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The plaintiff's motion to dismiss the defendants' cross appeal filed April 27, 1976, from the Superior Court in Fairfield County, which motion was rear gued this date, is granted unless the defendants on or before December 28,1976, file their request for a finding and draft finding. Reargued December 7 decided December 7, 1976 J. Daniel Sagarin, for the appellees-appellants (defendants). Raphael Korff, for the appellant-appellee (plaintiff).

The plaintiffs' motion for permission to file typewritten briefs in the appeal from the Superior Court in Fairfield County is denied.

Hull, J. The defendants appeal the decision of the Appellate Court affirming the decision of the workers' compensation review division (review division) which affirmed the decision of the workers' compensation commissioner for the second district (commissioner) granting the plaintiff's motion to preclude. We affirm. Although the facts are set forth in the decision of the Appellate Court; Cleveland v. U.S. Printing Ink, Inc., 21 Conn. App. 610, 575 A.2d 257 (1990); we discuss those facts pertinent to the issues. On March 11,1986, the plaintiff, Joseph Cleveland, a resident of New Jersey employed as a truck driver by the named defendant, U.S. Printing Ink, Inc., a New Jersey corporation, was injured during the course of his employment in the town of South Windsor. Thereafter, the plaintiff received workers' compensation benefits for total incapacity under the New Jersey Workmen's Compensation Act. On or about September 22,1986, the plaintiff mailed to the named defendant a notice of his injury and his intent to file a claim for benefits under the Connecticut Workers' Compensation Act, General Statutes § 31-275 et seq. After the named defendant failed to file a timely notice of its intent to contest liability for the plaintiff's claim, the plaintiff filed a motion, pursuant to General Statutes § 31-297 (b), to preclude the defendants from contesting liability or the extent of the plaintiffs disability. In response, the defendants challenged the jurisdiction of the commissioner to award benefits to the plaintiff. The commissioner determined that between Connecticut deliveries and driving through the state, the plaintiff spent 35 to 40 percent of his employment time in Connecticut. Furthermore, the plaintiff "ha[d] enough significant contacts with this state and . . . therefore Connecticut [had] an interest in applying its statutes for the protection of working men injured within its borders." The commissioner thereupon granted the plaintiffs motion to preclude and ordered the defendants to accept liability for the plaintiffs claimed injury. The defendants appealed the commissioner's decision to the review division, which affirmed, concluding that the commissioner had made an appropriate factual finding about the plaintiff's employment situs, and had correctly applied conflict of laws principles. Thereafter, the defendants appealed the review division's decision to the Appellate Court, which also affirmed, concluding, inter alia, that: (1) Connecticut had an interest in compensating the plaintiff; (2) New Jersey had no legitimate interest in preventing Connecticut from awarding the plaintiff supplemental compensation; and (3) "the commissioner correctly applied the law . . . that the facts sufficiently supported his decision, and . . . the compensation review division correctly affirmed the decision." Cleveland v. U.S. Printing Ink, Inc., supra, 617-18. We subsequently granted the defendants' peti tion for certification to appeal to this court limited to the following issues: (1) " 'Did the Appellate Court properly conclude that because there was sufficient contact with Connecticut by the plaintiff truck driver and his employer, both being domiciled in New Jersey, to give this state jurisdiction, the Connecticut workers' compensation law, both procedural and substantive, should apply? [and (2)] Should the Appellate Court have dismissed the appeal suo motu for lack of a final administrative determination?' " Cleveland v. U.S. Printing Ink, Inc., 216 Conn. 802, 577 A.2d 715 (1990). I We must first address the question of whether the Appellate Court should have dismissed the defendants' appeal for lack of a final administrative determination. This question has two subparts: does the Appellate Court have jurisdiction to hear an appeal from the review division in the absence of a final decision; does the record in this case manifest the existence of a final decision? We conclude that a final decision is a jurisdictional prerequisite to an appeal and that there was such a final decision in this case. The defendants claim that because the right of appeal from the review division to the Appellate Court is statutory; General Statutes § 31-301b; and because General Statutes § 31-301b nowhere states that the decision appealed from must be final, a final decision was not required in order for the defendants to appeal the decision of the review division. Practice Book § 2015 provides, however, that "[t]he practice and procedure for workers' compensation appeals to the appellate court shall conform to the rules of practice governing other appeals to the appellate court . . . ." The practice and procedure of the Appellate Court require that, "[i]f a party is aggrieved by the decision of the court or judge . . . that party may appeal from the final judgment of the court or of such judge . . . ." Practice Book § 4000; see also Practice Book § 2000. "It is clear, therefore, that in order for a decision of the review division to be appealable under General Statutes § 31-301b it must be a decision which has the same elements of finality as a final judgment rendered by a trial court." Timothy v. Upjohn Co., 3 Conn. App. 162, 164, 485 A.2d 1349 (1985); see also Szudora v. Fairfield, 214 Conn. 552, 556, 573 A.2d 1 (1990); Matey v. Estate of Dember, 210 Conn. 626, 630, 556 A.2d 599 (1989). The plaintiff claims that the decision of the review division was a final decision appealable pursuant to § 31-301b. The defendants assert, to the contrary, that the decision is final only if the plaintiffs claim for workers' compensation benefits is limited to a claim for incapacity benefits already received because otherwise, the plaintiff may still file a claim for specific benefits. We agree with the plaintiff. "It is axiomatic that appellate review of disputed claims of law and fact ordinarily must await the rendering of a final judgment by the compensation review division. Matey v. Estate of Dember, [supra, 629-30]; Schieffelin & Co. v. Department of Liquor Control, 202 Conn. 405, 409-12, 521 A.2d 566 (1987); Connecticut Bank & Trust Co. v. Commission on Human Rights & Opportunities, 202 Conn. 150, 156-57, 520 A.2d 186 (1987); Rapasi v. Jenkins Bros., 16 Conn. App. 121, 122-23, 546 A.2d 965, cert. denied, 209 Conn. 817, 550 A.2d 1085 (1988). . . . The test that determines whether such a decision is a final judgment turns on the scope of the proceedings on remand: if such further proceedings are merely ministerial, the decision is an appealable final judgment, but if further proceedings will require the exercise of independent judgment or discretion and the taking of additional evidence, the appeal is premature and must be dismissed. Matey v. Estate of Dember, supra, 630." Szudora v. Fairfield, supra. "A decision of the compensation review division is a final judgment if the claimant involved is entitled to temporary total disability benefits and the salary and period of time during which there was an inability to work are known." Guinan v. Direct Marketing Assn., Inc., 22 Conn. App. 515, 517, 578 A.2d 129 (1990), aff'd, 23 Conn. App. 805, 580 A.2d 1249 (1990). It is undisputed that the plaintiff sustained an injury during the course of his employment for which he is entitled to receive total incapacity benefits. Furthermore, the period of the plaintiff's disability, the plaintiff's salary, the amount of workers' compensation benefits the plaintiff had received in New Jersey and the amount of benefits he would receive under the Connecticut Workers' Compensation Act are also undisputed. The proceedings on remand from the compensation review division, therefore, would be purely ministerial, requiring no exercise of independent discretion and no further taking of evidence. Moreover, because a future claim for specific benefits would require a separate proceeding before the commissioner, the possibility of such a claim does not affect the finality of the present decision of the review division. Accordingly, we conclude that the decision of the review division was a final decision appealable pursuant to § 31-301b. II We now turn to the substantive question concerning the applicability of Connecticut workers' compensation law. Before addressing the substance of the defendants' claim, we must first clarify the nature of the issue pre sented. Although the Appellate Court characterized the issue as one of subject matter jurisdiction; Cleveland v. U.S. Printing Ink, Inc., supra, 21 Conn. App. 614-16; the question of whether one state will award supplemental workers' compensation benefits to a claimant who previously received benefits under the laws of another state is more appropriately deemed a question of conflict of laws. See Thomas v. Washington Gas Light Co., 448 U.S. 261, 278-86, 100 S. Ct. 2647, 65 L. Ed. 2d 757 (1980); Simaitis v. Flood, 182 Conn. 24, 31, 437 A.2d 828 (1980); 1 Restatement (Second), Conflict of Laws § 181; 4 A. Larson, Workmen's Compensation Law § 85.00, pp. 16-18-16-47. Indeed, although " 'the two [questions] usually coincide, since normally the rights created by the compensation act of one state cannot be enforced in another state . . Cleveland v. U.S. Printing Ink, Inc., supra, 21 Conn. App. 616, quoting 4 A. Larson, supra, § 84.00, p. 16-1; the question of jurisdiction ordinarily precedes the conflict of laws question, for only after the commissioner determines that he has authority to entertain the action does he proceed to the "choice" of whether to award benefits under our Workers' Compensation Act or, rather, to defer to the earlier grant of benefits under the laws of another state. It is conflict of laws principles, therefore, that determine the merits of the defendants' principal assertions. The defendants claim that the Appellate Court improperly concluded that because the plaintiff had sufficient contacts with Connecticut to support the commissioner's subject matter jurisdiction, Connecticut workers' compensation law should apply to the present case. According to the defendants, because the plain tiff has the most significant contacts with New Jersey, under conflict of laws principles, the law of New Jersey governs exclusively the plaintiffs claim for workers' compensation benefits. We do not agree. Historically, the employment contract determined whether a claimant might receive workers' compensation benefits under our Workers' Compensation Act. Morin v. Lemieux, 179 Conn. 501, 503, 427 A.2d 397 (1980); Pettiti v. Pardy Construction Co., 103 Conn. 101, 106-107, 130 A. 70 (1925); Hopkins v. Matchless Metal Polish Co., 99 Conn. 457, 460, 121 A. 828 (1923); Banks v. Howlett Co., 92 Conn. 368, 371, 102 A. 822 (1918); Douthwright v. Champlin, 91 Conn. 524, 526, 100 A. 97 (1917); Kennerson v. Thames Towboat Co., 89 Conn. 367, 371, 94 A. 372 (1915). An employee injured in the course of his employment was entitled to receive workers' compensation benefits under our act as long as the employment contract pursuant to which he was employed was executed in Connecticut, regardless of where performance was rendered. Morin v. Lemieux, supra. Nevertheless, despite the apparent clarity of a rule based exclusively on the place of the employment contract and the ease with which it could be applied to promote uniformity, simplicity and convenience, because we were concerned about "the impossibility of anticipating all the situations which [might] develop in this difficult feature of the compensation law, and of making . an unvarying rule which shall cover all possible cases," the rule was adapted where necessary to "best promote the interests of both employers and employees." Hopkins v. Matchless Metal Polish Co., supra, 466-67; see also Banks v. Howlett Co., supra. Thus, in addition to providing workers' compensation benefits to those employed pursuant to contracts executed within Connecticut, if an employee had been injured in Connecticut during the course of his employment but the employment contract had been executed in another state that did not give extraterritorial effect to its own workers' compensation act, the contract was interpreted as having implicitly incorporated Connecticut's Workers' Compensation Act within its terms unless the act had been explicitly rejected by one of the parties. Hopkins v. Matchless Metal Polish Co., supra, 464. Likewise, if the sole and specific object of the foreign contract was employment in Connecticut, an employee injured in Connecticut had the option of receiving benefits under our act. Banks v. Howlett Co., supra. In Pettiti v. Pardy Construction Co., supra, 108-109, we limited Banks v. Howlett Co., supra, to its facts because we were concerned about inconsistent application of the general rule. While our act had been interpreted to provide benefits to employees whose contracts were to be performed solely in Connecticut, those employees whose contracts were executed in Connecticut but performed solely outside its borders, were also afforded benefits under our act. Nevertheless, we thereafter discarded the place of contract conflict of laws approach for determining whether a claimant was entitled to receive benefits under our Workers' Compensation Act as unduly restrictive in view of the remedial purpose of our workers' compensation law. Simaitis v. Flood, supra. In Simaitis, the plaintiff, a resident of Connecticut, had been hired and was principally employed in Con necticut by a Connecticut corporation; she was injured during the course of her employment in Tennessee. We concluded that "[although the contract choice of law rule is a certain one, easily applied . . . such a rule would serve to preclude the successive incremental awards sanctioned by Thomas v. Washington Gas Light Co., [supra]; Industrial Commission of Wisconsin v. McCartin, 330 U.S. 622, 67 S. Ct. 886, 91 L. Ed. 1140 (1947); Restatement (Second), 1 Conflict of Laws § 182, comment b; Restatement, Conflict of Laws § 403; 4 Larson, [supra,] § 85.60, pp. 16-29-16-30; because the employment contract is typically made in only one jurisdiction." Simaitis v. Flood, supra, 27-28. Moreover, "an employee's effort to maximize her compensation benefits and remedies would be frustrated because relief would be limited to that provided by the jurisdiction where the contract was made . . . [and] an employer [could] avoid the full extent of potential liability imposed by the Connecticut Workers' Compensation Act simply by making the contract elsewhere. ." Id., 28. We also declined to confine our conflict of laws analysis to the doctrine of lex loci delicti because "if this court were to adhere to a strict application of the place-of-the-injury rule, a Connecticut resident and employee of a Connecticut employer under a Connecticut contract, who was injured while on temporary business in another jurisdiction might be left with no tort remedy whatsoever if that other jurisdiction applied a different choice of law rule." Id., 30. Because both the due process interest analysis utilized by the United States Supreme Court to determine whether a state may constitutionally apply its workers' compensation act to afford a claimant benefits; see Thomas v. Washington Gas Light Co., supra; 1 Restatement (Second), Conflict of Laws § 181; as well as the place of the employment relation approach; 4 A. Larson, supra, § 87.40; supported application of Connecticut workers' compensation law, we concluded in Simaitis that the provisions of our act applied. Simaitis v. Flood, supra, 31. Since, however, both views compelled the same result, it was unnecessary to adopt a comprehensive conflict of laws rule for workers' compensation cases. Id. Recently, we observed our earlier recognition of the interest analysis of § 181 of the Second Restatement of Conflict of Laws for resolving conflict of laws issues in workers' compensation cases. O'Connor v. O'Connor, 201 Conn. 632, 638, 519 A.2d 13 (1986), citing Simaitis v. Flood, supra, 32-33. Although O'Connor dealt with conflict of laws principles in a tort action rather than in a workers' compensation case, we relied on Simaitis for the proposition that "we are not wholeheartedly committed to application of lex loci as the sole approach to choice of law in all torts cases. ' ' O'Connor v. O'Connor, supra. By its own terms, however, § 181 of the Restatement is not dispositive of the issue presented. Section 181 merely "sets forth the situations in which it is permissible for a State to apply its workmen's compensation statute. Whether the courts of a State will in fact apply its statute in any one or more of these situations depends . on the language of the statute and on the way in which the statute is interpreted by the courts." (Emphasis added.) 1 Restatement (Second), Conflict of Laws § 181, comment a, pp. 537-38. The Restatement discusses three approaches taken by courts to determine the territorial application to be given to their local workers' compensation statutes in the absence of explicit statutory authority. Id., comment b, pp. 539-40. According to these views, relief should be obtainable under the workers' compensation act of the state (1) with the most significant relationship to the employment, or (2) with the most significant relationship to the contract of employment, or (3) whose local law would be applied to determine the parties' rights and liabilities in tort. Id., comment b. Implementing the choices suggested by the Restatement and in conformity with the 1972 recommendation of the National Commission on State Workmen's Compensation Laws, "[i]n the majority of states, the local statute will be applied if the place of injury, or the place of hiring, or the place of employment relation is within the state." (Emphasis added.) 4 A. Larson, supra, § 87.00, p. 16-67; see also 1 Restatement (Second), Conflict of Laws § 181, comment b, p. 540 (court that adheres to one of three approaches discussed may on occasion adhere to another view in order to justify awarding relief to employee under its workers' compensation laws). According to Professor Larson, this rule has introduced "a much greater degree of uniformity and compatibility . . . into this formerly-ragged area of the law." 4 A. Larson, supra, § 87.11, p. 16-67. We conclude that the conflict of laws rule recommended by the national commission and Professor Larson, adopted in the majority of jurisdictions, is the rule best suited to serve the purposes of our Workers' Compensation Act. " 'The purpose of the workmen's compensation statute is to compensate the worker for injuries arising out of and in the course of employment, without regard to fault, by imposing a form of strict liability on the employer.' (Citation omitted.) Jett v. Dunlap, 179 Conn. 215, 217, 425 A.2d 1263 (1979). The act is to be broadly construed to effectuate the purpose of providing compensation 'for an injury arising out of and in the course of the employment regardless of fault.' Klapproth v. Turner, 156 Conn. 276, 279, 240 A.2d 886 (1968) The purposes of the act itself are best served by allowing the remedial legislation a reasonable sphere of operation considering those purposes. See Adzima v. UAC/Norden Division, 177 Conn. 107, 117, 411 A.2d 924 (1979)." Mingachos v. CBS, Inc., 196 Conn. 91, 97-98, 491 A.2d 368 (1985). Connecticut has an "interest in compensating injured employees to the fullest extent possible." McGowan v. General Dynamics Corporation/Electric Boat Division, 15 Conn. App. 615, 622, 546 A.2d 893 (1988), aff'd, 210 Conn. 580, 556 A.2d 587 (1989); see also Simaitis v. Flood, supra, 28. "Regardless of where an employee first seeks an award of benefits, he or she is entitled to the maximum amount allowed to an individual under either comprehensive legislative scheme." McGowan v. General Dynamics Corporation/Electric Boat Division, supra, 623. Furthermore, although the plaintiff in this case was able to obtain workers' compensation benefits under the laws of New Jersey, the propriety of the rule we adopt today must be considered not only in light of the facts of this case but with an eye towards situations that are likely to arise in the future. See Carroll v. Lanza, 349 U.S. 408, 413, 75 S. Ct. 804, 99 L. Ed. 1183 (1955). Thus, while our adoption of this rule incidentally serves the plaintiff's desire to obtain the maximum amount of benefits to which he is entitled, it, more importantly, protects those claimants who, because the various incidents of their employment and their injury are each linked to a different jurisdiction, may be at risk with respect to their eligibility for workers' compensation benefits. See, e.g., House v. State Industrial Accident Commission, 167 Or. 257, 117P.2d 611 (1941) (plaintiff left without workers' compensation remedy for injury sustained while working temporarily in Oregon; employment contract executed in Oregon, which used place of employment rule, and place of employment in California, which adhered to place of contract rule). The remedial purpose of our Workers' Compensation Act supports application of its provisions in cases where an injured employee seeks an award of benefits and Connecticut is the place of the injury, the place of the employment contract or the place of the employment relation. We conclude, therefore, that because the plaintiff sustained an employment-related injury in Connecticut, the Appellate Court properly concluded that the review division correctly affirmed the commissioner's decision to apply Connecticut workers' compensation law, specifically § 31-297 (b). The judgment is affirmed. In this opinion Peters, C. J., Glass and Borden, Js., concurred. Travelers Insurance Company, the employer's insurer, is also a defendant. General Statutes § 31-297 (b) provides: "Whenever liability to pay compensation is contested by the employer, he shall file with the compensation commissioner, on or before the twentieth day after he has received a written notice of the claim, a notice in accord with a form prescribed by the commissioners stating that the right to compensation is contested, the name of the claimant, the name of the employer, the date of the alleged injury or death and the specific grounds on which the right to compensation is contested, and a copy thereof shall be sent to the employee. If the employer or his legal representative fails to file the notice contesting liability within the time prescribed herein, the employer shall be conclusively presumed to have accepted the compensability of such alleged injury or death and shall have no right thereafter to contest the employee's right to receive compensation on any grounds or the extent of his disability." General Statutes § 31-301b provides: "Any party aggrieved by the decision of the compensation review division upon any question or questions of law arising in the proceedings may appeal the decision of the compensation review division to the appellate court." The defendants also claim that application of Connecticut law (1) failed to afford the judicial proceeding in New Jersey the full faith and credit to which it is entitled under article four, § 1, of the federal constitution, and (2) was fundamentally unfair and a denial of due process, because there is no similar preclusion provision under the law of New Jersey, which the defendants expected to govern their obligations. The defendants failed to raise their constitutional claims in their appeal to the review division and, therefore, they were not properly preserved for subsequent review by the Appellate Court. This court is not bound to consider claims not properly raised below. Practice Book § 4185. We, therefore, decline to address these claims. The Second Restatement of Conflict of Laws § 181 provides that "[a] State of the United States may consistently with the requirements of due process award relief to a person under its workmen's compensation statute, if (a) the person is injured in the State, or (b) the employment is principally located in the State, or (c) the employer supervised the employee's activities from a place of business in the State, or (d) the State is that of most significant relationship to the contract of employment with respect to the issue of workmen's compensation under the rules of §S 187-188 and 196, or (e) the parties have agreed in the contract of employment or otherwise that their rights should be determined under the workmen's compensation act of the State, or (f) the State has some other reasonable relationship to the occurrence, the parties and the employment." The dissent concludes that because "[wjorkers' compensation cases are classified as 'wrongs' by the Restatement and thus present an 'issue in tort,' " pursuant to § 145 (1) of the Second Restatement of Conflict of Laws, the rights and liabilities of the parties in workers' compensation cases are determined by the law of the state which has the most significant relationship to the occurrence and the parties. We disagree. Chapter seven of the Restatement of Conflict of Laws discusses the general topic entitled "Wrongs." 1 Restatement (Second), Conflict of Laws pp. 411-12. Within the general topic, the following subtopics are delineated along with their applicable provisions: torts; § 145-174; actions for death; § 175-180; and workers' compensation; § 181-185. Id. We conclude, therefore, that because the Restatement views conflict of laws issues in tort and workers' compensation actions as distinct, § 145 is not applicable to workers' compensation cases. "Twenty-two jurisdictions cover all in-state injuries." 4 A. Larson, Workmen's Compensation Law § 87.13, p. 16-72. They are as follows: Alabama, Alaska, Colorado, Delaware, Florida, Georgia, Hawaii, Idaho, Iowa, Kansas, Kentucky, Louisiana, Missouri, Nebraska, New Jersey, New Mexico, North Carolina, Pennsylvania, South Carolina, Washington, Wisconsin and the District of Columbia. Id., § 87.13, p. 16-72 n. 9. The following six jurisdictions exclude coverage if there is coverage in another state and if that state grants reciprocity: California, Mississippi, Montana, Nevada, Rhode Island and South Dakota. Id., § 87.13, p. 16-72 n.13. The dissent, citing Simaitis v. Flood, 182 Conn. 24, 34, 437 A.2d 828 (1980), states that according to Professor Larson, " 'the applicable law in a workers' compensation case is the law of the place of the employment relation .'" We note that in Simaitis, the comments of Professor Larson were interpreted too broadly. Although Larson states that "[o]f the three original theories on extraterritoriality—tort, contract, and employment relation—the last is the most relevant to compensation theory and the least artificial"; 4 A. Larson, Workmen's Compensation Law § 87.41, p. 16-114; he notes that, in practice, the rule can be unworkable, concluding that while the place of the injury and the place of the contract are relatively easy to identify, "the whereabouts of a relation between two people has a somewhat more mystic quality." Id., § 87.42, p. 16-118.

The plaintiff's motion to dismiss the appeal by the named defendant et al. from the Superior Court in New Haven County is granted.

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

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

Hull, J. The defendant, Eugene Russell, was charged by substitute information with burglary in the third degree; General Statutes § 53a-103; larceny in the fourth degree; General Statutes § 53a-125; and being a persistent larceny offender. General Statutes § SSa^O. During his trial by a jury, the defendant filed two motions for a judgment of acquittal, both of which were denied. The jury found the defendant guilty of burglary in the third degree and larceny in the fourth degree, and the defendant thereafter pleaded guilty to being a persistent larceny offender. The trial court imposed an effective sentence of ten years imprisonment execution suspended after seven years to be followed by three years of probation. The defendant appealed to the Appellate Court, which affirmed the judgment of the trial court. State v. Russell, 22 Conn. App. 440, 577 A.2d 1107 (1990). We subsequently granted the defendant's petition for certification to appeal to this court limited to the following issue: "Did the Appellate Court properly determine that a fenced-off section of a building otherwise open to the public constitutes a 'building' for purposes of Connecticut General Statutes § 53a-103?" State v. Russell, 216 Conn. 814, 580 A.2d 65 (1990). We reverse the judgment in part. The jury could reasonably have found the following facts. On April 11, 1987, at approximately 5 a.m., the night manager of the Pathmark grocery store in East Haven noticed that several cartons of cigarettes appeared to be missing from a cigarette display located in the store's "service area." The service area is the portion of the store that, despite the fact that the store provides service 24 hours a day, is closed between the hours of 9 p.m. and 9 a.m., due to the presence of high value merchandise. During these hours, the service area is enclosed by a padlocked, metal folding gate that is eight feet in height. Following his discovery, the manager, accompanied by the store detective, unlocked the gate and entered the service area. Investigation revealed that numerous cartons of cigarettes were missing. In addition, a brown wallet, containing the defendant's driver's license, was retrieved from the floor. Outside the service area, the manager and the detective discovered that a child's car seat had been removed from its box and placed on the floor and that the box was missing. A review of a videotape recording made by the store's surveillance camera revealed that earlier that morning, at approximately 2:20 a.m., a man had removed the car seat from its box and, with the box in hand, had climbed over the gate and into the service area. Within a few minutes, the man had climbed back over the gate and, while still in possession of the box, had exited the store. Following a report of the theft, the East Haven police went to the house located at the address that appeared on the license found in the service area. In a trash can at the rear of the house, the police uncovered an empty box for a child's car seat. The police thereafter obtained search warrants for the house and for a car parked near the house. Upon executing the warrants, the police discovered numerous cartons of cigarettes in both the house and the car, each of which bore the Pathmark store's tax number. The defendant claims that because the enclosed service area of the Pathmark grocery store is not a "building" within the meaning of § 53a-103, the trial court should have granted his motion for a judgment of acquittal with respect to the burglary charge. The state counters that because it was secured sufficiently to restrict public access, the service area is a "building" as that term is defined in General Statutes § 53a-100 (a) (1) and that, therefore, the judgment of conviction must be affirmed. We agree with the defendant. "A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein." General Statutes § 53a-103. For purposes of this case, "building" is defined as follows: "Where a building consists of separate units, such as, but not limited to separate apartments, offices or rented rooms, any unit not occupied by the actor is, in addition to being a part of such building, a separate building . . . ." General Statutes § 53a-100 (a) (1). We must determine, therefore, whether the enclosed service area is a "separate unit" within the meaning of § 53a-100 (a) (1). In so doing, we are mindful that "[cjriminal statutes are not to be read more broadly than their language plainly requires . . . ." State v. McGann, 199 Conn. 163, 177, 506 A.2d 109 (1986); see also State v. White, 204 Conn. 410, 424, 528 A.2d 811 (1987); State v. Dolphin, 203 Conn. 506, 523, 525 A.2d 509 (1987). Moreover, "[a] penal statute must be construed strictly against the state and liberally in favor of the accused. State v. Paradise, 189 Conn. 346, 352, 456 A.2d 305 (1983)." State v. Torres, 206 Conn. 346, 355, 538 A.2d 185 (1988); see also State v. Bunkley, 202 Conn. 629, 641, 522 A.2d 795 (1987). We faced a similar question in State v. Thomas, 210 Conn. 199, 554 A.2d 1048 (1989), where the defendant was alleged to have committed a burglary by unlawfully entering the counter area of a convenience store, which was open to the public, with the intent to commit a crime therein. We concluded "that under no stretch of the statutory language can the counter area of [a] . . . convenience store be deemed a 'building' as that term is defined in § 53a-100 (a) (1)." Id., 205-206. The state asserts that our conclusion in State v. Thomas, supra, that the counter area was not a "building," was due primarily to the fact that, in contrast to the present case, the area in question was not secured in order to prohibit public access. We disagree. According to the rule of ejusdem generis, unless a contrary intent appears, where general terms are followed by specific terms in a statute, the general terms will be construed to embrace things of the same general kind or character as those specifically enumerated. 2A J. Sutherland, Statutory Construction (4th Ed. Sands) § 47.17; see also Eastern Connecticut Cable Television, Inc. v. Montville, 180 Conn. 409, 413, 429 A.2d 905 (1980); Easterbrook v. Hebrew Ladies Orphan Society, 85 Conn. 289, 296, 82 A. 561 (1912). In § 53a-100 (a) (1), the general term, "separate units," is followed by three examples: "separate apartments, offices or rented rooms." In State v. Thomas, supra, 205, we concluded that "[t]he store counter, and the area it encompasses, clearly does not fall within the 'separate unit' category of offices, rooms or like structures that may themselves be considered 'separate building[s]' under § 53a-100 (a) (1) . . . ." Our conclusion was compelled, therefore, by the lack of accord between a counter area and the concept of a "legally identifiable 'separate unit' " inherent in § 53a-100 (a) (1). Id., 206. By virtue of the independent living or working relations that occur therein and despite the fact that they are located in a single building, within its ordinary meaning, "separate apartments, offices [and] rented rooms" are treated as "legally identifiable 'separate unit[s]' " for purposes of our burglary statutes. In the present case, although the service area was sufficiently secured at the time of the defendant's entry, the temporary enclosure did not render the service area a separate working unit akin to the examples set forth in § 53a-100 (a) (1). Unlike an office building, where numerous independent working enterprises coexist, the Path mark grocery store houses a single working unit. The temporarily enclosed service area, analogous to a locked closet or a locked storage room, has no business purpose or occupancy distinct from that of the Path-mark store as a whole. See People v. O'Keefe, 80 App. Div. 2d 923, 437 N.Y.S.2d 385 (1981) (locked metal closet not "building" for purposes of burglary statute); People v. Williams, 125 Misc. 2d 9, 13, 478 N.Y.S.2d 554 (1984) (because locked maintenance room in three family house not "independent unit" having distinct business from other units, not a "separate unit" and, therefore, not a "building" under burglary statute). We are equally unpersuaded by the precedent that the state offers in support of its position. See Dixon v. State, 165 Ga. App. 133, 299 S.E.2d 608 (1983); State v. Sanchez, 105 N.M. 619, 735 P.2d 536, cert. denied, 105 N.M. 618, 735 P.2d 535 (1987); Evans v. State, 677 S.W.2d 814 (Tex. App. 1984). Although those cases upheld burglary convictions based upon entry into secured, but arguably interdependent areas of a building otherwise open to the public, the jurisdictions in which the convictions were procured prohibited, in addition to unlawful entry into a "building," unlawful entry into "portions" and "parts" of a building. See Dixon v. State, supra, 135 ("[bjurglary is committed when one, without authority, enters any building or room or part thereof ') (emphasis added); State v. Sanchez, supra, 621 (" '[a] person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied portion thereof' ") (emphasis added); Evans v. State, supra, 817 (" '[a] person commits an offense if without the effective consent of the owner, he: [1] enters a habitation, or a building [or any portion of a building] not then open to the public' "). (Emphasis added.) Each of these cases, therefore, is inapposite. As in State v. Thomas, supra, 205, under no stretch of the statutory language can a temporarily enclosed portion of a grocery store be deemed a "building" as that term is defined in § 53a-100 (a) (1). Consequently, because it is undisputed that the Pathmark grocery store, the only building involved, was open to the public at the time the defendant is alleged to have committed a larceny therein, the state failed to prove beyond a reasonable doubt one of the essential elements of burglary in the third degree, i.e., unlawful entry or remaining by the defendant in a building. We conclude, therefore, that the trial court should have granted the defendant's motion for a judgment of acquittal on the burglary charge. The judgment is reversed in part and the case is remanded to the Appellate Court with direction to remand it to the trial court with direction to vacate the judgment of conviction of burglary in the third degree and to grant the defendant's motion for a judgment of acquittal on that count of the substitute information. In this opinion the other justices concurred. General Statutes § 53a-103 provides in pertinent part: "(a) A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein." General Statutes § 53a-125 provides in pertinent part: "(a) A person is guilty of larceny in the fourth degree when he commits larceny as defined in section 53a-119 and the value of the property or service exceeds five hundred dollars." General Statutes § 53a-119 provides in pertinent part: "A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner." General Statutes § 53a-40 provides in pertinent part: "(c) A persistent larceny offender is a person who (1) stands convicted of larceny in the third degree in violation of the provisions of section 53a-124 in effect prior to October 1, 1982, or larceny in the fourth, fifth or sixth degree and (2) has been, at separate times prior to the commission of the present larceny, twice convicted of the crime of larceny." The trial court imposed two consecutive sentences of five years imprisonment, execution suspended after three and one-half years. Although ordinarily the maximum sentence authorized for a conviction of larceny in the fourth degree is one year imprisonment; see General Statutes § 53a-125, 53a-36; in this case, because the defendant was found to be a persistent larceny offender, the trial court was authorized to impose a sentence of one to five years imprisonment on that count. See General Statutes § 53a-40 (h), 53a-35a (b). It is undisputed that the state alleged that the defendant, with the intent to commit a crime therein, unlawfully entered the enclosed service area which it claims is a "separate unit" of the Pathmark store.

Borden, J. The plaintiff, the inland wetlands and watercourses agency of the city of Middletown, appeals from the judgment of the trial court denying its motion to set aside a stipulated judgment entered into between it and the defendant South Farms of Middletown, Inc. (defendant). We affirm. The defendant is the owner of the Talcott Ridge subdivision located in Middletown. In November, 1989, the plaintiff issued a cease and desist order to the defendant for certain alleged violations of the Inland Wetlands and Watercourses Act; General Statutes § 22a-36 through 22a-45; at the subdivision. Thereafter, the plaintiff brought this action against the defendant for, inter alia, an injunction restraining the defendant from violating the cease and desist order. In connection therewith, the plaintiff secured an ex parte temporary injunction from the trial court, Higgins, J. The defendant then moved to dissolve the temporary injunction. On December 4, 1989, the parties appeared before the trial court, Budney, J., in an attempt to settle their dispute. Both parties were aware that the state depart ment of environmental protection (DEP) had been investigating the defendant's subdivision and it was important to both that the DEP agree to any settlement. The parties had prepared a written stipulation that purported to memorialize their settlement and the DEP's agreement thereto. The stipulation recited, inter alia, that the plaintiff had sought an injunction to stop the further construction of roadways and other improvements on the defendant's property, that the defendant claimed that the injunction and cease and desist order were without merit, and that the DEP had investigated the project. The parties stipulated, inter alia, to the following provisions: that the case would be dismissed as against two of the defendants; see footnote 1, supra; because the remaining defendant South Farms of Middletown, Inc., was the real party in interest, and that the ex parte injunction would be dissolved. The defendant agreed to complete its construction in accordance with its original permit as modified by an attachment, "Exhibit A," that concerned a soil and erosion control plan. The dispute in this case revolves around paragraphs four and five of the stipulation. The typewritten portion at the conclusion of paragraph four provides: "The Court shall retain continuing jurisdiction over this matter until the Complaint as originally filed in this matter is finally disposed of." That language is followed by the following handwritten language: "Nothing herein shall be construed to release South Farms of Middletown, Inc. from the requirements of The Water Pollution Control Act ([General Statutes §] 22a-416)." Paragraph five provides in typewritten terms: "The State consents to such Permit and Plan as set forth in Exhibit A and agrees that this Court shall retain continuing jurisdiction over this matter as set forth above." The stipulation was signed by Attorney Michael F. Dowley on behalf of the defendant and by Attorney Timothy P. Lynch on behalf of the plaintiff. Although there was a typewritten entry for the consent of the DEP by its attorney, that entry was not signed. The court indicated that it had before it the stipulation signed by Dowley and Lynch, and that "[t]he agreement also has certain revisions in writing." The court also expressed its understanding that the DEP, through its attorneys, had agreed to the stipulation, although not in writing, and elicited from Dowley and Lynch their assurance that they had secured that agreement. Dowley represented to the court that he had spoken on the telephone to assistant attorney general Richard Webb, who represented the DEP, that Webb had reviewed a copy of the typewritten stipulation sent to him through telephonic facsimile (fax) technology, and that Webb had agreed to it with two additions, which Dowley had made. Dowley stated that one such addition was to paragraph four, namely, that the defendant was still subject to the Water Pollution Control Act, and that the other was to add certain language to Exhibit A. Dowley concluded: "That is my agreement between the City of Middletown and my client. The [DEP] has indicated that they could attempt to bring an abatement order should they deem it necessary, but that's the agreement between myself and the City of Middletown." After eliciting from Lynch that Dowley's representations were accurate and that "everyone agrees to the stipulation," the court rendered judgment incorporating the provisions of the stipulation. On April 2,1990, the plaintiff filed this motion to set aside the judgment on the ground of mutual mistake of fact. The plaintiff claimed that the parties mistakenly believed that the DEP had agreed to the stipulation, that it had not in fact so agreed, and that the plaintiff would not have entered into the stipulation in the absence of that consent. After an evidentiary hearing, the court, Budney, J., found that there was no mutual mistake of fact, and denied the plaintiff's motion. The plaintiff appealed to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023. The plaintiff claims that the trial court should have granted its motion because: (1) the court's finding that there was no mutual mistake of fact was clearly erroneous; and (2) in the alternative, if the stipulation is read as the defendant has subsequently claimed, namely, that the plaintiff has ceded wetlands enforcement powers to the jurisdiction of the Superior Court, the stipulation is contrary to public policy. We reject the plaintiff's first claim, and conclude that the second claim is not properly before us. A judgment rendered upon a stipulation of the parties is in the nature of a contract and may be opened by the court if the stipulation was entered into by mutual mistake. Kenworthy v. Kenworthy, 180 Conn. 129, 131, 429 A.2d 837 (1980); see also O'Leary v. Industrial Park Corporation, 211 Conn. 648, 652-53 n.2, 560 A.2d 968 (1989). A mutual mistake is one that is common to both parties and effects a result that neither intended. Lopinto v. Haines, 185 Conn. 527, 532, 441 A.2d 151 (1981). Whether there has been such mistake is a question of fact. See McWilliams v. American Fidelity Co., 140 Conn. 572, 579, 102 A.2d 345 (1954); see also Weld v. Melly, 16 Conn. App. 555, 557-58, 548 A.2d 14 (1988). A finding of fact is clearly erroneous when there is no evidence in the record to support it; Web Press Services Corporation v. New London Motors, Inc., 205 Conn. 479, 483, 533 A.2d 1211 (1987); 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.' " Doyle v. Kulesza, 197 Conn. 101, 105, 495 A.2d 1074 (1985), quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 92 L. Ed. 2d 746 (1948). Because it is the trial court's function to weigh the evidence and determine credibility, we give great deference to its findings. Rostain v. Rostain, 214 Conn. 713, 716, 573 A.2d 710 (1990). There was no dispute that both Dowley, representing the defendant, and Lynch, representing the plaintiff, believed that the DEP had agreed to the stipulation. That common belief was based on several telephone conversations on December 4, 1989, and accompanying fax transmissions among Dowley, Lynch, Webb and Marla Butts, a senior environmental analyst at the DEP who had been investigating the defendant's subdivision project. The plaintiff claimed in the trial court, however, that this common belief was mistaken because the DEP had not in fact agreed to the provision in paragraph five of the stipulation that the court would retain continuing jurisdiction over the matter. According to the plaintiff, that provision per mitted the inference that the DEP had ceded its administrative enforcement powers over the Water Pollution Control Act to the court, despite the handwritten language in paragraph four that "[n]o thing herein shall be construed to release [the defendant] from the requirements of" that act, and the DEP had not agreed to such a provision. Webb testified that he represented the DEP, and that on December 4,1989, he had a telephone conversation with Dowley in connection with a typewritten stipulation that had been faxed to Butts, who had brought it to his attention. He was aware that the parties were having settlement discussions. He further testified that he expressed to Dowley his concern with paragraph five of the stipulation, wherein "the State consented to [the] Court retaining jurisdiction" because "the DEP has its own enforcement statutes, and since it was not a party to this action, did not want to consent away, through this stipulated agreement, any enforcement . . . powers it might have" in the event the settlement did not resolve all problems to the DEP's satisfaction. He testified further that he told Dowley that he "wanted language that indicated quite clearly that, the DEP was able to enforce pursuant to the State Water Pollution Control Statute." Webb also testified that he did not receive a copy of the stipulation, as ultimately approved with the handwritten additions thereto, until December 7,1989, and that he then informed Dowley that he had not agreed to the stipulation as ultimately approved. Webb testified further that on December 4,1989, he had suggested an insertion to the stipulation to the effect that the DEP would retain its jurisdiction to enforce the act, but that the handwritten language in paragraph four was not sufficient for that purpose because of the language of paragraph five. He read paragraph five to have the possible meaning that the DEP would no longer have its administrative jurisdiction to enforce the act but would have to apply to the court to do so. In that connection, he testified that it was his understanding that, in a subsequent administrative proceeding, the defendant had raised the defense that the DEP was not authorized to enforce the act against it administratively because of the stipulation. Nonetheless, he testified, the DEP retained its administrative enforcement jurisdiction and had brought administrative proceedings against the defendant pursuant to that jurisdiction. Butts testified that she received a faxed copy of the proposed stipulation from Dowley on December 4, 1989, that she told Dowley that she wanted to ensure that the DEP's authority to enforce the act was not derogated by the stipulation, and that it was her understanding that she would see a final copy of the stipulation before it was approved by the court. She knew, however, that the parties were in hurried settlement negotiations. She further testified that when she received the final copy by fax several days later she called Dowley and informed him that it was not clear from paragraphs four and five that the stipulation had preserved the DEP's authority to enforce the act without going to court. She also testified that although she had authority to negotiate language of agreements to recommend to her superiors, she had no authority to enter into agreements on behalf of the DEP, and that such authority was reserved for the commissioner or her legal counsel. Based primarily on this testimony, the plaintiff argues that the finding of the court regarding a lack of mutual mistake was clearly erroneous. The plaintiff overlooks, however, the testimony of Dowley and Lynch. Dowley testified that while he and Lynch were negotiating a settlement he knew that the DEP had an interest in his client's project, and that he wanted to be sure that the DEP consented "to what we were consenting to." He testified further that he and Lynch faxed copies of the proposed stipulation to Butts and Webb, and that he had a telephone conversation with Webb, who was looking at the stipulation, wherein Webb told him: "I want you to add the following language." Dowley testified that in the course of that conversation "Marla Butts and [Webb] had the stipulation. They wanted to add—whatever penciled notations are on that stipulation, didn't come from my office. Those penciled notations came from the State of Connecticut." He testified further that after Butts made suggestions regarding the soil erosion and control plan, she told him that she wanted him to have Webb's approval for the "actual language of the document," that he was then switched to Webb, who told him "I want you to add the following language" regarding the Water Pollution Control Act, which Dowley added to the stipulation. Dowley reasserted the truth of his representation to the court on December 4,1989, namely, that the DEP had consented to the agreement. He testified that he "spoke . . . the truth that day, in Court," and that "as far as the State of Connecticut is [concerned], I'll swear on a hundred million Bibles, that they consented that day, and that indeed, that is their agreement." Dowley also testified that the defendant, in reliance on the agreement, spent approximately $180,000 in building a roadway. Moreover, a comparison of Webb's and Butts' testimony with that of Dowley indicates that, at least in general, their testimony corroborates his. Lynch's testimony also corroborated that of Dowley, in part. He testified that Butts, speaking for the DEP, agreed to the stipulation. On the basis of this record, we cannot say that there was no evidence to support the finding of the trial court that there was no mutual mistake regarding whether the DEP agreed to the stipulation as ultimately presented to the court. Nor can we say that on the entire record, which we have examined with care, we are left with the definite and firm conviction that the court made a mistake in finding as it did. This does not mean, however, that the arguable ambiguity in paragraphs four and five over whether the DEP has ceded its Water Pollution Control Act enforcement power to the court must or even may be resolved in the defendant's favor. Although there is some suggestion in the trial court file that the defendant has, in subsequent administrative proceedings, taken that position, in oral argument before this court the defendant acknowledged that paragraphs four and five, read together, do not mean that the DEP is barred from enforcing the Water Pollution Control Act administratively, without first going to court. The defendant further conceded to us that the DEP "could enforce the Water Pollution Control Act and certainly it has done so." These acknowledgments, moreover, are consistent with Dowley's representations to the trial court on December 4,1989, that the DEP had indicated that it could bring abatement proceedings under that act if it deemed them to be necessary. We take these acknowledgments as an explicit concession by the defendant that the DEP is not precluded from enforcing that act without first going to court. The defendant cannot have it both ways. It cannot make an explicit concession in this court in its attempt to persuade us of the merits of its position in this appeal, and at the same time disclaim that concession in related administrative proceedings. Since the only purported mutual mistake relied on by the plaintiff in this case arose because of the uncertainty over whether paragraph five ousted the DEP of its administrative enforcement powers pursuant to the Water Pollution Control Act, and since the defendant has conceded that it did not, the trial court's finding that there was no mutual mistake must stand. The plaintiff claims in the alternative, however, that the trial court's finding must fall because it is contrary to public policy for the plaintiff to have ceded its regulatory powers under the Inland Wetlands and Watercourses Act to the court. We decline to consider this claim because it was not presented to the trial court; O'Hara v. State, 218 Conn. 628, 639, 590 A.2d 948 (1991); and because it involves an inquiry into matters beyond those presented to the trial court on the plaintiff's motion to set aside the judgment. The trial court was presented only with the plaintiff's claim of mutual mistake. Neither the plaintiff's motion nor its memorandum of law in support thereof made any mention of this alternate claim. Although at one time during its final argument the plaintiff adverted to this claim, the defendant objected to its doing so, and the plaintiff did not pursue the issue further. Furthermore, the basis of the plaintiff's assertion is that the "defendant . . . has stated at every opportunity, including numerous motions still pending in Superior Court, that the [plaintiff] is without authority to issue a cease and desist [order] or revoke the permit of the defendant." The plaintiff argues that the stipulation is contrary to public policy "[i]f the Court were to accept defendant's claim that this Stipulation in fact says what the defendant claims it says . . . ." (Emphasis added.) Thus, this argument of the plaintiff would involve an initial inquiry into whether the plaintiff, by entering into the stipulation, ceded all future enforcement powers to the court. That question involves a determination of the meaning and scope of the stipulated judgment, which is a factual question of the intention of the parties. Jucker v. Jucker, 190 Conn. 674, 679, 461 A.2d 1384 (1983); Verissimo v. Verissimo, 3 Conn. App. 222, 225, 486 A.2d 1134 (1985). Since the trial court was not presented with this question, this record understandably lacks any factual predicate for such a determination. The judgment is affirmed. In this opinion the other justices concurred. The stipulated judgment also purported to dismiss the plaintiff's complaint as against the named defendant, Landmark Investment Group, Inc., and against another codefendant, Glenn Russo. Those parties have not participated in this appeal. It is not clear from the record whether the DEP had been investigating the subdivision for purposes of determining the defendant's compliance with the Inland Wetlands and Watercourses Act; General Statutes § 22a-36 through 22a-45; or the Water Pollution Control Act; General Statutes § 22a-416 through 22a-484; or both. There are also handwritten insertions in paragraph 7 and on Exhibit A that are not at issue in this case. Although Dowley referred only to "Attorney Webb," it is undisputed that he meant assistant attorney general Webb, who later testified in the hearing on the plaintiffs motion to set aside the judgment that is the subject of this appeal. Dowley also explained, in general terms, the purport of the other handwritten additions to the stipulation. See footnote 2, supra. The plaintiff does not claim that either Webb or Butts lacked authority to agree to the stipulation, presumably because Webb, as the commissioner's counsel, had such authority. Although, as between the plaintiff and the defendant, there was no mutual mistake regarding whether the DEP agreed to the stipulation, in the absence of the DEP as party to this action we express no opinion on the extent, if any, to which the DEP is bound by the stipulation and the judgment incorporating it.

Peters, C. J. The issues in this appeal arise out of a dispute concerning the sale of two integrated computer systems that failed to meet their purchaser's needs for accurate documentation. The plaintiff, Latham & Associates, Inc. (vendor), filed a complaint to recover the unpaid purchase price for computer hardware and software delivered to the defendant, William Raveis Real Estate, Inc. (purchaser). The purchaser, claiming misrepresentation and breach of warranty, denied its own liability and sought, in a counterclaim, to recover damages as well as the return of moneys paid to the vendor. The trial court, after a hearing, found the issues for the purchaser, both on the complaint and on the counterclaim, but limited the purchaser's recovery to $81,500, representing a return of its payments for software. The vendor filed an appeal in the Appellate Court, which we transferred to this court pursuant to Practice Book § 4023. We affirm the judgment of the trial court. The trial court found the following facts. The purchaser is a real estate company that sought computerized capacity to provide efficient interconnection between its own multiple offices and the various banks with which it dealt. The vendor, aware of the purchaser's needs and of the purchaser's reliance on the vendor's expertise to satisfy these needs, undertook to provide two computer systems that would meet these needs. To persuade the purchaser that it had the capacity to undertake these responsibilities, the vendor mis represented the extent of its expertise in creating functioning computer systems. The parties entered into two contracts for the delivery of computer systems. The first contract, dated October 15,1982, called for the vendor to deliver hardware and software for a so-called real estate system. The purchaser made all scheduled payments under this contract. The second contract, dated March 25,1984, called for the vendor to develop and install a second computer system, the so-called mortgage system. Because of dissatisfaction with the performance of the software tendered under both contracts, the purchaser did not fully pay license fees or software support charges for the mortgage system. The vendor's complaint sought to recover for the amounts unpaid on the mortgage system, while the purchaser's counterclaim sought to recover the payments it had made, and damages it had incurred, with respect to the software on both the real estate system and the mortgage system. The trial court found that, for both computer systems, despite its contractual representations to the contrary, the vendor was never able to provide software that reliably delivered the information sought by the purchaser. The trial court also found, however, that the purchaser had not presented a sufficient factual basis for its alleged right to recover certain elements of damages for the vendor's nonperformance. The trial court therefore rendered judgment against the vendor on its complaint and in favor of the purchaser on its counterclaim for return of the software contract price, in the amount of $61,750 for the real estate system and $19,750 for the mortgage system, for a total recovery of $81,500. The vendor's appeal from this judgment focuses on the merits of the judgment on the purchaser's counterclaim. The vendor does not contest the trial court's find ing of fact that the two computer systems that it furnished the purchaser did not fulfill the parties' expectations for reliable data retrieval. The vendor does not challenge the trial court's conclusion of law that article 2 of the Uniform Commercial Code; General Statutes § 42a-2-101 through 42a-2-725; governs the transactions between the parties, even though the mortgage system contemplated a licensing arrangement rather than an outright sale. The vendor has, however, raised thirteen other issues concerning various procedural and evidentiary rulings of the trial court. Most of these claims rest on factual assumptions that the trial court rejected. All of them suffer from the difficulty that appellate pursuit of so large a number of issues forecloses the opportunity for fully reasoned discussion of pivotal substantive concerns. A shotgun approach does a disservice both to this court and to the party on whose behalf it is presented. We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed. Practice Book § 4065; Gaynor v. Union Trust Co., 216 Conn. 458, 482, 582 A.2d 190 (1990); Liscio v. Liscio, 204 Conn. 502, 507, 528 A.2d 1143 (1987); see Isaac v. Mount Sinai Hospital, 210 Conn. 721, 732, 557 A.2d 116 (1989). I The most important issue before us, which impinges on both parts of the purchaser's counterclaim, is whether a purchaser may recover the moneys paid for a dysfunctional computer system, on a theory of breach of express warranty, without expert testimony to identify the cause for the computer system's generation of inaccurate data. The vendor maintains that the purchaser must present expert testimony in order to rule out the possibility of user error. We disagree. The need for expert testimony to establish a breach of warranty for computer systems is a question of first impression in this state and elsewhere. As a rule, expert testimony is required "when the question involved goes beyond the field of the ordinary knowledge and experience of judges or jurors." Bader v. United Orthodox Synagogue, 148 Conn. 449, 454, 172 A.2d 192 (1961); Aspiazu v. Orgera, 205 Conn. 623, 630-31, 535 A.2d 338 (1987); Toomey v. Danaher, 161 Conn. 204, 210, 286 A.2d 293 (1971); Jaffe v. Department of Health, 135 Conn. 339, 350, 64 A.2d 330 (1949); C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 7.16.5. We have not had the occasion to apply this principle in the context of computer dysfunction. In other jurisdictions, because expert testimony about the causes of a computer system's dysfunction was produced, the courts were not confronted with the sufficiency of the evidence claim that the vendor makes in this case. See, e.g., Burroughs Corporation v. Chesapeake Petroleum & Supply Co., 282 Md. 406, 408, 384 A.2d 734 (1978); In re Cadillac V8-6-4 Class Action, 93 N. J. 412, 427, 461 A.2d 736 (1983); Segall v. Ben's Truck Parts, Inc., 5 Wash. App. 482, 483, 488 P.2d 790 (1971). Even in Cricket Alley Corporation v. Data Terminal Systems, Inc., 240 Kan. 551, 665, 732 P.2d 719 (1987), on which the purchaser relies for its expansive language, an expert found fault with the equipment delivered by the provider of the computer system. On the present record, we are not persuaded that we should adopt a hard-and-fast requirement for expert evidence in every case of dissatisfaction with the output produced by computer systems. Three significant facts support the trial court's conclusion that expert testimony was not required in this case. First, the purchaser's burden of proof in this case was attenuated by virtue of the trial court's finding that the purchaser's right to return of the software purchase price was grounded in the purchaser's exercise of its right of rejection under article 2 of the Uniform Commercial Code. Unlike the situation of a buyer who has accepted goods despite their nonconformity, who must assume the burden "to establish any breach"; General Statutes § 42U-2-607; a rejecting buyer need only demonstrate that "the tender of delivery fail[s] in any respect to conform to the contract . . . ." General Statutes § 42a-2-601. The trial court found that the vendor had not sustained its burden of proving that malfunctioning of the computer systems was caused by personnel failures attributable to the purchaser. Second, despite the trial court's ruling that expert testimony was unnecessary, the record discloses that the purchaser introduced some expert testimony about deficiencies in certain aspects of the vendor's software programs. Third, at least with respect to the real estate computer system, the purchaser relied on representations by the vendor that included the promise of support services that inferentially encompassed some vendor responsibility for the work product of the purchaser's employees. In these circumstances, given the trial court's unchallenged finding that the computer software did not perform in accordance with the expectations of the parties, the court could reasonably conclude that the purchaser had produced sufficient evidence to sustain its recovery of the purchase price without expert testimony detailing the cause of the software failure. II The vendor has raised several other issues concerning the purchaser's recovery of the software purchase price on its counterclaim with respect to the real estate computer system. The vendor's appeal renews three defenses to this counterclaim, which the trial court rejected, alleging: (1) the running of the statute of limitations, General Statutes § 42a-2-725; (2) an accord and satisfaction arising out of the subsequent negotiation of the mortgage system contract; and (3) a waiver arising out of a written acceptance form signed by an employee of the purchaser. In light of the trial court's factual findings, the vendor's further pursuit of these claims does not warrant extensive discussion. To sustain its affirmative defense that the purchaser's counter claim was time barred, the vendor had to establish the purchaser's noncompliance with the requirements of § 42a-2-725. For this purpose, the vendor had the burden of proving the date on which "tender of delivery [was] made," because delivery is what starts the running of article 2's statute of limitations. The record shows that the vendor did not satisfy this burden. It asserted that the statute began to run on October 15,1982, but that was the date when the real estate system contract was negotiated. Delivery of the hardware required for the real estate system was not completed until 1983, and delivery of the software was arguably never completed. On this factual record, the vendor has not established its affirmative defense under § 42a-2-725. The vendor's affirmative defense of accord and satisfaction arises out of its claim that the mortgage system contract was intended to encompass and replace its obligations under the real estate system contract. The trial court made a factual finding to the contrary. Although the mortgage system contract contained a merger clause indicating that the written document was intended as a definitive integration of the agreement of the parties concerning the mortgage system; see General Statutes § 42a-2-202; the trial court was entitled to find that the parties did not intend the execution of the mortgage system contract to discharge the obligations previously assumed by the vendor in the real estate system contract. See TIE Communications, Inc. v. Kopp, 218 Conn. 281, 589 A.2d 329 (1991); Halloran v. Fischer, 126 Conn. 44, 46, 9 A.2d 290 (1939); 2 Restatement (Second), Contracts (1981) § 279. The trial court equally rejected, on factual grounds, the vendor's assertion that an acceptance form signed by an employee of the purchaser constituted a waiver of all outstanding contract claims relating to the real estate system contract. The court found that the employee had no authority to bind the purchaser in this regard, and that she had been misled in her signature by representations on behalf of the vendor that the document was a mere formality. Without a persuasive challenge to these underlying factual findings, this defense on the part of the vendor cannot be sustained. Ill The vendor's appeal raises a number of different claims with respect to the trial court's judgment permitting the purchaser to recover its software purchase price payments for the mortgage system. Procedurally, the vendor alleges that the purchaser failed to plead or prove its compliance with the requirements of General Statutes § 42a-2-602 for an effective rejection. Substantively, the vendor maintains that the purchaser's breach of warranty claims cannot be recon- died with various dauses in the mortgage system contract that purport to disclaim the vendor's liability and to impose time limitations on the purchaser's recovery. These claims, too, run afoul of the trial court's dispositive factual findings. The vendor's procedural argument focuses on the notification requirements that, under article 2, circumscribe a disappointed purchaser's rights to reject goods that are nonconforming. The vendor's contention that the purchaser was required to plead its compliance with the requirements of § 42a-2-602 cannot survive the trial court's finding that the vendor permitted evidence on the issue of notification of rejection to be introduced, without objection, during the trial. See Thompson & Peck, Inc. v. Harbor Marine Contracting Corporation, 203 Conn. 123, 132, 523 A.2d 1266 (1987); Damora v. Christ-Janer, 184 Conn. 109, 112, 441 A.2d 61 (1981). The vendor's alternate contention that the purchaser failed to prove its compliance cannot stand in light of the trial court's finding that, during the pendency of the vendor's efforts to cure the defects in the software, the purchaser reasonably delayed exercising its right to reject the vendor's tender. Cf. General Statutes § 42a-2-508. Until the possibility of cure had been exhausted, the purchaser did not have the opportunity to make the final inspection that is the prerequisite to an implied rejection under General Statutes § 42a-2-606 (1) (b). See Plateq Corporation v. Machlett Laboratories, Inc., 189 Conn. 433, 441-42, 456 A.2d 786 (1983). Finally, despite the execution of an acceptance form by an employee who had no authority to bind the purchaser in this respect, the trial court could and did find that the purchaser never in fact accepted the software in the manner contemplated by the applicable provisions of article 2. These findings impliedly encompass the further factual inference that the purchaser's ultimate rejection and the accompanying notification of the vendor were, in the particular circumstances of this case, as "seasonable" as § 42a-2-602 requires. See Contoura Business Products, Inc. v. TLD, Inc., 1 Conn. App. 690, 691-92, 474 A.2d 1265 (1984). The vendor's substantive argument invokes the terms of the mortgage system contract as grounds for the unenforceability of the warranty claims on which the purchaser relies. This argument, too, founders on the factual findings of the trial court. The trial court found that the vendor, by its representation that it would develop a software system that would suitably meet the purchaser's demonstrated needs, had given an express warranty as that term is defined in General Statutes § 42a-2-313. See Acme Pump Co. v. National Cash Register Co., 32 Conn. Sup. 69, 71-72, 337 A.2d 672 (1974). Such an express warranty may be actionable despite provisions in contractual disclaimers and limitation of liability clauses; General Statutes § 42a-2-316(1) and 42a-2-719 (2); if, as the trial court found, the restrictive clauses are factually determined to have been unreasonable or to have failed of their "essential purpose." See Conte v. Dwan Lincoln-Mercury, Inc., 172 Conn. 112, 123, 374 A.2d 144 (1976). The court's further finding of the vendor's misrepresentation about the extent of its expertise in the development of comparable computer systems negates the vendor's assertion that the mortgage system contract, as a complete and exclusive integration of the agreement, excluded parol evidence about express warranties. A misrepresentation undermines the intentional adoption of an integrated writing that is an essential prerequisite to invocation of the parol evidence rule. General Statutes § 42a-2-202; see TIE Communications, Inc. v. Kopp, supra; Jay Realty, Inc. v. Ahearn Development Corporation, 189 Conn. 52, 56, 453 A.2d 771 (1983). IV We have carefully examined the remaining issues raised by the vendor's appeal. These principally concern the provision of a transcript to the trial court and the manner in which the trial court calculated damages. Our examination of these contentions persuades us that they furnish no basis for reversal of the judgment of the trial court. The judgment is affirmed. In this opinion the other justices concurred. General Statutes § 42a-2-607 provides in relevant part: "effect of ACCEPTANCE; NOTICE OF BREACH; BURDEN OF ESTABLISHING BREACH AFTER ACCEPTANCE; NOTICE OF CLAIM OR LITIGATION TO PERSON ANSWERABLE over. (1) The buyer must pay at the contract rate for any goods accepted. . . . (4) The burden is on the buyer to establish any breach with respect to the goods accepted." "Under article 2, the rights and liabilities of the parties are determined, at least in part, by the extent to which the contract has been executed. The buyer's acceptance of goods, despite their alleged nonconformity, is a watershed." Stelco Industries, Inc. v. Cohen, 182 Conn. 561, 563, 438 A.2d 959 (1980). After acceptance, the buyer's further remedies by way of damages or recovery of the purchase price depend upon the buyer's proof that the goods are nonconforming. General Statutes § 42a-2-607 (3), 42a-2-608, and 42a-2-714; Superior Wire & Paper Products, Ltd. v. Talcott Tool & Machinery, Inc., 184 Conn. 10, 13-15, 441 A.2d 43 (1981). "[General Statutes] Sec. 42a-2-601. buyer's rights on improper delivery. Subject to the provisions of section 42a-2-612 on breach in instalment contracts and unless otherwise agreed under sections 42a-2-718 and 42a-2-719 on contractual limitations of remedy, if the goods or the tender of delivery fail in any respect to conform to the contract, the buyer may ,(a) reject the whole; or (b) accept the whole; or (c) accept any commercial unit or units and reject the rest." General Statutes § 42a-2-725 provides in relevant part: "statute of limitations in contracts for sale. (1) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it. "(2) A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered." Although the vendor takes issue with the trial court's finding that it had undertaken a continuing warranty obligation to the purchaser, we need not pursue that question. "[General Statutes] Sec. 42a-2-202. final written expression: parol OR extrinsic evidence. Terms with respect to which the confirmatory memoranda of the parties agree or which are otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented (a) by course of dealing or usage of trade as provided by section 42a-l-205 or by course of performance as provided by section 42a-2-208; and (b) by evidence of consistent additional terms unless the court finds the writing to have been intended also as a complete and exclusive statement of the terms of the agreement." Section 279 of the Second Restatement of Contracts (1981) provides: "substituted contract "(1) A substituted contract is a contract that is itself accepted by the obligee in satisfaction of the obligor's existing duty. "(2) The substituted contract discharges the original duty and breach of the substituted contract by the obligor does not give the obligee a right to enforce the original duty." Comment (a) to § 279 notes that the existence of a substituted contract depends upon the intention of the parties. General Statutes § 42a-2-602 provides in relevant part: "manner and effect OF rightful rejection. (1) Rejection of goods must be within a reasonable time after their delivery or tender. It is ineffective unless the buyer seasonably notifies the seller." "[General Statutes] Sec. 42a-2-508. cure by seller of improper tender OR delivery; replacement. (1) Where any tender or delivery by the seller is rejected because nonconforming and the time for performance has not yet expired, the seller may seasonably notify the buyer of his intention to cure and may then within the contract time make a conforming delivery. "(2) Where the buyer rejects a nonconforming tender which the seller had reasonable grounds to believe would be acceptable with or without money allowance the seller may if he seasonably notifies the buyer have a further reasonable time to substitute a conforming tender." General Statutes § 42a-2-606 provides in relevant part: "WHAT CONSTITUTES acceptance of goods. (1) Acceptance of goods occurs when the buyer (a) after a reasonable opportunity to inspect the goods signifies to the seller that the goods are conforming or that he will take or retain them in spite of their nonconformity; or (b) fails to make an effective rejection as provided by subsection (1) of section 42a-2-602, but such acceptance does not occur until the buyer has had a reasonable opportunity to inspect them; or (c) does any act inconsistent with the seller's ownership; but if such act is wrongful as against the seller it is an acceptance only if ratified by him." "[General Statutes] Sec. 42a-2-313. express WARRANTIES BY AFFIRMATION, promise, description, sample. (1) Express warranties by the seller are created as follows: (a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise, (b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description, (c) Any sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model. "(2) It is not necessary to the creation of an express warranty that the seller use formal words such as 'warranty' or 'guarantee' or that he have a specific intention to make a warranty, but an affirmation merely of the value of the goods or a statement purporting to be merely the seller's opinion or commendation of the goods does not create a warranty." General Statutes § 42a-2-316 provides in relevant part: "exclusion OE modification OF WARRANTIES. (1) Words or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit warranty shall be construed wherever reasonable as consistent with each other; but subject to the provisions of this article on parol or extrinsic evidence negation or limitation is inoperative to the extent that such construction is unreasonable." General Statutes § 42a-2-719 provides in relevant part: "contractual MODIFICATION OR LIMITATION OF REMEDY. . . . "(2) Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this title."

