v. Thomas, 864 F.2d 843, 846 (D.C. Cir. 1989); and that the defendant had a justifiable expectation of privacy that his personal effects inside his backpack would remain private. State v. Edwards, supra. Although the closed container cases in which a right of privacy had been found could be read broadly in conclusive support of the defendant's position in this case, and although they have on occasion been cited for the broad proposition that where "the automobile exception is inapplicable, police may not conduct a warrant-less search of any container that conceals its contents"; California v. Greenwood, supra, 47 n.1 (Brennan and Marshall, Js., dissenting); a close reading of those cases indicates that they do not resolve the issues in this case. Rather, that line of cases involves situations where the owner or possessor of the container, at the time of his arrest, was carrying or was accompanied by the container; see, e.g., Arkansas v. Sanders, supra (suitcase in trunk of defendant's taxi); United States v. Chadwick, supra (defendants loading footlocker in trunk of car); where the owner or possessor had entrusted them to someone else for safekeeping or for a particular purpose; see, e.g., United States v. Jacobsen, supra (private freight carrier); United States v. Van Leeuwen, supra (United States mail); United States v. Barry, 853 F.2d 1479 (8th Cir. 1988) (locked suitcase held by airport bailee); or where the owner or possessor had left the container in a place where he had a reasonable expectation of privacy. See State v. Edwards, supra (backpack located in apartment where defendant was temporarily residing). Thus, the closed container cases do not compel a conclusion that the defendant in this case had a reasonable expectation of privacy in the contents of his duffel bag or cardboard box. These cases do not, however, preclude such a conclusion, because none involved the unique factual circumstances of this case. They strongly suggest, however, that the weighty interest in the expectation of privacy in the contents of luggage may be recognized by society under the facts of this case. We turn, therefore, to a different line of authority, namely, those cases, often gathered under the fourth amendment rubric of "abandonment," where luggage and other closed containers have been left by their owners or possessors in open fields or areas accessible to the public. Although we have, in a fourth amendment context, used the term "abandonment" in its common law sense of a voluntary and intentional renunciation of ownership; see State v. Zindros, 189 Conn. 228, 240, 456 A.2d 288 (1983), cert. denied, 465 U.S. 1012, 104 S. Ct. 1014, 79 L. Ed. 2d 244 (1984); it is clear that the proper "test for abandonment in the search and seizure context is distinct from the property law notion of abandonment: it is possible for a person to retain a property interest in an item, but nonetheless to relinquish his or her reasonable expectation of privacy in the object." United States v. Thomas, supra, 845. The abandonment inquiry returns us, therefore, to the original threshold inquiry for fourth amendment purposes. "Whether property has been 'abandoned,' in this sense, does not depend on where legal title rests, or whether one asserting a Fourth Amendment right has a legally enforceable possessory interest in the property; the question, rather, is whether the person claiming the protection of the Fourth Amendment 'has a legitimate expectation of privacy in the invaded place.' Rakas v. Illinois, [supra, 143]." United States v. Oswald, 783 F.2d 663, 666 (6th Cir. 1986). "In essence, what is abandoned is not necessarily the defendant's property, but his reasonable expectation of privacy therein." St. Paul v. Vaughn, 306 Minn. 337, 346, 237 N.W.2d 365 (1975); see also United States v. Most, supra, 198. Furthermore, although the fourth amendment notion of abandonment is not congruent with its common law counterpart, it is relevant although not necessary to the fourth amendment abandonment inquiry whether the defendant manifested by his conduct an intent to shed, albeit temporarily, his expectation of privacy in the item or container involved. See United States v. Thomas, supra, 845; see also California v. Greenwood, supra, 39-40 (intent to discard relevant to whether defendant had reasonable expectation of privacy in closed, opaque garbage bags). Thus, when the trial court applied the abandonment doctrine by deciding that a reasonable person would have considered the defendant's property to have been abandoned, it employed an incomplete test. Although whether a reasonable person would view property to have been abandoned may be relevant to whether the owner or possessor had abandoned his expectation of privacy therein, that is not the end of the inquiry for fourth amendment purposes. The test is whether, under all the facts, the owner or possessor may fairly be deemed as a matter of law to have relinquished his expectation of privacy in the object in question, and, where the object is a piece of luggage, in the contents thereof. The abandonment cases tend to point in a direction favorable to the state's position. In United States v. Thomas, supra, the defendant placed his gym bag in the hallway of an apartment building and began to walk down the stairway. The court held that the warrant-less search and seizure of the bag was valid because the defendant had "left it behind in a public place where he retained no reasonable expectation of privacy in it." Id., 846. The court also held that it was irrelevant that he intended to return for the bag. Id. Similarly, in United States v. Brown, 473 F.2d 952 (5th Cir. 1973), the defendant had buried a suitcase under a chicken coop on an abandoned farm. The court held that the warrantless search and seizure of the suitcase was valid because it came within the open fields doctrine, and because the defendant had voluntarily " 'discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search.' " (Emphasis in original.) Id., 954 n.5, quoting United States v. Colbert, 474 F.2d 174, 176 (5th Cir. 1973); see also California v. Greenwood, supra, 39-40 (homeowner has no reasonable expectation of privacy in closed, opaque trash bags left for collection at curb outside curtilage of home); United States v. Oswald, supra (defendant retained no reasonable expectation of privacy in luggage left in unlocked, burned-out car at side of highway). Like the luggage cases, however, these cases do not compel the conclusion that the defendant in this case retained no reasonable expectation of privacy in his duffel bag and cardboard box. Like the luggage cases, these cases are distinguishable because none of them involved the search of luggage of a homeless defendant living in a secluded area that the police knew he regarded as his home, where the search took place shortly after the arrest of the defendant. Furthermore, unlike this case, there is no indication in those cases that the defendant raised or the court considered the defendant's independent privacy interest in the interior of the closed containers. Finally, unlike most of the abandonment cases, there is in this case no element of conduct manifesting a temporary intent to relinquish an expectation of privacy in the contents of the luggage. Indeed, the defendant in this case intended to shield those contents from the gaze of others when he left them in the bridge abutment area during the day, and, of course, no contrary intent can be inferred from the fact that the police arrested him and thus prevented him from returning to his goods and effects that night. Thus, these cases do not require a rejection of the defendant's position. Neither Oliver nor Greenwood, moreover, controls this case. In Oliver, the court's textual fourth amendment rationale for the open fields doctrine was that "open fields [are not] 'effects' within the meaning of the Fourth Amendment." Oliver v. United States, supra, 176. By contrast, one's luggage is an "effect" within the meaning of the fourth amendment. See United States v. Jacobsen, supra, 114; United States v. Chadwick, supra, 12. In Oliver, furthermore, unlike this case, the court was concerned with marihuana growing openly in the field, and not the search of closed containers. Thus, the tension that we earlier articulated between the closed container cases and the open fields or abandoned property cases was not present in Oliver. In Greenwood, the court relied not only on the fact that the garbage bags in question were available to members of the public but also on the fact that the defendants "placed their refuse at the curb for the express purpose of conveying it to a third party, the trash collector, who might himself have sorted through the [defendants'] trash or permitted others, such as the police, to do so." California v. Greenwood, supra, 40. The court therefore concluded that the defendants "had no reasonable expectation of privacy in the inculpatory items that they discarded." Id., 40-41. No such purpose to leave for collection by a third party or to discard in any sense is present in this case. We return, therefore, to first principles in order to resolve the question of whether the defendant had a reasonable expectation of privacy in his duffel bag and cardboard box at the time of the search. In considering whether an expectation of privacy in a particular place is one that society is prepared to recognize as reasonable, we ask whether it is one "in which society is prepared, because of its code of values and its notions of custom and civility, to give deference to a manifested expectation of privacy." United States v. Tahorda, 635 F.2d 131, 138 (2d Cir. 1980). That is necessarily a fact-specific inquiry. In this regard, we again acknowledge that it is pertinent, but not determinative, that the location of the luggage involved was public land, and that the defendant was in effect a trespasser thereon. These factors, although relevant and helpful, must not be applied mechanically. "They are not ends in themselves; they merely aid in evaluating the ultimate question in all fourth amendment cases—whether the defendant had a legitimate expectation of privacy, in the eyes of our society, in the area searched." United States v. Ruckman, supra, 1476 (McKay, J., dissenting). Applying these first principles to the facts of this case, we conclude that the defendant had a reasonable expectation of privacy in his duffel bag and cardboard box. First, the "place" searched in this case was the interior of his closed duffel bag and box. Our society has traditionally afforded a high degree of deference to expectations of privacy in closed containers because such an area is normally intended as a repository of personal effects. Second, these containers were located in a place that, as the police knew when they searched them, the defendant regarded as his home, and that he maintained as such, however roughly. Third, the defendant, because he was under arrest and in police custody, could not be at the place he regarded as his home when the search occurred, and thus was rendered unable to assert his fourth amendment rights in the luggage. Fourth, the purpose of the search was not to safeguard the luggage or identify its owner, but to gather evidence of the very crimes for which the defendant was in custody. We believe that under these particular circumstances, society's code of values and its notions of custom and civility would cause it to recognize as reasonable the defendant's expectation of privacy in his duffel bag and cardboard box. The interior of those two items represented, in effect, the defendant's last shred of privacy from the prying eyes of outsiders, including the police. Our notions of custom and civility, and our code of values, would include some measure of respect for that shred of privacy, and would recognize its assertion as reasonable under the circumstances of this case. Furthermore, employing a balancing test—-in this case, balancing society's interest in law enforcement against the defendant's expectation of privacy in his luggage—we conclude that there would not be a significant impairment of the interest in law enforcement by the recognition of that significant privacy interest. Just as it was deemed necessary and reasonable for the police in Chadwick and Sanders to secure warrants before searching the luggage involved there, in order to preserve an individual's significant interest in the privacy of the contents of luggage, we perceive no significant impairment of society's interest in law enforcement by requiring the police in this case to have secured a warrant before searching the defendant's luggage, in order to preserve the same privacy interest. To conclude otherwise under the facts of this case would mean that this defendant's reasonable expectation of privacy against police intrusion was limited to the contents of only those closed containers that he had with him, and did not extend to those contents that he could not protect from invasion because he had been taken into custody. Such a result under the facts of this case would come dangerously close to bringing to fruition the famous ironic reference of Anatole France to "the majestic equality of the laws which forbid rich and poor alike to sleep under bridges, to beg in the streets, and to steal bread." A. France, The Red Lily (Stephens trans. 1925) p. 91. We decline so to hold, because we do not believe that our code of values or our notions of civility are so cramped. In sum, the defendant retained his reasonable expectation of privacy in the contents of his duffel bag and cardboard box. Absent the applicability of a legitimate exception to the warrant requirement, the warrantless search of those items was invalid, and the evidence yielded by that search should have been suppressed. II The defendant next claims that both his statutory and his constitutional rights to a speedy trial were violated by an eighteen month delay before trial. This claim is without merit. On August 5,1987, the defendant was arrested, and remained in custody thereafter. On September 23, 1987, the state filed its first of five informations. On October 5, 1987, the defendant filed his first motion for a speedy trial, which the trial court, Ronan, J., denied on December 29,1987. On March 30,1988, the defendant filed his second motion for a speedy trial, which the trial court, Ronan, J., granted, ordering that the defendant be tried immediately upon the disposition of the trial of Mark Allen, an essential witness for the state. On May 17,1988, the defendant, claiming denial of his speedy trial rights, moved to dismiss the charges against him. On May 18,1988, Allen was convicted, and the state announced that it was ready to proceed with the trial of the defendant. At that time, however, the defendant was not prepared to begin the trial, and, on May 25,1988, he moved for a continuance, which was granted indefinitely, leaving a date for trial to be determined later at a pretrial conference. On May 26,1988, the trial court, Maiocco, J., denied the defendant's motion to dismiss. On June 11,1988, the court assigned the case for trial on September 6, 1988. The trial did not proceed on September 6, 1988, as scheduled, and, on September 14,1988, the defendant's attorney withdrew as counsel due to a conflict of interest. On October 7, 1988, the defendant moved for appointment of a special public defender, which the court granted on October 20, 1988. The trial of the defendant began on February 6, 1989, before Judge Purtill. A The defendant first asserts that his statutory right to a speedy trial, pursuant to General Statutes § 54-82m, was violated. The defendant notes that he was arrested on August 5, 1987, that he remained in custody thereafter, and that he made two motions for a speedy trial, but that his trial did not begin until February 6, 1989, eighteen months later, in violation of the statute which prohibits the delay of trial longer than eight months for persons incarcerated in state correctional institutions. Because the defendant's argument fails to consider periods of time properly excluded from the calculation, we disagree. General Statutes § 54-82m provides in pertinent part: "(1) . . . when such defendant is incarcerated in a correctional institution of this state pending such trial . . . the trial of such defendant shall commence within eight months from the filing date of the information or indictment or from the date of arrest, whichever is later; and (2) if a defendant is not brought to trial within the time limit set forth in subdivision (1) and a trial is not commenced within thirty days of a motion for a speedy trial made by the defendant at any time after such time limit has passed, the information or indictment shall be dismissed." (Emphasis added.) In calculating the eight month period within which an incarcerated defendant must be tried, however, Practice Book § 956C (b) provides for the exclusion of "[a]ny period of delay resulting from the absence or unavailability of the defendant, his counsel, or any essential witness for the prosecution or defense. For purposes of this paragraph, a defendant or any essential witness shall be considered unavailable whenever his whereabouts are known but his presence for trial cannot be obtained by due diligence or he resists appearing at or being returned for trial." Furthermore, Practice Book § 956C (g) provides that "[t]he period of delay resulting from a continuance granted by the judicial authority at the personal request of the defendant" is excluded in calculating the eight month period. In sum, the state was required to try the defendant within eight months of the filing of the first information, excluding the time periods set forth by statute. The defendant's statutory claim is flawed first by his error in setting the date on which to begin the calculation of the statutory period. The eight month period does not begin to run until the "filing date of the information or indictment or from the date of arrest, whichever is later." General Statutes § 54-82m. Because the defendant was arrested on August 5, 1987, which preceded the filing of the first information on September 23,1987, the latter date is used to calculate the time frame within which trial was required to begin. General Statutes § 54-82m. The defendant also fails to subtract from his delay calculation two periods of time that are excluded from the computation by the Practice Book rules that supplement the statute. First, any period of delay resulting from the absence of an essential witness is not included in determining whether the eight month time period has run. Practice Book § 956C (b). The trial court, in granting the defendant's second motion for a speedy trial, ordered that the defendant's trial commence upon the conclusion of Allen's trial. The defendant, while admitting that Allen was an essential witness, nevertheless fails to deduct from his calculation the eight month period from September 23,1987, through May 18, 1988, when Allen was not available. Second, the defendant asserts that the state should be held accountable for the remaining nine month delay between the conclusion of Allen's trial and the start of his trial because the state filed five different informations against the defendant. This claim, however, ignores Practice Book § 956C (g), which excludes from the calculation of the eight month period "[t]he period of delay resulting from a continuance granted by the judicial authority at the personal request of the defendant." It was the defendant who was not prepared to proceed after Allen's trial was completed, who requested a continuance, and who required new counsel, delaying the date upon which trial could begin. The state is not accountable for those periods of time when it was prepared to proceed to trial but was hindered by the defendant. B The defendant also claims that his constitutional right to a speedy trial was violated. See U.S. Const., amend. VI; Conn. Const., art. I, § 8. This claim likewise fails. The sixth amendment guarantee of a speedy trial is a fundamental right applicable to the states through the fourteenth amendment to the United States constitution. Klopfer v. North Carolina, 386 U.S. 213, 223, 87 S. Ct. 988, 18 L. Ed. 2d 1 (1967). This right is also guaranteed by the constitution of Connecticut, article first, § 8. "Although the right to a speedy trial is fundamental, it is necessarily relative, since a requirement of unreasonable speed would have an adverse impact both on the accused and on society. United States v. Ewell, 383 U.S. 116, 120, 86 S. Ct. 773, 15 L. Ed. 2d 627 (1966); State v. Troynack, 174 Conn. 89, 91, 384 A.2d 326 (1977)." State v. Johnson, 190 Conn. 541, 544, 461 A.2d 981 (1983). "The Supreme Court of the United States and this court have identified four factors which form the matrix of the defendant's constitutional right to a speedy adjudication: [ljength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972); State v. Lloyd, 185 Conn. 199, 208, 440 A.2d 867 (1981); State v. Nims, 180 Conn. 589, 591, 430 A.2d 1306 (1980)." State v. Johnson, supra, 544-45. "[NJone of the factors standing alone would demand a set disposition; rather it is the total mix which determines whether the defendant's right was violated." State v. Nims, supra, 592. In light of our consideration of the four Barker factors, we conclude that the defendant was not denied his right to a speedy trial. There was an eighteen month time interval between the defendant's arrest and his trial. While the defendant blames the state for the whole of this delay, it was in fact caused by the initial trial of the defendant's accomplice, a continuance requested by the defendant, and the withdrawal of the defendant's counsel and appointment of new counsel. The state was prepared to proceed to trial immediately after Allen's trial was completed, within ten months from the arrest of the defendant. The defendant asserts, however, that the delay resulting from the requested continuance and the appointment of new. counsel should be attributed to the state because the state, by filing five different informations against him, impeded the work of his attorney. The record does not support this assertion. The defendant was aware that Allen was being tried as an accomplice to the murder of the victim, and that Allen was to be the state's primary witness against him in his trial. While the first information against the defendant charged him with first degree manslaughter, the second and subsequent informations filed against the defendant were all based upon charges of felony murder, first degree burglary, and first degree robbery, the identical charges of which Allen, the defendant's accomplice, was tried and convicted on May 18, 1988. See State v. Allen, 216 Conn. 367, 579 A.2d 1066 (1990). In light of the defense counsel's awareness of Allen's trial as the defendant's accomplice, and her reported attendance at that trial and possession of the transcripts of that trial, we conclude that the changes made in the substitute informations filed seven months after the original information neither surprised defense counsel nor rendered her previous work ineffective. The defendant's additional claim, namely, that the changes in the time of the crimes alleged rendered his attempts at providing alibi testimony futile, is insupportable. The time periods of the crime cited in the five informations range from "on or about" July 29,1987, in the evening hours through "on or about" July 30, 1987. This discrepancy in the informations "does not present such a strong case for the defendant that he is excused from the requirement of showing prejudice." State v. L'Heureux, 166 Conn. 312, 320, 348 A.2d 578 (1974). The discrepancies among the dates and times of the crimes alleged in the different informations were not substantial enough to prejudice the defendant's abil ity to procure alibi testimony. The defendant does not claim that he would have produced additional or different witnesses depending on whether the date was July 29,1987, as opposed to July 30,1987. Because the filing of the substitute informations did not hamper the defendant's ability adequately to prepare his defense; id.; we conclude that the delays in the trial caused by the defendant's request for a continuance and for an appointment of new counsel cannot be attributed to the state. See State v. Antrum, 185 Conn. 118, 122-23, 440 A.2d 839 (1981) (where state was prepared for trial and defendant requested continuances and requested new counsel, court tolled periods of time delay attributable to defendant); see also United States v. Loud Hawk, 474 U.S. 302, 306, 106 S. Ct. 648, 88 L. Ed. 2d 640, reh. denied, 475 U.S. 1061, 106 S. Ct. 1289, 89 L. Ed. 2d 596 (1986) (time consumed by defendant pursuing interlocutory appeal not weighed in support of his speedy trial claim). The second factor under the Barker matrix concerns the reasons for the delay of trial. As previously discussed, the first nine months of the eighteen month postponement was the result of the state's need to try an accomplice to the crime in order to secure the testimony of a necessary witness. While this delay cannot be attributed to the defendant, it will not be weighed heavily against the state. The third Barker factor is the assertion of the right to a speedy trial. On October 5, 1987, the defendant first moved for a speedy trial. The court denied this motion on December 29, 1987. He again moved for a speedy trial on March 30,1988. The court granted this motion on April 6,1988, and ordered the trial to commence upon the conclusion of Allen's trial. While it is apparent that the defendant initially strongly asserted his right, "[t]he record indicates, however, that the defendant himself contributed substantially to the delay." State v. Toste, 198 Conn. 573, 591-92, 504 A.2d 1036 (1986). Because the state was prepared to try the defendant at the end of Allen's trial on May 18, 1988, and because the defendant was responsible for the remaining nine months of delay, his early assertion of his right to a speedy trial is afforded little weight in the Barker balancing test. The final factor is the prejudice to the defendant; Barker v. Wingo, supra, 532; which is "the linchpin of the speedy trial claim." State v. Lloyd, 185 Conn. 199, 209, 440 A.2d 867 (1981). "While it is possible that the other factors together might make a showing of prejudice unnecessary in any given case; Moore v. Arizona, 414 U.S. 25, 26, 94 S. Ct. 188, 38 L. Ed. 2d 183 (1973); we do not find that situation here. Nor where such a showing is needed will it be presumed." State v. Morrill, 197 Conn. 507, 526, 498 A.2d 76 (1985). "Three interests have been identified as those which the right to a speedy trial was designed to protect and which therefore may be prejudiced by the deprivation of that right." Id. Those interests are: "(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system." Barker v. Wingo, supra, 532. The defendant argues that he suffered actual prejudice resulting from the impairment in the memories of several witnesses due to the delay between the alleged crime and the trial. A claim of general weakening of witnesses' memories, relying on the simple passage of time, "cannot, without a more specific showing, be said to prejudice the defendant." State v. Morrill, supra, 527-28. The defendant does, however, cite specific instances of witnesses' forgetfulness. We therefore examine these instances to determine whether the defendant has made a sufficient showing of prejudice. The defendant initially claims that on cross-examination a state's witness, Charles C., could not remember numerous facts relating to a larceny allegedly committed against him by the defendant six days after the murder of the victim in this case. Specifically, the defendant claims that, due to the delay before trial, Charles C. could not recall: (1) the quantity or nature of the alcohol that he was consuming on the day of the alleged larceny; (2) the value of the coins allegedly stolen from him by the defendant; (3) what he told the police immediately after he discovered the items were missing; and (4) whether the defendant was carrying a shopping bag or any other type of container when Charles C. picked up the defendant at the park or when the defendant left his apartment. The defendant's assertion that Charles C.'s failing memory prejudiced him is misplaced. The United States Supreme Court, in Barker v. Wingo, supra, 532, stated that "[t]here is also prejudice if defense witnesses are unable to recall accurately events of the distant past." (Emphasis added.) Charles C., however, appeared as a witness for the state, and, as we noted in State v. Morrill, supra, 528, " '[i]f the witnesses [with a failing memory] support the prosecution, [the prosecution's] case will be weakened, sometimes seriously so. And it is the prosecution which carries the burden of proof.' " (Emphasis added.) "[WJhile memory lapses by prosecution witnesses may under some circumstances prejudice the defense, such as where memory loss is egregious and the defendant is 'convicted on failing memories' "; (emphasis in original) Isaac v. Perrin, 659 F.2d 279, 284 (1st Cir. 1981); the memory losses here are relatively minor. The relevance of the witness' testimony regarding (1) the quantity and nature of the alcohol consumed on the day of the alleged larceny, (2) the value of the coins taken from him, (3) the information that he gave the police after discovering the missing items, and (4) whether the defendant had been carrying a shopping bag on the day of the incident, is weakened by the fact that "[tjhe defendant points to nothing in the transcripts which indicates that the testimony of [Charles C.j would have been more favorable to him if [his memory] had been fresher." State v. Gasparro, 194 Conn. 96, 102, 480 A.2d 509 (1984), cert. denied, 474 U.S. 828, 106 S. Ct. 90, 88 L. Ed. 2d 74 (1985). Indeed, it is clear from this record that any memory loss by Charles C. resulting from the lapse of time inured to the defendant's favor, not to his prejudice, since the defendant was able to impeach Charles C.'s testimony by eliciting that loss on cross-examination. The defendant next contends that he was prejudiced by the failing memories of two defense witnesses, Gerald Lasalle and Linda Spencer, regarding an alleged mugging of the defendant that served to explain the presence of blood on the defendant's pants found in his belongings. The defendant claims that, as a result of the delay in trial, Lasalle was unable to recall the date when the defendant was mugged and its proximity to the murder, details of the mugging as reported by the defendant, or the amount of blood on the defendant's pants due to the mugging, and that Linda Spencer was not able to recall the date of the mugging. The transcript reveals that Lasalle was able to state that the mugging occurred sometime in June, that it could have been late June, but that it was not in early July. Spencer testified that the mugging occurred sometime in June, or in late June, early July. Although Lasalle and Spencer were unable to pinpoint the exact date of the mugging, the defendant has not demonstrated that the precise date was a material issue in his defense. "Although faded memory may result in prejudice . . . in order to prejudice the defense to the extent necessary to constitute a speedy trial violation, the faded memory must substantially relate to a material fact in issue." United States v. Edwards, 577 F.2d 883, 889 (5th Cir. 1978). Clearly, the testimony of both Lasalle and Spencer tended to establish that the defendant had been mugged previous to the crimes in question and that the mugging had resulted in the defendant's white pants becoming bloodied. The defendant appears to contend that the unidentifiable blood found on his pants, therefore, was his from the mugging and not that of the victim. Since the relevant issue behind this testimony was whether the blood belonged to the victim, the inability of the witnesses to recall the exact date of the mugging was not prejudicial. The defendant next claims that the delay in trial caused Lasalle to forget the "details" of the mugging as reported to him by the defendant. Lasalle testified that the defendant told him that he had been mugged by two men and beaten with a stick in the Long Wharf section of New Haven. The only details that Lasalle could not remember, as demonstrated by the transcript, were whether the defendant had described to Lasalle the race of the assailants and, if he had, what that race was. Again, the defendant has made no showing as to the materiality of this evidence to the outcome of the trial, and, therefore, has not established substantial prejudice. United States v. Edwards, supra, 889. The defendant also argues that he was prejudiced by Lasalle's inability to recall the amount of blood found on the defendant's white pants as a result of the mugging. Although Lasalle testified that he knew of the pants in question, that he had seen the blood on them that came from a mugging, that he had observed the defendant wearing the pants on a number of occasions after the mugging incident, and that on those occasions the pants appeared to be clean and without spots, the witness was never asked to quantify the amount of blood he observed on the pants. The defendant has not, therefore, made a showing of substantial prejudice. Ill The defendant next claims that the trial court improperly admitted certain "other misconduct" evidence, namely, evidence of a larceny by the defendant from Charles C. We disagree. The relevant facts are as follows. At trial, the state called Charles C., a male homosexual, who testified that six days after the crimes charged herein he was the victim of a larceny by the defendant. Charles C. testified that, looking for sex, he "picked up" the defendant in a park. The two men returned to Charles C.'s apartment, where the defendant took a shower and then flirted with Charles C. Prior to engaging in sexual relations, Charles C. went to the liquor store to pur chase alcohol for the two men. On returning to his apartment, he found the defendant dressed and agitated, anxious to leave the apartment and to be taken to New Haven. After driving the defendant to his desired destination, Charles C. returned to his apartment and discovered that $600 to $800 in change, a bayonet, jewelry, and a Nazi-type dagger were missing. The trial court admitted this testimony as evidence corroborative of the state's main witness, Mark Allen, whose testimony had been severely impeached by defense counsel on cross-examination, and as evidence of a system of criminal activity and of the defendant's intent in stealing from homosexuals. The defendant objected to the admission of the evidence and excepted to the trial court's ruling. In its instructions to the jury, the court gave an appropriate limiting instruction regarding this evidence. "The rules governing the admissibility of evidence of a criminal defendant's prior [or subsequent] misconduct are well established." State v. Sierra, 213 Conn. 422, 428, 568 A.2d 457 (1990). Although as a general rule such evidence is inadmissible as proof of the defendant's guilt of the crime charged based on his propensity to commit crimes, it is admissible for many other purposes, such as proof of intent, identity, malice, motive, a system of criminal activity, or an element of the crime. Id., 428-29. Such evidence may also be used "to corroborate crucial prosecution testimony." United States v. Everett, 825 F.2d 658, 660 (2d Cir. 1987). To be admitted under one of these exceptions, the evidence must be relevant and material to the exception claimed, and the probative value of the evidence must outweigh its prejudicial effect. State v. Sierra, supra. "We recognize that this balancing process is an inherently difficult one, and will reverse the trial court's decision only when it is manifest that an abuse of discretion or an injustice has occurred." State v. Marra, 215 Conn. 716, 738, 579 A.2d 9 (1990). With these general principles in mind, we first consider the defendant's claim that the trial court improperly admitted the evidence concerning the subsequent larceny as corroborative of the state's main witness, Allen. We conclude that the evidence was admissible. The defendant severely impeached Allen, the only witness who placed the defendant at the scene of the crime. On cross-examination, the defendant brought out that Allen had lied in his statements to the police and at his own trial. The defendant also demonstrated many instances of inconsistent testimony at the probable cause hearing and during the course of his testimony at the trial. By this impeachment, the defendant was able to imply that Allen was implicating the defendant in order to shift the blame onto him, and in hopes of obtaining a more lenient sentence for his own conviction. Although this court has never directly addressed the issue of the admissibility of evidence of other misconduct of a criminal defendant to corroborate the testimony of a crucial prosecution witness, we touched upon that question in State v. Smith, 198 Conn. 147, 157, 502 A.2d 874 (1985). In Smith, we held that the trial court properly admitted the evidence of a subsequent arrest of the defendant for a breach of the peace that occurred within hours after the rape for which the defendant was on trial, because the defendant was arrested while in the possession of a knife and a gun that the victim of the first crime had identified. Id. We held that the evidence derived from the arrest for the subsequent breach of the peace "was certainly corroborative of the victim's testimony at trial" and "was also relevant to establish the identity of the defendant." Id. While Smith demonstrates the acceptance of corroboration as a theory to admit evidence of other misconduct, we have yet to establish the scope and permissible use of such corroborative evidence as an independent exception. We find guidance in the approach taken by the Second Circuit Court of Appeals on this issue. In United States v. Everett, supra, 660, the court determined that pursuant to Federal Rule of Evidence 404 (b), which is similar to Connecticut case law on the admission of other misconduct evidence, "evidence of 'other crimes' has been consistently held admissible to corroborate crucial prosecution testimony. See, e.g., United States v. Mohel, 604 F.2d 748, 754 (2d Cir. 1979); United States v. O'Connor, 580 F.2d 38, 43 (2d Cir. 1978); United States v. Williams, 577 F.2d 188, 192 (2d Cir.), cert. denied, 439 U.S. 868, 99 S. Ct. 196, 58 L. Ed. 2d 179 (1978)." The court noted, however, that "the prosecution is not permitted to wholesale proof into evidence under the guise of 'corroboration purposes.' " United States v. Everett, supra. "To avoid potential prosecutorial abuse, we have required the proponent of the evidence to demonstrate a close relationship between the proffered evidence and the evidence to be corroborated. Other crimes evidence, therefore, is only admissible for corroborative purposes, if the corroboration is 'direct and the matter corroborated is significant.' " Id., quoting United States v. Mohel, supra, 754. Under this test, significant evidence is defined as important, as opposed to trivial, evidence. United States v. Everett, supra. Direct corroborating evidence is that which "is not wholly disconnected, remote, or collateral to the matter corroborated." Id. The requirement that the corroborating evidence be direct is necessary in order to ensure that the link between the corroborative evidence and the facts to be inferred therefrom is not too attenuated or nonprobative; otherwise, the evidence might unfairly reflect upon the defendant's propensity to commit crimes. Id., 661. Charles C.'s testimony qualified as significant because Allen was the only witness placing the defendant at the scene of the crime. Because Allen's testimony was weakened as a result of cross-examination, which brought out his prior inconsistent and untruthful statements, the state offered Charles C.'s testimony to the subsequent larceny in order to strengthen Allen's testimony regarding the manner and reason the defendant perpetrated the crimes. This evidence provided important details of a course of conduct of the defendant, and reinforced the testimony of a critical state's witness. Id. Charles C.'s testimony likewise satisfied the requirement that the corroborating evidence be direct. Charles C.'s testimony was not "wholly disconnected, remote, or collateral to the matter corroborated"; id., 660; because the testimony regarding the defendant's meretricious relationships with homosexuals reinforced Allen's testimony that the defendant brought him to the victim's residence with the intent to steal from the victim, thereby linking the defendant to the ultimate facts to be proven, namely, his presence and participation in the crimes. Moreover, the record reflects that the trial court carefully balanced the probative value of the evidence against the prejudicial effect and determined that the prejudice to the defendant did not outweigh its probative value. The evidence of the subsequent larceny was probative because it tended to dispel an innocent explanation for the defendant's relationship with the victim and to show that the defendant had a system of "hustling" homosexual males in order to engage in larcenous conduct. The evidence also tended to establish that, on at least one occasion very close in time to the crimes in issue, the defendant had been picked up by another homosexual man, returned to his apartment, showered and engaged in flirtatious conduct, and eventually stole items belonging to him. Larceny was an element of the crimes in issue in this case. This evidence thereby tended to show a system of criminal activity and allowed the inference that the defendant intended, at the least, to steal from the victim on the occasion in question. We cannot say, moreover, that the prejudicial effect of the evidence was overwhelming. There was other evidence before the jury that the defendant had engaged in sex with homosexuals for money. It is not likely, therefore, that the evidence in question shocked or inflamed the jury. Additionally, the seriousness of the subsequent crime, a larceny, pales in comparison to the robbery and felony murder charges for which the defendant was standing trial. Because we recognize the difficulty in this balancing process, we will reverse the trial court's ruling only where there is abuse of discretion or where an injustice has occurred; State v. Marra, supra, 738; and we will indulge in every reasonable presumption in favor of the trial court's ruling. State v. Sierra, supra, 435. There was no such abuse of discretion or injustice in this case, especially in light of the limiting instruction given to the jury on this issue. See footnote 31, supra. This conclusion also disposes in large part of the defendant's claim that the trial court improperly admitted the evidence under the exceptions for evidence of a system of criminal activity and for evidence showing intent. The evidence tended to establish the defendant's intent and also tended to establish his system of stealing from homosexual men whom he visited for the purpose of engaging in sex for pay. Furthermore, the trial court did not abuse its discretion in exercising its balancing function and it gave an appropriate limiting instruction. The defendant argues, however, that the evidence was improperly admitted because the state failed to demonstrate sufficient similarities between the alleged larceny of Charles C. and the crimes in question. The defendant claims that " ' "[t]he [other crimes or misconduct] must be so unusual and distinctive as to be like a signature." McCormick, Evidence § 157.' " (Emphasis added.) State v. Braman, 191 Conn. 670, 677, 469 A.2d 760 (1983), quoting State v. Ibraimov, 187 Conn. 348, 354, 446 A.2d 382 (1982). The defendant's argument, however, is based upon a misinterpretation of the case law. As we stated in State v. Shindell, 195 Conn. 128, 135, 486 A.2d 637 (1985), where identity is in issue, the device used must be distinctive, similar to a signature. But where the evidence is admitted under a different theory, such as to establish a continuing system of criminal activity or to show intent, the same degree of similarity is not required. Id. IV The defendant's final claim is that the trial court, by denying him access to certain mental health records of Charles C., denied him his constitutional rights to due process and to confront the witnesses against him. This claim is without merit. The defendant subpoenaed certain records regarding treatment of Charles C. at the Connecticut Mental Health Center (the center), and requested access to them for purposes of cross-examination. Charles C. gave the trial court permission to examine the records in camera. The trial court did so and denied the defendant's request for access to them. The defendant's subsequent cross-examination of Charles C. elicited the following facts, inter alia. Charles C., who was forty-seven years old, had been an alcoholic since age eighteen, and had been treated for his alcoholism. He had been under psychiatric care at various times, including a hospitalization in the 1970s. The cross-examination also disclosed that in 1987 Charles C. had been treated at the center for alcoholism and depression. Furthermore, his alcoholism was active in 1987, and on the day of his encounter with the defendant he had drunk a half pint of liquor before meeting the defendant and a pint after the encounter ended. Charles C. also testified that he blacked out after drinking the pint of liquor. In addition, the defendant cross-examined Charles C. about certain inconsistencies between his testimony and his statements to the police. The defendant does not dispute that the records in question are privileged pursuant to General Statutes § 52-146d and 52-146e. In reconciling such a privilege with the defendant's right to confront a state's witness by gaining access to the witness' mental health records, the linchpin is whether the records contain material " ' "especially probative of the ability to 'comprehend, know and correctly relate the truth' United States v. Lindstrom, 698 F.2d 1154, 1165-66 (11th Cir. 1983); so as to justify breach of their confidentiality and disclosing them to the defendant in order to protect his right of confrontation. . . .' " State v. Kelly, 208 Conn. 365, 379-80, 545 A.2d 1048 (1988), quoting State v. Storlazzi, 191 Conn. 453, 459, 464 A.2d 829 (1983). The determination of access is left to the discretion of the trial court in weighing the probative value of the evidence against the interest in confidentiality of the records. State v. Kelly, supra, 380. That determination is to be made on a case-by-case basis. Id. Our own careful examination of the records in question leads us to conclude that they do not contain material especially probative of Charles C.'s ability to comprehend, know and correctly relate the truth so as to justify breach of their confidentiality by disclosing them to the defendant. Moreover, there is nothing in them that would have added significantly to the extensive cross-examination of Charles C. by the defendant. The trial court did not abuse its discretion in denying the defendant's request for access to the records. The judgment is reversed, and the case is remanded for a new trial. In this opinion Peters, C. J., Shea and Glass, Js., concurred. "[General Statutes] Sec. 53a-54c. felony murder. A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary, kidnapping, sexual assault in the first degree, sexual assault in the first degree with a firearm, sexual assault in the third degree, sexual assault in the third degree with a firearm, escape in the first degree, or escape in the second degree and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants, except that in any prosecution under this section, in which the defendant was not the only participant in the underlying crime, it shall be an affirmative defense that the defendant: (A) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (B) was not armed with a deadly weapon, or any dangerous instrument; and (C) had no reasonable ground to believe that any other participant was armed with such a weapon or instrument; and (D) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury." "[General Statutes] Sec. 53a-134. 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: (1) Causes serious physical injury to any person who is not a participant in the crime . . . ." Allen was tried separately from the defendant as an accomplice. We recently affirmed his conviction of the crimes of felony murder, robbery in the first degree and burglary in the first degree. See State v. Allen, 216 Conn. 367, 579 A.2d 1066 (1990). The fourth amendment to the United States constitution provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Although the defendant also claims that the search and seizure violated his rights under article first, § 7, of the Connecticut constitution, he offers no separate analysis thereunder. We therefore decline to consider his claim under the Connecticut constitution; State v. Couture, 194 Conn. 530, 572A-B n.2, 482 A.2d 300 (1984), cert. denied, 496 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985); Hayes v. Smith, 194 Conn. 52, 480 A.2d 425 (1984); and confine our discussion to the federal constitution. Thus, we do not decide whether article first, § 7, affords our citizens broader reasonable expectations of privacy than does the fourth amendment. Although Carroll described the procedure performed at the police department as an "inventory" of the items, the state made no claim, either in the trial court or in this court, that the actions of the police came within the inventory exception to the warrant requirement. The state specifically disclaimed any such reliance at oral argument in this court because there was no evidence that Carroll's purported inventory of the items seized was pursuant to a "policy or practice governing inventory searches [that is] designed to produce an inventory." Florida v. Wells, 495 U.S. 1, 4, 110 S. Ct. 1632, 109 L. Ed. 2d 1 (1990). Although not specifically mentioned at the suppression hearing, the trial transcript discloses that the police also seized a Nazi-type dagger and a bayonet from the bridge abutment area. Morro testified that these items were found "in the belongings which [he] recovered underneath the bridge." (Emphasis added.) He did not specify, however, where in those belongings they were found. We assume from this testimony, and from Morro's additional testimony, that the defendant's belongings were "either rolled or packaged closed," and that "[t]hey were stored" and "not strewn about at all," that these items were also located within one of the closed containers. This assumption is buttressed by the photographs of the bridge abutment area in evidence, which do not indicate the presence of the dagger or bayonet. Since a new trial is necessary, the state will be free to establish otherwise on the remand. The defendant brings to our attention the fact that from October, 1987, through September, 1988, more than 18,000 persons received emergency shelter in Connecticut. Connecticut Coalition for the Homeless Shelter Population Statistics—Oct., 1987-Sept., 1988 (Update Dec. 1989). That figure does not include homeless people living in places other than shelters, such as motels, the homes of family or friends, or out of doors. Id. Other estimates of the number of homeless in our midst range from two hundred thousand to two million. J. Langdon & M. Kass, "Homelessness in America: Looking for the Right to Shelter," 19 Colum. J.L. & Soc. Probs. 305, 305 n.l (1985). For these purposes, we accept the defendant's claim that he sufficiently manifested a subjective expectation of privacy in the area and in the items seized to satisfy the first prong of the applicable fourth amendment analysis. The trial court so concluded, and the state does not seriously contend otherwise. The cases referring to those closed containers protected by the fourth amendment clearly indicate that both the duffel bag and the cardboard box in this case qualify for such protection. In Robbins v. California, 453 U.S. 420, 426-27, 101 S. Ct. 2841, 69 L. Ed. 2d 744 (1981), a plurality of the court stated that "[o]nee placed within a [closed, opaque] container, a diary and a dishpan are equally protected by the Fourth Amendment," and that "no court, no constable, no citizen, can sensibly be asked to distinguish the relative 'privacy interests' in a closed suitcase, briefcase, portfolio, duffel bag, or box." The fourth amendment does not distinguish between such containers, because "[w]hat one person may put into a suitcase, another may put into a paper bag." Id., 426. The only exceptions to this were, in the plurality's view, those containers that could not support a reasonable expectation of privacy because their contents could be inferred from their outward appearance, or because the container was transparent "or other wise clearly revealed its contents." Id., 427. Thereafter, a majority of the court explicitly rejected "a constitutional distinction between 'worthy' and 'unworthy' containers" because "the central purpose of the Fourth Amendment forecloses such a distinction." United States v. Ross, 456 U.S. 798, 822, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982). "A paper bag stapled shut and marked 'private' might be found to manifest a reasonable expectation of privacy, as could a cardboard box stacked on top of two pieces of heavy luggage." Id., 822 n.30. Because the trial court decided that the fourth amendment did not apply, it had no occasion to consider the issue of probable cause. Therefore, that issue is not before us on appeal. Although we have assumed in Part IA of this opinion that the defendant had no reasonable expectation of privacy for fourth amendment purposes in the area under the bridge abutment, even though he regarded it as his home, the facts that he did so regard it, that it was secluded, and that he did in rough-hewn fashion maintain it as such, do inform the quite different determination of whether his privacy interest in the interior of closed containers located there was retained in his absence. Similarly, the same facts inform the issue of whether such luggage may fairly be regarded as "abandoned" for purposes of the fourth amendment. See text, infra. The inventory search cases; Florida v. Wells, 495 U.S. 1, 110 S. Ct. 1632, 109 L. Ed. 2d 1 (1990); Colorado v. Bertine, 479 U.S. 367, 107 S. Ct. 738, 93 L. Ed. 2d 739 (1987); teach that under some circumstances the purpose of a search is relevant to the degree of protection afforded by the fourth amendment. More specifically, the balancing test employed in the jail cell case; Hudson v. Palmer, 468 U.S. 517, 527, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984); teaches that under appropriate circumstances the purpose of a search is relevant to the question of whether a defendant's subjective expectation of privacy is reasonable under the fourth amendment. See also Amezquita v. Hernandez-Colon, 518 F.2d 8, 12 n.7 (1st Cir. 1975), cert. denied, 424 U.S. 916, 96 S. Ct. 1117, 47 L. Ed. 2d 321 (1976) (fourth amendment constraints on government as law enforcer may be greater than as landowner); Biehunik v. Felicetta, 441 F.2d 228, 231 (2d Cir.), cert. denied, 403 U.S. 932, 91 S. Ct. 2256, 29 L. Ed. 2d 711 (1971) (administrative purpose, rather than criminal investigatory purpose, of seizure relevant to its reasonableness); United States v. Hagarty, 388 F.2d 713, 717-18 (7th Cir. 1968) (whether purpose of search is for criminal investigation or administrative purpose is relevant to scope of fourth amendment protection). Thus, the purpose of the police invasion may shape the determination of the reasonableness of an expectation of privacy. We disagree with the dissent's suggestion that California v. Ciraolo, 476 U.S. 207, 106 S. Ct. 1809, 90 L. Ed. 2d 210, reh. denied, 478 U.S. 1014, 106 S. Ct. 3320, 92 L. Ed. 2d 728 (1986), and Scott v. United States, 436 U.S. 128, 98 S. Ct. 1717, 56 L. Ed. 2d 168, reh. denied, 438 U.S. 908, 98 S. Ct. 3127, 57 L. Ed. 2d 1150 (1978), have completely foreclosed any inquiry into the purpose of a search in determining whether a defendant's expectation of privacy in luggage is reasonable. In Ciraolo, the court held that, in determining whether the defendant had a reasonable expectation of privacy in the marijuana growing in his fenced-in back yard, it was irrelevant that the police who flew over his yard and observed the contraband did so for criminal investigative purposes rather than as part of a routine patrol. California v. Ciraolo, supra, 213-14. The court did not decide, however, that, had the defendant's closed backpack also been observed in the yard from the police airplane, the police would have been likewise entitled to seize and search it—a question more analogous to this case. In Scott, the court did hold that, in determining the reasonableness of a search under the fourth amendment, the officer's actions must be viewed objectively. That case did not involve, however, the issue in this case, namely, whether the defendant retained a reasonable expectation of privacy in the interior of his luggage. Scott v. United States, supra, 137-38. We believe that the inventory and jail cell search cases noted above, where the purpose of the search was considered, have limited to some extent the sweep of Scott. See also United States v. Sumlin, 909 F.2d 1220 (8th Cir.), cert. denied, U.S. , 111 S. Ct. 559,112 L. Ed. 2d 566 (1990), which postdates both Ciraolo and Scott, where the court held that the noninvestigatory purpose of the police in opening the defendant's stolen handbag was pertinent to whether the defendant's expectation of privacy therein was violated. Although the trial court made no finding, at the time of the suppression ruling, regarding the purpose of the search of the defendant's duffel bag and cardboard box, Morro testified at trial that he took the items into custody because he "believed at that time there might have been evidence which would have been connected to the victim." This does not mean, however, that the nature and circumstances of the location of the container are irrelevant. As we noted earlier, although the fourth amendment protects people not places; Katz v. United States, 389 U.S. 347, 351, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967); the place searched is relevant for fourth amendment purposes. Thus, even closed containers, like the trash bags involved in California v. Greenwood, 486 U.S. 35, 108 S. Ct. 1625, 100 L. Ed. 2d 30 (1988), may not carry a reasonable expectation of privacy when placed outside the curtilage for collection. Similarly, as discussed below, a closed container may, under appropriate circumstances, be regarded as abandoned for fourth amendment purposes. In Arkansas v. Sanders, 442 U.S. 753, 99 S. Ct. 2586, 61 L. Ed. 2d 235 (1979), Chief Justice Burger, the author of the court's opinion in United States v. Chadwick, 433 U.S. 1, 97 S. Ct. 2476, 53 L. Ed. 2d 528 (1977), and Justice Stevens stated: "The essence of our holding in Chadwick is that there is a legitimate expectation of privacy in the contents of a trunk or suitcase accompanying or being carried by a person; that expectation of privacy is not diminished simply because the owner's arrest occurs in a public place." (Emphasis added.) Arkansas v. Sanders, supra, 766-67 (Burger, C. J., and Stevens, J., concurring). By contrast, in United States v. Ruckman, 806 F.2d 1471, 1473 (10th Cir. 1986), where the search of the defendant's cave did take place while he was under arrest and in custody, there was no indication that the search invaded any luggage or other appropriate closed containers located therein. The dissent's insistence that we have improperly expressed "a concern about . . . pretextual arrests"; infra, 140; serves only to answer an argument that we do not make. Our reference here is not the result of any such concern; we acknowledge that there is no evidence in this record to suggest a pretextual arrest. By our reference to the defendant's absence at the time of the search due to his arrest, we mean only that society would factor that absence into its calculus of whether the defendant's expectation of privacy was reasonable under all the circumstances of the case. Although we conclude that the defendant is entitled to a new trial, we consider this claim because, if meritorious, it would require dismissal of the charges against the defendant and would obviate the need for a new trial. The first information, filed on September 23,1987, charged the defendant with first degree manslaughter, occurring "on or about" July 30,1987. The second information, filed April 29,1988, charged the defendant with felony murder, first degree burglary, and first degree robbery, occurring "on or about" July 29, 1987, "in the evening hours." The third information, filed June 1, 1988, charged the defendant with felony murder, first degree burglary, and first degree robbery, occurring "on or about" July 29, 1987, "in the evening hours." The fourth information, filed August 23,1988, charged the defendant with felony murder, first degree burglary, and first degree robbery, occurring "on or about" July 30, 1987, "in the morning hours." The fifth information, filed on March 3,1989, charged the defendant with felony murder and first degree robbery, occurring "on or about" July 30, 1987, "in the morning hours." The defendant acknowledges that Allen, who was tried separately from the defendant as an accomplice, was an essential state's witness because his testimony was required to connect the defendant to the robbery and murder of the victim. General Statutes § 54-82m provides: "rules re speedy trial to be ADOPTED BY JUDGES OF SUPERIOR COURT EFFECTIVE JULY 1, 1985. In accordance with the provisions of section 51-14, the judges of the superior court shall make such rules as they deem necessary to provide a procedure to assure a speedy trial for any person charged with a criminal offense on or after July 1,1985. Such rules shall provide that (1) in any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of a criminal offense shall commence within twelve months from the filing date of the information or indictment or from the date of the arrest, whichever is later, except that when such defendant is incarcerated in a correctional institution of this state pending such trial and is not subject to the provisions of section 54-82c, the trial of such defendant shall commence within eight months from the filing date of the information or indictment or from the date of arrest, whichever is later; and (2) if a defendant is not brought to trial within the time limit set forth in subdivision (1) and a trial is not commenced within thirty days of a motion for a speedy trial made by the defendant at any time after such time limit has passed, the information or indictment shall be dismissed. Such rules shall include provisions to identify periods of delay caused by the action of the defendant, or the defendant's inability to stand trial, to be excluded in computing the time limits set forth in subdivision (1)." See footnote 19, supra. See also Part IIB, infra, and discussion therein. See footnote 19, supra. The second information was filed against the defendant on April 29, 1988. The charge of first degree burglary was not included in the final information filed against the defendant on March 3, 1989. Since the date of the crimes, July 29 or July 30,1987, was not disputed, the witnesses' recollections of the mugging in June established its proximity to the murder, contrary to the defendant's assertion. The criminalist at the state forensic laboratory, Beryl Novitch, while able to determine that the stains on the pants were caused by human blood, was unable to determine whether the blood was that of the victim. We also note that the defendant's trial counsel was aware of the identity of the defense witnesses, was in contact with Lasalle in Florida one year prior to the trial, and could have obtained statements earlier "so that at trial their memories could have been refreshed if they failed to recall pertinent details." Townsend v. United States, 512 A.2d 994, 998 (D.C. App. 1986), cert. denied, 481 U.S. 1052,107 S. Ct. 2188, 95 L. Ed. 2d 843 (1987). This observation is especially relevant in this case where the defendant was responsible for nine months of the delay in trial and is claiming prejudice due to a witness' loss of memory caused by the passage of time. We consider this claim of the defendant, as well as his final claim; see Part IV, infra; because they are likely to arise upon the new trial. The relevant portions of the jury instructions provide: "You may not consider this testimony as evidence that the defendant was an evil person and was therefore more likely to engage in criminal conduct. But you may consider such testimony and may consider similarities between events as evidence tending to show a common design or plan to steal from homosexual men." Federal Rule of Evidence 404 (b) provides: "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Connecticut case law parallels the exceptions found in Federal Rule of Evidence 404 (b). For example, similar to the federal rule, evidence of other misconduct is admissible in Connecticut to show intent, identity, motive; State v. Sierra, 213 Conn. 422, 429, 568 A.2d 557(1990); opportunity; State v. Silva, 201 Conn. 244, 248-49, 513 A.2d 1202 (1986); absence of mistake or accident; State v. Tucker, 181 Conn. 406, 414-17, 435 A.2d 986 (1980); knowledge; State v. Fredericks, 149 Conn. 121, 124, 176 A.2d 581 (1961); and common scheme or plan. State v. Morowitz, 200 Conn. 440, 442-43, 512 A.2d 175 (1986). Allen testified on cross-examination that the defendant "was messing with fagots [sic] at night to get money. That's how he supported himself. He would pick up fagots [sic] at night and that's how he supported himself. He'd go out and the fagots [sic] would pay him." We note that the trial court specifically ruled that identity was not in issue in this case. Therefore, the court's concern that evidence of other misconduct to show common scheme or a continuing system of criminal activity might be prejudicial as also reflecting upon identity; see State v. Murrell, 7 Conn. App. 75, 88, 507 A.2d 1033 (1986); is not implicated in this case. Because the defendant offers no separate analysis of this claim under the constitution of Connecticut, we consider it only under the constitution of the United States. General Statutes § 52-146d (2) defines " 'Communications and records' " to include "communications and records which occur in or are prepared at a mental health facility . . . ." General Statutes § 52-146e (a) provides in pertinent part that, with certain exceptions not applicable here, "[a]ll communications and records as defined in section 52-146d shall be confidential . . . ."