Barber, J. The defendant was charged with the following violations of the General Statutes (Rev. to 1968): by indictment with the crime of kidnapping resulting in death in violation of General Statutes § 53-27, and by information with the crimes of conspiracy to commit kidnapping in violation of § 53-27, conspiracy to commit murder in violation of § 54-197, and with the crime of binding with intent to commit crime in violation of § 53-19. A jury found the defendant guilty of conspiracy to commit the crime of murder and not guilty of the other crimes. The defendant has appealed from the judgment rendered, assigning as error a number of rulings by the trial court. A brief statement of some of the background facts, not disputed by the parties, will put the issues in proper perspective. The charges against the defendant, Lonnie McLueas, all arose out of events culminating in the death of Alex Raekley. The defendant and others had established a branch of the Black Panther Party in New Haven. The conspiracy to murder Raekley was alleged to have developed during the period of May 18 through May 21, 1969, and was alleged to have included several members and affiliates of the Black Panther Party in New Haven. Those charged included the national party chairman, Bobby Seale, who was indicted for participation in the murder and was alleged to have given the order that Raekley be killed. The state contended that Raekley was tortured and killed because he was suspected of being a police informer. A number of those charged with being involved in the murder entered guilty pleas. Two pleaded guilty to second degree murder, two pleaded guilty to conspiracy to commit murder, three pleaded guilty to aggravated assault, and one pleaded guilty to conspiracy to commit kidnapping. All charges against Bobby Seale were dismissed after a lengthy trial ended in a hung jury. The defendant was tried alone after being denied a joint trial with several other defendants. It is undisputed that Rackley was "disciplined" by torture and then was bound and driven to a swamp in Middlefield. During the trial, the defendant described his participation in the events and admitted that after Rackley had been taken to a wooded area and had been shot once, he, McLucas, was given the gun and fired a second shot. The defendant's defense for his actions was predicated on the claim of an overwhelming fear of, and coercion by, another alleged participant, G-eorge Sams, whom the defendant sought to portray as a madman. The state contended that Rackley was tortured and killed not because of pressure from one individual, Sams, but because he was suspected of being a police informer within the Black Panther Party. The court made a finding on each of the rulings involved in this appeal, which finding includes such facts as were considered incidental to each of the respective rulings. I Prior to the trial, the defendant moved to suppress as evidence a tape recorder, tape recordings and a .45-caliber pistol which had been seized from an apartment at 365 Orchard Street in New Haven. The motion was denied without prejudice to the defendant's right to renew it at the time of trial. There was subsequently a full hearing on the motion at the time of trial. The defendant claimed that he had standing to challenge the search on the basis of his membership on the central staff of the Black Panther Party. The court concluded that the defendant did not have standing to challenge the search and seizure in that he was not on the premises at the time of the seizure and had no possessory interest in either the premises or the articles seized. "[T]here is no standing to contest a search and seizure where . . . the defendants: (a) were not on the premises at the time of the contested search and seizure; (h) alleged no proprietary or possessory interest in the premises; and (c) were not charged with an offense that includes, as an essential element of the offense charged, possession of the seized evidence at the time of the contested search and seizure." Brown v. United States, 411 U.S. 223, 229, 93 S. Ct. 1565, 36 L. Ed. 2d 208. A person may have a possessory interest in the premises searched even though he has no title to the premises. Mancusi v. DeForte, 392 U.S. 364, 367-68, 88 S. Ct. 2120, 20 L. Ed. 2d 1154; Jones v. United States, 362 U.S. 257, 265, 80 S. Ct. 725, 4 L. Ed. 2d 697; State v. Darwin, 161 Conn. 413, 419, 288 A.2d 422. The defendant had the burden of establishing the facts necessary to demonstrate a basis for standing to attack the search and seizure. See Combs v. United States, 408 U.S. 224, 227, 92 S. Ct. 2284, 33 L. Ed. 2d 308. It has been made clear that capacity to claim the protection of the fourth amendment depends not upon a property right in the premises searched but upon whether the area was one in which there was a reasonable expectation of freedom from governmental intrusion. Mancusi v. DeForte, supra, 368; Katz v. United States, 389 U.S. 347, 352, 88 S. Ct. 507, 19 L. Ed. 2d 576. It is evident that the defendant was not charged with an offense that had as an essential element the possession of seized evidence at the time of the search and seizure. See Brown v. United States, supra. In addition, it appears from the finding that the defendant was not at the apartment when the police entered and the seizure occurred, and the articles neither belonged to the defendant nor were they in his custody at the time they were seized. In this case, the critical issue on the defendant's motion to suppress as evidence the property seized is whether, in light of all the circumstances, the defendant had a possessory interest in the searched premises at 365 Orchard Street such that those premises constituted an area in which the defendant had a "reasonable expectation of freedom from governmental intrusion." Mancusi v. DeForte, supra. In Mancusi, the defendant union official was found to have standing to object to the seizure of certain union records. The papers were taken from an office which was used for union purposes and which the defendant shared with several other union officials. It was stipulated that he spent a considerable amount of time in that office, and that he had custody of the papers at the moment of their seizure. He was present in the office during the seizure, and protested the taking of the papers. In marked contrast, it appears from the finding in the present ease that Warren Kimbro was the person who resided in, and paid the rent for, the apartment at 365 Orchard Street; that the defendant did not live in this apartment, had no proprietary interest in it, and had only stayed overnight there once; that the defendant had no possessory interest in the articles seized; that the Black Panther group in New Haven held meetings at Warren Kimbro's apartment; and that the apartment was mainly a residence and only sometimes used for office pur poses by the Black Panther group. In further contrast to the situation in Mancusi, in the present case there was no stipulation or finding that the defendant had custody of the items at the moment of seizure. The defendant's reliance on State v. Darwin, 161 Conn. 413, 288 A.2d 422, is also misplaced. In that case, we held (p. 420) that a husband had standing to challenge a search and seizure involving his wife's automobile because "[t]o hold . . . that a vehicle titularly owned by a wife is not also owned by the husband for purposes of search and seizure would seem to be an improper stretching of technicalities." Such a situation is clearly distinguishable from the remote connection which the defendant had with the premises in question here. The conclusions of the trial court set forth in the finding must stand if they are legally and logically consistent with the subordinate facts found unless they involve the application of some erroneous rule of law material to the case. State v. Bowen, 167 Conn. 526, 531, 356 A.2d 162; Consiglio v. Warden, 160 Conn. 151, 157, 276 A.2d 773. We have examined the subordinate facts in the finding relating to this issue and are of the opinion both that they support the conclusions reached and that those conclusions involve no erroneous rule of law. n The defendant moved to suppress statements made by him to officers in Salt Lake City, Utah, before voluntarily returning to this state, and a statement made by him to Sergeant Vincent J. DeRosa in New Haven on June 11,1969. There was a full hearing on the motion to suppress statements at the time of trial. A detailed recital of all the facts contained in the voluminous finding would unduly lengthen this opinion, but we do include the fol lowing summary of the facts found by the court: On June 6, 1969, the Salt Lake City office of the Federal Bureau of Investigation (hereinafter referred to as the F.B.I.) had received a call from the F.B.L's New York office that two individuals for whom the New York office had fugitive warrants would possibly stop at the Western Union office in Salt Lake City. The bureau had a fugitive warrant for the defendant who arrived at the Western Union office on June 6, 1969. The defendant was taken into custody and advised of his rights. At the F.B.I. office in Salt Lake City, he was charged with unlawful flight to avoid prosecution and was informed of the Connecticut warrant charging him with conspiracy, murder, kidnapping and other crimes. The defendant signed a formal, written statement of his rights, which statement included a waiver of his right to an attorney. It was explained to the defendant that he did not have to sign the form. Thereafter, Lynn Gr. Twede, an agent for the F.B.I., interviewed the defendant briefly before he was taken to be presented before a United States commissioner. The defendant indicated to Twede that he (the defendant) knew who had killed Alex Rackley and that he could produce witnesses, but he wanted assurances that he would not have to testify. Sergeant DeRosa first saw the defendant in Salt Lake City on June 8,1969. At that time the defendant signed a form containing the "Miranda" warnings and indicated that he understood them. At the time, and in the presence of Sergeants DeRosa and Nicholas Pastore of the New Haven police department, and two agents of the F.B.I., the defendant further indicated that he would be willing to talk about the investigation of the case. It does not appear what conversation subsequently took place on June 8, 1969. On June 9, 1969, the defendant was at the Salt Lake County courthouse with a lawyer. Sergeant DeRosa had not known on the previous day that an attorney had been appointed for the defendant. After conferring with his attorney, the defendant waived extradition and left Salt Lake City by airplane on June 10, 1969, with Sergeants DeRosa and Pastore. It does not appear what statements relative to the case under investigation were made by the defendant during the course of the plane trip. Sergeant DeRosa did show the defendant photographs of some of the people involved in the investigation and disclosed parts of statements which had been taken from others and which might tend to incriminate him. The defendant was arraigned in the Superior Court in New Haven on June 11, 1969. The clerk of the court informed the defendant of his rights but did not tell the defendant that if he could not afford an attorney one would be appointed for him. After the defendant was arraigned on June 11, 1969, he was given two warnings of his constitutional rights. The second warning forms a part of a statement that was reduced to typewritten form. The defendant waived extradition, entered this state voluntarily, and was put to plea in this case. No question was raised as to the defendant's arrest in Salt Lake City prior to voluntarily returning to this jurisdiction, and none was ever made to the trial court. The defendant, however, issued subpoenas to the P.B.I., seeking information on the legality of his arrest, when the motion for suppression was being heard. Those subpoenas were quashed on motion of the assistant Hnited States attorney. The court concluded that the defendant in all stages of the proceeding on June 11, 1969, had his constitutional rights explained to him and that he voluntarily, knowingly and intelligently waived those rights. The court further concluded that the tape of the defendant's interview on June 11, 1969, and the taped statement of such interview were voluntarily given and should he admitted as evidence, and that the motion to quash the subpoenas, which was made by the United States, should be granted on the basis of 5 U.S.C. § 552 (b) (7). In attacking the admission of statements made to officers in Salt Lake City, the defendant contends that such statements made by him while in custody should have been suppressed because an attorney had been appointed to represent him by a United States commissioner. The difficulties with the defendant's argument are that he does not particularize what statements are involved and he misplaces his reliance on the case of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694. The Miranda case holds that no effective waiver of right to counsel during interrogation can be recognized unless specifically made after the person interrogated has been apprised of his rights by being given the "Miranda" warnings. Despite the defendant's assertion, it does not hold that "[o]nce a criminal defendant is represented by counsel, he cannot waive any of his so-called 'Miranda' rights without his attorney's aid and advice." See United States v. Hall, 523 F.2d 665, 668 n.4 (2d Cir.); United States v. Diggs, 497 F.2d 391, 393 (2d Cir.); Moore v. Wolff, 495 F.2d 35, 36-37 (8th Cir.); United States v. Cobbs, 481 F.2d 196, 199 (3d Cir.); United States v. Barone, 467 F.2d 247, 249 (2d Cir.). As stated in Moore v. Wolff, supra, 37: "If an accused can voluntarily, knowingly, and intelligently waive his right to counsel before one has been appointed, there seems no compelling reason to hold that he may not voluntarily, knowingly, and intelligently waive his right to have counsel present at an interrogation after counsel has been appointed. Of course, the Government will have a heavy burden to show that the waiver was knowingly and intelligently made, Miranda v. Arizona, . . . [384 U.S. 436, 475, 86 S. Ct. 1602,16 L. Ed. 2d 694] but we perceive no compelling reason to adopt the per se rule advocated by petitioner." In similar circumstances, the court held that "[s]ince there was no coercion or deception and . . . [the defendant] waived his right to counsel, the [F.B.I.] agents were not required, before taking his voluntary statement, to seek out the attorney who had been appointed." United States v. Hall, supra. This is not a case where the defendant waived his right to counsel without full knowledge of the crimes of which he was suspected. See United States v. Diggs, supra, 393 n.3. There is no showing that the defendant ever requested that an attorney be present or indicated a desire to remain silent. See State v. Moscone, 171 Conn. 500, 370 A.2d 1030. In the present ease the facts establish beyond any doubt that the state's burden was discharged and that the defendant's waiver was voluntarily, knowingly and intelligently made. In attacking the admission of the statement made to Sergeant DeRosa in New Haven on June 11,1969, the defendant contends that it was tainted by a possible illegal arrest of the defendant by the P.B.I. in Salt Lake City. The defendant suspected that his arrest might have been aided by the use of illegal electronic surveillance. The defendant argues that in the case of an illegal arrest the statement given by him on June 11, 1969, was the "fruit of the poisonous tree" and should have been suppressed. See Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S. Ct. 407, 9 L. Ed. 2d 441. In attempting to pursue his suspicion that electronic eavesdropping had been involved in his arrest, the defendant issued two subpoenas directed to several F.B.I. agents, seeking to compel them to appear and bring certain electronic surveillance documents. The first subpoena sought information as to whether the F.B.I. had received information regarding the defendant's presence in Salt Lake City through electronic surveillance or wiretapping of the Jersey City Black Panther office or from an informant or from disclosure by Western Union. The second subpoena had to do with wiretapping devices, if any, of Warren Kimbro's apartment at 365 Orchard Street, New Haven, although the defendant did not claim that there were any wiretapping devices there. The court granted the motion to quash of the assistant United States attorney on the basis of 5 U.S.C. § 552 (b) (7). At the time of trial, 5 U.S.C. § 552 established the guidelines for public access to information held by a federal agency, while 5 U.S.C. § 552 (b) (7) exempted from the general disclosure requirements "investigatory files compiled for law enforcement purposes except to the extent available by law to a party other than an agency." In his brief, the defendant apparently seeks to come within the exception of 5 U.S.C. § 552 (b) (7) for disclosure of matter "available by law to a party" by his discussion of 18 U.S.C. §2518 (8) (d), which provides for notice of electronic surveillance to "persons named in the [wiretap] order or the application, and such other parties to intercepted communications as the judge may determine." The defendant did not actually claim that there were any wiretapping devices at Warren Kimbro's apartment, and the rest of his allegations are equally speculative. Federal wiretapping legislation at the time of trial provided that an "aggrieved person" could move to suppress "the contents of any intercepted wire or oral communication, or evidence derived therefrom" on the ground of its unlawful interception; 18 U.S.C. § 2518 (10) (a); and defined such an. aggrieved person as one "who was a party to any intercepted wire or oral communication or a person against whom the interception was directed." 18 U.S.C. § 2510 (11). In assessing claims of suspected illegal electronic surveillance, courts have looked for a relatively precise showing of the facts which reasonably have led a person to believe he has been subjected to undisclosed electronic surveillance, and have disapproved of speculative claims which lack sufficient precision and substantiation. See, e.g., United States v. See, 505 F.2d 845, 856 (5th Cir.), affidavits vague and conclusory to the point of being a fishing expedition; United States v. Alter, 482 F.2d 1016, 1026 (9th Cir.); Cohen v. United States, 378 F.2d 751, 761 (9th Cir.); People v. Cruz, 34 N.Y.2d 362, 314 N.E.2d 39. The defendant's contention that he would be a party entitled by law to access to the F.B.I.'s investigative material and wiretap data because 18 U.S.C. § 2518 (8) (d) "mandates eventual wiretap notice" appears rather tenuous. The defendant also argues that he was denied his sixth amendment right to have compulsory process for obtaining witnesses in his favor by the fact that F.B.I. agent Twede testified for the state while the defendant was prevented, by the quashing of his subpoenas, from compelling certain other F.B.I. agents to appear and bring electronic surveillance documents. The defendant relies entirely on Washington v. Texas, 388 U.S. 14, 87 S. Ct. 1920, 18 L. Ed. 2d 1019, for his contention that the sixth amendment mandated that he have access to the alleged wiretap information under these circumstances. In Washington v. Texas, supra, the United States Supreme Court (p. 22) found that the federal constitution was violated by two Texas statutes which allowed a participant in a crime to testify for the prosecution but not for a defendant coparticipant and thereby established "arbitrary rules that prevent whole categories of defense witnesses from testifying on the basis of a priori categories that presume them unworthy of belief." Such a situation is certainly distinguishable from the facts of the present case. The defendant was nowhere deliberately prevented from presenting his version of the facts. There was no statute or rule making the testimony of F.B.I. agents available to, and competent evidence for, the state but not for the defendant. The quashing of the defendant's subpoenas had to do with the conjectural nature of his claims rather than with any discriminatory and arbitrary statutory scheme. The issue of whether the court erred in quashing the subpoenas would not be dispositive of whether the defendant's statement to Sergeant DeRosa was admissible. This is because even were we to assume the illegality of the defendant's arrest in Salt Lake City this would not end our inquiry under the "poisonous tree" doctrine of Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S. Ct. 407, 9 L. Ed. 2d 441. In his brief the defendant has relied heavily on the wiretap question and his inability to probe the legality of his original arrest. Under the facts of this case, however, the central and dispositive issue is, rather, the voluntariness of the defendant's statement and whether such voluntariness is sufficient to sever any causal relationship between any prior illegality and the statement. "We need not hold that all evidence is 'fruit of the poisonous tree' simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is 'whether, granting establishment of the primary illegality, the evidence . . . has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.' [Citation omitted.]" Wong Sun v. United States, supra. The question of whether a statement is sufficiently voluntary under Wong Sim to be deemed independent of any prior illegality must be resolved upon the facts of each case. No single fact is dispositive, and the burden of showing the admissibility of the statement rests upon the state. Brown v. Illinois, 422 U.S. 590, 603-604, 95 S. Ct. 2254, 45 L. Ed. 2d 416. The Miranda warnings are an important factor in determining the voluntariness of the statement, and other relevant factors are the temporal proximity of the arrest and the statement, the presence of intervening circumstances and, particularly, the purpose and flagrancy of the official misconduct. Ibid. In the present case, the claimed illegality is that an illegal search (a wiretap) occurred in which information was obtained as to the location of the defendant for whom the authorities already had a valid arrest warrant. Days and not two hours as in Brown v. Illinois, supra, separated the initial arrest on June 6, 1969, Sergeant DeRosa's first meeting with the defendant on June 8,1969, and the defendant's statement to DeRosa on June 11, 1969, which was the object of the motion to suppress. The defendant had repeatedly been given his Miranda warnings and had indicated that he understood them and still wished to waive his rights. It appears from the finding that it was the defendant who sought to initiate a bargaining process by indicating that he had information regarding Rackley's murder but wanted assurances that he would not have to testify. See United States v. Mullens, 536 F.2d 997, 1000 (2d Cir.). The defendant was fully aware of the charges facing him, and there is no intimation that the defendant did not fully understand the consequences of his actions. Ibid. As the United States Supreme Court has recently emphasized, in finding that a defendant's consent to a police search of his automobile was voluntary, "[t]here is no indication in this record that [the defendant] was a newcomer to the law, mentally deficient, or unable in the face of custodial arrest to exercise a free choice." United States v. Watson, 423 U.S. 411, 424-25, 96 S. Ct. 820, 46 L. Ed. 2d 598. There is no indication in the finding that any promises were made or that there were "more subtle forms of coercion that might flaw his judgment." Id., 424. The fact of custody alone "has never been enough in itself to demonstrate a coerced confession or consent to search." Ibid. Although United States v. Watson, supra, involved a legal arrest and, therefore, a lesser burden of proof on the state because there was no taint of illegality to purge; see State v. Traub, 151 Conn. 246, 249, 196 A.2d 755, cert. denied, 377 U.S. 960, 84 S. Ct. 1637, 12 L. Ed. 2d 503; the same factors are relevant in determining the voluntariness of the defendant's statement in the present case. Above all, there was no suggestion whatsoever in this case that "[t]he illegality . . . had a quality of purposefulness. The impropriety of the arrest was obvious . The manner in which [the] arrest was effected gives the appearance of having been calculated to cause surprise, fright, and confusion." Brown v. Illinois, supra, 605. Nor was any police overreaching or overt act or threat of force proved or claimed. See United States v. Watson, supra, 424; United States v. Mullens, supra. In short, there was ample evidence on which the court could base its conclusion that the defendant's statement was completely voluntary, "an act of free will unaffected by the initial illegality." Brown v. Illinois, supra; see State v. Traub, supra. The court therefore did not err in admitting the defendant's statement to Sergeant DeRosa. Ill Prior to the trial the state moved to sever the trial of the defendant from that of others alleged to be involved in the death of Alex Racldey. Over the defendant's opposition the court granted the state's motion. Subsequently, the defendant moved that he be tried after the other defendants or, in the alternative, together with the others, and, finally, that immunity be granted to certain witnesses. Those motions were denied. The defendant assigns as error the action of the trial court on those motions. The defendant argues (1) that he had a right to be tried together with the others, (2) that he could waive the right to be tried separately, and (3) that the court should have granted his request for immunity of the witnesses facing charges arising out of the same subject matter. Ordinarily it is the defendant who moves for a separate trial and when he does so the determination of the motion is within the discretion of the court. State v. Holup, 167 Conn. 240, 244, 355 A.2d 119; State v. Klein, 97 Conn. 321, 324, 116 A. 596. "[Clases arise where the defenses of the different parties are antagonistic, or where evidence will be introduced against one which will not be admissible against others. Where from the nature of the case it appears that a joint trial will probably be prejudicial to the rights of one or more of the parties, a separate trial should be granted when properly requested." State v. Brauneis, 84 Conn. 222, 226, 79 A. 70. A motion for a separate trial can be determined only on the basis of whether at the time "it appears that a joint trial will probably result in substantial injustice." State v. Castelli, 92 Conn. 58, 63, 101 A. 476; State v. Holup, supra, 245. A similar test should be applied when the prosecutor makes the motion for a separate trial. See ABA, Standards Relating to Joinder and Severance (1968) §2.3 (b). At the time of trial our rules of practice permitted joinder of defendants, subject to the power of the court to order separate trials. Practice Book § 532. The state based its motion on (1) the fact that it had a statement from the defendant and that the statement could not be used in a trial involving several defendants together because of the rule enunciated in Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476; (2) the defendant had been informed against individually by indictment and substituted information; and (3) the defendant was not on the Orchard Street premises at the time that the arrests and searches incident to said arrests were made there and that, therefore, he would have a different status from the others insofar as standing regarding a motion to suppress was concerned. The Bruton case holds that the introduction into evidence in a joint trial of a confession implicating the defendant and made by a codefendant who does not testify is improper and cannot be cured by jury instructions. See State v. Hunt, 154 Conn. 517, 227 A.2d 69, vacated and remanded, 392 U.S. 304, 88 S. Ct. 2063, 20 L. Ed. 2d 1110, for further consideration in the light of Bruton v. United States, supra, and Roberts v. Russell, 392 U.S. 293, 88 S. Ct. 1921, 20 L. Ed. 2d 1100. The defendant argues that he did testify at the trial and at all times intended to do so. The short answer to this argument is that at the time the motion was heard there was no sure way of knowing whether the defendant would take the witness stand and expose himself to cross-examination. Under the circumstances the court did not abuse its discretion in granting a separate trial on the ground that the defendant had made a confession incriminating other codefendants. State v. Klein, supra, 324; see State v. Castelli, supra. It is unnecessary to consider the further grounds for a separate trial except to note that they had a tendency to bolster the state's first ground for a separate trial. The defendant asserts that the right to he tried separately from one's codefendants is a right which belongs to an accused and can be waived. Of course there is no constitutional or absolute right to a separate trial. 5 Wharton, Criminal Law and Procedure (Anderson) §1943, 1944; see annot., 59 A.L.R.2d 841. Assuming the ability of an accused in a proper case to waive a right to a separate trial, that right does not necessarily carry with it the right to insist upon the opposite of that right, in this ease a joint trial. See Singer v. United States, 380 U.S. 24, 34-35, 85 S. Ct. 783, 13 L. Ed. 2d 630. The defendant further contends that once the court had granted the motion for a separate trial, it should have granted the defendant's requests for immunity of witnesses facing charges arising out of the same subject matter. We have recently considered the issue of immunity and have held that there is no authority for a court in this state to grant immunity to an accused's witnesses, and General Statutes § 54-47a does not apply. State v. Simms, 170 Conn. 206, 210-11, 365 A.2d 821. As in Simms, the defendant in this case has failed to cite any case that supports his claim. We find no merit to the defendant's claim. IV The defendant next claims that the court erred in excluding the testimony of three witnesses regarding the character, mental stability, prior violent and erratic behavior, and reputation for truthfulness of George Sams. Sams was an accomplice in the Alex Rackley murder who testified as a state's witness against the defendant at trial after having pleaded guilty to second degree murder prior to trial. The defendant claims alternatively that the evidence had relevance either on the question of Sams' credibility or on the defense of his own state of mind based on the alleged duress caused by Sams. The testimony proffered by the defendant's witnesses concerned how others perceived Sams, with no attempt to show that the defendant personally was aware of Sams' alleged reputation and prior acts of violence at the time the defendant himself was participating in the murder conspiracy culminating in the death of Racldey. Thus, such testimony would have been irrelevant to the issue of the defendant's own alleged fear of Sams. The defendant testified at trial that he only knew "a little" about Sams, which was that Sams had been expelled from the Black Panther Party because of a stabbing incident. The defense was in fact allowed to present testimony regarding Sams' erratic behavior, his reputation for mental instability, his violence and his reputation for veracity. In addition, a psychiatrist appointed to determine Sams' competency to testify was used as a defense witness on the question of Sams' mental stability and propensity for violence during the events leading up to Rackley's murder. The court did not err in excluding the testimony of the other witnesses concerning their knowledge of Sams' reputation for mental instability and violent behavior and his previous acts of violence. The trial court has broad discretion in determining the relevancy of evidence. State v. Mullings, 166 Conn. 268, 279, 348 A.2d 645; State v. Lombardo, 163 Conn. 241, 243, 304 A.2d 36; Johnson v. Newell, 160 Conn. 269, 277, 278 A.2d 776. There was no abuse of this discretion on the facts presented here. It was error for the court to refuse to permit the three witnesses to testify to Sams' reputation for veracity. See Creer v. Active Auto Exchange, Inc., 99 Conn. 266, 278, 121 A. 888; Holden & Daly, Connecticut Evidence §125 b (3); McCormick, Evidence (2d Ed.) §44. The court realized its error and attempted to cure it by admitting the testimony of a fourth witness as to Sams' reputation for truthfulness in the community, and the witness testified that Sams had no reputation for truthfulness and had a reputation for being a "crazy liar." Sams himself testified that he was sometimes called "Crazy George" or "Madman George." "In order to constitute reversible error . . . the rulings must have been both wrong and harmful." State v. Tropiano, 158 Conn. 412, 427, 262 A.2d 147, cert. denied, 398 U.S. 949, 90 S. Ct. 1866, 26 L. Ed. 2d 288. Under the circumstances, the error in excluding the testimony of the other three witnesses was harmless. V Prior to trial the defendant moved to dismiss the indictment on the ground that the grand jury was unconstitutionally selected. Subsequently the defendant challenged the jury array and moved to dismiss the jury panel on the ground that it was unconstitutionally and unlawfully selected. Both motions were denied. The defendant, conceding in his brief that recent decisions of this court are controlling on both motions and will result in affirmance of the trial court's rulings, does not further brief those motions. See State v. Brown, 169 Conn. 692, 696, 364 A.2d 186 (jury array); State v. Hart, 169 Conn. 428, 433, 363 A.2d 80 (jury array); State v. Townsend, 167 Conn. 539, 545, 356 A.2d 125 (jury array); State v. Cobbs, 164 Conn. 402, 406-15, 324 A.2d 234 (grand jury), cert. denied, 414 U.S. 861, 94 S. Ct. 77, 38 L. Ed. 2d 112. We agree that those recent cases are sufficient authority to support the action of the court denying the defendant's motions challenging the selection of the grand jury and the jury array. VI Finally the defendant assigns error in the denial of his motion to dismiss on the ground that the state's attorneys are appointed by the judges of the Superior Court and that such relationship results in a violation of the constitutional doctrine of separation of powers as well as in a denial of due process of law. In his brief, the defendant states that he does not brief this assignment of error in view of the court's holding in State v. Moynahan, 164 Conn. 560, 567, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S. Ct. 291, 38 L. Ed. 2d 219. There is no merit to the defendant's claim relating to the denial of his motion to dismiss because of the method of appointing state's attorneys. State v. Moynahan, supra. There is no error. In this opinion the other judges concurred. See State v. DeMartin, 171 Conn. 524, 534, 370 A.2d 1038, which contains a detailed history and discussion of present federal and state statutes relating to electronic surveillance. This assumption, however, appears remote in light of the recent decision in United States v. Donovan, 429 U.S. 413, 97 S. Ct. 658, 50 L. Ed. 2d 652. Our new rules of criminal procedure (effective October 1, 1976) provide that each defendant shall be charged in a separate indictment or information; Practice Book $2036; and that upon order two or more indictments or informations against different defendants may be tried together. Practice Book $ 2240.

Loiselle, J. The plaintiff began this proceeding in the Court of Common Pleas by service of process upon the defendant commission on claims. The nature of the proceeding is the subject of disagreement between the parties. The plaintiff claims that it is an appeal under the Uniform Administrative Procedure Act from a decision of the commission on claims. The defendant views it as an independent action, and claims that it is barred by the doctrine of sovereign immunity. Connecticut has long recognized the common-law principle of the state's immunity from suit on a claim for liability without its consent. It has expressly provided by constitutional provision and statutory enactment for the adjudication of claims against the state with its permission. Fidelity Bank v. State, 166 Conn. 251, 253, 348 A.2d 633; Conn. Const., art. XI, § 4; General Statutes, c. 53, § 4-141—4-165. According to the complaint, in 1972 the plaintiff filed with the commission a claim against the state arising from an alleged breach of contract by the University of Connecticut. The claim filed sought permission for the plaintiff to bring suit against the state in a court of law. Permission was denied. The plaintiff claimed that the commission did not decide the factual and legal question submitted to it and that it had violated statutory requirements by failing to make findings of fact, adopt rules of procedure and take action by a majority of its members. The commission filed a plea in abatement stating that it was a state agency, and that the complaint was defective in failing to allege that the action had been authorized by the commission on claims in accordance with § 4-160 of the General Statutes. (Under this section the state waives its immunity to suits authorized by the commission.) The plea was sustained by the trial court and, on motion by the plaintiff, judgment was rendered for the defendant. The plaintiff appealed to this court. When the act dealing with claims against the state (hereinafter the Claims Act) was enacted in 1959, a portion of the act read: "No other order, act or proceeding of the commission shall be questioned or examined in any manner by any court or in any judicial proceeding." 1959 Public Acts, No. 685, §22 (b). The language was strengthened by 1961 Public Acts, No. 476, § 9 (b), so that it read: "The action of the commission in approving or rejecting payment of any claim or part thereof shall be final and conclusive on all questions of law and fact and shall not be subject to review by any other officer of the state or by any court by appeal, mandamus or otherwise." General Statutes § 4-164. In 1972, the Uniform Administrative Procedure Act, hereinafter the UAPA, took effect. 1971 Public Acts, No. 854. It included a provision for judicial review of contested cases decided by agencies; § 4-183; and stated that it applied to "all agencies and agency proceedings not expressly exempted." § 4-185. Certain matters were specifically exempted, but the Claims Act was not mentioned. There was no express provision for repeal of other laws until two years later, when technical amendments were passed. 1973 Public Acts, No. 73-620. These amendments included an express repeal of all inconsistent provisions of the General Statutes (save those pro viding for confidentiality of records); §4-189; and express exemptions from the definition of "agency," and hence from the application of the act, for the governor, lieutenant governor and attorney general. § 4-166. Addressing the House before passage of the bill, Representative David H. Neiditz, the proponent of the bill, explained that "it specifies which agencies are not covered. . . . [A] 11 other agencies are included within the Act." 16 H.R. Proc., pt. 13, 1973 Sess., p. 6437. The language of General Statutes §4-189 that "[a]ny provisions . . . which are inconsistent with the provisions of this chapter [§§ 4-166—4-189] are repealed" gives no more force than the doctrine of repeal by implication. Shanley v. Jankura, 144 Conn. 694, 702, 137 A.2d 536; Woodmont Assn. v. Milford, 85 Conn. 517, 520, 84 A. 307. "The doctrine that a later statute repeals by implication all provisions of former ones which are inconsistent with it, rests on the ground that the last expression of the legislative will ought to control." New York, N.H. & H. R. Co. v. Bridgeport Traction Co., 65 Conn. 410, 427, 32 A. 953. Repeal by implication is not favored. Knights of Columbus Council v. Mulcahy, 154 Conn. 583, 591, 227 A.2d 413; Costa v. Reed, 113 Conn. 377, 385, 155 A. 417. Derangement of sovereign immunity, which is rooted in tradition, is not to be inferred from a statute aimed purely at uniformity of procedure among state agencies, especially where the inveterate usage forbids the implication. See General Motors Acceptance Corporation v. United States, 286 U.S. 49, 61-62, 52 S. Ct. 468, 76 L. Ed. 971. "It is a basic principle of statutory construction that a statute dealing with a narrow, precise, and specific subject is not submerged by a later enacted statute covering a more generalized spectrum." Radzanower v. Touche Ross & Co., 426 U.S. 148, 153, 96 S. Ct. 1989, 48 L. Ed. 2d 540. Implicit repeal must not diminish sovereign immunity save hy express terms or necessary implication. State v. Kilburn, 81 Conn. 9, 11, 69 A. 1028. If the statutes appear to he repugnant, hut both can be construed together, both are given effect. Cicala v. Administrator, 161 Conn. 362, 365, 288 A.2d 66; Sloane v. Waterbury, 150 Conn. 24, 29, 183 A.2d 839; 73 Am. Jur. 2d, Statutes, § 400. The language of the "no review" provision of the Claims Act is too clear and specific to have been implicitly repealed by the UAPA. That language, however, broad as it is, does not explicitly state that the commission was thereby given an unreviewable right to violate its own enabling legislation. There is a strong presumption that legislative bodies do not intend to prohibit all judicial review of agency decisions. Dunlop v. Bachowski, 421 U.S. 560, 567, 95 S. Ct. 1851, 44 L. Ed. 2d 377; Abbott Laboratories v. Gardner, 387 U.S. 136,140, 87 S. Ct. 1507, 18 L. Ed. 2d 681. Even "unreviewable" decisions of administrative bodies may be reviewed to determine whether the body has performed its statutory duty, has acted in excess of its delegated powers, or contrary to a specific legislative prohibition. Railway Clerks v. Employees Assn., 380 U.S. 650, 661, 85 S. Ct. 1192, 14 L. Ed. 2d 133; Leedom v. Kyne, 358 U.S. 184, 79 S. Ct. 180, 3 L. Ed. 2d 210. It is preferable to restrict the scope of review rather than to bar it altogether. See Dunlop v. Bachowski, supra. The Uniform Administrative Procedure Act was in no way aimed at diminishing sovereign immunity or altering substantive law. Its main objective was uniform procedure. Bearing this in mind, the two statutory schemes can be construed together so that the provisions of the UAPA apply to the claims commission, insofar as they permit appeals to a court from a decision of the commission (1) which is in violation of constitutional or statutory provisions; (2) which is in excess of the statutory authority of the agency; or (3) which is made upon unlawful procedure. Thus the plaintiff's appeal alleging procedural violations by the commission could be brought to the Court of Common Pleas. The court erred in sustaining the plea in abatement. There is error, the judgment is vacated, and the ease remanded with direction to overrule the plea in abatement and proceed according to law. In this opinion the other judges concurred. 1975 Public Acts, No. 75-605, amended chapter 53 of the General Statutes, substituting "claims commissioner" for "commission" throughout. This suit was brought against the commission.

The defendant's petition for certification for appeal from the Appellate Court, 24 Conn. App. 316, is denied.

Callahan, J. The defendant, Eric K. Steiger, was charged in an amended information with two counts of murder in violation of General Statutes § 53a-54a, one count of capital felony in violation of General Statutes § 53a-54b (8), one count of conspiracy to commit murder in violation of General Statutes § 53a-48 and 53a-54a, and one count of conspiracy to commit capital felony in violation of § 53a-48 and 53a-54b (8). Dur ing the course of his trial before a three judge panel, the defendant introduced evidence in support of his affirmative defenses of lack of capacity due to mental disease or defect; see General Statutes § 53a-13; and extreme emotional disturbance. See General Statutes § 53a-54a (a). The defendant also asserted that he did not have the specific intent to cause the deaths of the victims because he suffered from a mental disease or defect that rendered him incapable of forming that intent. See General Statutes § 53a-54a (b). The three judge panel convicted the defendant on all counts. In the penalty phase of the proceedings, the panel unanimously made a special finding of aggravating factors and a majority of the panel issued a special finding of mitigating factors. The defendant received a sentence of imprisonment for the remainder of his life without the possibility of release for the capital felony conviction and an identical sentence for conspiracy to commit capital felony, with the latter sentence running concurrently to the former. No sentences were imposed for the other three convictions. The defendant appealed to this court pursuant to General Statutes § 51-199 (b) (3). On appeal, the defendant claims that his constitutional privilege against self-incrimination and his right to due process of law were violated when the trial court admitted into evidence a videotape recording of a psychiatric examination of the defendant conducted pursuant to Practice Book § 760. The defendant also appears to claim that his sixth amendment right to counsel was implicated by the admission of the videotapes. Finally, the defendant contends that the trial court improperly concluded that he failed to prove his affirmative defenses by a preponderance of the evidence and that the state proved beyond a reasonable doubt that he intended to cause the deaths of the victims. We affirm the judgment of the trial court. The three judge panel could reasonably have found the following facts. At approximately 9 p.m. on July 11, 1987, the defendant and his longtime friend, Andrew Patterson, drove to meet a group of young people who were talking and drinking beer while gathered at a culde-sac at the end of Kingfisher Lane in a new housing development in Suffield. There they met Patterson's brother, Bryan Patterson, and his friend, Richard Bazzano. At approximately 10 p.m., a pickup truck pulled up to the group and two men, Daniel Seymour and William Price, exited from the truck with metal pipes in their hands. They informed the group that there were now families living in the area and told them that they would have to leave. As people began to disperse, the defendant approached the two men and asked why the group was being harassed. At that time, one of the men told the defendant that he could take his head off with one swing of the pipe he was carrying. During the altercation that followed, the defendant was poked on the nose with a pipe, after which he mumbled, "I'm coming back." After returning to his car, the defendant became very agitated. He began banging his head against the steering wheel and shouting that he was going to go back and kill the two men. At this point, Bryan Patterson, who had left the gathering before the arrival of Price and Seymour, returned to the cul-de-sac and learned of the confrontation. When the defendant drove away from the area with Andrew Patterson and Bazzano, Bryan Patterson and several others followed the defendant to his mother's home in Suffield where the defendant was living. During the ride, Andrew Patterson told the defendant that this was "the offensive" and that the defendant had to take the initiative. When Bazzano asked what "the offensive" was, the defendant said, "it's to kill people." Upon arriving at his home, the defendant told the girls in the group to leave and told the others that he was "going back with a gun" and that "those guys are history." After the others left, the Patterson brothers and Bazzano followed the defendant to the garage attic where he kept his weapons. There the defendant put on a camouflage outfit, a black ski mask, and an Irish Republican Army pin. He then instructed Bazzano and Andrew Patterson to begin loading ammunition into certain weapons, including an M-l carbine and a Browning nine millimeter pistol. The defendant also told Bryan Patterson to keep his mother occupied so that she would not call the police. Meanwhile, the defendant, Andrew Patterson and Bazzano loaded approximately 700 rounds of ammunition into various weapons and magazines. The defendant told Andrew Patterson that the plan was to drop him off at Kingfisher Lane and he would meet the others later at a local school. The defendant also gave a .44 magnum handgun to Andrew Patterson as if it were a final gift and said that he had wanted to kill himself the prior week anyhow. After spending approximately forty minutes loading the weapons, the group left the attic. When they did, the defendant was armed with the M-l carbine, the nine millimeter pistol, both of which were loaded, and a ten inch knife. He also wore a combat harness loaded with full magazines of ammunition. As the four men gathered outside the house, one of them offered the defendant the use of a police scanner, which he accepted. The defendant also ingested some diet pills at that time. In accordance with the defendant's instructions, Bryan Patterson and Bazzano then lifted the defendant into the hatchback area of the defendant's automobile and lowered the hatch without locking it. Andrew Patterson drove the defendant's car while Bazzano rode in the passenger seat and Bryan Patterson followed in his own car. At one point, the defendant told Andrew Patterson to slow down because he did not want to get pulled over for speeding. Upon arriving at Kingfisher Lane at approximately 11 p.m., the defendant directed Bryan Patterson to pull his vehicle into the driveway of the Seymour home to see if the pickup truck was there. After Bryan Patterson did so, Seymour and Price came out of the house and began hitting Bryan's car with metal pipes. As Bryan drove away from the Seymour home, Andrew Patterson shouted, "Go, Eric, go." At that point, the defendant rolled out of the back of the hatchback in military fashion. Bazzano and Andrew Patterson then drove away. As Seymour and Price advanced toward the defendant, Seymour said, "You think you're a tough guy with a gun," and the defendant responded, "Yes." The defendant fired a warning shot into the air but Seymour and Price kept coming toward him carrying the metal pipes. The defendant then shot one of the victims, who fell, and he then turned and shot the other. After the second victim fell, the defendant reloaded the nine millimeter pistol and fired a number of shots into Price while he lay on the ground. Kathleen Seymour, the mother of one of the victims, and Diane Seymour, Price's fiancee, were watching from the front porch area. As they screamed, the defendant yelled back, "You get your fuckin' ass out here and I'll do the same thing to you." The defendant then ran off into the woods. The two victims, Seymour and Price, were pronounced dead at the scene at 11:32 p.m., both having suffered multiple gunshot wounds to the chest and abdomen. After leaving the scene, the defendant ran through woods and fields and reached his home at approximately 12:45 a.m. on July 12, 1987. Upon arriving home, he told his mother that terrorists had been after him with pipes and that he had shot them. His mother described him as "wild looking" and "shaking" at this point. After his mother suggested calling his father or the police, the defendant told her that he would shoot his father if he came. Thereafter, the defendant and his mother walked to a nearby golf course and sat down. While there, he told her that he was on a mission and had to kill himself because that was part of "the offensive." His mother told him that he was sick and that he should go to her sister's house in the Bronx. The defendant instead said that he had to talk to Andrew Patterson and departed on foot. He was unable to talk to Andrew Patterson, however, because Andrew and Bazzano had left Connecticut for Vermont shortly after the shooting. The defendant, nonetheless, did go to the Patterson home and when Bryan Patterson arrived there at approximately 2:15 a.m. on July 12,1987, the defendant came from behind the Pattersons' garage. The defendant told Bryan that he had killed the two men and asked what he should do. Bryan suggested to the defendant that he should turn himself in to the police. The defendant rejected Bryan's advice. Then, after giving Bryan his web ammunition belt and telling him to throw it into the Connecticut River, the defendant hugged Bryan and returned to his home. Subsequently, as his mother had advised, the defendant drove to his aunt's apartment in the Bronx, where he arrived at approximately 11 a.m. on July 12,1987. The defendant called his father from his aunt's apartment and threatened to kill himself, but his father persuaded him to return to Connecticut and surrender to the police. He returned and was arrested that same afternoon. Subsequently he gave a voluntary statement to the police describing the events related to the shooting. I On December 9, 1987, the defendant filed a notice of defense of mental disease or defect pursuant to Practice Book § 758 and 759. On January 22, 1988, the state filed a motion for a psychiatric examination pursuant to Practice Book § 760. Howard Zonana, a forensic psychiatrist who testified as an expert witness for the state, conducted this examination on June 23, 25 and 30, 1988. At the time of the examination, the defendant was taking vistaril, an antianxiety medication, and lithium, which is primarily used to treat affective disorders by minimizing mood swings. Zonana made videotape recordings of the examination, which ran approximately seven and one-half hours. The state offered the videotapes during rebuttal as an aid to Zonana's testimony and as evidence of the basis for his opinion. Because both Zonana and Peter Zeman, a forensic psychiatrist who testified for the defendant, indicated that they utilized the tapes in reaching their conclusions, the state also argued that the trier of fact could use the videotapes to evaluate those conclusions. The three judge panel admitted the videotapes as a full exhibit over the objection of the defendant and viewed them in their entirety. The defendant did not testify at his trial. The defendant raises three constitutional claims concerning the use of the videotapes. He contends that their admission into evidence violated his privilege against self-incrimination and his right to due process of law guaranteed by the fifth and fourteenth amendments to the United States constitution and article first, § 8 of the Connecticut constitution, as amended by article seventeen of the amendments to the Connecticut constitution. He also appears to argue that his sixth amendment right to counsel was violated by the admission of the tapes. Before we consider the defendant's constitutional claims, however, we must address his argument that a consent form concerning the videotaping, which the defendant executed at the request of Zonana, gave the defendant the prerogative to withdraw his consent to the use of the videotapes at his trial. A Before commencing his first interview with the defendant, Zonana handed him a printed consent form related to the videotaping procedure that was about to take place. Zonana testified that the purpose of the consent form was to document that the defendant was aware that the interview was being recorded, to reiterate the oral notice that the videotapes might be played in court, and to obtain the defendant's permission to use the videotapes in the classroom for teaching purposes. He also testified that he would have videotaped the examination even if the defendant had said that he did not want the interview recorded. The defendant completed the form and signed it at Zonana's request. During the trial, the defendant gave written notice to Zonana that he was withdrawing his authorization to allow the use of the videotapes at his trial. The defendant claims that the terms of the consent form gave him that right. The state, on the other hand, argues that the provisions set forth in the form only gave the defendant the right to withdraw his consent to the use of the videotape for teaching purposes and did not permit him to bar the use of the tapes during his trial. The defendant relies on that portion of the consent form stating that'T understand that I may withdraw this authorization at any time by furnishing written notice thereof to the Law & Psychiatry Unit . . . ." He argues that this provision gave him the right to deny the state the ability to use the videotapes during trial. The defendant's interpretation of this provision is not reasonable, however, when the consent form is read as a whole. The form also provides that "I understand that part or all of these recordings may be played for officers of the court or played during courtroom proceedings" and "I also give permission for these recordings to be played by the staff at the Law & Psychiatry Unit for medical/legal professionals engaged in research/training." (Emphasis added.) The state contends that the proper interpretation of the consent form is that the authorization sought was to use the tapes for teaching purposes and the defendant therefore retained only the right to withdraw his permission to use the tapes for that purpose. Considering the differences in the terminology used in the consent form in the provisions concerning the use of the tapes in the courtroom and for teaching purposes, we agree with the state's interpretation. We also conclude that, in the absence of any express right granted to the defendant under the consent form, the state was not required to seek his permission to use the tapes at trial. B The defendant next claims that the admission into evidence of the videotapes of the psychiatric examination compelled him to testify against himself because the tapes depicted his demeanor, manner of speaking, facial expressions and body language during the examination as well as his verbal responses to Zonana's questions. The state argues that the use of the videotapes as a basis for Zonana's opinion did not violate the defendant's constitutional guarantee against self-incrimination. We agree. Practice Book § 760 provides that "the judicial authority may . . . order the defendant to submit to a psychiatric examination" and that "[n]o statement made by the defendant in the course of any examina tion . . . shall be admitted in evidence against the defendant on the issue of guilt in any criminal proceeding." "The constitutionality of a compulsory psychiatric examination depends upon whether the defendant has placed his mental status in issue. The fifth amendment to the United States constitution and article first, § 8, of the Connecticut constitution ordinarily protect 'an accused against compulsory submission to psychiatric examination.' State v. Lovelace, 191 Conn. 545, 550, 469 A.2d 391 (1983), cert. denied, 465 U.S. 1107, 104 S. Ct. 1613, 80 L. Ed. 2d 142 (1984), citing Estelle v. Smith, 451 U.S. 454, 468, 101 S. Ct. 1866, 68 L. Ed. 2d 359 (1981). A criminal defendant waives this privilege, however, when he places his mental status in issue. '[T]he defendant may decide whether to raise the issue of his mental state but if he chooses to do so he exposes his mental processes to reasonable examination by the state.' State v. Lovelace, supra, 551-52." State v. Fair, 197 Conn. 106,109, 496 A.2d 461 (1985), cert. denied, 475 U.S. 1096, 106 S. Ct. 1494, 89 L. Ed. 2d 895 (1986); State v. Manfredi, 213 Conn. 500, 513, 569 A.2d 506, cert. denied, U.S. , 111 S. Ct. 62, 112 L. Ed. 2d 37 (1990). The issue raised by the defendant's claim of self-incrimination is not whether the defendant can be compelled to submit to a psychiatric examination. It involves instead the extent to which the fifth amendment protects a criminal defendant against the admission of evidence concerning the results of a psychiatric examination conducted pursuant to Practice Book § 760. "[I]f a defendant requests [a psychiatric] evaluation or presents psychiatric evidence, then, at the very least, the prosecution may rebut this presentation with evidence, from the reports of the examination that the defendant requested. The defendant would have no Fifth Amendment privilege against the introduction of this psychiatric testimony by the prosecution." Buchanan v. Kentucky, 483 U.S. 402, 422-23, 107 S. Ct. 2906, 97 L. Ed. 2d 336, reh. denied, 483 U.S. 1044, 108 S. Ct. 19, 97 L. Ed. 2d 807 (1987); Powell v. Texas, 492 U.S. 680, 684, 109 S. Ct. 3146, 106 L. Ed. 2d 551 (1989) (per curiam). In Buchanan, the court held that the defendant's privilege against self-incrimination was not violated when excerpts from a report containing a psychiatrist's general observations concerning the defendant's mental status were read to the jury. Buchanan v. Kentucky, supra, 421-24. The court stated that "with [the defendant] not taking the stand, the Commonwealth could not respond to this defense unless it presented other psychological evidence." Id., 423. In State v. Manfredi, supra, 513, we stated that "[a] defendant effectively places his mental status in issue for fifth amendment purposes by filing notice of intent to rely on a defense of insanity or extreme emotional disturbance." "Once a defendant has waived the privilege [against self-incrimination by placing his mental status in issue], the state may require him to submit to a psychiatric examination, and the results of such an examination may be introduced at trial for the purpose of rebutting the defendant's mental status defenses." Id. In arguing that his privilege against self-incrimination was violated, the defendant does not rely on the fact that the videotapes contain statements he made during the examination. Rather, he claims that the admis sion of the videotapes violated his fifth amendment right because the videotapes memorialized not only his verbal responses to Zonana's questions but also depicted his demeanor while answering those questions. The issue, therefore, is whether the exhibition at trial of the videotapes is within the scope of the fifth amendment waiver made by the defendant when he placed his mental status in issue. Before addressing that question, however, we must determine whether the defendant's demeanor during the examination is a testimonial act to which the privilege against self-incrimination applies or whether, as the state contends, it constitutes "real or physical evidence" beyond the scope of that privilege. See, e.g., United States v. Dionisio, 410 U.S. 1, 5-7, 93 S. Ct. 764, 35 L. Ed. 2d 67 (1973) (voice exemplar unprotected); Schmerber v. California, 384 U.S. 757, 760-65, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966) (blood sample unprotected). "[T]he Fifth Amendment is not violated where the evidence given by a defendant is neither related to some communicative act nor used for the testimonial content of what was said." Estelle v. Smith, supra, 463. By implication, evidence given by a defendant that is related to a communicative act or used for its testimonial content is subject to the limitations of that amendment. A demand made upon an accused is testimonial in nature if an " 'attempt is made to secure a communication-written, oral or otherwise—upon which reliance is to be placed as involving [the accused's] consciousness of the facts and the operations of his mind in expressing it . . . .' " (Emphasis added.) Pennsylvania v. Muniz, 496 U.S. , 110 S. Ct. 2638, 2646-47, 110 L. Ed. 2d 528 (1990). Zonana testified that his diagnosis of the defendant was made on the basis of the content of the statements made to him by the defendant during the psychiatric examination and the defendant's demeanor while making those statements. In light of this testimony, it is clear that Zonana used the defendant's demeanor in evaluating the operation of the defendant's mind. We conclude, therefore, that in this instance the defendant's demeanor was testimonial. See Schneider v. Lynaugh, 835 F.2d 570, 573-77 (5th Cir.), cert. denied, 488 U.S. 831, 109 S. Ct. 87, 102 L. Ed. 2d 63 (1988) (psychiatrist's testimony included description of the defendant's demeanor during examination). The defendant concedes that Zonana could have testified concerning his statements made during the course of the psychiatric examination and about observations of his demeanor during the examination without violating the fifth amendment because, by placing his mental state in issue, he had waived his privilege to that extent. We see no logical reason why the defendant's waiver of his fifth amendment rights would permit the state to introduce Zonana's testimony concerning the defendant's verbal responses and demeanor manifested during the psychiatric examination, yet not permit the state to introduce into evidence videotapes of that same examination. Because the results of a psychiatric examination conducted pursuant to Practice Book § 760 can be introduced at trial through the examiner to rebut a mental status defense raised by a defendant; State v. Manfredi, supra; see Buchanan v. Kentucky, supra; we do not find persuasive the defendant's claim that the introduction of the videotapes violated his privilege against self-incrimination. The tapes did nothing more than depict what Zonana could have testified to himself. Cf. State v. Wampler, 30 Or. App. 931, 569 P.2d 46,49 (1977), cert. denied, 436 U.S. 960, 98 S. Ct. 3078, 57 L. Ed. 2d 1126 (1978) (denying the defendant's claim that the admission of videotapes of a psychiatric examination violated his rights under the fifth amendment when the examination was conducted and videotaped at his request and at trial he admitted committing the offense charged). C The defendant also contends that the state's use of the videotapes violated his right to a fair trial under the due process clause of the fourteenth amendment. In support of this claim the defendant asserts that: (1) he was entitled to the presence of counsel during the psychiatric examination if the tapes of the examination were to be admitted at his trial; (2) in its role as factfinder the three judge panel did not possess the skill, training or experience to evaluate the videotapes properly as a basis for Zonana's opinion because the videotapes were made approximately one year after the shootings while the defendant was in a controlled environment and under the influence of medication; (3) Zonana was competent to testify concerning the basis for his opinion without the use of the videotapes; (4) the videotapes were not relevant because Zonana's testimony did not rebut the defendant's evidence concerning his mental state; and (5) the videotapes were used as independent evidence on the issue of the defendant's mental status. The state contends that the admissibility of the videotapes was an evidentiary rather than a constitutional issue, and that the three judge panel did not abuse its discretion in admitting the videotapes. We agree. The defendant's claim that his right to a fair trial under the due process clause gave him the right to have counsel present during the psychiatric examination is without merit. The defendant is unable to cite any case law supporting his claim that an accused who has placed his mental state in issue and who has been compelled to undergo a psychiatric examination has a right to the presence of counsel under the due process clause of the fourteenth amendment. We therefore reject this claim as without authority. Indeed, as is discussed more fully below, the authority concerning whether a defendant has a right to counsel at a psychiatric examination under the sixth amendment is to the contrary. See Powell v. Texas, supra, 683-85; Buchanan v. Kentucky, supra, 424-25. The defendant contends that before we conclude that the videotapes were admissible, we must examine State v. Johnson, 14 Conn. App. 586, 588-94, 543 A.2d 740 (1988), in which the Appellate Court held that neither the sixth amendment to the federal constitution nor article first, § 8 of the Connecticut constitution provides a criminal defendant with the right to counsel at psychiatric examinations conducted pursuant to Practice Book § 760. The Appellate Court concluded that the right to counsel was not implicated because a defendant was not required during a psychiatric examination to make any decisions requiring "distinctively legal advice" and because the examining psychiatrist was not equivalent to a professional adversary representing the state. Id., 590-94. Here, the defendant argues, that is not the case. We have examined State v. Johnson, supra, and conclude that its analysis of a defendant's right to counsel during a psychiatric examination also applies to cases such as this where the state introduces videotapes of the psychiatric examination into evidence. The defendant argues against such a conclusion by alleging that: (1) he needed the assistance of counsel in completing the consent form; (2) Zonana had no established procedures governing the videotaping, did not tape the entire examination and was not visible on the videotape; and (3) Zonana assumed the role of a prosecutor when he questioned the defendant during the examination. As noted previously, we conclude that the consent form sought only the defendant's authorization to use the videotapes for teaching purposes. That decision did not require that the defendant receive distinctively legal advice, and therefore cannot support the defendant's sixth amendment claim. See United States v. Ash, 413 U.S. 300, 313, 93 S. Ct. 2568, 37 L. Ed. 2d 619 (1973). With respect to the defendant's concerns about the lack of formalized procedures for videotaping, we note that Zonana testified that since he began videotaping in 1980 he has recorded every psychiatric examination related to a determination of criminal responsibility. The defendant's desire for more formalized procedures, while possibly relevant to the three judge panel's evidentiary ruling on admissibility, hardly gives rise to a constitutional claim. Finally, in State v. Johnson, supra, 591-93, the Appellate Court thoroughly explained why a psychiatrist conducting an examination pursuant to Practice Book § 760 is not analogous to a prosecutor. When a criminal defendant places his mental state in issue, the relevant concern as to his sixth amendment right to counsel is whether he had an opportunity before the examination to consult with counsel about the nature and scope of the examination. Powell v. Texas, supra, 683-85; Buchanan v. Kentucky, supra, 424-25. The effectiveness of the consultation depends on the attorney's knowledge of the uses to which the results of the examination can be put. Buchanan v. Kentucky, supra. Because the defendant filed his notice of defense of mental disease or defect approximately seven months before the psychiatric examination, we can safely assume that the defendant's experienced and highly competent counsel knew that the results of the state's psychiatric examination could be used in rebuttal and informed the defendant of the potential nature and scope of the state's examination. See id. We therefore conclude that the defendant had no right under the sixth amendment to the presence of counsel at the examination itself. The defendant next argues that the three judge panel lacked the expertise to evaluate the videotapes as the basis for Zonana's opinion concerning the defendant's mental status on July 11,1987, the date of the crimes, because the examination occurred nearly one year later when the defendant was in a controlled setting and was taking medication. In support of this argument, the defendant relies on several decisions upholding refusals to admit into evidence tape recordings or videotapes of psychiatric examinations of criminal defendants where the recordings were offered by the defendant to show the basis for an expert's opinion. Eaton v. State, 394 A.2d 217, 219-20 (Del. 1978) (tape recording); State v. Garcia, 233 Kan. 589, 597-601, 664 P.2d 1343 (1983) (videotape of examination conducted two months after commission of crime); State v. White, 60 Wash. 2d 551, 568-69, 374 P.2d 942 (1962), cert. denied, 375 U.S. 883, 84 S. Ct. 154, 11 L. Ed. 2d 113 (1963) (tape recording of defendant while under the influence of a truth serum). Although these cases provide some support for the proposition that laypersons may find it difficult to evaluate videotape recordings of psychiatric examinations properly, they do not support the defendant's contention that the admission of the videotapes was necessarily a due process violation. The issue in each of the cases cited was evidentiary in nature, namely, whether the trial court had abused its discretion in refusing to admit the recording. In none of those cases did the defendant claim that his due process rights were violated by the exclusion of the recording. "As in all cases involving what is or is not due process, so in this case, no hard and fast rule can be laid down. The pattern of due process is picked out in the facts and circumstances of each case." Brock v. North Carolina, 344 U.S. 424, 427-28, 73 S. Ct. 349, 97 L. Ed. 456 (1953); State v. Lovelace, supra, 552. While we do not hold that the admission of a videotape recording of a psychiatric examination of a defendant who has placed his mental status in issue can never give rise to a due process claim, we find no due process violation in this case, especially in light of the fact that the three judge panel was aware that the videotapes were made nearly one year after the crimes, while the defendant was on medication. In addition, its decision demonstrates that it properly considered the defendant's mental state on July 11, 1987. We reject the defendant's contention that, as a matter of law, the three judge panel was not competent to evaluate those factors in its consideration of the videotapes. The defendant's position is contrary to the broad latitude we have traditionally accorded the trier of fact in evaluating expert opinion and the basis for such opinion. See State v. Evans, 203 Conn. 212, 238-39, 523 A.2d 1306 (1987); In re Juvenile Appeal (Docket No. 9268), 184 Conn. 157, 170-71, 439 A.2d 958 (1981); State v. Perez, 182 Conn. 603, 610, 438 A.2d 1149 (1981). The state, therefore, properly characterizes the issue concerning the admissibility of the videotapes as an evidentiary, not a constitutional, question. It is well established that an expert witness can be examined concerning the factual basis of his opinion. United States v. Madrid, 673 F.2d 1114, 1120-21 (10th Cir.), cert. denied, 459 U.S. 843, 103 S. Ct. 96, 74 L. Ed. 2d 88 (1982) (defendant's statements during psychiatric examination admissible as basis for expert opinion); Rollerson v. United States, 343 F.2d 269, 271 (D.C. Cir. 1964); State v. Douglas, 203 Conn. 445, 452-53, 525 A.2d 101 (1987); State v. Asherman, 193 Conn. 695, 716-17, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985); State v. Garcia, supra, 599; 31A Am. Jur. 2d, Expert and Opinion Evidence § 75. In cases where the defendant places his mental status in issue, the basis for a psychiatric expert's opinion is one of the things that the trier of fact may consider in evaluating the testimony of that expert. State v. Perez, supra. The state offered the videotapes during rebuttal to demonstrate the basis for Zonana's opinion and as an aid to understanding his testimony. The state also argued that, because Zeman relied on the tapes as well, the videotapes provided the trier of fact with a means for evaluating both experts' conclusions. Because the admissibility of the tapes was an evidentiary question, we cannot reverse the decision of the three judge panel to admit the tapes unless we conclude that the panel abused its discretion or committed a clear error involving a misconception of the law. See State v. Douglas, supra, 452; State v. Palmer, 196 Conn. 157, 166, 491 A.2d 1075 (1985); State v. Asherman, supra, 716; Eaton v. State, supra, 220. In State v. Carter, 198 Conn. 386, 389-95, 503 A.2d 576 (1986), we held that the trial court had not abused its discretion in permitting the state to introduce evidence of a prior conviction of the defendant in order to rebut the defense of insanity. We stated that " '[wjhenever insanity is asserted as a defense and is supported by any credible evidence, "it is of critical importance that the defendant's entire relevant symptomology [sic] be brought before the jury . . . ." "[W]hen insanity is in issue, any and all conduct of the person is admissible in evidence." To this end, the trial judge should permit "an unrestricted inquiry into the whole personality of a defendant" and should "be free in his admission of all possibly relevant evidence." . . .' " Id., 392, quoting United States v. Smith, 507 F.2d 710, 711 (4th Cir. 1974); see also United States v. Alexander, 805 F.2d 1458, 1464 (11th Cir. 1986). We conclude that the liberal approach applied in State v. Carter, supra, to the admission of evidence bearing on the issue of a defendant's mental state controls the present case as well. The panel did not abuse its discretion in concluding that the videotapes were relevant to the issue of the defendant's mental status on July 11, 1987, and were admissible for use by the state in illustrating and corroborating the testimony of Zonana. Because both Zonana and Zeman relied in part on the videotapes in making their diagnoses, the videotapes were clearly relevant to the crucial issue in this case, namely, the defendant's mental status. Although the videotapes were made nearly one year after the commission of the crimes at a time when the defendant was taking medication, those facts alone do not require a conclusion that the three judge panel abused its discretion by admitting them into evidence. The panel was aware of those facts and it implicitly concluded, when it admitted the videotapes, that the probative value of the videotapes outweighed any risk of a prejudicial effect. Moreover, the memorandum of decision demonstrates that the panel, in evaluating the defendant's claims concerning his mental state, properly focused on his mental state at the time of the crimes, rather than at the time of the psychiatric examination. The defendant also asserts that the videotapes were inadmissible because Zonana was capable of testifying concerning the basis of his opinion without relying on the tapes. This argument misrepresents the standard to be applied in determining whether video recordings of psychiatric examinations are admissible when the defendant has raised his mental status as a defense. The question is not whether the psychiatrist has a clear recollection of the examination and could possibly testify without the tapes, but rather whether the probative value of the tapes outweighs the risk that the trier of fact might not be able to consider and weigh their relevance properly. Eaton v. State, supra; State v. Garcia, supra, 600-601; People v. Furman, 158 Mich. App. 302, 326-27, 404 N.W.2d 246, appeal denied, 429 Mich. 851 (1987); State v. White, supra, 568; see Pisel v. Stamford Hospital, 180 Conn. 314, 323-24, 430 A.2d 1 (1980) (videotape admitted in civil action); State v. Piskorski, 177 Conn. 677, 699-702, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979) (admission of photographs of homicide victims); State v. Harris, 241 Or. 224, 241, 405 P.2d 492 (1965) (tape recording of defendant's statements to physician). II The defendant also challenges the conclusion of the three judge panel that the defendant did not prove his affirmative defenses of insanity and extreme emotional disturbance by a preponderance of the evidence and that the state proved beyond a reasonable doubt that the defendant acted with the intent to cause the deaths of the victims. To consider these claims properly, we must necessarily summarize the voluminous evidence presented by the defendant and the state concerning the defendant's mental state. Anne Phillips, a clinical psychologist called by the defendant, testified that on July 11, 1987, the defendant was suffering from schizophrenia with paranoid trends. Phillips indicated that this illness was marked by the defendant's extreme use of fantasy as a retreat from reality and that his hold on reality was so tenuous that his fantasies could take on delusional qualities. Phillips stated that the defendant was constantly on the defensive against personal insult, that interpersonal conflict aroused overwhelming emotions in him, and that it was likely he would engage in impulsive behavior or disordered thought if he felt insulted, rejected or physically threatened. Phillips testified that as a result of this mental illness the defendant lacked substantial capacity to control his conduct within the requirements of the law on the night in question and that he committed the shootings while under the influence of an extreme emotional disturbance. The defendant also presented the testimony of Zeman, who concluded that on July 11, 1987, the defendant was suffering from a long-standing severe mental illness of psychotic proportions. His diagnosis of this illness was schizophrenia, paranoid type, chronic. Zeman further testified that because of his illness the defendant lacked substantial capacity either to appreciate the wrongfulness of his conduct or to control his conduct within the requirements of the law. Zeman stated that the defendant was also extremely emotionally disturbed at the time of the shootings. Additionally, Zeman confirmed Phillips' testimony that the defendant is subject to severe stress when he feels threatened. Zeman concluded that as a result of the altercation at the cul-de-sac and pressure from Andrew Patterson to carry out "the offensive," the defendant became very agitated, was in an extremely disorganized state of mind and lost contact with reality. Zeman opined that at the time of the shooting of Seymour and Price the defendant was in a dissociative state during which his ability to control his actions was severely limited. Zeman was satisfied that the defendant actually believed that he was on "the offensive" and that his action was a justified mission to rid Suffield of "terrorists" endangering the town. Zonana testified in rebuttal for the state. He concluded that on the night of the shootings the defendant was suffering from a mixed personality disorder, in that he met the criteria for several personality disorders, including antisocial, paranoid and features of schizotypal and narcissistic. Zonana specifically found that the defendant's mental disorder, although capable of reaching psychotic proportions affecting his ability to "reality test," did not satisfy the criteria for a schizophrenic disorder. Moreover, Zonana testified that he did not find credible the defendant's assertions that he believed the victims were terrorists because during all the years that he had planned "the offensive" he knew it was illegal. Ultimately, however, Zonana was unable to reach a conclusion as to whether the defendant's mental disorder rendered him incapable of appreciating the wrongfulness of his conduct or of controlling his behavior on July 11, 1987. Zonana was never asked to evaluate whether the defendant was under the influence of an extreme emotional disturbance the night of the crimes. "[W]e have repeatedly stated that our review of the conclusions of the trier of fact, whether it be a judge, a panel of judges or a jury, is limited. See, e.g., State v. Brice, 186 Conn. 449, 459, 442 A.2d 906 (1982); State v. D'Antuono, 186 Conn. 414, 421, 441 A.2d 846 (1982); In re Juvenile Appeal (Docket No. 9268), [supra, 169]; State v. Perez, supra, 606. 'This court will construe the evidence in the light most favorable to sustaining the trial court's [judgment] and will affirm the conclusion of the trier of fact if it is reasonably supported by the evidence and the logical inferences drawn therefrom. . . . The probative force of direct and circumstantial evidence is the same.' (Citations omitted.) State v. D'Antuono, supra . . . ." State v. Evans, supra, 238. The credibility of expert witnesses and the weight to be given to their testimony and to that of lay witnesses on the issue of sanity is determined by the trier of fact. Id. "In its consideration of the testimony of an expert witness, the trial court might weigh, as it sees fit, the expert's 'expertise, his opportunity to observe the defendant and to form an opinion, and his thoroughness. It might consider also the reasonableness of his judgments about the underlying facts and of the conclusions which he drew from them.' State v. Perez, supra, 610." In re Juvenile Appeal (Docket No. 9268), supra, 170; State v. Evans, supra, 238-39. Applying these standards of review, we conclude that each of the defendant's challenges to the factual findings of the three judge panel should be rejected. In examining the basis for this conclusion, we consider together the defendant's claims that the state failed to prove beyond a reasonable doubt that he intended to cause the deaths of Seymour and Price and that he did prove by a preponderance of the evidence the affirmative defense of insanity. Section 53a-54a (b) states that "[e]vidence that the defendant suffered from a mental disease, mental defect or other mental abnormality is admissible, in a prosecution under subsection (a), on the question of whether the defendant acted with intent to cause the death of another person." Section 53a-13 (a) provides that "[i]n any prosecution for an offense, it shall be an affirmative defense that the defendant, at the time he committed the proscribed act or acts, lacked substantial capacity, as a result of mental disease or defect, either to appreciate the wrongfulness of his conduct or to control his conduct within the requirements of the law." While the defendant must prove the affirmative defense of insanity by a preponderance of the evidence, the state, in order to obtain a murder conviction, has the burden of proving beyond a reasonable doubt that the defendant intended to cause the death of the victims. See General Statutes § 53a-12. We first note that although the psychiatric and psychological experts agreed that the defendant was suffering from a mental disease or defect on July 11, 1987, only Phillips and Zeman concluded that the defendant suffered from schizophrenia on that date. Both Zonana and Baronoski diagnosed the defendant's disease as a mixed personality disorder and both specifically rejected a diagnosis of a schizophrenic disorder. One of the bases for Zonana's and Baronoski's rejection of the diagnosis of paranoid schizophrenia was the lack of evidence that the defendant was preoccupied with "systematized delusions." The issue of delusions and of the defendant's ability to "reality test" is important because Zeman concluded that when the defendant committed these acts he actually believed he was on a justified mission to kill terrorists. Zonana concluded, however, that the defendant knew the victims were not terrorists and that the events that evening might have turned out differently if the victims had simply "backed off" or had not been so threatening. Because the trier of fact can disbelieve any or all of the evidence on insanity and can construe that evidence in a manner different from the parties' assertions; State v. Evans, supra, 238-39; State v. Gordon, 185 Conn. 402, 409, 441 A.2d 119 (1981), cert. denied, 455 U.S. 989, 102 S. Ct. 1612, 71 L. Ed. 2d 848 (1982); State v. Smith, 185 Conn. 63, 73-74, 441 A.2d 84 (1981); the fact that both of the defendant's experts supported his claim of insanity while the state's expert could not render an opinion on that issue does not establish that the trier of fact could not reasonably have concluded that the defendant did not prove insanity by a preponderance of the evidence. A review of the testimony of other witnesses concerning the defendant's conduct on the night that Seymour and Price were killed reveals significant support for the panel's conclusion that the defendant intended to cause the death of the victims, that he appreciated the wrongfulness of his conduct and that he was able to control his conduct within the requirements of the law. For example, the defendant vowed that he was going to kill the victims shortly after the altercation on Kingfisher Lane. He repeated this threat when he returned to his home. Thereafter, he was in sufficient control of himself to form a plan to kill the victims in order to exact revenge and to make preparations to carry out that plan. His preparations included ordering the women to leave, telling Bryan Patterson to distract his mother, instructing Andrew Patterson to be careful loading the weapons to ensure that the weapons would function properly, and accepting the offer of a police scanner. The testimony concerning the defendant's conduct also demonstrates that he was aware of the wrongful nature of his behavior. While returning to Kingfisher Lane, the defendant warned Andrew Patterson to slow down so that they would not be stopped by the police. Further, Zonana indicated that the defendant's expressed plan to commit suicide after the killings demonstrates that he was aware of the illegality of his acts. Additionally, after the shootings the defendant asked Bryan Patterson to dispose of the web ammunition belt by throwing it into the Connecticut River. Finally, during a conversation with his father at the police station after he was taken into custody, the defendant told his father that if the police were aware that he had gone back to Kingfisher Lane with a gun after the original confrontation, "then that's two counts of felony murder." The three judge panel also could reasonably have determined from the evidence that at the time of the shootings the defendant was not in a delusional state in which he thought that the victims were terrorists. The defendant never mentioned terrorists to anyone before or during the shootings. The defendant fired a warning shot after rolling out of the car and later, while giving a statement to the police, expressed surprise that the victims had kept coming toward him. Further, Zonana, who did not believe the defendant's claim that he thought the victims were terrorists, opined that the killings might not have occurred had Seymour and Price retreated. Moreover, the defendant was able to distinguish the victims on whom he sought revenge from Mrs. Seymour and Diane Seymour, whom he threatened but did not attempt to harm. Furthermore, the three judge panel could have taken into account the fact that the defendant possessed a psychological manual and, in 1984, had told Andrew Patterson that if he was apprehended after "the offensive" he would plead insanity. We therefore reject the defendant's challenges to the panel's factual findings concerning the affirmative defense of insanity and the defendant's intent to kill. The defendant also challenges the panel's finding that he did not prove the affirmative defense of extreme emotional disturbance by a preponderance of the evidence. Under § 53a-54a (a), the two elements of this affirmative defense are: (1) that the defendant committed the offense while under the influence of extreme emotional disturbance; and (2) that there was a reasonable explanation or excuse for the extreme emotional disturbance. State v. Forrest, 216 Conn. 139, 148, 578 A.2d 1066 (1990). "In the final analysis . . . the ultimate determination of the presence or absence of extreme emotional disturbance [is] one of fact for the trier, aided by the expert testimony of both sides, but left to its own factual determinations." State v. Zdanis, 182 Conn. 388, 395, 438 A.2d 696 (1980), cert. denied, 450 U.S. 1003, 101 S. Ct. 1715, 68 L. Ed. 2d 207 (1981); State v. Forrest, supra, 148. The three judge panel found that the defendant's actions on July 11, 1987, were rational and were the result of a desire for revenge rather than an uncontrollable response to the circumstances. The panel also found that there was no reasonable explanation for the defendant's actions from the viewpoint of a person in the defendant's situation under the circumstances as he believed them to be. On the basis of our review of the record, we conclude that these findings are reasonably supported by the evidence. Although both Zeman and Phillips testified that the defendant was under the influence of extreme emotional disturbance at the time of the shootings, the panel was not obligated to accept their conclusions. State v. Evans, supra, 238. There was significant evidence from which the panel could reasonably have concluded that the defendant was not suffering from an extreme emotional disturbance on the night of July 11, 1987. For instance, Andrew Patterson testified that the defendant was in a lucid state and knew what he was doing at the time of the shootings. Gregory Raynes, who was at the gathering on Kingfisher Lane and followed the defendant to his home, testified that the defendant was very angry but not out of control. Bazzano testified that the defendant calmed down after they returned to his house and began loading the weapons. That testimony is corroborated by the defendant's coordination of the planning and preparation for the return to Kingfisher Lane. In addition, the firing of the warning shot and the fact that he did not attempt to harm Mrs. Seymour or her daughter also provide evidence that the defendant was not out of control when he arrived at the Seymour home. Moreover, testimony concerning a prior incident involving the defendant demonstrated that he could control his emotions under similar circumstances. There was evidence that, approximately one month before the shootings, Bazzano and Bryan Patterson had asked the defendant for his assistance when they were being "hassled" by two men at a local convenience store. The defendant and Andrew Patterson arrived shortly thereafter, both armed with guns. The defendant left his gun in the car, however, and went unarmed to talk with the two men. When a police officer drove up, the defendant told him that things were now "under control" and the defendant was complimented by the officer for settling the situation. There is also significant support for the panel's finding that there was no reasonable explanation for any emotional disturbance suffered by the defendant at the time of the shootings. We recently held in State v. Ortiz, 217 Conn. 648, 656-58, 588 A.2d 127 (1991), that the determination of the reasonableness of the explanation or excuse for the emotional disturbance must be measured from the viewpoint of a reasonable person in the defendant's situation under the circumstances as the defendant believed them to be. Given the nature of the original altercation and our holding in State v. Ortiz, supra, the evidence provides sufficient support for the panel's conclusion that there was no reasonable explanation for the defendant to have suffered an extreme emotional disturbance under the circumstances as he believed them to be. We are therefore unpersuaded by the defendant's challenges to the various factual findings of the three judge panel. The judgment is affirmed. In this opinion the other justices concurred. "[General Statutes] Sec. 53a-54a. murder, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime. "(b) Evidence that the defendant suffered from a mental disease, mental defect or other mental abnormality is admissible, in a prosecution under subsection (a), on the question of whether the defendant acted with intent to cause the death of another person. "(c) Murder is punishable as a class A felony in accordance with subdivision (2) of section 53a-35a unless it is a capital felony." "[General Statutes] Sec. 53a-54b. capital felony. A person is guilty of a capital felony who is convicted of any of the following . (8) murder of two or more persons at the same time or in the course of a single transaction." "[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." "[General Statutes] Sec. 53a-13. lack of capacity due to mental DISEASE OR DEFECT AS affirmative defense, (a) In any prosecution for an offense, it shall be an affirmative defense that the defendant, at the time he committed the proscribed act or acts, lacked substantial capacity, as a result of mental disease or defect, either to appreciate the wrongfulness of his conduct or to control his conduct within the requirements of the law. "(b) It shall not be a defense under this section if such mental disease or defect was proximately caused by the voluntary ingestion, inhalation or injection of intoxicating liquor or any drug or substance, or any combination thereof, unless such drug was prescribed for the defendant by a licensed practitioner, as defined in section 20-184a, and was used in accordance with the directions of such prescription. "(e) As used in this section, the terms mental disease or defect do not include (1) an abnormality manifested only by repeated criminal or otherwise antisocial conduct or (2) pathological or compulsive gambling." General Statutes § 51-199 (b) (3) provides in pertinent 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 "[Practice Book] Sec. 760.--psychiatric examination "In an appropriate case the judicial authority may, upon motion of the prosecuting authority, order the defendant to submit to a psychiatric examination by a psychiatrist designated for this purpose in the order of the court. No statement made by the defendant in the course of any examination provided for by Sec. 757, whether the examination shall be with or without the consent of the defendant, shall be admitted in evidence against the defendant on the issue of guilt in any criminal proceeding. A copy of the report of the psychiatric examination shall be furnished to the defendant within a reasonable time after the examination." The Seymour family had moved into a home on Kingfisher Lane on July 10, 1987. The "offensive" was an elaborate plan that the defendant and Andrew Patterson had been discussing since approximately 1980 when they were both in high school. Peter Zeman, a forensic psychiatrist who testified for the defendant, described the offensive in his psychiatric evaluation report as "a concept developed between Mr. Steiger and Mr. Patterson which is a central component of their relationship and which has been an obsession and driving force in the defendant's life over the past seven years. It grew from their feelings of being 'pushed around' and taken advantage of by their peer group. Its form was an elaborate and complex military fantasy which they both spent endless hours thinking about, discussing, and on occasion acting upon. Central to the offensive was the requirement that they both would kill their enemies including the police and then commit suicide." Bazzano later entered into an immunity agreement with the state. Andrew Patterson pleaded guilty to one count of the crime of manslaughter in the first degree with the condition that he testify for the state in its prosecution of the defendant. Bryan Patterson was charged with the crimes of accessory to murder and capital felony and conspiracy to commit murder and capital felony. His case is pending in the Superior Court. See State v. Patterson, 213 Conn. 708, 570 A.2d 174 (1990). "[Practice Book] Sec. 758.--notice by defendant "If a defendant intends to rely upon the defense of mental disease or defect at the time of the alleged crime, he shall, within the time provided for the filing of pretrial motions pursuant to Sec. 811 or at such later time as the judicial authority may direct, notify the prosecuting authority in writing of such intention and file a copy of such notice with the clerk. If there is a failure to comply with the requirements of this section, mental disease or defect may not be raised as a defense. The judicial authority may for cause shown allow late filing of the notice or grant additional time to the parties to prepare for trial or make such other order as may be appropriate." "[Practice Book] Sec. 759.---mental disease or defect inconsistent WITH THE MENTAL ELEMENT REQUIRED FOR THE OFFENSE CHARGED "If a defendant intends to introduce expert testimony relating to a mental disease or defect, or another condition bearing upon the issue of whether he had the mental state required for the offense charged, he shall, within the time provided for the filing of pretrial motions or at such later time as the judicial authority may direct, notify the prosecuting authority in writing of such intention and file a copy of such notice with the clerk. He shall also furnish the prosecuting authority with copies of reports of physical or mental examinations of the defendant made in connection with the offense charged, within five days after receipt thereof. The judicial authority may for cause shown allow late filing of the notice or grant additional time to the parties to prepare for trial or make such other order as may be appropriate." The defendant has not provided a separate analysis of his rights under the Connecticut constitution. Therefore, we shall consider only his claims under the federal constitution. State v. Mercer, 208 Conn. 52, 67 n.9, 544 A.2d 611 (1988). "Yale University New Haven, Connecticut 06519 SCHOOL OF MEDICINE Department of Psychiatry 3b Park Street LAW & PSYCHIATRY UNIT AUDIO-VISUAL PERMISSION FORM Date_6/23/88_ I,_Eric Steiger 0f_Suffield_hereby consent to a video and audio recording of my interview(s) with Dr. Zonana on 6/23 et seq. T ,this evaluation is . T . I understand that these recordings are being made at the request of State s Attorney,_Herbert Appleton and will be used to prepare my case. I understand that part or all of these recordings may be played for officers of the court or played during courtroom proceedings. I also give permission for these recordings to be played by the staff at the Law & Psychiatry Unit for medical/legal professionals engaged in research/training. I understand that there will be no other disclosure of the contents of the recordings without my written consent. I understand that I may withdraw this authorization at any time by furnishing written notice thereof to the Law & Psychiatry Unit, 34 Park Street, New Haven, Conn. I acknowledge receipt of a copy of this authorization form. Isl Eric Steiger _ Signature" Witness In addition, at the beginning of each of his three interviews with the defendant, Zonana reminded him that he had been hired by the state to conduct the examination, that the examination was not confidential, and that the videotape might be played during the trial. The defendant agreed to these conditions before each interview, and at several points during the examination he expressed concern about discussing certain matters in full detail because the tapes might be played in court. During the hearing concerning the admissibility of the videotapes, the state argued that even if the defendant had the power to withdraw his consent for the use of the tapes during the trial, the defendant had not established that timely notice of the withdrawal was provided in accordance with the procedure set forth in the form. In light of our disposition of the consent issue, we do not need to address this factual issue. There is no question in this case that the videotapes of the psychiatric examination were introduced solely on the issue of the defendant's mental status. There was no dispute at trial that the defendant had shot Seymour and Price on July 11, 1987. Several United States Circuit Courts of Appeal have ruled that if a defendant places his mental state at issue, statements made by the defendant during a psychiatric examination are not protected by the privilege against self-incrimination if used solely on the issue of the defendant's mental state. Schneider v. Lynaugh, 835 F.2d 570, 575-77 (5th Cir.), cert. denied, 488 U.S. 831, 109 S. Ct. 87, 102 L. Ed. 2d 63 (1988); United States v. Stockwell, 743 F.2d 123, 125 (2d Cir. 1984); United States v. Byers, 740 F.2d 1104, 1109-15 (D.C. Cir. 1984) (plurality opinion) (Scalia, J.); United States v. Halbert, 712 F.2d 388, 389-90 (9th Cir. 1983), cert. denied, 465 U.S. 1005, 104 S. Ct. 997, 79 L. Ed. 2d 230 (1984); United States v. Madrid, 673 F.2d 1114, 1118-21 (10th Cir.), cert. denied, 459 U.S. 843, 103 S. Ct. 96, 74 L. Ed. 2d 88 (1982); United States v. Albright, 388 F.2d 719, 725-26 (4th Cir. 1968). In Pennsylvania v. Muniz, 496 U.S. , 110 S. Ct. 2638, 2644-49, 110 L. Ed. 2d 528 (1990), the court held that a response to a question posed to a person suspected of drunken driving is testimonial if the incriminating inference of mental confusion arises from the content of the response rather than from its slurred delivery. The court noted that the slurring of speech was an indication of a lack of muscular coordination of the tongue and mouth, and therefore constituted real or physical evidence. Id., 2644-45. Our conclusion is further supported by the fact that "[a]t its core, the privilege [against self-incrimination] reflects our fierce ' "unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt." ' [Doe v. United States, 487 U.S. 201, 212, 108 S. Ct. 2341, 101 L. Ed. 2d 184 (1988)J." Pennsylvania v. Muniz, 496 U.S. , 110 S. Ct. 2638, 2647, 110 L. Ed. 2d 528 (1990). Most defendants will understand that what they say and how they act during a psychiatric examination will affect their chances of successfully asserting an insanity defense. See United States v. Byers, 740 F.2d 1104, 1153 (D.C. Cir. 1984) (Bazelon, J., dissenting). "The pressure on defendants to lie or to feign what they conceive of as insane symptoms will be intense, even for those whose insanity defenses are legitimate. Even the truly mentally ill person is likely to have some stereotyped conception of what distinguishes sanity from insanity and to manifest symptoms of the latter." Id. Because a refusal to cooperate with the psychiatrist would likely lead to a forfeiture of an accused's right to assert an insanity defense, a defendant in such a situation faces the cruel trilemma of "confessing responsibility, feigning insanity or forfeiting the affirmative defense." Id., 1154. We also recognize, however, that some aspects of an examination by a psychiatrist might not involve information testimonial in nature. X-rays, blood and urine tests and electroencephalograms, for example, seek only real or physical evidence. Id., 1148. Although the defendant's brief is sketchy and not entirely clear on this point, he does not appear to be relying on the right to counsel under the doctrine of Miranda v. Arizona, 384 U.S. 436, 469-73, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Even if he is relying on the Miranda doctrine, the defendant waived those rights when he placed his mental status in issue. See Buchanan v. Kentucky, 483 U.S. 402, 422-23, 107 S. Ct. 2906, 97 L. Ed. 2d 336 (1987); State v. Manfredi, 213 Conn. 500, 513, 569 A.2d 506 (1990). Zonana was one of the psychiatrists who performed the psychiatric examinations at issue in that case, and he videotaped those examinations as well. Those videotapes, however, were not introduced into evidence. State v. Johnson, 14 Conn. App. 586, 597-600, 543 A.2d 740 (1988). It is of no consequence whether the defendant's attorney was aware that Zonana videotaped his examinations as a matter of procedure. The sixth amendment requires only that the defendant be informed of the nature and scope of the examination itself, not the particular means used to record the examiner's observations. See Buchanan v. Kentucky, 483 U.S. 402, 424-25, 107 S. Ct. 2906, 97 L. Ed. 2d 336 (1987). Even if notice was relevant, the defendant's counsel had constructive notice that Zonana videotaped his examinations because that procedure was discussed in State v. Johnson, 14 Conn. App. 586, 597-98, 543 A.2d 740 (1988), and that decision was released prior to Zonana's examination. The fact that here it was the defendant, not the state, who sought to exclude the videotapes makes this case anomalous. The procedure of videotaping psychiatric examinations has been cited as a means of providing safeguards for criminal defendants. United States v. Byers, 740 F.2d 1104, 1155-57 (2dCir. 1984) (Bazelon, J., dissenting); see Hendricks v. Swenson, 456 F.2d 503, 506 (8th Cir. 1972) (videotape of the defendant's statements to police). We do not hold that a psychiatrist is constitutionally required to record psychiatric examinations conducted pursuant to Practice Book § 760. Furthermore, we do not hold that if recordings of psychiatric examinations are made, a defendant is necessarily entitled to have such recordings admitted into evidence. The defendant claims that the testimony of Zonana did not conflict with the testimony of Zeman and therefore that the videotapes were not relevant to rebut Zeman's testimony. This argument has no merit. As will be discussed more fully below, Zonana and Zeman did in fact disagree over the correct diagnosis of the mental disease or defect with which the defendant was afflicted. Zonana testified that having the trier of fact watch the videotapes would aid him in explaining the conclusions that he reached. Among the cases cited by the three judge panel in its oral decision on the admission of the videotapes was State v. DeJesus, 194 Conn. 376, 384-85, 481 A.2d 1277 (1984), where we stated that photographic evidence illustrating or corroborating testimony by an expert is admissible if its probative value outweighs its prejudicial effect. The state made the following statements during closing argument: "And I would suggest to Your Honor, the most persuasive evidence we've had on [the issue of insanity] came in the form of the tapes. . . .He remembered everything [concerning the events of July 11, 1987,] precisely as it happened and gave what perhaps was the most reliable account. . . . We had a very well organized, logical and dispassionate account of what happened. . Is that an insane person? After seven and a half hours can you look at that and say that this guy was insane? Is insane? I suggest not. . . . I suggest to you that seven and a half hours of tapes gives a powerful message to all of us, anybody who watched it, that this was a sane individual." The defendant argues that these remarks reveal that the state actually introduced the videotapes not to show the basis of Zonana's opinion, but rather as independent evidence on the issue of insanity. Although evidence admitted to demonstrate the basis of an expert opinion is not independent evidence; 31A Am. Jur. 2d, Expert and Opinion Evidence § 75; the trier of fact is entitled to consider the basis of a psychiatrist's opinion in determining what weight to give such testimony. State v. Perez, 182 Conn. 603, 610, 438 A.2d 1149 (1981). Because both Zeman and Zonana relied in part on the videotapes in reaching their separate conclusions, the three judge panel could have used videotapes in evaluating those same opinions. The oral decision of the panel to admit the tapes reveals that the panel was aware of the proper evidentiary role of the tapes. We do note that some of the statements made during the state's closing argument appear to suggest that the trier of fact should have considered the defendant's mental state on the date of the interview, rather than the date of the shooting. The memorandum of decision, however, clearly indicates that the three judge panel was not misled by these remarks. The defendant felt he had been humiliated during a confrontation that occurred approximately two years before the shootings, when he had been hit in the chest and throat with a club in front of a small crowd. At the request of Zonana, Madelon Baronoski, a clinical psychologist, wrote a report that the state introduced into evidence. This report was prepared by analyzing the results of the psychological testing performed by Phillips. Like Zonana, Baronoski concluded that the defendant suffered from a mixed personality disorder, rather than schizophrenia, and that there were situations in which the defendant exhibited poor "reality testing" and disorganized thinking. The report also indicated that in a threatening situation, "[h]is emotional lability, limited coping responses, and sense of vulnerability can result in explosive behavior." This report did not reach any specific conclusions concerning the defendant's mental state on July 11, 1987. In his report on his psychiatric examination of the defendant, Zonana stated: "What makes the present situation so difficult to evaluate is that [the defendant] has been practicing and fantasizing many variations of war games with Andrew Patterson for years. . . . "The shootings after being hit in the face were the result of the confluence of a number of factors. He clearly was angry and wanted some form of revenge or face saving maneuver. How much his disorder played a role in his actions is very difficult to quantify. This is not a case of a clearly deteriorating psychotic condition over a period of days or weeks with command hallucinations and fixed delusions. On the other hand, in the face of external pressure Mr. Steiger can regress with some impairment to his reality testing. His state of mind at the time in terms of his ability to appreciate the wrongfulness or to conform his behavior to the requirements of law is difficult to determine because of the variability of the degree of intrusiveness of his mental disorder, his longstanding antisocial traits, impulsivity, and preoccupation with weapons and war games." "[General Statutes] Sec. 53a-12. defenses; burden of proof, (a) When a defense other than an affirmative defense, is raised at a trial, the state shall have the burden of disproving such defense beyond a reasonable doubt. "(b) When a defense declared to be an affirmative defense is raised at a trial, the defendant shall have the burden of establishing such defense by a preponderance of the evidence." Zonana stated that a mixed personality disorder could provide the basis for a legitimate insanity defense, but in this case he could not reach any conclusion on this issue. Additional evidence concerning the defendant's mental state indicated that the defendant suffered from a long-standing disorder, but provided no conclusive evidence on what type of disorder it was. When the defendant was discharged from the Marines in 1981, shortly after enlisting, he was diagnosed as suffering from an adjustment disorder with mixed disturbance of emotions and conduct and a mixed personality disorder. The defendant consulted Kenneth Colby, a clinical psychologist, shortly after his discharge, and subsequently was admitted to Bay State Medical Center in October, 1981, for psychiatric help. Colby diagnosed the defendant as possibly suffering from paranoid schizophrenia. Bay State Medical Center concluded that the defendant was afflicted with an adjustment disorder and a mixed personality disorder. In May, 1987, a social worker at an alcoholism services clinic to which the defendant had been referred concluded that the defendant exhibited paranoid thinking with violent thoughts and expressed concern over the potential for a violent emotional outburst. Zonana stated that "systematized delusions" are fixed false beliefs that cannot be altered by education or information and that share a specific theme. On cross-examination, Patterson admitted to having told the state police that the defendant was "out of control" and had "snapped" that night. As previously noted, the three judge panel could reasonably have concluded that the defendant did not actually believe that the victims were terrorists.