The defendant's petition for certification for appeal from the Appellate Court, 23 Conn. App. 827, is denied.

Peters, C. J. The only issue on this appeal is whether the trial court abused its discretion in denying an application for a prejudgment remedy. The plaintiff, Green-berg, Rhein and Margolis, Inc., brought an action against the corporate defendant, Norris-Faye Horton Enterprises, Inc., and the individual defendant, Faye T. Horton (Horton), to recover the balance due on insurance premiums paid by the plaintiff. In conjunction with the filing of this complaint, the plaintiff sought to attach real property personally owned by Horton. After a hearing held pursuant to General Statutes § 52-278d, the trial court denied the plaintiffs application on the ground that the plaintiff had failed to show probable cause for its issuance. The plaintiff appealed to the Appellate Court in accordance with the provisions of General Statutes § 52-278l (a) (1). We transferred the appeal to this court pursuant to Practice Book § 4023 and now affirm. The evidence presented by the plaintiff at the probable cause hearing consisted of the testimony of the plaintiffs vice president, David Margolis, and the contents of two documents that were admitted by stipu lation. Margolis testified that the plaintiff was seeking reimbursement from the defendants for $3968 in insurance premiums that the plaintiff had become obligated to pay the Union Trust Company because of an indemnity agreement contained on the back of an "Insurance Premium Financing Note and Security Agreement" (insurance premium note or note). The insurance premium note memorialized the obligation of the "maker-debtor," described at the top of the note as the corporate defendant, to pay $6000 in designated installments to its payee, the Union Trust Company. The note stipulated that its proceeds were to be used to pay the balance of insurance premiums owed by "the debtor" to the Aetna Casualty and Surety Company under insurance policies designated by policy number. At the bottom of the note, in the place designated in the form for the signature of "Maker-Debtor(s)," appeared the signature of "Faye T. Horton." Horton's signature was not accompanied by any express indication that she was signing as representative of the corporate defendant. The back of the insurance premium note contained a printed "warranty" to be given by an insurance agent or broker; this warranty was signed by Margolis on behalf of the plaintiff. The warranty identified "the debtor" as the insured designated in the insurance policy on the front of the note and represented that whoever had signed on behalf of a corporate entity had authority to do so. The warranty also contained an indemnity clause in which the warrantor promised to hold the Union Trust Company harmless from any loss arising out of the financing arrangement. On the strength of the plaintiff's allegation that its rights against the defendants arose out of the indemnity agreement on the back of the insurance premium note, the plaintiff claimed that it had an enforceable claim against Horton personally because she had signed the insurance premium note on its front. The plaintiffs complaint, however, contained no allegation that the plaintiff was the holder, transferee or assignee of the insurance premium note. Margolis, on cross-examination, was unable to clarify on what theory the plaintiff, as a stranger to the note, was entitled to invoke the liability that a maker of the note might have to its payee, the Union Trust Company. Furthermore, Margolis conceded, on cross-examination, that the insured "debtor" on whose behalf the premiums had been paid was the corporate defendant, not Horton. Finally, the plaintiffs counsel, in his argument before the trial court, withdrew any claim that Horton had signed as guarantor, contending instead that she was liable merely because she had signed as the debtor. On this state of the record, the trial court concluded that there had been "no showing of probable cause as to the defendant Faye Horton" and denied the plaintiffs application for a prejudgment remedy as to her real property. The plaintiff maintains that this ruling should be reversed because Horton was personally obligated on the insurance premium note: (1) as an ambiguous signer of an instrument, in accordance with the provisions of General Statutes § 42a-3-403; or (2) as an accommodation maker of an instrument, in accordance with the provisions of General Statutes § 42a-3-415. At the outset, we note the limited role that our case law assigns to appellate review of a trial court's broad discretion to deny or to grant a prejudgment remedy. It is the trial court that must determine, in light of its assessment of the legal issues and the credibility of the witnesses, whether a plaintiff has sustained the burden of showing probable cause to sustain the validity of its claim. We decide only whether the determination of the trial court constituted clear error. New England Land Co. v. DeMarkey, 213 Conn. 612, 620-21, 569 A.2d 1098 (1990); Dow & Condon, Inc. v. Anderson, 203 Conn. 475, 479-80, 525 A.2d 935 (1987); Solomon v. Aberman, 196 Conn. 359, 364, 493 A.2d 193 (1985); Three S. Development Co. v. Santore, 193 Conn. 174, 176, 474 A.2d 795 (1984); William M. Raveis & Associates, Inc. v. Kimball, 186 Conn. 329, 333, 441 A.2d 200 (1982); Augeri v. C. F. Wooding Co., 173 Conn. 426, 429, 378 A.2d 538 (1977). Applying this standard of review to the record in this case, we conclude that the plaintiff cannot prevail. The plaintiffs principal contention is that Horton is personally liable because she failed to identify her signature on the insurance premium note as that of a representative of the corporate defendant. Her personal liability arises, according to the plaintiff, because she signed her name without specifying that she was signing as agent for, or officer of, the corporate defendant. The plaintiff maintains that, by virtue of the provisions of § 42a-3-403 (2), the ambiguity of Horton's signature imposed upon her the obligation of establishing that she was not personally liable, and that she failed to meet this burden at the trial court hearing. Although § 42a-3-403 (2) was not specifically brought to the attention of the trial court, we will presume, for present purposes, that this issue was adequately preserved to warrant appellate review. An understanding of the import of the provisions of § 42a-3-403 (2) requires an examination of a number of sections in General Statutes § 42a-3-101 through 42a-3-805, otherwise known as article 3 of the Uniform Commercial Code. The plaintiff relies on that part of § 42a-3-403 (2) which provides: "An authorized representative who signs his own name to an instrument . . . (b) except as otherwise established between the immediate parties, is personally obligated if the instrument names the person represented but does not show that the representative signed in a representative capacity . . . ." The plaintiff has not, however, alleged or demonstrated how, as a stranger to the instrument, it is a contemplated beneficiary of this section. It is of course true that, to the extent that Horton was the maker of an instrument, she became obligated, under General Statutes § 42a-3-413 (1), to "pay the instrument according to its tenor." As a general matter, however, the obligation to pay the instrument contemplates a duty to pay the holder of an instrument; discharge of liability under General Statutes § 42a-3-603 (1) depends upon "payment or satisfaction to the holder." See J. White & R. Summers, Uniform Commercial Code (3d Ed. 1988) § 13-21, p. 680. In other words, Horton arguably assumed a personal obligation to pay the amount due under the insurance premium note to its payee, the Union Trust Company, or to a subsequent holder to whom the Union Trust Company negotiated the note, but not to the plaintiff. Such legitimate doubts about the plaintiff's standing to invoke § 42a-3-403 (2), which were raised by Horton's counsel at the hearing, serve to sustain the validity of the trial court's conclusion that the plaintiff had not shown probable cause for its action against Horton. Even if the plaintiff could surmount this hurdle, we are not persuaded that the evidence at trial was insufficient, as a preliminary matter on a prejudgment remedy hearing, to rebut the presumption of Horton's § 42a-3-403 (2) liability. The insurance premium note not only named the corporate debtor but expressly identified the corporation as its lone "maker-debtor." The plaintiff's witness Margolis, after having acknowledged that the defendant corporation was the debtor for whom insurance premiums had been paid, conceded that the plaintiff's only basis for pursuing Horton was the fact of her signature. Counsel for the plaintiff disavowed any claim that the plaintiff had relied on Horton as a guarantor of the debts of the defendant corporation. There was therefore no claim, anywhere in the record below, that the plaintiff was misled into assuming that Horton's ambiguous signature represented an undertaking of personal liability on her part. Had Wyandot, Inc. v. Gracey Street Popcorn Co., 208 Conn. 248, 544 A.2d 180 (1988), on which the plaintiff now relies, been cited to the trial court, it would not have been clear error for the court to have concluded that the facts before it were sufficient to distinguish the holding in that case. The plaintiffs alternate claim, relying on General Statutes § 42a-3-415, is even less persuasive. The plaintiffs complaint nowhere alleges that Horton signed the insurance premium note as an accommodation party for the corporate defendant. Far from pursuing a contrary stance at the trial court hearing, counsel for the plaintiff expressly disavowed any claim that Horton was a guarantor. That disavowal inferentially encompassed any liability that Horton might possibly be alleged to have incurred under § 42a-3-415, since "an accommodation party is always a surety (which includes a guarantor), and it is his only distinguishing feature." Connecticut General Statutes Annotated § 42a-3-415, comment 1 (West 1990). On this record, the plaintiff has failed to establish its entitlement to appellate review of this claim of error because the claim was not "distinctly raised at the trial." Practice Book § 4185. Adherence to this rule of practice is particularly compelling in our review of a trial court's largely discretionary disposition of an application for a prejudgment remedy. The judgment is affirmed. In this opinion the other justices concurred. General Statutes § 52-278d provides in relevant part: "hearing on PRE JUDGMENT REMEDY APPLICATION. DETERMINATION BY THE COURT. SERVICE of process, (a) The defendant shall have the right to appear and be heard at the hearing. The hearing shall be limited to a determination of whether or not there is probable cause to sustain the validity of the plaintiffs claim." General Statutes § 52-278l (a) (1) provides in relevant part: "appeal, (a) An order (1) granting or denying a prejudgment remedy following a hearing under section 52-278d . . . shall be deemed a final judgment for purposes of appeal." The two documents consisted of a "Customer Activity Report," which was a ledger account detailing the corporate defendant's indebtedness to the plaintiff, and an "Insurance Premium Financing Note and Security Agreement." In his closing argument to the court, counsel for the plaintiff described Horton's liability as follows: "Faye Horton signed as guarantor. She signed personally." The court then inquired: "Signed what as guarantor?" Counsel replied: "She signed the note. Actually, it shouldn't be as guarantor, it's referenced in the note as debtor." General Statutes § 42a-3-403 provides in relevant part: "signature by AUTHORIZED REPRESENTATIVE. (1) A signature may be made by an agent or other representative, and his authority to make it may be established as in other cases of representation. No particular form of appointment is necessary to establish such authority. "(2) An authorized representative who signs his own name to an instrument (a) is personally obligated if the instrument neither names the person represented nor shows that the representative signed in a representative capacity; (b) except as otherwise established between the immediate parties, is personally obligated if the instrument names the person represented but does not show that the representative signed in a representative capacity, or if the instrument does not name the person represented but does show that the representative signed in a representative capacity." General Statutes § 42a-3-415 provides: "contract of accommodation party. (1) An accommodation party is one who signs the instrument in any capacity for the purpose of lending his name to another party to it. "(2) When the instrument has been taken for value before it is due the accommodation party is liable in the capacity in which he has signed even though the taker knows of the accommodation. "(3) As against a holder in due course and without notice of the accommodation oral proof of the accommodation is not admissible to give the accommodation party the benefit of discharges dependent on his character as such. In other cases the accommodation character may be shown by oral proof. "(4) An endorsement which shows that it is not in the chain of title is notice of its accommodation character. "(5) An accommodation party is not liable to the party accommodated, and if he pays the instrument has a right of recourse on the instrument against such party." In Wyandot, Inc. v. Gracey Street Popcorn Co., 208 Conn. 248, 544 A.2d 180 (1988), we reversed a trial court decision holding the drawer of a check personally liable without permitting him to introduce parol evidence that he had signed the check in a representative rather than an individual capacity. The instrument in that case contained the name of the corporate debtor, albeit in a form that varied slightly from the correct corporate name. We nonetheless held that, in a plenary proceeding, the drawer was entitled to have the opportunity "to prove that the obligation to pay the check was that of the corporation." Id., 252. The case for corporate obligation is stronger on the present record because the insurance premium note not only identifies the corporate debtor correctly but designates the corporation as the maker-debtor. In Wyandot, Inc., furthermore, the trial court's adverse ruling on the parol evidence issue had precluded the drawer of the check from making any record about whether the payee of the check had expected to hold the drawer personally liable for the obligation of the corporate debtor.

Glass, J. The dispositive issue in this appeal is whether the 1955 enactment of General Statutes (Sup. 1955) § SOOOd, the first legislation in Connecticut authorizing courts to decree a "legal separation" of married persons, retroactively applies to previously entered equitable decrees of separate maintenance and support, thereby transforming such decrees into decrees of legal separation. Because § 3006d provided a remedy that altered substantive marital rights and obligations, we conclude that the legislature intended it to be prospective in application. Accordingly, we affirm the judgment of the trial court that the equitable decree of separate maintenance and support entered in 1953 in favor of the defendant, Doris G. Thorne, in her action against the now deceased Lawrence S. Thorne (decedent), was not transformed into a decree of legal separation by virtue of the subsequent enactment of § 3006d. The material facts are not in dispute. The defendant and the decedent were married in Connecticut on January 2, 1939. Some years later, the couple experienced marital difficulties. On or about September 15, 1952, the defendant left the decedent to live elsewhere, taking with her the two minor children of the marriage, the plaintiffs, Sally T. Miaño and Dana T. Tartoff. Shortly thereafter, on September 24,1952, the defendant commenced an equitable action against the decedent in the Superior Court alleging that he had been habitually cruel to her and had neglected to support her and the plaintiffs. She sought relief in the form of: "(1) A decree requiring [the decedent] to support her and [the plaintiffs], and providing at least Twelve Hundred Dollars ($1,200.00) per month for that purpose; and a temporary allowance for the same amount; (2) A lump sum judgment in the amount of Fifty Thousand Dollars ($50,000.00); [and] (3) Such other relief as to equity may appertain." From the transcript of the subsequent trial, it is evident that the defendant and the decedent had reached an agreement regarding the financial orders to be issued by the court. The court rendered judgment in accordance with the agreement on May 7,1953, ordering, among other things, that the decedent make monthly payments to the defendant for the support of her and the plaintiffs. Because of the parties' agreement, the issue of the decedent's alleged cruelty was never factually resolved, even though the court's memorandum of decision found all of the issues in favor of this defendant. After the entry of the decree of separate maintenance and support, the defendant and the decedent continued to live separately up to and including the date of October 6, 1988, when the decedent died as a resident of West Palm Beach, Florida. It was later discovered that he had left a will naming the plaintiffs as the primary beneficiaries and residuary legatees of his estate. On January 25,1989, after the will had been submitted to probate in a Florida court, the defendant filed an application in that court seeking to exercise the election afforded to a "surviving spouse" under Florida law to claim a 30 percent share of the gross estate of a deceased spouse. See Fla. Stat. Ann. § 732.201, 732.207 (West 1976). The plaintiffs promptly challenged the defendant's status as the surviving "spouse" of the decedent by filing this action in the Connecticut Superior Court for a declaratory judgment pursuant to General Statutes § 52-29. The defendant counterclaimed, alleging that she was in fact the spouse of the decedent from the date of her marriage until the date of his death. Thereafter, the parties filed cross motions for summary judgment on the issue of whether the defendant remained married to the decedent until the date of his death. The plaintiffs argued that § 3006d applied retroactively to the decree of separate maintenance and support obtained by the defendant, and thus transformed the decree into one of legal separation. In addition, the plaintiffs maintained that the subsequent passage and retroactive application of Public Acts 1973, No. 73-373, § 7 (b) (1973 act), farther transformed the decree into one of legal separation "hav[ingj the effect of a decree dissolving the marriage," thereby giving the defendant and the decedent "the status of unmarried persons." The court rejected the plaintiffs' arguments and rendered summary judgment in favor of the defendant. The plaintiffs appealed to the Appellate Court, and we transferred the appeal to this court in accordance with Practice Book § 4023. The plaintiffs have presented two issues for our review: (1) whether the enactment in 1955 and retroactive application of § 3006d transformed the decree of separate maintenance and support entered in 1953 into a decree of legal separation; and (2) if the decree was so transformed, whether the passage and retro active application of the 1973 act further transformed the decree into one giving the defendant the status of an "unmarried person." Because we hold that § 3006d does not apply retroactively, we need not consider the plaintiffs' second claim. The starting point for our analysis of the plaintiffs' claim that § 3006d applied retroactively is General Statutes § 55-3. Section 55-3 provides: "No provision of the general statutes, not previously contained in the statutes of the state, which imposes any new obligation on any person or corporation, shall be construed to have a retrospective effect." "The 'obligations' referred to in the statute are those of substantive law." Nagle v. Wood, 178 Conn. 180, 186, 423 A.2d 875 (1979); see Gormley v. State Employees Retirement Commission, 216 Conn. 523, 529, 582 A.2d 764 (1990). Accordingly, "we have uniformly interpreted § 55-3 as a rule of presumed legislative intent that statutes affecting substantive rights shall apply prospectively only." Darak v. Darak, 210 Conn. 462, 467, 556 A.2d 145 (1989). This presumption is rebutted only when the legislature " 'clearly and unequivocally' expresses its intent that the legislation shall apply retrospectively. State v. Lizotte, 200 Conn. 734, 741, 517 A.2d 610 (1986); Schieffelin & Co. v. Department of Liquor Control, [194 Conn. 165, 174, 479 A.2d 1191 (1984)]; Enfield Federal Savings & Loan Assn. v. Bissell, [184 Conn. 569, 572, 440 A.2d 220 (1981)]." Darak v. Darak, supra, 468. Moreover, although we have presumed that procedural or remedial statutes are intended to apply retroactively absent a clear expression of legislative intent to the contrary; Citizens Against Pollution Northwest, Inc. v. Connecticut Siting Council, 217 Conn. 143, 151, 584 A.2d 1183 (1991); "a statute which, in form, provides but a change in remedy but actually brings about changes in substantive rights is not subject to retroactive application." Hunter v. Hunter, 177 Conn. 327, 332, 416 A.2d 1201 (1979). "The rule is one of obvious justice and prevents the assigning of a quality or effect to acts or conduct which they did not have or did not contemplate when they were performed." Union Pacific R.R. Co. v. Laramie Stock Yards Co., 231 U.S. 190, 199, 34 S. Ct. 101, 58 L. Ed. 179 (1913). While § 3006d was intended to provide a new remedy for spouses desiring to live apart, the marital rights and obligations of spouses subject to a decree of legal separation were markedly different from those bound by an equitable decree of separate maintenance and support. The fundamental difference concerned the corollary marital rights and obligations of cohabitation and support. To obtain a decree of separate maintenance and support, an aggrieved spouse, typically a wife, was required to demonstrate in an equitable proceeding that she was "justified" in living apart from her husband. DeRosa v. DeRosa, 129 Conn. 409, 412, 28 A.2d 846 (1942). A wife alleging her husband's cruelty as a ground for the entry of the decree, for example, could prevail with a showing of "something less than conduct which would constitute intolerable cruelty as a ground for divorce. It [was] sufficient if the husband [had] made it intolerable in any way for his wife to live with him." Kurzatkowski v. Kurzatkowski, 142 Conn. 680, 683, 116 A.2d 906 (1955); see Cantiello v. Cantiello, 136 Conn. 685, 689, 74 A.2d 199 (1950); Campbell v. Campbell, 110 Conn. 277, 279, 147 A. 800 (1929). The nature of the relief afforded by the decree of separate maintenance and support, however, was limited. Rather than authorizing a wife's continued separation from her husband, the decree provided only temporary relief from her obligation to cohabit with him as an incident to her right to receive his support. See Martin v. Martin, 134 Conn. 354, 356, 57 A.2d 622 (1948); see also 24 Am. Jur. 2d, Divorce and Separation § 4. A husband could at any time make a good faith offer of reconciliation, which would place his wife under an obligation to resume cohabitation if the original justification for her refusal to do so had passed. See Kurzatkowski v. Kurzatkowski, supra, 684; accord Martin v. Martin, supra, 358. If she unjustifiably rejected the offer of reconciliation, her right to support could be forfeited; see Kurzatkowski v. Kurzatkowski, supra, 683; DeRosa v. DeRosa, supra, 411; and she could be charged with willful desertion, a ground for divorce. See General Statutes (1949 Rev.) § 7327; Campbell v. Campbell, supra; see also 24 Am. Jur. 2d, supra, § 111. By comparison, the decree of legal separation available under § 3006d, while leaving the bulk of the statutory and common law rights and obligations of married persons intact, terminated the right and correspond ing obligation of cohabitation, thereby authorizing the continued separation of the parties to the decree. See Viglione v. Viglione, 22 Conn. Sup. 65, 69, 160 A.2d 501 (1960); see also Pettis v. Pettis, 91 Conn. 608, 617-18, 101 A. 13 (1917) (discussing similar decree of divorce a menso et thoro); see generally 24 Am. Jur. 2d, supra, § 4, 111; 1 H. Clark, Law of Domestic Relations (1987) § 7.4. Although cohabitation could be resumed at any time after the entry of the decree upon the mere filing of a written "declaration of resumption"; General Statutes (Sup. 1955) § 3006d; a wife could reject her husband's offer of reconciliation without jeopardizing her right to support or incurring a charge of willful desertion. See generally 24 Am. Jur. 2d, supra, § 111; 1 H. Clark, supra. A husband, on the other hand, could not invoke his right to his wife's cohabitation as an incident to his obligation to support her by simply improving his behavior and making the appropriate offer of reconciliation. 24 Am. Jur. 2d, supra, § 111; 1 H. Clark, supra. The evident basis for the distinction between the rights and obligations of married persons bound by the respective decrees was that a wife seeking a decree of legal separation, unlike a wife bringing an equitable action for separate maintenance and support, was required to demonstrate, "in accordance with the procedures governing divorces," that she "would be entitled to a divorce." General Statutes (Sup. 1955) § 3006d. In other words, "[t]he existence of statutory grounds for a divorce must be established in such proceedings, such grounds as would justify the court in finally terminating the marriage relationship." Viglione v. Viglione, supra, 70. A wife alleging that her husband had treated her cruelly was therefore required to establish that his behavior rose to the level of "intolerable cruelty," a statutory ground for divorce; see General Statutes (1949 Rev.) § 7327; which entailed proof that "the cumulative effect of the [husband's] cruelty upon the suffering [wife] has become such that the public and personal objects of matrimony have been destroyed beyond rehabilitation . . . ." McEvoy v. McEvoy, 99 Conn. 427, 432, 122 A. 100 (1923); see also Campbell v. Campbell, supra. In view of the substantive disparity between the marital rights and obligations of spouses subject to the respective decrees, we presume that the legislature did not intend § 3006d retroactively to transform previously entered equitable decrees of separate maintenance and support, obtained upon a lesser degree of proof than that required for a divorce, into decrees of legal separation. The plaintiffs have not directed our attention to any "clear and unequivocal" language in § 3006d, nor do we find any upon an independent examination of the statute, that rebuts this presumption. Accordingly, we conclude that § 3006d did not apply retroactively, and hence did not transform the equitable decree of separate maintenance and support obtained by the defendant into a decree of legal separation. Since the decree was not so transformed, the subsequent passage of the 1973 act, limited in application by its terms to "actions for divorce, annulment, and legal separation," could not have further transformed the decree into one giving the defendant the status of an "unmarried person" even if retroactively applied. The judgment is affirmed. In this opinion the other justices concurred. "[General Statutes (Sup. 1955)] Sec. 3006d. legal separation. In any case in which a divorce might be decreed the superior court, on petition of the party who would be entitled to a divorce, may decree a legal separation of the parties, which separation shall have in all respects the effect of a divorce, except that the parties shall not thereby be made free to marry any third person and except as hereinafter provided. Upon such petition the procedure shall be the same as in actions for divorce, and the court shall have the same power in all matters relating to temporary and permanent orders for alimony, custody and support of children, and to allowances, as in cases of divorce. The parties to such action may at any time resume marital relations, upon filing with the clerk of the superior court for the county in which the separation was decreed their written declaration of such resumption, signed, acknowledged and witnessed. Such declaration shall be entered upon the docket, under the entries relating to such petition." A related statute contemporaneously enacted was General Statutes (Sup. 1955) § 3007d, which provided: "DIVORCE SUBSEQUENT TO LEGAL SEPARATION. At any time after the entry of a decree of legal separation, either party may petition the superior court in the county where such decree was entered for a decree finally dissolving and terminating the marriage, and if the court finds that the parties have not resumed marital relations since the entry of the decree of legal separation, it may enter a decree finally dissolving and terminating the marriage and may affirm or modify any existing orders and may enter any additional orders relating to alimony, custody and support of children and allowances as are usual in divorce cases." In its memorandum of decision, the court concluded that the defendant was married to the decedent on May 7,1953, the date of the entry of the decree of separate maintenance and support, but did not specifically address the issue of the retroactivity of General Statutes (Sup. 1955) § 3006d. The parties briefed and argued the issue before the court, however, and have treated the court's decision, for purposes of appeal, as also indicating that no subsequent statutory enactment retroactively altered the original decree. Therefore, we also treat the court's decision as including an implicit determination that § 3006d is not subject to retroactive application, and we affirm its decision on this ground. Counsel for the decedent stated at the hearing: "I want it understood in the record now that the statements made by the [wife] relating to the conduct of the [husband are] categorically denied by the [husband] and will be denied if those allegations are made again in the future. The reason for my statement is as we've arrived at an agreement, I don't want the fact that we did not proceed or deny it and arrived at a settlement before he had an opportunity to go on the stand, that it stands undenied." The plaintiffs filed an objection to the defendant's application, which is currently pending in the Florida Probate Court. "[General Statutes] Sec. 52-29. superior court may declare rights and LEGAL RELATIONS, (a) The superior court in any action or proceeding may declare rights and other legal relations on request for such a declara tion, whether or not further relief is or could be claimed. The declaration shall have the force of a final judgment. "(b) The judges of the superior court may make such orders and rules as they may deem necessary or advisable to carry into effect the provisions of this section." Public Acts 1973, No. 73-373, § 7 (b) provides in pertinent part: "A decree of annulment or dissolution shall give the parties the status of unmarried persons and they may marry again. A decree of legal separation shall have the effect of a decree dissolving the marriage except that neither party shall be free to marry a third person. ." See footnote 2, supra. The statement accompanying the bill that the legislature ultimately enacted as General Statutes (Sup. 1955) § 3006d explained that the proposed legislation "would . . . open up an avenue for those who do not want to bring a divorce action." H. Bill No. 72 (1955 Sess). Where a wife's refusal to live with her husband was the result of "a continued series of acts of cruelty," this court held that "in order that the wife be under an obligation to resume cohabitation it is essential that something more appear than that the husband's offers of reconciliation were made in good faith. It must also appear from the character of the man that there is a reasonable probability that he will not again indulge in acts of cruelty. DeRosa v. DeRosa, 129 Conn. 409, 411, 28 A.2d 846 (1942)." Kurzatkowski v. Kurzatkowski, 142 Conn. 680, 684, 116 A.2d 906 (1955). Despite the broad language of General Statutes (Sup. 1955) § 3006d stating that a decree of legal separation "shall have in all respects the effect of a divorce, except that the parties shall not thereby be made free to marry any third person," the statute was construed to have the following limited effect: "Each separated husband and wife retain[ed] all the statutory rights of property, inheritance and administration in the estate of the other together with all the obligations of the continuing marriage contract except for those concerned with cohabitation." (Emphasis added.) Viglione v. Viglione, 22 Conn. Sup. 65, 69, 160 A.2d 501 (1960); see 24 Am. Jur. 2d, Divorce and Separation § 1. The statement attached to the bill that eventually was enacted as General Statutes (Sup. 1955) § 3006d described the effect of a decree of legal separation as follows: "The separation decree sanctions the refusal of the wife to cohabit." H. Bill No. 72 (1955 Sess.). This conclusion is reinforced by a reading of the statute in conjunction with its concurrently enacted companion provision, General Statutes (Sup. 1955) § 3007d. See footnote 1, supra. Section 3007d permitted "either party" to a legal separation decree to petition for and obtain a decree "finally dissolving and terminating the marriage" upon a showing that cohabitation had not resumed since the entry of the legal separation decree. The dissolution decree available under § 3007d, although bearing a different label, was the functional equivalent of a decree of divorce, which could not, under the law existing in 1955, be obtained upon a mere showing of the absence of cohabitation, over a period of time. See General Statutes (1949 Rev.) § 7327. Rather, it was necessary to establish "fault" on the part of the spouse against whom the divorce action was brought, i.e., the existence of a statutory ground for divorce. See General Statutes (1949 Rev.) § 7327; see also Viglione v. Viglione, 22 Conn. Sup. 65, 69-70, 160 A.2d 501 (1960). The availability of a "conversion divorce" under § 3007d, however, was not considered a material change in the public policy of this state because it could be obtained only by parties to a legal separation decree that had been entered in accordance with General Statutes (Sup. 1955) § 3006d, which required, as a prerequisite to the entry of the decree, that the existence of a statutory ground for divorce be established. See General Statutes (Sup. 1955) § 3006d; see generally Viglione v. Viglione, supra. Because an equitable decree of separate maintenance and support could be obtained without establishing grounds for divorce; see, e.g., Kurzatkowski v. Kurzatkowski, 142 Conn. 680, 683, 116 A.2d 906 (1955); the transformation of such decrees into decrees of legal separation by the retroactive application of § 3006d would have permitted either spouse bound by the equitable decree to obtain, under § 3007d, a decree finally dissolving and terminating the marriage without the requisite showing of "fault." Such a result would have been inconsistent with "the long established policy of this State which regards marriage as a life status and indissoluble save for such causes as in effect repudiate and annul the marriage covenant. These causes are specified by our statute law . . . (Emphasis in original.) Swist v. Swist, 107 Conn. 484, 489-90, 140 A. 820 (1928). Moreover, since the decedent's alleged habitual cruelty was never conclusively established in the defendant's action for separate maintenance and support, it would be particularly inappropriate to apply § 3006d retroactively in this case. Legislation will not be applied retroactively if "good sense and justice dictate otherwise." East Village Associates, Inc. v. Monroe, 173 Conn. 328, 332, 377 A.2d 1092 (1977). In this respect, we note that the statement accompanying the bill that ultimately became General Statutes (Sup. 1955) § 3006d stated that the legislation proposed by the bill "would not take away anyone's right to pursue present remedies." H. Bill No. 72 (1955 Sess.).

The defendant's petition for certification for appeal from the Appellate Court, 24 Conn. App. 807, is denied.

Borden, J. The plaintiff, Elizabeth A. Chmielewski, executrix of the estate of Robert E. Chmielewski, appeals, and the defendant, Aetna Casualty and Surety Company, cross appeals from the judgment of the trial court that: (1) modified an underinsured motorist coverage arbitration award in favor of the plaintiff; and (2) remanded to the same arbitration panel an issue of coverage under an excess coverage policy that the arbitrators had not determined. On appeal, the plaintiff claims that the trial court: (1) violated her constitutional rights to due process of law and access to the courts by failing to undertake a de novo review of certain factual determinations of the arbitrators; and (2) improperly concluded that stacking was not available and accordingly modified the award by reducing it from $1,400,000 to $500,000. On cross appeal, the defendant claims that the trial court improperly: (1) ruled that a certain exclusion from coverage provision of the policy was invalid and, therefore, did not bar the plaintiffs claim for underinsured motorist coverage; (2) awarded interest to the plaintiff on the award retroactive to the date of the award; and (3) remanded the case to the arbitrators. We affirm in part and reverse in part. The following facts are not disputed. On April 14, 1987, the decedent was killed when a motorcycle owned and operated by him collided with a pickup truck. The pickup truck carried $100,000 of liability insurance, which was paid in full to the plaintiff. The decedent's motorcycle was insured by Northland Insurance Company, and carried uninsured motorist coverage limits of $20,000 per person and $40,000 per occurrence. The decedent, the sole proprietor of a plumbing and heating business, maintained a policy, entitled "Business Auto Policy," issued by the defendant covering nine motor vehicles that were separately listed on the policy and for which separate premiums were charged. The policy provided $500,000 of uninsured and underinsured motorist coverage for each vehicle. The total annual premium for uninsured and underinsured motorist coverage for the nine vehicles was $262. The named insured on the policy was "R E Chmielewski Plumbing & Heating ATIMA." The motorcycle was not listed as a covered vehicle under the policy. The decedent also maintained an excess liability policy with the defendant in the amount of $2,000,000. The parties proceeded to compulsory arbitration pursuant to General Statutes (Rev. to 1989) § 38-175c before a panel of three arbitrators. The plaintiff claimed that she was entitled to stack the $500,000 of underinsured motorist coverage for each of the nine listed vehicles, for a total coverage of $4,500,000 under both the business auto policy and the excess policy. The defendant denied both coverage and stacking on the bases that: (1) a particular exclusionary provision in the policy applied to the plaintiffs claim; (2) § 38-175c (a) (1) authorized the policy exclusion in question; (3) the policy was a fleet policy to which stacking was not applicable; and (4) the excess policy did not apply because the decedent's motorcycle was specifically endorsed off of its coverage. The arbitration proceedings, which began on October 24, 1988, and concluded on October 2, 1989, constituted nine days of hearings that were transcribed by a stenographer. Since the arbitration provision of the policy did not set a time limit within which the arbitrators had to render their decision, the parties agreed to extend to December 1, 1989, the thirty day time period for rendering an arbitration award provided by General Statutes § 52-416. On November 20,1989, a majority of the arbitrators decided that there was coverage under the business auto policy and that stacking was permitted thereunder. They found that the policy was a "business automobile policy [that] insured nine vehicles with separate premiums paid for underinsured coverage on each vehicle." The arbitrators awarded damages to the plaintiff in the gross amount of $1,666,650, reduced by 10 percent for the comparative negligence of the decedent to $1,500,000, and further reduced by the $100,000 recovered from the tortfeasor's insurer, for a net award of $1,400,000. This amount was further reduced because the arbitrators determined that Northland had $20,000 of underinsured motorist coverage and that Northland had agreed to be bound by the arbitrators' decision regarding the extent of its payment. The arbitrators also determined that Aetna and Northland would share the credit of $100,000 proportionately to their coverage. Because the award was within the stacked coverage provided by the business auto policy, the arbitrators did not address the issue of coverage under the excess policy. The plaintiff moved to confirm and the defendant moved to vacate the award. The record supplied to the trial court consisted of the arbitration agreement, the parties' written extension of time for the arbitrators to render their award, and the applications to confirm and vacate. After the' parties argued the cross applications to the trial court, Stodolink, J., but before the trial court had rendered its decision, the plaintiff moved to supplement the record "to allow additional evidence on the issue of ownership of the vehicles listed on the subject policy." The basis of this motion was that, after the arguments on the cross applications, this court decided Cohn v. Aetna Ins. Co., 213 Conn. 525, 569 A.2d 541 (1990), and Wilson v. Security Ins. Co., 213 Conn. 532, 569 A.2d 40, cert. denied, U.S. , 111 S. Ct. 52, 112 L. Ed. 2d 28 (1990), where we held that stacking was not available under a policy "covering a number of vehicles owned by a business . . . .''Cohn v. Aetna Ins. Co., supra, 530; Wilson v. Security Ins. Co., supra, 535. The plaintiff argued that she was entitled to a de novo review of the arbitrators' factual determination that the policy in question was a business automobile policy, and that she was entitled to introduce evidence to establish that it was not such a policy. On July 13,1990, the trial court issued its memorandum of decision on the plaintiff's motion to supplement the record and on the cross applications to confirm and vacate the award. With respect to the plaintiff's motion to supplement the record, the court recognized that under American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 530 A.2d 171 (1987), it was required to undertake a de novo review of legal questions. It also concluded that it was "under no binding precedent to conduct a de novo review of the factual finding by the arbitrators that the policy in question is one issued to a business. The court is satisfied by the record that the policy in question is a business automobile policy." The court accordingly denied the plaintiffs motion to supplement the record. On the merits of the applications, the court rejected the defendant's claims that the policy exclusion and General Statutes (Rev. to 1989) § 38-175c (a) (1) (A) precluded coverage. The court also determined that, based on the arbitrators' finding, the policy was a fleet policy and that stacking of coverage was barred by Cohn v. Aetna Ins. Co., supra. Thus, the court ruled, "[t]he arbitration award should be modified to reflect the maximum underinsurance coverage of $500,000 available [for one vehicle] under the business auto policy, less applicable credits and a 10 percent reduction for decedent's comparative negligence." With respect to the credit applicable as a result of the tortfeasor's insurer's payment of $100,000, the court indicated that "the most reasonable disposition of [that payment] is to have Aetna and Northland share the credit of $100,000 proportionately to their coverage[s]. While this manner of disposition is reasonable, this issue must be remanded to the arbitrators to make appropriate adjustments based on a maximum coverage under the Aetna policy of $500,000." The court also granted the plaintiff's request for interest on the award retroactive to the date of the award, pursuant to General Statutes § 37-3a. Further, the court determined that the issue of coverage under the excess policy that the arbitrators had not determined "must be remanded to the arbitration panel for their determination." Thereafter, judgments were rendered in conformity with the decision. The parties appealed and cross appealed to the Appellate Court, and we transferred the cases to this court pursuant to Practice Book § 4023. I Standard of Review The plaintiff claims that the court improperly: (1) failed to undertake a de novo review of the factual finding of the arbitrators that the policy in question was a policy issued to a business; and (2) refused to permit her to supplement the trial court record in order to demonstrate that the policy in question was not a fleet insurance contract. Since these two claims are closely related, and since the plaintiff offers similar constitutional bases for each of the claims, we consider them together. The plaintiff argues that the court's failure to undertake a de novo review of the arbitrators' factual finding that the policy in question was issued to a business deprived the plaintiff "of those rights secured by Section one of the 14th Amendment of the United States Constitution, Article first, Section 10 of our state constitution and, Article first, section 19 as amended by Article IV to the Constitution of the State of Connecticut." She also argues that the same constitutional principles entitled her to supplement the trial court record by introducing evidence to establish that the policy was not a fleet insurance contract. We disagree. We first consider the scope of the constitutional claims presented by the plaintiff. Although that scope could have been more clearly delineated, we glean from the specific references noted above and from the discussion in her brief of American Universal Ins. Co. v. DelGreco, supra, 184-91, that the constitutional bases of her claim are the due process clauses of the fourteenth amendment to the United States constitution and of article first, § 10 of the Connecticut constitu tion, and the access to the courts clause of article first, § 10. See footnotes 9 and 10, supra. See Daily v. New Britain Machine Co., 200 Conn. 562, 576 n.11, 512 A.2d 893 (1986) (although constitutional claims not as fully or clearly stated as required, this court may exercise discretion to decide such claims in order to disperse constitutional clouds over legislation where public interest best served by doing so). We turn, therefore, to the questions of whether either due process of law or the constitutional guarantee of access to the courts requires a de novo review by the trial court of factual findings of arbitrators made in compulsory arbitration proceedings under General Statutes (Rev. to 1989) § 38-175c, and whether a party has the right to introduce evidence in the reviewing court in the course of the court's review of those findings. We conclude that such de novo review is not constitutionally required, but that the appropriate standard of review is the "substantial evidence" test that prevails in review of factual determinations by administrative agencies. We also conclude that, except in special circumstances not present in this case; compare General Statutes § 4-183 (i); a party does not have the right to introduce evidence in the reviewing court in connection with that review. Some history is first in order. General Statutes (Rev. to 1989) § 38-175c was first enacted in 1967 as § 4 of Public Acts 1967, No. 510. See Roy v. Centennial Ins. Co., 171 Conn. 463, 470-71, 370 A.2d 1011 (1976). Until 1971, § 38-175c left the matter of uninsured motorist coverage almost entirely to regulation by the insurance commissioner, without any reference to arbitration of such coverage. In 1967, this court held in Frager v. Pennsylvania General hits. Co., 155 Conn. 270, 231 A.2d 531 (1967), that an uninsured motorist arbitration clause in a liability policy embraced only the issues of liability of the uninsured motorist and the amount of the insured plaintiffs ensuing damages, but left issues of coverage to the court. Recognizing that removing coverage issues from arbitration would have implications for the administration of justice, we rejected the contention that our holding would clog the courts with piecemeal litigation. Id., 278. We expressed confidence that the insurance commissioner's regulatory powers would be sufficient to protect the public against possible abuse by insurers, such as "involving claimants in unwarranted litigation and procedural complexities or in delaying tactics intended to bring to bear on claimants the compulsive force of economic attrition." Id., 279. Ultimately, however, the legislature did not share that confidence, for in 1971 it enacted Public Acts 1971, No. 767, later codified in General Statutes (Rev. to 1989) § 38-175c. That section provides as follows: "Every such [automobile liability] policy issued on or after October 1, 1971, which contains a provision for binding arbitration shall include a provision for final determination of[uninsured motorist] insurance coverage in such arbitration proceeding." (Emphasis added.) Although the legislative history of that public act does not reveal any discussion on the floor or in committee hearings, we have regarded the 1971 amendment to § 38-175c as intended legislatively to overrule "[t]he holding in Frager . to the extent that it held that an insurer could contractually limit those issues relating to coverage which the arbitration panel could decide." Oliva v. Aetna Casualty & Surety Co., 181 Conn. 37, 41, 434 A.2d 304 (1980). We therefore held in Oliva that "[t]he expressed intent and effect of the aforesaid amendment to § 38-175c is to remove from the court and to transfer to the arbitration panel the function of determining, in the first instance, all issues as to coverage under automobile liability insurance policies containing uninsured motorist clauses providing for arbitration." Id., 42. It is fair to infer, therefore, that the purposes of the arbitration provision of § 38-175c, which we have characterized as a compulsory arbitration provision; see Wilson v. Security Ins. Group, 199 Conn. 618, 626, 509 A.2d 467 (1986); were to avoid the institutional difficulty perceived by the court in Frager, namely, clogging the courts with piecemeal litigation, and leveling the procedural playing field by guarding against the possibility of insurers unfairly using their superior economic resources to delay the final resolution of claims by their insureds. In American Universal Ins. Co. v. DelGreco, supra, we were confronted with the issue of the proper scope of judicial review of a decision of the arbitrators rendered pursuant to the compulsory arbitration provision of § 38-175c (a) (1). Recognizing that subjecting a compulsory arbitration award to the limited scope of review afforded a voluntary arbitration award "would in most cases be equivalent to no review at all and would be constitutionally suspect"; id., 191; we held that "where judicial review of compulsory arbitration proceedings required by § 38-175c (a) (1) is undertaken under General Statutes § 52-418, the reviewing court must conduct a de novo review of the interpretation and application of the law by the arbitrators." Id. Because in that case there was a stipulation of facts, however, we did not consider the scope of review of questions of fact determined by the arbitrators in such a compulsory arbitration proceeding. Thereafter, in Motor Vehicle Manufacturers Assn. of the United States, Inc. v. O'Neill, 212 Conn. 83, 561 A.2d 917 (1989), we were confronted with various constitutional challenges to General Statutes § 42-181 through 42-185, as amended in 1985 (Lemon Law II), including the claim that the limited scope of judicial review of the compulsory arbitration proceedings afforded by the legislation at issue violated our state constitutional provision regarding access to the courts. Id., 94-95. The defendants in O'Neill urged us to read into General Statutes § 52-418 a substantial evidence standard of review of factual determinations, in order to "meet constitutional requirements while accommodating the Lemon Law's purpose of avoiding costly litigation." Id., 96. That standard of review would have equated review of factual findings made in the process of compulsory arbitration to "the scope of judicial review afforded to administrative proceedings." Id., 95. Recognizing the "constitutional appeal" of that position; id., 96; we were prepared to "reach for a somewhat strained construction [of § 42-181 and 52-418] in the service of our acknowledged obligation to implement the legislature's purpose in a manner that is both effective and constitutional, if it were reasonably clear that such a construction accorded with the legislature's underlying intent." Id. We were constrained to reject that scope of review, however, not because it failed to meet applicable constitutional requirements but because the legislative history of General Statutes § 42-181, particularly an amendment to the Uniform Administrative Procedure Act (UAPA); chapter 54 of the General Statutes; specifically excluding Lemon Law arbitration panels from the definition of "agency," "repudiated the suggestion that the administrative appeal standard of 'substantial evidence' was intended to govern the judicial review of factfinding of Lemon Law II arbitrations." Id., 97. In this case, however, there is no similar legislative history to suggest that the legislature has specifically excluded the administrative appeal standard of substantial evidence review from § 38-175c. Indeed, a de novo scope of review of factual questions would be inconsistent with the purposes of the compulsory arbitration provision of that section, namely, avoiding congestion of the courts with piecemeal litigation and leveling the playing field by avoiding the risks that insurers would use their superior economic resources by subjecting contested claims for coverage to undue litigation. To subject factual findings made by arbitrators under § 38-175c to de novo review by the court would, in many cases, make those proceedings merely way stations to the courts, and would thereby create the very risks that the compulsory arbitration provision was designed to avoid. We perceive no legislative barrier, like that existing under Lemon Law II, to reading § -38-175c so as to provide a substantial evidence standard of judicial review of factual findings, and we construe § 38-175c and 52-418 to incorporate that standard in order to "implement the legislature's purpose in a manner that is both effective and constitutional . . . ." Id., 96. Furthermore, in order to ensure that the court is able to undertake that review effectively, we construe § 38-175c to incorporate a requirement that a record of the arbitration proceedings be preserved and made available to the court in connection with any such review. With this background in mind, we turn to the plaintiff's first constitutional challenge, namely, that she was deprived of her federal and state rights to due process of law because of the absence of de novo review of factual findings. We perceive no such due process violation. "Compulsory arbitration, per se . . . is not automatically invalid so long as fair procedures are provided by the legislature and ultimate judicial review is available." American Universal Ins. Co. v. DelGreco, supra, 189. Due process analysis requires balancing the government's interest in existing procedures against the risk of erroneous deprivation of a private interest inherent in those procedures. Pet v. Department of Health Services, 207 Conn. 346, 364, 542 A.2d 672 (1988). " 'All that is necessary is that the procedures be tailored, in light of the decision to be made, to "the capacities and circumstances of those who are to be heard" . . . to insure that they are given a meaningful opportunity to present their case.' " Id., quoting Mathews v. Eldridge, 424 U.S. 319, 348-49, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). Under this analysis, the court must consider three factors: " 'First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.' " Pet v. Department of Health Services, supra, quoting Mathews v. Eldridge, supra, 335. Applying these principles to this case, we conclude that no due process violation is involved in subjecting factual findings to a substantial evidence test under General Statutes (Rev. to 1989) § 38-175c. The private interests involved are the financial interests of the plaintiff and the defendant in determining their contractual rights and obligations of coverage. Although we do not minimize the importance of their interests to them, when considered among the hierarchy of interests ordinarily asserted under the tripartite due process analysis they cannot be characterized as substantial. Compare, e.g., Pet v. Department of Health Services, supra (disciplinary action against physician); Petrowski v. Norwich Free Academy, 199 Conn. 231, 506 A.2d 139, appeal dismissed, 479 U.S. 802, 107 S. Ct. 42, 93 L. Ed. 2d 5 (1986) (termination of employment proceeding against teacher). Nor is there a substantial risk of an erroneous deprivation of those interests by virtue of affording less than de novo review of factual findings. The substantial evidence test has governed factual findings in administrative proceedings both before and pursuant to the UAPA; see Connecticut Light & Power Co. v. Department of Public Utility Control, 216 Conn. 627, 639-40, 583 A.2d 906 (1990) (post-UAPA); Corey v. Avco-Lycoming Division, 163 Conn. 309, 322, 307 A.2d 144 (1972), cert. denied, 409 U.S. 1116, 93 S. Ct. 903, 34 L. Ed. 2d 699 (1973) (Loiselle, J., concurring) (preUAPA); and has long been regarded as constitutionally sufficient to protect the litigants' rights to due process. See Arkansas Wholesale Grocers' Assn. v. Federal Trade Commission, 18 F.2d 866, 871 (8th Cir.), cert. denied, 275 U.S. 533, 48 S. Ct. 30, 72 L. Ed. 411 (1927); see also 2 Am. Jur. 2d, Administrative Law § 621. Moreover, although uninsured motorist coverage is not directly subject to an administrative hearing process, we have recognized that "[t]he automobile liability insurance business [of which uninsured motorist coverage is a part] is one which is extensively regulated." Roy v. Centennial Ins. Co., supra, 473. Furthermore, unlike voluntary arbitration, where no record of the arbitration proceeding is required, we require that under § 38-175c such a record must be made and preserved. Moreover, the arbitrators appointed under chapter 909 of the General Statutes; General Statutes § 52-408 through 52-424, governing arbitration proceedings; to hear uninsured motorist coverage disputes under § 38-175c must swear "to hear and examine the matter in controversy faithfully and fairly and to make a just award according to the best of their understanding"; General Statutes § 52-414 (d); must postpone any hearing "for good cause shown"; General Statutes § 52-413; may issue subpoenas for the attendance of witnesses and for the production of other evidence; General Statutes § 52-412 (a); and must render their award within applicable time limits. General Statutes § 52-416. In addition, the legal bases of their decisions are subject to de novo review by the court; American Universal Ins. Co. v. DelGreco, supra; and review of questions of law includes challenges to arbitral decisions on the grounds of corruption, fraud, undue means or partiality, and inquiry into whether the arbitrators have exceeded their powers or imperfectly executed them. General Statutes § 52-418 (a). Finally, the state has a substantial interest, as expressed in the compulsory arbitration provision of § 38-175c, in providing a procedure for the resolution of uninsured motorist coverage disputes that is ordinarily less costly and more timely than traditional litigation. This procedure, moreover, avoids the additional burdens on the judicial process and the risks of economic overbearing by insurers that would be inherent in a de novo review of factual findings. We recognize that other courts in other contexts have held compulsory arbitration statutes violative of due process in the absence of de novo judicial review. See, e.g., Dorchy v. Kansas, 264 U.S. 286, 288, 44 S. Ct. 323, 68 L. Ed. 686 (1924); Mengel Co. v. Nashville Paper Products & Specialty Workers Union, 221 F.2d 644, 647 (6th Cir. 1955); Simon v. St. Elizabeth Medical Center, 3 Ohio Op. 3d 164, 167, 355 N.E.2d 903 (1976); Smith Case, 381 Pa. 223, 230, 112 A.2d 625, appeal dismissed, 350 U.S. 858, 76 S. Ct. 105, 100 L. Ed. 762 (1955). None of those cases, however, has differentiated between de novo review of legal and factual questions. In any event, we find more persuasive the reasoning of those cases that have found no due process violation where factual findings made in compulsory arbitration proceedings are made subject to judicial review on the basis of a substantial evidence standard; Mount St. Mary's Hospital v. Catherwood, 26 N.Y.2d 493, 508-509, 260 N.E.2d 508, 311 N.Y.S.2d 863 (1970); or a standard closely akin thereto. Trustees of Amalgamated Ins. Fund v. Geltman Industries, Inc., 784 F.2d 926, 928-29 (9th Cir.), cert. denied, 479 U.S. 822, 107 S. Ct. 90, 93 L. Ed. 2d 42 (1986) (under federal Multiemployer Pension Plan Amendments Act of 1980, arbitrators' factual findings presumptively correct and may be rebutted by clear preponderance of evidence); Republic Industries, Inc. v. Teamsters Joint Council, 718 F.2d 628, 639-40 (4th Cir. 1983) (same). We next consider the plaintiff's claim that, absent de novo review of the factual findings of the arbitrators, compulsory arbitration pursuant to § 38-175c runs afoul of her right to access to the courts under article first, § 10. We disagree. We assume that, for purposes of this constitutional analysis, the plaintiff's claim against the defendant for underinsured motorist coverage is equivalent to a cause of action for breach of contract and, as such, falls within that class of rights that "we have referred to as . . . constitutionally incorporated common-law right[s]." Gentile v. Altermatt, 169 Conn. 267, 284, 363 A.2d 1 (1975), appeal dismissed, 423 U.S. 1041, 96 S. Ct. 763, 46 L. Ed. 2d 631 (1976). While the legislature may not constitutionally abolish such a right entirely, it "retains the power to provide reasonable alternatives to the enforcement of such [a right]." Id., 286; see also Daily v. New Britain Machine Co., 200 Conn. 562, 585, 512 A.2d 893 (1986). Providing for judicial review of factual findings pursuant to a substantial evidence standard is such a reasonable alternative. First, uninsured motorist coverage disputes arise within the context of the extensively regulated automobile liability insurance business. Roy v. Centennial Ins. Co., supra. Thus, it is constitutionally appropriate to treat factual findings made by arbitrators under § 38-175c as analogous to those made in the course of contested administrative proceedings under the UAPA. Second, there are adequate safeguards surrounding the arbitration process to ensure the integrity of that factfinding process. A record must be made and preserved for the trial court's use in undertaking the review process. The arbitrators must be sworn to perform their task faithfully, they must render their decision in a timely manner, and their decision will not stand if it is the product of fraud, corruption, partiality or other misconduct, or if it exceeds their powers. See General Statutes § 52-414 through 52-418. Finally, the aggregate benefits associated with compulsory arbitration under § 38-175c are sufficient to insulate that statute from successful constitutional attack under article first, § 10. Those benefits are that the parties are spared the delay and some of the expense attendant on litigation, and insureds are spared the risk that their insurers will use their superior economic resources unfairly to render the arbitration process simply as a first step in the de novo review process, thereby requiring relitigation of the underlying facts upon judicial review. Much the same reasoning disposes of the plaintiff's claim that she was entitled to introduce new evidence in the trial court in order to establish that the policy in question was not a business policy. Permitting a litigant under circumstances not sanctioned by the analogous provisions of the UAPA; General Statutes § 4-183 (i); to supplement the arbitration record by presenting evidence to the trial court that was not presented to the arbitrators would be inconsistent with the purposes of § 38-175c and with the substantial evidence scope of judicial review of the arbitrators' findings. Furthermore, contrary to the plaintiff's assertion, this record discloses that the issue ultimately decided by this court in Cohn v. Aetna Ins. Co., supra, was squarely before the arbitrators in this case. Thus, the plaintiff had the opportunity to persuade the arbitrators that as a factual matter the policy in question was not a fleet policy within the meaning of Cohn. In this case, the trial court did not specifically decide whether there was substantial evidence to support the arbitrators' determination that the policy was a fleet policy. Instead, it reviewed the record presented to it and stated that it was "satisfied by the record that the policy in question is a business automobile policy." That lacuna in the court's analysis is not fatal to its judgment, however, because the question of whether a factual finding is supported by substantial evidence is ultimately a question of law subject to de novo review by this court. See Connecticut Light & Power Co. v. Department of Public Utility Control, supra, 639; Briggs v. State Employees Retirement Commission, 210 Conn. 214, 217-18, 554 A.2d 292 (1989); Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 539-42, 525 A.2d 940 (1987). Our independent review of the record presented to the trial court persuades us that the critical factual determination was supported by substantial evidence: the policy is labeled a "Business Auto Policy"; the named insured is "R E Chmielewski Plumbing & Heating"; and the policy covers nine separately described vehicles. The policy in question is, therefore, a fleet policy. II The Plaintiff's Appeal The plaintiff next claims that the trial court improperly precluded her from stacking the underinsured motorist coverage under the policy because the policy was not a "fleet insurance contract" as we defined that phrase in Cohn v. Aetna Ins. Co., supra, 530. We disagree. In Cohn, we held (p. 530) that "[t]he notion of 'stacking' as an objectively reasonable expectation of the parties does not, however, extend to fleet insurance contracts. In using the phrase 'fleet insurance contracts' we specifically refer to any insurance policy designated as a 'fleet' or 'garage' policy, or any insurance policy covering a number of vehicles owned by a business, a governmental entity, or an institution. See 25 A.L.R.4th 896 (1983)." (Emphasis added.) The plaintiff argues that the vehicles listed on the policy were not owned by a business within that definition because title to them was in the decedent's name rather than a corporate name and, therefore, there was no separate entity that "owned" them. We agree with the plaintiff that property owned by an individual in a trade name is nonetheless owned by him. See generally Samples v. Georgia Mutual Ins. Co., 110 Ga. App. 297, 299, 138 S.E.2d 463 (1964). We also agree that one who operates a business under a trade name is nonetheless an individual insured under a policy issued in that trade name. See O'Hanlon v. Hartford Accident & Indemnity Co., 639 F.2d 1019, 1025 (3d Cir. 1981). Indeed, although the named insured on the policy in this case was "R E Chmielewski Plumbing & Heating," the defendant stipulated before the arbitrators that the decedent was a "named insured" on the policy. We conclude, however, that the trial court properly determined that the policy in question was a fleet insurance contract as we used that term in Cohn. When, in Cohn, we included within the definition of a fleet insurance contract "any insurance policy covering a number of vehicles owned by a business"-, (emphasis added) Cohn v. Aetna Ins. Co., supra, 530; we did not intend the word "owned" to be a term of art referring to the location of the legal title to the vehicles in question, as the plaintiffs argument suggests. The definition was drawn from an annotation in 25 A.L.R.4th (1983). The cases cited in that annotation included several where the vehicles were owned by an individual doing business as a sole proprietorship and yet were collected under the definition of a fleet insurance contract. See, e.g., Gallups v. Aetna Casualty & Surety Co., 513 F. Sup. 1074 (N.D. Ala. 1981); General Mutual Ins. Co. v. Gilmore, 294 Ala. 546, 319 So. 2d 675 (1975); Lumbermens' Mutual Casualty Co. v. Martin, 399 So. 2d 536 (Fla. App.), review denied, 408 So. 2d 1094 (1981); Holland v. Hawkeye Security Ins. Co., 230 N.W.2d 517 (Iowa 1975); Yeager v. Auto-Owners Ins. Co., 335 N.W.2d 733 (Minn. 1983); American States Ins. Co. v. Milton, 89 Wash. 2d 501, 573 P.2d 367 (1978). Furthermore, the question is not whether the named insured is a corporation or a sole proprietorship, but whether stacking is consistent with the rationale underlying the preclusion of stacking for fleet insurance poli cies as expressed in Cohn v. Aetna Ins. Co., supra. Application of that rationale to the facts of this case leads us to conclude that the policy in question should be viewed as a fleet policy. That rationale is based on the "objectively reasonable expectation[s] of the parties" to the insurance policy. Cohn v. Aetna Ins. Co., supra, 530. In that case, there was a business automobile policy insuring twenty-two vehicles owned by a corporation. Id., 526. The plaintiff was the conservator of the estate of his wife, who had been injured while operating one of the vehicles. Id., 527. The plaintiff sought to stack, for his wife's benefit, the underinsured motorist coverage in the amount of $40,000 for all twenty-two of the vehicles covered by the policy, for a total coverage of $880,000 for each of the twenty-two vehicles. Id., 531. Focusing on the expectations of both the named insured and the insurer, we held that stacking was not within the parties' reasonable expectations because it would have produced "the unlikely result that the principals of [the corporate named insured] and [the insurer] contemplated that [the named insured] was purchasing $19,360,000 worth of uninsured or underinsured coverage for a premium of $73." Id. Implicit in that calculation was the recognition that, in measuring the reasonable expectations of the parties, the court cannot view the particular insured and the vehicle in isolation but must hypothesize the total amount of coverage necessitated by the plaintiff's claim of stacking. Under the plaintiff's claim, therefore, we assumed that had all twenty-two of the vehicles been on the road simultaneously the total coverage would have been, not simply $40,000 x 22, or $880,000, as claimed by the plaintiff, but $40,000 x 22 x 22, or $19,360,000. Id.; see also Howell v. Harleysville Mutual Ins. Co., 305 Md. 435, 442, 505 A.2d 109 (1986). Such an amount of coverage for a total premium of $73 was not within the parties' reasonable expectations. Cohn v. Aetna Ins. Co., supra, 531. Similarly, in this case the plaintiff seeks to multiply the $500,000 worth of coverage for any one vehicle by the nine vehicles listed on the policy, for a total claimed underinsured motorist coverage of $4,500,000. As Cohn teaches, however, in measuring the reasonable expectations of the parties we cannot view the plaintiff's claim in isolation; rather, we must hypothesize that each covered vehicle would be afforded an identical amount of coverage. Id. Thus, if all of the covered vehicles were on the road simultaneously, the total available coverage would be $500,000 x 9 x 9, or $40,500,000, for a total premium of $262. Such an expectation is as unreasonable as was that of the plaintiff in Cohn. The plaintiff argues alternatively that, even if the policy in question is regarded as a fleet policy, "stacking should still be permitted for a named insured in a noncorporate context." This argument is based on the underlying argument that insureds should be divided into so-called "class T" insureds, consisting of the named insured and his relatives residing in his household, and "class II" insureds, consisting of other insureds, such as employees of the named insured, because "[i]t is the reasonable expectation of the named insured, or class I insured, to stack coverage even on a 'fleet' policy." This argument is without merit. "We have rejected attempts to limit 'stacking' principles to different classifications of covered individuals, rejecting the notion that there is a contractual distinction between the 'named insured' and vehicle 'occupants.' Allstate Ins. Co. v. Ferrante, 201 Conn. 478, 484-88, 518 A.2d 373 (1986)." Cohn v. Aetna Ins. Co., supra, 528-29. We see no reason to do otherwise on the facts of this case. Furthermore, as Cohn also teaches, determining whether stacking is permitted in this context requires an inquiry into the reasonable expectations of both the named insured and the insurer. Id., 531. The plaintiffs recourse to the purported reasonable expectations of the named insured ignores the broader reasonable expectations analysis employed above and in Cohn that would lead, contrary to the plaintiffs argument, to a result far beyond the reasonable expectations of the parties to the policy. Ill The Defendant's Cross Appeal A The defendant first raises three closely related claims that involve the relationship between an exclusion in the policy and a portion of the uninsured motorist statute, namely, General Statutes (Rev. to 1989) § 38-175c (a) (1) (A). The defendant argues that the exclusion is permitted by the statute and that it excludes underinsured motorist coverage entirely in this case, without regard to whether such coverage may be stacked. We disagree. The defendant presents several arguments in support of its claim, to which the plaintiff offers several responses. It is not necessary, however, to go through the process of tracking the policy and statutory exclusions in this case because all of the defendant's arguments hinge on its assertion that § 38-175c (a) (1) (A) authorizes this particular policy exclusion, and we conclude to the contrary. General Statutes (Rev. to 1989) § 38-175c (a) (1) (A) provides in pertinent part that "[n]o insurer shall be required to provide uninsured motorist coverage to (A) a named insured or relatives residing in his household when occupying, or struck as a pedestrian by, an uninsured or underinsured motor vehicle or a motorcycle that is owned by the named insured . . . .''(Emphasis added.) See footnote 3, supra. In contrast, the previous sentence of § 38-175c (a) (1) provides that "each insurer licensed to write automobile liability insurance in this state shall provide such uninsured motorists coverage with limits requested by the named insured upon payment of the appropriate premium, but the insurer shall not be required to provide such coverage with limits in excess of the limits of the bodily injury coverage of such policy issued to the named insured." (Emphasis added.) These differences in statutory language—"shall provide," as opposed to "[n]o insurer shall be required to provide" and an insurer "shall not be required to provide"—persuade us that, as the plaintiff argues and as the trial court determined, the language of § 38-175c (a) (1) (A) is permissive; it permits but does not mandate an insurer to provide for such a limitation of coverage in any policy that the insurer issues. That does not mean, however, that, simply because a given fact pattern falls within both the language of the statutory exclusion and a particular policy exclusion, no matter how phrased, both exclusions will apply without regard to whether the policy exclusion was designed to take advantage of the statutory exclusion or whether the two are substantially congruent. When an insurer seeks to limit its liability for uninsured or underinsured motorist coverage based on the regulation issued pursuant to § 38-175c, it may do so only to the extent that the regulation "expressly authorizes." Allstate Ins. Co. v. Ferrante, supra, 483; see also Nicolletta v. Nationwide Ins. Co., 211 Conn. 640, 647-48, 560 A.2d 964 (1989). Similarly, where an insurer seeks to limit its liability based on the statute itself, rather than on the regulation, it should only be permitted to do so to the extent that the statute expressly authorizes. In order for a policy exclusion to be "expressly authorized" by the statute, there must be substantial congruence between the statutory provision and the policy provision. That congruence is lacking here. The statutory permission to the insurer to limit its liability for such coverage applies where (1) a named insured or his resident relative (2) occupies or is struck as a pedestrian by (3) "an uninsured or underinsured motor vehicle or a motorcycle" (4) owned by the named insured. General Statutes (Rev. to 1989) § 38-175c (a) (1) (A). The policy exclusion at issue in this case applies where (1) the named insured or his resident relative (2) occupies or is struck by (3) any vehicle owned by the named insured (4) which is not a covered auto under the policy. Thus, although there are substantial similarities between the terms of the statute and the policy exclusion, there are also substantial dissimilarities: whereas the statute requires that the vehicle be uninsured or underinsured, the policy does not; whereas the statute requires that the named insured or resident relative be struck "as a pedestrian," the policy requires only that they be "struck"; and whereas the policy exclusion requires that the vehicle not be covered under the policy, the statute does not. A "limitation of liability on uninsured or underinsured motorist coverage must be construed most strongly against the insurer." American Universal Ins. Co. v. DelGreco, supra, 196. Furthermore, any ambiguity in policy language regarding coverage must be construed against the insurer. Avis Rent A Car System, Inc. v. Liberty Mutual Ins. Co., 203 Conn. 667, 672, 526 A.2d 522 (1987). In light of these well established principles, and in light of the permissive nature of the statutory limitation, we conclude that the policy exclusion at issue here was not authorized by the statutory exclusion and did not operate to exclude coverage in this case. B The defendant next claims that the trial court abused its discretion in awarding interest on the award to the plaintiff retroactive to the date of the award. The defendant argues that "since the arbitration award was excessive, the defendant clearly acted prudently in refusing to pay" it and, therefore, the defendant's detention of the money could not have been wrongful. We are unpersuaded. We have today decided that a trial court has discretion, under General Statutes § 37-3a, to award pre judgment interest on an arbitration award retroactively to some date prior to the date of the trial court's judgment affirming the award. Middlesex Mutual Assurance Co. v. Walsh, 218 Conn. 681, 701, 590 A.2d 957 (1991). Implicit in that determination is the conclusion that the prior date may be the date of the arbitration award. We also reasserted the well established propositions that § 37-3a provides for interest on money detained after it becomes due and payable, that the question under that statute is whether the money was wrongfully withheld, and that the ultimate determination " 'is one to be made in view of the demands of justice rather than through the application of any arbitrary rule.' " Id., 702, quoting Cecio Bros., Inc. v. Feldmann, 161 Conn. 265, 275, 287 A.2d 374 (1971). It is equally well established that we will not overrule the trial court's award of interest absent a clear abuse of discretion. Metcalfe v. Talarski, 213 Conn. 145, 160, 567 A.2d 1148 (1989). The fact that the ultimate award, as determined by the trial court and by this court, is considerably less than that awarded by the arbitrators does not necessarily mean, as the defendant's argument suggests, that the trial court could not exercise its discretion to award interest on that portion of the award that was upheld by the trial court and this court. The defendant has claimed throughout the litigation that there was no coverage whatsoever, and has had the use of the money throughout. Thus, we cannot say that the trial court abused its discretion in its award of interest retroactive to the date of the arbitration award. C We consider together the defendant's final claim, namely, that the trial court improperly remanded the case to the arbitrators, and the plaintiff's agreement with that claim, albeit on different grounds and with a different proposed result. These claims arise out of the trial court's orders that: (1) the award be modified, rather than confirmed or vacated, to reflect a maximum potential coverage under the policy of $500,000, "less applicable credits and a 10 percent reduction for decedent's comparative negligence"; (2) the issue of the applicable credit attributable to the $100,000 of coverage from the tortfeasor's policy be remanded to the original arbitrators for adjustment based on the $500,000 maximum coverage; and (3) the issue of coverage under the excess policy be remanded to those arbitrators for their determination. The defendant claims that, the court's disclaimer to the contrary notwithstanding, it did not "modify" the award, as the term "modify" is used in General Statutes § 52-419, but rather vacated it and then improperly remanded it in violation of the time constraints for remand provided in General Statutes § 52-418 (b). The plaintiff agrees that the trial court did not have the authority to remand the case to the original arbitrators because the time period for remand under § 52-418 (b) had passed. The plaintiff argues, however, that because the trial court could have decided the issue of the excess policy coverage, it would be unfair to require her now to rearbitrate that issue, and that we should decide that issue in her favor on the basis of the record before us. We agree with both parties that the trial court lacked the authority to remand the case to the original panel of arbitrators. We disagree with the defendant that the court did not modify the award. We conclude that it did modify the award and that it had the authority to do so. We further determine that it should have modified the award further to reflect the credits attributable to the tortfeasor's policy and to the decedent's comparative negligence. Finally, we disagree with the plaintiff that either the trial court or this court should decide the issue of the excess policy coverage in the first instance. We first consider the defendant's arguments that the court did not modify the award pursuant to § 52-419 but vacated it pursuant to § 52-418, and that it improperly remanded the case to the arbitrators. We conclude that under the circumstances here, where the award was rendered in a compulsory arbitration proceeding, the court must be regarded as having modified it pursuant to § 52-419, and that the court improperly remanded the case to the original panel of arbitrators pursuant to § 52-418. General Statutes § 52-419 (a) (1); see footnote 25, supra; provides in pertinent part that the court shall modify or correct an award "[i]f there has been an evident material miscalculation of figures or an evident material mistake in the description of any person, thing or property referred to in the award . . . ." Section 52-419 (b) provides: "The order shall modify and correct the award, so as to effect the intent thereof and promote justice between the parties." Although the language of § 52-419 (a) can be read narrowly, the court's role of reviewing the legal determinations of arbitrators de novo and their factual determinations under the substantial evidence standard requires that the statute be given a more expansive meaning, so as to encompass this case, where the court properly upheld the arbitrators' factual findings and properly reversed their legal determination. Unlike the court's more limited role in reviewing voluntary arbitration awards, where the court in most cases simply compares the award to the submission, in a compulsory arbitration case the court must have the authority to enter an appropriate order modifying the award so as to reflect those factual findings and that legal determination, and thus to effect the intent of the award as it should have been rendered under the law and to promote justice between the parties. General Statutes § 52-419 (b). Otherwise, the legislature's purposes in entrusting uninsured motorist coverage matters to compulsory arbitration under § 38-175c would be frustrated. We conclude, therefore, that insofar as the trial court modified the award to reflect that the maximum coverage under the policy was $500,000, rather than $4,500,000 as determined by the arbitrators, the court acted within its authority under § 52-419 (a) (1). Furthermore, the court should also have modified the award to reflect the decedent's comparative negligence and the credit applicable to the tortfeasor's coverage. Both these issues were decided by the arbitrators, nei ther was contested by the parties in the trial court, and they required only undisputed mathematical calculations. The court had ample authority under § 52-419 (a) (1), as we have construed it, to include those calculations in its modification. We agree, however, that the court exceeded its authority under § 52-418 when, on July 13, 1990, it remanded the case to the original panel of arbitrators for their determination of the excess policy coverage issue. Section § 52-418 (b) provides: "If an award is vacated and the time within which the award is required to be rendered has not expired, the court or judge may direct a rehearing by the arbitrators." We need not decide in this case whether the court's order constituted a vacation of the award, as well as a modification. Assuming without deciding that the court in effect also vacated the award, the time within which the original award was required to be rendered had long expired when the court remanded the case to the arbitrators. The final date for the arbitrators' award was December 1, 1989. Absent an agreement of the parties, the specific terms of § 52-418 (b) prohibited the court from remanding the case to the original panel of arbitrators, and any issues not decided by that panel will necessarily have to be decided by a new panel. See Aetna Life & Casualty Co. v. Bulaong, 218 Conn. 51, 64, 588 A.2d 138 (1991). Implicit in this discussion is our rejection of the plaintiff's claim that the trial court or this court should decide the excess policy coverage issue. Since the plaintiff claims that the excess policy "is subject to the provisions of our uninsured motorist coverage statute," she cannot substitute an initial judicial determination of such coverage for the compulsory arbitration proceeding mandated by General Statutes (Rev. to 1989) § 38-175C. The judgment is affirmed in part and reversed in part, and the case is remanded with direction to modify the judgment by (1) further modifying the award so as to reflect the decedent's comparative negligence and the credit attributable to the tortfeasor's policy, and (2) vacating the order for remand to the arbitrators. In this opinion the other justices concurred. The plaintiff applied to the trial court to confirm the arbitration award in question and the defendant applied to the trial court to vacate the award. The trial court consolidated the two proceedings. "ATIMA" is an abbreviation for tbe phrase "as their interests may appear." General Statutes (Rev. to 1989) § 38-3 75c provides in part: "UNINSURED motorist coverage, (a) (1) Every such policy shall provide insurance, herein called uninsured motorist coverage, in accordance with such regulations, with limits for bodily injury or death not less than those specified in subsection (a) of section 14-112, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of unin sured motor vehicles and underinsured motor vehicles and insured motor vehicles, the insurer of which becomes insolvent prior to payment of such damages, because of bodily injury, including death resulting therefrom, provided each insurer licensed to write automobile liability insurance in this state shall provide such uninsured motorists coverage with limits requested by the named insured upon payment of the appropriate premium, but such insurer shall not be required to provide such coverage with limits in excess of the limits of the bodily injury coverage of such policy issued to such named insured. No insurer shall be required to provide uninsured motorist coverage to (A) a named insured or relatives residing in his household when occupying, or struck as a pedestrian by, an uninsured or underinsured motor vehicle or a motorcycle that is owned by the named insured, or (B) to any insured occupying an uninsured or underinsured motor vehicle or motorcycle that is owned by such insured. Every such policy issued on or after October 1, 1971, which contains a provision for binding arbitration shall include a provision for final determination of insurance coverage in such arbitration proceeding. With respect to any claim submitted to arbitration on or after October 1,1983, the arbitration proceeding shall be conducted by a single arbitrator if the amount in demand is forty thousand dollars or less or by a panel of three arbitrators if the amount in demand is more than forty thousand dollars." This section is currently located at General Statutes (Rev. to 1991) § 38a-336. We refer herein throughout to the 1989 revision. General Statutes § 52-416 provides: "time within which award shall BE RENDERED. NOTICE, (a) If the time within whieh an award is rendered has not been fixed in the arbitration agreement, the arbitrator or arbitrators or umpire shall render the award within thirty days from the date the hearing or hearings are completed, or, if the parties are to submit additional material after the hearing or hearings, thirty days from the date fixed by the arbitrator or arbitrators or umpire for the receipt of the material. An award made after that time shall have no legal effect unless the parties expressly extend the time in which the award may be made by an extension or ratification in writing. "(b) The award shall be in writing and signed by the arbitrator or arbitrators, or a majority of them, or by the umpire. Written notice of the award shall be given to each party." For this purpose, the proportional share was $4,500,000 of coverage for Aetna and $20,000 of coverage for Northland and, therefore, Aetna would have been required to pay $1,380,260 and Northland $19,780. General Statutes § 37-3a provides: "rate recoverable as damages. Except as provided in sections 37-3b, 37-3c and 52-192a, interest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions or arbitration proceedings under chapter 909, including actions to recover money loaned at a greater rate, as damages for the deten tion of money after it becomes payable except as otherwise provided with respect to demand obligations in section 42a-3-122 (4) (a). Judgment may be given for the recovery of taxes assessed and paid upon the loan, and the insurance upon the estate mortgaged to secure the loan, whenever the borrower has agreed in writing to pay such taxes or insurance or both. Whenever the maker of any contract is a resident of another state or the mortgage security is located in another state, any obligee or holder of such contract, residing in this state, may lawfully recover any agreed rate of interest or damages on such contract until it is fully performed, not exceeding the legal rate of interest in the state where such contract purports to have been made or such mortgage security is located." Both parties and the trial court treated this determination of the arbitrators as a finding of fact, rather than as a conclusion of law. We therefore do likewise. See Beckenstein v. Potter & Carrier, Inc., 191 Conn. 120, 132, 464 A.2d 6 (1983); Travelers Ins. Co. v. Hendrickson, 1 Conn. App. 409, 411 n.3, 472 A.2d 356 (1984). The fourteenth amendment to the United States constitution provides in pertinent part: "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 . . . ." The constitution of Connecticut, article first, § 10, provides: "All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay." The constitution of Connecticut, amendment four, provides: "The right of trial by jury shall remain inviolate, the number of such jurors, which shall not be less than six, to be established by law . . . ." In American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 191, 530 A.2d 171 (1987), we held that "where judicial review of compulsory arbitration proceedings required by § 38-175c (a) (1) is undertaken under General Statutes § 52-418, the reviewing court must conduct a de novo review of the interpretation and application of the law by the arbitrators." The constitution of Connecticut, article first, § 10, is both our due process and access to the courts provision; see Motor Vehicle Manufacturers Assn. of the United States, Inc. v. O'Neill, 212 Conn. 83, 94, 561 A.2d 917 (1989) (access to the courts); Katz v. Brandon, 156 Conn. 521, 537, 245 A.2d 579 (1968) (due process); and has the same meaning and same limitations as the federal due process provision. See Circuit-Wise, Inc. v. Commissioner of Revenue Services, 215 Conn. 292, 307, 576 A.2d 1259 (1990). Although the plaintiffs brief also makes passing reference to a claimed violation of her right to a jury trial; see footnote 10, supra, and accompanying text; we decline to consider that claim because at no time did she claim a jury trial in the trial court; see O'Hara v. State, 218 Conn. 628, 639, 590 A.2d 948 (1991); and because she has offered absolutely no authority or analysis in support thereof. The legislative history discloses only that Substitute House Bill No. 5627, entitled "An Act Creating a Summary Proceeding for Uninsured Motorists," which ultimately became the public act, was passed on the consent calendars of the House of Representatives and Senate at the end of the 1971 session of the General Assembly. See 14 S. Proc., Pt. 7, 1971 Sess., p. 3403; 14 H.R. Proc., Pt. 11, 1971 Sess., p. 4966. The substantial evidence test for judicial review of factual findings provides as follows: "Judicial review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the administrative agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable." Connecticut Light & Power Co. v. Department of Public Utility Control, 216 Conn. 627, 639, 583 A.2d 906 (1990). "Substantial evidence" will be found to exist if the administrative record supplies a substantial basis of fact from which the court reasonably can infer the fact in issue. Id., 639-40. This standard of review provides less room for judicial scrutiny than do the "clearly erroneous" or "weight of the evidence" rules. Connecticut Building Wrecking Co. v. Carothers, 218 Conn. 580, 593, 590 A.2d 447 (1991). "In determining whether an administrative finding is supported by 'substantial evidence,' a court must defer . to the agency's right to believe or disbelieve the evidence presented by any witness, even an expert, in whole or in part." Briggs v. State Employees Retirement Commission, 210 Conn. 214, 217, 554 A.2d 292 (1989); see also Connecticut Light & Power Co. v. Department of Public Utility Control, supra, 640. In this case, such a record was preserved, although neither party deemed it necessary to present it to the court. Since our state constitutional due process clause has the same meaning as the federal; see footnote 12, supra; we consider the two together. The arbitrators in their decision specifically agreed with the reasoning of the trial court in Cohn v. Aetna Ins. Co., Superior Court, judicial district of New Haven, Docket No. CV85238254S (December 21, 1988), that "allowed the stacking of 22 commercial vehicles . . . The plaintiff claims that the inclusion of "ATIMA" indicates that both the decedent and his proprietorship, "as their interests may appear," were named insureds and that, therefore, "ft]he Defendant should be estopped from denying that the automobiles listed on the 'Business Auto Policy' were not owned by Robert Chmielewski, individually." Since we conclude that the determination of whether the policy in question was a fleet insurance policy does not turn on the location of the legal title to the covered vehicles, but on the reasonable expectations of the parties to the policy, this claim does not advance the plaintiff's case. The defendant's claims are that the trial court improperly ruled that: (1) the policy exclusion in issue was invalid; (2) the policy exclusion, when read in conjunction with General Statutes (Rev. to 1989) § 38-175c (a) (1), did not effectively bar coverage in this case; and (3) the plaintiff's claim for coverage was not barred by General Statutes (Rev. to 1989) § 38-175e (a) (1). As the defendant acknowledges, these claims "are plainly interrelated," and the defendant treated them as such in its brief. Accordingly, we treat them together as well. Section C.3 of an endorsement to the uninsured motorists insurance part of the policy provides as follows: "c. we will not cover—exclusions "This insurance does not apply to . 3. Bodily injury sustained by you or any family member while occupying or struck by any vehicle owned by you or any family member which is not a covered auto." (Emphasis in original.) Although we stated in Allstate Ins. Co. v. Ferrante, 201 Conn. 478, 483, 518 A.2d 373 (1986), that "an insurer may not, by contract, reduce its liability for such uninsured or underinsured motorist coverage except as § 38-175a-6 of the Regulations of Connecticut State Agencies expressly authorizes," if the statute, as opposed to the regulation, permits an exclusion that a policy has incorporated, such an exclusion would be valid notwithstanding that the regulation may not have expressly incorporated it. Our statement in Allstate Ins. Co. was made in the context of issues regarding stacking of coverage for more than one passenger car; id., 481; and did not mean that the insurance commissioner could obviate a statutorily permitted limitation of coverage simply by failing to issue a regulation in support thereof. The policy defines "family member" to mean a related person who is a resident of the household of the named insured. See footnote 6, supra, for full text of statute. General Statutes § 52-419 provides: "modification or correction of award, (a) Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated, or, when the court is not in session, any judge thereof, shall make an order modifying or correcting the award if it finds any of the following defects: (1) If there has been an evident material miscalculation of figures or an evident material mistake in the description of any person, thing or property referred to in the award; (2) if the arbitrators have awarded upon a matter not submitted to them unless it is a matter not affecting the merits of the decision upon the matters submitted; or (3) if the award is imperfect in matter of form not affecting the merits of the controversy. "(b) The order shall modify and correct the award, so as to effect the intent thereof and promote justice between the parties." General Statutes § 52-418 (b) provides: "If an award is vacated and the time within which the award is required to be rendered has not expired, the court or judge may direct a rehearing by the arbitrators." General Statutes § 52-419 (a) (2) and (3) refer to situations where, in subsection (2), "the arbitrators have awarded upon a matter not submitted to them unless it is a matter not affecting the merits of the decision upon the matters submitted," and, in subsection (3), "the award is imper fect in matter of form not affecting the merits of the controversy." Neither of these provisions can be read as applicable to this case. The award was unarguably within the matters submitted to them, and any imperfection in it affected the merits of the controversy.