The plaintiff's motion to dismiss the appeal of the defendant Salvatore Monarca, Jr., from the Superior Court in Hartford County is denied.

Per Curiam. This appeal is from a judgment of the Superior Court rendered on a complaint and cross complaint, each alleging that the marriage of the parties had irretrievably broken down. The appeal is brought by the plaintiff who has made an unsuccessful wholesale attack on the court's finding of facts in an apparent attempt to have this court retry the issues of fact. The finding is not subject to correction in any material matter. The principal claim of the plaintiff is that the court abused its discretion in awarding the plaintiff fifty dollars per week in alimony and one-half of the net proceeds of the sale of the marital home. She believes that she should have been made a more substantial award. The court's conclusions are amply supported by the facts reported in its finding. It is clear that the court fully considered the criteria codified in § 46-51 and 46-52 of the General Statutes, and it could reasonably have concluded as it did. See deCossy v. deCossy, 172 Conn. 202, 374 A.2d 182; Chambliss v. Chambliss, 171 Conn. 278, 370 A.2d 924. It did not abuse its discretion. There is no error.

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

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

The motion by Jeffrey M. Mines for permission to appear, argne and file a brief as amicus curiae on behalf of B. A. Leasing Corporation in the appeal from the Court of Common Pleas in Hartford County is granted to the extent that permission to file a brief is granted.

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

MacDonald, J. The plaintiff, a privately owned club, appealed to the Court of Common Pleas from a decision of the defendant board which denied relief to the plaintiff on its appeal from the refusal of the Wilton tax assessor to classify and assess as open space land on the tax list of 1971 a tract of land used as a golf course. By way of relief, the appeal prayed for an order requiring the defendant board to assess the property in question as open space on that tax list and directing that the valuation of the property he reduced to reflect an open space classification. The court found the issues for the plaintiff and rendered judgment sustaining the appeal and adjudging that the land described in the complaint qualified as open space land, to be assessed as such. From that judgment the defendant has appealed. The finding, which is based largely upon a stipulation of facts submitted to the trial court and which is not subject to material correction, discloses the following facts: The plaintiff, a privately owned club open only to members and their guests, leases approximately 160 acres of land, part of which is developed as an eighteen-hole golf course. As a long-term lessee, the plaintiff has standing to maintain this appeal. The property is valued in the customary manner as unimproved land in a two-acre residential zone. During the month of June, 1963, the planning and zoning commission of the town of Wilton, acting as a planning commission, adopted a town plan of development consisting of a written plan and maps relating thereto which were affirmed by a final vote of the commission on June 25, 1963. The portion of the written plan relating to recreational use recites the need for preserving adequate park and recreation space and for acquiring additional space for such purposes. It lists the plaintiff's golf course as an existing recreational facility of approximately 160 acres and states, with specific reference thereto, that "the Town should be ready to acquire this facility if, in the future, the likelihood arises that the property may go into residential development." Two maps entitled "Wilton Planning and Zoning Commission Plan of Development" were filed June 11, 1963, in the office of the town clerk of Wilton, together with a similar map of larger scale with color designations. There was no designation on those maps of any property as "open space," hut several areas, including the property under discussion, were designated "private recreation," and since at least 1966, the printed plan of development map included in the written plan of development, as disseminated by the commission and as posted in the commission's office, designates several areas on the map, including that under consideration, as "recreation — open space — private." The records of the commission do not disclose how and why the words "open space" first appeared on the current map, but on several occasions the commission, in making changes in the town plan of development, has made changes with reference to the current map. From the foregoing facts the court concluded that by its public dissemination of the current map of the plan of development and by making changes in its town plan of development with reference to such map, the commission had adopted and endorsed the use of the map as its official map of the plan of development and had ratified the designation of the plaintiff's property as open space. The defendant board has assigned error in the court's reaching this conclusion, thereby raising as the first issue for our consideration the question whether the plaintiff's property had been designated as open space land on the Wilton plan of development so as to make it eligible for open space tax classification under the applicable statutes. In 1963, the General Assembly enacted § 12-107a-12-107e of the General Statutes, which provided for preferential tax treatment of farmland, forest land and open space land. In its " [d] eclaration of policy," § 12-107a declares, in relevant part, "(a) that it is in the public interest to encourage the preservation of farm land, forest land and open space land . to conserve the state's natural resources and to provide for the welfare and happiness of the inhabitants of the state," and "(b) that it is in the public interest to prevent the forced conversion of farm land, forest land and open space land to more intensive uses as the result of economic pressures caused by the assessment thereof for purposes of property taxation at values incompatible with their preservation as such farm land, forest land and open space land." Section 12-107b (c), after giving definitions of "farm land" and "forest land," defines "open space land" as any area of land "not excluding farm land, the preservation or restriction of the use of which would (1) maintain and enhance the conservation of natural or scenic resources, (2) protect natural streams or water supply, (3) promote conservation of soils, wetlands, beaches or tidal marshes, (4) enhance the value to the public of abutting or neighboring parks, forests, wildlife preserves, nature reservations or sanctuaries or other open spaces, (5) enhance public recreation opportunities, (6) preserve historic sites or (7) promote orderly urban or suburban development." With the foregoing background of legislative intent and purpose in mind, we consider the specific question whether the plaintiff's land, at the time of the plaintiff's application to the tax assessor for classification thereof as open space land on the tax list of 1971, had been designated upon the plan of development of the town of Wilton as an area "of open space land" within the meaning and under the provisions of § 12-107e, the relevant portions of which are set forth in the footnote. It is not disputed that the commission formally adopted a town plan of development and maps related thereto in June, 1963, the final vote affirming prior action having been taken on June 25,1963. Section 12-107e became effective the preceding day, on June 24,1963, and whether or not the members of the commission were aware of its existence when they adopted the plan, which the defendant's brief claims "is incredible to assume," they did at that time designate the plaintiff's property on the maps as a "private recreation" area and referred to it specifically in the written plan as an area which the town should be ready to acquire "if, in the future, the likelihood arises that the property may go into residential development." The defendant, in its brief, makes much of the fact that the specific words "open space land" were not employed on the original maps and in the original text of the written plan, but § 12-107e simply states that the planning commission "may designate upon such plan areas which it recommends for preservation as areas of open space land," without requiring that the specific label of "open space land" be applied to each such area. This was made clear by the many diverse functions of land use listed under the statutory definition of that term contained in the then § 12-107b (c) as previously quoted, including, in addition to the seven specific uses enumerated, "forest land, land designated as wetland under section 22-7j [now § 22a-30] and not excluding farm land." It was not the function of the planning commission to make a designation so worded as specifically to grant a reduced valuation for tax purposes. Its recommendations for uses of property in various areas are merely advisory. State National Bank v. Planning & Zoning Commission, 156 Conn. 99, 105, 239 A.2d 528. And in Marshall v. Newington, 156 Conn. 107, 239 A.2d 478, the farmland classification for tax purposes was held to be applicable even where the property in question had been zoned for industrial purposes at the request of the owner. As we stated there (p. 113): "A declared purpose of the statute granting favorable tax treatment to farmland is to prevent its forced conversion to more intensive uses as a result of an assessment based on its market value rather than its current use." In both Marshall v. Newington, supra, and Johnson v. Board of Tax Review, 160 Conn. 71, 273 A.2d 706, we interpreted liberally the statute under consideration with respect to farmland, stating in Johnson (p. 73) that "[i]t is thus clear that 12-107a—12-107e, as derived from . . . [Public Acts 1963, No.] 490, are as much conservation statutes as they are tax relief measures. The declaration of policy in § 12-107a recites, inter alia, that it is in the public interest 'to conserve the state's natural resources.' Indeed, it would appear that the purpose of the tax relief is to aid the conservation effort, and not merely to aid food production itself." If there are any ambiguities in the statute itself with respect to the specific term to be applied by the planning commission before property qualifies for designation as open space land, such ambiguities must be construed in favor of the plaintiff for, "[w]hen a taxing statute is being considered, ambiguities are resolved in favor of the taxpayer." Consolidated Diesel Electric Corporation v. Stamford, 156 Conn. 33, 36, 238 A.2d. 410. And if there were any ambiguities or uncertainties about the designation of the plaintiff's land in June, 1963, they were resolved sometime during or prior to .1966 by the designation on the printed plan of development map in the written plan of development of certain areas, including the plaintiff's land, as "recreation—open space—private." This was no amendment to the original plan but merely a clarification of it, and the official map, showing that designation, has been posted in the commission's office, disseminated by the commission, and used as the basis for changes in the plan of development. Without regard to the use of the specific words "open space" on the map, it was clearly within the original plan of development, which became effective July 6, 1963, two weeks after the effective date of Public Acts 1963, No. 490, that the plaintiff's land should not be considered for residential use. The court did not err in concluding that the land in question had been designated as open space land on the Wilton plan of development. The defendant's next claim of error is based upon its contention that "a private golf course and country club on developed land does not qualify for an open space tax classification." Stressing first the fact that the land has been developed, it makes the assertion that "[i]t is doubtful whether developed land qualifies for the open space" classification at all since "[t]he intention of Public Act 490 is to keep property from being developed." There is no merit to this claim since neither § 12-107b nor any other legislation pertaining to "open space land" requires that it be left in its pristine, natural state. Nowhere is the word "undeveloped" employed, and the specific inclusion of farmland clearly militates against any such requirement. The basic concept is that the land be "open," and not that it be entirely unused, undeveloped or unimproved. See General Statutes § 7-131c (b). It also is interesting to note that § 7-131c additionally defines "open space land" as "any land acquired under the provisions of sections 7-131e to 7-131k, inclusive" (the grant-in-aid program) and refers to "recreational and conservation purposes" as specifically including use of land for golfing. The place of private golf clubs in the open space program was specifically referred to in the so-called Whyte Report, formally entitled "Connecticut's Natural Resources, A Proposal for Action," which was published by conservationist William H. Whyte in 1962 and clearly was availablé to the legislative committees considering the legislation in question. See hearings before Joint Standing Committee on State Development and Agriculture, Conn. Gen. Assembly, 1963 Sess., pp. 9-11; Tyler & Valentine, "The 1972 Open Space Conveyance Tax—Recapture or Reaction," 47 Conn. B.J. 332, 333. The defendant makes the further claim that even though a public golf course might qualify as open space land under § 12-107b (c), which includes any area of land "the preservation or restriction of the use of which would . (5) enhance public recreation opportunities," a private golf club could not qualify because it is open only to members and their guests but not to the general public. It certainly is not arguable that the mere fact of private ownership and use of the land does not disqualify land from open space classification, for such ownership and use are implicit in the entire structure of open space legislation. Otherwise, there would be no purpose in even considering preferential tax treatment for privately owned .farmland, forest land and other lands which qualify physically as open space land under the definitions given in § 12-107b (c). The defendant further contends that the inclusion in § 12-107b (c) of land which would "(5) enhance public recreation opportunities" as one of the qualifying categories indicates an intention by the legislature that uses which would enhance private recreation would not so qualify. The short answer to this contention is that land used as a golf course, whether private or public, falls clearly within several of the other alternative categories enumerated in $ 12-107b (c). It certainly would tend to "(1) maintain and enhance the conservation of natural or scenic resources" and "(4) enhance the value to the public of abutting or neighboring parks, forests, wildlife preserves, nature reservations or sanctuaries or other open spaces"; in many instances it tends to "(2) protect natural streams or water supply," and to "(3) promote conservation of soils, wetlands, beaches or tidal marshes" through the preservation of open areas of fields, grasses, ponds, streams and marshes and simply by the absence of buildings, filling operations and eroding factors introduced by residential or commercial developers. Although it is not necessary to qualify under category (5) as well as under one or more of the other categories mentioned above, it is even arguable that a private golf course indirectly enhances public recreation opportunities by relieving the pressure on public golfing facilities and by frequently permitting "bff-season" public uses of the golf course for sledding, skating and skiing. In any event, "public use" is not one of the statute's criteria, for it is clear that this legislation is directed toward privately owned and privately used properties by the total absence of any requirement that designated properties be open to use by members of the general public. If public use properties already would be exempt from taxation under §12-81 (4) or §12-81 (5) of the General Statutes, there would have been no purpose for the adoption of Public Acts 1963, No. 490, the clear intent of which is to promote conservation by offering a measure of tax relief to privately owned and privately used properties qualifying as open space land. And although it is true that, as argued by the defendant, tax exemption statutes, generally speaking, must be strictly construed in favor of the sovereign, this court has stated: "It is also true, however, that such strict construction neither requires nor permits the contravention of the true intent and purpose of the statute as expressed in the language used." Jewett City Savings Bank v. Board of Equalization, 116 Conn. 172, 185, 164 A. 643. There is no error. In this opinion the other judges concurred. Although § 12-107e of the General Statutes provides that "an owner of land" may apply for open space land qualification, it further states that "any person aggrieved by the denial . of any application" may appeal therefrom. The printed record and the exhibits fail to disclose who signed or filed the original application for classification, but since it was stipulated by the parties that the plaintiff "as lessee has standing to maintain this appeal" and the court specifically so found, this question was not considered by the trial court nor was it raised or considered in the appeal. "As Wilton becomes more fully developed over the years just ahead, the need for park and recreation space will become more acute — at the same time that the chances of getting good, well-located recreation areas will decrease. . . . Most communities have grown without preserving enough land, among other things, for natural forest and for active recreation. This must not happen in Wilton if the Town is to retain its basic attraction as a good place to live. . In order to preserve some of the Town's open character, additional park and . . . [recreation] land acquisition will be recommended." Wilton Plan of Development, pp. 49-51 (1963). "[General Statutes] See. 12-107e. classification of land as open space land, (a) The planning commission of any municipality in preparing a plan of development for such municipality may designate upon such plan areas which it recommends for preservation as areas of open space land. Band included in any area so designated upon such plan as finally adopted may be classified as open space land for purposes of property taxation if there has been no change in the use of such area which has adversely affected its essential character as an area of open space land between the date of the adoption of such plan and the date of such classification, (b) An owner of land included in any area designated as open space land upon any plan as finally adopted may apply for its classification as open space land on any assessment list of a municipality by filing a written application for such classification with the assessor of such municipality not earlier than thirty days before nor later than thirty days after the date of such assessment list. Such assessor shall determine whether there has been any change in the area designated as an area of open space land upon the plan of development which adversely affects its essential character as an area of open space land and, if he determines that there has been no such change, he shall classify such land as open space land and include it as such on such assessment list. An application for classification of land as open space land shall be made upon a form prescribed by the tax commissioner and shall set forth a description of the land, a general description of the use to which it is being put, and such other information as the assessor may require to aid him in determining whether such land qualifies for such classification, (c) Failure to file an application for classification of land as open space land within the time limit prescribed in subsection (a) and in the manner and form prescribed in subsection (b) shall be considered a waiver of the right to such classification on such assessment list, (d) Any person aggrieved by the denial by an assessor of any application for the classification of land as open space land shall have the same rights and remedies for appeal and relief as are provided in the general statutes for taxpayers claiming to be aggrieved by the doings of assessors or boards of tax review." "[General Statutes] Sec. 7-131c. open space land, definitions. As used in sections 7-131c to 7-131k, inclusive, (a) 'recreational and conservation purposes' means use of lands for agriculture, parks, natural areas, forests, camping, fishing, wetland preservation, wild life habitat, reservoirs, hunting, golfing, boating, swimming, snowmobiling, sanitary land fill, historic and scenic preservation and other purposes as set forth in section 7-131b . . . ." Whyte, "Connecticut's Natural Resources, A Proposal for Action," p. 51: "When the tax question is looked at from the community's point of view, it becomes evident that more than farmland is involved. There are other open space uses of private land which serve the public interest and which the public should reflect in its use of the taxing power. Three categories might be established: agricultural and forest, recreational, and resource land. Under recreation, for example, golf clubs could be registered; even though it may be private, the public does have an equity in this continued openness, and it should not tax it in new developments." The relevant portions of General Statutes § 12-81 provide exemption from taxation of "(4) Municipal property. Except as otherwise provided by law, property belonging to, or held in trust for, a municipal corporation of this state and used for a public purpose, including real and personal property used for cemetery purposes; (5) Property held by trustees for public purposes. As long as used by the public for public purposes, property held by trustees named in a will or deed of trust and their successors for this state or its people, one of its counties or its people or one of its municipal corporations or its people."

Per Curiam. The two cases were tried together and involved a claim by the plaintiff lessee in the first case for damages arising out of a leasehold contract and a claim by the plaintiff lessor in the second case for rent alleged to be due under the leasehold contract. Judgment was rendered by the court for the lessee, the plaintiff in the first case and the defendant in the second case. Appeal was taken by the defendant in the first case from both judgments. The trial of the two cases commenced on July 5, 1973, in the session of the court which ran from April 3, 1973, to July 9, 1973. The next session of the court commenced on July 10, 1973, and terminated on September 3, 1973. Judgment in both cases was rendered on September 19, 1973. On October 3, 1973, the appellant in both cases filed a combined appeal from the judgments rendered and moved for an extension of time to file his request for finding and draft finding, which was granted by the court. On October 25, 1973, the appellant filed a motion pursuant to General Statutes § 51-29 to set the judgments aside and for new trials in that such judgments were rendered after the expiration of the session of the court next succeeding the session at which trial was commenced. A judgment is required to be rendered before the end of the session of the court next succeeding the session at which it was commenced. General Statutes § 51-29; Bogaert v. Zoning Board of Appeals, 162 Conn. 532, 536, 294 A.2d 573; Spelke v. Shaw, 117 Conn. 639, 644, 169 A. 787. A judgment rendered thereafter is voidable but not void. Borden v. Westport, 112 Conn. 152, 154, 151 A. 512; Lawrence v. Cannavan, 76 Conn. 303, 306, 56 A. 556. The lateness of a decision may be waived by consent or by conduct of the parties. Hurlbutt v. Hatheway, 139 Conn. 258, 263, 93 A.2d 161; Whitaker v. Cannon Mills Co., 132 Conn. 434, 438, 45 A.2d 120. On the question of waiver subsequent to judgment after a late judgment is rendered, "the most that can reasonably be required is objection seasonably made after the filing of the decision." Bogaert v. Zoning Board of Appeals, supra, 538. The record reveals that there was no consent and that objection was made prior to the filing of the request for finding and draft finding, with no additional hearing or pleadings other than a request for extension of time to file the appeal papers. The court's conclusion regarding a Dickensian assertion concerning General Statutes § 51-29 may or may not be a valid observation, but such considerations are for the legislature. The court was in error in finding waiver. At the commencement of trial, the trial court offered both sides the privilege of filing trial briefs or memoranda with the court for its guidance during the trial. This offer was made with the express provision that neither counsel need exchange his brief with opposing counsel so as to avoid any possible disclosure of strategy or legal questions which he might prefer to keep confidential until the appropriate time in the course of the trial. Counsel for the plaintiff in the first case did take advantage of this offer and did file such a trial brief. Any attack upon his ethical conduct is completely unfounded, irresponsible, and unprofessional, especially when such filing was made in accordance with the invitation of the court. In passing, it might be noted that if trial briefs are filed the better practice of the court would be to order the exchange of briefs with opposing counsel. There is error, the judgments are set aside and new trials are ordered.

Longo, J. The plaintiff, Pierre J. Michaud, brought this action to recover damages resulting from an intersection collision on a public highway involving two cars. He was a passenger in the car operated by his wife, the defendant Irene E. Michaud. The second car was operated by the defendant John Eric Gurney. In their answers, both defendants denied the plaintiff's allegations of negligence as to themselves. In addition, the defendant Gurney, in a special defense, claimed that the defendant Irene Michaud failed to yield the right of way to his vehicle. Although the complaint alleged that Gurney failed to yield the right of way to the car in which the plaintiff was riding, it did not claim that the defendant Irene Michaud failed to grant the right of way to her codefendant. Irene Michaud filed a motion for summary judgment on the issue of liability together with her own affidavit and supporting documents. The plaintiff and the defendant Gurney filed counter affidavits and supporting documents. The court granted the motion for summary judgment in favor of the defendant Irene Michaud and against the plaintiff, stating in its memorandum of decision that the excerpts from the deposition taken of the plaintiff showed that he made no claim of negligence of any kind in the operation of the motor vehicle by his wife. From this judgment the plaintiff appeals. A motion for summary judgment is designed to dispose of actions in which there is no genuine issue of any material fact. Rathkopf v. Pearson, 148 Conn. 260, 263, 170 A.2d 135. The function of the trial court is to determine, in applying the summary judgment rules, whether an issue of fact exists but not to try that issue if it does exist. Dorazio v. M. B. Foster Electric Co., 157 Conn. 226, 228, 253 A.2d 22. The party moving for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts which, under applicable principles of substantive law, entitles it to judgment as a matter of law. "'[I]ssuefinding, rather than issue-determination, is the key to the procedure.' " Sillman v. Twentieth Century-Fox Film Corporation, 3 N.Y.2d 395, 404, 144 N.E.2d 387. There must be a showing that it is quite clear what the truth is, and any real doubt as to the existence of any genuine issue of material fact must be excluded. Spencer v. Good Earth Restaurant Corporation, 164 Conn. 194, 198, 319 A.2d 403. The plaintiff, in his deposition, but contrary to his pleadings, testified that he did not notice that his wife, the defendant Irene Michaud, did anything wrong. She, however, testified in her deposition that she did not look down the road from which the defendant Gurney came, that she did not give warning of any kind, and that she did not see the Gurney car before the accident. In Mulvey v. Barker, 138 Conn. 551, 86 A.2d 865, this court affirmed a finding that both drivers were negligent under a fact pattern similar to the present case. Even if it is assumed that the defendant Irene Michaud did have the right of way, she still had the duty to exercise reasonable care. Labbee v. Anderson, 149 Conn. 58, 61, 175 A.2d 370; Bevins v. Brewer, 146 Conn. 10, 16, 147 A.2d 189; Drobish v. Petronzi, 142 Conn. 385, 114 A.2d 685. Thus, a reading of the joint appendix submitted by the defendant Irene Michaud and the plaintiff indicates that there are genuine issues of material facts as to whether the defendant Irene Michaud was negligent, and whether her negligence, if any, was a proximate cause of the accident. Mahoney v. Beatman, 110 Conn. 184, 196-97, 147 A. 762. "Litigants have a constitutional right to have issues of fact decided by a jury. Ardoline v. Keegan, 140 Conn. 552, 555, 102 A.2d 352. Summary judgment procedure 'is especially ill-adapted to negligence cases, where, as here, the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation. . [T]he conclusion of negligence is necessarily one of fact; Cappiello v. Haselman, 154 Conn. 490, 495, 227 A.2d 79; Farrell v. Waterbury Horse R. Co., 60 Conn. 239, 250, 21 A. 675.' Pine Point Corporation v. Westport Bank & Trust Co. . . . [164 Conn. 54, 56, 316 A.2d 765]. Issues of negligence are ordinarily not susceptible of summary adjudication hut should he resolved by trial in the ordinary manner. Aetna Ins. Co. v. Cooper Wells & Co., 234 F.2d 342, 344 (6th Cir.); Ebersole v. Lowengrub, 54 Del. 463, 180 A.2d 467; Johnson v. Farha Village Supermarkets, Inc., 208 Kan. 241, 491 P.2d 904; Duchesneau v. Silver Bow County, 158 Mont. 369, 492 P.2d 926." Spencer v. Good-Earth Restaurant, supra, 198. There is error, the judgment is set aside and the case is remanded with direction to deny the motion for summary judgment and then to proceed according to law. In this opinion the other judges concurred. After the hearing on the motion for summary judgment, the plaintiff filed a motion for permission to amend his complaint against the defendant Michaud by adding an allegation that she failed to yield the right of way to the defendant Gurney. It does not appear that the court acted upon the motion.

The motion by the defendant Cable Video, Inc., to expedite the appeal from the Court of Common Pleas in Hartford County is denied.

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

Loiselle, J. After a public hearing held July 21, 1970, the planning and zoning commission of the town of Litchfield approved a zoning map and regulations for the town. The plaintiffs, who all owned properties along route 25 in the town of Litchfield, some of which were devoted to commercial use, and whose properties were located in an area zoned residential under the regulations, appealed to the Court of Common Pleas claiming to be aggrieved. The court found aggrievement on the part of some plaintiffs but found the issues for the defendant and dismissed the appeal. An appeal was taken from the judgment after certification was granted. The defendant raises a jurisdictional question, claiming that there is no right of appeal from the establishment of a zoning ordinance but only from amendments or changes made after its adoption. Prior to 1947, there was no right of appeal from the action of a zoning commission for the establishing, amending or changing of any zoning regulation. See Long v. Zoning Commission, 133 Conn. 248, 50 A.2d 172. Thereafter, Public Acts 1947, No. 418 § 8 (now General Statutes § 8-9), was enacted, giving a right of appeal from a zoning commission to the Court of Common Pleas in the manner provided for appeals from local boards of appeal. Section 8-8 of the General Statutes gives a right of appeal from a board of appeals to any person aggrieved by any decision of that board. Section 8-3 details the procedure by which zoning regulations are enacted and provides for the same type of public notice and public hearing as that required for any amendment to a zoning ordinance. So far as a right of appeal is concerned, there is no distinction between the establishment of a zoning ordinance and the amendment to a zoning ordinance. The plaintiffs have a right of appeal to the Court of Common Pleas by virtue of § 8-9 and upon certification to this court. Prior to the hearing before the court, the plaintiffs made a motion to present evidence which would supplement the contents of the record returned by the defendant, and which pertained to remarks made by the commission chairman immediately prior to the hearing of July 21, 1970; the issue of predetermination; the introduction of documentary evidence ; and the character and development of route 25 where the properties of the plaintiffs were located. The court, pursuant to § 8-8 of the General Statutes, allowed evidence to be presented and made a limited finding restricted to that evidence. The plaintiffs claim that the court erred in not including twenty paragraphs from their draft finding. Only facts which are admitted or undisputed may be added to the limited finding. Practice Book § 627, 628 (a); Lathrop v. Planning & Zoning Commission, 164 Conn. 215, 319 A.2d 376; Cecio Bros., Inc. v. Feldmann, 161 Conn. 265, 267, 287 A.2d 374. Those paragraphs relating to the testimony of the chairman concerning his remarks prior to the hearing of July 21, 1970, are added to the limited finding, as it appears in the record that they were admitted by the chairman in his testimony. Also, it is undisputed that following the public hearing held July 21, 1970, the defendant commission met and without change adopted the map and regulations. The remaining paragraphs in the draft finding are neither admitted nor undisputed and consequently are not added to the limited finding. Walsh v. Turlick, 164 Conn. 75, 77, 316 A.2d 759. The plaintiffs claim that the record returned by the commission as supplemented by such evidence as was given at the hearing on appeal to the Court of Common Pleas was so deficient that their right of review was effectively denied. Photographs of sections of route 25 which were presented by the plaintiffs at the hearing of July 21, 1970, and were lost prior to the appeal were not necessary to a full determination of the appeal in view of the testimony presented before the Court of Common Pleas as detailed in the limited finding as corrected. At any rate, the court's denial of the motion to correct the finding relating to the missing photographs was not included in the plaintiffs' assignments of error. It was admitted that the hearing opened at about 8 p.m. and closed at about 10:30 p.m. on July 21, 1970. There is no claim that anyone who wished to be heard was denied that opportunity or that his remarks were not recorded in accordance with § 8-7a of the General Statutes. The only claim, as stated in the plaintiffs' motion to present evidence to the Court of Common Pleas, is that the opening remarks of the chairman made "prior to the hearing of July 21, 1970," were not recorded and are not part of the record. During the court hearing, notes consisting of four sheets of paper prepared by the chairman were introduced into evidence. The first page consisted of an outline of his remarks. The remarks of the chairman included a statement substantially to the effect that "route 25 is a problem and we recognize it." It also appears in the record that the exhibit did contain the "gist" of his remarks. The notes of the chairman, which he admitted contained the gist of his remarks and his testimony, were sufficiently complete for the court to consider them with the transcript of all evidence presented at the hearing and to render a decision based on the entire proceedings before the commission. The plaintiffs claim that the court erred in ruling to exclude certain testimony which they sought to elicit from the commission chairman. While the chairman was testifying he was asked, "Wasn't it the essence of your speech that you were going to zone route 25 residential and allow change on a case by case basis when, as and if people should wish to enlarge or extend business development?" The defendant objected. One of the grounds of objection was that it was not the intention of the witness that was material but that of the commission. The court then stated, "I think you are going to have to rephrase your question. I will sustain the objection to your question." An exception was taken and no further questioning is noted in the record or appendices. Evidence of the individual views of one member of a zoning commission is not competent to show the reasons actuating the commission or the grounds of its decision. Welch v. Zoning Board of Appeals, 158 Conn. 208, 214, 257 A.2d 795; Thayer v. Board of Appeals, 114 Conn. 15, 20, 157 A. 273; see also Woodford v. Zoning Commission, 147 Conn. 30, 31, 156 A.2d 470. It is obvious that the ruling was based on this principle. Moreover, there is no indication of any further effort by the plaintiffs to pursue the subject on other grounds. See Bridgeport Pipe Engineering Co. v. DeMatteo Construction Co., 159 Conn. 242, 251, 268 A.2d 391. The plaintiffs next contend that the defendant commission did not adopt a comprehensive plan of zoning but rather intended to regulate the business and industrial growth of the town on a case by case basis. The statements of the chairman in response to a question only indicated that if there were a need for change of zone, "if business might be inclined to go in that direction," then "it was highly possible" there would be zone changes. In answer to another inquiry, the chairman stated that if a business were to be expanded more than 25 percent there would be need for a public hearing. There was no indication whether that meant a public hearing of a zoning commission or a board of appeals. He continued in answer to the same inquiry that "in all probability" if "because of more business coming in there and this is the direction it may go, we'll probably welcome it and change accordingly." Such remarks are not an indication of an intent to control business and industrial growth on a case by case basis. The plaintiffs also point to the testimony of a witness relating to hearsay remarks of one member of the commission concerning zone changes for individuals. The question of credibility is for the trier; Malarney v. Peterson, 159 Conn. 342, 344, 269 A.2d 274; Banks v. Adelman, 144 Conn. 176, 179, 128 A.2d 534; it is evident that the court did not credit this testimony. An examination of the plan of development which contains 180 pages of text with numerous exhibits and appendices clearly shows a thorough consideration of the needs of the community, including those of the plaintiffs, and that the decision arrived at by the defendant commission was the result of a careful study.. The zoning regulations as enacted were in harmony and consistent with the plan of development. "Courts cannot substitute their judgment for the wide and liberal discretion vested in the local zoning authority when it is acting within its prescribed legislative powers. Summ v. Zoning Commission, 150 Conn. 79, 89, 186 A.2d 160; DeMeo v. Zoning Commission, 148 Conn. 68, 75, 167 A.2d 454; Tarasovic v. Zoning Commission . . . [147 Conn. 65, 71, 157 A.2d 103]. The courts allow zoning authorities this discretion in determining the public need and the means of meeting it, because the local authority lives close to the circumstances and conditions which create the problem and shape the solution. See Wade v. Town Plan & Zoning Commission, 145 Conn. 592, 595, 145 A.2d 597." Stiles v. Town Council, 159 Conn. 212, 218, 268 A.2d 395. The plaintiffs charge that the approval of the regulations and map by the defendant commission on July 21, 1970, was made by predetermination. This charge is based on extensive opposition expressed at the public hearing; the chairman's use of the past tense in referring to the action of the board at the hearing; the chairman's argumentative posture at the hearing; portions of the minutes of the defendant commission's meetings prior to the hearing; and the immediate approval of the regulations without change after the close of the hearing. The remarks of the chairman in response to inquir ies explained the proposed regulations, their effect, and the rights of amendment under proper conditions. They cannot he said to be argumentative or an indication that the commission had already predetermined adoption. Nor do the portions of the minutes of prior meetings of the commission which are included in the plaintiffs' appendix indicate predetermination. What they do indicate is an exercise of the commission's duty to prepare a tentative proposal that would meet the needs of the community in accordance with the plan of development. The commission, of necessity, had to propose tentative zoning regulations to comply with statutory requirements. It could not act in a vacuum. It is true that if the public hearing were held merely to comply with statutory requirements, with no thought of changing the proposal regardless of what might have developed at the hearing, the action of the commission would be arbitrary and invalid. By presenting tentative regulations, however, especially an original complete set of regulations, after a considerable amount of time preparing them, a tentative conclusion that the plan is desirable and worthy of adoption is not a predetermination. Couch v. Zoning Commission, 141 Conn. 349, 357, 106 A.2d 173. "The question is not whether there was evidence, circumstantial or otherwise, from which the court could have found that the commission, in advance of the public hearing, had made up its mind. The question is whether the court's refusal so to find was erroneous as a matter of law, or, conversely stated, whether the court was compelled as a matter of law so to find on the evidence before it, including the record of the proceedings of the commission." Pecora v. Zoning Commission, 145 Conn. 435, 444, 144 A.2d 48. An examina tion of all the instances which the plaintiffs claim add up to predetermination does not compel such a finding. The final claim is that the approval of the regulations and map on July 21, 1970, resulted in the confiscation of the plaintiffs' property. Whether such a claim can be made "until the function of the board of appeals has been called into play" need not be determined. See Florentine v. Darien, 142 Conn. 415, 426, 115 A.2d 328. Zoning regulations do involve to some extent restriction of use of property. State v. Hillman, 110 Conn. 92, 147 A. 294. The zoning regulations for the town of Litchfield allow nonconforming uses, expansion of nonconforming use up to 25 percent, and the right of appeal in instances of hardship. An examination of the record of the doings of the zoning commission, the exhibits, and the record on appeal does not show that the zoning regulations enacted on July 21,1970, were unreasonable, arbitrary or confiscatory to the plaintiffs. There is no error. In this opinion the other judges concurred. Zoning regulations which had previously been adopted in Litchfield were declared invalid in 1950. See Jack v. Torrant, 136 Conn. 414, 71 A.2d 705. The claim that the court erred in not finding one of the plaintiffs aggrieved need not be considered as this determination would have no effect on the result of this appeal. Four plaintiffs were found aggrieved, and consequently the issues relevant to all claimed errors on the part of the zoning commission are reviewed. "[General Statutes] Sec. 8-7a. evidence at hearings to be taken BY stenographer OR RECORDED. The zoning commission and zoning board of appeals shall call in a competent stenographer to take the evidence, or shall cause the evidence to be recorded by a sound-recording device, in each hearing before such commission or board in which the right of appeal lies to the court of common pleas."

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

The defendant's motion for a review of the trial referee's orders dated February 18, and April 4, 1975, in the appeal from the Superior Court for the judicial district of Waterbury is granted and the relief requested therein is denied.