Covello, J. This is an appeal from a decision of the compensation review division of the workers' compensation commission. The sole issue presented is whether an employer, who has properly intervened in an action by an injured employee against a third party, may set off future compensation claims against the net proceeds that the employee thereafter recovers from the third party tortfeasor. We conclude that such a set off is permitted and therefore reverse the decision of the Appellate Court. Examination of the record discloses the following: On February 27,1979, the plaintiff crushed the thumb of his left hand while working on a machine at his place of employment. On June 11, 1980, the plaintiff began a third party action against Burndy Corporation, the manufacturer of the machine. On July 7, 1980, the defendant, General Datacom, the plaintiffs employer, filed an intervening complaint in the third party action. On October 23, 1981, the plaintiff and General Data-com signed a voluntary workers' compensation agreement awarding the plaintiff 20.3 weeks as a specific injury award resulting from a 25 percent loss of use of the nonmaster thumb. In September, 1984, the plaintiff and Burndy Corporation settled the third party action for $30,000, of which $2500 was paid to satisfy General Datacom's lien. The plaintiff realized $16,556.50 from the settlement after payment of attorney's fees and expenses. Thereafter, the plaintiff filed for additional compensation from General Datacom based upon a subsequent increase in the percentage of disability to his thumb. The compensation commissioner, with whom the compensation review division thereafter agreed, concluded that General Datacom, as employer, had a continuing, offsetting lien against the $16,250 net proceeds paid to the plaintiff from the settlement of the third party action. The plaintiff appealed to the Appellate Court, which reversed the decision of the compensation review division. Enquist v. General Datacom, 21 Conn. App. 270, 572 A.2d 1048 (1990). We thereafter granted certification limited to the issue of whether an employer is entitled to a credit against future workers' compensation benefits in an amount equal to the employee's net recovery from a personal injury claim made against a third party tortfeasor. Although the workers' compensation statute does not specifically address reimbursement for as yet unknown future benefits, an employer's future liability to pay compensation benefits following recovery from a third party tortfeasor has historically been linked to General Statutes § 31-293 (a) and its predecessors. "[This stat ute] provides, in substance, that an employee who sustains an injury arising out of and in the course of his employment, by reason of the fault and neglect of a third party, may claim compensation under the [Workers' Compensation] Act without prejudice to his common-law right to sue the tort-feasor; that an employer who has paid, or by award become obligated to pay, compensation, may sue the tort-feasor in his own name, with a view to reimbursement; and that, if either sue, the other is entitled to notice and an opportunity to join in the action." Rosenbaum v. Hartford News Co., 92 Conn. 398, 400-401, 103 A. 120 (1918). Section 31-293 (a) farther provides for the apportionment between the injured employee and the employer of any recovery from a third party. The "claim of the employer . [to the net proceeds from the recovery] shall take precedence over that of the injured employee . . . ." The statute further provides: "If the damages . . . are more than sufficient to reimburse the employer . . . the excess shall be assessed in favor of the injured employee." In 1951, the General Assembly amended § 31-293 (a), then General Statutes (Sup. 1951) § 1311b, to add the following language: "The rendition of a judgment in favor of the employee or the employer against such party shall not terminate the employer's obligation to make further compensation, including medical expenses, which the compensation commissioner shall thereafter deem payable to such injured employee." (Emphasis added.) This new provision was a response to our earlier holdings to the effect that a recovery against a third party that exceeded the compensation benefits paid, terminated absolutely an employer's obligation to make further compensation payments. See Stavola v. Palmer, 136 Conn. 670, 73 A.2d 831 (1950); Mickel v. New England Coal & Coke Co., 132 Conn. 671, 47 A.2d 187 (1946); Rosenbaum v. Hartford News Co., supra. As a further addendum, however, the legislature provided that "the employer's claim shall consist of (1) the amount of any compensation which he has paid on account of the injury which is the subject of the suit, and (2) an amount equal to the present worth of any probable future payments which he has by award become obligated to pay on account of such injury." (Emphasis added.) It is noteworthy that under the amended statute, it is th e" claim of the employer . . . [that] shall take precedence over that of the injured employee in the proceeds of such recovery." (Emphasis added.) Further, the reenactment provided that "[i]f the damages, after deducting the employee's expenses as provided above, shall be more than sufficient to reimburse the employer, damages shall be assessed in his favor in a sum sufficient to reimburse [the employer] for his claim, and the excess shall be assessed in favor of the injured employee." (Emphasis added.) Thus, the 1951 amendment of § 31-293 (a), in an apparent tradeoff, made the employer liable for future compensation benefits, but gave the employer the right to immediate reimbursement for the present worth of future compensation payments to the extent that the future payments were known and formalized by a commissioner's "award" prior to the disposition of the third party action. What § 31-293 (a) does not address is the employer's right to obtain reimbursement for compensation obligations unknown at the disposition of the third party action. While the 1951 amendment of § 31-293 (a) establishes that the employer is liable to pay future compensation payments and is entitled to the immediate reimbursement of future payments known at the disposition of the third party action, it is silent as to the employer's right to a credit for unknown future benefits against the net proceeds of the third party action. Prior to its 1951 amendment, this court held that the predecessor of § 31-293 (a) required that "if the employer has become obligated to pay compensation, but has not paid it, and the damages recovered [from a third party action] are greater than the amount of compensation the employer has become obligated to pay . . . the entire excess is directed to be assessed in favor of the injured employee, with the consequence of discharging the employer from his ascertained liability under the award. . . . [Section 31-293] either reimburses or discharges the employer out of the first moneys available for the payment of damages." Rosenbaum v. Hartford News Co., supra, 401-402. In its 1951 amendment, the legislature provided that an employer had a continuing obligation to provide compensation. The General Assembly, however, made no attempt to alter our earlier construction of the statute, as set forth in Rosenbaum, that an employer was discharged from his obligations to the extent of the excess moneys available from a third party recovery. In the absence of any express statutory language or legislative history suggesting that our precedent was to be overruled, we decline to read the 1951 amendment of this statute as eliminating an employer's right to a credit to the extent that there are excess proceeds from a third party recovery. We note that other states have enacted workers' compensation statutes establishing precise mechanisms that address an employer's right to reimbursement for unknown future benefits from the proceeds of third party actions. The General Assembly could have adopted one of these statutory mechanisms but elected not to do so despite our existing precedent that implicates a continuing credit against any excess proceeds from the third party action. Finally, our conclusion that an employer is entitled to a credit for unknown future benefits against the net proceeds of a third party recovery comports with other well established principles of workers' compensation law. One of the purposes of the workers' compensation statute is "the avoidance of two independent compensations for the injury"; Uva v. Alonzy, 116 Conn. 91, 98, 163 A. 612 (1933); a proposition that we have recently reaffirmed. See Paternostro v. Edward Coon Co., 217 Conn. 42, 47-49, 583 A.2d 1293 (1991). If the plaintiff's argument were to prevail, a claim made subsequent to the disposition of a third party action would result in the employee receiving compensation from both the third party wrongdoer and the employer. In the absence of explicit statutory language mandating such a result, we decline to adopt such a construction. The judgment of the Appellate Court is reversed and the matter is remanded to that court with direction to render judgment affirming the decision of the compensation review division. In this opinion Peters, C. J., and Borden, J., concurred. At the time of the commissioner's award General Statutes § 31-308 (b) provided in relevant part: "With respect to the following-described injuries the compensation, in addition to the usual compensation for total incapacity but in lieu of all other payments for compensation, shall be sixty-six and two-thirds per cent of the average weekly earnings of the injured employee, but in no case more than the maximum weekly benefit rate set forth in section 31-309, or less than twenty dollars weekly . (8) for the complete and permanent loss of, or loss of the use of the thumb on the master hand, ninety-five weeks, for the thumb on the other hand, eighty-one weeks . If the injury consists of the loss of a substantial part of a member resulting in a permanent partial loss of the use of a member, or if the injury results in a permanent partial loss of function, the commissioner may, in his discretion, in lieu of other compensation, award to the injured person such a proportion of the sum herein provided for the total loss of, or the loss of the use of, such member or for incapacity or both as represents the proportion of total loss or loss of use found to exist, and any voluntary agreement submitted in which the basis of settlement is such proportionate payment may, if otherwise conformable to the provisions of this chapter, be approved by the commissioner in his discretion." General Statutes § 31-293 (a) provides in relevant part: "When any injury for which compensation is payable under . . . this chapter has been sustained under circumstances creating in some other person than the employer a legal liability to pay damages . . . the injured employee may proceed at law against such person to recover damages for such injury . If . . . any damages are recovered, such damages shall be so apportioned that the claim of the employer . . . shall take precedence over that of the injured employee in the proceeds of such recovery, after the deduction of reasonable and necessary expenditures, including attorneys' fees, incurred by the employee in effecting such recovery. The rendition of a judgment in favor of the employee or the employer against such party shall not terminate the employer's obligation to make further compensation, including medical expenses, which the compensation commissioner thereafter deems payable to such injured employee. If the damages, after deducting the employee's expenses . . . are more than sufficient to reimburse the employer, damages shall be assessed in his favor in a sum sufficient to reimburse him for his claim, and the excess shall be assessed in favor of the injured employee. For the purposes of this section the employer's claim shall consist of (1) the amount of any compensation which he has paid on account of the injury which is the subject of the suit and (2) an amount equal to the present worth of any probable future payments which he has by award become obligated to pay on account of such injury. ." The legislative history indicates that the General Assembly specifically addressed the effect of Supreme Court precedent on other areas of the Workers' Compensation Act but nowhere indicates an intent to alter the employer's right to a credit against the proceeds of third party recoveries. See, e.g., New York Worker's Compensation Law § 29 (1990). "If the statute does not take pains to deal explicitly with the problem of future benefits, but merely credits the carrier for compensation paid, or compensation for which the carrier is liable, the correct holding is still that the excess of third party recovery over past compensation actually paid stands as a credit against future liability of the carrier." 2A A. Larson, Workmen's Compensation Law § 74.31 (e), p. 14-471. "The policy of avoiding a double recovery is a strong one, and has on occasion been invoked to override a result that might be thought required by a literal or technical interpretation of statutes . . . ." 2A A. Larson, Workmen's Compensation Law § 71.21, p. 14-16. The practical construction placed on General Statutes § 31-293 since the 1951 amendment lends further support to our .conclusion. We recognize that workers' compensation law is practiced to a large extent by a specialized bar—both claimants' and insurers'. Legislative changes are often made at the behest of the principal economic constituencies which are the principal participants in the system—labor unions and the business and insurance community. Moreover, the commissioners, both at the hearing and appellate levels, who adjudicate workers' compensation disputes have, by virtue of their day-to-day experience, a large measure of legal expertise in the area. It does not appear to be disputed that, until now, none of these actors understood the 1951 amendment to have altered the long-standing meaning of § 31-293 in the way suggested by the plaintiff. That understanding is reflected in the published commentary by a practitioner in the field: "If the employer is already obligated to make future payments and the present worth of those payments were used to calculate the employer's reimbursement claim, such payments must continue. If there is not a present obligation to make future payments, the employer is generally held to be released, pro tanto up to the amount that the injured employee actually recovered. Once the employee's claim for compensation benefits amounts to a sum greater than the amount recovered by the employee in the third party suit, the employer's liability for compensation payments and medical benefits commences again. This is generally referred to as a 'moratorium' on the collection of workers' compensation benefits." J. Asselin, Connecticut Workers' Compensation Practice Manual (1985) p. 277. If the 1951 amendment had been intended to change the preexisting credit system in the way claimed by the plaintiff, we would not have expected forty years of acquiescence to it by those parties and interests most affected and most familiar with that system. Yet the practical construction of forty years has been fully consistent with such acquiescence.

The defendant William W. Berman's petition for certification for appeal from the Appellate Court is denied.

The plaintiff's petition for certification for appeal from the Appellate Court, 24 Conn. App. 806, is denied.

The respondent Albert Harris' petition for certification for appeal from the Appellate Court, 24 Conn. App. 135, is denied.

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

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

Bogdanski, J. This is an appeal by the commission on human rights and opportunities from a judgment of the Court of Common Pleas which set aside a hearing examiner's decision that the plaintiff had unlawfully discriminated against the complainant, a black person, in its hiring practice. The commission claims that the court erred (1) in concluding that there was insufficient evidence to find an act of discrimination and (2) in substituting its judgment for that of the hearing examiner. The following facts were found by the hearing examiner: On January 16,1974, the Reliance Insurance Company, through Stephen Swanston, its local claims manager, placed an advertisement in the New Haven Register for a claims service representative. The position advertised involved telephone contact almost exclusively with the general public, principally with policyholders and persons having property or personal injury claims against policyholders, as well as with witnesses, doctors and attorneys. The complainant, Miss Brooker, responded to this advertisement by telephoning Swanston. After the telephone conversation, Swanston invited her to a personal interview. At the time she was granted the interview, Swanston did not know her race. The initial telephone responses to the advertisement were utilized to screen out about one-half of all applicants. The rest were invited to an interview to determine skill in communication and persuasiveness—especially over the telephone. Miss Brooker's interview lasted fifteen to twenty minutes. After that interview, Swanston decided not to give her application further consideration in the absence of any "exceptionally promising information" that she could insert into an employment application with a personal letter stating why she wanted the position. At that time, Swanston, the only one who interviewed applicants, had selected three of the eventual four finalists. Three other members of racial minorities applied for the position, none of whom was among the four finalists. At that time, no members of racial minorities were employed at the plaintiff's claims office. Miss Brooker's qualifications for the position were not less than those of the fonr finalists, based on a comparison of the written applications. One of the four finalists did not appear to satisfy the requirement of a college degree. The prior experience of Miss Brooker in the insurance industry was not given even limited value by Swanston. The prior experience of another applicant applying to fill a different vacancy for the same position in the same office at about the same time was given value by Swanston. The speech of Miss Brooker did not reveal an accent which would have reduced her ability to communicate by phone or in person. Had there been an objectionable accent, Swanston would have detected it from the telephone conversation. Miss Brooker's overweight does not prevent her from performing the activities required by the position. The hearing examiner then concluded that "from the evidence presented in this ease, the demeanor and credibility of the witnesses, and the compelling inferences arising therefrom, it follows that the rejection of the Complainant . . . was in violation of Conn. Glen. Stat. § 31-126 as amended." Section 31-126 (a) provides in part that it shall be an unfair employment practice "[f]or an employer, . . . because of the . . . color . of any individual, to refuse to hire or employ . . . such individual." Racial discrimination is an intangible and for the most part can be established only through inference. It is not a packaged item which carries a label describing its contents, which may be exposed to public view. It is essentially subjective, with its roots and symptons buried within the recesses of heart and mind. One who indulges in discrimination does not usually shout it from the housetops. All too frequently persons publicly announce abhorrence of racial prejudice while privately practicing it. In this type of proceeding, therefore, greater latitude is accorded the tribunal to draw inferences from words and deeds than in cases where overt acts need be established. International Brotherhood v. Commission on Civil Rights, 18 Conn. Sup. 125, 130, aff'd, 140 Conn. 537, 102 A.2d 366; F. W. Woolworth Co. v. National Labor Relations Board, 121 F.2d 658, 660 (2d Cir.). The trial court concluded that the latitude taken by the examiner in drawing his inference of racial prejudice went too far, and that without disturbing any of his findings of fact it was evident that his ultimate determination of qualification for this job required something more than simple analysis of an application; it required a personal evaluation of the applicant through interview. We agree. The examiner relied solely upon a comparison of Miss Brooker's application with those of the other finalists in reaching his conclusion that she was not less qualified than the other applicants. He did not, however, interview any of the applicants other than Miss Brooker. In view of the nature of this employment, and the lack of adequate records of the interviews, the examiner should have interviewed the person ultimately selected for the position or one of the other finalists in order to make a complete and adequate comparison. The inference to be drawn must be one which in common experience leads naturally and logically to the fact inferred or presumed. In the mind of the trier, the proof of one must produce the belief that it is more probable than not that the other, the ultimate fact, is thereby established. But where the inference is so strained as not to have such a reasonable relation, it cannot be drawn. Ducharme v. Putnam, 161 Conn. 135, 141, 285 A.2d 318; International Brotherhood v. Commission on Civil Rights, 140 Conn. 537, 542, 102 A.2d 366. Inferences, however, should not be founded on facts merely surmised. State v. Englehart, 158 Conn. 117, 121, 256 A.2d 231. This is especially so where inferences are utilized to overcome direct and positive testimony. National Labor Relations Board v. P. R. Mallory & Co., 237 F.2d 437, 444 (7th Cir.). The test is whether the evidence removes the conclusion from an area of speculation, and is not only logical and reasonable, but strong enough so that it can be found that it is more probable than not that the fact to be inferred is true. Ducharme v. Putnam, supra; Hennessey v. Hennessey, 145 Conn. 211, 214, 140 A.2d 473. To support a finding of racial discrimination by inference, where a number of applicants apply for one position, it should be shown that the minority applicant was at least as well qualified as the other applicants based on an evaluation of all the qualifications necessary for the position. A personal interview is particularly important for ultimate job selection in today's complex and demanding economy where not only the education, training and experience count, but where personality, motivation, articulation, the ability to withstand pressure, and communicative ability must also be considered as essential criteria. It is a fact of life that those latter subjective elements can only be ascertained through a personal interview. Conclusions are tested by the finding and all reasonable inferences that may be drawn therefrom. Boss v. Boss, 172 Conn. 269, 275, 374 A.2d 185; Brauer v. Freccia, 159 Conn. 289, 293, 268 A.2d 645; Grodzicki v. Grodzicki, 154 Conn. 456, 460, 226 A.2d 656. They cannot stand when they are legally or logically inconsistent with the facts found or involve the application of some erroneous rule of law material to the case. Craig v. Dunleavy, 154 Conn. 100, 105, 221 A.2d 855. In the present case, the finding of the trial court that the examiner's conclusion of racial prejudice was based solely on inference and was not warranted by the record cannot be disturbed. There is no error. In this opinion the other judges concurred. "insurance If you aro looking for an interesting and challenging position with future potential, we offer you an opportunity to train as a Claims Service Bepresentative with one of America's largest and fastest growing property and casualty companies. Applicants must be college graduates, responsible, personable and enjoy talking to people on the phone. If this appeals to you, apply in person or telephone S. W. Swanston, Claims Manager — 795-0295, Reliance Insurance Co., 477 Boston Post Boad, Orange, an equal opportunity employer." Stephen Swanston gave testimony to the following effect: Miss Brooker did not meet the standards for the position. She was withdrawn and did not converse freely. She "didn't speak enough to give me the impression that she was the sort of person I was looking for. She was very quiet." He needed someone not affected by the pressures of a situation; he was not impressed and was not likely to offer her the job when she did call back. "[Tjhe four semifinalists were decidedly more qualified and more attractive as prospective employees." Miss Lott, the person ultimately selected for the position, impressed him as having more interest in the job than Miss Brooker did. In seeking a claims service representative he looked for people who were interested in things, who talked to the interviewer about the company and its ethics and practices, and wanted additional information with regard to the position. Miss Brooker had "difficulty expressing her thoughts. Her communication skills were not extraordinary, not remarkable."

Peters, C. J. This appeal concerns the state constitutional right of a party to a civil action to be present during the voir dire of potential jurors. The plaintiff, Zbigniew S. Rozbicki, who is a practicing attorney, brought an action to recover legal fees allegedly due from the defendant, Helen Huybrechts. The defendant counterclaimed for loss of profits arising out of the sale of her residence to the plaintiff and for recovery of costs arising out of a related foreclosure action. After a court order by the trial court, Moraghan, J., setting a date for jury selection to commence, the plaintiff moved for a continuance because of his professional responsibilities elsewhere in the state. Upon denial of the plaintiffs motion by the trial court, Dranginis, J., jury selection went forward in his absence, although the trial itself was continued until he could be present. The jury ultimately returned a verdict for the defendant on both the complaint and the counterclaim and awarded the defendant $8020.60 in damages. The trial court, Moraghan, J., denied the plaintiffs motions to set aside the verdict and rendered judgment for the defendant. On the plaintiffs appeal, the Appellate Court reversed the trial court's judgment and ordered a new trial on the ground that the trial court's denial of the plaintiff's motion for a continuance had violated the plaintiff's state constitutional right to be present for voir dire. Rozbicki v. Huybrechts, 22 Conn. App. 131, 136, 576 A.2d 178 (1990). We granted the defendant's petition for certification to appeal from the Appellate Court; Rozbicki v. Huybrechts, 216 Conn. 812, 580 A.2d 59 (1990); limited to the following issue: "Does the plaintiff's absence from voir dire in a civil trial require a new trial absent a showing of prejudice?" In the circumstances of this case, because the burden of disproving prejudice must be borne by the defendant and that burden has not been met, we conclude that a new trial is required. Accordingly, we affirm the judgment of the Appellate Court. The certified issue arises out of the following procedural facts, which are not in dispute. On December 14, 1988, the trial court, Moraghan, J., ordered that jury-selection for the plaintiff's lawsuit begin on January 3, 1989. On December 16, 1988, the plaintiff, asserting a state constitutional right to be present for voir dire; Conn. Const., art. 1, § 19; moved to postpone jury selection until he could be present. When the motion for continuance was argued, on January 3, 1989, the plaintiff's counsel informed the trial court, Dranginis, J., that the plaintiff's absence on that date was involuntary because the plaintiff was representing a client on trial in West Hartford in a proceeding that he had been ordered to begin several weeks earlier. The plaintiff's counsel argued that the plaintiff wished to be present for voir dire because he had lived in the Litchfield area most of his life, had practiced law there for twenty years, and might well recognize among prospective jurors someone with whom he had had previous adversarial dealings of some sort. The trial court acknowledged that the plaintiff had a constitutional right to be present, but concluded that he had waived it. After completion of jury selection in the plaintiffs absence, the trial court continued further proceedings to enable the plaintiff to be present for trial. At the trial, which the plaintiff attended, he did not object to any of the jurors who had been selected. At the conclusion of the trial, the jury returned a defendant's verdict on both the complaint and the counterclaim, and the trial court denied the plaintiff's motions to set aside the verdict. On appeal, the Appellate Court reversed the judgrpent of the trial court, holding that: (1) the plaintiffs right to a jury trial under article first, § 19 of the constitution of Connecticut encompassed the right to be present during voir dire; (2) the plaintiff's absence, in obedience to a prior express judicial order to represent a client elsewhere in the state, was involuntary and thus did not constitute a waiver of that right; (3) the trial court's denial of the plaintiff's motion for a continuance violated his right to be present; and (4) the plaintiff was therefore entitled to a new trial. Rozbicki v. Huybrechts, supra, 22 Conn. App. 133-36. On appeal to this court, after our grant of certification, the principal issue is the relationship between the right to be present at voir dire and the proof of prejudice attendant to a violation of that right. The defendant maintains, contrary to the view of the Appellate Court, that the plaintiff is not entitled to a new trial without demonstrating how his absence during voir dire prejudiced the outcome of the trial that he attended. Such a burden of proving prejudice is appropriate, according to the defendant, because the Appellate Court was mistaken in concluding that the plaintiff's right to be present was constitutional in nature. The defendant argues that Connecticut's constitution extends to civil litigants only the right to question prospective jurors by counsel, not the right to be present for jury selection. The plaintiff counters that this court should not examine the nature of the right violated because that issue is beyond the scope of the certified question. Since the Appellate Court determined that the right to be present is constitutional in origin, the plaintiff further maintains that the burden should be placed upon the defendant, who is seeking to uphold the jury's verdict, to prove that the plaintiff was not prejudiced by his absence. We agree with the defendant that the issue of the burden of proof concerning prejudice cannot be decided without a determination of the nature of the underlying right that is sought to be vindicated, but we agree with the plaintiff that the right to be present for jury selection is a constitutional right, and accordingly that the burden of disproving prejudice must be assigned to the defendant, as the Appellate Court held. I Our analysis therefore begins with an examination of the nature of a party's right to be present at jury selection. That right has its origin in the text of article first, § 19 of the constitution of Connecticut. As amended by article four of the amendments to the constitution, adopted in 1972, the section provides: "The right of trial by jury shall remain inviolate, the number of such jurors, which shall not be less than six, to be established by law; but no person shall, for a capital offense, be tried by a jury of less than twelve without his consent. In all civil and criminal actions tried by a jury, the parties shall have the right to challenge jurors peremptorily, the number of such challenges to be established by law. The right to question each juror individually by counsel shall be inviolate." This court has long recognized that a party's constitutional right to a civil jury trial encompasses the right to be present in the court during all phases of the trial, including proceedings prior to the trial on the merits of the case. We have assumed that a plaintiff in a personal injury action has a personal right to be present during voir dire, so long as he does not "disturb the orderly business of the court." Antel v. Poli, 100 Conn. 64, 69, 123 A. 272 (1923). We have held that a party to a fraud action has a right to be present at a deposition, and not merely to be represented by counsel. Anderson v. Snyder, 91 Conn. 404, 408, 99 A. 1032 (1917). We have explained the importance of the personal presence of the party by noting that "[i]n many cases, the cross-examining attorney cannot anticipate, no matter how thorough his preparation, the developments in the examination of a witness. He cannot know all that his client knows. Oftentimes it is essential for the proper presentation of the case to have the client at hand ready to prompt the cross-examiner and to respond to his inquiries." Id. These cases demonstrate the significant role that a party may play at voir dire. One of the principal purposes of voir dire is the discovery of interests, such as family ties, employment relationships, or financial interests, that may predispose a prospective juror to decide a case on legally irrelevant grounds. See, e.g., McCarten v. Connecticut Co., 103 Conn. 537, 542-44, 131 A. 505 (1925); Quinebaug Bank v. Leavens, 20 Conn. 87, 89 (1849). As the Appellate Court observed, it is not unlikely that a party may recognize, during voir dire, a potentially prejudicial relationship that might pass unnoticed by his counsel. Rozbicki v. Huybrechts, supra, 22 Conn. App. 135. The history of the 1972 amendment of article first, § 19 supports the continuing validity of our earlier judicial determination that the jury trial provision of the state constitution guarantees a civil litigant the right to be present during voir dire. Prior to the adoption of the fourth amendment to Connecticut's constitution, article first, § 19 provided only that "[t]he right of trial by jury shall remain inviolate." In 1971, in response to the increasing congestion of court dockets and mounting court costs, the legislature proposed a constitutional amendment to permit mandatory six-person juries in place of twelve-person juries in certain circumstances. See 14 H.R. Proc., Pt. 5, 1971 Sess., pp. 2366-70; 14 S. Proc., Pt. 5, 1971 Sess., pp. 1984-88. In order to preserve what the legislature perceived as the fundamental character of jury trials, however, the proposed amendment contained two provisions guaranteeing that parties would continue to have certain rights, previously granted only by statute, regarding the selection of individual jurors. As adopted by the electors of Connecticut in 1972, the amendment constitutionalized the right of the parties "to challenge jurors peremptorily" and the right "to question each juror individually by counsel." The distinction made in the two jury selection provisions adopted in 1972 serves to illuminate the rights conferred. The penultimate sentence of article first, § 19 provides that "[i]n all civil . . . actions . . . the parties shall have the right to challenge jurors peremptorily," while the final sentence provides that "[t]he right to question each juror individually by counsel shall be inviolate." (Emphasis added.) The plain language of article first, § 19 refutes the contention of the defendant in this case that the jury selection provisions confer only on counsel, and not on the parties, the right to conduct voir dire and to challenge prospective jurors peremptorily. The constitutional right of the parties to have counsel conduct individual examinations of prospective jurors in no way restricts the grant of the personal prerogative in the preceding sentence. The conclusion that the right of a party to be present during voir dire in a civil lawsuit is a constitutional right does not, in principle, end the inquiry. Like the right to a jury trial itself, the right to be present at voir dire can be waived. Indeed, the right to be present will be deemed to have been waived if not specifically asserted, just as the right to a civil jury trial is deemed waived if not claimed within the time constraints specified in General Statutes § 52-215. See Leahey v. Heasley, 127 Conn. 332, 336, 16 A.2d 609 (1940); cf. State v. Perrella, 144 Conn. 228, 231-32, 129 A.2d 226 (1957) (statute deeming the right to trial by jury of twelve in a criminal matter waived unless claimed in timely manner held to be constitutional). In the context of criminal trials, a defendant may waive his constitutional right to be present during voir dire either by his mis conduct or by Ms "voluntary and deliberate absence from the trial without good cause." State v. Drakeford, 202 Conn. 75, 79, 519 A.2d 1194 (1987). "[T]he right to be present . . . may be lost by consent, waiver or misconduct. . . . Waiver need not be express. It may be implied from the totality of acts or conduct of a defendant." (Citation omitted.) Id. These principles apply with equal force in civil litigation. In the present case, the Appellate Court specifically determined that the plaintiff had not waived his right to be present because his absence was involuntary. Rozbicki v. Huybrechts, supra, 22 Conn. App. 136. Because that determination is not encompassed within the scope of the question certified for review, we will accept it as given for the purposes of this appeal. We hold, accordingly, that the plaintiff in this case, by virtue of the provision of article first, § 19 of the constitution of Connecticut, had a constitutional right to be present during the voir dire of prospective jurors for his trial, that he properly asserted that right through his counsel, that he did not waive that right by his conduct, and that the trial court violated that right by ordering his attorney to conduct jury selection in his absence. We turn, then, to the question of the effect of the denial of that right. II The appropriate remedy for the violation of a constitutional right depends, at least in part, on the nature of the right violated. In order to determine wMch party should bear the burden of proving prejudice, or the lack thereof, resulting from the violation of the plaintiffs right to be present during voir dire, it is useful to recall why we have voir dire. Voir dire serves two generally recognized purposes: it permits the court to determine whether a particular individual is qualified to act as a juror, and it allows each party to determine whether to exercise peremptory challenges to jurors not disqualified for cause. State v. Dolphin, 203 Conn. 506, 512, 525 A.2d 509 (1987); Duffy v. Carroll, 137 Conn. 51, 56, 75 A.2d 33 (1950). Although a trial court has broad discretion to determine the appropriate scope of inquiry during voir dire, this court has repeatedly held that the litigants are entitled to as much latitude in such examinations as is necessary fairly to accomplish both purposes. State v. Dolphin, supra; State v. Higgs, 143 Conn. 138, 142, 120 A.2d 152 (1956). In prior decisions regarding the scope of questions permitted on voir dire, we have not required the party whose right to voir dire has been impaired to prove how he was prejudiced. When a trial court improperly refused to permit a defendant to engage in a line of questioning intended to elicit information regarding a prospective juror's sympathies in a personal injury action, for instance, we concluded that it would be impossible for that defendant to prove that he could have elicited information that would have justified a challenge for cause or suggested a peremptory challenge. Lamb v. Burns, 202 Conn. 158, 164-65, 520 A.2d 190 (1987); cf. Burger & Burger, Inc. v. Murren, 202 Conn. 660, 668, 522 A.2d 812 (1987) (stating in dicta that certain kinds of harm are virtually impossible to prove, and that such difficulties, when arising in contexts that are "fundamental" in our adversarial system, "may well require us to place the burden of disproving prejudice on the party who has been advantaged" by an erroneous ruling). This line of cases furnishes an appropriate analogy to the issue before us. We are persuaded that there is no basis for a distinction in remedy between the denial of the right to ask specific questions and the denial of the right to be present in person. By virtue of his absence from voir dire, the plaintiff was foreclosed from proving what associations might have been stirred in his memory, what questions he might have wished to ask to follow up particular responses by prospective jurors, or indeed, whether he might have wished to exercise a peremptory challenge because he sensed a personal antipathy in the responses of a prospective juror. We conclude, accordingly, that the party advantaged by the trial court's improper ruling must bear the burden of proving, by a preponderance of the evidence, that the ruling was not prejudicial. Because the defendant in this case has produced no evidence on the question of prejudice, she has not met her burden of proof and the plaintiff is entitled to a new trial. The judgment of the Appellate Court is affirmed. In this opinion the other justices concurred. The discussion of the proposed constitutional amendment in both the House of Representatives and the Senate indicates that the legislature viewed the amendment as providing constitutional authority for modifying one aspect of jury trials, by providing for six-person rather than twelve-person juries, and for constitutionalizing other safeguards regarding jury selection. Representative Robert G. Oliver, introducing the proposed amendment, stated that the bill was intended to accomplish three goals. 14 H.R. Proe., Pt. 5,1971 Sess., p. 2367. He described those goals: "[Ojne, it amends and amplifies Connecticut's constitutional guarantees of jury trial. It clearly permits juries of six man [sic] in all cases, civil and criminal, except in capítol [sic] cases where the accused could agree to be tried by less than twelve but [it] preserves his right to be tried by twelve; two, it continues to preserve the rights of litigants to challenge perspective [sic] jurors peremptorily when necessary; and three, it preserves the valuable rights of litigants to have their perspective [sic] jurors individually questioned by their counsel and apart from the other veniremen. It's an excellent, well-balanced constitutional amendment. It will permit substantial cost savings to the state by permitting six man juries. . . . And basically, finally, it will expedite justice for all." Id. Representative James P. Bingham, also speaking in support of the amendment, emphasized the importance of preserving fundamental constitutional rights while attempting to respond to contemporary conditions. He commented: "We are all looking to expedite justice but we should not look to expedite justice at a risk of tramping upon constitutional rights." Id., p. 2368. The provisions concerning peremptory challenges and the individual voir dire appear to be unique to Connecticut's constitution. Our search of the constitutions of our forty-nine sister states revealed no similar constitutionalization of rights regarding the procedure of jury selection. The few decisions of the courts of other states construing their constitutional provisions regarding jury trials that are cited by the defendant in support of the trial court's judgment are therefore wholly inapposite. The civil jury selection provisions codified in the General Statutes further confirm our construction of the constitutional provisions as granting a personal right to the parties to be present during voir dire. General Statutes § 51-240 provides in relevant part: "(a) In any civil action tried before a jury, either party shall have the right to examine, personally or by his counsel, each juror outside the presence of other prospective jurors as to his qualifications to sit as a juror in the action, or as to his interest, if any, in the subject matter of the action, or as to his relations with the parties thereto." The statutory language recognizes the right of civil litigants to proceed pro se; it does not imply, as the defendant contends, that the mere presence of counsel in itself constitutes a waiver of the right of a party to be present in the court during voir dire. "While challenges for cause permit rejection of prospective jurors on the ground of provable and legally cognizable evidence of partiality, peremptories permit further rejections for a real or imagined partiality that is less easily designated and proved. . . . [T]he effectiveness of the peremptories [in securing an impartial jury panel] must depend in part on intuition . . . ." Note, "Selection of Jurors by Voir Dire Examination and Challenge," 58 Yale L.J. 638, 638-40 (1949).