House, C. J. This appeal arises from a paternity proceeding instituted by the plaintiff's verified petition dated October 5, 1972. Upon the filing of the petition, the Circuit Court issued a summons ordering the defendant to appear on October 30,1972, and show cause why the prayer of the petition should not be granted. The sheriff's return indicates that he made personal service of the summons on the defendant on October 21, 1972. On October 30, the court rendered judgment for the plaintiff reciting that the plaintiff appeared and was heard on that date, that the defendant made default of appearance, that the issues were found for the plaintiff, and that the defendant was found guilty. The judgment included an order that the defendant pay certain expenses incurred by the plaintiff and support until the child reaches the age of eighteen. The hearing was conducted pursuant to the provision of § 52-435a of the General Statutes that if a putative father fails to appear in court at the time and plaee prescribed in the court's summons "the court may hear the petitioner and enter such judgment and order as the facts may warrant." Unlike the situation on the usual appeal where a brief recital of facts sufficiently indicates the basis of the appeal, in the present case the procedural problems involved require a rather lengthy recital of the pleadings and procedures leading up to our consideration of the appeal. On November 9, 1972, the defendant filed a motion to "reopen" the judgment. The motion recited that the defendant had received the summons and on October 26, 1972, consulted Danbury Legal Services who informed him that he should deliver the petition and summons to them and that they would appear on the assigned date in Ms stead. It further represented that he did not realize the necessity of prompt action and mailed in the petition and summons wMeh resulted in a two-day delay as a result of wMeh Ms attorney did not appear at the assigned hearing and the default judgment ensued. The motion further recited that the defendant believed that he had a valid defense in that he had not associated with the plaintiff for a period of more than one month prior to the alleged date of conception. At the same time, the defendant filed an affidavit to the same effect. After a hearing, the motion to open the judgment was derned on December 14, 1972. On December 27, 1972, the defendant appealed "to the appellate division of the circuit court" from the denial of his motion to open the default judgment, stating that he wished to have reviewed "the court's conclusions upon the facts and the court's conclusions of law." The defendant submitted to the trial court a request for a finding and a draft finding. The draft finding contained six paragraphs of facts wMeh the defendant requested the court to find. In substance, they were the same as the representations made in his motion to open the judgment, which motion the court had denied. The draft finding also contained three conclusions of law which the defendant requested the court to reach and three claims of law which the defendant asserted he had made. The court made a finding of facts which recited that the defendant was summoned in response to the paternity proceeding petition, that the defendant failed to appear, that the court heard the petition and rendered judgment and an order as the facts warranted under § 52-435a of the General Statutes, and that the defendant within nine days moved to have the judgment "reopened," set aside and vacated. It did not find that the defendant had proved the facts recited in his draft finding with respect to his claimed reasons for not complying with the court's summons to appear at the hearing on the plaintiff's paternity complaint. On the basis of the facts it found proved, the court reached but one conclusion: "The defendant offered no evidence that he was prevented by mistake, accident or other reasonable cause from appearing and making a defense." The next move of the defendant was to file a motion to correct the finding by adding to it the three paragraphs of the defendant's draft finding concerning the claims of law he asserted he had made and to add as a conclusion of the court that the "[defendant showed reasonable cause why the judgment should be reopened, set aside or vacated." This motion to correct was denied by the court, and the defendant thereupon filed his assignment of errors. The assignment of errors was in two parts. Part A, captioned "Errors in Denying Motion to Correct Findings," consisted of four paragraphs claiming error in the denial of the motion to correct the finding by failing to add as admitted or undisputed facts the conclusion of law and three claims of law which he had submitted in his draft finding. Part B of the assignment of errors, captioned "Errors in Rulings Made During Course of Argument," asserted that the court committed error: (1) in ruling that relief under the provisions of § 286 of the Practice Book and § 52-212 of the General Statutes which specify the circumstances under which a judgment may be opened "is unavailable in any instance without a showing that defendant was prevented from appearing to make his defense by mistake, accident or other reasonable cause"; (2) in ruling that these Practice Book and statutory provisions must be narrowly and strictly construed; and (3) in ruling that the court is limited in its power over judgments to those provisions of the Practice Book and statutes. The defendant's motion to correct the court's finding disclosed in the record for the first time the reason for the lack of any reference to a transcript of the relevant evidence. It appears that the hearing on the motion to open the judgment was conducted in chambers with no stenographer present and, accordingly, there is no stenographic record of what transpired at that hearing or what evidence, if any, was offered in support of or opposition to the defendant's motion to open the judgment. In these circumstances, certain provisions of the Practice Book governing appeals to the Appellate Division of the Court of Common Pleas are pertinent. A finding is necessary in eases tried to the court when the appellant desires to have reviewed the court's conclusions upon the facts of the case. Practice Book § 778H. If any testimony is required for the proper presentation of the issues on an appeal, it is incumbent on the appellant to file a transcript of such testimony as is relevant to the issues on the appeal. Practice Book § 778K. Where any party contemplates the taking of an appeal, he should request of the trial judge that stenographic notes of the proceedings be made under the provisions of § 51-70a of the General Statutes, and, if the party fails to do so and subsequently takes an appeal, he waives the right to assign errors where a transcript of the evidence or any portion thereof is necessary to present the matter to the appellate panel of the Court of Common Pleas. Practice Book § 778N. In cases where the court has made a finding and there is no transcript of evidence available, the parties may nevertheless move to correct the finding — but the parties may not assign error in the court's action on such motions. Practice Book § 779A. In the absence of a transcript and in light of these provisions of the Practice Book, the filing of the defendant's assignment of errors addressed to the court's denial of the motion to correct its finding was clearly improper. Due to the absence of a transcript of the hearing on the motion to open the judgment, which in turn was due to the failure of the defendant to request one in accordance with § 778N of the Practice Book, there is, of course, nothing to support the defendant's attack on the finding of the court that the defendant offered no evidence that he was prevented by mistake, accident or other reasonable cause from appearing and making a defense. In these circumstances, having failed to follow the proper procedure prescribed by the rules of practice to have a transcript available, and in the absence of anything whatsoever by way of transcript or record to indicate what, if any, evidence was presented to the trial court in support of or in opposition to his motion to open the judgment, the defendant attempted to cure the deficiency in part by means of a stipulation as to the claims of law which he had made in support of his motion. Section 779B of the Practice Book does provide for a measure of relief to a party who, like the defendant, attempted to take an appeal from the Circuit Court without having previously requested that stenographic notes be taken of the proceedings giving rise to the appeal. It provides that where there is no transcript of evidence available an appellant may not assign error with respect to rulings on evidence or other rulings made during the trial unless he can agree with the appellee as to the substance of such rulings and such agreement is endorsed by the parties on the assignment of errors. In accordance with the procedure contemplated by § 779B, the parties did agree and endorse on the assignment of errors that the defendant did raise two issues of law in the trial court. The first was that the defendant claimed that relief was available under § 52-212 of the General Statutes and § 286 of the Practice Book to open a judgment without a showing that the defendant was prevented by accident, mistake or other reasonable cause from appearing to make this defense. On this claim, the eourt ruled that relief under those provisions is unavailable without a showing that the defendant was prevented from appearing to make his defense by accident, mistake or other reasonable cause. The second issue of law raised was that the defendant claimed that the eourt has powers over its judgments not limited by § 52-212 and § 286 "and may reopen, set aside or vacate them." The court did not make an express ruling as to this claim. Without any transcript of evidence to support an attack on the court's findings of fact, the defendant next attempted to cure that deficiency and reconstruct the evidence produced at the hearing by the device of a "Motion to Correct Appeal." In this motion, addressed to the trial court, he set out what is in substance a repetition of the draft finding he had previously filed, reciting his version of what had transpired at the hearing on the motion to open the judgment, what evidence he claims the defendant offered and what arguments and claims were made, all substantially the same as previously asserted in his prior motion to correct the finding, which motion had been denied. The court also denied this motion and the defendant thereupon filed a "Motion for Review of Decision Concerning Rectification of Appeal" in which he repeated the contents of his denied "Motion to Correct Appeal," stating that the trial court had refused to correct the finding by including these recitals as facts found by the court and had also refused the defendant's motion to correct the appeal to find the same facts. He moved "that the Appellate Division of the Court of Common Pleas correct the record, so that the above stated facts appear therein." The plaintiff in reply filed in the appellate court her objections to the defendant's motion for review of the decision denying his motion to correct or rectify the appeal, relying upon the provisions of § 622 and 623 of the Practice Book, and particularly the provision of § 779A that an appellant may not assign error as to the trial court's decision on a motion to correct the finding where there is no transcript of evidence. On the record as it thus stood, the appeal was heard by the Appellate Division of the Court of Common Pleas. On the petition to this court for certification for appeal, the record, as submitted pursuant to the provisions of § 748 of the Practice Book, included neither any record of judgment by the Appellate Division of the Court of Common Pleas nor any opinion of the panel of judges who heard the appeal. Whether this court would have granted certification if the complete record had been submitted as the Practice Book requires is now an academic question. Since the matter has been fully argued and we have acquired a copy of the judgment from the original court file and a copy of the opinion of the Appellate Division which we found upon inquiry did exist, we have decided to rule on the merits of the appeal. The judgment of the Appellate Division discloses that while not expressly ruling on the defendant's motion for review of the decision concerning rectification of the appeal, the panel rendered judgment finding that "there is no error in the record, judgment, proceedings and decisions of the Circuit Court" and dismissed the appeal. We find no error in the judgment of the Appellate Division. The trial court's finding of facts amply supports its conclusion and we cannot go behind that finding. The failure of the defendant to avail himself of the provisions of § 778N of the Practice Book so that a transcript of the hearing on the motion to open the judgment would be available precludes him from attacking that finding on appeal as unsupported by the evidence. His attempt to remedy the deficiency by motions to correct the appeal and for review of the trial court's denial of his motion for rectification is unavailing. Such an attempted reconstruction of the evidence offered at trial is not a permissible alternative to a transcript. See Practice Book §• 778N, 779A, 675, 622 and 623. Nor, in the event of such reconstruction, and in the absence of a new trial, would there be any way to determine the weight and credibility which a trier would accord to such evidence. Similarly, assertion of error in rulings on claims of law can be validly tested only by their relevancy and application to the facts as found by the court. On the existing record, neither the Appellate Division of the Court of Common Pleas nor this court can find any error in the decision of the trial court, lacking knowledge of what evidence was submitted to it and of the weight and credibility it accorded to any evidence and testimony of any witnesses it heard. There is no error. In this opinion the other judges concurred. Since there is no cause to make further reference to the court's summons served on the defendant to appear in court at a time certain, we deem it pertinent to comment at this point that our failure to discuss the subject further should in no way be interpreted as approval of the appearance of an attorney in lieu of the appearance of a person summoned to appear personally before a court. It is noted that pursuant to the provisions of § 7 of the 1971 Publie Acts, No. 870, effective September 1, 1971 (now General Statutes § 51-265), appeals from the Circuit Court were no longer to be taken to an appellate session of the Circuit Court but to an appellate session of the Court of Common Pleas. Since the fact that the appeal was taken to the wrong appellate court appears not to have been raised in the proceedings below, and that the appeal was in fact heard and determined by an appellate session of the Court of Common Pleas, we have decided to consider the appeal as if it were taken to the proper court. "[General Statutes] Sec. 51-70a. parties may request stenographic notes be taken in circuit court. When any party in any proceeding in the circuit court, except a small claims session, requests that stenographic notes of the proceedings be made, the judge before whom the matter is pending shall call in an official court reporter . . . , who shall be sworn to the faithful performance of his duties. The compensation of such court reporter . . . for attendance and his fees for making copies shall be fixed by the judge at a rate not greater than the rate established for the official court reporter of the superior court. The fee for a transcript of such notes, when made for the court or for the prosecuting attorney, shall, upon the certificate of the judge before whom the matter is pending, be paid by the state as other court expenses, and in all other cases by the party ordering the same, and such copies shall bo furnished within a reasonable time." (Later amended by Public Acts 1974, No. 74-183 § 44.)

It appearing that the defendant has failed to defend with proper diligence against the plaintiff's appeal and that it has failed to prosecute with proper diligence its cross appeal from the Court of Common Pleas in Hartford County, it is, under Practice Book § 696, ordered by the Supreme Court, suo motu, that unless the defendant files its brief in the plaintiff's appeal on or before June 4, 1975, the judgment be set aside and the case be remanded with direction to render judgment for the plaintiff; and, further, it is ordered by the Supreme Court, suo motu, that unless the defendant files its brief in its cross appeal on or before June 4, 1975, the cross appeal be dismissed.

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

Per Curiam. This is an appeal by the defendant from a judgment granting the plaintiff a divorce on the grounds of intolerable cruelty, awarding her alimony of one dollar per year and ordering the conveyance to her of the defendant's interest in the jointly owned property of the parties. The defendant's basic claims are that the court erred: (1) in refusing to recognize the validity of a prior decree of divorce granted to the defendant in Mississippi on the ground that the defendant was not a bona fide resident of that state; (2) in granting a divorce to the plaintiff in the absence of any finding of intolerable cruelty; and (3) in awarding alimony to the plaintiff and transferring to her the defendant's interest in the jointly owned property. To the defendant's special defense that a Mississippi court had dissolved the marriage prior to the date of the trial in Connecticut, as evidenced by a certified copy of the Mississippi decree, the plain tiff filed a reply alleging that the Mississippi court lacked jurisdiction to enter that decree because neither party was an actual bona fide resident of the state of Mississippi for one year prior to the commencement of the Mississippi action as required by the laws of that state. Although the court found that the defendant left Connecticut in the summer of 1971 to take employment in Mississippi, purchased a house and lot in Mississippi in August, 1971, and did not return to Connecticut until December, 1972, for the purpose of attending the trial of this action, it concluded that "[t]he defendant failed to prove that he was a bona fide resident of the State of Mississippi for one year prior to the commencement of this suit for divorce in said state" in August, 1972, and that "[s]ince the Mississippi court was without jurisdiction to grant a decree of divorce [to] the defendant, the Court was not required to give the Mississippi Court Decree full faith and credit." It is obvious from the specific wording of the finding as well as from the language in the memorandum of decision that the court erroneously imposed upon the defendant the burden of proving that he was a bona fide resident of the state of Mississippi for the one-year period prior to the commencement of his divorce action necessary to give the Mississippi court jurisdiction to grant a valid decree. The plaintiff's reply to the special defense alleged that the Mississippi court lacked jurisdiction and it has been clearly stated by this court in Rice v. Rice, 134 Conn. 440, 447, 58 A.2d 523, aff'd, 336 U.S. 674, 69 S. Ct. 751, 93 L. Ed. 957, following Williams v. North Carolina, 325 U.S. 226, 234, 65 S. Ct. 1092, 89 L. Ed. 1577, that the burden of proving an allegation of lack of jurisdiction under circumstances similar to those involved here falls upon the party making that claim — in this instance, the plaintiff, who introduced no evidence whatsoever to dispute the fact that the defendant was properly domiciled in Mississippi at the time he commenced his divorce action there or that he had been a resident there for more than one year prior to that time. Rather, the plaintiff apparently relied upon her claim that the defendant, by admitting the allegation in the complaint that "[t]he address . of the defendant [is] 214 Niantie River Road, Waterford, Connecticut," judicially admitted that he was still a resident of Connecticut. The defendant at that time shared with the plaintiff ownership of the property located at that address. An "address" is not domicil, and a person may have simultaneously two or more residence addresses but only one domicil at any one time. Clegg v. Bishop, 105 Conn. 564, 570, 136 A. 102. Jurisdiction to grant a divorce is founded on domicil and not residence or address; Rice v. Rice, supra, 445; Williams v. North Carolina, supra, 229; and the court erred in failing to recognize the validity of the Mississippi divorce decree under the constitutional mandate of full faith and credit; Williams v. North Carolina, 317 U.S. 287, 298, 299, 63 S. Ct. 207, 87 L. Ed. 189; even though the plaintiff made no appearance in the Mississippi proceedings. Estin v. Estin, 334 U.S. 541, 544, 68 S. Ct. 1213, 92 L. Ed. 1561. Moreover, quite apart from any consideration of the effect of the Mississippi divorce in terminating the marriage relationship prior to the trial in Connecticut, there is no finding by the court relative to a single act of intolerable cruelty to support its conclusion that the defendant "has been guilty of intolerable cruelty to the plaintiff," as alleged in the complaint, or even to link any conduct by the defendant to the supplemental finding that "by December, 1970, the conditions were intolerable to the plaintiff." The court's conclusions are tested by the finding; New Haven v. United Illuminating Co., 168 Conn. 478, 483, 362 A.2d 785; and there is no finding to support a conclusion either that there were acts of cruelty on the part of the defendant or that any acts of his were intolerable in the sense of rendering the continuance of the marital relation unbearable by the plaintiff. The defendant's claim of error in the court's award of alimony to the plaintiff and in its transfer to her of the defendant's interest in jointly owned real estate is based not upon the theory that the Connecticut courts have no authority to adjudicate the rights and equities of the parties with respect to property located in Connecticut but that such an adjudication cannot be accomplished by a divorce action in which, as in this ease, the divorce sought could not properly be granted. Then § 46-21 of the General Statutes, pursuant to which the foregoing orders were made, provided in relevant part: "The superior court may assign to any woman divorced by such court a part of the estate of her husband and, in addition thereto or in lieu thereof, may order alimony to be paid from the husband's income . . . ." (Emphasis added.) Since we have concluded that the trial court could not, for the reasons given, properly grant a divorce to the plaintiff and that, in effect, the defendant was not her husband at the time the judgment herein was rendered, it follows that the court could not, as incidental to the entry of a decree of divorce, order the defendant to pay alimony or to transfer any part of his estate to the plaintiff. See Christiano v. Ghristiano, 131 Conn. 589, 594, 41 A.2d 779; Dunham v. Dunham, 97 Conn. 440, 443-44, 117 A. 504. There is error, the judgment is set aside and the case is remanded with direction to render judgment for the defendant.

Cotter, J. The plaintiffs have appealed from a judgment dismissing their complaint and denying an injunction and other relief by means of which they sought to effect the removal of a transmission line and supporting structures under construction by the defendant The United Illuminating Company, Inc., hereinafter called UI, within the city of New Haven. The material facts are as follows: The defendant UI applied to the defendant public utilities commission, hereinafter called the PUC, on October 6, 1970, for permission to construct a 115-KV overhead electrical transmission line within a 45-foot- wide right of way across property owned by the Penn Central Transportation Company, hereinafter called the railroad. This right of way runs generally northerly along the rear of property owned by the plaintiffs New Haven Housing Authority, Bertha Lenart and Anua M. Buotolo, from UI's Quinnipiac substation to the rear of the Cedar Hill freight yards, all within the city of New Haven. The line was to be placed upon towers to be constructed by UI within the right of way of the railroad and includes the right of way containing the line which was being used for transportation of railroad passengers and freight service. The PUC gave written permission on November 12,1970, to UI to build the line over the right of way as requested. Subsequently, on April 12, 1971, UI applied to the PUC to modify its plans for the construction of the proposed line; the application was granted that same day. Finally, on April 18, 1971, UI applied for permission to extend the line and supporting towers from the Cedar Hill freight yards to UI's Grand Avenue substation; the PUC granted this application on April 29, 1971. In the meantime, the New Haven board of aider-men had passed an ordinance on December 7, 1970, purporting to regulate the location and construction of all overhead electrical transmission lines within the city, including lines located on private property. This ordinance, referred to as § 120 of the code of ordinances of the city of New Haven, was to become effective on January 14, 1971. On July 6, 1971, without conceding the validity of the ordinance, UI submitted a letter formally noti fying the hoard of aldermen of its plans to construct the transmission line. Later, after newspaper advertisements appearing on August 16 and 17, 1971, the hoard's municipal services committee reported favorably on UI's plans. In addition, a public hearing was held on November 22, 1971, by the committee concerning this report, following further newspaper advertisements of November 7, 8, 9, 19, 20, and 21. Construction of the towers to support the transmission line was initiated by UI in March, 1972; thereafter, on April 3, 1972, the board of aldermen rejected the municipal services committee's report favoring the plans. The conductors of the transmission line were strung in February, 1973. At the time of the trial the line was in operation to serve UI's Quinnipiac substation. The action in Superior Court was commenced by the plaintiffs by complaint dated May 15,1972. The matter was decided on the basis of exhibits in the return, those presented to the court at the hearings and on a stipulation of facts agreed to by the parties. The parties also agreed that the court should hear and decide two issues of law raised by those facts, the court's determination of these issues in favor of the defendants to be dispositive of the case. These two issues were: "(a) Was there a legal requirement that the PUC give notice, or afford a hearing to the City, or other plaintiffs prior to or after rendering its orders [on November 12, 1970, on April 12, 1971, and on April 29, 1971, granting the aforementioned applications submitted by UI] ? (b) Is the aforesaid Section 120 of the Code of Ordinances of the City of New Haven within the power of the Board of Aldermen and valid, and was such ordinance applicable to the line in question?" The court decided both issues in favor of the defendants. I The plaintiffs have attacked several findings and conclusions which form the basis of the court's determination that the plaintiffs were not entitled to notice or a hearing prior to or after the approval by the PUC of UI's proposed construction of the transmission line. The court's conclusions are tested by the finding and must stand unless they are legally or logically inconsistent with the facts found or involve the application of some erroneous rule of law material to the case. Lonergan v. Connecticut Food Store, Inc., 168 Conn. 122, 124, 357 A.2d 910. Moreover, this court will not alter findings of fact made by the trial court which are reasonably supported by the evidence or which are based on inferences reasonably drawn from the evidence. Schurgast v. Schumann, 156 Conn. 471, 475, 242 A.2d 695. A Initially, the plaintiffs claim they were entitled to notice and a hearing under various Connecticut statutory provisions. 1. General Statutes § 16-234 provides, in pertinent part: "No . . . electric light company or association, nor any company or association engaged in distributing electricity by wires or similar conductors or in using an electric wire or conductor for any purpose, shall exercise any powers which may have been conferred upon it to change the location of, or to erect or place, wires, conductors, fixtures, structures or apparatus of any kind over, on or under any highway or public ground, without the consent of the adjoining proprietors, or, if such company or association is unable to obtain such consent, without the approval of the commission, which shall be given only after a hearing upon notice to such proprietors." (Emphasis added.) The trial court found that the transmission line in question is located entirely within the right of way owned by the railroad and concluded that this right of way is neither a "highway" nor "public ground" within the meaning of § 16-234, and that the aforementioned statute did not require that either notice or a hearing be afforded to any of the plaintiffs prior to or after the PUC's approval of the transmission line. The plaintiffs have assigned error in the court's finding and conclusions, and they argue that the statute applied and required such notice and hearing. The challenged finding, that the transmission line is located entirely within the railroad's right of way, is amply supported by the facts in the stipulation and by the statements appearing in the exhibits. Thus, the stipulation expressly indicates that the first segment of the transmission line was to be constructed "within a 45-foot wide right-of-way across property owned by the Penn Central Transportation Company." Furthermore, two of Ill's applications to the PUC contain statements that this first segment of the line would be within and along the railroad's right of way. In addition, the third application, which concerns the construction of the second segment of the line, expressly states that all construction would be within the right of way. The court's conclusion that the railroad's right of way is not a "highway" as contemplated by § 16-234 also rests on a firm basis. It is well settled that a statute must be applied as its words direct. Dental Commission v. Tru-Fit Plastics, Inc., 159 Conn. 362, 365, 269 A.2d 265; Obuchowski v. Dental Commission, 149 Conn. 257, 265, 178 A. 537. Moreover, words and phrases in a statute are construed according to their commonly accepted usage. Klapproth v. Turner, 156 Conn. 276, 280, 240 A.2d 886. Indeed, if the statutory language is clear and unambiguous, there is no room for construction. United Aircraft Corporation v. Fusari, 163 Conn. 401, 411, 311 A.2d 65. To determine the meaning of a word used in a statute, we may look to related statutory provisions for guidance. Bania v. New Hartford, 138 Conn. 172, 176-77, 83 A.2d 165; see also Waterford v. Connecticut State Board of Education, 148 Conn. 238, 243, 169 A.2d 891. Our attention has not been directed to anything which would persuade us that the word "highway" as used in § 16-234 includes within its reach a right of way such as is owned by the railroad in the present case. The plain meaning of the word "highway" is "[a] main road or thoroughfare; hence, a road or way open to the use of the public." Webster's New International Dictionary (2d Ed.) 1179. It is thus that this court has customarily understood the word. We have stated, for example, that the essential feature of a highway is that "every traveler has an equal right in it with every other traveler." Laufer v. Bridgeport Traction Co., 68 Conn. 475, 488, 37 A. 379. As the trial court stated in its memorandum of decision, "the term 'highway' is ordinarily used in contradistinction to a private way, over which only a limited number of persons have the right to pass." Stavola v. Palmer, 136 Conn. 670, 683, 73 A.2d 831. Moreover, while chapter 283 of title 16 of the General Statutes, of which § 16-234 is a part, nowhere defines the words "highway" or "right of way," the two terms are differentiated from one another in chapter 279 of title 16. In § 16-96 of the General Statutes, for example, it is stated that "[wjhen any highway or street is altered by any railroad company with the consent of the commission, and it is necessary to take any land for a highway to which such company has not-obtained title, and over which neither such company nor the town in which such alteration is made has any right of way, . . . the same proceedings shall be had for the purpose of procuring the required right of way as are provided in section 16-86 for taking land for railroad purposes." (Emphasis added.) Finally, there is nothing in the statute itself suggesting that a judicial reading of the word "highway" so as not to include the railroad's right of way in this case would in any way frustrate the overall purpose of the statute. Northeastern Gas Transmission Co. v. Collins, 138 Conn. 582, 592, 87 A.2d 139. Nonetheless, as the court also found, portions of the railroad right of way within which the transmission line is located pass over or under six streets in New Haven, viz., Grand Avenue, Middletown Avenue, Blatchley Avenue, Humphrey Street, Ferry Street and James Street. Accordingly, the plaintiffs argue that the transmission line is, in effect, being erected or placed "over, on or under any highway" within the meaning of § 16-234, so that, contrary to the court's conclusion, the giving of notice and a hearing was a prerequisite to the PUC's approval of the line. The statute, however, requires only that notice and a hearing be afforded to "adjoining proprietors" who refuse to consent to the proposed construction. The record does not disclose, nor do the plaintiffs claim, that the plaintiffs housing authority, betterment association, neighborhood association, or the two individual plaintiffs, are proprietors adjoining the street crossings which they assert to be relevant. According to the unchallenged stipulated facts found by the court, the only property involved in this case owned by any of these plaintiffs is property on Quinnipiac Avenue, which the route maps presented to the court as exhibits indicate are not crossed by the transmission line. The claim has been made that the plaintiff city of New Haven, as the "owner" of the city streets crossed by the transmission line within the railroad right of way, constitutes an "adjoining proprietor" entitled to notice and a hearing by § 16-234. Such a theory, however, is at odds with the plain meaning of the term "adjoining proprietors" as it is used in § 16-234. See, e.g., Mitchell v. Southern New England Telephone Co., 92 Conn. 633, 635, 103 A. 754. The purpose of this provision is manifestly to make the procedural safeguards of notice and a hearing available to owners of property contiguous to the highway or public ground over, on, or under which the transmission line or other facility in question is erected or placed. This is the meaning generally ascribed to the term "adjoining" when used in reference to property owners or holders. State ex rel. Boynton v. Bunion, 141 Kan. 103, 105, 40 P.2d 326; Broun v. Texas & N. O. B. Co., 295 S.W. 670, 674 (Tex. Civ. App.); 1 Am. Jur. 2d, Adjoin ing Landowners, § 1; Black's Law Dictionary (4th Ed. Rev.) 62. No showing has been offered or made in this case that the plaintiff city is a proprietor "adjoining" any of the streets crossed by the railroad's right of way within the meaning of the pertinent provisions of § 16-234. Accordingly, the court did not err in concluding that none of the plaintiffs in this case was entitled to notice and a hearing under § 16-234. 2. There is no dispute over the court's conclusion that in entering its orders the PUC was exercising its jurisdiction under § 16-243 of the General Statutes. In addition, the plaintiffs concede in their brief that this statute did not by its terms- require notice and a hearing prior to the issuance of PUC's orders in the present case. Nonetheless, they argue that this provision must be considered in light of the "entire statutory scheme" affecting these proceedings. Specifically, they claim that the statutory grant of a right of appeal to the Court of Common Pleas under § 16-35 of the General Statutes to any city or person, inter alia, "aggrievéd" by an order, authorization, or decision of the PUC would be "meaningless" if the PUC were not also required to give notice of its order, authorization or decision in a timely manner after filing such order, authorization, or decision but before the thirty days allowed by § 16-35 to bring an appeal has expired. The plaintiffs further claim that they received no formal notice of the PUC's actions until July 6, 1971, more than thirty days after the PUC had given its final approval of UI's proposals (April 29, 1971). Their argument, in essence, is that, when read together, §4 16-243 and 16-35 constituted a "legislative direction" to the PUC to notify the plaintiffs formally of its action within the statutory appeal period. Accordingly, they have assigned error in the court's refusal to rule on claims of law in which they advanced this interpretation of the statute. There might be more force to the plaintiffs' claims in this respect had there been any showing in the trial court that they were "aggrieved" in some way by the PUC's orders for purposes of taking an appeal under § 16-35, as the meaning of that term was recently discussed by this court in New Haven v. Public Utilities Commission, 165 Conn. 687, 698-704, 345 A.2d 563. However, the trial court, on the basis of the stipulated questions properly before it and because this action was not brought under the appeal statute, $ 16-35, had no occasion to determine whether any of the plaintiffs had been so "aggrieved," and whether, as a result, the PUC was subject to the purported "legislative direction" claimed by the plaintiffs. The court did not err, then, in declining to rule on the asserted claims of law of the plaintiffs; rather, in view of the limited scope of the stipulated questions, its conclusion that the plaintiffs were not entitled to notice after the approval of the transmission line by the PUC under § 16-243 properly precluded any consideration of these claims. 3. The plaintiffs have also assigned error in the court's conclusion that § 16-9 of the General Statutes did not require that written notice of the PUC's approval of the transmission line be given to the plaintiffs. The statute states that such notice "shall be given to the company or person affected" by the PUC's orders, decisions or authorizations in question. We construed a similar notice provision in General Statutes (Rev. 1949) § 5646, which was the predecessor to General Statutes § 16-235 and which pertained to the scope of the power of a local zoning commission over the location of a public service generating plant, to require the issuing authority to provide written notice of its orders only upon those who were "under a duty to comply with the order," e.g., the party who seeks the ruling from the issuing authority. Wilson Point Property Owners Assn. v. Connecticut Light & Power Co., 145 Conn. 243, 266, 140 A.2d 874. In reaching this conclusion, we stated: "It would be unreasonable to suppose that the legislature, in providing for the giving of written notice of the order of the zoning commission, intended that personal service should be made upon every property owner who might claim to be personally affected." The same considerations persuade us that a similarly restrictive interpretation of the notice provision in § 16-9 is warranted here. The fact that the legislature used the words "the company or person" instead of "the companies or persons" suggests that it intended that notice should be given to the applicant, if the order were issued in response to an application, or, in other cases, to the party to whom the order was directed. We conclude that the court correctly interpreted and applied the notice provision of § 16-9 to the facts as stipulated in the proceedings below. 4. Finally, the plaintiffs have assigned error in the court's conclusion that section 16-11-139 of the PJTC's regulations pertaining to electrical standards and specifications did not require either notice to or consent from the city of New Haven prior to or after the approval of the transmission line. The PUC regulation in question states that a petition to the PUC for approval of a transmission line "shall he accompanied" by, inter alia, "copies of letters from each . . . municipality or other utility affected, stating that it has been notified of the details of the proposed line and that it offers no objection to the method or manner of construction." Begs., Conn. State Agencies §16-11-139(2). The term "municipality" is defined in the regulations to mean "a town, city, borough or any municipality or department thereof, owning, leasing, maintaining, operating, managing or controlling electric plants or parts of electric plants within this state." Id. § 16-11-100 (b). The court concluded that the plaintiff city is not a "municipality" as defined in § 16-11-100 (b), a conclusion which the plaintiffs have assigned as error. In connection with this conclusion, the court made a finding which the plaintiffs do not challenge: from 1946 through 1973, it was the consistent practice of the PUC to interpret the regulations in question such that no city was construed to be a "municipality" under § 16-11-100 (b) unless it owned, leased, maintained, operated, managed or controlled an electric plant. The court also found that there was no evidence that during any time relevant to the action the city of New Haven owned, leased, maintained, operated, managed or controlled any electric plant or part thereof, and thereupon concluded that the city was not a "municipality" under § 16-11-100 (b). The court properly attached the weight it did to the past interpretation of the term "municipality" in § 16-11-100 (b) by the PUC in reaching this conclusion. We have stated that "[t]he practical interpretation of legislative acts by governmental agencies responsible for their administration is a recognized aid to statutory construction." State ex rel. James v. Rapport, 136 Conn. 177, 182, 69 A.2d 645. Indeed, it has been said that where the governmental agency's time-tested interpretation is "reasonable" it should be accorded "great weight" by the courts. Investment Company Institute v. Camp, 401 U.S. 617, 626-27, 91 S. Ct. 1091, 28 L. Ed. 2d 367. In this case, the term "municipality" was not part of a statute enacted by the legislature, but, rather, part of the PUC's own regulatory scheme dealing with electrical standards and specifications. Our review of this regulatory scheme discloses that the PUC's interpretation of the term was indeed reasonable, particularly in view of the notable absence of ambiguity in the language used in the definition of the term in § 16-11-100 (b). The court, then, was fully warranted in accepting the PUC's long-standing interpretation of the term appearing in one of its own regulations and applying it to the facts of the case at hand. See Zuber v. Allen, 396 U.S. 168, 192, 90 S. Ct. 314, 24 L. Ed. 2d 345. We find no fatal inconsistencies then in its ultimate conclusion that 116-11-139 of the regulations did not require notice to or consent from the plaintiff city prior to or after the PUC's approval of the transmission line. B The plaintiffs have also assigned error in the court's conclusion that the due process clauses of the fourteenth amendment to the United States constitution and article first, § 8, of the Connecticut constitution did not require that either a notice or a hearing be afforded to any of the plaintiffs prior to or after the approval of the transmission line by the PUC. To determine whether such procedural due process requirements apply, the court must first determine whether a party has been deprived of liberty or property by some action of the government; furthermore, in making this determination, "we must look not to the 'weight' but to the nature of the interest at stake," any "weighing process" being relevant only to a "determination of the form of hearing required in particular situations." Board of Regents v. Roth, 408 U.S. 564, 570-71, 92 S. Ct. 2701, 33 L. Ed. 2d 548; see also Goss v. Lopez, 419 U.S. 565, 95 S. Ct. 729, 42 L. Ed. 2d 725. In this case, the plaintiffs argue that the photographic exhibits which the court incorporated into its finding establish that the towers and lines constructed as part of the project approved by the PUC interfered with the plaintiff housing authority's enjoyment of light, air and view appurtenant to its ownership of real property. It is true, of course, that "the property interests protected by procedural due process extend well beyond actual ownership of real estate, chattels, or money." Board of Regents v. Roth, supra, 571-72. Nonetheless, "[pjroperty interests . . . are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law." Board of Regents v. Roth, supra, 577; see also Goss v. Lopez, supra; cf. Gotkin v. Miller, 379 F. Sup. 859, 868 (E.D. N.Y.). To invoke the requisites of procedural due process legal rights of parties must be directly affected. Hannah v. Larche, 363 U.S. 420, 422, 80 S. Ct. 1502, 4 L. Ed. 2d 1307. Neither the stipulated facts as found by the court nor the exhibits incorporated in its finding disclose the existence of any statute, contract, or easement, express or implied, which might conceivably serve as the basis for its claimed right to light, air, and view unobstructed by such structures as the towers and lines involved in this case. See General Statutes § 47-25; Harris v. Pease, 135 Conn. 535, 539, 66 A.2d 590; Puorto v. Chieppa, 78 Conn. 401, 404, 62 A. 664; Robinson v. Clapp, 65 Conn. 365, 384, 32 A. 939; 1 Am. Jur. 2d, Adjoining Landowners, §89-90; 29 C.J.S., Electricity, § 17. In short, the plaintiffs failed to establish that the PUC's approval of the transmission line operated so as to deprive the plaintiff housing authority of a constitutionally protected property interest in the light, air and view appurtenant to its ownership of the property in question. In this respect, then, the court's conclusion that procedural due process did not require notice or a hearing was proper under the circumstances of this case. The only other argument advanced by the plaintiffs in support of their claim of error in this conclusion by the court is that the plaintiff city of New Haven was "aggrieved" by the PUC's action within the meaning of General Statutes § 16-35. However, as we pointed out previously, the court did not find, nor did it have reason to find, that the plaintiff city of New Haven was "aggrieved" in this case. Determining aggrievement for purposes of bringing an appeal from an administrative agency pursuant to a statute such as § 16-35 is procedurally different from determining whether a party has been deprived of a constitutionally protected property interest and is entitled to notice and a hearing under the due process clauses of the federal and state constitutions. The plaintiffs betterment association, neighborhood association and the individual plaintiffs have not specifically delineated or proved the existence of any constitutionally protected property interest which would entitle them to notice or hearing. We need not consider the additional claims of error in the rulings of the court related to this conclusion since to do so would not affect our decision as to its propriety. II Error has also been assigned in the court's conclusion that § 120 of the code of ordinances of the city of New Haven was beyond the power of its board of aldermen to enact and invalid. We have stated that "[a]s a creature of the state, a munic ipality can exercise only such, powers as are expressly granted it or such, powers as are necessary to enable it to discharge the duties and carry into effect the objects and purposes of its creation." New Haven Water Co. v. New Haven, 152 Conn. 563, 566, 210 A.2d 449. Significantly, exclusive jurisdiction over the manner of construction and direction of overhead electric transmission lines located upon private property has been granted by statute to the PUC. General Statutes §16-243; Connecticut Light & Power Co. v. Costello, 161 Conn. 430, 444, 288 A.2d 415. Municipalities have been expressly precluded from exercising jurisdiction over such subject-matter by General Statutes § 16-235. The court in this ease properly found that the transmission line in question is located entirely within the railroad's right of way, which is neither a highway nor public ground as contemplated by § 16-234 of the General Statutes. The exclusivity of the PUC's jurisdiction over the construction of transmission lines located upon such private property as the railroad's right of way in this case is subject to no exceptions or limitations identified in the statute which are relevant to this case. Contrary to the claim of the plaintiffs the court properly concluded that the board of aldermen lacked the power to enact the ordinance in question insofar as it purported to regulate the construction of overhead transmission lines located upon private property. Furthermore, the plaintiffs' claim that UI waived its rights to assert the invalidity of the ordinance is without foundation, inasmuch as the court's conclusion to the contrary is fully supported by the statement in UI's letter of July 6, 1971, to the board of aldermen that "by this letter [UI] does not intend to waive or foreclose any claim it may hereafter make regarding the limits of power vested in your Board by Section 16-235 of the General Statutes." We need not consider the plaintiffs' other claims of error since to do so would not affect the result in this case. There is no error. In this opinion the other judges concurred. The plaintiffs are the city of New Haven, the New Haven Housing Authority, the Fair Haven Betterment Association, Inc., the East Bock Neighborhood Association, Inc., and certain property owners whose premises abut or adjoin the railroad right of way over which the transmission line is being constructed. Title 16 of the General Statutes involves, generally, "public service companies." Chapter 283 concerns "telegraph, telephone, illuminating, power and water companies." Chapter 279 pertains to "railroad construction and location." The plaintiffs have not claimed that the court erred in concluding that the railroad's right of way is not "public ground" within the meaning of § 16-234; thus the propriety of the court's decision in this respect need not be discussed. "[General Statutes] Sec. 16-243. jurisdiction of commission over electricity transmission lines. The commission shall have exclusive jurisdiction and direction over the method of construction or reconstruction in whole or in part of each system used for the transmission of electricity, with the kind, quality and finish of all materials, wires, poles, conductors and fixtures to be used in the construction and operation thereof, and the method of their use, including all plants and apparatus used for generating electricity located upon private property upon which there are conductors capable of transmitting electricity to other premises in such manner as to endanger any person or property. The commission may make any order necessary to the exercise of such power and direction, which order shall be in writing and entered in the records of the commission. Each person or corporation operating any such system or generating plant shall, at its expense, comply with such order. Any person violating any provision of any such order shall be subject to the penalty prescribed in section 16-41." "[General Statutes] See. 16-35. appeals to court op common pleas. Any company, town, city, borough, corporation or person aggrieved by any order, authorization or decision of the commission, except an order, authorization or decision of the commission approving the taking of land, in any matter to which he or it was or ought to have been made a party, may appeal therefrom to the court of common pleas within thirty days after the filing of such order, authorization or - decision. The party so appealing shall give bond to the state, with sufficient surety, for the benefit of the adverse party, in such sum as the commission fixes, to pay all costs in case he or it fails to sustain such appeal." "[General Statutes] Sec. 16-9. ordees. All decisions, orders and authorizations of the commission shall be in writing and shall specify the reasons therefor, shall be filed and kept in the office of the commission and recorded in a book kept by it for that purpose and shall be public documents. Said commission may, at any time, for cause shown, upon hearing had after notice to all parties in interest, rescind, reverse or alter any decision, order or authorization by it made. Written notice of all orders, decisions or authorizations issued by the commission shall be given to the company or person affected thereby, by personal service upon such company or person or by registered or certified mail, as the commission determines." The plaintiffs have conceded the accuracy of this finding in their brief, thereby abandoning their earlier claim of error to the contrary. We have held that the due process clauses of both constitutions have the same meaning. Katz v. Brandon, 156 Conn. 521, 537, 245 A.2d 579. New Haven Code of Ordinances, Sec. 120: "No overhead electric transmission lines and towers shall be allowed hereafter in the City of New Haven, except as follows: A public service company may petition the Board of Aider-men for approval of an overhead transmission line and tower proposal by filing with the City Clerk detailed plans including a rendering of the proposed construction, together with a written application describing in full the compliance with the standards for review which are described below. The City Clerk shall refer the applications and plans to the appropriate committee of the Board of Aldermen for a public hearing thereon after at least two weeks' public notice. The Board of Aldermen shall obtain from -the City Plan Commission an advisory report on the proposal, which report shall be available at the time of the public hearing. The Board of Aldermen shall approve the petition only upon specific findings that (a) the proposed plans and application are in accordance with the public convenience and welfare, after taking into account the impact of such proposal upon neighboring uses in the surrounding area compared with the public need for the proposal at the particular location, (b) the effect on present and future development of neighboring properties including existing redevelopment plans or foreseeable redevelopment and reclamation plans, (c) the proximity of dwellings, churches, schools, public buildings and other places of public gathering, (d) the environmental impact of the proposed action, (e) any adverse environmental effects which cannot be avoided should the proposal be implemented, (f) alternatives to the proposed action, (g) the relationship between local short term uses of the City environment and the maintenance and enhancement of long term productivity, (h) any irreversible commitments of resources which would be involved in the proposed action should it be implemented, (i) effect on the comprehensive plan of the City of New Haven."

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

Bogdanski, J. These three appeals were taken from the decision of the defendant planning and zoning commission approving and adopting street lines for a new highway system referred to as the east-west connector in the town of Hamden. The Court of Common Pleas dismissed all three appeals. From the judgments rendered thereon and after the granting of certification, the plaintiffs filed a joint appeal to this court, assigning error in the conclusions reached by the trial court. I On March 24, 1970, the planning section of the defendant commission, pursuant to § 8-29 of the General Statutes, held a public hearing to consider recommendations for the establishment of street lines for the east-west connector. Those street lines were subsequently approved and adopted. The plaintiffs in the first appeal, Schwartz et al., are a group of individuals who collectively own a shopping center known as Hamden Plaza located approximately three-fourths of a mile from the proposed east-west connector. They alleged that they were "affected" by the establishment of the proposed layout, grade and street lines and therefore had standing to appeal the decision under § 8-30 of the General Statutes. The trial court found that none of the Hamden Plaza plaintiffs owned or had an interest in land within the taking lines of the east-west connector, and concluded that they were not "affected" or "interested" parties under § 8-30. Their appeal was therefore dismissed for lack of jurisdiction. Appeals to the courts from the actions of planning and zoning commissions exist only under statutory authority and unless a statute provides for such appeals courts are without jurisdiction to entertain them. See, e.g., Tazza v. Planning & Zoning Commission, 164 Conn. 187, 190, 319 A.2d 393; East Side Civic Assn. v. Planning & Zoning Commission, 161 Conn. 558, 560, 290 A.2d 348; Sheridan v. Planning Board, 159 Conn. 1, 10, 266 A.2d 396; Long v. Zoning Commission, 133 Conn. 248, 252, 50 A.2d 172. In these cases, § 8-30 limits the right of appeal to those persons "affected" by the commission's action taken under § 8-29 and any "interested" party may join in that appeal. In 1949, a person appealing from any action of a planning commission was required to show that he was "aggrieved" by such action. General Statutes §861 (Rev. 1949). That section was repealed with the enactment of Public Acts 1951, No. 321, later § 389d, 390d, and 391d of the 1955 Cumulative Supplement. Those sections were the predecessors of § 8-28, 8-29 and 8-30 respectively and established the present standing requirements for appeals to the courts from the actions of planning commissions. The "aggrievement" requirement was retained in § 389d (General Statutes § 8-28) for all such appeals except those taken from the action of a planning commission approving and adopting surveys, maps or plans of town highways under § 390d (General Statutes § 8-29). In the latter case, § 391d (General Statutes § 8-30) gave standing to appeal to any person "affected" by such action. The Hamden Plaza plaintiffs argue that the legislature intended a lesser demonstration of detrimental influence when it substituted the word "affected" for the word "aggrieved." That argument fails when § 8-29 and 8-30 are read together. See Little v. Ives, 158 Conn. 452, 455, 262 A.2d 174. Section 8-29 authorizes planning commissions to prepare and file sur veys, maps and plans of proposed town highways. The commission is then required to "give notice to each record owner and to each mortgagee of record of land included in such survey, map or plan, by mail and by advertisement in a newspaper of general circulation in such municipality, of such filing and of the place . . . where, and the time . . . when, such commission shall hear any person claiming to be affected thereby. Such commission, after such hearing, may approve and adopt such map or plan, and may make assessments of benefits accruing to and damages sustained by any person owning land included in such survey, map or plan, and shall give notice of such benefits and damages to mortgagees of record of such land. . . . Such commission may change any survey, map or plan so made and filed by it . . Notice by mail of such change shall be given by such commission to each record owner and to all persons having a recorded mortgage interest in land affected thereby . . . [emphasis added]." General Statutes § 8-29. A close reading of § 8-29 leaves little doubt that the legislature intended the word "affected" to describe a narrow class of persons. That word is used twice, each time to denote record owners and mortgagees of record of land included in the survey, map or plan of a proposed town highway. Section 8-30, in establishing the right to appeal, does not expand that narrow class of persons described in § 8-29 as "affected": "Any person affected may appeal from the action of such commission taken under section 8-29 within thirty days after notice to him of the adoption of a survey, map or plan or the assessment of benefits or damages and any interested party may join in such appeal [emphasis added]. . . ." General Statutes §8-30. "Affected" persons are limited to those who are to be given notice of the commission's action taken under § 8-29, i.e., record owners of land and mortgagees of record of land included in the survey, map or plan of the proposed highway. The intent of the legislature is to be ascertained from the language used in the statute if that language is plain and unambiguous. Hartford Hospital v. Hartford, 160 Conn. 370, 375, 279 A.2d 561; Hurlbut v. Lemelin, 155 Conn. 68, 73, 230 A.2d 36. The language in § 8-29 and 8-30 is susceptible to only one interpretation of the word "affected." Since the Hamden Plaza plaintiffs were not owners of land or mortgagees of record of land within the survey, map or plan of the east-west connector, the trial court correctly concluded that they were not "affected" persons. See, generally, Manners v. Waterbury, 86 Conn. 573, 86 A. 14; Clark v. Saybrook, 21 Conn. 313. The Hamden Plaza plaintiffs also claim that the trial court erred in concluding that they were not "interested parties" as that phrase is used in § 8-30. We need not reach that claim. Only "affected" persons may appeal under § 8-30, while "interested parties" may join in such an appeal. The Hamden Plaza plaintiffs did not join in the appeal of an "affected" person, but chose instead to take an independent appeal. Their appeal was properly dismissed for lack of jurisdiction. II The plaintiffs in the second and third appeals, Melinda Daniels et al., are owners of land within the survey of the east-west connector. They therefore had standing to appeal as "affected" persons under § 8-30. Two of those plaintiffs, Clyde and Ethel Campbell, were not given notice by mail of the commission's March 24,1970 hearing as required by § 8-29. The provision requiring notice by public advertisement, however, was complied with and the Campbells did appear at the hearing through counsel. The plaintiffs contend that the commission's approval and adoption of the east-west connector was illegal in that it failed to give the Campbells the required notice by mail. The trial court concluded that the appearance of counsel for the Campbells at the hearing constituted a waiver by them of that notice requirement. The plaintiffs have assigned error in that conclusion. The plaintiffs argue that failure to give the required notice constitutes a jurisdictional defect, results in a lack of due process, and renders a subser quent action of the commission or board nuil and void. Jarvis Acres, Inc. v. Zoning Commission, 163 Conn. 41, 44, 301 A.2d 244, and cases cited therein. "The fundamental reason for the requirement of notice is to advise all affected parties of their opportunity to be heard and to be apprised of the relief sought." Slagle v. Zoning Board of Appeals, 144 Conn. 690, 693, 137 A.2d 542; Winslow v. Zoning Board, 143 Conn. 381, 389, 122 A.2d 789. It must be emphasized, however, that the line of cases cited above deal with the problem of constructively notifying, by means of legal advertisements, as much of the population as possible of contemplated zoning actions. See General Statutes § 8-3, 8-3c and 8-7; Jarvis Acres, Inc. v. Zoning Commission, supra, 47; Edward Balf Co. v. East Granby, 152 Conn. 319, 325, 207 A.2d 58. In those eases, subsequent action by the zoning commission or board has been held invalid if the constructive notice given to the public was inadequate. See, e.g., Aurora v. Zoning Board of Appeals, 153 Conn. 623, 625, 220 A.2d 277; Lunt v. Zoning Board of Appeals, 150 Conn. 532, 536, 191 A.2d 553. This was true even when the complaining party appeared at.the public hearing since the legislative intent to notify the public constructively would otherwise be frustrated. Slagle v. Zoning Board of Appeals, supra. With regard to the notice by mail provision at issue here, the legislative intent was to give actual notice to owners and mortgagees of record of land within the survey, map or plan of the proposed town highway. That intent was not frustrated in this case since the Campbells did appear through counsel at the hearing without objection to the lack of personal notice. There is no claim made that the Campbells did not have adequate time in order to prepare intelligently for the hearing. Lack of personal notice may be waived by the party entitled to it. Palo v. Rogers, 116 Conn. 601, 605, 165 A. 803; Manners v. Waterbury, 86 Conn. 573, 578, 86 A. 14. The failure of the commission to notify the Campbells by mail did not render its subsequent action void, and the trial court correctly concluded that the Campbells waived their right to object to that omission when they appeared without objection at the hearing. III The plaintiffs claim that "certain" members of the commission predetermined the issues before them at the March 24, 1970 hearing. They argue that the mayor of Hamden, pursuant to the town charter, appointed the members of the commission; that the mayor was an outspoken advocate of the proposed east-west connector; and that he appeared before the commission and testified in favor of that proposal. The plaintiffs would have this court conclude that the mayor's advocacy in favor of the east-west connector, combined with his power to appoint-the members of the commission, created an improper influence on the commission and, in effect, caused a predetermination of the issues by its members. The trial court concluded that it was a proper function for the mayor to take a position on the issues. That conclusion is correct. "In this day of keen competition to attract industry and business to a state or to a particular locality, public officials are expected to cooperate in helping an industry to locate in their community." Peterson v. Norwalk, 150 Conn. 366, 376, 190 A.2d 33; Lurie v. Planning & Zoning Commission, 160 Conn. 295, 306, 278 A.2d 799. The mayor as the chief executive officer of the town was in duty bound to express to the public and to local administrative boards what he believed to be in the best interests of the community. See, generally, Lurie v. Planning & Zoning Commission, supra, 310. Beyond the bald assertion that the mayor's power to appoint members to the commission created an improper influence, the plaintiffs have pointed to nothing in the record or in the appendix to their brief to support their allegation that certain members of the commission predetermined the issues before them at the March 24, 1970 hearing. The plaintiffs did include portions of certain letters to town officials from a private party interested in the proposed east-west connector. Those letters, made exhibits at a limited hearing before the trial court, disclose only that the private party was in favor of speedy adoption of the new highway plan. Nothing in the letters is relevant to the issues of predetermination or improper influence. Moreover, such letters, written by an outside party, would be incompetent to establish the state of mind of a member or members of the commission. The burden of proving predetermination was on the plaintiffs. Furtney v. Zoning Commission, 159 Conn. 585, 595, 271 A.2d 319. They have failed to meet that burden. IV The plaintiffs next claim that James Doherty, a member of the commission, violated the provisions of § 8-21 of the General Statutes which prohibit a member of a local planning commission from appearing for or representing any person in any matter pending before any planning or zoning commission in the same municipality. The record discloses that Doherty was the law partner of the Hamden town attorney. Doherty had disqualified himself from all hearings, sessions and discussions of the commission regarding the east-west connector because he and his law partner had represented the Hamden Plaza plaintiffs for many years, The plaintiffs contend, however, that Doherty should have resigned from the commission because of his partnership with the town attorney, who, by town charter, is the legal advisor of the mayor. The plaintiffs' theory, based on Bossert v. Norwalk, 157 Conn. 279, 253 A.2d 39, is that Doherty's law partner, the town attorney, represented the mayor in his appearance before the commission and that because of the partnership, Doherty himself was representing the mayor within the prohibition of § 8-21. The short answer to that claim is that there is nothing in the record or in the appendices to show that Doherty or his law partner ever appeared before the commission or in any way took part in the proceedings. The plaintiffs also assert that Doherty's partnership with the town attorney and its relationship with the mayor weakened public confidence and undermined the public's sense of security in the fairness of its planning and zoning officials. We have long held that a public official "must not be permitted to place himself in a position in which personal interest may conflict with his public duty." Low v. Madison, 135 Conn. 1, 8, 60 A.2d 774. The policy of the law is to keep the official so far from temptation as to insure his unselfish devotion to the public interest. Anything which tends to weaken public confidence is against public policy. Kovalik v. Planning & Zoning Commission, 155 Conn. 497, 498-99, 234 A.2d 838; Daly v. Town Plan & Zoning Commission, 150 Conn. 495, 499-500, 191 A.2d 250; Mills v. Town Plan & Zoning Commission, 144 Conn. 493, 498-99, 134 A.2d 250. "The test is not whether personal interest does conflict, but whether it reasonably might conflict." Dana-Robin Corporation v. Common Council, 166 Conn. 207, 214, 224, 348 A.2d 560 (majority and dissenting opinions); Josephson v. Planning Board, 151 Conn. 489, 495, 199 A.2d 690. By disqualifying himself, Doherty fulfilled the command of the law. The trial court was correct when it stated that it could not "justifiably infer that a nonparticipating member of the commission had some nebulous and remote interest in affecting the decisions of the commission." The plaintiffs further claim that the seating of an alternate after Doherty disqualified himself was not done in accordance with § 8-lb of the General Statutes and § 13-2 of the charter of the town of Hamden. The record, however, fails to disclose what, if any, violation of those provisions occurred. The plaintiffs did allege that the commission alternate was not chosen in rotation and that no reasons for this were recorded in the commission's minutes. Those allegations were denied by the commission. While the plaintiffs have assigned error in the conclusions of the trial court relating to the seating of the alternate, there are no findings on that issue. Without the subordinate facts on which the court based its conclusions, we are unable to review the claim. See Martin v. Personnel Commissioner, 167 Conn. 377, 379, 355 A.2d 256; Lomas & Nettleton Co. v. Cadoux, 163 Conn. 603, 605, 316 A.2d 413; McNamara v. New Britain, 153 Conn. 705, 214 A.2d 676. Y The plaintiffs' final claim of error relates to the trial court's conclusion that the commission "acted fairly and with proper motive and valid reasons for the general welfare, health and safety of the community as a whole." The plaintiffs contend that the layout of the east-west connector was for the benefit of a special group who wished to develop a shopping center and did not serve the best interests of the community as a whole. Those allegations find no support whatsoever in the record. The trial court found that the east-west connector had first been proposed ten years prior to the establishment of the street lines; that the project had been in the process of development and discussion during that ten-year period; and that the plans for the highway had been prepared and approved as a part of a master street plan designed to meet the future needs of -the town of Hamden. The appendices further disclose that the town engineer, the public works director and the fire department chief all appeared and testified in favor of the adoption of the east-west connector. The record as supplemented by the appendices amply supports the conclusion of the trial court that the commission acted fairly and with proper motives when it approved and adopted the plans for the east-west connector. Other assignments of error not briefed by the plaintiffs are considered abandoned. Waldron v. Raccio, 166 Conn. 608, 609, 353 A.2d 770. There is no error. In this opinion the other judges concurred.

The defendant's motion that this court review the order of the Superior Court for the judicial district of Waterbury, dated November 25, 1974, fixing his bail in the amount of $500,000 is granted and, it appearing that subsequent to the filing of that motion the Superior Court, acting pursuant to the provisions of General Statutes § 54-53a, reduced the bond to $300,000, the relief sought in his motion is denied.

The plaintiff's motion for a review of the trial court's order filed April 7, 1975, in the appeal from the Superior Court in Hartford County is granted and the relief requested therein is denied.

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

House, C. J. On March 13,1973, following a trial before a three-judge court, the defendant was found guilty of murder in causing the death of his wife, Mildred Schaffer, and this appeal was taken from the judgment of that court. On the appeal, the defendant has pressed six assignments of error. The principal claim is that the state failed to sustain its burden of proof of guilt and the remaining assignments of error all relate to evidential rulings of the trial court. Whether the evidence before the court supports its conclusion of guilt is tested by the summary of evidence presented in the appendices to the briefs. State v. Lally, 167 Conn. 601, 603, 356 A.2d 897; State v. Saia, 167 Conn. 286, 287, 355 A.2d 88; State v. Coleman, 167 Conn. 260, 262, 355 A.2d 11. We first consider the merits of that assignment of error and note some of the pertinent evidence which the court had for consideration: The body of Mildred Schaffer was found on the early morning of July 4, 1972, on the west side of Snipsic Lake Road in Ellington. She had been shot once in the chest and once in the shoulder with both bullets passing entirely through the body. A white caustic substance which caused blistering and burning of the skin was present on the upper portion of the body. One .41 caliber magnum bullet fired from a Ruger Blackhawk revolver was found in the dirt beneath the body. On the weekend before July 4, the defendant was looking for a gun with which he stated he was going to kill his wife. He also stated that he would pour acid or lye in the wound to destroy the bullet. A witness, Odell Garland, had a .41 caliber magnum Ruger Blackhawk revolver which he gave to the defendant in June or July of 1972. On July 3, the defendant placed the gun between the mattresses of a bed in his apartment. The same day he sent Robin Page, the sister of his girl friend, to purchase for him a container of lye. He put the lye and water in a coffee jar and placed the jar in a brown paper bag in his car. Mrs. Schaffer went to the apartment of the defendant at about midnight on July 3 and at about 12:30 a.m. on July 4 left the apartment with him. He returned briefly to get the gun and then drove off with Mrs. Schaffer. He returned to the apartment about 3 a.m. and told his girl friend, Bonnie Page, that he "did it for her." He took the gun out of his pants and put it between the mattresses. His shirt appeared to have blood stains on it and he ripped it up and flushed it and two blank shells down the toilet. He told Bonnie that he wanted to put the lye on Mrs. Schaffer's body so that she could not be identified. Later, while he was in jail, he asked Bonnie to get the gun from the cellar, which she did and she put it into a trash can. On July 4, at about 1:50 a.m., the occupants of a ear parked on Snipsic Lake Road heard two loud sounds like firecrackers to the east of where they were parked. No car passed theirs in either direc tion until about fifteen to twenty minutes later when a large dark-colored 1963 or 1964 Pontiac passed, traveling westerly toward Ellington. The defendant owned and drove a 1964 maroon Pontiac automobile. Measurement of tire tracks at the site where the body was found matched the measurement of the tires on the defendant's car. In June of 1972, the defendant told a witness, Ralph MeGriff, that he intended to ldll his wife. After the death of Mrs. Schaffer, McG-riff was in the cellar of the defendant's apartment house with the defendant when MeGriff found a .41 caliber magnum bullet on the cellar floor. The defendant asked him to throw the bullet away but McG-riff kept it and later turned it over to the police. There was also evidence that leaves at the scene where the body was found and the victim's brassiere had on them a material wMeh is a strongly alkaline solution such as would be deposited by a lye or lime-type mixture. After Mrs. Schaffer's body was found, the defendant told Garland, the man who had given him the revolver, that he had Mlled her. Brief as it is, this summary of the evidence wMch the court had for its consideration suffices to compel a conclusion that there was sufficient evidence to support a finding by the trial court that the state had proved that the defendant was beyond a reasonable doubt guilty of the crime with which he was charged. We turn now to a consideration of the defendant's assignment of errors addressed to the court's evidential rulings. The first claim is that the court erred in admitting in evidence a black and white photograph depicting the body of the victim, a portion of Snipsic Lake Road, some clothing and the nature of the area where the body was found. The defendant objected to the use of the photograph on the ground that it was inflammatory. The state claimed that it was admissible as evidence to show the relationship of the body to the road, to illustrate to the court the conditions described in the testimony of witnesses, and to prove material facts in issue. The admission of the photograph was in the broad discretion of the court and we find no abuse of discretion in the court's ruling. State v. Dubina, 164 Conn. 95, 102, 318 A.2d 95; State v. LaBreck, 159 Conn. 346, 351, 269 A.2d 74; State v. Conte, 157 Conn. 209, 215, 251 A.2d 81, cert. denied, 396 U.S. 964, 90 S. Ct. 439, 24 L. Ed. 2d 428. The defendant's second claim is that the court erred in admitting into evidence testimony concerning statements made by the defendant to the police in the absence of a prior Miranda warning to him. The finding of the court discloses that on the evening of July 4 a state police officer met with the defendant and others at a hospital where the defendant identified the body of the victim as that of his wife, that the officer asked the defendant to accompany him to the resident trooper's office in Ellington to assist the police in obtaining information that might be valuable in. the investigation into Mrs. Schaffer's death, that the defendant was not held for interrogation, that he drove to the office in his own car, that he was not at any time in custody, that he talked to the troopers at the office concerning his wife and was willing to give a statement and appeared willing to assist the police in any way he could. Most significant was the testi mony of the officer that the defendant was not in custody and was under no restraint, that he was not considered a suspect at that time, and that had he wanted to leave no attempt would have been made to detain him. No evidence whatsoever was introduced to contradict the testimony of the trooper, and the defendant's claim on appeal is limited to a simple assertion without factual basis that "it is inconceivable that the defendant was not a suspect at the time of the July 4, 1972 interrogation." Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694, established the principle that "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self incrimination." It defined "custodial interrogation" as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way," as distinguished from "routine investigatory information-gathering." It appears that in this case the questioning of the defendant was in the course of routine investigatory information-gathering, that the investigation had not focused on the defendant as an accused, and that the questioning was in no sense a custodial interrogation. We discussed a somewhat similar interrogation in State v. Szabo, 166 Conn. 289, 348 A.2d 588. There is no need to repeat the authorities cited in that case. They fully support the ruling of the trial court that in the circumstances of the present case the statements of the defendant were properly admitted despite the absence of a Miranda-type warning. The defendant next claims error in the court's allowance of testimony concerning certain tests made by the police with the defendant's car. Specifically, the defendant argues that the tests conducted with the automobile were not authorized by the warrant pursuant to which the ear was seized, and thus the performance of these tests constituted an illegal and warrantless search. On July 7, 1972, the police obtained a search and seizure warrant for the defendant's car. On July 12, 1972, the police had possession of the defendant's automobile under the authority of that warrant and took the car to the scene of the homicide to determine if it were possible to turn it around on that particular section of the road. It is the admissibility of the testimony as to these test results which the defendant attacks, claiming that the test constituted a separate and distinct search requiring a separate and distinct warrant. The fourth amendment to the federal constitution requires only that "[t]he 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 warrants 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." U.S. Const. amend. IV. As the United States Supreme Court has said: "[T]he primary object of the Fourth Amendment was determined to be the protection of privacy. . . . 'The decisions of this Court have time and again underscored the essential purpose of the Fourth Amendment to shield the citizen from unwarranted intrusions into his privacy.' Jones v. United States, 357 U.S. 493, 498 . . [78 S. Ct. 1253, 2 L. Ed. 2d 1514]; see also Schmerber v. California, 384 U.S. 757 . . . [769-70, 86 S. Ct. 1826, 16 L. Ed. 2d 908] ; Katz v. United States, 389 U.S. 347, 350 . . . [88 S. Ct. 507, 19 L. Ed. 2d 576]; United States v. Dionisio, 410 U.S. 1, 14-15 . . . [93 S. Ct. 764, 35 L. Ed. 2d 67]." Cardwell v. Lewis, 417 U.S. 583, 589, 94 S. Ct. 2464, 41 L. Ed. 2d 325. When the tests were conducted with the defendant's car, it was lawfully in custody of the police under a valid warrant. The defendant does not contest the validity of the warrant under which his car was seized. We do not find that any right to privacy of the defendant was infringed upon by the tests conducted with his car while it was in the lawful possession of the police. The defendant next assigns error to the court's admission into evidence of testimony given by the police concerning physical measurements which were made at the scene of the homicide eight days after the victim's body was found. He asserts that this evidence should not have been admitted without a showing that the area was substantially the same on the day the measurements were taken as on the day the body was discovered. Specifically, the state offered testimony as to the distance between a rock on the roadside and an indentation in the earth bank. That measurement was identical to the distance measured from certain marks on the license plate of the defendant's car to the left front protrusion of the vehicle. In addition, a photograph taken at the homicide scene and showing the rock and the indentation in. the bank was admitted into evidence without objection. The defendant objected to the testimony comparing the measurements taken from his car with those taken at the scene inasmuch as the state failed to show that the scene of the crime was substantially the same on the day the measurements were taken as on the day the body was discovered. The trial court has broad discretion in determining the relevancy of evidence. Johnson v. Newell, 160 Conn. 269, 277, 278 A.2d 776; State v. Carnegie, 158 Conn. 264, 273, 259 A.2d 628, cert. denied, 396 U.S. 992, 90 S. Ct. 488, 24 L. Ed. 2d 445; State v. Smith, 157 Conn. 351, 355, 254 A.2d 447; State v. Keating, 151 Conn. 592, 597, 200 A.2d 724, cert. denied sub nom. State v. Joseph, 379 U.S. 963, 85 S. Ct. 654, 13 L. Ed. 2d 557. "Evidence is admissible when it tends to establish a fact in issue or to corroborate other direct evidence in the case. One fact is relevant to another fact whenever, according to the common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other either certain or more probable. Unless excluded by some rule or principle of law, any fact may be proved which logically tends to aid the trier in the determination of the issue. Evidence is admitted, not because it is shown to be competent, but because it is not shown to be incompetent. No precise and universal test of relevancy is furnished by the law, and the question must be determined in each case according to the teachings of reason and judicial experience. State v. Towles, 155 Conn. 516, 523, 235 A.2d 639; Pope Foundation, Inc. v. New York, N.H. & H.R. Co., 106 Conn. 423, 435, 138 A. 444." Federated Department Stores, Inc. v. Board of Tax Review, 162 Conn. 77, 82, 291 A.2d 715. "Testimony of conditions after the happening of an event is relevant to show conditions at the time of the event if the conditions are of such a perma nent character that a lapse of time would not make a material difference." Steiber v. Bridgeport, 145 Conn. 363, 367, 143 A.2d 434; see also Johnson v. Newell, 160 Conn. 269, 276, 278 A.2d 776. From the testimony and photographic evidence, the court could reasonably find that the conditions testified to were of such a permanent nature that the elapsed time did not make a material difference. It did not abuse its discretion in admitting testimony as to the comparison of measurements made at the scene of the crime with those on the defendant's car. Lastly, the defendant claims that the trial court erred in allowing the testimony of a witness which characterized as blood a stain she observed on a window of the defendant's car. The defendant argues that the witness was not qualified as an expert in the identification of physical and chemical substances such as blood and thus was incompetent to testify as to her opinion as to what kind of a stain it was. It is permissible to admit into evidence the "opinions of common observers in regard to common appearances, facts and conditions . in a great variety of cases." Sydelman v. Beckwith, 43 Conn. 9, 11 ; see also Stephanofsky v. Hill, 136 Conn. 379, 382, 71 A.2d 560. When the question involved can be answered by the application of ordinary knowledge and experience, expert testimony is not required; Toomey v. Danaher, 161 Conn. 204, 210, 286 A.2d 293 ; Bader v. United Orthodox Synagogue, 148 Conn. 449, 454, 172 A.2d 192; although "[t]o render opinions of common witnesses admissible it is indispensable that the opinions be founded on their own personal observation, and not the testimony of others, or on any hypothetical statement of facts, as is permitted in the case of experts." Sydelman v. Beckwith, supra, 12; see also Stephanofsky v. Hill, supra. "Because of the wide range of matters on which lay witnesses are permitted to give their opinion, the admissibility of such evidence rests in the sound discretion of the trial court, and the exercise of that discretion, unless abused, will not constitute reversible error." State v. Orsini, 155 Conn. 367, 373, 232 A.2d 907; see also Jackson v. Waller, 126 Conn. 294, 306, 10 A.2d 763. Considering the substance identified, its location, and the normal human experience of the witness, we conclude that the trial court did not abuse its discretion in determining that under the circumstances the witness was competent to give testimony characterizing as blood the stain she observed on the window of the defendant's car. There is no error. In this opinion the other judges concurred.

House, C. J. The plaintiff brought this action seeking a declaratory judgment that § 30 and 31 of Public Act No. 223 enacted by the 1972 session of the General Assembly are unconstitutional, null, void and unenforceable and a refund of all monies collected by the defendant pursuant to the provisions of those sections. Section 31 of the act is simply a repealer of an earlier statute and the plaintiff's attack is entirely directed to the provisions of § 30 which is now printed as § 51-81b of the General Statutes entitled "Occupational tax on attorneys." Public notice of the pendency of the action was published in several newspapers in the state and subsequently, on motion of the plaintiff, the Superior Court entered an order pursuant to the provisions of § 52 of the Practice Book and § 52-105 of the General Statutes authorizing the plaintiff "to prosecute this action on behalf of all persons admitted as attorneys by the judges of the Superior Court for the State of Connecticut and who are engaged in the practice of law, including the performance of judicial duties in the State of Connecticut and who are similarly situated," and authorizing the attorney general to defend the action on behalf of all such persons who are seeking to uphold the act. The case was not tried in the Superior Court and the parties, instead of a trial, stipulated to the facts and requested a reservation to this court, submitting five questions for the consideration and advice of this court. The court made the reservation in accordance with the stipulation of the parties. The stipulated facts include a recital that the plaintiff has been admitted as an attorney by the judges of the Superior Court and is actively engaged in the practice of law. The defendant is the tax commissioner of the state of Connecticut and is charged by § 51-81b with the collection of the occupational tax prescribed by that section. Before discussing the questions which have been reserved for the advice of this court, we deem it necessary to clarify one ambiguity in the plaintiff's motion made pursuant to the provisions of § 52 of the Practice Book and the court's order thereon. Section 52 of the Practice Book, entitled "Numerous Parties," provides that when the persons who might be made parties are very numerous so that it would be impracticable or unreasonably expensive to make them all parties, one or more may sue or be sued or may be authorized by the court to defend for the benefit of all. As we have noted, the general class which is subject to the tax in question is composed of "[a]ny person who has been admitted as an attorney by the judges of the superior court, and who was engaged in the practice of law, including the performance of judicial duties," during the preceding year. Paragraph one of the plaintiff's complaint alleges that he is an attorney at law admitted by the judges of the Superior Court and "engaged in the practice of law." There is no stipulation that his practice of law includes the performance of any judicial duties. Paragraph two of the complaint alleges that he brings the action "on behalf of himself and all other attorneys practicing in the State of Connecticut, including the performance of judicial duties, similarly situated." It is apparent that the plaintiff is not "similarly situated" to those persons who are engaged in the performance of judicial duties, and the plaintiff has not asserted such a claim. In his motion pursuant to the provisions of § 52 of the Practice Book, the plaintiff represented that his individual situation in relation to the statute in question "is typical of all other persons admitted as attorneys by the judges of the Superior Court for the State of Connecticut and who are engaged in the practice of law throughout the State of Connecticut" and that "[h]e is competent to prosecute this action on behalf of such taxpayers." His motion, however, was for an order allowing him to sue "on behalf of all persons admitted as attorneys . . . and who are engaged in the practice of law, including the performance of judicial duties, who are similarly situated." The order of the court was in the same language, authorizing the plaintiff to prosecute the action on behalf of all admitted attorneys "who are engaged in the practice of law, including the performance of judicial duties . . . and who are similarly situated" and the attorney general to defend the same described persons who seek to uphold the constitutionality of the legislation. The problem is more than one of semantics. The ambiguity arises from the authorization to the plaintiff, by which, on the one hand, he is to represent all attorneys who are engaged in the practice of law, including the performance of judicial duties, but which, on the other, is limited to representation of those "who are similarly situated," and the plaintiff, although engaged in the general practice of law, is not engaged in the performance of judicial duties. It is obvious that members of the bar who are engaged in the performance of judicial duties and particularly those who are constitutional officers in the judicial department of the state are in a different status from attorneys engaged in the general practice of law. They are also the only salaried constitutional officers of the state on whom a tax is levied because of the performance of the official duties which they perform for the state in the judicial magistracy. Under these circumstances, it can hardly be said with accuracy that the plaintiff's situation was typical of that of all persons on whom the tax is levied. The record and briefs disclose that no consideration whatsoever was given in these proceedings to the difference in status between a practicing attorney and a judicial officer and the case was briefed and argued solely on the constitu tionality of the tax as applied to those "who are similarly situated" to the plaintiff as an attorney engaged in the general practice of the law. In these circumstances, we treat the case as did the parties and answer the reserved questions only so far as they are applicable to persons "who are similarly situated" to the plaintiff. Our foregoing observations are in no way intended to imply that the difference in status would require a difference in result, or as an invitation to seek such a determination. They are simply a recognition of the established legal principle that " [wjhere the only common interest of members of a class is a common interest in some of the questions of law or fact involved in a suit relating to rights which are several, the judgment cannot, consistently with due process, be binding upon or affect the rights of any persons other than those who are or may become actual parties to or participants in the litigation." 59 Am. Jur. 2d 420, Parties, § 53. " [A] selection of representatives for purposes of litigation, whose substantial interests are not necessarily or even probably the same as those whom they are deemed to represent, does not afford that protection to absent parties which due process requires." Id. § 60, p. 432; see Hansberry v. Lee, 311 U.S. 32, 40-43, 61 S. Ct. 115, 85 L. Ed. 22. The plaintiff challenges the constitutionality of the tax on two grounds. The first is that it violates the equal protection clauses of both § 1 of the fourteenth amendment to the constitution of the United States and article first, § 1, of the constitution of Connecticut. The second is that it violates the provisions of article second of the constitution of Connecticut in that, in enacting the statute, the General Assembly "overreached its bounds and infringed upon the magistracy of the co-equal judicial branch of government in attempting to regulate and tax it." In considering the plaintiff's first claim of unconstitutionality, we again note that the equal protection clause provision of article first, § 1, of the constitution of Connecticut has a meaning equivalent to the similar provision in the fourteenth amendment to the constitution of the United States upon which the plaintiff relies. State ex rel. Higgins v. Civil Service Commission, 139 Conn. 102, 105, 90 A.2d 862; Franco v. New Haven, 133 Conn. 544, 548, 52 A.2d 866; Lyman v. Adorno, 133 Conn. 511, 515, 52 A.2d 702. The basis for the plaintiff's argument in support of his first claim is that attorneys have been singled out as a class, have had a tax imposed upon them, the sole purpose of which is to raise revenue, and that such a tax is imposed upon no other group and, therefore, is unreasonable, arbitrary and bears no fair and substantial relation or relevance to the object of the legislation. It is well settled that a plaintiff who attacks a statute on constitutional grounds has no easy burden. As this court said in Adams v. Rubinow, 157 Conn. 150, 152-53, 251 A.2d 49: "Because of the separation of powers, one claiming that a legislative enactment is invalid on the ground that it is unconstitutional must establish its invalidity on that ground beyond a reasonable doubt. Hardware Mutual Casualty Co. v. Premo, 153 Conn. 465, 470, 217 A.2d 698. . . . [ WJhere a statute reasonably admits of two constructions, one valid and the other invalid on the ground of unconstitutionality, courts should adopt the construction which will uphold the statute even though, that construction may not be the obvious one. Carilli v. Pension Commission, 154 Conn. 1, 8, 220 A.2d 439; Ferguson v. Stamford, 60 Conn. 432, 447, 22 A. 782; Wilton v. Weston, 48 Conn. 325, 338." To like effect, we said in Edwards v. Hartford, 145 Conn. 141, 145, 139 A.2d 599: "Courts in passing upon the validity of a legislative act do not feel justified in declaring it void unless there is a clear and unequivocal breach of the constitution . We approach the question with great caution, examine it with infinite care, make every presumption and intendment in favor of validity, and sustain the act unless its invalidity is, in our judgment, beyond a reasonable doubt." As we noted in Kellems v. Brown, 163 Conn. 478, 487, 313 A.2d 53: "In Connecticut, the power to levy taxes is vested in the General Assembly. Beach v. Bradstreet, 85 Conn. 344, 348, 82 A. 1030. Unlike the federal constitutional limitation which existed prior to adoption of the sixteenth amendment, it appears that this state's power of taxation has never been constitutionally limited except by the constitutional requirements of equal protection and due process. See Montgomery v. Branford, 107 Conn. 697, 707-8, 142 A. 574." As the United States Supreme Court observed in Madden v. Kentucky, 309 U.S. 83, 87-88, 60 S. Ct. 406, 84 L. Ed. 590, and repeated with approval in San Antonio School District v. Rodrigues, 411 U.S. 1, 40, 93 S. Ct. 1278, 36 L. Ed. 2d 16: "The broad discretion as to classification possessed by a legislature in the field of taxation has long been recognized. This Court fifty years ago concluded that The Fourteenth Amendment was not intended to compel the State to adopt an iron rule of equal taxation,' and the passage of time has only served to underscore the wisdom of that recognition of the large area of discretion which is needed by a legislature in formulating sound tax policies. Traditionally classification has been a device for fitting tax programs to local needs and usages in order to achieve an equitable distribution of the tax burden. It has, because of this, been pointed out that in taxation, even more than in other fields, legislatures possess the greatest freedom in classification. Since the members of a legislature necessarily enjoy a familiarity with local conditions which this court cannot have, the presumption of constitutionality can be overcome only by the most explicit demonstration that a classification is a hostile and oppressive discrimination against particular persons and classes. The burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it." In State v. Murphy, 90 Conn. 662, 666, 98 A. 343, this court similarly stated: "The taxing power is an inherent attribute of sovereignty and as such unlimited in character and scope save as limitations may be self-imposed. Under our form of government its exercise is vested in the legislative department which may exercise it for lawful purposes in its discretion both as regards the choice of subject-matter of taxation and the extent and manner of the tax, save as constitutional limitations may intervene, and in the case of the States save also as the property and agencies of the national government within their borders are not within the reach of their sovereignty. M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 428; Nathan v. Louisiana, 49 U.S. (8 How.) 73, 82; Ward v. Maryland, 79 U.S. (12 Wall.) 418, 426; North Missouri R. Co. v. Maguire, 87 U.S. (20 Wall.) 46, 62. In the choice of subject-matter there is no restriction, not con stitutional, short of one imposed by lack of jurisdiction. 'Whether it be person or property, or possession, franchise or privilege, or occupation or right,' the legislative power to tax extends to it. 'It reaches to every trade or occupation; to every object of industry, use, or enjoyment,' in fact to every subject over which the sovereignty'of the State extends, and is co-extensive with that sovereignty. 1 Cooley on Taxation (3d Ed.) 9; Cooley's Constitutional Limitations (7th Ed.) 678; M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 429; Providence Bank v. Billings, 29 U.S. (4 Pet.) 514, 563; Ward v. Maryland, 79 U.S. (12 Wall.) 418, 426; North Missouri R. Co. v. Maguire, 87 U.S. (20 Wall.) 46, 62." In Allied Stores of Ohio v. Bowers, 358 U.S. 522, 526, 79 S. Ct. 437, 3 L. Ed. 2d 480, the United States Supreme Court thus stated the guiding principles: "Of course, the States, in the exercise of their taxing power, are subject to the requirements of the Equal Protection Clause of the Fourteenth Amendment. But that clause imposes no iron clad rule of equality, prohibiting the flexibility and variety that are appropriate to reasonable schemes of state taxation. . . . 'To hold otherwise would be to subject the essential taxing power of the State to an intolerable supervision, hostile to the basic principles of our Glovernment and wholly beyond the protection which the general clause of the Fourteenth Amendment was intended to assure.' Ohio Oil Co. v. Conway, . . . [281 U.S. 146, 159, 50 S. Ct. 310, 74 L. Ed. 775]. . 'If the selection or classification is neither capricious nor arbitrary, and rests upon some reasonable consideration of difference or policy, there is no denial of the equal protection of the law.' Brown-Forman Co. v. Kentucky, 217 U.S. 563, 573 [30 S. Ct. 578, 54 L. Ed. 883].' . [I]t has long been settled that a classification, though discriminatory, is not arbitrary nor violative of the Equal Protection Clause of the Fourteenth Amendment if any state of facts reasonably can be conceived that would sustain it. Lindsley v. Natural Carbonic Gas Co., 220 U.S. . . . [61, 78, 31 S. Ct. 337, 55 L. Ed. 369]; Quong Wing v. Kirkendall, 223 U.S. 59 [32 S. Ct. 192, 56 L. Ed. 350]; Rast v. Van Deman & Lewis Co., 240 U.S. 342, 357 [36 S. Ct. 370, 60 L. Ed. 679]; State Board of Tax Comm'rs v. Jackson, 283 U.S. . . . [527, 537, 51 S. Ct. 540, 75 L. Ed. 1248]." "This court has also used similar language in describing permissible classification. 'The legislature has a wide discretion in the classification of property for taxation and in granting exemptions. . . . The classification must be reasonable and not arbitrary and must be based upon a distinction which bears a fair and substantial relationship to the object of the legislation so that all who are similarly situated are treated alike.' First Federal Savings & Loan Assn. v. Connelly, 142 Conn. 483, 491, 115 A.2d 455, appeal dismissed, 350 U.S. 927, 76 S. Ct. 305, 100 L. Ed. 811; see also Consolidated Diesel Electric Corporation v. Stamford, 156 Conn. 33, 36, 238 A.2d 410." Kellems v. Brown, 163 Conn. 478, 490, 313 A.2d 53. It is in the light of these decisions and well-established principles that we now consider the constitutionality of the statute in question as applied to members of the bar. Section 51-81b is the codification of § 30 of 1972 Public Act No. 223, which act was entitled "An Act Concerning Occupational License Pees." The plaintiff correctly points out that § 30 of Public Act No. 223 (now § 51-81b of the General Statutes) singled out the legal profession for payment of an "occupational tax" and that in that act no other profession or occupation was assessed such a tax. Pees assessed against members of other professions and occupations by Public Act No. 223 were assessed as license fees payable to the governmental department or board charged with registration, policing and regulation of the members of the particular profession or occupation, whereas the plaintiff and all other attorneys similarly situated pay the occupational tax assessed by § 51-81b to the state tax commissioner, and the funds so collected are paid into the state's general fund. The legislative history of the statute in question is of significance. We find its antecedent in § 37 of Public Act No. 8 of the special session of June, 1971, of the General Assembly. This act, entitled "An Act Providing for State Revenue," was a general revenue act which increased the rate of the general sales tax, imposed a tax on the receipt of services from public utilities, imposed a tax on capital gains and dividends, and increased the tax on public utility companies, on cigarettes, on corporations, and the license fees required of most professions. Section 37 provided that each member of the bar should annually receive from the Superior Court a certificate of registration upon the payment of a fee of $150 which should be transmitted to the state treasurer. It was this section, incorporated into the statutes as § 51-81a, which was repealed by § 31 of 1972 Public Act No. 223 when, in lieu of it, what is now § 51-81b was adopted as § 30. This 1972 act, entitled "An Act Concerning Occupational License Pees," changed the taxed status from "[a]ny person who has complied with the requirements of the state bar examining committee for admission to the bar of this state" to "[a]ny person who has been admitted as an attorney by the judges of the superior court, and who was engaged in the practice of law, including the performance of judicial duties." The significance of this legislative history lies in the fact that it discloses that lawyers were not singled out for taxation in an act of "hostile and oppressive discrimination" but were included in the provisions of a general revenue act which levied assessments not only of general impact but also upon most professions and many occupations. Nor do we find it oppressively discriminatory that the fees assessed against the members of other professions were required to be paid to the governmental department or agency charged with the registration, policing and regulation of the members of the particular profession or occupation. Although the fact is not recited in the parties' stipulation of facts, this court will take judicial notice of the fact that it is the judicial department which provides for the admission, suspension and disbarment of attorneys and regulation of their conduct and that the expenses of the judicial department — including investigation of the qualifications of applicants and proceedings for suspension and disbarment — are paid for from the state's general fund as are funds for support of the courts of which they are officers. The tax is plainly not oppressive nor unconstitutionally dis criminatory in that it treats attorneys as a class in a manner substantially similar to the treatment accorded other professions. Attorneys are no more exempt from taxation than other professions and occupations and have no cause to complain so long as the tax contribution required from them is reasonable and not the result of hostile and oppressive discrimination. In re Johnson, 47 Cal. App. 465, 190 P. 852; Franklin v. Peterson, 87 Cal. App. 2d 727, 197 P.2d 788; In re Gibson, 35 N.M. 550, 4 P.2d 643; Clay v. Monroe, 300 N.Y. 724, 92 N.E.2d 61; Sterling v. Philadelphia, 378 Pa. 538, 106 A.2d 793; Davis v. Ogden City, 117 Utah 315, 215 P.2d 616, rehearing denied, 118 Utah 401, 223 P.2d 412; Williams v. Richmond, 177 Va. 477, 14 S.E.2d 287; see also cases cited in 7 Am. Jur. 2d, Attorneys at Law, § 201, 202; 7 C. J.S., Attorney and Client, § 55; 16 A.L.R.2d 1228. The mere fact that a party sees fit to institute an action for a declaratory judgment in no way operates to alter or shift the ordinary rules as to the burden of proof by choosing the procedure of such an action. Keithan v. Massachusetts Bonding & Ins. Co., 159 Conn. 128, 267 A.2d 660; Hardware Mutual Casualty Co. v. Premo, 153 Conn. 465, 471-72, 217 A.2d 698. We conclude that the plaintiff has not sustained the burden of proving that as to him and other persons similarly situated the provisions of § 51-81h of the General Statutes violate the equal protection provisions of article first, § 1, of the constitution of Connecticut and § 1 of the fourteenth amendment to the constitution of the United States. The second ground of the plaintiff's claim that § 51-81b is unconstitutional is that the statute is an attempt by the legislative department of government to regulate the judicial department and is, accordingly, in violation of article second of the constitution of Connecticut. Stressing the truism that "the power to tax is the power to destroy," it is the plaintiff's basic contention "that, by enacting § 51-81b, the legislature has attempted to tax, and by natural implication to regulate, the judicial department of state government as a class and solely on the basis of the members' status as components of that class." With this contention, we cannot agree. Under our form of government, the taxing power is vested in the legislative department. Kellems v. Brown, 163 Conn. 478, 487, 313 A.2d 53; State ex rel. Brush v. Sixth Taxing District, 104 Conn. 192, 198, 132 A. 561; State v. Murphy, 90 Conn. 662, 666, 98 A. 343. While it is conceivable that the taxing power might be exercised in such a manner as to result in unconstitutional regulation or in contravention of the constitutional separation of magistracies, we find no such circumstance in the present case and none attempted, even by implication. Section 51-81b merely imposes a tax and the means of collecting that tax. The only provision of the statute which suggests regulation of the judicial department aside from the inclusion of the performance of judicial duties in the terms of practicing law is the one which directs that the chief court administrator be notified of the failure of any person to pay the tax and that he "shall" notify the judges of the Superior Court of such failure. The statute implicitly recognizes the power inherent in the judicial branch of government to determine the qualifications necessary for the practice of law and to discipline and regulate the conduct of attorneys who are officers of its courts. Heiberger v. Clark, 148 Conn. 177, 169 A.2d 652. The question of the constitutional power of the G-eneral Assembly to appoint or prescribe the powers and duties of the chief administrative officer of the judicial department has not been raised or briefed in the limited context of the present case and we are not called upon to consider that question. The inherent power of the judicial department to control admission to the bar, to discipline its members, and to prescribe rules for their conduct as officers of the court does not confer upon those members immunity or exemption from tax assessments or civil and criminal statutes of general application. We find ourselves in agreement with the observations of the Supreme Court of Utah as expressed in Davis v. Ogden City, 117 Utah 315, 328, 215 P.2d 616: "As members of the bar, their admission to practice and their professional conduct after admission are essentially matters to be regulated by the judicial department of the state. As members and citizens of the state, county and city, their rights, privileges and immunities, as well as their duty to pay a fair share of the expenses of government, like those of any other citizen, are controlled by the laws, ordinances and regulations of the political body of which they are a part and from which they receive protection. No one could reasonably contend that lawyers as a class are not subject to laws enacted pursuant to the police powers of the state or municipality and the members of the pro fession would protest any attempt to deny to them the services afforded by the various sovereignties. There is no rational basis for a contention that lawyers are privileged because of their calling . A license to practice law issued by the state does not grant immunity from taxation." We conclude that the tax imposed by § 51-81b of the General Statutes on attorneys whose situation is similar to that of the plaintiff is not unconstitutional as a violation of article second of the constitution of Connecticut. The questions reserved for our advice are answered as follows: 1. No, except that since the question of the constitutionality of the application of the tax to those attorneys whose practice of law includes the performance of judicial duties was neither briefed nor argued, we decline to answer the reserved question as it applies to such persons. 2. No, with the same exception as noted in the answer to question number one. 3. Yes. 4. No. 5. Not answered in view of the answer to question number four. No costs will be taxed in favor of either party. In this opinion the other judges concurred. "[General Statutes] Sec. 51-81b. occupational tax on attorneys. Any pexson who has been admitted as an attorney by the judges of the superior court, and who was engaged in the practice of law, including the performance of judicial duties, in the year preceding the year in which an occupational tax is due hereunder, shall, on or before July 15, 1972, and on or before January 15, 1973, and annually thereafter, pay to the tax commissioner a tax in the amount of one hundred fifty dollars. Any such person who, prior to July 1, 1972, paid the fee provided in section 51-81a of the 1971 supplement to the general statutes shall be entitled to have such payment credited against the tax due on July 15, 1972, hereunder. Upon failure of any such person to pay any sum due hereunder within thirty days of the due date thereof, the provisions of section 12-35 shall apply with respect to the enforcement of this section and the collection of such sum. The tax commissioner shall notify the chief court administrator of the failure of any person to comply with the provisions of this section and the chief court administrator shall notify the judges of the superior court of such failure. Any individual required by the provisions of this section to file a return or to pay a tax hereunder who shall fail to file such return or to pay such tax when due shall be liable for a penalty of twenty-five dollars, which penalty shall be payable to, and recoverable by, the commissioner in the same manner as the tax imposed under this section. If any tax is not paid when due as provided in this section, there shall be added to the amount of the tax, in addition to any penalty hereunder, interest at the rate of one per cent per month or any fraction thereof from the date the tax became due until the same is paid. If the commissioner is satisfied beyond a reasonable doubt that the failure to file a return or to pay the tax' was due to reasonable cause and was not intentional or due to neglect, he may abate or remit the whole or any part of any penalty under this section. This section shall not apply to any attorney whose name has been removed from the roll of attorneys maintained by the clerk of the superior court for Hartford county, or to any attorney who has retired from the practice of law, provided such attorney shall file written notice of such retirement with the clerk of the superior court for Hartford county, or, with respect to the tax due in any calendar year, to any attorney serving on active duty with the armed forces of the United States for more than six months in such year." "1. Bo the provisions of Sec. 51-81b General Statutes of Connecticut imposing an occupational tax on any person in the State of Connecticut who has been admitted as an attorney by the judges of the Superior Court and who has engaged in the practice of law including the performance of judicial duties violate the equal protection provisions of (a) Article First, Section 1 of the Connecticut Constitution? (b) Section 1 of the 14th Amendment to the United States Constitution? "2. Do the provisions of See. 51-81b General Statutes of Connecticut violate the provisions of Article Second of the Constitution of the State of Connecticut? "3. Is the plaintiff, Gerald B. Lublin, and others similarly situated, obligated to pay the tax imposed by 51-81b General Statutes of Connecticut during the calendar year 1974? "4. Is the plaintiff, Gerald B. Lublin, and others similarly situated, entitled to a refund of all monies paid as occupational taxes pursuant to § 51-81b General Statutes of Connecticut during the calendar years 1972 and 1973? "5. If the plaintiff, Gerald B. Lublin, and others similarly situated are entitled to a refund of all monies paid as occupational taxes pursuant to § 51-81b General Statutes of Connecticut, is the defendant Tax Commissioner liable for interest on said refunds?" Such fees vary in amount. Examples include $200 for private detectives; $150 for dentists, practitioners of medicine, surgeons, and public accountants; $100 for funeral directors; $50 for engineers; $35 for architects and $5 for midwives and manicurists. "[Conn. Const. Art. 2] The powers of government shall be divided into three distinct departments, and each of them confided to a separate magistracy, to wit, those which are legislative, to one; those which are executive, to another; and those which are judicial, to another." See footnote 2, supra.

Per Curiam. The sole question on this appeal is whether the trial court erred in refusing the plaintiff's offer into evidence of a series of bills for medical examination, treatment and drugs in the absence of any medical expert testimony which would support a finding that there was any causal connection between the accident for which the plaintiff's suit was brought and the services and drugs for which the bills were rendered. "To be entitled to damages a plaintiff must establish a causal relation between the injury and the physical condition which he claims resulted from it. Bates v. Carroll, 99 Conn. 677, 679, 122 A. 562. This causal connection must rest upon more than surmise or conjecture. Witkowski v. Goldberg, 115 Conn. 693, 696, 163 A. 413; Green v. Stone, 119 Conn. 300, 306, 176 A. 123. A trier is not concerned with possibilities but with reasonable probabilities. Richardson v. Pratt & Whit ney Mfg. Co., 129 Conn. 669, 672, 30 A.2d 919. The cansal relation between an injury and its later physical effects may be established by the direct opinion of a physician, by his deduction by the process of eliminating causes other than the traumatic agency, or by his opinion based upon a hypothetical question." Boland v. Vanderbilt, 140 Conn. 520, 525, 102 A.2d 362. In the absence of any medical evidence whatsoever which would support a finding that the bills offered into evidence by the plaintiff were causally connected with the alleged negligence of the defendant, the court properly excluded the offered exhibits. There is no error.

Per Curiam. The decisive issue on this appeal is whether the trial court abused its discretion in determining the amount of alimony awarded to the plaintiff in its judgment granting a divorce to her on the uneontested ground of desertion. Despite the vigor with which the appeal has been prosecuted and defended and the substantial amounts involved in the award made by the trial court, the issue remains a simple one. It is well settled that the trial court's decision as to the type and amount of alimony awarded in a divorce action is based upon the circumstances of the parties to the action and "is within the sound discretion of the trial court, taking into account the circumstances of the case such as the amount of the estate of the husband, his income, his age, health and earning capacity and the age, health, station and separate estate of the wife." Baker v. Baker, 166 Conn. 476, 488, 352 A.2d 277; see also Wood v. Wood, 165 Conn. 777, 783, 345 A.2d 5; Hotkowski v. Hotkowski, 165 Conn. 167, 170, 328 A.2d 674; Stoner v. Stoner, 163 Conn. 345, 307 A.2d 146. Our review of the record leads to the conclusion that the trial court did not abuse its discretion and reached its decision by the application of the standards which have been well established by our cases. There is no error.

The "Ex Parte Application for Court Records in Forma Pauperis" filed in this court on April 14, 1975, is dismissed.

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

House, C. J. This is an appeal from a judgment of the Superior Court denying the plaintiffs' appeal from an order and decree of the Probate Court allowing a decedent's widow $2000 per month for a period of one year to be paid out of the decedent's estate as a widow's allowance. Julius SMar, a resident of Stamford, died on December 3,1971. His will was admitted to probate in the Probate Court for the district of Stamford on January 4,1972. The plaintiffs, William S. SMar and Betty S. Tarr, are the sole issue of the decedent's first marriage and the executors and sole residuary devisees and legatees under his will. Ruth M. SMar, hereinafter referred to as the defendant, is the decedent's widow by his second marriage. On January 21, 1972, she filed an application with the Probate Court for the district of Stamford for an allowance of $2000 per month out of her husband's estate for her support. That court entered an order on May 17, 1972, granting the defendant an allowance for her support from and out of her husband's estate of $2000 per month for a period of twelve months from the date of his death. The cause of the present litigation is the existence of that order and an article in Sklar's will (article eighth) which stated: "The provisions made herein for my beloved wife, Ruth M. Sklar, are in lieu of all statutory rights to which she would otherwise be entitled in my estate, including her right to any statutory widow's allowance." At the time of the hearing before the Probate Court on the application for the widow's allowance, the defendant had not elected to take either under or against the will. Subsequent to the date of the probate hearing, the time allowed for making an election pursuant to § 46-12 of the General Statutes expired and the finding of the court discloses that the defendant "has not elected to take against the Will." Among the reasons for their appeal to the Superior Court from the order of the Probate Court granting a widow's allowance, the plaintiffs claimed that no allowance should have been granted to the defendant "in view of the explicit language of the Will," that because of that provision she should have been obliged to make an election to take either under or against the will before any order for a widow's allowance was made, that any allowance, if granted, should be made a charge upon the share she would receive from her husband's estate, and that the defendant had failed to establish the necessity for a widow's allowance in this ease. In denying the plaintiffs' appeal from the order of the Probate Court, the Superior Court concluded (a) that under the provisions of § 46-12 of the Gen eral Statutes the defendant, as a surviving spouse, was given the right to elect to take either under or against the will, and, in addition thereto, the right to apply to the Probate Court for a widow's allowance for support, (b) that the provisions, of article eighth of the decedent's will did not preclude the Probate Court from granting a widow's allowance, and (c) that the allowance as made was reasonable and justified by the inventory and actual value of the estate. The plaintiffs claim that the court erred in reaching these conclusions, in overruling their claims of law, and in rendering judgment for the defendant. The first two assignments of error essentially raise the same issues, which are stated in the plaintiffs' brief to be: "1) Whether the appelleedefendant was entitled to a widow's allowance when the decedent's Will specifically provided that the other provisions in the Will were 'in lieu of all statutory rights to which she would otherwise be entitled in my estate, including her right to any statutory widow's allowance.' 2) Whether a widow was obliged to make her election to take against the Will in order to qualify for a widow's allowance under § 46-12 of the General Statutes in view of the above exclusionary language." The lengthy provisions of § 46-12 of the General Statutes as it read at the time of these proceedings insofar as they are relevant here may be briefly summarized. They allow a surviving spouse an election to take according to the provisions of the deceased spouse's will or, in the alternative, to take a fixed portion of the. deceased spouse's estate, and provide that "such election shall be made in writing signed by the party entitled to make the same and lodged with the court of probate before which such estate is in settlement, within two months after the expiration of the time limited for the exhibition of claims against snch estate; and, if not so made, such person shall be taken to have accepted the provisions of the will and shall be barred -of such statutory share." The statute further provides that "[a] surviving spouse shall also, when in the opinion of the court of probate it is necessary, be allowed a reasonable sum from such estate for his or her support and for the support of his or her family during the settlement of the estate; but, in that case, such person shall not take his or her statutory share until the expiration of the time for which such allowance is made." It is the clear import of the language of § 46-12 that regardless of what election is made by the surviving spouse — to take under the will or to take a statutory share — that spouse shall "also," when in the opinion of the court of probate it is necessary, be allowed a reasonable sum for support during the settlement of the estate. As this court observed in Baldwin v. Tradesmens National Bank, 147 Conn. 656, 661, 165 A.2d 331: " 'It was the practice, from a very early time in our history, . . . for the court administering the estate of a deceased person, to make such allowance out of the estate as it deemed proper for the support of the widow . of the deceased during the settlement of the estate; and this practice became a part of our common law. . . .' Havens' Appeal, 69 Conn. 684, 698, 38 A. 795." "The allowance to a widow for her support is in the nature of a continuance of the support after the husband's death which he or his estate had furnished her before his death. But for it the widow and family, even where there is ample estate, might be subjected to great inconvenience and perhaps brought into an extremity. There is at first no legal certainty as to the condition of the estate, and until that certainty is arrived at by the completion of the settlement of the estate, the widow and family keep on, ordinarily in the home where they have lived, supported by a reasonable allowance from the estate." Baker's Appeal, 56 Conn. 586, 588-89. In holding that an allowance ordered by a Probate Court for a widow's support pending settlement of her deceased husband's estate was not subject to attachment by her creditors, this court, speaking by Pardee, J., had this to say in Barnum v. Boughton, 55 Conn. 117, 118-19, about such allowance: "Upon the death of a man the law takes instant possession of his entire estate in the interest of an orderly appropriation thereof, first, to the payment of certain preferred debts; secondly, of the remaining debts in equal proportions; thirdly, for the payment of specific legacies; the remainder to be divided among the heirs. If there are wife and children surviving, presumably they are without means for providing themselves with instant food and fuel, except as they may claim these necessaries from the hand of public charity; and must so continue until the law has completed the work of division; a work of statutory necessity, spreading over a considerable space of time. In the interest of humanity and for the prevention of what in almost every case would be an unseemly and unnecessary demand upon public charity, the law provides that the probate court may make such temporary allowance to the widow or children as shall supply their daily recurring needs. Of course, if it shall finally result that the estate is not equal to the debts, these last are to bear the burden of the temporary necessities of the family. This is no hardship, because every man knows when he gives credit to another that death may overtake the debtor when he is unable to pay and that a portion of such assets as he may have will be expended for the temporary support of his wife and children. It is a risk intentionally assumed, and the result therefore not to be complained of. If such an allowance has been made to a widow it is in no such sense a debt from the estate to her as that her creditor can intercept it by attachment on its passage from the estate to her. The grant is in derogation possibly of the rights of creditors of the estate; it is permitted for one purpose only — to feed her from day to day; dedicated by statute to a particular use in such manner as to be incapable of appropriation to any other; she could neither ask nor receive it for the payment of her debts; the probate court could not grant it for that purpose; and, even if allowed, the court upon coming to the knowledge of the fact that it was not needed for the supply of her wants, might revoke it. If one allowance can be intercepted so can every other; for if the door is opened for one creditor it cannot be closed against any; and the entire estate might thus be diverted from its legal destination. The law will not permit the instant necessities of the widow and the ultimate rights of the creditors of the estate to be postponed, in its name, to the demands of her creditors." The problem presented by the appeal is the subject of a note in 97 A.L.R.2d 1319 entitled "Effect of testamentary gift on widow's right to fixed statutory allowance for support." As the cases therein cited indicate, there is no unanimity as to the effect of a provision in a will that the testamentary disposition for a surviving spouse shall be in lieu of statutory allowance for support pending settlement of the estate. Such a provision brings into conflict two settled legal policies. The first is that "[i]n the absence of compelling reason to the contrary, effect must be given to the testator's intention as . . . expressed and directed in the will. Central Hanover Bank & Trust Co. v. Mason, 129 Conn. 350, 351, 27 A.2d 797." Weidlich v. First National Bank & Trust Co., 139 Conn. 652, 657-58, 96 A.2d 547. It is also expressed in Reaney v. Wall, 134 Conn. 663, 666-67, 60 A.2d 505: " 'The cardinal rule of testamentary construction is the ascertainment and effectuation of the intent of the testator, if that be possible. If this intent, when discovered, has been adequately expressed and is not contrary to some positive rule of law, it will be carried out.' Swole v. Burnham, 111 Conn. 120, 121, 149 A. 229." On the other hand, it is a long-established policy of the state now codified by statute that a probate court may grant an allowance for the support of a surviving spouse pending settlement of the estate and it is recognized that such an allowance "is not a property right, nor in any sense an allowance of a share from the estate, nor an apportionment to her from the estate"; Baker's Appeal, supra, 588; and that the award by order of the Probate Court "is a discretionary act, having no reference to or effect upon any provision of the will, nor upon the right of any heir or legatee," it being "a matter wholly for the probate court to determine." Lawrence v. Security Co., 56 Conn. 423, 443, 15 A. 406. It is alrin to the public policy which requires a husband or wife to furnish support to a spouse regardless of personal wish or choice. See General Statutes § 17-320, 17-321 and 46-10. We conclude that the public policy expressed in the latter portion of § 46-12 of the General Statutes authorizing the Probate Court to grant a widow's allowance pending the settlement of her husband's estate is so independent of the will, well established, and compelling that it must prevail over any contrary intention expressed in the husband's will. Accordingly, an attempt in his will to interfere with the exercise of the Probate Court's discretion or the right of the widow to the benefit of the allowance for support permitted to her by statute, or to require her to make an election between the benefits under his will and the statutory allowance during the period of administration, is contrary to public policy and void. In reaching this conclusion, we find ourselves in agreement with the decisions reached in the following cases, among others: Bankers Trust Co. v. Allen, 257 Iowa 938, 135 N.W.2d 607; Hill v. Kalamazoo Probate Judge, 128 Mich. 77, 87 N.W. 113; Collier v. Collier's Executors, 3 Ohio St. 369, 375-76; In re Stachnick's Estate, 376 Pa. 592, 595, 103 A.2d 765; In re Peebles' Estate, 157 Pa. 605, 27 A. 792. The plaintiffs next assign error to the conclusion of the court that the allowance as made was reasonable and justified by the inventory and actual value of the estate. They claim that the defendant failed to demonstrate the necessity for such an allowance and that it was excessive in view of all the circumstances. The statute (§ 46-12) allows a reasonable sum "when in the opinion of the court of probate it is necessary . . . for . . . her support. . . ." Thus, in the first instance, the decision rested in the sound discretion of the Probate Court. With respect to the exercise of such discretion, this court has observed: "We are aware, that courts of probate have long exercised the power of making allowances for the support of a family, when necessary, during the settlement of the estate; and that power has been confirmed by statute. But the power of taking the property of an heir or devisees, and appropriating it for the benefit of others, without the consent of the owner, ought to be cautiously exercised, and never carried beyond the necessary requirements of the case." Leavenworth v. Marshall, 19 Conn. 408, 418. The exercise of that discretion, which existed in the first instance in the Probate Court, "passes to the superior court on appeal and is to be exercised by it in an independent determination, without regard to the result reached by the probate court." Prince v. Sheffield, 158 Conn. 286, 299, 259 A.2d 621. The record discloses that the Superior Court considered a great deal of evidence pertaining to the income and estate of the decedent as well as of the defendant, the life style and standard of living enjoyed by them during their marriage, as well as the defendant's other sources of income, all as reported in the court's finding of facts. See Baldwin v. Tradesmens National Bank, 147 Conn. 656, 661, 165 A.2d 331. On the record, it cannot be held that the court failed to consider the pertinent circumstances or abused its discretion in reaching its decision as to the allowance granted to the defendant. The plaintiffs further contend that if the allowance was properly granted, then it should be made a charge upon the share of the estate which the defendant would receive from the decedent's estate pursuant to the terms of the will. A similar claim was made in Baldwin v. Tradesmens National Bank, supra, where this court noted (p. 663): "That such an order may be made in a proper case is intimated, although not actually decided, in Havens' Appeal, . [69 Conn. 684, 701, 38 A. 795]. See Leavenworth v. Marshall, . . . [19 Conn. 408, 419]; 2 Locke & Kohn, . . . [Conn. Probate Practice] § 392, p. 313; Weidlich v. First National Bank & Trust Co., 140 Conn. 686, 687, 103 A.2d 198." The answer to the plaintiffs' present contention is the same as that given in the Baldwin case (p. 663): "If we assume, without deciding, that the . . . Court had the requisite authority and power to order the allowance to be charged against the interest in the estate of the decedent passing to the widow under the will, we cannot say that the court, at least with regard to the period in question, should have done so." The final issue on appeal arises from the circumstance that after the plaintiffs filed their assignment of errors, the defendant filed a motion to correct the court's findings and the court granted that motion. Such a motion has not, for some time, been a part of our appellate procedure. Lockwood v. Nagy Bros., Inc., 150 Conn. 691, 692, 186 A.2d 82; Franks v. Lockwood, 146 Conn. 273, 276, 150 A.2d 215; Maltbie, Conn. App. Proc. § 172. However, improper as this procedure was, the plaintiffs admit in their brief that the granting of this motion availed the defendant nothing and served neither to strengthen nor weaken her position. The granting of the motion was at most a harmless error. There is no error. In this opinion the other judges concurred.

House, C. J. On a trial to a jury, the defendant was found guilty of one count of forgery and one count of obtaining money by false pretenses in violation of § 53-346 and 53-360 of the General Statutes respectively. On his appeal to this court, the defendant has first assigned error to the denial of his motion to set aside the verdict as unsupported by the evidence. Such a claim is tested by the evidence printed in the appendices to the briefs. State v. Lally, 167 Conn. 601, 603, 356 A.2d 897; State v. Saia, 167 Conn. 286, 287, 355 A.2d 88. From that evidence the jury could reasonably have found the following facts: On August 27,1968, at about 11:30 a.m., two men, one of whom was the defendant, went to Mike's Auto Sales at 578 Bridgeport Avenue in Milford and inquired of Michele Macaluso, the operator, about buying a used car. While the three men conferred in the car lot from which Macaluso could not see into the office, one of the men asked if he could use the telephone to call his girl friend to see if she would be interested in the car under consideration. Macaluso consented and the man went into the office to use the telephone. The man who remained talking to Macaluso outside on the lot while the other man entered the office was the defendant, Salvatore Panella. About twenty minutes later, after the defendant and his companion had left the premises, Macaluso discovered something was missing in the office. He noticed that the clip-ons on the checkbook were opened and all the checks were out. His wife came in five or ten minutes later and said there were nine pages of cheeks missing from the back of the checkbook which had been kept in the top of an unlocked desk drawer in the office. Between 12:30 p.m. and 1 p.m., Macaluso and his wife called the bank to report the cheeks stolen. Macaluso identified state's exhibit A as a check from his checkbook. Neither the handwriting nor the signature on state's exhibit A is that of Macaluso. He spells his name "Michele," and the name on the exhibit is spelled "Michael." On that same date, August 27, 1968, Mrs. Grayla Sullivan was employed as a teller in the Milford branch of the First New Haven National Bank. Between noon and 1 p.m. on that day, she cashed the check identified as exhibit A drawn on Mike's Auto Body in the amount of $1400. The defendant was the man who cashed the check. Without objection in either instance, during the trial Macaluso identified the defendant as the man who remained with him in the car lot while his companion went to the office to telephone and Mrs. Sullivan, the teller, identified him as the man for whom she cashed the $1400 check drawn on Mike's Auto Body. The defendant in his defense offered evidence of an alibi and a claim of mistaken identity. The decisive issues, therefore, resolved themselves into questions of credibility. Such questions are to be determined by the jury as the trier of fact, and the evidence must be given a construction which is most favorable to the sustaining of the jury's verdict. State v. Malley, 167 Conn. 379, 381, 355 A.2d 292; State v. Benton, 161 Conn. 404, 409, 288 A.2d 411; State v. White, 155 Conn. 122, 123, 230 A.2d 18. There was ample evidence to support the jury's verdict and we find no error in the ruling of the trial court denying the defendant's motion to set aside the verdict on the ground that it was not supported by the evidence. The defendant's remaining assignments of error are all concerned with evidence submitted as to the pretrial photographic identification of the defendant by the bank teller, Mrs. Sullivan. At the trial, Mrs. Sullivan, called by the state, identified in the courtroom in the presence of the jury the defendant as the person who cashed the stolen and forged check. The defendant-made no objection whatsoever to this in-court identification which was made prior to any reference during the trial to photographs. Mrs. Sullivan thereafter testified, also without objection, that she had also been asked to view certain photographs. She stated that she was not sure that she could then recognize the photographs which had been displayed to her. At this point, the jury was excused and Mrs. Sullivan was asked to remain outside the courtroom in order that her testimony would not be influenced by the colloquies of counsel. The defendant then indicated that he wished to raise the issue of the suggestibility of the police procedure in showing the photographs to the witness for pretrial identification in order to discover if it was so impermissibly suggestive as to taint the in-court identification which had already been made without objection. The defendant stated that he wished to raise this issue and have a ruling on it outside the presence of the jury. The court, however, ruled that everything would be done in the presence of the jury, to which ruling the defendant objected. The state then proceeded with its examination of Mrs. Sullivan. The purport of Mrs. Sullivan's testimony regarding the photographic pretrial identification was that on August 30, 1968, two Milford police officers asked her to look at some photographs to see if she conld make an identification. Mrs. Sullivan identified, for the police authorities, the photograph which is state's exhibit Bl, as portraying the person who cashed the check. On a second occasion, September 4, 1968, Mrs. Sullivan was again shown photographs by the police and she picked out state's exhibit Cl as a photograph of the person who cashed the check. State's exhibit Bl is a photograph of the defendant taken August 23,1965. State's exhibit Cl is a photograph of the defendant taken July 29, 1962. On both occasions, Officer Patrick F. McDonald of the Milford police department displayed the photographs to Mrs. Sullivan. Officer McDonald's purpose in having Mrs. Sullivan view photographs on a second occasion was to present her with different age groups to see if she could still make a positive identification. The witness again, and for the last time, saw these photographs, along with certain others that had been shown to her, at the probable cause hearing held on the defendant's case in the Circuit Court in June of 1969, almost a year and a half before the defendant's trial. Officer McDonald testified that when the photographs were shown to Mrs. Sullivan, nothing was said to her except that the police would like her to look through some photographs and see if she could identify any of them as the person who cashed the check. On each occasion, the photographs were not arranged in any special order, there was no particular mark on any of them, and no one photograph was more conspicuous than any other. The trial court found from-the evidence that the method used in showing the photographs to Mrs. Sullivan was not in any way suggestive or designed to emphasize certain of the photographs and that no due process rights of the defendant were violated. The defendant, in addition to assigning error to the admission of the foregoing evidence in the presence of the jury, claims error in the denial of his belated motion to exclude the in-court identification which he argues was also tainted by what he asserts were "in the totality of the circumstances" necessarily suggestive pretrial identification procedures. The standard by which such a claim is measured was succinctly stated in Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247, where the court said: "[E]ach case must be considered on its own facts, and . . . convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Whether the photographic identification procedure meets this level of suggestiveness is determined "in light of the totality of surrounding circumstances." Simmons v. United States, supra, 383; see also State v. Hafner, 168 Conn. 230, 234, 362 A.2d 925, and cases cited therein. The United States Supreme Court has indicated in a number of cases the factors to be considered in evaluating the likelihood of misidentification. They were summarized in Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 34 L. Ed. 2d 401, to include "the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the . . . [identification] and the length of time between the crime and the . . . [identification]." The defendant's argument in support of his contention that the pretrial identification procedure was impermissibly suggestive is based upon the circumstance that Mrs. Sullivan, on three separate occasions, was asked to view different sets of photographs, each containing a picture of the defendant. The repetitiveness of the displays, he contends, was so unduly suggestive in and of itself as to lead to irreparable misidentification. We find no error in the ruling of the court and its conclusion, reached after hearing extensive evidence and argument, that the defendant's rights to due process of law were not violated. While it is true that the witness did view photographs offered for her identification on three occasions prior to the trial, on at least two of the occasions the group of photographs contained a different photograph of the defendant and each time she positively identified the defendant as the person who cashed the check. In addition, the last of the photographic displays by the police took place well over a year before the defendant's trial, thus reinforcing the independent significance of the in-court identification made without objection. The evidence discloses that Mrs. Sullivan was made aware of the alert on the missing checks from Mike's Auto Body about three o'clock in the afternoon on August 27, 1968, the date of the transaction. When she learned of the alert, she knew right away that she had cashed the $1400 check and immediately went and told her supervisor. Being alerted less than three hours after the check was cashed, Mrs. Sullivan remembered with certainty the person who had cashed the check. Further, her actual encounter with the defendant while cashing the check lasted several minutes during which time a conversation transpired which she remembered vividly. Her physical description of the defendant given to the police shortly after the transaction was consistent with his actual physical characteristics. All of these facts would lend credence to the conclusion that Mrs. Sullivan's in-court identification was based on her recollection of her encounter Avith the defendant and was independent of the photographic identification. We also note that there is no evidence in the record or appendices to the briefs that the pictures were arranged in any suggestive sequence or contained any particular identifying marks. Nor is there any evidence that any particular photograph stood out in any way or that the police did anything to influence Mrs. Sullivan's selection of the defendant's photograph. In sum, there was no evidence that would have supported a finding that the pretrial photographic identification procedure was in the least suggestive. We find no merit to the contention of the defendant that in the totality of the circumstances there was an impermissibly suggestive identification procedure followed in this case. Accordingly, we find no error in the ruling of the court denying the motion of the defendant to exclude the eAddence concerning the identification of the defendant by Mrs. Sullivan. The defendant's remaining claim of error requires but brief mention. It is that the court committed error in holding in the presence of the jury a hearing on the admissibility of the pretrial photographic identifications of the defendant by Mrs. Sullivan. Of prjmary significance in our consideration of this claim is the fact that before the offer of any evidence of pretrial photographic identification the witness, without objection and in the presence of the jury, made an in-court identification of the defendant as the man who had cashed the check in question. It appears of record that at the time of the unobjected-to, in-eourt identification defense counsel was fully aware of the pretrial photographic identifications as a result of his representation of the defendant at the bind-over proceedings, but he nevertheless refrained from making any objection. The subsequent evidence of the pretrial photographic identifications, accordingly, was not introduced as is usually the case in an effort by the defendant to exclude the in-court identification but rather by the state to bolster it. This is a permissible procedure. State v. Frost, 105 Conn. 326, 341, 135 A. 446. Obviously the more prudent and better procedure is. for the court to determine in the absence of the jury questions as to the admissibility of evidence if for no other reason than that such a procedure obviates any risk that the jury may hear evidence which the court ultimately determines to be inadmissible. See Pinto v. Pierce, 389 U.S. 31, 32, 88 S. Ct. 192, 19 L. Ed. 2d 31. It clearly appears that in the circumstances of this case the ruling of the court in the light of its ultimate proper decision to admit the testimony as evidence for the jury's consideration was not error, and, even if it could be considered as an erroneous ruling, it was harmless. There is no error. In this opinion the other judges concurred.

The defendant's motion to dismiss dated January 24, 1975, is denied.

Peters, J. This case arises out of the decision of a local board of education to hire and to test its nonprofessional employees without regard to a city civil service system or a city-wide union contract purporting to cover these employees. The plaintiffs, Local #1186, American Federation of State, County and Municipal Employees, Council 4, AFL-CIO (hereinafter the union) and the city of New Britain (hereinafter the city) brought a suit for declaratory and injunctive relief against the defendants, the New Britain board of education (hereinafter the board), its individual members and its superintendent of schools, alleging that the board was violating state statutes, the New Britain charter, and a binding collective bargaining agreement. After a trial to the court, Graham, J., judgment was rendered for the defendants on the ground that the board was authorized by the New Britain charter to exercise plenary power over its nonprofessional employees, except as to their removal from employment which was subject to the merit system as administered by the city's personnel director and civil service commission, and that the board was not bound by the labor agreement between the city and the union. The union and the city have appealed from this declaratory judgment. The trial court's findings of fact, which are not contested on this appeal, establish the following: New Britain has a city charter which was enacted in 1961, pursuant to the Home Buie Act. The charter entrusts responsibility for the educational system to the defendants, the board, its members and its superintendent of schools, and responsibility for the merit system to the civil service commission and its personnel director. The merit system covers generally the personnel in the classified service of the city. Although the merit system excludes unclassified service from its coverage, the board's employees who are the subject of the present dispute, the school custodians and educational secretaries, do not fall within the charter's definition of the unclassified service. The board of education is given, by § 912 of the New Britain charter, the power to "make, change, amend or alter any rules and regulations as to the duties, terms of office, mode of election, and compensation of all persons employed by said Board," and thus has the power to determine the wages and the conditions of employment of all of its employees. It is the board that pays, out of its budget, the salaries, the insurance and the fringe benefits of its custodians and its educational secretaries; it is the board that assigns their work, sees to their training, supervises them, disciplines them, and evaluates them. All nonprofessional persons within the New Britain school system are employees of the board, and as such are employees of the city. The merit system has never covered all classified city employees, even apart from the present controversy about school custodians and educational secretaries. Other classified employees that have historically been excluded are: the paraprofessionals within the school system, the employees of the redevelopment agency and the employees of the housing authority. From 1947, when the civil service system was adopted, until February 14, 1977, the hiring of nonprofessional employees of the board such as custodians and educational secretaries (but not of its paraprofessionals) was processed through the civil service commission, which conducted examinations and rated applicants. There is, however, a history of escalating conflict between the board and the civil service commission, arising out of the commission's repeated delay and occasional denial of the board's requests to fill vacant positions. The plaintiff union became the certified exclusive collective bargaining agent for all classified city employees in 1965, and continues to represent all such employees except those of the housing authority, the redevelopment agency and the paraprofessionals in the school system. The custodians and the educational secretaries employed by the board have been part of the bargaining unit and have their dues regularly checked off and paid; none of these employees has requested otherwise. Collective bargaining contracts have been negotiated between the union and the city, without the participation of the board, which has not been a party to the contracts. These contracts, which cover school custodians and educational secretaries, affect the operation of the schools by setting the total hours of work and vacation schedules (some while schools are in session), and by setting wage increases and fringe benefits subsequent to approval of the board's budget. Furthermore, the union contract has been interpreted to require the board to hire laid-off employees of other city departments without testing and with transferred seniority rights. As a result of prior conflicts with the civil service commission and disagreement with its interpretation of the union contract, the hoard officially and formally determined, on February 14, 1977, that it would assume sole responsibility for the employment of its nonprofessional staff. In order to retain control over the disciplinary procedures, transfer rights, seniority systems, and work assignments for the school employees, the hoard would henceforth hire from its own lists and use its own tests. It would no longer select its custodians and its educational secretaries from lists furnished by the civil service commission. This decision precipitated the present controversy. Before we reach the merits of the suit for declaratory judgment, it is important to clarify what is not at stake. The defendant hoard has never asserted, nor does the law suit claim to the contrary, the right to make appointments at will or to disregard the right of hoard employees to bargain collectively. The issue is not whether hoard employees will he hired on the basis of merit or whether they will continue to be represented by a union or this union. The board asserts only that it, and not the city, is the proper agency to administer appropriate testing and to negotiate an appropriate collective bargaining agreement. The declaratory judgment action sought a determination of three issues. These issues, and the trial court's resolution thereof, are as follows. Question 1 (a) asked "whether the Board of Education, acting under the provisions of Connecticut General Statutes, Section 10-218 et seq. may hire [and] conduct tests to employ classified nonprofessional employees such as, custodian and edu eational secretaries and others." This question was answered "yes." Question 1 (b) asked "whether the Personnel Director of the City of New Britain, acting under the provisions of the City Charter, Chapter 3, Articles 1-15 inclusive, of the City of New Britain, and the provisions of the Merit System Provisions of the Charter, Rules of the Civil Service Commission, may enforce provisions relating to the appointment, duties, promotion, pay and removal of non-professional, classified employees of said Board of Education." This question was answered "[n]o, but with the qualification that the Personnel Director may enforce the provisions of the merit system and the rules of the Civil Service Commission as they relate to the removal of nonprofessional classified employees of the Board." The final question, question 1 (c), asked "whether the Defendant, Board of Education, is subject to the provisions of the Labor Agreement between the City of New Britain and the Plaintiff [Union] herein specifically, Subsection 4.3 and 4.5." This question was answered "no." The plaintiff's appeal contests the trial court's resolution of each of these questions, as well as the court's resolution of other subordinate questions of law. I In our review of these questions on this appeal, we will deal jointly with the first two questions, since they address opposite sides of the same coin. The ultimate authority to hire and test nonprofessional classified employees of the board must rest either with the board or with the civil service commission. The board has taken no cross appeal, and there is therefore no present disagreement that the power to regulate removal of nonprofessional employees is vested in the civil service commission. The authority vested in local boards of education is derived from a multitude of sources. On the one hand, local boards act as agencies of the state to carry out the constitutional guarantee of free public education contained in article eighth, § l and implemented by General Statutes § 10-220. Pursuant to § 10-220, local boards are specifically charged with the duty to "maintain good public elementary and secondary schools" and to see to "the care, maintenance and operation of buildings, lands, apparatus and other property used for school purposes." See Maitland v. Thompson, 129 Conn. 186, 191, 27 A.2d 160 (1942). Furthermore, although it is the municipalities that appropriate the funds for the maintenance of public schools, General Statutes § 10-220 provides that it is the local boards that decide, in their discretion, how those funds shall be budgeted and expended. Board of Education v. Ellington, 151 Conn. 1, 6, 193 A.2d 466 (1963); cf. Fowler v. Enfield, 138 Conn. 521, 530, 86 A.2d 662 (1952). On the other hand, local boards are also governed by local charters specially enacted by the General Assembly pursuant to article tenth of the constitution of Connecticut and the Home Rule Act; General Statutes § 7-187—7-201. The state's grant of broad powers to local boards of education is not unlimited; see Herzig v. Board of Education, 152 Conn. 144, 150, 204 A.2d 827 (1964); and local charters are one of the sources of limitation. Local charters may be binding upon local boards either because a relevant state statute expressly defers to local charter provisions, as in § 10-151 (d) ; see Cammisa v. Board of Education, 175 Conn. 445, 448, 399 A.2d 521 (1978); or because the local charter provisions are not inconsistent with or inimical to the efficient and proper operation of the educational system otherwise entrusted by state law to the local boards. See Wallingford v. Board of Education, 152 Conn. 568, 574-75, 210 A.2d 446 (1965). Nothing in the state statutes speaks directly to the duty of local boards of education to observe the rules and regulations of local civil service commissions. We must turn, therefore, to the New Britain charter to determine the extent to which that charter confers powers and sets limitations upon the New Britain board of education. We are mindful that in Wallingford v. Board of Education, supra, we held that a local charter may prescribe civil service regulations for the hiring of nonprofessional classified employees of a board of education. Contrary to the argument of the plaintiffs, however, Wallingford is not dispositive of this case, since its holding necessarily turns on the language of the Wallingford charter which differs significantly from the language of the New Britain charter. The relevant provisions of the New Britain charter are found in chapter 3, entitled "Civil Service," and chapter 9, entitled "Education." Chapter 3, in § 371 and 372, establishes a merit system for the appointment or promotion of employees in the city's classified service. Section 352 defines as employees in the classified service all those not exempted as unclassified by § 351; school custodians and educational secretaries do not come within the categories of those listed as unclassified employees. Section 911 of chapter 9 confers upon the board of education "all the rights, duties and powers concerning schools and educational matters vested in town boards of education and selectmen of towns by the law of this state." Section 912 authorizes the board to "make, change, amend, or alter any rules, regulations, or bylaws which they may deem necessary relative to . . . the duties, terms of office, mode of election, and compensation of all persons employed by said board and its officers . . . provided nothing in this section shall be construed as authorizing the board to remove employees who are in the classified service." The trial court construed these charter provisions as exempting nonprofessional classified board employees from merit system requirements, except when removal from service is at issue. We agree. The New Britain charter provisions give sweeping authority to the civil service commission in chapter 3, but that authority is in turn limited by chapter 9. It is difficult to imagine a more plenary grant of power to a school board than that conferred upon the New Britain board of education by § 911. The board's right to make regulations for all of its employees, classified and unclassified, is underscored by § 912's explicit reference, in its proviso, to removal of classified employees. Such a proviso would hardly be appropriate unless the language "all persons employed by said board," earlier in § 912, encompasses classified employees. Read as a whole; see Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 7-8, 434 A.2d 293 (1980); Bahre v. Hogbloom, 162 Conn. 549, 554, 295 A.2d 547 (1972); the charter allows the board, and not the civil service commission, to hire and to test school custodians and educational secretaries. Our interpretation of the New Britain charter is supported by our holdings in other cases involving a possible conflict between the authority of a civil service commission and the prerogative of a local board. In Wallingford v. Board of Education, supra, the local charter conferred only general responsibility "for the conduct of the educational system" upon the local board. The generality of that language was insufficient to limit the sweep of the merit system's potential coverage of all classified employees. The Wallingford charter, in contrast to that of New Britain, conferred upon the board no express authority over the manner in which nonprofessional classified employees were to be hired. Even more illuminating is Gilbert v. Civil Service Commission, 158 Conn. 578, 583, 265 A.2d 67 (1969). In Gilbert, we noted that, with regard to the powers of the board of police commissioners, § 1903 of the New Britain charter provided that the board should make all necessary rules and regulations for the government of the city's police department, but then went on, in the same section, to make the board's powers "subject to the rules and regulations of the civil service commission." We held (p. 583) that the civil service rules, because of this language, preempted the police department's disciplinary procedure. The drafters of the New Britain charter thus knew how to provide uncategorically for total priority for the civil service system. With regard to the board of education, they chose instead to limit civil service commission rules and regulations to cases of removal from employment. The plaintiffs urge that our interpretation, and that of the trial court, improperly disregards the significance of the thirty years of prior relation ship between the board and the civil service commission. We have repeatedly acknowledged that "[t]he practical interpretation of legislative acts by governmental agencies responsible for their administration is a recognized aid to statutory construction." State ex rel. James v. Rapport, 136 Conn. 177, 182-83, 69 A.2d 645 (1949); Jones v. Civil Service Commission, 175 Conn. 504, 508, 400 A.2d 721 (1978). In the circumstances before us, the historical record cannot override the mandates of the charter. We cannot speculate as to why the board acquiesced for so many years in the processing of its employees through the screening of the city's personnel director. The trial court did find that the board had, in the recent past, encountered repeated disruptive delays in its hiring through the personnel director, so that the relationship between the civil service commission and the board had increasingly shown signs of conflict. In any case, even if the board had not previously insisted on its rights to conduct its own hiring and testing, there has been no suggestion of a binding waiver or estoppel. Brauer v. Freccia, 159 Conn. 289, 294-96, 268 A.2d 645 (1970); see Dupuis v. Submarine Base Credit Union, Inc., 170 Conn. 344, 353, 365 A.2d 1093 (1976); Pet Car Products, Inc. v. Barnett, 150 Conn. 42, 53, 184 A.2d 797 (1962). We conclude that the trial court correctly answered the first and second questions, denominated questions 1 (a) and 1 (b), in the action for declaratory judgment. Under the New Britain charter, it is the province of the board and not of the personnel director to hire and test nonprofessional classified employees such as school custodians and educational secretaries. Only the removal of such employees from service is governed by the rules and regulations of the civil service commission. II We turn next to the third question raised by the action for declaratory judgment, whether the defendant board is subject to the terms of the labor agreement between the plaintiff city and the plaintiff union. The plaintiffs contend that their collective bargaining agreement, negotiated pursuant to the Municipal Employee Relations Act, (hereinafter the MERA); General Statutes § 7-467—7-477; is binding upon the defendants. They point to the decision of the Connecticut board of labor relations, which, in 1965, designated and certified the plaintiff union as the exclusive bargaining representative for all classified employees of the city of New Britain. That representation covered nonprofessional classified employees of the board. They rely, further, on the provisions of § 7-474 (f) to establish the supremacy of a collective bargaining agreement over conflicting provisions of a "charter, special act, ordinance, rules or regulations adopted by the municipal employer." They argue, in short, that whatever the rights the charter confers upon the board, those rights are, by virtue of the MERA, superseded by their collective bargaining agreement purporting to cover the board's nonprofessional classified employees. The board counters these contentions by noting that a school board may itself be a "municipal employer" under § 7-467 (1) and § 7-474 (d) of the General Statutes, and that only a collective bargaining agreement negotiated by and with the appropriate municipal employer, the board, determines and delimits the rights of the board. The trial court was persuaded that the board's position was correct, that the board was not bound by the labor agreement negotiated, without the board, by the city and the union. We agree. To determine the effect of the collective bargaining agreement between the city and the board, we must scrutinize all of the provisions of the MERA, as well as the text of the relevant opinions of the Connecticut state board of labor relations. For the sake of convenience, we deal first with the latter, since, upon examination, it becomes clear that the decisions of the labor board turned on matters not relevant to the current dispute. In neither of the cases in which the labor board certified the union to be the proper bargaining representative was the board of education in fact a party; in neither case was any question raised whether it should have been a party. In Decision No. 642, rendered September 7, 1965, the union's representative status was established by virtue of a stipulation that the municipal employer, the city, had no objection to the proposed description of the bargaining unit. The labor board, while approving the terms of the stipulation, expressly noted that the composition of the appropriate unit was not to be taken as a precedent binding upon the labor board. In Decision No. 724, rendered December 30, 1966, educational secretaries employed by the board of education sought to carve out a separate bargaining unit for themselves, alleging that their functions and affiliations set them apart from other clerical employees of the city. The board of education, though a nominal party, took no part in these proceedings, nor was the city's status as negotiator considered by the labor board. The labor board merely refused, at the time of the case, within one year of an outstanding contract negotiated with a union only recently certified, to countenance the educational secretaries' petition. There has therefore been no administrative adjudication that the city rather than the board of education is the appropriate negotiator of collective bargaining agreements. The relevant statutory provisions that we must examine are the various subsections of General Statutes § 7-474, the section of the MEEA that regulates negotiations and agreements between municipalities and employee representatives. The plaintiff union emphasizes §7-474 (f), which declares that, in case of "a conflict between any agreement reached by a municipal employer and an employee organization . . . and any charter, special act, ordinance, rules or regulations . or any [relevant] general statute . . . the terms of such agreement shall prevail . . . ." The board argues, eor rectly, that the priority of § 7-474 (f) depends npon an agreement negotiated with the proper municipal employer. School boards may be municipal employers, as that term is defined for the MERA by §7-467 (2). More significantly, §7-474 (d) declares: "If the municipal employer is a . . . school board . . . which by statute, charter, special act or ordinance has sole and exclusive control over the appointment of and the wages, hours and conditions of employment of its employees, such . . . school board . . . shall represent such municipal employer in collective bargaining and shall have the authority to enter into collective bargaining agreements with the employee organization." The principal issue then becomes whether, under the state statutes and the New Britain charter, the defendant board can be said to have sole and exclusive control over the appointment and the conditions of employment of its nonprofessional classified employees. As did the trial court, we hold that it does. We have previously, in part I of this opinion, described the extensive powers conferred upon the defendant board by General Statutes § 10-220 and by the New Britain charter, § 911 and 912. The authority thus given to the board establishes the sole and exclusive control required by § 7-474 (d) over the appointment, wages, hours and conditions of employment of its employees. It is true that, because of the proviso in § 912, the board does not have exclusive power to remove nonprofessional classified employees from its service. That limitation is, however, not relevant, since § 7-474 (d) does not require exclusive control over removal of employees. The omission in this subsection of language relating to the subject of removal cannot be dismissed as inadvertent, since § 7-474 (f) expressly includes in its ambit "removing employees" from coverage under the state retirement system. The right of the board, under § 7-474 (d), to act as the exclusive negotiator in bargaining collectively with its employees is not impaired by subsequent subsections of § 7-474. Section 7-474 (f) determines the effect of a validly negotiated agreement, and does not purport to prescribe the conditions of valid negotiation. Section 7-474 (g) provides that "[njothing herein" shall diminish the authority of municipal civil service commissions to conduct and grade merit examinations. That subsection does not address other sources of limitation on the powers of local civil service commissions. Onr reading of the statutes of the state and the provisions of the New Britain charter leads us to conclude that these legislative enactments form a consistent whole. They represent the policy judgment that it is preferable to have the school board, which manages the school budget, assume the responsibility for the terms and the conditions of employment of school employees. Accountability for the maintenance of good public schools is strengthened by authorizing the school board itself to implement merit selection and collective bargaining. The plaintiffs raise the spectre of financial irresponsibility on the part of the school board, of a potential for fiscal chaos that they describe as "horrendous." These fears are not realistic as long as control over the total amount of the board's budget continues to reside, as it does, in the city's legislative body. There is no error. In this opinion the other judges concurred. Although, the plaintiffs in their assignment of errors attacked a number of the findings of the trial court, these assignments have not been briefed and are deemed abandoned. Gould v. Rosenfeld, 178 Conn. 503, 505, 423 A.2d 146 (1979); Jones v. Civil Service Commission, 175 Conn. 504, 505, 400 A.2d 721 (1978). The city charter was enacted by the General Assembly in 1961; 30 Spec. Acts 404, No. 420; pursuant to article tenth of the Connecticut constitution, General Statutes § 2-14, and the Home Buie Act; General Statutes §7-187 through 7-201. Grogan v. New Britain, 175 Conn. 174, 179, 397 A.2d 97 (1978); First Church of Christ, Scientist v. Friendly Ice Cream, 161 Conn. 223, 225, 286 A.2d 320 (1971). It is neither illogical nor unusual to impose greater forma] restraints on the determination that an employee is to be discharged than on the determination that the employee is to be hired. Compare, under the Teacher Tenure Act; General Statutes § 10-151; the detailed procedures governing the dismissal but not the initial employment of teachers. The constitution of Connecticut, article eighth, § 1, states: "(free public schools.) Sec. 1. There shall always be free public elementary and secondary schools in the state. The general assembly shall implement this principle by appropriate legislation." General Statutes § 10-220 also confers upon each local school board the general power to "perform all acts required of it by the town or necessary to carry into effect the powers and duties imposed by law." General Statutes §10-151 (d) states, in part, that "[t]he provisions of any special act regarding the dismissal or employment of teachers shall prevail over the provisions of this section in the event of conflict." The Wallingford charter, in chapter 10, §1, provided simply: "department oe education. The board of education shall be responsible for the conduct of the educational system of the town in accordance with the provisions of this charter." Subsequent chapters established a merit selection system for the town's classified employees. The provisions of the New Britain charter are obviously more elaborate. In Wallingford, furthermore, the board of education had stipulated that the town's classified service included school custodians, secretaries and cafeteria employees. Wallingford v. Board of Education, 152 Conn. 568, 572, 210 A.2d 446 (1965). Section 912, entitled "Bules and regulations; salaries; removal of officers," provides in full: "Said board may make, change, amend, or alter any rules, regulations, or bylaws which they may deem necessary relative to the manner of conducting the meetings and business of the board, to the conduct and government of schools, and to the duties, terms of office, mode of election, and compensation of all persons employed by said board and its officers; and said board may at any time remove any officer thereof or any person employed by them; provided nothing in this section shall be construed as authorizing the board to remove employees who are in the classified service, or covered by sections 913 to 920, inclusive." 30 Spec. Acts 428, No. 420. Wo note that the collective bargaining agreement between the city and the union applicable at the time of this suit was dated July 1, 1976, signed July 15, 1977, and, by its terms ran until June 30, 1978. This law suit was initiated on April 12, 1977. This case is entitled City of New Britain (General Employees) and Local #1186 of Council 4, American Federation of State, County and Municipal Employees, AFL-CIO. It was a consolidation of three different cases involving municipal employees of the city of New Britain. This ease is entitled The Board of Education of the City of New Britain and/or the City of New Britain and New Britain Association of Education Secretaries and Council #4, Local 1186, American Federation of State, County and Municipal Employees, AFL-CIO. "[General Statutes] Sec. 7-474. . . . (f) Where there is a conflict between any agreement reached by a municipal employer and an employee organization and approved in accordance with the provisions of sections 7-467 to 7-477, inclusive, on matters appropriate to collective bargaining, as defined in said sections, and any charter, special act, ordinance, rules or regulations adopted by the municipal employer or its agents such as a personnel board or civil service commission, or any general statute directly regulating the hours of work of policemen or firemen, or any general statute providing for the method or manner of covering or removing employees from coverage under the Connecticut municipal employees' retirement system or under the policemen or firemen survivors' benefit fund, the terms of such agreement shall prevail; provided, if participation of any employees in said system or said fund is effected by such agreement, the effective date of participation in said system or said fund, notwithstanding any contrary provision in such agreement, shall be the first day of the third month following the month in which a certified copy of such agreement is received by the retirement commission, or such later date as may be specified in the agreement." "[General Statutes] Sec. 7-474. . . . (d) If the municipal employer is a district, school hoard, housing authority or other authority established by law, which by statute, charter, special act or ordinance has sole and exclusive control over the appointment of and the wages, hours and conditions of employment of its employees, such district, school board, housing authority or other authority, or its designated representatives, shall represent such municipal employer in collective bargaining and shall have the authority to enter into collective bargaining agreements with the employee organization which is the exclusive representative of such employees, and such agreements shall be binding on the parties thereto, provided, where any provisions of any such agreement require federal approval, such provisions shall be binding upon receipt of such approval, and no such agreement or any part thereof shall require approval of the legislative body of the municipality." (Emphasis added.)