Shea, J. The state department of environmental protection (DEP) charged the plaintiffs with operating and depositing waste at an unpermitted solid waste disposal facility. The DEP ordered them to cease these illegal activities and to remove all solid waste exclusive of "clean fill" from the site. After seven days of hearings, the DEP hearing officer affirmed the order. In the ensuing administrative appeal, the Superior Court affirmed the hearing officer's finding of liability but refused to review the order itself, ruling that the reasonableness of the order could only be challenged in the pending enforcement proceeding. The plaintiffs appealed, challenging (1) the sufficiency of the evidence for the finding of liability, (2) the trial court's refusal to review the enforcement order itself, and (3) the constitutionality of General Statutes (Rev. to 1985) § 22a-207 (4) and (6), specifically, whether the phrase "location utilized for the ultimate disposal of wastes" is an impermissibly vague definition of "solid waste disposal area." We affirm the judgment with respect to the first and third issues raised, but reverse with respect to the second. The following facts are not in dispute. In a series of orders commencing in September, 1985, the DEP charged Connecticut Building Wrecking Company, Inc. (CBWC), and its joint owners, Geno and Russell Capozziello, who are brothers, with violations of Public Acts 1985, No. 85-334, § 2 (b) and (c). Those provisions essentially prohibit, inter alia, "altering" (§ 2 [b]) or "operating" (§ 2 [c]) a solid waste facility that does not have a permit. As a remedy, the DEP ordered the plaintiffs either to remove "all solid waste exclusive of clean fill" at the site or to close the facility after submitting acceptable plans within a prescribed timetable. The DEP made similar charges with respect to the same site against at least one other company, Bridgeport Wrecking Company (BWC), which the record reveals is owned by Thomas Capozziello, another brother of Russell and Geno. BWC did not, however, appeal the order against it. After reaching a tentative settlement with the DEP, CBWC submitted documents in connection with the required closure plans. The DEP, however, considered the documents inadequate and untimely. It insisted that the plaintiffs clear the site. The "site" ordered cleared is a sloping piece of land running behind a row of houses on Clearview Drive and Clearview Circle in Bridgeport. The DEP's "principal environmental analyst," Thomas Pregman, estimated that the dumped materials or "fill" covering the site area measured approximately 500 feet in length, 35 to 40 feet in width and 20 to 30 feet in height. The fill covered the backyards of nine different but contiguous lots of land with nine different owners. No solid waste permit of any kind was ever sought by or issued to either the plaintiffs or any of the resident owners. Both the DEP and the plaintiffs agree that truckloads of material were dumped on the site by CBWC as well as by other companies. Some residents initially welcomed the dumping as a means of leveling the steep slope of their backyards. The plaintiffs do not dispute the presence of "solid waste" at the site, including wood, tires, stumps and leaves. The hearing officer made factual findings that "[t]he limits of the solid waste fill are unknown" and that "[t]he sources of most of this waste are undetermined." I Before proceeding to address the substance of the hearing officer's conclusions, we must discuss the plaintiffs' claim that the statute they are charged with violating is unconstitutionally vague. The DEP found that the plaintiffs had violated § 2 (b) and (c) of No. 85-334 of the 1985 Public Acts, subsequently modified by No. 85-661, § 147 of the 1985 Public Acts and codified as General Statutes § 22a-208a (b) and (c). Under any version of the statute in effect during the period in question, it was illegal to alter or operate a "solid waste facility" that did not have the requisite permits the statutes or regulations required. Because the plaintiffs' conduct would not violate the statute unless the "facility" at which they dumped was required to have a permit, the pertinent issue involves the statutory definition of "solid waste facility." General Statutes (Rev. to 1985) § 22a-207 (4) defines "[s]olid waste facility" as "any solid waste disposal area . if such area . . . handles more than five tons a year of solid waste." Section 22a-207 (6) defines "[s]olid waste disposal area" as "the location utilized for ultimate disposal of wastes as approved by the department." The plaintiffs argue that the word "loca tion" makes the entire statutory scheme unconstitutionally vague on its face. They also argue that the word "location" makes the statutory scheme unconstitutionally vague when applied to the Clearview Drive site, which consists of portions of nine separately owned lots of land. When a litigant challenges a statute as void for vagueness under the United States constitution, we confíne our inquiry to the statute's applicability to the facts of the case unless the statute could intrude upon fundamental constitutional guarantees, such as first amendment rights. State v. Cavallo, 200 Conn. 664, 670, 513 A.2d 646 (1986). A statute maybe unconstitutionally vague in violation of due process without impinging upon such fundamental guarantees, but in such a case, a litigant lacks standing to challenge the statute's vagueness unless his own due'process rights would be violated by its application to him. Id. An exception to this general rule arises in those rare cases when the statute's vagueness itself violates due process by making the statute impossible to obey. See, e.g., Champlin Refining Co. v. Corporation Commissions of Oklahoma, 286 U.S. 210, 243, 52 S. Ct. 559, 76 L. Ed. 1062 (1932); cf. Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S. Ct. 618, 83 L. Ed. 888 (1939). In order to prevent this latter difficulty, we will, if we have not previously construed the statute, "search for 'an effective and constitutional construction that reasonably accords with the legislature's underlying intent' "; State v. Floyd, 217 Conn. 73, 79, 584 A.2d 1157 (1991), quoting State v. Breton, 212 Conn. 258, 269, 562 A.2d 1060 (1989); thereby dispelling any claimed constitutional violation. See, e.g., Ward v. Rock Against Racism, 491 U.S. 781, 795-76, 109 S. Ct. 2746, 105 L. Ed. 2d 661, reh. denied, 492 U.S. 937, 110 S. Ct. 23, 106 L. Ed. 2d 636 (1989) (the United States Supreme Court, in evaluating a facial challenge to a state law, will consider any limiting instruction proffered by a state court). The plaintiffs contend that, as written, § 22a-207 (4) and (6) make it impossible for any dumper to obey General Statutes (Rev. to 1989) § 22a-208a (b) and (c). Since a dumpsite "location" is not a "solid waste disposal area" unless it "handles more than five tons a year of solid waste," the plaintiffs maintain that a dumper will be at a loss when he tries to determine whether his disposal activities in a given "area" or "location" have triggered the "five ton" permit requirement. This argument suggests that dumping one ton in each of five city neighborhoods could be dumping five tons in one "location" if the "location" is the entire city. "The court must use common sense in construing statutes and must assume that a reasonable and rational result was intended by the promulgating legislature." Windham First Taxing District v. Windham, 208 Conn. 543, 553, 546 A.2d 226 (1988). The statute refers to an "area that handles" and a "location utilized for" solid waste. Without delimiting the full scope of the term "location"; cf. Board of Education v. Freedom of Information Commission, 217 Conn. 153, 161, 585 A.2d 82 (1991); Cos Cob Volunteer Fire Co. No. 1, Inc. v. Freedom of Information Commission, 212 Conn. 100, 106, 561 A.2d 429 (1989); we can reasonably construe § 22a-207 (6) as limited to contiguous property that is intended to or reasonably appears to act as a single dumpsite. So construed, the statutory scheme is not "impossible" to obey; the still puzzled would-be dumper may seek further clarification from the DEP, the agency responsible for administering the statute. "[Sjtatutes are not automatically invalidated as vague simply because difficulty is found in determining whether certain marginal offenses fall within their language." United States v. National Dairy Corporation, 372 U.S. 29, 32, 83 S. Ct. 594, 9 L. Ed. 2d 561 (1962), reh. denied, 372 U.S. 961, 83 S. Ct. 1011, 10 L. Ed. 2d 13 (1963). This is especially true when the statute affects regulated activity, such as dumping, for "the regulated enterprise may have the ability to clarify the meaning of the regulation by its own inquiry, or by resort to an administrative process." Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 498, 102 S. Ct. 1186, 71 L. Ed. 2d 362, reh. denied, 456 U.S. 950, 102 S. Ct. 2023, 72 L. Ed. 2d 476 (1982); see also Kolender v. Lawson, 461 U.S. 352, 358 n.8, 103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983); Papachristou v. Jacksonville, 405 U.S. 156, 162, 92 S. Ct. 839, 31 L. Ed. 2d 110 (1972); cf. Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 72 S. Ct. 329, 96 L. Ed. 367 (1952). By contrast, the statute at issue in Champlin Refining Co. v. Corporation Commissions of Oklahoma, supra, would have required the refining company to conduct an exhaustive economic survey of its operations in order to discover whether it was operating "wastefully," even assuming that the term "wasteful" was capable of any objective meaning. Although we conclude that § 22a-207 (6), as construed, is sufficiently clear to preserve the constitutionality of § 22a-208a (b) and (c), the plaintiffs did not have the benefit of our limiting construction at the time they are alleged to have violated the statute. They are, therefore, entitled to contend that the statute was unconstitutionally vague as applied to the facts of their case. "A party attacking the constitutionality of a validly enacted statute bears the heavy burden of proving its unconstitutionality beyond a reasonable doubt. State v. Breton, [supra]; Zapata v. Burns, 207 Conn. 496, 507-508, 542 A.2d 700 (1988)." State v. Floyd, supra, 79. The concept of unconstitutional vagueness derives from the guarantees of due process contained in the fifth and fourteenth amendments to the United States constitution. See Hoffman Estates v. Flipside, Hoffman Estates, supra, 498-504; Grayned v. Rockford, 408 U.S. 104, 108-109, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972). Due process requires that laws "give the person of ordinary intelligence a reasonable opportunity to know what is prohibited" and "provide explicit standards for those who apply them" in order to prevent the risk of arbitrary and discriminatory enforcement. Grayned v. Rockford, supra, 108; see also Smith v. Goguen, 415 U.S. 566, 573, 94 S. Ct. 1242, 39 L. Ed. 2d 605 (1974); United States v.Petrillo, 332 U.S. 1, 7, 67 S. Ct. 1538, 91 L. Ed. 1877 (1946); Keogh v. Bridgeport, 187 Conn. 53, 60, 444 A.2d 225 (1982). To demonstrate that a statute is unconstitutionally vague as applied to him, a litigant must therefore demonstrate beyond a reasonable doubt that he had inadequate notice of what was prohibited or that he was the victim of arbitrary and discriminatory enforcement. The plaintiffs can do neither. To demonstrate his lack of notice of what was prohibited, the challenging party must establish that a person of ordinary intelligence would not be able to know whether his conduct is permitted or prohibited under the statute. Bottone v. Westport, 209 Conn. 652, 658, 553 A.2d 576 (1989). " 'The test is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.' " State v. Chetcuti, 173 Conn. 165, 167, 377 A.2d 263 (1977), quoting Jordan v. De George, 341 U.S. 223, 231-32, 71 S. Ct. 703, 95 L. Ed. 886 (1950). The DEP's unchallenged photographic exhibits depict an enormous mountain ridge of waste spanning the nine Clearview Drive backyards without visible demarcations of any kind. No reasonable person could view such a scene, as the plaintiffs admittedly did, and perceive nine separate dumpsites. The ordinary person could not fail to realize that dumping in any one or more of the nine backyards would constitute dumping in a single "location." To demonstrate that the statute's vagueness gives an agency unbridled discretion to enforce the statute arbitrarily and discriminatorily, the challenging party must establish that he was the victim of such arbitrary and discriminatory enforcement. See State v. White, 204 Conn. 410, 417, 528 A.2d 811 (1987); cf. Hoffman Estates v. Flipside, Hoffman Estates, supra, 508. The final hearing officer specifically concluded that the plaintiffs "[had] not alleged any facts to support a finding of invidious prosecution." The plaintiffs have not contested that conclusion on appeal and cannot now be heard to claim that the statute sanctioned arbitrary enforcement against them. State v. White, supra. II The plaintiffs next claim that the DEP's orders should be reversed as "clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record." General Statutes § 4-183 (j) (5). "The 'substantial evidence' rule governs judicial review of administrative factfinding under General Statutes (Rev. to 1987) § 4-183 (g). . An administrative finding is supported by 'substantial evidence' if the record affords a ' " 'substantial basis of fact from which the fact in issue can be reasonably inferred.' " ' . . . Such a standard of review allows less room for judicial scrutiny than does the 'weight of the evidence' rule or the 'clearly erroneous' rule. . In determining whether an administrative finding is supported by 'substantial evidence,' a court must defer to the agency's assessment of the credibility of the witnesses and to the agency's right to believe or disbelieve the evidence presented by any witness, even an expert, in whole or in part. . An agency composed of [experts] is entitled, furthermore, to rely on its own expertise within the area of its professional competence. . . . Basically, an agency is not 'required to use in any particular fashion any of the materials presented to it so long as the conduct of the hearing is fundamentally fair.' " (Citations omitted.) Briggs v. State Employees Retirement Commission, 210 Conn. 214, 217-18, 554 A.2d 229 (1989); see also Connecticut Light & Power Co. v. Department of Public Utility Control, 216 Conn. 627, 639-40, 583 A.2d 906 (1990). The plaintiffs contend that "under Connecticut law, in order to operate a 'solid waste disposal area,' a person must (1) utilize a location; (2) for ultimate disposal of solid waste; (3) at the rate of at least five tons per year." They further contend that "solid waste" is waste exclusive of "clean fill" as defined by administrative regulations, so that in order to meet its burden of proof, the DEP had to prove that they dumped more than five tons per year of waste exclusive of clean fill. They maintain, in conclusion, that the DEP failed to satisfy this burden. The plaintiffs' contentions are completely without merit, however, because they fundamentally misconstrue both the statute and the regulations. The plaintiffs were charged with violations of § 2 (b) and (c) of No. 85-334 of the 1985 Public Acts, formerly General Statutes (Rev. to 1985) § 22a-208 (c), subsequently General Statutes (Rev. to 1987) § 22a-208a (b) and (c). Under any version of the statute, the plaintiffs would be liable for its violation if they either altered, e.g., by adding to, a preexisting solid waste facility that did not itself have a construction permit (subsection [b] of the statute), or if they "operated" a solid waste facility without a permit to do so (subsection [c] of the statute). The DEP could have demonstrated the plaintiffs' liability even if the plaintiffs had not themselves dumped a single ounce of anything, solid waste or otherwise, at the dump, if it were able to show that the plaintiffs had "operated" the dump, e.g., if they had managed it, supervised dumping by other companies, controlled the contours of the site by spreading the waste and directing the location of new loads, or performed other acts that the administrative regulations require "certified" operators of solid waste facilities to perform. The final hearing officer's findings with respect to the individual liability of Geno and Russell Capozziello have significant support in the administrative record and might have supported an ultimate conclusion that CBWC was also liable as such an "operator" of the facility. Instead, however, the final hearing officer assessed CBWC's liability based on his finding that the plaintiffs had'"operated" the site in question "by dumping." For this reason alone, we shall proceed to evaluate the substantiality of the evidence in support of the hearing officer's finding that the plaintiffs "operated" a solid waste facility "by dumping." A As the plaintiffs point out, the first question is whether the DEP proved that the facility was a "solid waste facility." We have already construed § 22a-207 (6) to define a "solid waste disposal area" as including a location consisting of contiguous property that is intended to or reasonably appears to act as a single dumpsite "utilized for ultimate disposal of wastes," and have concluded that the Clearview Drive dumpsite was such an "area." To prove that the Clear-view Drive dumpsite was a "solid waste disposal facility," the DEP still had to prove, however, that the site "handled more than five tons a year of solid waste." Section 22a-207 (3) defines "solid waste" as "unwanted or discarded materials, including solid, liquid, semisolid or contained gaseous material." The plaintiffs do not dispute the presence at the site of discarded "solid material," nor, indeed, that they dumped such "solid material" at the site. Instead, they assert that the hearing officer's decision was not based on substantial evidence because the DEP did not prove the presence of more than five tons of materials other than "clean fill," which, they assert in a footnote, "is not, by definition, 'solid waste.' " The plaintiffs are incorrect. The statutes do not mention "clean fill," and the only statutory definition of "solid waste" is the broad definition, cited above, in § 22a-207 (3). The DEP regulations promulgated pursuant to General Statutes § 22a-209 do not provide any definition of "solid waste," much less a narrow definition of "solid waste" excluding "clean fill," and, indeed, such a contradictory regulation might exceed the commissioner's statutory authority. See General Statutes (Rev. to 1985) § 22a-209. The DEP regulations do address "clean fill," but not in the sense asserted by the plaintiffs. Section 22a-209-l of the Regulations of Connecticut State Agencies first defines "clean fill" as "natural soil, rock, brick, ceramics, concrete, and asphalt paving fragments which are virtually inert and pose neither a pollution threat to ground or surface waters nor a fire hazard." Next, § 22a-209-3 of the Regulations of Connecticut State Agencies provides: "These regulations apply to the operation and management of all existing and proposed solid waste facilities, and to all applications for a permit or contract approval which are submitted after or are in process on the effective date of these regulations. Areas which are solely for the disposal of clean fill shall be exempt from the provisions of these regulations." (Emphasis added.) By implication, areas for the disposal of solid wastes that include both clean fill and other wastes are not exempt from the regulatory requirements. The prohibition on combined dumping is made clear by the only other regulation using the term "clean fill," § 22a-209-l. That section defines "bulky waste" as "landclearing debris and waste resulting directly from demolition activities other than clean fill" and then includes "bulky waste" within the definition of "special wastes" or "non-hazardous solid wastes which require special handling . . . ." Next, § 22a-209-8 (c) of the Regulations of Connecticut State Agencies provides: "The combined disposal of special wastes with other solid wastes or special wastes is prohibited unless specifically approved in writing by the Commissioner." Thus, "bulky waste" and "clean fill" may not be disposed of together without special approval by the commissioner. These regulations make it clear that "clean fill" is solid waste within the statute. The question is not whether there were five tons of waste exclusive of clean fill where the plaintiffs dumped; the question is whether there were five tons of any solid waste at that site, so long as clean fill was not the only waste at the site. If the unpermitted site contained more than five tons of solid waste, deposited within one year, the statutes and regulations made it illegal for the plaintiffs to "operate" or "alter" the site by adding anything, even less than five tons, to the site. The facts of this case illustrate the legislative purpose behind imposing cleanup liability on even those who engage in merely negligent dumping of otherwise innocuous materials. Decomposition of solid waste other than clean fill creates demonstrated environmental hazards. If decomposable solid waste and clean fill are combined, it becomes difficult to discover the cul prit and assign liability. Presumably for that reason, the regulations prohibit combination dumps without permission; requiring DEP permission enables the DEP to exercise some oversight. Once a combination dump has been created without DEP oversight, additional deposits of any material, including clean fill, make it more difficult to remove the decomposing materials and, if necessary, clean up the entire combination dump, as well as further complicating discovery of the persons responsible. B The plaintiffs have never claimed that the whole nine backyard site consisted entirely of clean fill. If, then, the dumpsite contained more than five tons of solid waste deposited during one year, irrespective of the quantity of clean fill within that waste, the plaintiffs have violated General Statutes § 22a-208a (b). It would have been reasonable for the hearing officer to have inferred from the dimensions of the fill, the testimony concerning its contents; e.g., truckloads of leaves, the debris from a bedding store destroyed by fire, the rubble of a demolished housing project, all deposited during 1985; as well as from his own on-site inspection of the dump, that the fill as a whole contained five tons of solid waste deposited within one year. The hearing officer, however, apparently based his conclusion that the plaintiffs "operated" the facility "by dumping" at the site solely upon the unnecessary factual finding that they had dumped at least five tons of solid waste at the site during the period from April to October, 1985, without deciding, as indeed he had no need to do, what proportion of that solid waste was clean fill. The plaintiffs can prevail, therefore, only if this finding is without substantial support in the record as a whole. The five ton requirement was first raised in passing during the plaintiffs' cross-examination of the DEP's expert, Thomas Pregman, a senior environmental analyst with eleven years of experience in solid waste management. Responding to a request that he appraise the relative condition of various portions of the site, Pregman answered: "We consider the whole—all the property as the one site." He continued, "Anything in excess of five tons of waste on all of the property is a violation." Upon the hearing officer's inquiry, Pregman commented, "I think it's—you have—basically one good size truckload is five tons." The hearing officer cited certain evidence in support of his inference that the dumpsite contained at least five tons of solid waste: (1) the size of the dumpsite (500 feet in length, 35 to 40 feet in width, and 20 to 30 feet in height); (2) the statements of numerous resident witnesses that they had viewed the plaintiffs' "trucks" dump at the site; and (3) Pregman's statement that "one good size truckload" weighed five tons. The plaintiffs attack the first item of evidence by arguing that the "site" at which they dumped consisted of only one or two individual backyards, not the whole nine backyard dumpsite. We have already rejected that argument. In their remaining challenge to the sufficiency of the evidence, the plaintiffs claim that the residents' testimony and Pregman's casual assertion that "one good size truckload is five tons" were too imprecise and unreliable to constitute "substantial evidence" that the five ton requirement had been met, without a further description of the size of a "good . . . truckload" or evidence that the trucks viewed by the witnesses would meet that description. The Uniform Administrative Procedure Act (UAPA) prescribes that review of an administrative adjudicative decision should be "on the whole record." (Emphasis added.) General Statutes § 4-183 (j). " 'Substantial evidence' exists if the administrative record affords ' " 'a substantial basis of fact from which the fact in issue can be reasonably inferred.' " ' " (Citations omitted.) Connecticut Light & Power Co. v. Department of Public Utility Control, supra, 639-40. If, therefore, the specific evidence cited in support of an administrative officer's ultimate factual finding is inadequate to support that ultimate factual conclusion, a reviewing court should search the record of the entire proceedings to determine whether it does in fact contain substantial evidence from which the ultimate factual finding could reasonably be inferred. Norwich v. Norwich Fire Fighters, 173 Conn. 210, 214, 377 A.2d 290 (1977); see also Connecticut Light & Power Co. v. Department of Public Utility Control, supra; Grillo v. Zoning Board of Appeals, 206 Conn. 362, 369, 537 A.2d 1030 (1988); Persico v. Maher, 191 Conn. 384, 409, 465 A.2d 308 (1983); Ward v. Zoning Board of Appeals, 153 Conn. 141, 144, 215 A.2d 104 (1965). Thus, if the administrative record provides substantial evidence upon which the hearing officer could reasonably have based his finding that the plaintiffs dumped at least five tons at the site within one year, the decision must be upheld. The most useful additional evidence contained in the record comes from the individual plaintiffs themselves. Testifying in his own behalf, Russell Capozziello described CBWC's activities. Asked how he reached the property of Joseph Eppes, a portion of the site CBWC admitted using as a dump, Russell stated: "We would come down Clearview Drive with our trucks." (Emphasis added.) He recollected that he said to Eppes: " 'Is it possible that I could fit my company's big trailers between your house and the next house and use your driveway?' " (Emphasis added.) He described how he finally got his "trailer" to Eppes' property. Russell went on to say that he had used "tractor/trailer dump trucks" to dump behind Eppes' house. Each tractor/trailer, he explained, held twenty cubic yards, and his company had dumped forty-five loads of that size. The loads were generated from "[v]arious demolition jobs within the city of Bridgeport," where CBWC had been hired to demolish buildings. He claimed that CBWC dumped on and off for only three weeks, although on cross-examination it was shown that the Bedding Shack, which CBWC dumped at the site, was demolished in June, 1985, whereas CBWC first reached dumping agreements with two residents in April, 1985. Further describing his trucks' capacity, Russell explained that demolition of the Bedding Shack, a concrete building, generated twenty to twenty-five cubic yards of demolition debris; because of the weight of the debris, it was carried in five or six loads. That building was a "very small building." As a general rule, he explained, a one-story, forty by seventy foot block budding and a two-story wood frame building each gener ate approximately twenty cubic yards of demolition debris. "One truck," he testified, holds twenty cubic yards, although a solid load like concrete might require more truckloads. On redirect, Russell testified concerning seventeen different buildings demolished by CBWC within the relevant time period. He was able to remember the volume of demolition debris generated in each case, but could not remember where it had been dumped. Total fill generated by these demolition jobs was approximately four hundred cubic yards. The demolition permits entered into evidence stated that the debris was to be taken to legitimate local landfills, especially the D'Addario landfill in Milford. The DEP then offered the business records of that landfill which showed essentially no entries for dumping tickets purchased during the time the seventeen buildings were demolished. The ticket-seller, William Haug, also explained that in his record keeping, he referred to ten wheeler trucks as "fifteen yards" and trailers as "thirty yards." According to him, a trailer held thirty cubic yards of material. CBWC recalled Russell to the stand, and he then justified the discrepancy in evidence by explaining that he often got access to the D'Addario dumps without tickets because he knew the owner. He could not, however, recall the dates of any such occasions. This damaging testimony came from the plaintiffs themselves. DEP witnesses, including Clearview Drive residents, gave additional testimony that was fiercely denied by the plaintiffs, who insisted that their accusers were either "lying" or confusing them with their allegedly "look-alike" brothers, Thomas, owner of BWC, and Dennis, owner of New England Demolition. In its memorandum of decision, the trial court recited the residents' testimony at length. Of particular note are statements by John Karmolinsky that he saw "a number of trucks" owned by CBWC dumping rotted leaves; statements by Elbert Barnes that he saw CBWC dump "the Bedding Shack," and "leaves, scrub," and both brick and wood houses that had been demolished; and statements by Eppes that, on his property, "they" dumped "Beardsley Terrace" (a demolished housing project or apartment building), "[o]n Mr. Barnes' yard," they dumped "a load of wood and leaves and steel bars and things," and on the property of "George [Bottone] and Eddie [Fay]" (two contiguous lot owners), "wood and leaves and a refrigerator." The DEP also offered testimony by Lawrence Morgan, a police officer called to the site by Manuel Rocha who had returned from vacation to find his yard filled with wood and other debris. Morgan testified that he saw "very large dump trucks, not the square type, but the elongated type dump trucks" exiting from Clear-view Drive, and that a driver of one truck told him he worked for CBWC and Russell Capozziello. In summary, Russell admitted that CBWC had dumped forty-five twenty cubic yard loads on the dump-site for a total of 900 cubic yards. According to his own testimony, this deposit was the equivalent of forty-five two-story wood frame houses. The DEP's evidence indicated that at least seventeen houses were probably included in those forty-five loads. This court may not consider facts not in evidence, but neither is it required to suspend all common sense. We conclude that the hearing officer's finding, that the plaintiffs dumped at least five tons of solid waste at the site, was reasonably inferred from the testimony and other evidence adduced. III Having concluded that the hearing officer's assessment of liability against the plaintiffs was reasonable, the trial court then declined to review the reasonableness of the agency's order requiring the plaintiffs to clear all solid waste exclusive of clean fill from the site. It concluded that the order's "reasonableness" was merely a predicate for its enforceability, and should be reviewed in the context of an enforcement proceeding brought by the DEP if the plaintiffs did not comply with the order. We disagree. A Under the UAPA, a court "shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative . . . decisions are . . . arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion." (Emphasis added.) General Statutes § 4-183 (j). The administrative decision in this case included a "final order" that the "[respondents shall remove all solid waste, except clean fill," from "the site" and that the "[respondents shall restore the site to the conditions that existed before solid waste was disposed there." By affirming the administrative decision without evaluating the cleanup order contained within it, the trial court failed to complete the judicial review required by § 4-183 (j). We therefore remand the case to the trial court for review of the cleanup order itself. B On remand, the trial court must conduct its own review of the cleanup order. In the interests of judi cial economy, however, we will discuss the pertinent factors that the trial court should apply in evaluating the order. In their petition to the trial court, the plaintiffs contended that the cleanup order exceeded the agency's authority and that it constituted an abuse of discretion because the DEP did not join other allegedly indispensable parties, namely, the other persons who dumped at the site. In essence, the plaintiffs claim that the order was an "abuse of discretion" because it was unreasonable for the DEP to require them to remove all the waste at the site when the DEP did not dispute that others had also dumped waste at the site, especially after the DEP hearing officer had denied the plaintiffs' request to have other dumpers "joined" in the administrative proceeding. The DEP contends, citing General Statutes § 22a-6a (b), that once a violation of the statute had been established, the plaintiffs were jointly and severally responsible for cleanup of the entire site, although entitled to seek contribution on their own behalf from others also responsible. We note that § 22a-6a (b) appears to be addressed to suits for damages brought by the commissioner, not to the propriety of remedial orders issued by the commissioner. Because § 22a-6a was enacted after the 1971 environmental legislation which included the Solid Waste Management Act, General Statutes § 22a-207 through 22a-256ee, in order to strengthen the commissioner's enforcement powers; see, e.g., remarks of Senator Philip N. Costello, Jr., 16 S. Proc., Pt. 8,1973 Sess., p. 3543; remarks of Representative Richard H. Wagner, 16 H.R. Proc., Pt. 15, 1973 Sess., pp. 7780-81; testimony of Daniel Lufkin, commissioner of environmental protection, concerning the bill's drafting, Conn. Joint Standing Committee Hearings, Environment, Pt. 1,1973 Sess., pp. 264-67; we conclude, however, that the legislature did not intend by its enactment to preclude application of the common law principle of joint and several liability in the context of remedial orders. In the related field of hazardous waste legislation, the federal courts have consistently applied the common law principle of joint and several liability, with some limitations, as expressed in the Restatement (Second) of Torts, § 433A, 433B, 879 and 881, to factual scenarios comparable to the one before us. See, e.g., O'Neil v. Picillo, 883 F.2d 176 (1st Cir. 1989), cert. denied sub nom. American Cyanamid Co. v. O'Neil, 493 U.S. 1071, 110 S. Ct. 1115, 107 L. Ed. 2d 1022 (1990); United States v. A & F Materials Co., 578 F. Sup. 1249, 1255 (S.D. Ill. 1984); see also, applying a different adaptation of the Restatement principles, United States v. Western Processing Co., 734 F. Sup. 930 (W.D. Wa. 1990); United States v. Stringfellow, 661 F. Sup. 1053 (C.D. Cal. 1987). Although the federal hazardous waste statutes at issue in those cases; the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 through 6987; the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 through 9662; are substantially different from our own Solid Waste Management Act, the problems of detecting causation and assigning responsibility are present in their application as they are in ours. We are persuaded, therefore, that judicial review of any environmental cleanup order should be conducted with reference to the principles of joint and several liability, as limited by the doctrine of apportionment, expressed in those Restatement sections. Section 433B of the Restatement (Second) of Torts provides: "Burden of Proof. (1) Except as stated in Subsections (2) and (3), the burden of proof that the tortious conduct of the defendant has caused the harm to the plaintiff is upon the plaintiff. (2) Where the tortious conduct of two or more actors has combined to bring about harm to the plaintiff, and one or more of the actors seeks to limit his liability on the ground that the harm is capable of apportionment among them, the burden of proof as to the apportionment is upon each actor. (3) Where the conduct of two or more actors is tortious, and it is proved that harm has been caused to the plaintiff by only one of them, but there is uncertainty as to which one has caused it, the burden is upon each such actor to prove that he has not caused the harm." (Emphasis added.) Section 433A of the Restatement provides: "Apportionment of Harm to Causes. (1) Damages for harm are to be apportioned among two or more causes where (a) there are distinct harms, or (b) there is a reasonable basis for determining the contribution of each cause to a single harm. (2) Damages for any other harm cannot be apportioned among two or more causes." As part of its review of the DEP cleanup order in this case, the trial court should determine whether the agency ever addressed the issue of combined or alternative causes for the environmental harm caused and made the requisite findings necessary for imposing upon the plaintiffs responsibility for cleaning up the waste deposited by other dumpers. Only in the event that there is no reasonable basis for apportionment of the damages caused to the environment among those whose illegal activities have contributed to such harm would joint and several liability be appropriate. 2 Restatement (Second), Torts § 433A. If the record on these issues is inadequate, the proper course for the trial court would be to remand the matter for further proceedings on those issues. General Statutes § 4-183 (j); see, e.g., Harrison v. Commissioner, 204 Conn. 672, 679, 529 A.2d 188 (1987); Department of Health Services v. Commission on Human Rights & Opportunities, 198 Conn. 479, 488, 503 A.2d 1151 (1986); Feinson v. Conservation Commission, 180 Conn. 421, 429-30, 429 A.2d 910 (1980). If, after applying these considerations, the trial court finds that the scope of the cleanup order issued to the plaintiffs constituted an abuse of agency discretion, it should vacate that portion of the order requiring the plaintiffs to clear the site and remand the matter to the administrative agency for either a modification of the order with or without additional hearings, or, if the agency so chooses, dismissal of the order. Although we affirm the judgment with respect to the issue of liability, we reverse the portion of the judgment in which the trial court declined to review the DEP remedial orders and we remand the case to the trial court for further proceedings consistent with this opinion. In this opinion the other justices concurred. Between April and September, 1985, General Statutes (Rev. to 1985) § 22a-207 (4) and (6) provided: "(4) 'Solid waste facility' means any solid waste disposal area, volume reduction plant or resource recovery facility operated by any municipal or regional authority or any person if such area, plant or facility handles more than five tons a year of solid waste . "(6) 'Solid waste disposal area' means the location utilized for ultimate disposal of wastes as approved by the department." The DEP orders allege violations of No. 85-334, § 2 of the 1985 Public Acts, subsequently amended by No. 85-613, § 147, of the 1985 Public Acts and then codified as General Statutes (Rev. to 1987) § 22a-208 (b) and (c), later renumbered and revised as General Statutes (Rev. to 1991) § 22a-208a (b) and (c). Number 85-334, § 2 of the 1985 Public Acts was not effective until either May 22,1985 (the date it was passed), or June 16,1985 (the date it was signed). Public Acts 1985, No. 85-334, § 8. Number 85-613, § 147 of the 1985 Public Acts, which amended No. 85-334, § 2, was effective as of either June 5,1985 (the date it was passed), or July 10,1985 (the date it was signed). Public Acts 1985, No. 85-613, § 154. The hearing officer based his decision on a finding of illegal acts committed between April and September, 1985. While the plaintiffs do not address this chronological discrepancy directly, parts of their argument appear to focus upon the effective date of No. 85-334 of the 1985 Public Acts. We note, however, that the alleged violations of No. 85-334, § 2 of the 1985 Public Acts would also have violated preexisting General Statutes (Rev. to 1985) § 22a-208 (c). The substantive changes to law contained in No. 85-334, § 2, of the 1985 Public Acts are generally not relevant to the issues disputed by the plaintiffs. We need not, therefore, consider whether the changes contained in the 1985 enactments, each of which provided that it should "take effect from its passage"; Public Acts 1985, No. 85-334, § 8; Public Acts 1985, No. 85-613, § 154; were intended to be retroactive to the date of passage prior to the date those acts were approved by the governor. The three different versions of the statute in effect during the period in question (April through September, 1985), are as follows. In April, 1985, General Statutes (Rev. to 1985) § 22a-208 (c) provided: "No solid waste facility shall be built, established or altered after July 1, 1971, until the plan and design and method of operation of the same have been filed with the department and approved by the commissioner by the issuance of a permit, provided, nothing in this chapter or in chapter 446e shall be construed to limit the right of any local governing body to regulate, through zoning, land usage for solid waste disposal. No solid waste facility shall be operated on or after October 1, 1984, unless the owner or operator of such facility has filed a closure plan with the commissioner which he has approved as in compliance with regulatory standards adopted pursuant to section 22a-209. The commissioner shall send a written notification of any application for a permit to the chief elected official of each municipality in which the proposed facility is to be located within five business days of the date on which any such application is filed." Public Acts 1985, No. 85-334, § 2, passed on May 22, 1985, and signed into law on June 16,1985, amended General Statutes § 22a-208 by changing former subsection (c) to (b) and adding a new subsection (c), as follows: "(b) No solid waste facility shall be built or established and no solid waste facility for which a permit to construct is required shall be altered after July 1,1971, until the plan, design and method of operation of such facility have been filed with the department and approved by the commissioner by the issuance of a permit to construct, provided, nothing in this act or chapters 446d and 446e of the general statutes shall i>e construed to limit the right of any local governing body to regulate, through zoning, land usage for solid waste disposal. The commissioner shall send a written notification of any application for a permit to construct to the chief elected official of each municipality in which the proposed facility is to be located, within five business days of the date on which any such application is filed. "(c) No solid waste facility for which a permit to construct is required shall be operated on and after the effective date of this act, except for performance testing approved by the commissioner, unless such facility has been issued a permit to operate. The commissioner may issue such permit upon determination that the facility (1) will be operated in accordance with applicable laws or regulations, (2) has been constructed in accordance with a permit issued pursuant to subsection (b) of this section, and (3) has satisfactorily completed any performance tests required by the commissioner. All operating facilities holding a valid permit to construct on or before the effective date of this act shall be issued a permit to operate and shall be allowed to continue operations prior to the issuance of such permit to operate." Section 8 of this act provides: "This act shall take effect from its passage." New subsection (b) was further modified by a technical corrections act, Public Acts 1985, No. 85-613, § 147, passed on June 5, 1985, and signed into law on July 10, 1985: "Sec. 147. Subsection (b) of section 2 of public act 85-334 is repealed and the following is substituted in lieu thereof: "(b) No solid waste facility shall be built or established and no solid waste facility [for which a permit to construct is required] WITHOUT A PERMIT TO CONSTRUCT shall be altered after July 1, 1971, until the plan, design and method of operation of such facility have been filed with the department and approved by the commissioner by the issuance of a permit to construct, provided, nothing in this act or chapters 446d and 446e of the general statutes shall be construed to limit the right of any local governing body to regulate, through zoning, land usage for solid waste disposal. The commissioner shall send a written notification of any application for a permit to construct to the chief elected official of each municipality in which the proposed facility is to be located, within five business days of the date on which any such application is filed." This section also took effect at its passage. Public Acts 1985, No. 85-613, §154. These amended subsections, now renumbered General Statutes (Rev. to 1991) § 22a-208a (b) and (c), have remained unchanged to date. Section 2 (b) of Public Acts 1985, No. 85-334, also prohibits "constructing" or "maintaining" an unpermitted solid waste disposal facility. The hearing officer concluded that the appellants had committed these illegal acts as well as "operating" the facility "by dumping," which we construe to mean they "altered" the facility and "operated" the facility "by altering" it within the meaning of § 2 (b) of the act, i.e., by adding to the volume of waste present at the facility. Since there is overwhelming evidence that the dump existed as a solid waste disposal facility before April, 1985, when the plaintiffs are first alleged to have engaged in their illegal activities, the officer's conclusion that the appellants "constructed" the facility is unsupported. The trial court did not specifically address the hearing officer's conclusion that the plaintiffs had "maintained" the facility. Since neither party has made arguments with respect to the plaintiffs' alleged "construction" or "maintenance," as distinct from "operation," of the facility, we will assume that the DEP has abandoned any claim that the trial court's dismissal of the appeal should be upheld on the alternative ground that there is substantial evidence that the plaintiffs "constructed" or "maintained" the facility. As a general rule, we consider statutory issues before reaching constitutional questions. See, e.g., State v. DellaCamera, 166 Conn. 557, 353 A.2d 750 (1974). In this case, however, we cannot evaluate the hearing officer's conclusion that CBWC and its officers violated the statute until we have first construed the statute, because our construction of the statute is intertwined with the constitutional issue of vagueness. See footnote 2, supra. Number 85-334, § 2 and No. 85-613, § 147 of the 1985 Public Acts simply amended preexisting General Statutes § 22a-208 (c), which provided in pertinent part: "No solid waste facility shall be . . . altered after July 1,1971, until the plan and design and method of operation of the same have been filed with the department [of environmental protection] and approved by the commissioner by the issuance of a permit. . No solid waste facility shall be operated on or after October 1, 1984, unless the owner or operator of such facility has filed a closure plan with the commissioner which he has approved as in compliance with regulatory standards adopted pursuant to section 22a-209." General Statutes (Rev. to 1985) § 22a-208 (c). The only changes made by the subsequent 1985 public acts that are relevant to the issues before us are (1) the addition of language limiting the requirement for a "permit to alter" to: first, facilities "for which a permit to construct is required"; Public Acts 1985, No. 85-334; and second, facilities "without a permit to construct"; Public Acts 1985, No. 85-661; and (2) the substitution of a permit requirement for operation of a facility "for which a permit to construct is required on and after the effective date" of No. 85-334 for the previous closure plan approval requirement for operation of any solid waste facility "on or after October 1,1984." General Statutes (Rev. to 1985) § 22a-208. These changes do not affect the charges against the plaintiffs except by changing the DEP's evidentiary burden for charges of illegal "operation" of a facility to include proof that the facility was one "for which a permit to construct is required" or, after July 10, 1985, one "without a permit to construct." This decision is rendered based upon the parties' apparent assumption that the DEP had to prove that the facility was a "solid waste disposal facility" for which a permit to construct was required. Neither General Statutes § 22a-207 (4) or (6) were affected by the statutory modifications enacted in 1985. A vague statute that creates a risk of arbitrary or cbscriminatory enforcement might be unconstitutional, alternatively, as an impermissible delegation of legislative authority. Cf. Bottone v. Westport, 209 Conn. 652, 667-68 n.14, 553 A.2d 576 (1989). The photographic exhibits were taken on August 20, 1985 (Exhibits 7A, 7B, 8A, 8B), and October 4, 1985 (Exhibits 9A-F, 10). Thus, some were taken after the period of time during which the appellants were alleged to have committed their illegal acts. The appellants have not claimed that the photographs misrepresent the general condition of the site at the time they did their dumping. In addition, the individual appellants themselves testified that when they began dumping the entire site area was "just about . . . filled in." The plaintiffs point out that we recently affirmed a trial referee's decision setting aside a contempt citation issued against Thomas Capozziello, president of BWC, for continuing solid waste disposal on property he owned that adjoined another property he merely leased. Carothers v. Capozziello, 215 Conn. 82, 107-10, 574 A.2d 1268 (1990). In that context, however, we had no occasion to construe the statutory definition of "location" contained in General Statutes § 22a-207 (6), but addressed ourselves to the terms of the preliminary injunction at issue as compared to the location of the alleged illegal conduct. Because the order upon which the injunction was based claimed violations at the leased site but not at the owned site, we held that the trial court's interpretation of the scope of the injunction was unduly expansive. The Regulations of Connecticut State Agencies, § 22a-209-l provides the following definition of the statutory term "alter": " 'Alter' (1) when referring to a solid waste facility which has no permit, means to change the existing configuration or method of operation of the facility in any manner, including but not limited to adding to the volume of solid waste deposited at the facility; (2) when referring to a solid waste facility which holds a permit, means to change the approved configuration or method of operation of the facility in any manner, including but not limited to adding to the approved volume of solid waste deposited at the facility." See footnote 3, supra. See Regs., Conn. State Agencies § 22a-209-6, 22a-209-7. The Regulations of the Connecticut State Agencies, § 22a-209-l defines "operator" as "a person who is ultimately responsible for maintaining the solid waste facility in conformance with applicable statutes and regulations and the facility permits." This definition is unhelpful when one is charged with "operating" a facility that does not have a permit. The appellants have not contested the hearing officer's findings imposing liability upon the Capozziello brothers as individuals for their personal participation in "operating" the facility. By virtue of such participation, we affirm the trial court's judgment against Russell and Geno Capozziello in their individual capacities with respect to liability. Part III of this opinion, however, also applies to the DEP orders issued against them as individuals. The full text of General Statutes § 22a-207 (6) defines "[sjolid waste disposal area" as "the location utilized for ultimate disposal of wastes as approved by the department." The phrase "as approved by the department" presumably ensures that dumping outside the authorized boundaries of a permitted solid waste facility will constitute unpermitted dumping. In this case, of course, because there was no permit, there was no location "approved by the department." The plaintiffs argued to the trial court that the materials deposited at the site were not "unwanted or discarded" because the residents had authorized the dumping as a means of leveling off their sloping backyards. They have not, however, appealed the trial court's conclusion that "at the time an outside party contracts with a demolition company, the debris resulting from the demolition of the building or site, becomes unwanted and falls within the statutory definition of solid waste; the debris is 'discarded' or 'unwanted' by the person or party who contracted to have the particular structure demolished" and therefore that "the demolition debris deposited at Clearview [Drive] constituted solid waste as defined by General Statutes Section 22a-207 (3)." (Emphasis in original.) In the words of the trial court: "Simply because other parties, thereafter, may wish to obtain the debris from the demolition company, by purchase or otherwise, does not remove it from the Section 22a-207 (3) definition; to so construe the statute, in the circumstances of this case, would be to ignore the expressed objective of protecting the environment and the public from unsafe commercial operations presenting risks of fire, odor, air pollution, water pollution, etc." Our discussion of the words "discarded" or "unwanted" in Carothers v. Capozziello, 215 Conn. 82, 107-10, 574 A.2d 1268 (1990), was in the context of alleged violations of General Statutes § 22a-250 (c), the littering statute, and does not affect this case. "[General Statutes (Rev. to 1985)] Sec. 22a-209. REGULATIONS. The commissioner shall promulgate regulations governing solid waste management, and permits, as provided for in subsection (c) of section 22a-208, shall be conditioned upon conformance with such regulations as well as applicable laws." This statute, formerly enacted as General Statutes § 19-524c, was operative in February, 1985, when the discussed regulations became effective. We note that, had the regulations validly exempted "clean fill" from the definition of solid waste, the burden would remain on the plaintiffs to prove that the materials they dumped fell within the exemption. See Conservation Commission v. Price, 193 Conn. 414, 424, 479 A.2d 187 (1984); 2 A J. Sutherland, Statutory Construction (4th Ed. Sands) § 47.22. We note that common building brick weighs approximately 120 pounds per cubic feet, or 3240 pounds per cubic yard. R. Perry, Engineering Manual (3d Ed.) p. 4-2; G. Brady & H. Clauser, Materials Handbook (11th Ed.) p. 111. One twenty-yard truckload of building bricks would therefore weigh 64,800 pounds, or 32 tons. As Russell Capozziello explained, twenty yards of such heavy materials would be carried in several loads because of its weight. Even if a brick house producing twenty cubic yards of brick was transported in six loads, each load would be 5 tons. Light concrete block weighs less, only 65 pounds per cubic foot, or 1755 pounds per cubic yard. R. Perry, supra. If, as Russell indicated, one concrete building that the plaintiffs dumped at the site had produced twenty cubic yards of this material, that debris alone would have weighed 35,100 pounds, or 17.6 tons. Uncompressed pine boards weigh only 26 pounds per cubic foot, or 702 pounds per cubic yard. Id. A twenty yard load of pine would therefore weigh 14,040, or 7 tons. Even if we assume that none of the plaintiffs' trucks were ever full, and that the weights approximated above refer to a compact solid block of each material rather than a loose load of demolition debris, it is plain that forty-five loads of any of these materials would far exceed the five ton requirement. The legislature's recent amendment to General Statutes (Rev. to 1991) § 22a-207 (6), while irrelevant to the disposition of this case, is illuminating. As presently worded, the new definition of "[s]olid waste disposal area" is the "land and appurtenances thereon and structures, including a landfill or other land disposal site, used for the disposal of more than ten cubic yards of solid waste." (Emphasis added.) Under the revised statute, then, the appellants' dumping would have exceeded the statutory minimum ninety times over. General Statutes § 22a-6a (b) provides in pertinent part: "Whenever two or more persons knowingly or negligently violate any provision of section . . . 22a-208, 22a-208a . or any regulation, order or permit adopted or issued thereunder by the commissioner and responsibility for the damage caused thereby is not reasonably apportionable, such persons shall, subject to a right of equal contribution, be jointly and severally liable under this section." Public Acts in 1986, 1987,1989 and 1990 made technical changes and added references to other statutory sections but in all other respects the statute is the same as that in effect in 1985. General Statutes § 22a-6a was enacted as § 1 of No. 73-665 of the 1973 Public Acts. Senator Philip N. Costello, Jr., sponsor of the original bill, substitute senate bill No. 1973, selectively summarized the section: "It provides that any person who violates any statute, regulation, order or permit administered, adopted or issued by the Commissioner of Environmental Protection shall be liable to the state for damages to the environment caused by such violation." 16 S. Proc., Pt. 8,1973 Sess., p. 3541. Similarly, Representative Richard H. Wagner, offering the act to the House of Representatives, summarized: "[T]his rather lengthy bill accomplishes two fundamental purposes within the Department of Environmental Protection. It makes any person who violates any statute, regulation, order or permit administered, adopted or issued by the Commissioner be liable to the State for the damages to the environment caused by his violation. . . 16 H.R. Proc., Pt. 15, 1973 Sess., p. 7780. In Gutowski v. New Britain, 165 Conn. 50, 55, 327 A.2d 552 (1973), we adopted, in part, § 433B of the Restatement (Second) of Torts, with respect to intentionally tortious acts performed in concert. More recently, the Appellate Court has interpreted Gutowski to permit application of the doctrine to situations where each tortfeasor acts independently, but concurrently, to produce a single injury, liability for which may, nonetheless, be apportioned on some reasonable basis. Reilly v. DiBianco, 6 Conn. App. 556, 567-72, 507 A.2d 106, cert. denied, 200 Conn. 804, 510 A.2d 193 (1986). Our decision today merely applies the doctrines contained in § 433A and 433B, which do not require concerted action; cf. Kelley v. Thomason Solvent Co., 714 F. Sup. 1439, 1448 (W.D. Mich. 1989); see also 2 Restatement (Second), Torts § 439; to guide judicial review of administrative orders issued to remedy violations of our Environmental Protection Act.