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

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

Peters, C. J. The principal issue in this appeal is a determination of the circumstances under which a court must initiate an evidentiary inquiry into a defendant's competency before accepting his guilty plea or denying a motion to withdraw such a plea. The defendant, Robert Watson, a/k/a Ollie Ricketts, Jr., was charged, in a two count substitute information, with the crimes of unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a) and sexual assault in the first degree in violation of General Statutes § 53a-70 (a). The trial court, after a canvass, accepted the defendant's plea of guilty to each count. On the date set for sentencing, the defendant moved to withdraw his pleas of guilty. The court denied the motion and imposed a total effective sentence of not less than eight nor more than sixteen years. The defendant, in his appeal to this court, raises four issues. The defendant claims that the trial court erred: (1) in finding that the defendant's pleas of guilty were voluntary without sufficiently inquiring into the defendant's mental capacity to enter into a plea; (2) in denying the defendant effective assistance of counsel on his motions to withdraw his guilty pleas by failing to allow the defendant to obtain substitute counsel; (3) in denying the defendant's motion that his request to withdraw his guilty pleas be heard by another judge; and (4) in denying the defendant's motions to withdraw his pleas for lack of mental capacity without an evidentiary hearing. We find no error. I The pleas of guilty whose validity the defendant now challenges arose under the following circumstances. The defendant had originally been charged not only with sexual assault but also with kidnapping in the first degree. Motions relating to these charges were heard beginning November 20,1981, and jury selection was begun on November 25, 1981. On December 9, 1981, in the midst of the jury selection process, the defendant informed the court that he wished to plead guilty to a substitute information in accordance with a plea bargain. The state filed a substitute information reducing the charge of kidnapping, a class A felony, to one of unlawful restraint, a class D felony. The state also agreed to enter a nolle prosequi with respect to other pending charges against the defendant upon imposition of a recommended sentence to imprisonment for an effective term of not less than eight nor more than sixteen years. At the hearing at which the defendant entered his guilty pleas pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), the state offered the following factual basis for the pleas. At about 12:30 a.m. on February 21, 1981, the victim was accosted by two black men as she was using a public telephone. The men forced her into their car and drove her to a wooded area where each of them sexually assaulted her. The victim escaped from the car and found a state trooper to assist her. The state trooper immediately reported the incident to the Waterbury police, including in his report the victim's description of the men, their car and the car's license number. Approximately twenty minutes later, the defendant and a male companion were stopped in Woodbridge not far from the scene of the assault. The car they were driving matched the victim's description. Medical evidence obtained at a hospital examination of the victim corroborated a sexual assault. The victim identified the defendant, in a photo array, as one of the men who had assaulted her. She also identified the car which the defendant had been driving when he was stopped as the car in which she had been sexually assaulted. The court conducted the canvass required by Practice Book § 711 through 713 to determine whether the defendant's pleas were knowing, voluntary and intelligent. After it had made an inquiry into the defendant's educational history, the court asked the defendant about his medical history. In response to the court's questions, the defendant indicated that he was not presently under medication, that he had been treated for psychosis for the past eight months, that he had recently been taking one hundred fifty milligrams of Elavil and seventy-five grams of Mellaril, and that the last time he had received medication by prescription was two days earlier when he had taken fifty milligrams of Elavil. The defendant informed the court that his medication had been prescribed for him by an unidentified psychiatrist at the "state jail." The court thereupon asked the defendant whether he felt that the medication in any way impaired his present ability to reason, to understand the proceeding against him, or to make decisions on the matters before the court. The defendant replied, "No." The court further asked the defendant whether he felt he was able to think clearly, to weigh the various alternatives before him, and to make a responsible judgment on his own behalf. The defendant several times indicated that he had no doubt about his ability to participate fully in the plea. The court thereafter turned its attention to other aspects of the plea canvass. The defendant was represented throughout the trial and the plea canvass by a private attorney of his choice. The defendant affirmed that he had had a full opportunity to discuss his case with his attorney and that he was satisfied with the advice he had received. Although the defendant then manifested some emotional upset, he regained his composure after a minute or two. Toward the end of the canvass, having been advised by the court of the constitutional rights he was waiving, and that a guilty plea could not be withdrawn at the time of sentencing, the defendant asked to speak to his attorney. His attorney informed the court that the defendant had inquired whether his pleas of guilty would preclude his pursuit of a claimed constitutional infirmity in the grand jury proceedings and the search warrant in his case. Upon receipt of advice on that point, the defendant reiterated his wish to plead guilty to the charges. The court then made a finding that the defendant, with the effective assistance of counsel, had pled guilty knowingly, voluntarily and intelligently. The defendant now challenges the trial court's determination of voluntariness and intelligence on the ground that the court failed to make a sufficient inquiry into the defendant's mental capacity at the time of the entry of the pleas. Relying on the undisputed principle that a guilty plea violates constitutional requirements of due process if, because of incompetence, the plea is involuntary or unknowing; Drope v. Missouri, 420 U.S. 162, 171-75, 95 S. Ct. 896, 43 L. Ed. 2d 103 (1975); State v. Torres, 182 Conn. 176, 184-86, 438 A.2d 46 (1980); the defendant argues that the circumstances at the plea hearing raised an unresolved doubt about the defendant's competence to plead guilty. Once such a doubt has been raised, the defendant maintains that a court becomes constitutionally obligated to determine whether a defendant is capable of making the reasoned choice essential to the validity of the guilty pleas. In making such a determination, the court is not entitled, according to the defendant, to rely on such factors as the defendant's subjective statement that his reasoning powers are unaffected by his psychiatric history, the court's own observations of the defendant's expressions, conduct and statements during the trial, or defense counsel's acquiescence in the proceedings, but must, sua sponte, order an evidentiary hearing into the defendant's medical condition. Under the circumstances revealed by the record in this case, we disagree. In Myers v. Manson, 192 Conn. 383, 389-91, 472 A.2d 759 (1984), this court recently reviewed the standard for competence to plead guilty that has been established by our statute; General Statutes § 54-56d (a); and by the applicable constitutional case law. Dusky v. United States, 362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960). Because every valid guilty plea must be demonstrably voluntary, knowing and intelligent, we require the record to disclose an act that represents a knowing choice among available alternative courses of action, an understanding of the law in relation to the facts, and sufficient awareness of the relevant circumstances and likely consequences of the plea. McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969); Myers v. Manson, supra, 389-90; State v. Deboben, 187 Conn. 469, 476, 446 A.2d 828 (1982); State v. Torres, supra, 184-85; Buckley v. Warden, 177 Conn. 538, 542, 418 A.2d 913 (1979); State v. Battle, 170 Conn. 469, 474-75, 365 A.2d 1100 (1976); Consiglio v. Warden, 160 Conn. 151, 166, 276 A.2d 773 (1970). A trial court's scrutiny of the voluntariness and the intelligence of a plea pursuant to Practice Book § 711 through 713 and Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), therefore necessarily implies that it has made an inquiry into the defendant's competence to plead. Myers v. Manson, supra, 390-91. The question in this case is whether Pate v. Robinson, 383 U.S. 375, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966), required the court to make a further inquiry into competence once the defendant informed the court that he had been under psychiatric care for the previous eight months and had, as recently as forty-eight hours earlier, been taking prescription medicine relating thereto. As the state acknowledges, the rule of Pate v. Robinson imposes a constitutional obligation, under the due process clause, to undertake an independent judicial inquiry, in appropriate circumstances, into a defendant's competency to stand trial or to plead guilty. Id., 385. When a Pate inquiry is required, a court may not rely on the defendant's subjective appraisal of his own capacity or on the court's personal observations of the defendant but must hold an evidentiary hearing into the defendant's competence. Id., 385-86. The crucial issue, therefore, is what triggers a defendant's right to an evidentiary hearing. A defendant who challenges the validity of his guilty plea for lack of an evidentiary inquiry into his competence must make a showing that, at the time of his plea, the court had before it specific factual allegations that, if true, would constitute substantial evidence of mental impairment. Sanders v. United States, 373 U.S. 1, 21, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1963). " 'Substantial evidence' is a term of art. 'Evidence' encompasses all information properly before the court, whether it is in the form of testimony or exhibits formally admitted or it is in the form of medical reports or other kinds of reports that have been filed with the court. Evidence is 'substantial' if it raises a reasonable doubt about the defendant's competency . . . ." Moore v. United States, 464 F.2d 663, 666 (9th Cir. 1972). In this case, the only evidence pointing to possible lack of competence was the defendant's brief and unsubstantiated reference to a history of psychiatric treatment and medication. The history given by the defendant indicated that, at the time of the pleas, he had taken no medication for the past forty-eight hours. Although he told the court what drug he had been taking, and what the prescribed dosage had been, he did not reveal the name of his psychiatrist and he offered no medical report concerning the nature of the mental condition for which he had received treatment. The disclosure of the defendant's psychiatric history came to light as the result of the court's own routine canvass. Neither the crimes of which the defendant stood accused nor his conduct during the trial or the canvass indicated inappropriate affect or irrational behavior. His counsel had never requested a competency hearing, nor had he filed a notice of defense putting the defendant's mental state into issue. See General Statutes § 54-56d, 53a-13; Practice Book § 758, 759. On this record, the defendant did not present such substantial evidence about possible lack of competence as to require the court sua sponte to undertake a specific evidentiary inquiry into his ability to understand the proceedings against him or to assist in his own defense. As in Myers v. Manson, supra, the record of the canvass undertaken by the court supports its implicit finding that the defendant was competent to plead guilty. The defendant responded appropriately to the court's questions testing his understanding of the plea agreement, the factual basis for the pleas, the meaning of the Alford plea, the constitutional rights which he was waiving, and the adequacy of the advice of counsel which he had received. Significantly, the defendant himself interrupted the canvass to receive clarification from his counsel about the effect that his guilty plea would have on alleged constitutional defects in the underlying criminal proceedings against him. When the defendant, toward the end of the canvass, exhibited a brief emotional upset, the court immediately took notice and afforded him an opportunity to calm himself. Once the defendant had regained his composure, the court took pains to make sure that the defendant had been attentive to the questions previously put to him and had no further questions to ask. Only thereafter did the court resume its own inquiry, reiterating its earlier questions concerning the defendant's satisfaction with the advice he had received from his attorney. The canvass, on its face, is entirely consistent with an implicit finding of competency at the time the pleas of guilty were accepted by the court. II The defendant's remaining claims of error challenge not the original plea canvass but the trial court's refusal to permit the defendant to withdraw his guilty pleas before sentencing. The defendant acknowledges that he did not have an absolute right to withdraw his pleas of guilty; see Practice Book § 720; but claims that the court nonetheless erred in this case because: (1) it refused to permit the defendant to obtain substitute counsel for the withdrawal hearing; (2) it did not recuse itself so that the withdrawal motions could be heard before a different judge of the Superior Court; and (3) it failed to hold an evidentiary hearing about the defendant's mental capacity at the time of the pleas. We disagree with the defendant's claims. In the trial court, the defendant's timely motions to withdraw his guilty pleas relied upon his allegation that the pleas had been involuntary. See Practice Book § 721 (2). To prove that the pleas had been involuntary, he alleged in his pro se motions that his pleas resulted from judicial and prosecutorial coercion and bias, from impairment of his judgment due to the influence of "a psychosis drug" at the time of the plea, and from ineffective assistance of counsel. As a consequence of the filing of these motions on January 6, 9, and 11, 1982, defense counsel sought permission on January 15, 1982, to withdraw as attorney for the defendant. The record discloses no effort by the defendant to enlist the services of new counsel. On January 22,1982, the date for sentencing, when the motions for withdrawal of the guilty pleas were heard, defense counsel renewed his request to withdraw. The court denied the request, finding that the defendant's motions contained only conclusory allegations that did not constitute "good cause" as required by Practice Book § 632. The court, however, permitted the defendant to file a supplementary pro se appearance, and indicated that the defendant could either be represented by privately retained counsel, if one could appear for the defendant after a brief recess, or could proceed pro se. Although the defendant expressed his preference for a private consultation, and although more than two weeks had elapsed since he had filed his withdrawal motions, he acknowledged that he did not then have a specific attorney available. The defendant then asked to consult with a special public defender who was representing him on another case which was to be nolled as part of the plea bargain. When the court noted that the special public defender had not filed an appearance in the case scheduled for sentencing, the defendant agreed to consult with his original defense counsel. Thereafter the trial court proceeded to hold a hearing on the motions for withdrawal of the guilty pleas, permitting the defendant either to have his original counsel address the court or to present his argument pro se. The defendant elected to go forward pro se. In support of the motions, the defendant reiterated that he had been unfairly pressured into plea bargaining against his better judgment, that he had been "coerced psychologically and manipulated in the courtroom," that he had been ineffectively represented by his counsel, and that he had been and continued to be "under . . . psychosis medication." After a contrary argument on behalf of the state, and brief rebuttal by the defendant, the court denied the defendant's motions. Having earlier observed that defense counsel had diligently and competently represented the defendant throughout the presentencing proceedings, the court ruled that the defendant had failed to establish any of the grounds for withdrawal of an accepted guilty plea set out in Practice Book § 721. The defendant on this appeal does not directly contest the trial court's conclusion that he had failed to show good cause for the disqualification of his counsel. Any claim of ineffective assistance of counsel has been put to rest in habeas corpus proceedings that were concluded while this appeal was pending. Watson v. Manson, Superior Court, judicial district of Hartford-New Britain, Docket No. 269105 (1982). His argument appears to be that unsupported allegations of ineffective assistance and conflict of interest, regardless of their merits, automatically require the court to furnish the disgruntled client an unlimited opportunity to obtain alternate counsel. The defendant cites no Connecticut authority for this proposition, and we know of none. It is the province of the trial court to determine whether there is a factual basis for disqualification of counsel. In such a determination, the trial court is entitled to consider whether the defendant's effort to displace existing counsel has substantive merit and is being pursued in good faith. See State v. Dukes, 157 Conn. 498, 506, 255 A.2d 614 (1969). In the absence of a factual record showing an abuse of discretion, the trial court's failure to permit the withdrawal of counsel is not reversible error. See El Idrissi v. El Idrissi, 173 Conn. 295, 302-303, 377 A.2d 330 (1977). Furthermore, this court has only recently held that the inability to be represented by specific counsel, in the absence of demonstrated lack of effective representation, does not per se require a trial court to permit a continuance. State v. Beckenbach, 198 Conn. 43, 50, 501 A.2d 752 (1985); see State v. Stanley, 197 Conn. 309, 497 A.2d 46 (1985). The decision to grant or deny a continuance lies within the sound discretion of the trial court and will be upset on appeal only upon a showing of clear abuse of that discretion. State v. Beckenbach, supra, 47; State v. Stanley, supra, 311-12. On the present record, the defendant has not established that the trial court's decision to deny his request for a continuance constituted an abuse of its discretion. For similar reasons, we find no error in the trial court's failure to recuse itself from hearing the defendant's motions to withdraw his guilty pleas. The only possibly relevant fact before the court was that the defendant had alleged, in an entirely conclusory fashion, that he had been coerced into pleading guilty because of the collusion of the court with counsel for the state and for the defense. In the absence of a showing, on the record, that the trial court had been an active participant in negotiating the plea bargain, the trial court was entitled to reject such a conclusory allegation as warranting no further consideration. See State v. Lopez, 197 Conn. 337, 348-50, 497 A.2d 390 (1985); State v. Gradzik, 193 Conn. 35, 44-48, 475 A.2d 269 (1984); Hartford Federal Savings & Loan Assn. v. Tucker, 192 Conn. 1, 8, 469 A.2d 778 (1984). Indeed, the issue of disqualification was only raised by defense counsel, apparently as an afterthought, after the trial court had already ruled adversely on the motions for withdrawal of the guilty pleas. The defendant's final and more serious claim of error is that the trial court should not have denied his motions for withdrawal of his guilty pleas without then holding an evidentiary hearing into his mental competence at the time of the acceptance of his guilty pleas. This claim must be appraised in the context in which the issue was raised in the trial court. Although the defendant made a claim, both in his written motions and in his arguments to the court at the withdrawal hearing, that he had been under the influence of "psychosis medication," pursuit of that claim was not, in the trial court, the primary focus of his attack on his guilty pleas. The principal claim which he then addressed was that, because of ineffective assistance and advice from his counsel, he had been improperly persuaded to plead guilty. He repeatedly stated his desire to establish his innocence of the crimes with which he had been charged. Only once did he briefly advert to the claim that "[a]t the time plea was made and canvass was taken, your Honor, as you do know, as the record indicates . I was and still am under medication, psychosis medication. And, at this time I am under medication." Notably, despite his allegation that he was continuing to take "psychosis medication," he did not then claim, and does not claim now, that he was incompetent to participate in any proceedings other than those which occurred when his guilty pleas were accepted. In the light of this record, we are unpersuaded by the defendant's assertion that the trial court erred in failing to hold an evidentiary hearing on the issue of the defendant's mental state at the time of the guilty pleas. Procedurally, we note that the defendant did not himself request an evidentiary hearing at any time, and his counsel made no such request until after the court had ruled adversely on the defendant's motions to withdraw his guilty pleas, when the court had already announced its readiness to proceed with sentencing. Substantively, the defendant does not satisfy the test laid down in State v. Torres, supra, 185-86, where we held that "[i]n considering whether to hold an evidentiary hearing on a motion to withdraw a guilty plea the court may disregard any allegations of fact, whether contained in the motion or made in an offer of proof, which are either conclusory, vague or oblique. For the purpose of determining whether to hold an evidentiary hearing, the court should ordinarily assume any specific allegations of fact to be true. If such allegations furnish a basis for withdrawal of the plea under § 721, and are not conclusively refuted by the record of the plea pro ceedings, and other information contained in the court file, then an evidentiary hearing is required." See State v. Lasher, 190 Conn. 259, 266, 460 A.2d 970 (1983). In this case, the defendant's only allegations of fact at the time of the plea canvass had been that he had recently been taking prescription medicine, namely Elavil and Mellaril, and that he had been under psychiatric treatment for eight months. These allegations were in no way further substantiated in the motions for withdrawal of the pleas or in the hearing held on those motions. In his motions for withdrawal of his guilty pleas, the defendant merely reiterated the name of the medications allegedly prescribed for him, but again failed to offer any specifics whatsoever about the nature or purpose of the medication or about the particular mental disease for which it had been prescribed, or the identity of the prescribing physician. This meager showing was insufficient to impose on the trial court an independent duty to search the pharmaceutical literature to discover the allegedly "psychotie" condition for which such medication is normally prescribed or to determine what effect the taking of such medication would have on competence to plead guilty. Compare State v. Smith, 185 Conn. 63, 86-87, 441 A.2d 84 (1981). Similarly, it was reasonable for the trial court to have assigned little or no significance, for evidentiary purposes, to the defendant's vague and conclusory allegation of psychiatric treatment for an unnamed psychotic condition of undisclosed etiology. In sum, we agree with the trial court that the defendant failed to sustain his burden of coming forward with sufficiently specific unrefuted factual allegations to require an evidentiary inquiry into his alleged incompetence at the time of the acceptance of his guilty pleas. There is no error. In this opinion Healey, Dannehy and Callahan, Js., concurred. "[General Statutes] See. 53a-95. unlawful restraint in the first degree: class d felony, (a) A person is guilty of unlawful restraint in the first degree when he restrains another person under circumstances which expose the latter to a substantial risk of physical injury." "[General Statutes] Sec. 53a-70. 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 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." An Alford plea allows a defendant in a criminal case to consent to punishment as if he were guilty without his express acknowledgment of his guilt. "[Practice Book] Sec. 721. —grounds "The grounds for allowing the defendant to withdraw his plea of guilty after acceptance are as follows: "(1) The plea was accepted without substantial compliance with Sec. 711; "(2) The plea was involuntary, or it was entered without knowledge of the nature of the charge or without knowledge that the sentence actually imposed could be imposed; "(3) The sentence exceeds that specified in a plea agreement which had been previously accepted, or in a plea agreement on which the court had deferred its decision to accept or reject the agreement at the time the plea of guilty was entered; "(4) The plea resulted from the denial of effective assistance of counsel; "(5) There was no factual basis for the plea; or "(6) The plea either was not entered by a person authorized to act for a corporate defendant or was not subsequently ratified by a corporate defendant." "[Practice Book] Sec. 632. —withdrawal "A motion for withdrawal of appearance shall be served on the prosecuting authority and other attorneys of record, and filed with the clerk in the same manner as entering an appearance. No such motion for withdrawal shall be granted by the judicial authority, except for good cause shown." The court granted the defense counsel's motion to withdraw one month later. At the sentencing proceedings which immediately followed the denial of the defendant's motions, the court sentenced the defendant in accordance with the previously noted plea agreement. In each of the related files charging the defendant with possession of marijuana, failure to appear, and bribery, the court noted the state had terminated further prosecution by the entry of a nolle prosequi. On appeal, the defendant does not challenge the validity of the sentences he received. In his pro se motion to withdraw his pleas, the defendant misstated the names of the drugs in question. He claimed in his motion that he had been under the influence of "Elivil" and "Benedrly" when he pleaded guilty. During the plea canvass, he had identified the medication as "Elevil" and "Mellaril."

Shea, J. This appeal arises out of a Superior Court action reversing a decision of the Freedom of Information Commission (FOIC) which held that an executive session held by the zoning board of appeals of the town of North Haven (ZBA) was improper under General Statutes § l-18a (e). On May 13, 1982, the ZBA, prior to a public session, voted unanimously to enter executive session with its attorney to obtain legal advice relating to a pending use variance request to permit the construction of a condominium complex. Following the executive session, the ZBA returned to public session and approved the variance request. On June 4, 1982, Louise Kosciuszek, who had opposed the variance, filed a notice of appeal with the FOIC, pursuant to General Statutes § l-21i (b), claim ing that the ZBA violated the law by going into executive session with its attorney. Following a hearing on September 23, 1982, the FOIC issued its decision on November 23, 1982. It found that the executive session was improper under General Statutes § l-18a (e) (5) and that the discussion conducted therein was not protected from disclosure by either the common law attorney-client privilege or General Statutes § 1-19 (b) (10), "because it [did] not involve confidential communications." It declined to reverse the decision of the ZBA, but ordered that the ZBA "henceforth comply with the requirements of [General Statutes] § 1-21 and § l-18a (e) (5)." The ZBA appealed this decision to the Superior Court which, in reversing the FOIC, concluded that the ZBA was an aggrieved party within the meaning of General Statutes § 1-2 li (d) and that the conversations between the ZBA and its counsel in executive session were confidential communications protected from disclosure under the attorney-client privilege. The trial court also concluded that the time limits for FOIC action set forth in General Statutes § l-21i (b), which the FOIC had failed to meet, were mandatory rather than directory. From this judgment, the FOIC has appealed, claiming that the court erred: (1) in concluding that the oral communications between the ZBA and its attorney were privileged so as to justify an executive session; (2) in holding that the FOIC has no statutory authority to issue orders that command future compliance with the law; and (3) in declaring the applicable time limits to be mandatory. Because we have concluded that the time requirements are indeed mandatory, we do not reach the other issues. I Before addressing the dispositive issue in this appeal, we must first decide whether this court has jurisdiction to entertain the appeal. As we have noted, the FOIC did not reverse the decision of the ZBA. Instead, the FOIC ordered that the ZBA "henceforth comply" with the applicable statutes. General Statutes § l-21i establishes a right of appeal for any party aggrieved by a decision of the FOIC under the Freedom of Information Act (the act). Therefore, a showing of aggrievement is necessary to establish the Superior Court's jurisdiction over the appeal of the ZBA. Kulmacz v. Kulmacz, 111 Conn. 410, 412, 418 A.2d 76 (1979). The trial court concluded that the ZBA was aggrieved by the FOIC finding that the executive session was improper and by the "threat of criminal sanctions" implicit in the order. We agree. " 'The fundamental test for determining aggrievement encompasses a well-settled twofold determination: first, "the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the decision." . . . (Citations omitted.) Local 1303 & Local 1378 v. FOIC, 191 Conn. 173, 176, 463 A.2d 613 (1983).' " Cannavo Enterprises, Inc. v. Burns, 194 Conn. 43, 47, 478 A.2d 601 (1984); Walls v. Planning & Zoning Commission, 176 Conn. 475, 477-78, 408 A.2d 252 (1979). There can be no question that the interest of the ZBA in obtaining confidential legal advice from its counsel satisfies the personal and legal interest in the subject matter requirement. Nor can it successfully be maintained that its interest has not been "injuriously affected." The FOIC concluded that the executive session was improper under the act because any attorney-client communications were not confidential, and it ordered the ZBA henceforth to comply with the requirements of the law. General Statutes § 1-2 lk (b) provides that the failure to comply with an order of the FOIC constitutes a class B misdemeanor. Further, if the order had not been vacated by the Superior Court, it would undoubtedly have had a chilling effect on the ZBA the next time it contemplated calling an executive session in order to secure legal advice. The ZBA was aggrieved by the action of the FOIC because the order not only required the ZBA to conform with the requirements of the law, but, considered in tandem with the decision that an executive session to obtain legal advice was improper, also prohibited such executive sessions in the future. Although the FOIC order did not explicitly subject the ZBA to a penalty or overturn its decision, the ZBA was aggrieved. II The FOIC concedes, as it must, that it did not comply with the requirements of General Statutes § l-21i (b) that it "shall, within twenty days after receipt of the notice of appeal, hear such appeal . . . and shall decide the appeal within thirty days after such hearing . . . ." (Emphasis added.) The hearing was not held until September 23, 1982, more than three and one-half months after the filing of the appeal on June 4, 1982. The FOIC decision was not issued until November 17,1982, nearly two months after the hearing. In attempting to nullify these admitted violations of the statute, the FOIC argues that the time limits are not mandatory, but merely directory, so that its failure to comply does not invalidate its action. We disagree. " 'For the reason that individuals or the public should not be made to suffer for the dereliction of public officers, provisions regulating the duties of public officers and specifying the time for their performance are in that regard generally directory.' 2A Sutherland, Statutory Construction (4th Ed. Sands) § 57.19. Unless there is reason to believe that the legislature intended that the duty not be performed at all except within the time prescribed or that the time restriction should be considered a limitation upon the power of the tardy officer, failure to act within the time specified should not invalidate the action taken. Id. 'It is of course difficult to lay down a general rule to determine in all cases when the provisions of a statute are merely directory and when mandatory or imperative, but, of all the rules mentioned, the test most satisfactory and conclusive is, whether the prescribed mode of action is of the essence of the thing to be accomplished, or in other words, whether it relates to matter material or immaterial—to matters of convenience or of substance.' Gallup v. Smith, 59 Conn. 354, 358, 22 A. 334 (1890)." Tramontano v. Dilieto, 192 Conn. 426, 432, 472 A.2d 768 (1984); see Royce v. Freedom of Information Commission, 177 Conn. 584, 587, 418 A.2d 939 (1979); State v. Tedesco, 175 Conn. 279, 284-85, 397 A.2d 1352 (1978); Akin v. Norwalk, 163 Conn. 68, 74, 301 A.2d 258 (1972); Donohue v. Zoning Board of Appeals, 155 Conn. 550, 554, 235 A.2d 643 (1967). Under this analysis, the FOIC argues that the time periods prescribed in § l-21i (b) are directory because they are "clearly designed for the convenience of persons seeking redress before the FOIC and to expedite such matters." We disagree with this contention and also with the analysis of many unreported Superior Court decisions cited by the FOIC that have held that the time requirements are merely directory. These cases have concluded that to dismiss a complaint due to the failure of the FOIC to comply with the time requirements would operate to penalize the complainant and frustrate the essential purpose of the act, which is to facilitate public access to government activities. We agree with the interpretation of the court below that the act reflects a legislative purpose to balance the public's right to access with the government's need for confidentiality. Wilson v. Freedom of Infor motion Commission, 181 Conn. 324, 328, 435 A.2d 353 (1980). The time requirements were not designed as merely a convenience to complainants under the act. The speedy disposition of complaints is important both to the complainant and to the efficient functioning of the governmental agency involved. Because the time requirements embodied in General Statutes l-21i (b) advance this purpose, they go to the essence of the act and are, therefore, mandatory. The statute expressly provides that the commission "shall" hold a hearing within twenty days and "shall" decide the appeal within thirty days thereafter. This language, considered in conjunction with the use of the word "may" in other sentences of the same statutory section, supports the conclusion that the legislature acted with complete awareness of their different meanings. Jones v. Civil Service Commission, 175 Conn. 504, 509, 400 A.2d 721 (1978). The legislative history similarly buttresses the analysis that the time requirements were intended to be mandatory. If the FOIC finds that it is handicapped by these mandatory time requirements, its appropriate remedy is to request the legislature either to lengthen the applicable time periods or to provide for an extension procedure. The FOIC cannot disregard the time limits in the act by viewing them as merely directory. We are persuaded that the legislature intended that the failure of the FOIC to comply with the time limits for the hearing and adjudication of a complaint would nullify its subsequent action. Although the use of the word "shall" does not invariably create a mandatory duty, because statutes must be construed as a whole to ascertain the legislative intention; Tramontano v. Dilieto, supra, 433-34; we conclude that the legislature intended the time requirements for FOIC action to be mandatory. There is no error. In this opinion the other judges concurred. General Statutes § l-18a (e) provides: "(e) 'Executive sessions' means a meeting of a public agency at which the public is excluded for one or more of the following purposes: (1) Discussion concerning the appointment, employment, performance, evaluation, health or dismissal of a public officer or employee, provided that such individual may require that discussion be held at an open meeting; (2) strategy and negotiations with respect to pending claims and litigation to which the public agency or a member thereof, because of his conduct as a member of such agency, is a party until such litigation or claim has been finally adjudicated or otherwise settled; (3) matters concerning security strategy or the deployment of security personnel, or devices affecting public security; (4) discussion of the selection of a site or the lease, sale or purchase of real estate by a political subdivision of the state when publicity regarding such site, lease, sale, purchase or construction would cause a likelihood of increased price until such time as all of the property has been acquired or all proceedings or transactions concerning same have been terminated or abandoned; and (5) discussion of any matter which would result in the disclosure of public records or the information contained therein described in subsection (b) of section 1-19." General Statutes § l-21i (b) provides: "(b) Any person denied the right to inspect or copy records under section 1-19 or wrongfully denied the right to attend any meeting of a public agency or denied any other right conferred by sections 1-15, l-18a, 1-19 to l-19b, inclusive, and 1-21 to l-21k, inclusive, may appeal therefrom to the freedom of information commission, by filing a notice of appeal with said commission. A notice of appeal shall be filed within thirty days after such denial, except in the case of an unno ticed or secret meeting, in which case the appeal shall be filed within thirty days after the person filing the appeal receives notice in fact that such meeting was held. For purposes of this subsection, such notice of appeal shall be deemed to be filed on the date it is received by said commission or on the date it is postmarked, if received more than thirty days after the denial from which such appeal is taken. Upon receipt of such notice, the commission shall serve upon all parties, by certified or registered mail, a copy of such notice together with any other notice or order of such commission. Said commission shall, within twenty days after receipt of the notice of appeal, hear such appeal after due notice to the parties and shall decide the appeal within thirty days after such hearing, by confirming the action of the agency or ordering the agency to comply forthwith with such relief as the commission, in its sound discretion, believes appropriate to rectify the denial of any right conferred by said sections." General Statutes § 1-19 (b) (10) provides: "(b) Nothing in sections 1-15, l-18a, 1-19 to l-19b, inclusive, and 1-21 to l-21k, inclusive, shall be construed to require disclosure of . . . (10) records, tax returns, reports and statements exempted by federal law or state statutes or communications privileged by the attorney-client relationship . . . ." In a separate action instituted by the complainant, the decision of the ZBA granting the use variance was reversed by the Superior Court, Celotto, J., on June 20,1983. The complainant did not appear in the appeal to the Superior Court in the case before us and was ultimately defaulted. Our inquiry is focused on the Superior Court's jurisdiction because General Statutes § l-21i (d) grants the FOIC standing to appeal any decision "overturning or modifying" its decision. This is not an instance where Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S. Ct. 1148, 71 L. Ed. 2d 265 (1982), requires us to interpret the time requirements as directory. In Logan, the complainant was prevented from asserting a claim of unlawful termination with the employment commission because the commission had failed to comply with a 120 day convening requirement. The United States Supreme Court held that the employee's right to use the adjudicatory procedures of the fair employment act was a property right protected by the due process clause that could not be abrogated by the commission's failure promptly to hear the complaint. The complainant here was not deprived of her due process rights. She did not assert a vital liberty or property interest, she merely sought to reverse the decision of the ZBA. Representative Martin B. Burke, who sponsored the bill, commented on the floor of the house: "The appeal is a speedy process. The Freedom of Information Commission must hear it within 20 days of the filing of the appeal and they must decide it within 15 days after the hearing. And I would submit that this administrative commission would be a lot quicker than if there were an appeal to a court." 18 H.R. Proc., Pt. 8, 1975 Sess., p. 3914.

Peters, C. J. The principal issue on this appeal is whether the trial court denied the defendant his constitutional right to the assistance of counsel by failing to appoint new counsel for him for eleven weeks after the withdrawal of the defendant's previous attorney. The defendant, Hyde A. Harman, was convicted, after a jury trial, of attempted murder in violation of General Statutes § 53a-49 and 53a-54a. He appeals from this judgment. The jury could reasonably have found the following facts concerning the underlying crime. The defendant and his wife separated in June, 1979. On October 28, 1979, the defendant drove to his wife's house, after having called her to say that he was going away and wanted to give her their dog. As he pulled into the driveway, his wife left the house and approached the car. Emerging from the car with a rifle in hand, the defendant told his wife that he was going to kill her, and then shot her in the stomach. As she turned to run away, he shot her three more times in the back. After she fell, he shot himself in the stomach. The defense, at trial, centered on a claim of mental disease or defect, a defense that the jury rejected. On appeal, the defendant's chief claims of error are that the trial court deprived him of a fair trial in: (1) allowing him to remain unrepresented by counsel for eleven weeks; (2) erroneously instructing the jury on the insanity defense; and (3) improperly admitting the testimony of a psychiatrist. We find no error. I The defendant first argues that the original trial court, Hendel, J., unconstitutionally left him unrepre sented for eleven weeks. On September 17,1980, the defendant's attorney, special public defender Chester Fairlie, successfully moved to withdraw from the case. The trial court did not appoint new counsel to represent the defendant until December 8,1980. The defendant claims that the trial court, by failing to replace Fairlie in a timely manner, violated his right to counsel guaranteed by the sixth amendment to the federal constitution and by article first, § 8, of the Connecticut constitution. In light of the unusual circumstances present in this case, we disagree. The record reveals an undisputed history of stormy relationships between the defendant and the attorneys appointed to represent him in this case. After the defendant's arrest, the court named assistant public defender Richard Singer to serve as defense counsel. The defendant soon began to complain that he did not want Singer and, on January 22, 1980, the trial court replaced Singer with public defender Edward Lavallee. By May, 1980, the defendant had ceased cooperating with Lavallee and had written a number of letters to the court demanding new counsel. On May 19, 1980, Lavallee withdrew and the court appointed a special public defender, Fairlie, to represent the defendant. The defendant repeatedly expressed dissatisfaction with Fairlie and refused to cooperate with him, prompting Fairlie twice to move to withdraw. The court denied both motions. To force the trial court to appoint new counsel, the defendant brought suit in federal court against Fairlie, as well as against Lavallee and Singer. On September 17,1980, having received notice of the federal suit, the trial court allowed Fairlie to withdraw. Immediately thereafter, the trial court began its attempt to appoint new counsel. The defendant refused to waive his right to counsel, but warned the court that he would strongly object to the appointment of a public defender and threatened to cause further problems if the attorney he received did not satisfy him. The trial court told the defendant that it would not appoint counsel whom the defendant found objectionable and ordered that a public defender from another county be located. On September 24, the defendant returned to court and reiterated his objection to the appointment of a public defender. In light of the defendant's stance, the court did not appoint counsel. The defendant next appeared before the court on October 14. During that session, the state recommended an attorney to represent the defendant. The defendant objected. The court then offered to permit the defendant to interview another attorney. It gave the defendant the option of either accepting the attorney without objection after the interview or proceeding pro se. On October 21, after having met with the attorney, the defendant informed the court that he would accept him but that he would also object. The court declined to appoint the attorney. Rather than compel the defendant to represent himself, however, the court transferred the case to Hartford where it hoped that the defendant would obtain counsel satisfactory to him. Due to the heavy caseload in Hartford, the defendant's case was returned to the original trial court. During proceedings held on November 25, 1980, attorney Leo Flaherty offered to represent the defendant if the court transferred the case to Tolland. The defendant agreed to accept Flaherty without objection and the court transferred the case to Tolland. On December 3,1980, the court in Tolland, Spada, J., formally appointed Flaherty, who then served as the defendant's counsel for the remainder of the trial. It is against this factual background that we must decide whether the trial court violated the defendant's constitutional rights by failing to appoint new counsel for him for eleven weeks. Trial courts have an unquestioned obligation, under both the state and the federal constitutions, to provide indigent defendants with legal representation. Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963); Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158 (1932); see State v. Gethers, 193 Conn. 526, 533, 480 A.2d 435 (1984). If appointed counsel withdraws from the case for good cause, the trial court must furnish a new attorney for the defendant. McKee v. Harris, 649 F.2d 927, 931 (2d Cir. 1981); United States v. Calabro, 467 F.2d 973, 986 (2d Cir. 1972); State v. Beaulieu, 164 Conn. 620, 628-29, 325 A.2d 263 (1973). The emergence of a conflict of interest between the defendant and his attorney establishes good cause for withdrawal of counsel. McKee v. Harris, supra; United States v. Calabro, supra. When a trial court is called upon to provide substitute counsel, it must do so expeditiously. The defendant claims that the trial court's eleven week delay in appointing new counsel was an unconstitutional denial of his right to the assistance of counsel. The defendant does not challenge the trial court's apparent finding that, by suing Fairlie, he had himself created the conflict of interest that entitled him to a new attorney. He maintains, however, that the length of this delay, during an allegedly critical stage of the prosecution, necessarily gave rise to an irrebuttable presumption that he had been denied a fair trial. See United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984). Even if we were to agree with the defendant that, in the ordinary case, an eleven week delay in the appointment of substitute counsel is constitutionally impermissible, this is not the ordinary case. When the defendant's obstreperous behavior has materially contributed to the delay, we look to the totality of the cir cumstances to determine the propriety of the trial court's action. Cf. Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 353, reh. denied, 398 U.S. 915, 90 S. Ct. 1684, 26 L. Ed. 2d 80 (1970); United States v. Gipson, 693 F.2d 109 (10th Cir. 1982), cert. denied, 459 U.S. 1216, 103 S. Ct. 1218, 75 L. Ed. 2d 455 (1983). In this case, the defendant's conduct justified the trial court's delay in naming a new attorney. The trial court could have immediately assigned a lawyer to whom the defendant objected and then insisted that the defendant either accept the appointed counsel or proceed pro se. See McKee v. Harris, supra, 931; United States v. Calabro, supra; State v. Gathers, 197 Conn. 369, 380, 497 A.2d 408 (1985); State v. Beaulieu, supra, 629-31; State v. Hudson, 154 Conn. 631, 637, 228 A.2d 132 (1967); State v. Nash, 149 Conn. 655, 183 A.2d 275, cert. denied, 371 U.S. 868, 83 S. Ct. 130, 9 L. Ed. 2d 104 (1962). Instead, the trial court, aware of the defendant's previous problems with his attorneys, sought to accommodate the defendant's objections and thereby prevent future disruptions of the trial that might prejudice the defendant. Indeed, the trial court took considerable pains to provide the defendant with a satisfactory attorney, transferring the case twice and repeatedly asking the defendant, to no avail, to name an attorney that he desired. On this record, we are unpersuaded that the defendant was harmed in any way by the eleven week hiatus in his representation by counsel. The trial court did not compel the defendant to represent himself. Court proceedings during this period focused almost exclusively upon the search for new counsel. When the defendant insisted on immediate judicial disposition of his pro se motions for discovery, the court initially decided the motions but then refused to allow the defendant to argue pro se, ruling that the defendant had not waived his right to counsel and was merely awaiting the appointment of a new attorney. In effect, the court virtually suspended 'the case until satisfactory counsel could be found. The defendant claims that, because he had no lawyer for eleven weeks, he was unable to depose a witness who was unavailable during trial. The defendant concedes, however, that this witness was available both before and after the gap in representation. The defendant also contends that he was unable to retain an investigator or a psychiatrist during that time. His new attorney, however, had ample time to investigate, obtain a psychiatrist, and conduct further discovery after the court had appointed him. This claim of error challenges the propriety of the trial court's response to extraordinary circumstances that the defendant himself created. "While courts must be assiduous in their defense of an accused's right to counsel, that right may not be 'manipulated [by the accused] so as to obstruct the orderly procedure in the courts or to interfere with the fair administration of justice.' United States v. Bentvena, 319 F.2d 916, 936 (2d Cir.), cert. denied sub nom. Ormento v. United States, 375 U.S. 940, 84 S. Ct. 345, 11 L. Ed. 2d 271 (1963). . . United States v. Calabro, supra. In this case, the trial court attempted to prevent such manipulation while ensuring that the defendant received assistance of counsel that both protected his rights and met with his satisfaction. We find no error in its actions. II The defendant next contends that the trial court committed reversible error by inaccurately instructing the jury on the statutory defense of insanity. Although the court set out the elements of the defense contained in General Statutes (Rev. to 1981) § 53a-13, the defendant argues that the language used by the court in explaining the defense injected into the charge common law definitions that are irrelevant to the insanity defense in Connecticut. Because the defendant failed to object to these instructions at trial, we need not review this claim on appeal. This court reaches the merits on issues not raised at trial only where "a new constitutional right not readily forseeable has arisen between the time of trial and appeal" or where "the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial." State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). The defendant in this case claims that the trial court's submission of a technically incorrect instruction on the insanity defense violated a fundamental constitutional right and denied him a fair trial. We disagree. .Although a defendant who raises the insanity defense is constitutionally entitled to an instruction that explains the defense to the jury, there is no fundamental constitutional right to a perfect charge. In a criminal case, the state must prove, and the trial court must instruct the jury on, each essential element of the crime charged. See Patterson v. New York, 432 U.S. 197, 204, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977); Mullaney v. Wilbur, 421 U.S. 684, 698, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975); In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); see also Screws v. United States, 325 U.S. 91, 107, 65 S. Ct. 1031, 89 L. Ed. 1495 (1945); State v. Griffin, 175 Conn. 155, 162-63, 397 A.2d 89 (1978). A trial court's failure to instruct on any of these elements warrants reversal regardless of whether the defendant objected at trial. See State v. Kurvin, 186 Conn. 555, 561, 442 A.2d 1327 (1982). Under General Statutes § 53a-13 as it read at the time of this trial, the state was required to prove the defendant's sanity, as an essential element of the state's case, whenever a defendant claimed insanity. State v. Ontra, 178 Conn. 480, 423 A.2d 134 (1979). Consequently, the trial court was constitutionally obligated to give the jury meaningful guidance on the insanity defense. The court's constitutional obligation did not extend to the giving of a charge that was beyond criticism in every particular. State v. Kurvin, supra. Accordingly, in the absence of plain error, State v. Evans does not mandate review of a claim that a reasonably informative instruction on insanity was in some particulars inaccurate, when the defendant has failed to take a proper objection at trial. State v. Hinckley, 198 Conn. 77, 84, 502 A.2d 388 (1985); see Practice Book § 3063 and cf. State v. Smith, 194 Conn. 213, 219-20, 479 A.2d 814 (1984). In this case, the defendant concedes that the court submitted instructions on the insanity defense that were grounded in the requirements of the appropriate statute. Indeed, at trial the defendant's attorney praised the court's insanity instruction as the best he had ever heard. On appeal, the defendant complains only that the trial court used inaccurate language in explaining several elements of the defense. Neither this claim nor the record supports a conclusion that Evans review is warranted. Ill The defendant's third claim of error challenges the admissibility of testimony given by a court-appointed psychiatrist who examined the defendant before trial. The defendant argues that this testimony should have been suppressed because it revealed information that the psychiatrist had obtained during his examination of the defendant. According to the defendant, the court ordered the defendant to undergo the examination before he had placed his mental status in issue and thereby violated the privilege against self-incrimination protected by the fifth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. See State v. Fair, 197 Conn. 106, 110-11, 496 A.2d 461 (1985); State v. Lovelace, 191 Conn. 545, 550-51, 469 A.2d 391 (1983), cert. denied, 465 U.S. 1107, 104 S. Ct. 1613, 80 L. Ed. 2d 142 (1984). We find that the trial court properly admitted the testimony. We need not consider the constitutionality of the court-ordered psychiatric examination in this case because the defendant stipulated to the admissibility of the psychiatrist's testimony. At trial, the state, out of concern that the psychiatrist's testimony might be suppressed, asked the court to order a new examination of the defendant and moved that the court forbid the defendant to introduce the testimony of his own psychiatrist because the defendant had failed to notify the state in timely fashion of his intent to rely on the insanity defense. To induce the state to withdraw these motions, the defendant agreed to stipulate to the admis sibility of the testimony of the state's psychiatrist. Having expressly consented, for tactical reasons, to allow the state's psychiatrist to reveal information he received during the examination, the defendant waived any constitutional claims he may have had with respect to this testimony and may not now challenge its admissibility on appeal. See Neher v. United States, 265 F. Sup. 210, 215 (D. Minn. 1967); People v. Fisk, 50 Cal. App. 3d 364, 370-71, 123 Cal. Rptr. 414 (1975). IV The defendant in his supplemental brief raises certain other claims of error that require little discussion in light of the record before us. These claims relate to the evidence admitted at the trial and to the sufficiency of the evidence to establish the defendant's guilt. The defendant argues that the trial court erroneously permitted the jury to consider evidence of prior misconduct on his part. The defendant complains of evidence presented upon defense cross-examination of the defendant's wife and of hypothetical questions posed by the state in its cross-examination of the defendant's psychiatric expert. As to the former, the defendant cannot be heard to complain about testimony that he himself elicited. As to the latter, the earlier testimony having been properly admitted, the defendant cannot show prejudice. The defendant's challenge to the testimony of the state's firearms and chemical experts cannot be sustained because of the absence of any objection at trial to the evidence now being questioned. In the absence of plain error or error falling within the constitutional ambit of State v. Evans, supra, these evidentiary challenges are unreviewable. See Practice Book § 3063. The defendant's final argument concerns the sufficiency of the evidence to sustain his conviction. He attacks both the credibility of the witnesses against him and the good faith of the prosecutor. Our review of the record establishes that he can prevail on neither of these claims. See State v. Sinclair, 197 Conn. 574, 576, 500 A.2d 539 (1985); State v. Braxton, 196 Conn. 685, 691, 495 A.2d 273 (1985); State v. Cimino, 194 Conn. 210, 211, 478 A.2d 1005 (1984). There is no error. In this opinion the other judges concurred. "[General Statutes] See. 53a-49. criminal attempt: sufficiency of conduct; renunciation as defense, (a) A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime he: (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. "(b) Conduct shall not be held to constitute a substantial step under subdivision (2) of subsection (a) unless it is strongly corroborative of the actor's criminal purpose. Without negating the sufficiency of other conduct, the following, if strongly corroborative of the actor's criminal purpose, shall not be held insufficient as a matter of law: (1) Lying in wait, searching for or following the contemplated victim of the crime; (2) enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission; (3) reconnoitering the place contemplated for the commission of the crime; (4) unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed; (5) possession of materials to be employed in the commission of the crime, which are specially designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances; (6) possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, where such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances; (7) soliciting an innocent agent to engage in conduct constituting an element of the crime. "(c) When the actor's conduct would otherwise constitute an attempt under subsection (a), it shall be a defense that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose." "[General Statutes] Sec. 53a-54a. murder defined, affirmative DEFENSES. EVIDENCE OF MENTAL CONDITION. CLASSIFICATION, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime. "(b) Evidence that the defendant suffered from a mental disease, mental defect or other mental abnormality is admissible, in a prosecution under subsection (a), on the question of whether the defendant acted with intent to cause the death of another person. "(c) Murder is punishable as a class A felony in accordance with subdivision (2) of section 53a-35a unless it is a capital felony." Although the defendant never raised this claim at trial, we consider it here because the question of whether the trial court denied the defendant the right to the assistance of counsel involves a fundamental constitutional right. State v. Vitale, 190 Conn. 219, 232, 460 A.2d 961 (1983); State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). On appeal the defendant expresses no dissatisfaction with the performance of his new attorney. General Statutes (Rev. to 1981) § 53a-13 provides as follows: "Sec. 53a-13. insanity AS defense. In any prosecution for an offense, it shall be a defense that the defendant, at the time of the proscribed conduct, as a result of mental disease or defect lacked substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law. It shall not be a defense under this section if such mental disease or defect was proximately caused by the voluntary ingestion, inhalation or injection of intoxicating liquor or any drug or substance, or any combination thereof, unless such drug was prescribed for the defendant by a licensed practitioner, as defined in section 20-184a, and was used in accordance with the directions of such prescription. As used in this section, the terms mental disease or defect do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct." The defendant alleges that the court's instructions improperly included elements of the Durham test; Durham v. United States, 214 F.2d 862 (D.C. Cir. 1954); and the irresistible impulse test for insanity. General Statutes § 53a-13 employs neither test in defining insanity. The trial court summarized the agreement between the state and the defendant: "The Court: Are you comfortable then with the attorney's representation as to Dr. Miller and—the second doctor is Langhammer? "Mr. Flaherty, Jr.: He is the first doctor. He is our doctor. "The Court: Yes. But the Dr. Langhammer and Dr. Miller, that both doctors, notwithstanding whatever interpretation may be applied to Section 760, 759 of the Practice Book, may be fully examined in chief in cross-examination for the purposes of assisting the trier of facts and sharing the doctor's opinion or his conclusions as to the mental defect at the time of the alleged act. Are we in agreement on that? "Mr. Satti: The State agrees. "Mr. Flaherty, Jr.: Yes, your Honor, defense agrees. "The Court: That if any statements were made by the accused to the doctor, and the doctor has relied upon some of those statements and/or admissions in arriving at his opinion as to whether a deficiency—mental deficiency existed or not, that that testimony will be allowed to be admitted without objection, subject only to the Court curing that admission by a proper warning to the jury, proper caution to the jury? "Mr. Satti: That is the agreement of the State, your Honor. "Mr. Flaherty, Jr.: Yes. "The Court: Okay. Having said that, it means, Mr. Satti, that you will withdraw your motion? "Mr. Satti: Withdrawn, your Honor, the objection to the testimony of expert witnesses dated January 12, 1981. Then I will also withdraw the motion for a psychiatric examination, dated January 12, 1981. "The Court: Okay. You are withdrawing your objection then to the psychiatric expert that Attorney Flaherty will be introducing on behalf of Mr. Harman. You will also withdraw your request for the 760 Examination; is that correct? "Mr. Satti: That is correct, your Honor." The state correctly notes that the defendant has briefed this issue improperly by failing to cite the specific evidence he finds objectionable. See Practice Book § 3060F (c); see also State v. Jones, 193 Conn. 70, 74 n.2, 475 A.2d 1087 (1984). We have decided, in the particular circumstances of this case, to consider this claim to the extent that we have done so only because the defendant has raised it pro se. We also note that the trial court instructed the jury that it was to consider the evidence of prior misconduct only in determining the defendant's sanity and not in deciding whether the defendant shot his wife.

Satter, J. The jury found the defendant guilty of robbery in the first degree in violation of General Statutes § 53a-134 (a) (1), and larceny in the second degree in violation of General Statutes § 53a-123 (a) (2). He claims on appeal that the trial court erred: (1) in refusing to take measures to minimize the potentially prejudicial effect of police photographs of the defendant; and (2) in allowing into evidence the defendant's out-of- court statement to the police. These claims raise issues of the admissibility of police mug shots and waiver by conduct of Miranda rights. We find no error on either claim. The jury could have reasonably found the following facts: During the late evening of February 22, 1982, Dennis Chan and Francis Liu were at a cafe in East Haven. Also present were a person who called himself Al and his unidentified companion. When Chan and Liu left the cafe, Al and his companion followed them out. Once outside, Al and his companion attacked Chan punching him about his head and body. Liu went to help, but was blocked by Al's companion. After the attackers fled by car, Chan discovered that his wallet, containing his credit cards and $1200 in cash, was missing. A few hours after the incident, Albert Martone was stopped by police on a motor vehicle charge. His furtive manner led to a search of his pockets and the finding of Chan's credit cards. I The defendant's first claim of error arises out of the admission at his trial of police mug shots relating to his identification by the victims of the crime, Liu and Chan. On-March 6, 1982, at the East Haven police department, Liu identified the defendant as a participant in the crime from approximately one hundred color photographs and from a board of eight black and white police photographs. The next day in the hospital, where he was being treated for injuries sustained in the robbery, Chan identified the defendant as one of his assailants from a different board of eight black and white police photographs. At the trial, both Liu and Chan made in-court identifications of the defendant. The two boards, each containing eight black and white photos, from which Liu and Chan originally identified the defendant, displayed double mug shots of front and side views of each person depicted. The boards were offered into evidence with a white slip of paper stapled at one end only, covering the chests of the subjects and concealing police department placards shown in the photographs. The placards in the two pictures of the defendant stated "East Haven Police, I D Center CT 00044, 25105," with one placard displaying the date of "12/24/80" and the other, the date of "5/15/81." The defendant's attorney raised no objection to the photo boards and they were admitted into evidence. Each was then passed among the jury. Later in the trial, when the prosecutor offered a color photo of the defendant, defense counsel for the first time objected to the previously admitted photo boards, claiming that the loose paper coverings were inadequate to prevent the jury from seeing the police placards and thus from drawing the inference that the defendant had been arrested twice before. He suggested that the other end of the paper covering be stapled. The trial court denied his request, but offered to give a cautionary instruction to the jury concerning the photos, which defense counsel declined. This court has several times cautioned against indiscriminate use of police mug shots. State v. Albin, 178 Conn. 549, 553, 424 A.2d 259 (1979); State v. Peary, 176 Conn. 170, 176, 405 A.2d 626 (1978), cert. denied, 441 U.S. 966, 99 S. Ct. 2417, 60 L. Ed. 2d 1072 (1979). The reason is that such photographs indicate prior arrests, not otherwise admissible, which present an accused person in an unfavorable light before the jury. Such photographs, however, enable the prosecution to establish at trial that a witness has made an earlier identification of an accused. We have held that they are admissible "if they are relevant and material and if their probative value outweighs their prejudicial tendency." State v. Albin, supra, 551. In this case the identification of the defendant as a participant in the crime with Albert Martone was contested. The state properly sought to bolster what might be considered a pro forma identification of the defendant from the witness stand by establishing that Chan and Liu had picked him out from the photo boards shortly after the crime. State v. Woods, 171 Conn. 610, 613, 370 A.2d 1080 (1976). Thus the probative value of the exhibits was substantial. We have found no error in the admissibility of mug shots, where the photographs displayed no police markings of any kind; State v. Crowe, 174 Conn. 129, 131-32, 384 A.2d 340 (1977); State v. Robertson, 172 Conn. 9, 10, 372 A.2d 128 (1976); or where the police department markings had been cut from the front of the pictures; State v. Albin, supra, 553; or where markings were concealed in some manner. State v. Peary, supra; State v. Woods, supra, 612; see also annot., 30 A.L.R.3d 908, on the admissibility and prejudicial effect of mug shots. The defendant claims that inadequate steps were taken to mitigate the prejudicial effect of the police markings because the slips of paper covering the placards on the defendant's pictures were stapled at only one end, so they flapped loosely, revealing beneath them two prior dates on which police had photographed him. The defendant argued that the jury could infer that he had been arrested on those prior dates. The short answer to this claim is that the defendant failed to make that objection at the time of the admission of the photo boards into evidence. He, thus, has lost that ground of appeal. See Practice Book § 288, 3063; State v. Hoffler, 174 Conn. 452, 461, 389 A.2d 1257 (1978). Nevertheless, in light of our expressed approval of concealment of police markings, the trial court should have required that the paper covering the police photos be stapled at both ends. The judge should have been alert to his "duty . . . to prevent situations from arising during the trial which would prejudice the accused in the minds of the jury." State v. Yates, 174 Conn. 16, 19, 381 A.2d 536 (1977). Our function, however, is not only to identify trial court mistakes but to weigh them. It is difficult for us to assess any harm resulting from the failure of the trial court to follow defense counsel's suggestion because the exhibits had already been passed among the jurors, who might already have looked beneath the covering. Moreover, the judge offered to instruct the jury in such a way as to minimize the prejudicial impact, but defense counsel declined the offer. Thus, we conclude that the failure of the trial court to adopt the defendant's suggestion was harmless error. II We next consider the defendant's claim that the trial court erred in allowing into evidence his out-of-court statement given in response to police questioning. While in custody, the defendant was orally advised of his Miranda rights and received a written statement of those rights, which he acknowledged by signing. When asked by police if he knew Albert Martone, the defendant responded affirmatively and then indicated that he would not answer any other questions. Interrogation ceased. At the trial, over the defendant's objection, the state was allowed to admit into evidence the defendant's response to that one question. The state has the burden of proving that the defendant "knowingly and intelligently waived his privilege against self-incrimination." Miranda v. Arizona, 384 U.S. 436, 475, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); State v. Aversa, 197 Conn. 685, 501 A.2d 370 (1985); State v. Ferrell, 191 Conn. 37, 44, 463 A.2d 573 (1983). The burden may be sustained by a preponderance of the evidence and does not require proof beyond a reasonable doubt. State v. Wilson, 183 Conn. 280, 286-87, 439 A.2d 330 (1981). After warnings have been given, mere silence of the accused is not enough to establish waiver. Miranda v. Arizona, supra. But proof of waiver is not dependent on a specific expression of relinquishment of rights. North Carolina v. Butler, 441 U.S. 369, 373, 99 S. Ct. 1755, 60 L. Ed. 2d 286 (1979). It can be "inferred from the actions and words of the person interrogated"; id.; and from his "course of conduct." State v. Wilson, supra, 285. In State v. Harris, 188 Conn. 574, 580, 452 A.2d 634 (1982), cert. denied, 460 U.S. 1089, 103 S. Ct. 1785, 76 L. Ed. 2d 354 (1983), where the defendant expressly agreed to make an oral statement, we held that "the defendant's expressed willingness to speak constituted an explicit affirmative act evidencing waiver, which the court could reasonably find persuasive . . . .''In State v. Pellegrino, 194 Conn. 279, 480 A.2d 537 (1984), the defendant gave a short answer to a detective's question and then stated that he wanted to speak to a lawyer. We found no error in the trial court's admission of that answer into evidence because "the very fact that the defendant invoked his sixth amendment right to counsel after he had spoken briefly with [the detective] indicated that the defendant was aware of his rights and voluntarily waived them up until that point." Id., 289. Here, after answering the first police question, the defendant asserted his right to remain silent. That conduct revealed that he clearly understood his rights. The trial court could also reasonably infer from the defendant's affirmative act of invoking his fifth amendment right immediately after the first question that he know ingly and intelligently waived his right as to the question. That affirmative act distinguishes this case from State v. Wilson, supra, 286, where there was an absence of any conduct indicating waiver on the part of the defendant. There is no error. In this opinion the other judges concurred. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

Dannehy, J. A jury found the defendant guilty of felony murder in violation of General Statutes § 53a-54c. His sole claim on appeal is that he was denied his constitutional right to a speedy trial. We find no error. The following facts are relevant to the defendant's claim. On September 8,1979, Ralph Blue was shot to death at the front door of his Hartford apartment. The defendant and two accomplices, Matthew McCoy and Thomas Browdy, were soon implicated in Blue's murder. The defendant was arrested and charged with felony murder on September 11, 1979, and on January 17,1980, he was indicted by a grand jury. Unable to post bond, the defendant remained incarcerated from the time of his arrest until October 28, 1980, a period in excess of thirteen months, at which time the felony murder charge against him was terminated by the entry of a nolle prosequi. Thereafter, the state opened the nolle and the defendant was rearrested for felony murder on July 24, 1981. He was again indicted on that charge on October 16, 1981. Trial began on December 2, 1981, and the defendant was found guilty as charged on December 10, 1981. The defendant claims that the delay of almost twenty-seven months between his arrest on September 11, 1979, and the commencement of his trial on December 2, 1981, violated his right to a speedy trial under the sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. "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 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, 190 Conn. 541, 544-45, 461 A.2d 981 (1983). None of these 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, 591-92. The first issue which we address is the length of the delay. The defendant claims that the entire twenty-seven month period must be considered pretrial delay for purposes of assessing his speedy trial claim. The state, on the other hand, contends that, under United States v. MacDonald, 456 U.S. 1, 102 S. Ct. 1497, 71 L. Ed. 2d 696 (1982), and State v. Lloyd, supra, the relevant period of pretrial delay for sixth amendment purposes does not include the nine month period between the state's entry of the nolle, on October 28,1980, and the defendant's rearrest on July 24,1981. The speedy trial clause "is activated only when a criminal prose cution has begun and extends only to those persons who have been "accused" in the course of that prosecution." United States v. Marion, 404 U.S. 307, 313, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971). In United States v. MacDonald, supra, 7, the court further held that the "Speedy Trial Clause has no application after the Government, acting in good faith, formally drops charges. Any undue delay after charges are dismissed, like any delay before charges are filed, must be scrutinized under the Due Process Clause, not the Speedy Trial Clause." Whether the nine month period between the nolle and the defendant's rearrest should be considered pretrial delay thus depends upon two factors. The first is whether the state was "acting in good faith" when it nolled the charges against the defendant. The second concerns the effect of a nolle prosequi under our law and, specifically, whether it may be considered the functional equivalent of a dismissal for purposes of speedy trial analysis. The defendant claims for the first time on appeal that the state nolled the felony murder charge against him in bad faith. This claim must be considered in context. According to the state's theory of the case, the defendant, McCoy and Browdy had gone to Blue's apartment to commit a robbery. McCoy and Browdy were alleged to have acted as "lookouts" while the defendant knocked on Blue's door. When Blue answered the door the defendant produced a handgun and demanded money. During a struggle for the handgun Blue was shot. Consequently, the state attempted to arrange a bargain with McCoy in exchange for his testimony against the defendant. By October of 1980, the state's efforts to procure McCoy's testimony were unsuccessful. Browdy at the time was a fugitive from justice. McCoy was tried first and, in late October, 1980, a jury acquitted him of felony murder but found him guilty of robbery in the first degree. Thereafter, juror selection commenced in preparation for the defendant's trial. After eleven jurors had been selected, the trial court, on October 28,1980, conducted a hearing on the defendant's motion to suppress the handgun allegedly used in Blue's murder. McCoy was called to the witness stand and, despite warnings from the court that he might be held in contempt, persisted in his refusal to testify against the defendant. He also stated that he would not testify if called as a witness at the defendant's trial. After McCoy had concluded his testimony, the state nolled the charge of felony murder against the defendant. The state asserted as its reason for the nolle that without the testimony of McCoy or Browdy the remaining evidence against the defendant was insufficient to connect him with the incident leading to Blue's death. The assistant state's attorney further stated for the record that "if I felt there would be no way in the future to prosecute Mr. Gaston I would certainly go along with or not object to a dismissal but . . . the hope of the State quite frankly is that we will locate Browdy, bring him back in this jurisdiction and with his cooperation bring [the defendant] back to trial." A review of the transcript of the October 28,1980 proceedings reveals that the defendant moved for acquittal on the basis of unrelated double jeopardy grounds but did not otherwise oppose entry of the nolle. On this record we are unable to conclude that the nolle was entered in bad faith. The defendant claims on appeal that bad faith may be inferred from the fact that the state was aware, on October 28, 1980, that McCoy would continue to assert his fifth amendment privilege. We disagree. Irrespective of McCoy's assertion of that privilege prior to his trial, in October, 1980, the state may reasonably have believed that its bargaining position with respect to McCoy would be enhanced after his conviction for robbery in the first degree. McCoy, when he reasserted his refusal to testify during the October 28,1980 proceeding, had yet to be sentenced on his robbery conviction. The trial court informed McCoy that his decision to testify against the defendant would be a consideration at the time of sentencing. The state, while aware that McCoy did not desire to testify against the defendant, obviously hoped that he would change his mind in light of his forthcoming sentencing. In fact, McCoy eventually did reverse himself and testify against the defendant at his trial. We find no support in the record for the defendant's contention that the nolle was entered in bad faith. We must also determine whether the nolle entered in this case was the functional equivalent of a dismissal for purposes of speedy trial analysis. In United States v. MacDonald, supra, the government reindicted the defendant on murder charges more than two years after those same charges had been dismissed. The Supreme Court held that because the speedy trial guarantee extends only to those persons who stand accused of committing a crime, that guarantee did not apply after charges had formally been dismissed and before prosecution was reinitiated. Id. We recognize that the prosecution in MacDonald was terminated by dismissal while the present case involves the entry of a nolle prosequi. Nevertheless, we do not believe that the holding in MacDonald may be distinguished on that basis. The dismissal in MacDonald, like the nolle in the present case, did not bar later reinstitution of the same charges against the defendant. Hing Wan Wong v. Liquor Control Commission, 160 Conn. 1, 5, 273 A.2d 709 (1970), cert. denied, 401 U.S. 938, 91 S. Ct. 931, 28 L. Ed. 2d 218 (1971). As with the dismissal in MacDonald, the effect of the nolle was to "end pending proceedings without an acquittal and without placing the defendant in jeopardy." State v. Lloyd, supra, 201. Under our rules "[t]he entry of a nolle prosequi terminates the prosecution and the defendant shall be released from custody. If subsequently the prosecuting authority decides to proceed against the defendant, a new prosecution must be initiated." Practice Book § 727. Under our statutes "the entry of a nolle has no effect on the running of the statute of limitations; furthermore, reprosecution more than thirteen months after the entry of a nolle becomes difficult because after that time 'all police and court records and records of the state's or prosecuting attorney . . . pertaining to such charge shall be erased.' General Statutes § 54-142a (c)." State v. Lloyd, supra, 210-11; cf. United States v. MacDonald, supra, 8 n.8; Klopfer v. North Carolina, 386 U.S. 213, 87 S. Ct. 988, 18 L. Ed. 2d 1 (1967). The United States Supreme Court has identified the policies served by the speedy trial clause. "The speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges." United States v. MacDonald, supra, 8. It is significant that under our practice a nolle implicates none of these concerns. Upon entry of a nolle, the individual concerned is no longer a defendant in a criminal case. He stands accused of no crime and his release is unconditional. After entry of the nolle the defendant in the present case, like MacDonald, "was not under arrest, not in custody, and not subject to any 'criminal prosecution.' " Id., 10. We conclude that the nine month period between the nolle and the defendant's rearrest is not properly chargeable as pretrial delay for purposes of speedy trial analysis. As our discussion indicates, we consider eighteen months to be the operative period of delay. The state concedes that an eighteen month delay, while not presumptively unreasonable, is sufficiently long to trigger inquiry into the remaining factors set forth in Barker v. Wingo, supra. We proceed to a consideration of those factors. The record does not reflect any findings by the trial court as to the cause of the delay in this case. We find this deficiency in the record quite understandable in view of the defendant's somewhat indifferent assertion of his right to a speedy trial during the proceedings below. The defendant through counsel filed a motion for a speedy trial on March 25, 1980, less than seven months after his arrest on September 11, 1979. Although the record does not clearly indicate, it appears that that motion was denied summarily by the court on the day that it was filed. The defendant has not appealed from the denial of his March 25,1980 motion, and, given the time frame which it addressed, we do not believe that an appeal from the denial of that motion would likely have been successful. Approximately six months later, on September 29, 1980, the defendant filed a pro se motion for a speedy trial. The record does not indicate whether this motion was ever granted, denied or even seen by the court. In any event, as previously discussed, the defendant's case was nolled less than one month later, on October 28, 1980. The defendant on appeal claims that "the reason for the delay was the prosecutor's effort to gain an advantage over the defendant in the trial of the case." The basis of this claim is the alleged bad faith of the prosecutor in entering the nolle on October 28, 1980. We have already considered and resolved this claim adversely to the defendant. We previously noted that the defendant did not assert bad faith during the proceedings when the nolle was entered and that, while he did move for acquittal at that time on the basis of unrelated double jeopardy grounds, the state's entry of the nolle was not otherwise opposed. If the defendant sought further elucidation of the state's reasons for entering the nolle, he could have moved for a dismissal under then Public Acts 1980, No. 80-313, now codified in General Statutes § 54-56bJ We have held that even after the entry of a nolle the court retains limited jurisdiction over the case to hear such matters as the defendant's motion to dismiss based on the alleged denial of the right to a speedy trial. State v. Lloyd, supra. Although Lloyd was decided after the October 28, 1980 proceedings, its holding assumed a fortiori that such a motion was properly raised before the entry of a nolle. See General Statutes § 54-56. Moreover, the defendant does not address in his brief any delay occurring after the October 28, 1980 nolle. Indeed, after the filing of his September 29, 1980 motion, the defendant did not again advert to his right to a speedy trial until August 17, 1984, when he filed an amended preliminary statement of issues on appeal with this court. We assume that some of the delay occurring before entry of the nolle was due to the state's efforts to recruit McCoy as a witness. We note that the state may, within reasonable limits, postpone the trial of an accused while it attempts to gain the tes timony of his accomplice. Barker v. Wingo, supra, 534; State v. Davis, 192 Conn. 739, 743-45, 474 A.2d 776 (1984). After the nolle, prosecution was not reinitiated until the defendant's rearrest on July 24,1981, and his reindictment on October 16,1981. Thereafter, pretrial proceedings commenced on November 18, 1981, and the trial concluded with a guilty verdict on December 10, 1981. In view of the inadequate record below and the defendant's failure on appeal "to quantify separately any unjustifiable delay," it is "extremely difficult for us to conclude on review that impermissible reasons contributed substantially to the delay challenged by the defendant." State v. Morrill, 197 Conn. 507, 525, 498 A.2d 76 (1985). Upon consideration of the reasons for delay and the defendant's assertion of his right to a speedy trial, we do not find these factors to weigh heavily in the defendant's favor. We next consider the fourth Barker factor of prejudice. As we stated in State v. Lloyd, supra, 209, "the linchpin of the speedy trial claim is a showing of prejudice . . . ." "While it is possible that the other factors together might make a showing of prejudice unnecessary in a 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." State v. Morrill, supra, 526. The defendant claims that the "primary prejudice" suffered in this case "was that he spent thirteen months in pre-trial incarceration which have been totally lost to his life." As we have already noted, the defendant, unable to post bond, was incarcerated from his arrest on September 11, 1979, until his case was nolled on October 28,1980. We recognize that the avoidance of unnecessarily protracted pretrial incarceration is at the core of the speedy trial guarantee, but the fact of incarceration alone is not enough to invoke the sanctions of the speedy trial clause. The defendant does not con tend that pretrial delay in any way inhibited his defense on the merits of the felony murder charge against him. See Barker v. Wingo, supra, 532. A consideration of all the factors in this case leads us to conclude that neither the defendant's sixth amendment nor state constitutional right to a speedy trial was violated. We finally address the defendant's alternative claim that the pretrial delay in this case denied him due process of law. To establish a due process violation because of pretrial delay, "the defendant must show both that actual substantial prejudice resulted from the delay and that the reasons for the delay were wholly unjustifiable, as where the state seeks to gain a tactical advantage over the defendant." State v. Morrill, supra, 522. The defendant concedes that his due process claim is "substantially similar" to his speedy trial claim. In light of our disposition of issues already considered, we do not believe that the defendant has shown that the delay in his case was wholly unjustifiable or that it resulted in substantial prejudice. Therefore, we conclude that the pretrial delay did not deny the defendant due process of law. There is no error. In this opinion the other judges concurred. "[General Statutes] Sec. 54-56b. eight to dismissal or trial on nolle. A nolle prosequi may not be entered as to any count in a complaint or information if the accused objects to the nolle prosequi and demands either a trial or dismissal, except with respect to prosecutions in which a nolle prosequi is entered upon a representation to the court by the prosecuting official that a material witness has died, disappeared or become disabled or that material evidence has disappeared or has been destroyed and that a further investigation is therefore necessary." "[General Statutes] Sec. 54-56. dismissal OF INFORMATION BY court. All courts having jurisdiction of criminal cases shall at all times have jurisdiction and control over informations and criminal cases pending therein and may, at any time, upon motion by the defendant, dismiss any information and order such defendant discharged if, in the opinion of the court, there is not sufficient evidence or cause to justify the bringing or continuing of such information or the placing of the person accused therein on trial."

Per Curiam. The plaintiff husband instituted an action to dissolve his marriage to the defendant wife on October 5, 1977, and judgment of dissolution was rendered by the court, Wall, J., on February 10, 1978. The judgment expressly provided, inter alia, that the plaintiff was to pay to the defendant one-half of the net equity of the jointly owned family residence within seven years from the date of the judgment or the sale of the property. Title to the property would then vest in the plaintiff. The equity was to be determined at the time of payment either by the sales price or by a mutually agreed upon real estate appraiser and the net equity was to be computed by deducting from the sales price or appraised value the balance remaining on a first and second mortgage. The portion of the judgment concerning the disposition of the family residence incorporated provisions of a separation agreement and an addendum to the separation agreement entered into by the parties on January 4, 1978. Approximately one year and four months from the date of the judgment of dissolution, on June 18, 1979, the defendant filed a motion to open the judgment. The plaintiff filed an objection to this motion and the court, Wall, J., sustained the plaintiff's objection and denied the defendant's motion on the ground that it lacked jurisdiction to open the judgment of dissolution rendered more than four months before the motion to open was filed. In her motion to open the judgment, the defendant expressed dissatisfaction only with that portion of the judgment which involved the disposition of the family residence. The defendant represented in her motion that at the time she and the plaintiff entered into the separation agreement, she was suffering from severe emotional distress which rendered her incapable of understanding the words of the agreement. The motion further alleged that the plaintiff made representations to her which were materially different from the ostensible meaning of the words of the agreement and that in her mental state she thought that the terms of the agreement were consonant with the plaintiff's representations. At oral argument to this court, it became clear that the defendant believed because of the plaintiff's representations that her one-half interest in the jointly owned family residence was not to be bought out by the plaintiff prior to seven years from the date of the judgment of dissolution. The catalyst for the defendant's motion to open apparently was the plaintiff's expressed desire to buy out the defendant's interest in the house after an agreed upon appraiser had evaluated the house. On appeal, the defendant claims that the plaintiff's misrepresentations constituted fraud and that the trial court erred in failing to hold a hearing on the merits of her motion to open the judgment. It is a well-established general rule that even a judgment rendered by the court upon the consent of the parties, which is in the nature of a contract to which, the court has given its approval, can subsequently be opened without the assent of the parties if it is shown that the stipulation, and hence the judgment, was obtained by fraud, in the actual absence of consent, or by mutual mistake. See Sparaco v. Tenney, 175 Conn. 436, 437-38, 399 A.2d 1261; Bryan v. Reynolds, 143 Conn. 456, 460-61, 123 A.2d 192; see also Arkansas State Highway Commission v. Clemmons, 244 Ark. 1124, 428 S.W.2d 280; Ratermann v. Ratermann, 485 S.W.2d 80 (Mo.); In re Johnson, 277 N.C. 688, 178 S.E.2d 470; Westfall v. Wilson, 255 Or. 428, 467, P.2d 966; 3 Freeman, Judgments (5th Ed.) § 1352; 46 Am. Jur. 2d, Judgments § 688; annot., 139 A.L.R. 421. The power of the court to vacate a judgment for fraud is regarded as inherent and independent of statutory provisions authorizing the opening of judgments; hence judgments obtained by fraud may be attacked at any time. Sullivan v. Sullivan, 256 Cal. App. 2d 301, 64 Cal. Rptr. 82; Whiteway Finance Co. v. Parker, 226 So. 2d 903 (Miss.); Van DeRYT v. Van DeRYT, 6 Ohio St. 2d 31, 215 N.E.2d 698; 46 Am. Jur. 2d, Judgments § 709. Thus, in the particular circumstances of this case and given its context; see Monroe v. Monroe, 177 Conn. 173, 182-83, 413 A.2d 819, appeal dismissed, cert. denied, 444 U.S. 801, 100 S. Ct. 20, 62 L. Ed. 2d 14 (1979); the court below should have determined whether the defendant's representations in her motion would, if proven, be a sufficient basis for opening the judgment of dissolution. There is error and the case is remanded for proceedings not inconsistent with this opinion. Although the judgment did not expressly so provide, apparently the separation agreement of the parties, which was incorporated by reference in the judgment, did so provide. For its ruling, the trial court relied primarily on Practice Book, 1978, § 326 which provides in pertinent part: "Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which it was rendered or passed." General Statutes J 52-212a is identically worded.

Per Curiam. This motion to reargue concerns the appealability of an order of the trial court relating to the taking of nontestimonial evidence under Practice Book, 1978, § 775, 776 and 778. In view of the frequency with which issues concerning appealability arise, we take this opportunity to clarify the prevailing law in this regard. The facts pertinent to our inquiry are as follows. The defendant James W. Grotton was, on October 21, 1979, arrested and charged by information with the crime of possession of cocaine with intent to sell, in violation of General Statutes § 19-480a (a). No one can be convicted under this section if he or she was, "at the time of such action, a drug-dependent person." Id. On November 14, 1979, the state moved for an order directing the defendant to submit to a drug dependency examination that involved the taking of specimens of blood, saliva and urine. The trial court, Goldberg, J., granted the state's motion and, pursuant to Practice Book, 1978, § 775, 776, 778 (6) and 778 (9), directed the defendant to submit to a medical examination involving the requested procedures on January 9, 1980 at Norwich State Hospital. Prom the entry of that order, the defendant appealed. The state moved in this court to dismiss the appeal as interlocutory and, after oral argument last term, we ordered the defendant's appeal dismissed. Upon the entry of that order, the defendant filed a motion to reargue in this court. An order of the trial court permitting the state to obtain nontestimonial evidence from a criminal defendant is a discovery order and as such invokes the familiar principles enunciated in our cases concerning the jurisdiction of this court to entertain appeals from orders issued upon motions for discovery. The general rule is that orders relating to discovery do not constitute a final judgment and are not appealable both because their initial determination does not so conclude the rights of the appealing party that further proceedings cannot affect those rights; Chrysler Credit Corporation v. Fairfield Chrysler-Plymouth, Inc., 180 Conn. 223, 226, 429 A.2d 478 (1980); State v. Kemp, 124 Conn. 639, 646-47, 1 A.2d 761 (1938); see also State v. Asherman, 180 Conn. 141, 143, 429 A.2d 810 (1980); E. J. Hansen Elevator, Inc. v. Stoll, 167 Conn. 623, 627, 356 A.2d 893 (1975); Guerin v. Norton, 167 Conn. 282, 283, 355 A.2d 255 (1974); Prevedini v. Mobil Oil Corporation, 164 Conn. 287, 291-93, 320 A.2d 797 (1973); and because, as in the present case, their import is fully apprehended only after trial is concluded. In a criminal case, the imposition of sentence is the final judgment of the court. State v. Moore, 158 Conn. 461, 463, 262 A.2d 166 (1969); State v. Smith, 149 Conn. 487, 489, 181 A.2d 446 (1962). This rule of finality is subject to several narrowly defined exceptions where the otherwise interlocutory ruling challenged on appeal cannot, if erroneous, later be remedied by suppression of the evidence or reversal of the conviction after trial. Thus, we have established that jurisdiction may reside in this court to review an order denying an application to be adjudicated a youthful offender; State v. Bell, 179 Conn. 98, 425 A.2d 574 (1979); or an order denying a motion to dismiss on the ground that the state's prosecution places the defendant in double jeopardy. State v. Moeller, 178 Conn. 67, 420 A.2d 1153 (1979). However, the withdrawal of a sample of blood does not ordinarily fall within the narrow confines of these exceptions in which the trial itself is the source of irreparable harm. To the extent that our decision in State v. Acquin, 177 Conn. 352, 416 A.2d 1209 (1979), indicates that an order to obtain nontestimonial evidence may be reviewed on direct appeal, we hereby confine that decision to its facts. A blood test, the most intrusive of the procedures here involved, does not merely constitute an order of discovery; it also constitutes a search and seizure under the federal and state constitutions. As a matter of substantive law, it is now well established that when a blood test is performed by medical personnel in a medical environment according to accepted medical procedures, such a test satisfies the reasonableness requirement of the fourth and fourteenth amendments of the United States constitution. Schmerber v. California, 384 U.S. 757, 766-72, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966); State v. Acquin, supra, 10; see Breithaupt v. Abram, 352 U.S. 432, 77 S. Ct. 408, 1 L. Ed. 2d 448 (1957); and compare United States v. Crowder, 543 F.2d 312, 316 (D.C. Cir. 1976). As a matter of procedure with respect to appealability, review of this order is no different from appellate review of other searches and seizures. In contradistinction to the defendant who seeks youthful offender status; State v. Bell, supra; or the defendant subject to being put twice in jeopardy for the same offense; State v. Moeller, supra; the criminal defendant who has a right to suppress incriminating evidence obtained in violation of the fourth amendment is not entitled to bar the prosecution altogether. United States v. Blue, 384 U.S. 251, 255, 86 S. Ct. 1416, 16 L. Ed. 2d 510 (1966). The exclusionary rule of the fourth amendment requires a two-fold showing before error can be found, a showing that property has been wrongfully seized and that the defendant's conviction has been obtained by the use of evidence which is "the fruit of the poisonous tree." See Ker v. California, 374 U.S. 23, 30, 83 S. Ct. 1623, 10 L. Ed. 2d 726 (1963); Mapp v. Ohio, 367 U.S. 643, 647-49, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961); see also State v. Watson, 165 Conn. 577, 583-84, 345 A.2d 532 (1973). Questions arising under the fourth amendment must therefore await review until there has been a trial and a conviction because there must be a functional link between the consequences of an illegal search and seizure and a later conviction in order to make any putative constitutional error harmful and hence to require reversal. See Mapp v. Ohio, supra; United States ex rel. Orsini v. Reincke, 286 F. Sup. 974, 977-78 (D. Conn. 1968), aff'd, 397 F.2d 977 (2d Cir. 1969), cert. denied, 393 U.S. 1050, 89 S. Ct. 689, 21 L. Ed. 2d 692 (1969). As the United States Supreme Court stated in McNabb v. United States, 318 U.S. 332, 63 S. Ct. 608, 87 L. Ed. 819 (1943), a forerunner of the landmark Mapp decision: " [A] conviction . . . , the foundation of which is evidence obtained in disregard of liberties deemed fundamental by the Constitution, cannot stand." (Emphasis added.) Id., 339-40, quoted in Mapp v. Ohio, supra, 649. That court, interpreting the federal statute governing finality as a condition of appellate review; 28 U.S.C. §1291 (1976 Ed.); has expressly held that "[ojrders granting or denying suppression in the wake of such [suppression] proceedings are truly interlocutory, for the criminal trial is then fairly in train." DiBella v. United States, 369 U.S. 121, 131, 82 S. Ct. 654, 7 L. Ed. 2d 614 (1962); see United States v. MacDonald, 435 U.S. 850, 853-63, 98 S. Ct. 1547, 56 L. Ed. 2d 18 (1978); compare Abney v. United States, 431 U.S. 651, 656-62, 97 S. Ct. 2034, 52 L. Ed. 2d 651 (1977) ; Stack v. Boyle, 342 U.S. 1, 6, 72 S. Ct. 1, 96 L. Ed. 3 (1951); see also 3 LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 11.7 (a) (1978). Guided by these principles, we hold that in this case the propriety of the order requiring nontestimonial evidence cannot be assessed until there has been a conviction and a final judgment involving the nse at trial of the evidence sought to be obtained from the defendant. The present order is interlocutory and not now appealable. The motion to reargue is denied. Practice Book, 1978, § 776, entitled Authority [to Obtain Non-testimonial Evidence from Defendant], 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 See. 775, if the judicial authority finds probable cause to believe that: (1) The evidence sought may be of material aid in determining whether the defendant committed the offense charged; and (2) The evidence sought cannot practicably be obtained from other sources." Practice Book, 1978, § 778 provides in relevant part: "SCOPE. An order under See. 775 may direct the defendant to participate in one or more of the following procedures: . (6) Submitting to the taking of specimens of saliva, breath, hair, and nails . . . (9) Submitting to the taking of specimens of blood and urine, if the taking does not involve an unreasonable intrusion of the body or an unreasonable affront to the dignity of the individual . . . ." The trial court also ordered the defendant to submit to a psychiatric examination under Practice Book, 1978, § 760. That order is not at issue on the present appeal. Article first, § 7 of the constitution of Connecticut provides substantially the same protection as the fourth amendment to the United States constitution and 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."

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

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

Bogdanski, J. In 1968, the legislative bodies of the towns of Prospect and Beacon Palls, pursuant to § 10-39 of the General Statutes, voted to form a temporary regional school study committee to determine the advisability of establishing a regional school district. In September of 1969, the committee issued its report which was subsequently approved by the state board of education. On November 20, 1969, a majority of the voters in each town voted in favor of establishing a regional school district in accordance with the recommended plan. On July 11, 1974, Prospect brought this action against Beacon Palls and the Regional School District No. 16 seeking injunctions ordering Beacon Palls to convey the Laurel Ledge School to the defendant Regional School District No. 16 and ordering the Regional School District No. 16 to pay to the plaintiff the sum of $122,000 plus interest. The Regional School District No. 16 filed a cross complaint against Beacon Palls; the cross complaint was based entirely on the plaintiff's complaint. The case was referred to the Hon. Joseph E. Klau, state referee. On August 23, 1977, the trial referee rendered a judgment for the plaintiff and the defendant Regional School District No. 16 on the complaint and cross complaint. The court ordered the plaintiff and the defendant Beacon Falls to transfer title to their respective schools to the defendant Regional School District No. 16. The court also found the sum of $97,823 to be due to the defendant Regional School District No. 16 from the defendant Beacon Falls with interest from January 1, 1971 at the rate of 6 percent on the outstanding balance to the date of judgment. All sums so paid to the defendant Regional School District No. 16 were to be paid over to the plaintiff. From that judgment the defendant Beacon Falls appealed to this court. Prospect's school system prior to regionalization was composed of three schools, the "Middle School," the "Community School" and the "Algonquin School." Beacon Falls had only one school, the "Laurel Ledge School." Prior to the institution of the present action, Prospect transferred title to the Middle School to the Regional School District No. 16 but retained title to the other two schools; Beacon Falls refused to convey the Laurel Ledge School to the Regional School District No. 16. The certified plan for capitalization of the proposed Regional School District No. 16 provided as follows: "Finance Committee Repoet The existing values of buildings and equipment for the equalization purposes necessary to determine the contributions of each town in a Kindergarten through grade twelve (K-12) region has been approximated from insurance rates. The values of the existing facilities were totaled for each town. TOWN VALUE Beacon Falls $ 860,150 Prospect $ 1,868,820 Total $2,728,970 In order to determine the amount of debit or credit value of the existing school plant each town brings to the region, the percentages of apportionment (which is the distribution of costs based on enrollment) has been applied to the total value of $2,728,970. Equity in school facilities entitles Prospect to a credit from the region. The credit is equalized by a debit to Beacon Falls. Debit-credit apportionment is shown in the following table: APPORTIONMENT OP DEBIT OR TOWN PER CENT TOTAL VALUE CREDIT Beacon Falls 36 $ 982,429 -122,279 Prospect 44 $1,746,541 -122,279"* The issue dispositive of this appeal is whether the regional school study committee's report with respect to capitalization (which is completely set out above) complies with the provisions of § 10-43 (a) of the General Statutes. Section 10-43 (a) provides that the committee's report must contain "a recommendation concerning the capital contribution of each participating town based on appraisals of existing land and facilities owned and used by each town for public elementary and secondary education which the committee recommends be acquired for use by the proposed regional school district." (Emphasis added.) Notwithstanding the approval of the state board of education, the committee's report does not meet the statutory requirement that the capital contribution of each town be based upon the appraised value of the land and facilities which each would contribute to the Regional School District No. 16. Even if we assume that an appropriate determination as to the value of buildings and personal property can be derived from insurance rates, the report fails to set forth which property, if any, was to be conveyed to the Regional School District No. 16, and utterly fails to take into consideration the appraised value of the land intended to be so transferred. Conclusions reached by the court are tested by the finding and will not stand if they are not supported by the facts found. Johnston Jewels, Ltd. v. Leonard, 156 Conn. 75, 79, 239 A.2d 500 (1968). The trial court's finding that there was an appraisal of buildings and equipment approximated from insurance rates does not support its conclusion that the regional school study committee's report met the requirement for an appraisal set forth in § 10-43 (a). There is error, the judgment is set aside and the case is remanded with direction to proceed in a manner not inconsistent with this opinion. In this opinion the other judges concurred. It was stipulated that the minus sign involved a typographical error; the figure should represent a credit to Prospect. General Statutes §10-43 (a) also provides: "The capital contribution of each participating town shall be in the same proportion to the total purchase price of the property transferred as the number of pupils used to compute the grant to such town pursuant to section 10-262 for the school year preceding that in which the plan is approved by the state board of education bears to the total number of such pupils in the participating towns. . .

Speziale, J. The plaintiff appealed to the Superior Court from a determination by the defendant tax commissioner that the payment made by newly elected members of the plaintiff club to obtain membership certificates is subject to the tax on initiation fees under § 12-543 (a) of the General Statutes. The trial court affirmed the decision of the defendant and dismissed the appeal. From the judgment of the Superior Court the plaintiff, after certification was granted, appealed to this court. The case was presented by the parties on a written stipulation of facts, which reveals, inter alia, the following: The plaintiff is a social, athletic, or sporting club or organization organized under the laws of this state. According to the plaintiff's bylaws, each member of the plaintiff club is required to own a membership certificate which represents, in the event of dissolution, a pro rata share in the club. Payments for the certificates are deposited in an account denominated by the plaintiff as the "Equity Fund Account," which is separate from the plaintiff's operating funds and account. The plaintiff receives neither interest income nor any other monetary benefit from this account. All funds accumulated in the "Equity Fund Account" are paid to "resigned or deceased" members. According to article V of the plaintiff's certificate of incorporation, upon the resignation or death of a member, the club acts as "agent" to sell the certificate for him to a newly elected member of the same class. Under its bylaws, the clnb retains possession of all these certificates and has a lien upon any such certificate in order to secure the payment of all dues, assessment charges, and indebtedness. In addition to purchasing a certificate, incoming members are required to pay a nonrefundable "initiation fee," which the plaintiff concedes is taxable. Section 12-543 (a) of the General Statutes provides, in relevant part: "There is hereby imposed a tax equivalent to ten per cent of any amount paid as dues or initiation fees to any social, athletic or sporting club or organization. Such tax shall be imposed upon the club or organization receiving such amounts. Reimbursement for such tax shall be collected by the club or organization from the member. Such reimbursement, termed 'tax,' shall be paid by the member to the club or organization charging the dues or initiation fees. . . ." The term "initiation fees" is defined in § 12-540 (6) of the General Statutes as including "any payment, contribution or loan required as a condition precedent to membership whether or not any such payment, contribution or loan is evidenced by a certificate of interest or indebtedness or share of stock." The plaintiff club claims that the payments for the certificates are not taxable under § 12-543 as initiation fees. The first argument advanced by the plaintiff is that because it was acting only as "agent" for deceased or resigned members of the club, the payments for the certificates are not taxable. The plaintiff seeks to have us read into the statutory language "[s]uch tax shall be imposed upon the club or organization receiving such amounts" the requirement that the club be the "direct object" of payment for the cost of the certificate to be taxable. There is no basis for such a strained interpretation of the statute. The word "receive" is defined as to "take possession or delivery of"; Webster, Third New International Dictionary; and "accept custody of." Black's Law Dictionary (Eev. 5th Ed. 1979). The plaintiff received the payment for the certificate. Neither does it avail the plaintiff to claim that the statute does not "contemplate" payments made to an agent. The fact that the plaintiff refers to itself in its certificate of incorporation as "agent" is not dispositive of whether it is, in fact, an agent. Nor is the legislature necessarily barred from imposing a tax on an agent which is based on property the agent receives or holds on behalf of its principal. 84 C.J.S., Taxation § 102. The plaintiff places much emphasis on the fact that the predecessor of § 12-540 (6); Public Acts, Spec. Sess., June, 1969, No. 1, § 54 (b) subsequently codified at § 12-528 (1969 Sup. to the General Statutes) ; contained after the terms "share of stock" the language "and irrespective of the person or organization to whom paid, contributed or loaned." Because this language was deleted from § 12-540 (6), the plaintiff alleges that the payments for the certificates do not constitute initiation fees, and claims that several federal cases have held payments similar to those here to be taxable as initiation fees primarily because of this phrase. The definition of initiation fees contained in Public Acts, Spec. Sess., June, 1969, No. 1, §54 (b), was derived from and modeled on the former federal excise tax on dues and initiation fees, § 4242 of the Internal Revenue Code of 1954, which was repealed in 1965. See Ox Ridge Hunt Club, Inc. v. Tax Commissioner, 175 Conn. 90, 394 A.2d 194 (1978); Int. Rev. Code of 1954, § 4242 (repealed 1965). In cases involving the federal excise tax, the terms "irrespective of the person or organization to whom paid, contributed or loaned" indisputably were of importance in finding the payment taxable as an initiation fee. See, e.g., Vitter v. United States, 279 F.2d 445 (5th Cir. 1960); Wild Wing Lodge v. Blacklidge, 59 F.2d 421 (7th Cir. 1932); Munn v. Bowers, 47 F.2d 204 (2d Cir. 1931); Knollwood Club v. United States, 48 F.2d 971 (Ct. Cl. 1931). We note that under the prior relevant federal and state statutes, however, the tax on initiation fees was imposed on the person making the payment. Int. Rev. Code of 1954, § 4241 (repealed 1965); Public Acts, Spec. Sess., June, 1969, No. 1, § 53 (b). Thus, the phrase "irrespective of the person or organization to whom paid, contributed or loaned" was determinative of whether payments made to the club or third parties were taxable. Under § 12-543 of the General Statutes, however, the tax is imposed on the club receiving the payment, with a right of reimbursement from the member. The above-quoted phrase would have been a non sequitur had it been included in the definition of initiation fees contained in § 12-540 (6) of the General Statutes. Therefore, the deletion of this phrase cannot have the significance claimed by the plaintiff. The payment in question here would have been taxable under Public Acts, Spec. Sess., June, 1969, No. 1, § 53 (b), the predecessor of § 12-543 of the General Statutes; it is likewise taxable under § 12-543. The plaintiff also claims that the defendant's position that payments for the certificates are taxable initiation fees "fails to recognize" that Aspetuck requires, in addition to the payment for the certificate, the payment of what it terms an "initiation fee" on which it does pay the tax imposed by § 12-543. What the plaintiff ignores, however, is that there obviously can be more than one condition precedent to membership. And, payments made to a club as defined by § 12-543 (a) which constitute a condition precedent to membership are not insulated from taxation under § 12-543 simply because the club takes it upon itself to denominate "initiation fee" the payment of a separate sum. In fact, in a ease cited by the plaintiff itself, Vitter v. United States, supra, payment for a share of stock which was a condition precedent to membership in a club was held to be a taxable initiation fee even though payment of a distinct initiation fee was required for membership. We hold that the payment for the certificate falls squarely within the statutory definition of initiation fees, and thus is taxable under § 12-543 of the General Statutes. The merit, wisdom, or desirability of taxing such payments is not before us. Having discerned the meaning of the legislation, we end our inquiry; the court does not sit as a revisor of statutes. Ziperstein v. Tax Commissioner, 178 Conn. 493, 503, 423 A.2d 129 (1979). The trial court did not err in holding the payments for the membership certificates to be taxable as initiation fees under § 12-543 of the General Statutes. There is no error. In this opinion the other judges concurred. Article V of the plaintiff's certificate of incorporation, provides in relevant part: "Upon the resignation or death of a Founding or Begular Member, the club shall act as agent of such member to sell the certificate for him or his estate to a newly elected member of the same class and the Board of Governors shall maintain a list of such certificates available to incoming members and shall dispose of them in the same order in which received." Section 54 (b) of Public Acts 1969, No. 1 (June Special Session) provides: "[A]s used in sections 53 to 55, inclusive, of this act, the term 'initiation fees' includes any payment, contribution, or loan, required as a condition precedent to membership, whether or not any such payment, contribution, or loan is evidenced by a certificate of interest or indebtedness or share of stock, and irrespective of the person or organization to whom paid, contributed or loaned."

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

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

Parskey, J. The single issue raised by this appeal is whether a public school teacher who inflicts exces sive corporal punishment upon a pupil is immunized from liability. The trial court's resolution of this issue against the teacher generated this appeal. The defendant is a music teacher at the Jared Eliot School in Clinton. The plaintiff, Kenneth Sansone, twelve years of age, was a student in the defendant's class. One day Kenneth and three other boys were misbehaving in class by interposing improvised sounds in a song which the class was supposed to sing in unison. Before this event Kenneth had never been a disciplinary problem in the defendant's class. At the disruption the defendant did not caution Kenneth or speak to him about his conduct but instead grabbed him by the arm and projected him from his chair into a movable chalk board. He then took Kenneth into the corridor where he grabbed the boy's arm and swung him against a wall. Kenneth was neither engaging in any tumultuous behavior nor threatening the defendant or any other person. He was not struggling nor did he offer any physical resistance to the defendant's forceful discipline. As a result of the defendant's conduct Kenneth sustained a displaced fracture of the clavicle. In his complaint the plaintiff charged the defendant, inter alia, with causing personal injuries as a result of excessive punishment. I The defendant claims the immunity of a public officer in the performance of discretionary duties. He asserts that such persons are not subject to liability for common-law negligence and that the plaintiff's complaint is based solely on such negligence. He concedes, as he must, that teachers have been held liable, under a complaint for assault and bat tery, for inflicting excessive punishment on a pupil; Calway v. Williamson, 130 Conn. 575, 579, 36 A.2d 377 (1944); but contends that since the plaintiff chose to bring an action in common-law negligence he either recovers on that ground or else he cannot recover at all. The defendant cites no direct authority for the proposition that, in Connecticut, teachers enjoy the immunity conferred upon public officers. We have stated that " [a] teacher is not an officer in the ordinary sense of the word." Seymour v. Over-River School District, 53 Conn. 502, 509, 3 A. 552 (1886). Rather, teachers are employees of the board of education. General Statutes §10-151 (a) and (c), 10-220 and 10-235. See Wallingford v. Board of Education, 152 Conn. 568, 573, 210 A.2d 446 (1965). Although not entitled to assert the governmental immunity that extends to public officers, teachers are accorded certain legal protection in their administration of discipline. A teacher is a surrogate parent to his pupils. Andreozzi v. Rubano, 145 Conn. 280, 282, 141 A.2d 639 (1958). This relationship imposes upon him a duty to maintain discipline in his classroom. Conley v. Board of Education, 143 Conn. 488, 497, 123 A.2d 747 (1956). In discharging this duty the teacher is authorized to use reasonable means to compel a disobedient pupil to comply with his orders; Andreozzi v. Rubano, supra; Sheehan v. Sturges, 53 Conn. 481, 483, 2 A. 841 (1885); including the use of corporal punishment. In evaluating the necessity and extent of punishment considerable allowance should be made to the teacher to protect him in the exercise of his discretion. Calway v. Williamson, 130 Conn. 575, 579, 36 A.2d 377 (1944). He will, therefore, not be held liable unless the punishment inflicted is clearly excessive. Id., 580. The power to punish, however, does not include punishment which is disproportionate to the offense, unnecessarily degrading or likely to cause serious or permanent harm. Eestatement (Second), Torts § 150, comments d and e. Furthermore, whether a particular punishment exceeds the ambit of the teacher's disciplinary authority ordinarily presents a pure question of fact for the trier. Calway v. Williamson, supra, 580; Sheehan v. Sturges, supra, 482. The complaint as particularized charged the defendant with a negligent assault and battery. We have long adhered to the rule that "an unintentional trespass to the person, or assault and battery, if it be the direct and immediate consequence of a force exerted by the defendant wantonly, or imposed without the exercise by him of due care, would make him liable for resulting injury. Welch v. Durand, 36 Conn. 182, 185." Lentine v. McAvoy, 105 Conn. 528, 530-31, 136 A. 76 (1927); Russo v. Porga, 141 Conn. 706, 708-709, 109 A.2d 585 (1954). This principle has been applied to the case of an unintended injury incident to disciplinary action taken by a teacher. Calway v. Williamson, supra, 582 (Brown, J., dissenting opinion). See also Swainbank v. Coombs, 19 Conn. Sup. 391, 392-93, 115 A.2d 468 (1955). It is also applicable to the facts of the present case. Even if we view the finding as supporting an intentional rather than a negligent injury, the judgment can still be supported. There is nothing in the record before us to suggest that the defendant objected to the evidence of excessive corporal punishment. If the defendant believed that the evidence would support an intentional but not a negligent act, then it was incumbent upon him to object to it insofar as it tended to prove conduct not alleged in the complaint. His failure to do so constituted a waiver of any variance between the pleadings and the proof. Bronson & Townsend Co. v. Battistoni, 167 Conn. 321, 326, 355 A.2d 299 (1974); Buol Machine Co. v. Buckens, 146 Conn. 639, 642, 153 A.2d 826 (1959); Winsor v. Hawkins, 130 Conn. 669, 670, 37 A.2d 222 (1940). II Finally, we consider whether the defendant is immune from liability under the provisions of General Statutes § 4-165. This statute is part of chapter 53 which covers claims against the state. "The manifest legislative intent expressed by chapter 53 is that an employee is immune where and because the state may be sued, and that the state may be sued in instances where a private person would be liable." Spring v. Constantino, 168 Conn. 563, 571, 362 A.2d 871 (1975). Under § 4-141 a "state employee" is defined to include every person employed in any office, position or post in the state government. A school teacher does not come within this definition. Although a town board of education is an agent of the state when carrying out the interests of the state, its members are not state but town officers. Cheney v. Strasburger, 168 Conn. 135, 141, 357 A.2d 905 (1975). Similarly, teachers as employees of a town board of education are also not employed in the state government. There is nothing in the language of chapter 53 or in its legislative history to suggest that the state was to assume financial responsibility for the conduct of teachers and members of local boards of education. Giving chapter 53 the strict construction which any statute in derogation of the principle of sovereignty must be given; Spring v. Constantino, supra, 570; we hold that this chapter in general and § 4-165 in particular do not apply to teachers in local school systems. There is no error. In this opinion the other judges concurred. "[General Statutes] Sec. 4-165 [then in force], immunity of STATE OFFICERS AND EMPLOYEES FROM PERSONAL LIABILITY. No State officer or employee shall be personally liable for damage or injury, not wanton or wilful, caused in the performance of his duties and within the scope of his employment. Any person having a complaint for such damage or injury shall present it as a claim against the state under the provisions of this chapter. . . ."

Bogdanski, J. The plaintiff instituted an action on a note against the defendants Thomas J. Donnelly and Charles Regulbuto. In a second count the plaintiff alleged that while the defendant Thomas J. Donnelly was indebted to the plaintiff, he "caused to be conveyed" to the defendant Raffaela R. Donnelly (hereinafter Raffaela) certain real property located at 1400 Main Street, South Windsor, without consideration and with the intent to avoid his debts. On May 9,1978, a judgment in the amount of $14,168 was entered for the plaintiff against Thomas Donnelly and Charles Regulbuto on the first count. On December 18,1978, the trial court granted Raffaela's motion for summary judgment as to the second count on the ground that Thomas Donnelly "did not own the property and did not transfer it to Raffaela." From the summary judgment rendered, the plaintiff has appealed. On appeal, the plaintiff contends that: (1) the affidavits submitted by the defendant Raffaela in support of the motion for summary judgment do not negate the existence of all issues of material fact; and (2) summary judgment is inappropriate in cases involving a claim of fraudulent conveyance. In its affidavits and other documents, the plaintiff alleged that Thomas was indebted to the plaintiff in the amount of $18,000 at the time he made a gift to his wife of $30,000 which he had recently borrowed from a business associate; that he made this gift to Raffaela for the purpose of buying the 1400 Main Street property and constructing a house thereon; that title was put in Raffaela's name alone because Thomas wanted it that way; that Thomas co-signed a mortgage note for $50,000 on the Main Street property; that he was paying $523 monthly on the mortgage; and that he was making monthly payments of $249.08 for taxes and $66.67 for insurance on the mortgaged property. As already noted, the plaintiff in its complaint alleged that Thomas "caused to be conveyed" the Main Street property to his wife, Raffaela. While Raffaela does claim that the property in question was not conveyed to her by Thomas, the plaintiff maintains that she has not met the issue of whether Thomas caused the property to be conveyed to her. Section 52-552 of the General Statutes provides that "[a] 11 fraudulent conveyances, suits, judgments, executions or contracts, made or contrived with intent to avoid any debt or duty belonging to others, shall, notwithstanding any pretended consideration therefor, be void as against those persons only . to whom such debt or duty belongs." The terms of this statute are broad enough to include every transaction by which creditors may be defrauded; it is not the nature or form of the transaction but the presence of fraud which brings a case within the prohibition of the statute. Within the purview of the Uniform Fraudulent Conveyance Act, moreover, the term conveyance by definition includes every payment of money, assignment, release, transfer, lease, mortgage, or pledge of tangible or intangible property, and also the creation of any lien or encumbrance. We conclude that there is no inherent difference between the act of a debtor conveying his property to another without consideration and that of a debtor causing the title to the property purchased to be placed in the name of another, where the object of such transfer is to hinder, delay, or defraud creditors. When a spouse purchases land or other property under the circumstances as alleged in this case, the burden is on the purchasing spouse to show that the funds were not furnished by the debtor spouse. Only to the extent that the purchase price was provided by the defendant Raffaela is her claim upon the subject property protected against her husband's creditors. See Homeland Building Co. v. Reynolds, 49 Cal. App. 2d 176, 121 P.2d 59 (1942); Richardson v. Pierce, 105 Va. 628, 54 S.E. 480 (1906). In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. "The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact." 6 Moore, Federal Practice (2d Ed.) ¶ 56.15 [3] ; Plouffe v. New York, N.H. & H. R. Co., 160 Conn. 482, 488, 280 A.2d 359 (1971). As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent. Evans Products Co. v. Clinton Building Supply, Inc., 174 Conn. 512, 516, 391 A.2d 157 (1978). Because the supporting affidavits of the defendant Raffaela fail to show that there are no genuine issues of fact, the factual issues alleged and contested in the pleadings remain unresolved. The court, therefore, erred in granting summary judgment. There is error, the judgment is set aside and the case remanded for further proceedings according to law. In this opinion the other judges concurred. The Uniform Fraudulent Conveyance Act (UFCA) was approved in 1918 by the National Conference of Commissioners on Uniform State Laws and has been adopted in twenty-five states. See 7 A Uniform Laws Annot. (Master Ed. 1978). Connecticut has not adopted the UFCA. The UFCA, however, may be said to be a restatement of the Statute of 13 Elizabeth; Dorrington v. Jacobs, 213 Wis. 521, 252 N.W. 307 (1934) ; which statute is declaratory of existing principles of common law with regard to fraudulent conveyances. United States v. Bess, 243 F.2d 675 (3d Cir. 1957), aff'd, 357 U.S. 51, 78 S. Ct. 1054, 2 L. Ed. 2d 1135 (1958). Since Connecticut's statute against fraudulent conveyances has been substantially copied from the Statute of 13 Elizabeth and is to be similarly construed; Benton v. Jones, 8 Conn. 186, 189 (1830); the UFCA and cases decided thereunder are persuasive in determining the reach of § 52-552 of the General Statutes.

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

Peters, J. This is the second appeal by the defendant commissioner of transportation from the judgment of a state referee who, exercising the powers of the Superior Court, in accordance with General Statutes § 13a-76, reassessed the damages resulting from the condemnation of a portion of the property of the plaintiff, F. Francis D'Addario. The defendant has assigned error to the factual and legal conclusions that led the trial court to award damages in the amount of $65,700 and costs, and has challenged certain evidentiary and procedural rulings as well. The proceedings below were the result of a new trial ordered by this court upon the commissioner's first appeal. D'Addario v. Commissioner of Transportation, 172 Conn. 182, 374 A.2d 163 (1976) (hereinafter D'Addario I). The underlying facts are not in serious dispute and do not differ from those reported in D'Addario I: Prior to May 25, 1973, the plaintiff owned approximately 3.6 acres of undeveloped land in Fairfield. On that date, the defendant took from the plaintiff by way of eminent domain two drainage rights-of-way, amounting in all to 0.13 acres, and an easement to install a chain link fence in connection with a project to drain and relocate Turney's Creek so as to improve drainage in the surrounding area. The project involved the construction of three box culverts and considerable sanitary sewer work over an area about a mile in length, with most of the work involved lying outside of the area of the plaintiff's property. The construction of the entire project was to be performed in 780 days. The plaintiff's property has legal access only to the King's Highway Cut-off, U.S. 1A, being otherwise effectively landlocked because of the elevation of surrounding property. Its legal access consisted of a driveway approximately sixty-five feet wide. The reconstruction of Turney's Creek involved the construction of a box culvert across this accessway to the plaintiff's land. During the period of construction, which was originally projected to take two years, and in fact took slightly longer, there was interference with the plaintiff's access to his property, although full and unrestricted access was thereafter restored. The defendant in its original notice of taking assessed the plaintiff's damages at $3600. At the trial in 1974, the trial court reassessed the damages, finding the plaintiff entitled to $18,700 for the property actually taken, and to $34,500 for a two-year constructive easement for the deprivation of access to and use of his property. In the first appeal, the state did not contest the reassessment from $3600 to $18,700, but challenged the award for the constructive easement as inappropriate as a matter of law and unproven as a matter of fact. D'Addario I, supra, 184. Upholding the position of the state in part, this court held, D'Addario I, supra, 186, that "[b]ecause the court failed to find that the com struetive easement was the foreseeable, necessary, natural and proximate result of the taking, and because the finding fails to support the damage award reached, the judgment cannot stand," and ordered a new trial. The order for a new trial necessarily implied that the plaintiff's claim to a constructive easement had been rejected as a matter of fact but not as a matter of law. I Before reaching the merits of the substantive issues raised by the new appeal, we will consider first the various evidentiary and procedural rulings that have been assigned as error by the defendant. The defendant argues that the trial court should have: (1) permitted introduction of evidence that the town of Fairfield was responsible for construction delays that contributed to the denial of access to the plaintiff's property and (2) permitted the defendant to cite in additional defendants, the town of Fairfield and the contractor Brunalli, and to consolidate actions against them, when their conduct contributed to the denial of access to the plaintiff's property. The trial court rejected these claims in the proceedings that led to D'Addario I, and rejected them again when they were renewed upon the retrial. Since these various claims were assigned as error in the appeal in D'Addario I, it is arguable that this court's failure to address these claims in that opinion is tantamount to a conclusion that the rulings were correct, and have become part of the law of the case. Laurel, Inc. v. Commissioner of Transportation (Laurel II), 173 Conn. 220, 222, 377 A.2d 296 (1977); Gray v. Mossman, 91 Conn. 430, 434, 99 A. 1062 (1917). Because the first judgment in the plaintiff's favor was set aside in D'Addario I; cf. Laurel, Inc. v. Commissioner of Transportation (Laurel III), 180 Conn. 11, 23, 428 A.2d 789 (1980); and because the opinion in D'Addario I does not expressly consider the claims on their merits, it is preferable to deal with them directly on this appeal. We find all three claims to be groundless. In essence, these evidentiary and procedural motions are all founded on the same proposition, that if there was interference with the plaintiff's access to his property, that interference was due, at least in part, to the conduct of third parties and hence was not the responsibility of the defendant. The trial court found, however, that all of the construction delays were attributable to contract specifications required by, and approved by, the state of Connecticut. Under these circumstances, neither the town of Fairfield, nor the contractor Brunalli, could have been made liable, nnder General Statutes § 52-102a, for any part of the plaintiff's claim against the defendant and consolidation was not required. The rulings of the trial court were well within its discretion. American Oil Co. v. Valenti, 179 Conn. 349, 360, 426 A.2d 305 (1979); Doran v. Wolk, 170 Conn. 226, 232, 365 A.2d 1190 (1976); Rode v. Adley Express Co., 130 Conn. 274, 277, 33 A.2d 329 (1943). The defendant also renews the argument, first raised in its appeal in D'Addario I, that the court had no jurisdiction to award damages for the constructive easement, because the taking certificate did not encompass such an easement and the amended appeal did not, in timely fashion, raise the issue, the amendment having been filed on August 6, 1974, more than six months after the taking date of May 25, 1973, in violation of the provisions of General Statutes § 13a-76. Although matters relat ing to proof of denial of access may not have been foreclosed by the decision in D'Addario I, the remand for a new trial on the facts could not have been ordered without an implied ruling that the matter was jurisdietionally appropriate for decision. Furthermore, the amendment of the pleadings suggested by the trial court in the original hearing was no more than an amplification of issues appropriately raised by the first count of the appeal which was itself timely filed. See Laurel, Inc. v. Commissioner of Transportation (Laurel III), supra, 35, and cases there cited. The rulings by the trial court that permitted the amendment to the appeal were therefore well within its discretion. Wesson v. F.M. Heritage Co., 174 Conn. 236, 239-40, 386 A.2d 217 (1978); Phaneuf v. Commissioner of Motor Vehicles, 166 Conn. 449, 454, 352 A.2d 291 (1974). II The substantive issue relating to the constructive easement that remained for retrial after D'Addario I can conveniently be divided into three sub-parts: (1) Did the taking by the defendant deprive the plaintiff of access to his property during the period of construction at Turney's Creek? (2) "Was the interference with the plaintiff's access a foreseeable, necessary, natural and proximate result of the taking? (3) What are the damages that result from the taking? The trial court answered the first two questions in the affirmative, and reassessed damages in the amount of $65,700, of which $16,000 was attributed to the difference in the value of the property itself before and after the taking, and $49,700 was attributed to the deprivation of access. As in D'Addario I, the defendant does not contest the reassessment of damages from $3600 to $16,000, but does contest every aspect of the court's findings and conclusions as they relate to deprivation of access. It is noteworthy that these assignments of error challenge determinations that are essentially factual, in light of the holding in D'Addario I, and that the scope of our review is determined by the rule that the judgment of the trial court cannot be reversed or amended unless it is clearly erroneous in light of the evidence and the record as a whole. Practice Book, 1978, § 3060D. We find no basis in this record for reversal of the judgment of the trial court. On the question of denial of access, the parties are in agreement, as the trial court found, that box culvert 201, one of the three box culverts involved in the Turney's Creek project, was constructed directly across the entire entraneeway to the plaintiff's property. The defendant argues that access was nonetheless not denied the plaintiff because temporary access was maintained throughout the period of construction by means of temporary fill, as evidenced by the fact that the plaintiff's land was used, with the plaintiff's permission, by the contractor Brunalli as a place for storage of trucks and materials. The defendant also argues that the contractor had a legal obligation to provide continual legal access and was never asked by the plaintiff to do anything further to facilitate ingress and egress to and from the plaintiff's property. The court found, however, that the temporary access that the contractor was obligated to provide was only limited access and not equivalent to the full, complete, and unrestricted access necessary for the full development of the property for its highest and best use. The plaintiff, having been deprived of his rights to unrestricted access, was entitled to be compensated for this loss. Our review of the evidence and the record makes it clear that this finding was certainly not clearly erroneous. Whether denial of access was a foreseeable, necessary, natural and proximate result of the taking is a question resolved in part by D'Addario I. Clearly, if denial of access during the period of construction after a taking could never be deemed to flow proximately from a taking, there would have been no point to a remand to determine damages under such a claim, when the state had already conceded the correctness of the remainder of the reassessment. In any case, the opinion states expressly that: "When only a part of a tract of land is taken for the public use, 'just compensation' includes recovery for the part taken and recovery for any damages visited upon the remainder which result from the taking. . . . The use to be made of the land taken is to be considered with regard to its effect on the remaining land, and the fact that injuries are caused by the construction activities of the contractor is not a bar to recovery so long as the damages foreseeably follow such construction activities and are a necessary, natural and proximate result of the taking." D'Addario I, supra, 184-85. See Bowen v. Ives, 171 Conn. 231, 238, 368 A.2d 82 (1976); Meriden v. Highway Commissioner, 169 Conn. 655, 659, 363 A.2d 1094 (1975); Budney v. Ives, 156 Conn. 83, 88, 239 A.2d 482 (1968); Lefebvre v. Cox, 129 Conn. 262, 265, 28 A.2d 5 (1942); Andrews v. Cox, 127 Conn. 455, 458-59, 17 A.2d 507 (1941); all cited in D'Addario I; Wakeman v. Commissioner of Transportation, 177 Conn. 432, 435, 418 A.2d 78 (1979); 4A Nichols, Eminent Domain (3d Ed.) § 14.24, 14.243 and 14.2431. The trial court found that damages attributable to deprivation of access during the period of construction were foreseeable and the necessary, natural and proximate result of the taking of the plaintiff's property. Proximate result for the purpose of eminent domain is not a criterion susceptible to precise definition in the abstract apart from the particular circumstances of particular cases. One test for proximate result is that damages will be recoverable by the condemnee only if they arise out of a loss that the condemnor could reasonably foresee as a probable result of the taking at the time of the taking. Measuring damages by this test, the trial court was not clearly erroneous in its finding that interference with access was proximately related to the nature of the construction at the time of the taking. Some interference with access was inherent in the location of a box culvert directly across the plaintiff's accessway. There was ample evidence, furthermore, that delays in completion of the work at this site were attributable to actions of the defendant in delaying the process of finalizing the award to the contractor and in executing numerous construction orders to change the design of the work to be done. There was thus no error in the court's conclusion of a proximate relationship between the denial of access and the taking. The final question, dispositive of this appeal, is whether the trial court erred in its award of damages relating to the denial of access to the constructive easement as it was denominated in D'Addario I. The principles that relate to a reassessment of damages have often been stated. Damages recoverable for a partial taking are measured by application of the "before and after rule," to determine "the difference between the market value of the whole tract as it lay before the taking and the market value of what remained of it thereafter, taking into consideration the changes contemplated in the improvement and those which are so possible of occurrence in the future that they may reasonably be held to affect market value." Lefebvre v. Cox, 129 Conn. 262, 265, 28 A.2d 5 (1942); Laurel, Inc. v. Commissioner of Transportation (Laurel III), 180 Conn. 11, 37, 428 A.2d 789 (1980); Tandet v. Urban Redevelopment Commission, 179 Conn. 293, 298-99, 426 A.2d 280 (1979); Wakeman v. Commissioner of Transportation, 177 Conn. 432, 435, 418 A.2d 78 (1979); Hanson v. Commissioner of Transportation, 176 Conn. 391, 400, 408 A.2d 8 (1979); Smith v. Zoning Board of Appeals, 174 Conn. 323, 328, 387 A.2d 542 (1978); Plunske v. Wood, 171 Conn. 280, 283-84, 370 A.2d 920 (1976). The fair market value is the price that the trier reasonably thinks would result from fair negotiations between a willing seller and a willing buyer, contemplating the highest and best possible use of the land, giving a prudent investor the greatest financial return. Laurel, Inc. v. Commissioner of Transportation (Laurel III), supra, 37; Tandet v. Urban Redevelopment Commission, supra, 299; Lynch v. West Hartford, 167 Conn. 67, 73, 355 A.2d 42 (1974); Connecticut Printers, Inc. v. Redevelopment Agency, 159 Conn. 407, 411, 270 A.2d 549 (1970). In determining fair market value, the trial court is free to select the method of valuation most appropriate to the case before it. Laurel, Inc. v. Commissioner of Transportation (Laurel III), supra, 37-38; Slavitt v. Ives, 163 Conn. 198, 209, 303 A.2d 13 (1972); Birnbaum v. Ives, 163 Conn. 12, 18, 301 A.2d 262 (1972); Connecticut Printers, Inc. v. Redevelopment Agency, 159 Conn. 407, 414, 270 A.2d 549 (1970); Brothers, Inc. v. Ansonia Redevelopment Agency, 158 Conn. 37, 43-45, 255 A.2d 836 (1969); Research Associates, Inc. v. New Haven Redevelopment Agency, 152 Conn. 137, 142-43, 204 A.2d 833 (1964). When, as here, the trier has visited the property to be appraised, he may rely on his visual observations to supplement the evidence presented for his consideration by the witnesses under oath. Birnbaum v. Ives, supra, 20; Stanley Works v. New Britain Redevelopment Agency, 155 Conn. 86, 99, 230 A.2d 9 (1967); Houston v. Highway Commissioner, 152 Conn. 557, 558, 210 A.2d 176 (1965). In condemnation proceedings, the trial court is more than a trier of facts or an arbiter of differing opinions of witnesses; it is charged with the duty of making an independent determination of value and fair compensation in light of all the circumstances, the evidence, its general knowledge and its viewing of the premises. E & F Realty Co. v. Commissioner of Transportation, 173 Conn. 247, 253, 377 A.2d 302 (1977); Laske v. Hartford, 172 Conn. 515, 520, 375 A.2d 996 (1977); Gebrian v. Bristol Redevelopment Agency, 171 Conn. 565, 576, 370 A.2d 1055 (1976); Bowen v. Ives, 171 Conn. 231, 239, 368 A.2d 82 (1976); Slavitt v. Ives, 163 Conn. 198, 209, 303 A.2d 13 (1972). The trial court's reassessment of damages found that the value of the property taken from the plaintiff was $396,000 before the taking and $380,000 thereafter, for a diminution in value in the amount of $16,000. These figures have not been contested by the defendant upon this appeal. The court found an additional diminution in value by reason of deprivation of access, which the court valued at $49,700. The defendant, relying principally on the recent case of Tandet v. Urban Redevelopment Commission, 179 Conn. 293, 426 A.2d 280 (1979), urges us to disapprove this additional diminution in value as too remote, hypothetical and speculative. We do not agree that this case is governed by the holding in Tandet. The trial court noted that the land that was partially taken and affected by the lack of access was, although undeveloped, zoned for industrial use. There was uncontroverted evidence that industrial zoning permitted use of the property for commercial purposes, and that the plaintiff had been negotiating, in 1969, for the development of the property for a shopping center. These activities were suspended when the plaintiff received notice from the defendant, early in 1970, that the property would be affected by the Turney's Creek drainage project. The court could reasonably conclude that a buyer considering purchase of the plaintiff's land would have to take into account, in setting a purchase price, that the defendant's actions would effectively deprive the owner of the use and occupancy of the land during the period of construction. The only evidence as to the amount of the damages attributable to this temporary interference with beneficial use of the plaintiff's property was evidence offered by the plaintiff's appraiser, since the defendant consistently maintained that there had been no cognizable deprivation of access. The plaintiff's appraiser testified, and the trial court agreed, that the diminution in the value of the property because of the denial of access should be measured by the rental value of the property during the two years and three months' time during which construction . work was necessary. This rental value was found to be $38,000 per year; the loss of income during the period of construction, computed as of the date of taking, on the basis of a reasonable rate of return of ten percent, was $66,300. Because the property would have required substantial work before it could have been placed into rental condition, the court further discounted its rental value by 25 percent and thus arrived at its damage figure of $49,700. The defendant does not dispute the arithmetic that led to the calculation of additional damages in the amount of $49,700, but contests the appraiser's testimony that diminution in value can be measured by loss of rental value and also his recommendation that the rental value of undeveloped real property should be found by taking 10 percent of its value. The state thus assigns error as a matter of law and of fact to the court's finding that $38,000 was a reasonable rental value reasonably measuring the plaintiff's loss. Considering all of the facts and circumstances contained in the evidence and the record, we do not agree that the trial court was clearly erroneous either in the methodology it adopted to measure temporary appropriation of a constructive easement or in its fact-finding in measuring the value of the plaintiff's deprivation of access. The court's conclusion that the property taken could have been profitably used for commercial purposes, and that this reasonable use of the land was impaired by a period of deprivation of access, did not involve inadmissible speculation about future profits, as in Tandet v. Urban Redevelopment Commission, supra, or in Eljay Realty Co. v. Argraves, 149 Conn. 203, 207, 177 A.2d 677 (1962). See Key stone Associates v. New York, 55 App. Div. 2d 85, 90, 389 N.Y.S.2d 895 (1976); Great Atlantic & Pacific Tea Co. v. New York, 22 N.Y.2d 75, 87, 238 N.E.2d 705 (1968). As in Laurel, Inc. v. Commissioner of Transportation (Laurel III), supra, 43-44, the defendant's taking impaired the value of the plaintiff's present rights in the property as land owner and as entrepreneur in a manner that would with reasonable probability have been reflected in a fair sale between a willing seller and a willing buyer. It bears emphasis that valuation is a matter of fact to be determined by the trier's independent judgment of what is just compensation; Gebrian v. Bristol Redevelopment Agency, 171 Conn. 565, 576, 370 A.2d 1055 (1976); and that "the question of what is just compensation is an equitable one rather than a strictly legal or technical one." Colaluca v. Ives, 150 Conn. 521, 530, 191 A.2d 340 (1963). There is no error. In this opinion the other judges concurred. Section 52-102a provides in relevant part: "impleading op third party by dependant in civil action. A defendant in any civil action may move the court for permission as a third-party plaintiff to serve a writ, summons and complaint upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him. Such a motion may be filed at any time before trial and such permission may be granted by the court if, in its discretion, it deems that the granting of the motion will not unduly delay the trial of the action nor work an injustice upon the plaintiff or the party sought to be impleaded." Section 13a-76 provides in relevant part: "appeal. Any person claiming to be aggrieved by the assessment of such special damages or such special benefits by the commissioner may, at any time within six months after the same has been so filed, apply to the superior court for the judicial district within which such land is situated or, if said court is not in session, to any judge thereof for a reassessment of such damages or such benefits so far as the same affect such applicant, and said court or such judge, after causing notice of the pendency of such application to be given to said commissioner, shall appoint a state referee to make such reassessment of such damages or such benefits." Compare the law of proximate cause in the law of contracts which also is designed to impose limits on the recovery of consequential damages. See Restatement (Second), Contracts § 365 (Tent. Draft No. 14, 1979); Calamari & Perillo, Contracts § 14-5 (2d Ed. 1977); 5 Corbin, Contracts § 997 (1964).