Per Curiam. On October 13, 1971, the plaintiff was found guilty of three counts of a substituted information which charged him with possession of a narcotic drug with intent to sell, with possession of a narcotic drug, and with conspiracy to violate § 19-480a and 19-452 of the 1969 Supplement to the General Statutes relating to dependency producing drugs. On appeal from the judgment rendered in that case, this court found no error. State v. Johnson, 166 Conn. 439, 352 A.2d 294. This appeal is taken from the denial of a petition for a new trial. The sole issue presented is the claim that a new trial should have been granted by the trial court because the state had failed to comply with the mailing provision of § 19-483 (b) of the General Statutes. That statute, which became effective on October 1, 1971, provides that the state shall forward to defense counsel a copy of the toxicological report prior to offering it into evidence at trial. It is conceded that the state did not comply with that statutory provision. It is the plaintiff's contention that that noncompliance by the state constituted "other reasonable cause" under the provisions of § 52-270 pertaining to the "causes for which new trials may be granted." The law in this state relative to new trials is well established and was recently thoroughly reviewed in Reilly v. State, 32 Conn. Sup. 349, 355 A.2d 324. The primary test is whether an injustice was done and whether it is probable that on a new trial a different result would be reached. Taborsky v. State, 142 Conn. 619, 623, 116 A.2d 433; Dortch v. State, 142 Conn. 18, 21, 110 A.2d 471; Smith v. State, 141 Conn. 202, 208,104 A.2d 761. The burden of proving the probability of a different result is upon the plaintiff, and in determining that issue the trial court exercises a discretion which cannot be set aside unless its discretionary power has been abused. Smalls v. State, 172 Conn. 18, 372 A.2d 138; Taborsky v. State, supra; State v. Goldberger, 118 Conn. 444, 457, 173 A. 216. On the record of this case, there is no evidence of an abuse of discretion by the trial court. There is no error. "[General Statutes] Sec. 52-270. causes for which new trials may be granted. The superior court . . . may grant a new trial of any cause that may come before it, for mispleading, the discovery of new evidence or want of actual notice of the suit to any defendant or of a reasonable opportunity to appear and defend, when a just defense in whole or part existed, or for other reasonable cause, according to the usual rules in such cases."

The application by Matthew J. Forstadt to withdraw as counsel on behalf of the plaintiff in the appeal from the Superior Court in Litchfield County is granted.

Per Curiam;. The defendant was found guilty by a jury of assault, third degree, attempted larceny, first degree (extortion), and robbery, third degree, and appealed from the judgment rendered on the verdict. On the appeal, he has briefed and argued two claims of error. The first is that the court erred in charging the jury that the defendant could be found guilty as an accessory pursuant to the provisions of § SSa-S of the General Statutes, although he had not been formally charged in the information with aiding and abetting. The second claimed error is that the court erred in denying his motion to set aside the verdict on the ground that the evidence was insufficient to justify the jury in finding him guilty beyond a reasonable doubt. We find no merit to the assignments of error, which require little discussion. As to the first claim, it suffices to note that the defendant did not take any exception to the charge which he now attacks. Not only does the claim not come within one of the exceptional circumstances noted in State v. Evans, 165 Conn. 61, 70, 327 A.2d 576, but the claim is contrary to well-settled law. See State v. Raffone, 161 Conn. 117, 128, 285 A.2d 323; State v. Cianflone, 98 Conn. 454, 460, 120 A. 347; State v. Burns, 82 Conn. 213, 218-19, 72 A. 1083; State v. Hamlin, 47 Conn. 95, 120. It would serve no useful purpose to summarize the evidence of the assault, attempted extortion and robbery. The evidence must be given the construction most favorable to sustaining the verdict; State v. Avila, 166 Conn. 569, 578, 353 A.2d 776; and this it does in ample measure. There is no error. "[General Statutes] See. 53a-8. 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."

Pursuant to Practice Book § 696, it is ordered by the Supreme Court, suo motu, that the appeals of the named defendant and the intervening defendant, CBET, Inc., and the cross-appeal of the plaintiff be and hereby are dismissed.