Per Curiam. This appeal stems from various actions, consolidated by the trial referee, involving the plaintiff, the state of Connecticut and other litigants concerning the appropriation by the state of certain lands of the plaintiff located in the town of East Granby in the area of Bradley Field. After extensive litigation over many years, the parties to all of the consolidated cases negotiated a settlement wherein the plaintiff agreed to sell the land to the state for an agreed upon price. After a stipulated judgment had been rendered which conformed to the terms of the agreement, the plaintiff moved to open the judgment claiming ineffective assistance of counsel. From the denial of that motion, the plaintiff took this appeal. On appeal, the plaintiff argues that the court erred in refusing to grant the motion to open the judgment claiming (1) that the state failed to comply with the provisions of § 13b-44 of the General Statutes which require the approval of the town before land can be used for airport expansion, and (2) that there was ineffective representation of counsel resulting from a conflict of interest. The trial referee's refusal to grant the plaintiff's motion was based on his conclusion that § 13b-44 of the General Statutes was not applicable to the five cases before him. The trial referee also concluded that there was no ineffective representation or conflict of interest on the part of the plaintiff's counsel. The trial referee's conclusions are tested by the finding; Brauer v. Freccia, 159 Conn. 289, 293, 268 A.2d 645 (1970); and the conclusions must stand unless they are inconsistent with the facts found. Craig v. Dunleavy, 154 Conn. 100, 105, 221 A.2d 855 (1966). The trial referee found that § 13b-44 was enacted in 1969, some five years after the disputes which underlie this appeal arose, and that it was not, therefore, applicable to the present controversy. The trial referee further found that the plaintiff's complaints directed against his counsel were without merit; that there was no conflict of interest; and that counsel rendered the highest degree of service and devotion to the plaintiff in securing for him an excellent settlement. These unchallenged findings legally and logically support the conclusions reached. There is no error. Augustus J. Simmons v. Horace B. Wetherall, et al., No. 163875, was consolidated with the following eases: State of Connecticut v. Augustus J. Simmons, No. 202121; Augustus J. Simmons v. Samuel Kanell, et al., No. 199230; State of Connecticut v. Anastasia Simmons, Augustus J. Simmons and Charles Simmons, No. 140965; and Augustus J. Simmons v. Frank C. Parizek, et al., No. 162923.

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

Parskey, J. The defendant board of selectmen (hereinafter the board) has appealed the judgment of the court ordering the board to restore the plaintiff forthwith as a member of the Inland Wetlands Commission (hereinafter the commission) of the town of Brookfield. Because on the basis of the record the trial court's decision was proper we affirm. In January, 1978, the plaintiff was appointed by the board to a fonr-year term as a member of the commission. She subsequently was elected its presiding officer. In December, 1978, the board voted to suspend the plaintiff as a member of the commission denoting the cumulative effect of seven specified reasons as the cause of its action. In January, 1979, after a public hearing held at the plaintiff's request, the board voted to remove the plaintiff from office. Section 411 of the charter of the town of Brook-field authorizes the board to remove for cause any person appointed by it to any office or position. " 'Cause' implies a reasonable ground for removal as distinguished from a frivolous or incompetent ground. Riley v. Board of Police Commissioners, 147 Conn. 113, 118, 157 A.2d 590; McNiff v. Waterbury, 82 Conn. 43, 46, 72 A. 572." Molino v. Board of Public Safety, 154 Conn. 368, 374, 225 A.2d 805 (1966). The cause must be one which specifically relates to and affects the administration of the office, and must be restricted to something of a substantial nature directly affecting the rights and interests of the public. 67 C.J.S., Officers § 120. Whether the assigned cause is sufficient in law to justify removal is a question for the court. State ex rel. Raslavsky v. Bonvouloir, 167 Conn. 357, 361, 355 A.2d 275 (1974); Wilber v. Walsh, 147 Conn. 317, 319, 160 A.2d 755 (1960). If the cause alleged is legally sufficient, then the judgment of the officer or board having the power of removal is conclusive, provided that there is evidence to support it. State ex rel. Raslavsky v. Bonvouloir, supra, 360-61. The specified grounds on which the board acted are seven in number. The defendant concedes that two of these are legally insufficient to support removal and therefore has limited its appeal to the remaining five grounds. These are: (1) refusing to disqualify herself on a matter before the commission; (2) release of minutes of an "executive" session without giving other members of the commission an opportunity to approve them; (3) inability to control commission meetings; (4) attempting to secure resignation of a senior commission member; and (5) depriving commission of professional advice. Refusal to Disqualify The asserted basis for this charge is a claim by an applicant before the commission that the plaintiff was antagonistic toward him. The applicant attempted to disqualify three members of the commission on the same ground. The plaintiff, feeling that there was no substance to the claim, refused to disqualify herself. While it is true that neutrality and impartiality of members of administrative boards and commis sions are essential to the fair and proper operation of these authorities; Lake Garda Improvement Assn. v. Town Plan & Zoning Commission, 151 Conn. 476, 480, 199 A.2d 162 (1964); a charge of bias must be supported by some evidence proving probability of bias before an official can be faulted for continuing to execute her duties. Local wetlands commissions are charged, under General Statutes § 22a-28, with the responsibility of preserving the wetlands against despoliation and destruction. The discharge of this responsibility may require the commission members to reject an otherwise acceptable application because the project is likely to have an adverse impact on the environment. In these circumstances disappointed applicants may misconstrue such rejections as being motivated by personal animosity. There might also be cases where applicants would desire to have their projects approved even at the expense of the environment. If we accept the board's contention, in either situation the applicant could bring about the disqualification of members of the commission by the simple device of claiming hostility, for when so challenged a commission member would either have to disqualify self or face removal for failure to do so. The public policy of this state to preserve and protect wetlands would suffer by having applications affecting the wetlands judged only by those who in the name of progress would be willing to approve applications whatever the adverse environmental impact. The claim of hostility without more is not a sufficient basis for disqualification. In the absence of a showing that the commission member could not hear a given application fairly and impartially, . her refusal to recuse herself cannot be a ground for her removal. The hoard's further contention that the plaintiff compounded her error by putting the question to other members of the commission including the alternates is also without merit. The charter makes no provision regarding the determination of disqualification. Although the town attorney advised the plaintiff that the decision to disqualify rested with her alone, the plaintiff cannot he faulted for seeking the views of other members of the commission on the question. The fact that a majority felt that she should not do so could he considered by her in making her ultimate decision. Since the question put to the other members was purely advisory, permitting both members and alternates to vote on it was of no consequence. Release oe Minutes The plaintiff is charged with releasing to the press minutes of a purported executive session of the commission without giving the other members of the commission an opportunity to approve them before their release. It is claimed that this constituted an act of discourtesy to the other members. Discourtesy and even rudeness not amounting to illegality of conduct, or to oppression under color of office, hardly rise to the level of cause for removal from office. 63 Am. Jur. 2d, Public Officers and Employees, § 202. Inability to Control Meetings The defendant next charges the plaintiff with an inability to control commission meetings. The specification under this charge relates to an argument between the plaintiff and a senior commission member regarding the disqualification issue referred to above. The trial court quite properly characterized this controversy as a personality clash between members of the commission. In the absence of a showing that internal bickering or inability to control meetings impaired the functioning of the commission, an isolated occurrence such as that involved here is not sufficient to warrant removal. Attempt to Eliminate Senior Member Next the plaintiff is charged with divisive tactics to eliminate from membership a senior commission member. It is specified that the plaintiff, after a majority of the members of the commission voted not to accept the resignation of a senior commissioner, nevertheless submitted the senior member's letter of resignation to the first selectman, and requested an appointment with the first selectman for the express purpose of persuading him to accept the resignation. Accepting the charge as factually correct, there is nothing about the conduct specified which would warrant the plaintiff's removal from office. As a member of the commission, and especially as its chairman, the plaintiff had a right if not a duty to express her views with regard to the proposed resignation. Other members had an equal right and duty to express contrary views. Ultimately the decision to accept or reject the proffered resignation was to be made by the board. The board may have felt that in view of the position of a majority of the members of the commission the resignation should not be accepted, but it was not obliged to agree. A free society should encourage the fullest and freest expression of views by public officials without subjecting them to the risk of removal if those views happen to displease higher authority. Depriving Commission of Professional Advice Finally, the plaintiff is charged with depriving the commission of professional advice. The specifica tion under this charge is that on one occasion the plaintiff called Howard Kelly, the town engineer, informed him that she had been urged by the members of the commission to use his service, "but she did not know whether she was going to do this or not because she did not think he had the expertise to tell her what she wanted to hear." The specification which relates to an expression of opinion does not support the charge of depriving the commission of professional services. All that it expresses is doubt in the plaintiff's mind about the value of the town engineer's advice for the purposes of the commission. This is further borne out by the plaintiff's testimony at the hearing that when she asked the town engineer what experience he had in hydrology he responded "that he was not basically an environmentalist." The most that can be said about this charge is that the plaintiff had reservations about the value off the town engineer's advice on certain matters before the commission. There is nothing in the record to support the charge that the plaintiff at any time deprived the commission of professional advice. It should be noted that this is not a case of misconduct or wilful neglect of duty. See Molino v. Board of Public Safety, supra. The board found none of the charges sufficient in themselves to warrant removal, but relied on the cumulative effect of all the charges. It requires more than a chain of insufficient causal links to justify removal of a public official from office. There is no error. In this opinion the other judges concurred. "Section 411. investigation, removals and suspensions, b. removals and suspensions. 1. The Board of Selectmen shall have the power to suspend by an affirmative vote of two (2) members, and to remove for cause by an affirmative vote of all members, any person appointed to any office or position by the Board; 2. The Board shall act first by suspending such person and shall promptly serve such person with a copy of the resolution of suspension together with the reasons therefor. If within ten (10) days after service of said resolution such person shall file a request in writing with the Town Clerk for a public hearing before the Board, the hearing requested shall be held, at a time and place set by the .Board, not less than five (5) days nor more than fifteen (15) days after the filing of the request. At such hearing the person may be represented by counsel. If no hearing is requested or at the conclusion of the hearing, the Board shall promptly by resolution terminate the suspension and either restore the person to, or remove such person from office or employment . . . ."

Peters, J. The principal issue in this appeal is the lienability of a contractor's work in road building and site preparation under the mechanic's lien act before its 1974 amendment. The plaintiff, Pasquale Camputaro, also known as Pat Camputaro, doing business as Roma Construction Company, sued to recover for services rendered and materials furnished pursuant to an agreement with the corporate defendant, the Stuart Hardwood Corporation (formerly the Stuart Paley Co., Inc.). One count of the complaint sought damages under a bond given in substitution for a mechanic's lien by the corporate defendant as principal, and by the individual defendants, Stuart H. Paley and Jerome L. Paley, as sureties. Three other counts sought damages from the corporate defendant alone for breach of contract, implied contract and quasi-contract. The defendants responded with a variety of defenses, as well as claims by way of setoff and counterclaim alleging defective performance by the plaintiff. The referee to whom the case was referred, Thim, J., rendered judgment for the plaintiff on the first two counts of his complaint and on the defendants' set-off and counterclaim. The defendants' appeal contests all aspects of the judgment except the ruling on the setoff and counterclaim. The underlying facts, which are no longer at issue, establish the following: Camputaro and Hardwood agreed that Camputaro would do work on two related projects on an unimproved tract of land in Bethany. This land is owned by the individual defendants, the Paleys. Stuart Paley is the president and the majority stockholder of Hardwood. Hardwood had previously agreed with the Paleys that it would improve the land by building upon it a prefabricated sheet metal building for use in Hardwood's business. The first project consisted of the completion of a roadway leading to the projected building site on the land. This contract was negotiated on February 17, 1974, and completed on March 1, 1974. A few days later, Camputaro billed Hardwood for $8910 and was paid in full. A second invoice, claiming an additional amount of $8511.85 for gravel furnished in connection with the road work, was disputed and has not been paid. The second project involved preparation of the site for the proposed building. On March 1, 1974, Camputaro agreed to clear, grade and fill the land at and around the building site so as to create level ground, a smooth site, on which the building might be placed. Although his work included excavation, he was not hired to excavate for footings or for a foundation for the building. Between March and June 19,1974, Camputaro excavated about four and one-half acres of land for which he claimed entitlement to $130,098.50 for equipment rental, materials, supervision and insurance. Camputaro ceased working on the project in June when a disagreement arose about payment terms. At that time, Hard wood had already paid Camputaro $20,000 under the site preparation agreement; the remaining amount was in dispute and was not paid. After Camputaro ceased working on the project on June 19, 1974, Hardwood engaged in extensive preparation for an expanded site layout for its plant. A prefabricated building was acquired by the defendants and delivered to their property. There was, however, no evidence of any attempt to raise, erect or construct the building on the prepared site after it had been cleared. For reasons that the record does not clearly disclose, the defendants chose not to erect the building. The plaintiff, Camputaro, on June 25, 1974, filed a mechanic's lien in the sum of $118,566.36 for work done and materials furnished "in the construction of a certain building owned by said Stuart H. Paley and Jerome Paley." The lien was refiled, on July 15, 1975, in conformity with the validation provisions of General Statutes § 49-35d enacted in response to this court's decision in Roundhouse Construction Corporation v. Telesco Masons Supplies Co., 168 Conn. 371, 385, 362 A.2d 778, vacated, 423 U.S. 809, 96 S. Ct. 20, 46 L. Ed. 2d 29 (1975), on remand, 170 Conn. 155, 365 A.2d 393, cert. denied, 429 U.S. 889, 97 S. Ct. 246, 50 L. Ed. 2d 172 (1976). Notice of intention to claim the mechanic's lien was properly served upon the defendants. On March 10, 1977, the defendants substituted their bond in the appropriate amount so as to secure release of the plaintiff's mechanic's lien pursuant to General Statutes § 49-37. The defendants raise three issues on this appeal. (1) With respect to the first count, the action on the bond against all of the defendants, does the work done by the plaintiff qualify as lienable under the mechanic's lien statute as it existed in 1974, before the amendments that went into effect on October 1 of that year? (2) With respect to the first count and the second count, the contract action against the corporate defendant, were items attributed to supervision, to a grader, and to insurance allowable under the contract? (3) With respect to both counts, were the damages awarded by the trial court impermissibly in excess of the amount demanded in the plaintiff's prayer for relief? I The defendants claim that the work done by the plaintiff, Camputaro, does not entitle him to recover on the bond given in lieu of the mechanic's lien. Obviously, the plaintiff's rights on the bond can rise no higher than those acquired under the underlying mechanic's lien for which the bond is merely a substitute. General Statutes § 49-37; Biller v. Harris, 147 Conn. 351, 353, 161 A.2d 187 (1960); Hartlin v. Cody, 144 Conn. 499, 505, 134 A.2d 245 (1957). Nor are the rights acquired by the initial filing of the lien substantively altered by its sub sequent refiling for purposes of validation pursuant to General Statutes § 49-35d. See Andrulat v. Brook Hollow Associates, 176 Conn. 409, 411, 407 A.2d 1017 (1979); Foran v. Zoning Board of Appeals, 158 Conn. 331, 337, 260 A.2d 609 (1969). The amendments to the mechanic's lien act necessitated by our decision in Roundhouse, supra, were not designed to supersede entirely the previously existing mechanic's lien laws but rather were intended to provide procedural safeguards to make the act constitutional. The trial court concluded that Camputaro had a valid mechanic's lien because road work and site preparation constituted "materials furnished or services rendered in the construction, raising, removal or repairs of any building or any of its appurtenances," which is the operative language of General Statutes § 49-33 as it existed at the time of the initial filing. The defendants maintain, and we agree, that this conclusion was in error. Whether work done in furnishing materials and rendering services is work lienable under the mechanic's lien act is a question that this court has addressed with relative infrequency over the past 120 years. We have never had the occasion to consider the lienability of road work and site preparation. Nevertheless, the principles that guide our interpretation of mechanic's lien legislation are well settled. Although this legislation creates a statutory lien in derogation of the common law; Gruss v. Miskinis, 130 Conn. 367, 370, 34 A.2d 600 (1943); National Fireproofing Co. v. Huntington, 81 Conn. 632, 634, 71 A. 911 (1909); see also Willoughby v. New Haven, 123 Conn. 446, 454, 197 A. 85 (1937); its remedial purpose to furnish security for a contractor's labor and materials requires a generous construction. Stone v. Rosenfield, 141 Conn. 188, 191, 104 A.2d 545 (1954); City Lumber Co. v. Borsuk, 131 Conn. 640, 645, 41 A.2d 775 (1945); Pierce, Butler & Pierce Mfg. Corporation v. Enders, 118 Conn. 610, 615, 174 A. 169 (1934); Balch v. Chaffee, 73 Conn. 318, 320, 47 A. 327 (1900). Generosity of spirit does not, however, permit departure from reasonable compliance with the specific provisions of the statute. Stone v. Rosenfield, supra; City Lumber Co. v. Borsuk, supra. It is clear, furthermore, that the provisions of our statute differ sufficiently from the mechanic's lien legislation of other states so that precedents elsewhere are of limited utility in the interpretation of our act. New Haven Orphan Asylum v. Haggerty Co., 108 Conn. 232, 236, 142 A. 847 (1928); Hartford Builders Finish Co. v. Anderson, 99 Conn. 343, 345, 122 A. 76 (1923). Camputaro's work on the Paley property was performed at a time when the mechanic's lien act made lienable "materials furnished or services rendered in the construction, raising, removal or repairs of any building or any of its appurtenances . . . ." General Statutes §49-33 (Rev. to 1972). It is significant that the statute did not then expressly cover improvements to realty, although such language is found in the statutes of other states, and is now in § 49-33 as amended effective October 1, 1974. Our cases construing the language of the then existing statute have required, as a condition of lienability, that the work done be incorporated in or utilized in the building' (or the appurtenance) to be constructed, raised, removed or repaired. The strongest precedent for the plaintiff is Marchetti v. Sleeper, 100 Conn. 339, 342, 123 A. 845 (1924), which held that an architect's plans and specifications constitute lienable services rendered in the construction of a building. But Marchetti goes on to observe that "there can be no lien until some actual or theoretical increment of value has attached itself to the land by the commencement of the building . . . ." (Emphasis added.) Ibid. Our other eases have consistently, with equal emphasis, insisted that mechanic's lien work be "wrought into" the liened property in some fashion. Thus the installation of fixtures that do not become part of the realty; Hartlin v. Cody, 144 Conn. 499, 506, 134 A.2d 245 (1957); or of electrical work that is not permanently attached to the realty; Stone v. Rosenfield, 141 Conn. 188, 192, 104 A.2d 545 (1954); Abbadessa v. Puglisi, 101 Conn. 1, 124 A. 838 (1924); the removal of pipe from one building that is not incorporated into the building that is its replacement; Hillhouse v. Duca, 101 Conn. 92, 101, 125 A. 367 (1924); and the furnishing of materials or equipment that is not shown to have gone into the construction or repair of a building; Lewin & Sons, Inc. v. Herman, 143 Conn. 146, 150, 120 A.2d 423 (1956); Chapin v. Persse & Brooks Paper Works, 30 Conn. 461, 473 (1862); Rose v. Persse & Brooks Paper Works, 29 Conn. 256, 267-68 (1860); are all unlienable. Balch v. Chaffee, 73 Conn. 318, 321, 47 A. 327 (1900), did hold lienable as an appurtenance the construction of an artesian well not physically connected to the house which it was to serve, but Balch v. Chaffee, supra, 320, describes the category of appurtenance as one of "detached structures" (emphasis added) and its holding, thus limited, is therefore consistent with the structural constraints that our other cases have uniformly imposed. This well settled interpretation of the mechanic's lien act leads inexorably to the conclusion that lien-ability of Camputaro's work cannot be sustained because the work was never incorporated in the construction, raising, removal or repair of any building or appurtenance thereto. Had the contemplated building been completed, had it even been begun, the test of Balch v. Chaffee, supra, and Marchetti v. Sleeper, supra, looking to whether the work done was a convenient necessity to the building's construction, might well have brought the plaintiff within the ambit of the act. Regrettably for Camputaro, the evidence at trial showed only that the prefabricated building had been acquired and delivered to the Raleys' property and not that it had been erected in whole or in part. It may well be that cases like this one led to the amendment of § 49-33. It is surely a hard result to have lienability turn on conduct of the owner of property that a contractor has no reason to expect and no power to control. Under § 49-33, as amended, the mechanic's lien has been extended to encompass claims for materials furnished or services rendered "in the improvement of any lot or in the site development or subdivision of any plot of land . . . ." The specificity of this language, when compared to its statutory predecessor, lends support to our conclusion that the statute before its amendment did not make lienable work done in road construction and site preparation. The purposeful addition of language to provide coverage for "improvement" and "site development," is a strong indication that such work was not previously lienable. See Engle v. Personnel Appeal Board, 175 Conn. 127, 129-30, 394 A.2d 731 (1978); State ex rel. Kennedy v. Frauwirth, 167 Conn. 165, 168, 355 A.2d 39 (1974). Although the legislative history of the amended § 49-33 is, as is often true, somewhat murky, it is consistent with an intention to expand the coverage of the mechanic's lien. II The unavailability of the mechanic's lien to the plaintiff defeats entirely his claim to recover on the first count of his complaint. On the second count, relating to the liability of the corporate defendant, Hardwood, as a matter of contract law, two issues remain to be addressed. The defendant contends that it was improperly assessed for three items of damages not contemplated by the contract. The agreement of the parties originally called for the work to be done on a daily basis with records to be kept by the use of daily tickets. The defendant claims it is not responsible for invoices submitted without daily tickets after the work on the site preparation project had been stopped. These invoices, amounting to $16,800 in the aggregate, covered supervision, use of a "grader" and insurance. In order to sustain the defendant's contention, we would have to ignore the testimony of the plaintiff which, the trial court was entitled to find credible and persuasive. The court's finding of fact that the parties had agreed to these items and that the plaintiff had submitted reasonable bills therefor, having a legal and logical foundation in the evidence, cannot be disturbed. State National Bank v. Dick, 164 Conn. 523, 531, 325 A.2d 235 (1973); Brauer v. Freccia, 159 Conn. 289, 293, 268 A.2d 645 (1970) ; Craig v. Dunleavy, 154 Conn. 100, 105, 221 A.2d 855 (1966). The conclusion of the trial court that the plaintiff is entitled to recover $110,048.76 plus interest at 18 percent per annum from the defendant Hardwood is not clearly erroneous in light of the record as a whole. The defendant's final contention is that a judgment in the amount of $110,048.76 plus interest is not sustainable in light of the ad damnum clause in the plaintiff's complaint which sought damages in the amount of $150,000. Although this issue was not initially assigned as error, it is properly before us under Practice Book, 1978, § 3060W, which abolishes the necessity of filing assignments of error. The revision of the Practice Book which enables the defendant belatedly to raise the issue is, however, of equal assistance to the plaintiff, for Practice Book, 1978, § 131 abolishes the requirement that a complaint contain a specific statement of the amount in demand. There is no reason not to apply this salu tary procedural reform to the plaintiff's complaint. The trial court's judgment on the second count was therefore not in error. There is error in part, the judgment is set aside and the ease is remanded for the entry of judgment on behalf of all of the defendants on the first count of the plaintiff's complaint. In this opinion the other judges concurred. The exhibits indicate that the defendant encountered zoning problems which prevented completion of the project. General Statutes § 49-35d provides in pertinent part: "validation of lien recorded prior to April 22, 1975. (a) Any person who prior to April 22, 1975, placed a mechanic's lien upon any real estate pursuant to sections 49-33, 49-34, 49-35 and 49-38, which was not released or discharged on such date, may validate such lien by filing a new certificate of mechanic's lien and serving a true and attested copy thereof pursuant to the provisions of section 49-34, and, if applicable, by serving the notice required by section 49-35, within ninety days from June 25, 1975, and such mechanic's lien shall be deemed to have originated as of the effective date of the original mechanic's lien so validated, provided, such validation shall not affect the interest of any person acquiring an interest in such real estate as an owner or mortgagee from April 22, 1975, through June 25, 1975, inclusive." General Statutes § 49-33 (Rev. to 1972) then provided in pertinent part: "mechanic's lien, precedence, rights oe subcontractors. If any person has a claim for more than ten dollars for materials furnished or services rendered in the construction, raising, removal or repairs of any building or any of its appurtenances, and such claim is by virtue of an agreement with or by consent of the owner of the land upon which such building is being erected or has been erected or has been moved, or of some person having authority from or rightfully acting for such owner in procuring such labor or materials, such building, with the land on which it stands, shall be subject to the payment of such claim." It is worth noting that in at least some of the out-of-state eases relied upon by the plaintiff to establish the lienability of site preparation, the building to be beneiitted was in fact constructed. Reid v. Berry, 178 Mass. 260, 59 N.E. 760 (1901); Southwestern Electrical Co. v. Hughes, 139 Kan. 89, 90, 30 P.2d 114 (1934). The third case, Green v. Reese, 261 P.2d 596 (Okla. 1953), arose under a wide-ranging statute expressly covering improvements, 42 Okla. Stat. § 141 (1951). This amendment to General Statutes § 49-33 went into effect on October 1, 1974; see General Statutes §2-32; and the statute as amended provides in pertinent part: "mechanic's lien, precedence, rights op subcontractors. If any person has a claim for more than ten dollars for materials furnished or services rendered in the construction, raising, removal or repairs of any building or any of its appurtenances or m the improvement of ary lot or in the site development or subdivision of any plot of land, and such claim is by virtue of an agreement with or by consent of the owner of the land upon which such building is being erected or has been erected or has been moved, or by consent of the owner of the lot being improved or by consent of the owner of the plot of land being improved or subdivided, or of some person having authority from or rightfully acting for such owner in procuring such labor or materials, such building, with the land on which it stands or such lot or in the event that such materials were furnished or services were rendered in the site development or subdivision of any plot of land, then such plot of land, shall be subject to the payment of such claim." (Emphasis added.) Public Acts 1974, No. 74-310 expanded the scope of General Statutes § 49-33 to include the terms "the improvement of any lot" and "the site development or subdivision of any plot of land." It is the first of these additions, "the improvement of any lot," that is at issue in the present case. In commenting on an amendment to the bill, which was subsequently enacted as Public Acts 1974, No. 74-310, the reporting committee chairman in the House of Representatives stated: "We still have an extension of the mechanic's lien even though wo don't have an extension of the time to file it. You can file it against the property or sub-division whereas heretofore you could only file it against the house that was being worked on, the building." And again, in response to the question, "Does he contend that it's the amendment that extends the applicability of the land or is it the bill itself . . . ," the reporting committee chairman, Representative Newman responded: "The bill, of course, sir." 17 H.R. Proc., Pt. 9, 1974 Sess., pp. 4138, 4140. Compare the comments of the reporting committee chairman in the Senate, Senator Rome, who stated: "The bill now as amended would provide that sub-dividers of land, persons who might also be doing site work on the land would have lien rights. The question is, under the existing court adjudications, whether or not that (sic) have or have not those rights. This clearly spells it out. They do . . . ." 17 S. Proc., Pt. 3, 1974 Sess., p. 1338. The judgment on this count fails to take into account the plaintiff's right to recover for the unpaid amount due and owing on the road work performed for the defendant. In the absence of a cross appeal by the plaintiff, we are unable to correct what appears to have been an oversight. The award of interest at the rate of 18 percent per annum from October 1, 1974, to the date of judgment brings the total award to an amount in excess of $150,000.

Peters, J. This case involves interpretation of the requirement of the wiretapping and electronic surveillance statute; General Statutes § 54-41c (8); that applications for interception orders must contain statements of all previous wiretap applications involving the same subject. Finding a failure to disclose a previously authorized wiretap, the trial court, Levister, J. and Belinkie, J., suppressed the state's evidence derived from the present wiretap, and rendered a judgment dismissing charges of professional gambling against the defendants Joseph D. Assuntino, Ronald Baia, Nicholas Y. Carrano, John Computaro, Edward Compo, Felix Compo, Albert DiGrazia, Anthony Longobardi and William Murphy, Jr. The state has brought this writ of error to obtain review of the dismissal of these charges. It is now clear that the state has a common-law right to bring a writ of error, nnabrogated by statutory limitations on the state's right to appeal from a judgment of the former Court of Common Pleas, the trial court below. State v. Assuntino, 173 Conn. 104, 111-12, 376 A.2d 1091 (1977); see State v. Falzone, 171 Conn. 417, 370 A.2d 988 (1976). The scope of our review on a writ of error is, however, narrower than would be our review on appeal, reaching only those matters appearing as of record. Reilly v. State, 119 Conn. 217, 223, 175 A. 582 (1934); State v. Muolo, 118 Conn. 373, 383, 172 A. 875 (1934); Brown v. Cray, 88 Conn. 141, 143, 89 A. 1123 (1914); Lippitt v. Bidwell, 87 Conn. 608, 610, 89 A. 347 (1914); Corbett v. Matz, 72 Conn. 610, 615, 45 A. 494 (1900); see Maltbie, Conn. App. Proc. § 239, 314. A writ of error may not assign as error, nor may we review on a writ of error, allegations concerning the conduct of the trial court that contradict the record; Corbett v. Matz, supra, 613; see Maltbie, Conn. App. Proc. § 239; or findings of fact as distinguished from conclusions of law. State v. Muolo, 118 Conn. 373, 383, 172 A. 875 (1934); Montville v. Alpha Mills Co., 86 Conn. 229, 232-33, 84 A. 933 (1912). The record in this case includes the trial court's memoranda of decision on the defendants' motion to suppress as well as the state's attorney's application for authority to intercept the wire communications of the defendant Felix Compo. The record reveals the following: In October, 1974, the state obtained an order authorizing a wiretap of two named individuals who are not defendants in the present action. Authorized interception of the telephone facilities of these third parties led the state to overhear conversations of the defendant Felix Compo. When the state subsequently applied in December, 1975, to a three-judge panel for authorization to intercept the wire communications of "Fred Como, Felix Compo, aka Felix Campagnuolo and other unknown persons," at a purported professional gambling operation in East Haven, the state did not report its earlier interception. The wiretapping and electronic surveillance authorized pursuant to the December, 1975 application produced evidence that led to the arrest and the charge by information of the present defendants. After the earlier interception came to light, the defendants successfully moved to suppress the evidence so procured. Judge Levister's order of suppression was, upon reargument, affirmed by Judge Belinkie. When the case was reached for trial and the state declared that it had no other evidence to present, the court, Belinkie, J., dismissed with prejudice the charges against the defendants and ordered them released. Pursuant to Practice Book, 1963, § 260 and General Statutes § 52-231, the state then moved for a special finding detailing the statutory and constitutional basis for the trial court's decision granting the motion to suppress. In response to the state's motion, the court specially found only that "there being no evidence presented by the state, the court dismissed the charges against all defendants with prejudice." The judgment of dismissal was a final judgment which is subject to review on the record by a writ of error. Brown v. Cray, 88 Conn. 141, 147, 89 A. 1123 (1914); Lippitt v. Bidwell, 87 Conn. 608, 610, 89 A. 347 (1914); Maltbie, Conn. App. Proc. § 237. That review necessarily encompasses examination of the trial court's decisions on motions to suppress, when dismissal is based on lack of evidence after suppression of the state's evidence before trial. See State v. Grant, 176 Conn. 17, 18, 404 A.2d 873 (1978); Brown v. Cray, supra, 144; Maltbie, Conn. App. Proc. § 239. Since the memoranda of decision were, at the request of the state, made part of the judgment file and hence of the record, the trial court's refusal to make a factual special finding is, in this case, irrelevant to our review and warrants no further comment. The record before us is adequate for present purposes. Two questions are before us for resolution: (1) Was the wiretap application defective for failure to disclose the prior interception of Compo's conversations? (2) Was the application defective for failure to contain the oath or affirmation of the state's attorney? The defendants also urge that we consider whether our action may amount to violation of their right against double jeopardy but, as will appear below, we need not reach that question. I The authority to wiretap that is contained in General Statutes § 54-41c (8) requires strict compliance with the requirement that each application shall include "a full and complete statement of the facts concerning all previous applications . . . for authorization to intercept, or for approval of interceptions of, wire communications involving any of the same persons, facilities or places specified in the application . . . ." Must a previous application be disclosed when it involved a different person, facility or place but resulted in the interception of a communication involving the subject of the present application? We agree with the state that such disclosure is not required. The language of § 54-41c (8) requires disclosure of information about prior applications to intercept, not about prior interceptions. By familiar rules of statutory construction, we derive legislative intention from the language of the statute that we must interpret, so long as that language is, in context, plain and unambiguous. State v. Grant, 176 Conn. 17, 20, 404 A.2d 873 (1978); Baston v. Ricci, 174 Conn. 522, 528, 391 A.2d 161 (1978); Royce v. Heneage, 170 Conn. 387, 391, 365 A.2d 1109 (1976); United Aircraft Corporation v. Fusari, 163 Conn. 401, 410-11, 311 A.2d 65 (1972); Hartford Hospital v. Hartford, 160 Conn. 370, 376, 279 A.2d 561 (1971); State v. Taylor, 153 Conn. 72, 82, 214 A.2d 362, cert. denied, 384 U.S. 921, 86 S. Ct. 1372, 16 L. Ed. 2d 442 (1965). There is no reason to assume that the legislature intended to use the words "application" and "interception" interchangeably, or that application should be construed to have anything other than its ordinary meaning of "preferring a request or petition to or before a person. The act of making a request for something." Black's Law Dictionary (5th Ed. 1979). The language of the statute affords no basis for the trial court's conclusion that "application" should be read to include "interception." Federal cases interpreting similar language in 18 U.S.C. § 2518 (1) (e) support our interpretation of our statute. They too have held that an application to intercept the conversations of a particular person need not reveal prior interceptions of that person's conversations authorized by an earlier application directed at a different target. United States v. Easterling, 554 F.2d 195, 196 (5th Cir. 1977); United States v. Sklaroff, 552 F.2d 1156, 1160 (5th Cir. 1977); United States v. Florea, 541 F.2d 568, 575-76 (6th Cir. 1976); United States v. Kilgore, 518 F.2d 496, 500 (5th Cir. 1975); United States v. Bellosi, 501 F.2d 833, 838-40 (D.C. Cir. 1974); United States v. Martorella, 455 F. Sup. 459, 460-61 (W.D. Pa. 1978); United States v. Chiarizio, 388 F. Sup. 858, 874 (D. Conn.), aff'd, 525 F.2d 289 (2d Cir. 1975); see also State v. Rowman, 352 A.2d 737, 739 (N.H. 1976). In State v. Grant, 176 Conn. 17, 25, 404 A.2d 873 (1978), and State v. DeMartin, 171 Conn. 524, 534-45, 370 A.2d 1038 (1976), we noted the close proximity of this federal legislation to our statute and the propriety of looking to federal interpretation for guidance in determining an appropriate state standard. Our construction of the statute is not only consistent with federal cases under the federal statute but is also in accord with the articulated standards for protection of privacy under the fourth amendment to the United States constitution and article first, § 7 of the Connecticut constitution. The failure to reveal third-party interceptions does not amount to the "blanket grant of permission to eavesdrop . . . without adequate judicial supervision or protective procedures" that was condemned in Berger v. New York, 388 U.S. 41, 60, 87 S. Ct. 1873, 18 L. Ed. 2d 1040 (1967). The application procedure still requires "detached scrutiny by a neutral magistrate" ; Katz v. United States, 389 U.S. 347, 356, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967); who is free to inquire into prior interceptions should such an inquiry appear appropriate. See also United States v. Giordano, 416 U.S. 505, 514-15, 94 S. Ct. 1820, 40 L. Ed. 2d 341 (1974); Gelbard v. United States, 408 U.S. 41, 46-47, 92 S. Ct. 2357, 33 L. Ed. 2d 179 (1972). The trial court was therefore in error in determining that the state's attorney's application for permission to intercept the wire communications of the defendant Felix Compo was deficient for failing to disclose prior interceptions of Compo's conversations with others. The state's application is, however, vulnerable on another ground. II Subsequent to the proceedings in the trial court, we decided, in State v. Grant, 176 Conn. 17, 23-24, 404 A.2d 873 (1978), that an application for a wiretap authorization must be made upon oath or affirmation of the state's attorney applying for the authorization. See General Statutes § 54-41b and 54-41c. Since State v. Grant held that the state does not satisfy this requirement merely by having the state's attorney execute an acknowledgement on the application form, we must inquire into the application before us to determine whether or not the rule of State v. Grant has been satisfied. If the application is improper, the statute itself, General Statutes § 54-41m, provides that unauthorized and hence unlawfully intercepted communications "or evidence derived therefrom" may be suppressed upon the motion of "[a]ny aggrieved person in any trial . . . before any court." "[T]he failure of the appropriate state's attorneys to submit their respective applications under oath goes to the heart of the 'reviewing or approval functions' established by the legislature"; State v. Grant, supra, 26; so that a motion to suppress can properly be granted. State v. Grant therefore furnishes an alternative basis for sustaining the judgment of the trial court in this case. Royce v. Freedom of Information Commission, 177 Conn. 584, 588, 418 A.2d 939 (1979); Favorite v. Miller, 176 Conn. 310, 317, 407 A.2d 974 (1978); Morris v. Costa, 174 Conn. 592, 597-98, 392 A.2d 468 (1978); O'Keefe v. Atlantic Refining Co., 132 Conn. 613, 619, 46 A.2d 343 (1946); Maltbie, Conn. App. Proc. § 237. Examination of the record compels us to agree with the defendants-in-error that State v. Grant requires affirmance of the dismissal of the charges against them. The wiretap application was appended to the state's objection to a motion by the defendants to dismiss the writ of error on the basis of State v. Grant. The application contains the signature of the state's attorney over the subscript "Affirming the Above Information." That language does not make the signature more effective than the acknowledgement that was found wanting in State v. Grant. An oath or affirmation is a solemn and formal declaration that the contents of a declaration, written or oral, are true, and it must be administered in accordance with the ceremony and procedures set forth in General Statutes § 1-22 to 1-25. "An oath . . . signifies the undertaking of an obligation 'to speak the truth at a time when . . . testimony may deeply affect the rights and the character of individuals.' Chapman v. Gillet, 2 Conn. 40, 44 [1816]. Consequently, the protection afforded by an application sworn to by the applicant state's attorney does provide greater protection than an application merely acknowledged, for the oath imposes upon the applicant greater responsibility. General Statutes § 54-41b and 54-41e mandate that this responsibility be undertaken with every application." State v. Grant, supra, 24. The absence of a formal oath or affirmation is clear from the face of the wiretap application, and hence reviewable on a writ of error. The defendants are not precluded from raising the insufficiency of the state's attorney's purported affirmation at this time, since the intervention of our decision in State v. Grant constitutes an exceptional circumstance under which this court will consider newly raised claims that the trial court did not have the opportunity to consider. See State v. Crawford, 172 Conn. 65, 68, 372 A.2d 154 (1976); State v. Malley, 167 Conn. 379, 387-88, 355 A.2d 292 (1974); State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). There is no error. In this opinion the other judges concurred. Section 54-41c provides: "information in application. Each application for an order authorizing the interception of a wire communication shall be made in writing upon oath or affirmation to a panel of judges. Each application shall include the following information: . (8) a full and complete statement of the facts concerning all previous applications known to the individual making the application, made to any panel of judges, for authorization to intercept, or for approval of interceptions of, wire communications involving any of the same persons, facilities or places specified in the application, and the action taken by the panel on each such application . . . ." The state moved to have the memoranda oí decision made part of the judgment file. See Maltbie, Conn. App. Proc. § 239. The application to wiretap Felix Compo became part of the record on appeal when the state appended the application to its objection to the defendants' motion to dismiss the writ of error on the basis of the intervening decision of this court in State v. Grant, 176 Conn. 17, 404 A.2d 873 (1978). 18 U.S.C. § 2518 provides, in relevant part: "(1) Each application for an order authorizing or approving the interception of a wire or oral communication shall be made in writing upon oath or affirmation to a judge of competent jurisdiction and shall state the applicant's authority to make such application. Each application shall include the following information: . (e) a full and complete statement of the facts concerning all previous applications known to the individual authorizing and making the application, made to any judge for authorization to intercept, or for approval of interceptions of, wire or oral communications involving any of the same persons, facilities or places specified in the application, and the action taken by the judge on each such application . . . ." Section 54-41b provides, iu relevant part, "application for order authorizing interception. The state's attorney for the judicial district in which the interception is to be conducted may make application to a panel of judges for an order . . . ." Under this statute, only the state's attorney is authorized to submit an application for a wiretap order. State v. DeMartin, 171 Conn. 524, 543, 370 A.2d 1038 (1976). Section 54-41c provides, in relevant part, "information in application. Each application for an order authorizing the interception of a wire communication shall be made in writing upon oath or affirmation to a panel of judges. . . ." That motion was denied without prejudice pending our review of the record as a whole.

Parskey, J. This case raises the question whether Public Acts 1979, No. 79-422, which permits a service fee agreement to be included in collective bargaining agreements, is applicable to teachers whose contracts of employment antedated the act. The trial court held that it was not applicable. We disagree. The plaintiffs, Gloria Dowaliby and Hartford Education Association, brought this action against Hartford Federation of Teachers and the board of education of the city of Hartford, originally seeking to enjoin the defendants from enforcing a provision in the collective bargaining agreement entered into by the defendants which authorized the board to deduct a representation fee from the plaintiff Dowaliby's salary. The complaint was later amended to seek a judgment declaring that this "agency shop" provision violates General Statutes § 10-153a and the National Labor Eelations Act, 29 U.S.C. § 186 (c) (4). While the action was pending the General Assembly enacted Public Acts 1979, No. 79-422, which became effective October 1, 1979. On July 25, 1979, the trial court rendered a judgment declaring that the agency shop clause was illegal when made on July 1, 1979, both under state and federal statutes, and could not be enforced against the plaintiffs and that the plaintiffs could not be required to contribute, directly or through withholding, a "service fee" as a condition of employment during the life of any employment contract entered into prior to October 1, 1979. The trial court concluded that the agency shop clause violates 29 U.S.C. §186 (c) (4), which concerns payments, loans and gifts made by an employer to a labor organization including payments so made as a result of deductions from employees' wages. We need not examine this claim in depth because states and political subdivisions thereof are expressly excluded from the definition of "employer" as that term is used in the Labor-Management Relations Act of 1947, 29 U.S.C. § 141-187. 29 U.S.C. § 142 (3), § 152 (2). See also Bus Employees Division 998 v. Wisconsin Employment Relations Board, 340 U.S. 383, 398 n.25, 71 S. Ct. 359, 95 L. Ed. 364 (1951). General Statutes § 10-153a, before its amendment by Public Acts 1979, No. 79-422, protected members of the teaching profession who refused to join or assist any organization for professional or economic improvement. If we assume that this statute operated to bar the enforcement of agency shop clauses in collective bargaining agreements prior to October 1,1979, the question arises whether any such clauses became enforceable upon the effective date of the amendment. If the agency shop clause was illegal in the sense that it was contrary to a deeply rooted public policy, it would be void at its inception. Hanford v. Connecticut Fair Assn., 92 Conn. 621, 623, 103 A. 838 (1918). The clause, however, does not offend the public policy of this state. Agency shop clauses have long been a part of collective bargaining in this country. See Hopfl, "The Agency Shop Question," 49 Cornell L. Q. 478 (1964). Although the Connecticut Teacher Negotiation Act; § 10-153a through 153j; does not mirror federal law, resort to the policies underlying federal law is often useful in discerning the contours of our own labor policy. See West Hartford Education Assn. v. DeCourcy, 162 Conn. 566, 578-79, 295 A.2d 526 (1972). The National Labor Relations Act, particularly 29 U.S.C. § 158 (a) (3), has been construed as allowing agency shop clauses. NLRB v. General Motors Corporation, 373 U.S. 734, 741, 83 S. Ct. 1453, 10 L. Ed. 2d 670 (1963). In Connecticut, union shop clauses, which are more restrictive than the agency shop provisions, are expressly provided for in the private sector by General Statutes § 31-105 (5). In light of the foregoing we conclude that, while the clause may have been prohibited by state statute when agreed to, it did not contravene public policy and, therefore, was not a nullity. The clause was, at most, subject to the defense that § 10-153a barred its enforcement. After October 1, 1979, that defense was no longer available because Public Acts 1979, No. 79-422 expressly provided that such clauses were enforceable in teacher contracts. Without that defense the contract is enforceable as the parties undeniably intended it to be, namely, with an agency shop clause. The plaintiff questions whether consistent with the impairment of the obligation of contract clause of the United States constitution, article I, section 10, a state statute may validate an invalid provision of a contract. The short answer to this question is, it was ever thus. Satterlee v. Matthewson, 27 U.S. (2 Pet.) 380, 413 (1829); Welch v. Wadsworth, 30 Conn. 149, 155 (1861). The rights and obligations under the contract remain unchanged by the 1979 public act. The only change wrought by the public act concerns the availability of the defense that the clause violated § 10-153a. Upon the effective date of this statute, October 1, 1979, the agency clause provision became fully enforceable. See Beckman v. St. Louis County Board of Commissioners, 308 Minn. 129, 241 N.W.2d 302 (1976). There is error, the judgment is set aside and the case is remanded with direction to render judgment consistent with this opinion. In this opinion the other judges concurred. "article xiv union RIGHTS (B) : Effective July 1, 1979, all employees shall, as a condition of continued employment, join the Union or pay to the Union a representation fee equal to the amount paid as dues by other employees who are members of the Union except as modified in this Article. The Board shall deduct the amount certified by the Union as the annual dues or representation fee from the pay of each employee in equal semi-monthly installments. All such deductions shall be remitted to the Union by the fifteenth (15th) day of the month for which the deduction is made. Employees on leaves of absence must mate suitable arrangements in advance of such leave to pay the representation fee or Union dues directly to the Union. Payments for new employees shall commence within thirty (30) days following the effective date of employment. Union shall hold the Board and City harmless against any and all claims, demands, liabilities, lawsuits, counsel fees or other costs which may arise out of, or be by reason of, actions taken against the Board as a result of administration or the provisions of this section." "[General Statutes] Sec. 10-153a. eights concerning professional organization and negotiations. Members of the teaching profession shall have and shall be protected in the exercise of the right to form, join or assist, or refuse to form, join or assist, any organization for professional or economic improvement and to negotiate in good faith through representatives of their own choosing with respect to salaries and other conditions of employment free from interference, restraint, coercion or discriminatory practices by any employing board of education or administrative agents or representatives thereof in derogation of the rights guaranteed by this section and sections 10-153b to 10-153f, inclusive." "[Public Acts 1979, No. 79-422] an aot concerning agency PEES PAID BY NONMEMBERS TO ORGANIZATIONS REPRESENTING TEACHERS. Section 10-153a of the general statutes is repealed and the following is substituted in lieu thereof: . (b) Nothing in this section or in any other section of the general statutes shall preclude a local or regional board of education from making an agreement with an exclusive bargaining representative to require as a condition of employment that all employees in a bargaining unit pay to the exclusive bargaining representative of such employees an annual service fee, not greater than the amount of dues uniformly required of members of the exclusive bargaining representative organization which represents the costs of collective bargaining, contract administration and grievance adjustment; and that such service fee be collected by means of a payroll deduction from each employee in the bargaining unit."

Per Curiam. This appeal arises from a judgment dissolving the marriage of the parties and orders relating to the assignment of property and attorney's fees. The plaintiff and defendant were married on January 11, 1974. There were no children horn of the marriage. This action was brought September 1, 1977, and judgment was rendered on November 28, 1978. The memorandum of decision states that no alimony was warranted by the evidence and that the court's sole consideration was to determine a fair and equitable division of the real and personal property involved. The court endeavored to return to each party what he or she had contributed to the marriage. The memorandum of decision indicates that shortly after the trial began it became apparent to the court that a considerable amount of property was involved and that the parties' claims as to what contributions they had made to the purchase, improvement and upkeep of the $300,000 residence were in complete conflict. The parties' elaborately documented claims of contributions made to joint bank accounts, purchase and maintenance of automobiles and boats, payment of household and other expenses were also in total conflict. The court invoked Practice Book, 1963, § 365 (1978, § 445) to appoint a professional appraiser. Later, upon reconsideration, the parties through their counsel agreed to waive a professional appraisal and to submit documentary evidence of their claims from which the court could determine what each party was entitled to retain without further hearing or testimony. Rather than determine what each party had contributed to every category of property in dispute, that is, real property, personal property, bank accounts, and other assets, the court considered their property as a whole. To the plaintiff wife the court awarded the equity in the home, the automobile registered in her name and designated personal property held in escrow. The court denied the plaintiff's claims to the parties' $287,000 refund on their 1975 federal tax return, to one-half of a $7495.74 tax refund cheek held in escrow, to all contributions to various joint accounts totaling $365,896.64, to the proceeds on the sale of their yacht alleged to have been sold by the plaintiff for $100,000, to shares of stock, and to the automobile registered in the defendant's name. The judgment also provided that in the absence of an agreement to the contrary those items brought to the marriage by the parties should be returned to the party who contributed them, and those items which were gifts to the parties upon their marriage or subsequent thereto or purchased through joint accounts during their marriage should be sold and the proceeds divided equally between them. In addition, the court awarded counsel fees to the plaintiff. The defendant husband has appealed from the judgment. The defendant claims that the distribution of the marital property was legally and logically inconsistent with the facts contained in the documents submitted to support the claims of the parties. As illustrative of these claims, the defendant contends that despite the parties' agreement that the defendant had made substantial contributions to the parties' equity in the residence, sole ownership was awarded to the plaintiff, and that an automobile purchased by the defendant was awarded to the plaintiff. Prom the tone of the brief, it appears that the defendant believes that the court was under a duty to divide each category of assets in dispute in a manner consistent with the parties' memoranda and that the court erred by considering the relative values of all the disputed property and making an award by type. In Skinner v. Skinner, 154 Conn. 107, 111, 221 A.2d 848 (1966), this court held that the trial court was not in error in considering the amounts contributed by each spouse during marriage to jointly held property, determining from those amounts the "net equity" of each party and basing its award on those findings. This method, however, was not deemed to be exclusive but only permissible. In this case, the court did not err in deciding not to follow the method used in Skinner v. Skinner, supra. Varley v. Varley, 170 Conn. 455, 462, 365 A.2d 1212 (1976). As this court has repeated time and again, trial courts have a distinct advantage over an appellate court in dealing with the award of property in domestic relations cases. Ayers v. Ayers, 172 Conn. 316, 321, 374 A.2d 233 (1977); LaBella v. LaBella, 134 Conn. 312, 318, 57 A.2d 627 (1948). Trial courts have broad discretion in determining questions relating to financial matters which are proper in each case, so long as they are acting in accordance with the standards and guidelines provided in the General Statutes. Ayers v. Ayers, supra, 321-22. "In determining whether the trial court abused its discretion The ultimate issue is whether the court could reasonably conclude as it did.' " Grinold v. Grinold, 172 Conn. 192, 194, 374 A.2d 172 (1976). After examining the parties' exhaustive claims of possession, down to such items as place mats, garden tools and a "wooden bidet," it cannot be concluded that the court abused its discretion by failing to assign some property in every category to each party in lieu of making its award as it did or that the court abused its discretion in the method used or amounts designated in its award. The defendant claims error in the award of attorney's fees to the plaintiff. In an effort to show that the plaintiff is not entitled to attorney's fees, the defendant in his brief states the estimated net worth of the parties. There is, however, nothing in the record to substantiate these statements and these estimates cannot be considered. The record does show the claim of the parties to a $300,000 dwelling, a yacht, two automobiles, and contributions to the marriage totaling several hundred thousand dollars. Although the net worth of each party has not been determined, the record shows that each is of considerable independent means. Prior to 1973, this state adhered to the common-law rule that a wife was not entitled to counsel fees if she had sufficient funds to pay the expenses of litigation. Krasnow v. Krasnow, 140 Conn. 254, 261-63, 99 A.2d 104 (1953); Steinmann v. Steinmann, 121 Conn. 498, 505, 186 A. 501 (1936). Counsel fees have never been considered a form of property settlement. See In re Birdseye, 548 F.2d 321, 324-25 (10th Cir. 1977). In 1973, the legislature enacted General Statutes § 46b-62 which provides that reasonable attorney's fees be awarded "in accordance with [the parties'] respective financial abilities and the criteria set forth in section 46b-82." This latter statute lists the criteria to be considered by the court in awarding alimony. The trial court stated that its only concern was the assignment of property in accordance with what each party had contributed to the marriage. Nowhere in the memorandum of decision or in the record does it appear that the court considered the criteria listed in General Statutes $ 46b-82 in awarding attorney's fees. If we consider the financial position of the plaintiff as required by § 46b-82, there was no basis for the awarding of attorney's fees. No alimony was awarded to the plaintiff. It is true, as argued by the plaintiff, that although the statutory criteria for awarding alimony and attorney's fees are the same, the two awards are provided independently of each other in separate sections of the General Statutes. In this instance, however, not only did the court fail to award alimony, but it also stated, "no alimony is warranted by the evidence." Where it is clear that the court considered the evidence and found no basis for alimony, and where the same evidence must be considered for the award of attorney's fees, if there is no indication in the memorandum of decision or the record of any evidence which relates to one and not the other, there is error in the award of attorney's fees. The attorney's fee awarded was $20,000, $7495.74 to be paid with funds already held by the plaintiff's attorney in escrow. It is clear from this order and the denial of the plaintiff's claim to this sum that the court considered the $7495.74 as money which belonged to the defendant. Hence, that amount held by the plaintiff's attorney must be paid to the defendant. There is error in part, the judgment is set aside and the case remanded with direction to render judgment in accordance with this opinion. General Statutes § 46b-62, formerly § 46-59, was amended by Public Acts 1978, No. 78-230, § 44, 54, but the amendments are not material to the resolution of this case.

Borden, J. The defendant appeals from the judgment of conviction, after a jury trial, of burglary in the third degree in violation of General Statutes § SSa-lOS, and of larceny in the third degree in violation of General Statutes § 53a-124 (a) (l), and from the judgment of conviction, after a court trial, of being a persistent serious felony offender in violation of General Statutes § 53a-40 (b). The defendant claims that the trial court erred as follows: (1) he was denied his right to a speedy trial; (2) the court's instructions to the jury on accessory liability were defective; (3) the court's instruction to the jury on the larceny offense impermissibly allowed the jury to convict the defendant of an offense with which he was not charged; (4) there was insufficient evidence to convict the defendant of larceny in the third degree as charged in the information; (5) in admitting evidence of uncharged misconduct of the defendant; (6) in denying the defendant's motion to dismiss the charge of being a persistent serious felony offender; and (7) the defendant did not have fair notice that he faced enhancement of his sentence on both felony counts, based on the single persistent serious felony offender charge. We find no error. The jury could reasonably have found the following facts: On the morning of October 5, 1983, Sharon Somers left her Danbury home, returning shortly after noon. Upon her return, she discovered that her house had been forcibly entered and ransacked. She immediately alerted the police. Several items of jewelry, including a gold and black onyx earring and a man's silver pocket watch, and a video cassette recorder, were missing from her house. The missing items were valued at more than $1000. Somers' house is located just behind the parking lot of "Jimmy's Market," a convenience store. Around noon on October 5, Steven Costigan, the store manager, was in the parking lot. He observed a man running through the parking lot. Costigan was able to give a fairly detailed description of the man and had noticed that the man was carrying a brown and silver box-like item approximately twenty-four inches by twenty-four inches by eight inches. The man ran to an automobile which was parked, with the.motor running, on the road next to the parking lot, about fifty feet from Somers' house. Costigan testified that there were two other people in the car, a male sitting in the driver's seat and an unidentifiable figure in the rear seat. Costigan observed the car's license number as it sped away. Thereafter, a police officer arrived, inspected the victim's home, and took her account of what happened. The information given by the victim and Costigan was broadcast over the police radio. Officer Ronald Inconstanti awaited the return of the automobile at the address of the car's registered owner. At approximately 1:25 p.m., the defendant drove the car into the driveway at that address. Inconstanti stopped the car. There were four persons in the car: the defendant, Robert Hyde, Warren Booth, and Deborah Schlemmer. Hyde, the front seat passenger, had Somers' silver pocket watch in his left shirt pocket, her black onyx earring was in his cigarette pack. Her video cassette recorder was in the trunk of the car. Costigan was brought to the scene of the arrest, where he identified the car driven by the defendant as the one he had seen parked next to his store earlier that day. He also identified Hyde as the man he had seen running to the car carrying a box-like object. He was not able to identify anyone else. I The facts relevant to the defendant's speedy trial claim are as follows. On October 5, 1983, the defendant was arrested in connection with the charges for which he was convicted. At the time of his arrest, the defendant was on parole from a previous, unrelated indeterminate sentence. On the day of his arrest, the Connecticut department of correction, division of parole, filed a "parole sticker" against the defendant, pursuant to General Statutes § 54-127 and 54-128, and ordered him remanded to the custody and control of the Bridgeport correctional center. The defendant remained incarcerated in that facility throughout the pendency of the proceedings in the trial court in this case. On October 18, 1983, after entering a plea of not guilty, the defendant requested a speedy trial. On February 29,1984, allegedly in compliance with Gen eral Statutes § 54-82c (a), the defendant's attorney sent a letter to the department of correction requesting that certain information be prepared and forwarded to the appropriate persons pursuant to that statute. The agent in charge of such matters refused to provide the information as requested because the defendant was not "in sentenced status." On March 2, 1984, the defendant again filed a motion for a speedy trial. On March 22,1984, the state informed the trial court that it was not ready to proceed to trial because the victims were out of state on vacation, and were due back in Connecticut on April 14. In response to this development, the defendant made an oral motion to dismiss the charges on speedy trial grounds. During the hearing on the motion, counsel for the defendant indicated to the court the difficulty he had had in locating witnesses and the increased risk posed by the passage of additional time for securing the attendance of a particular witness at a trial which would commence in the indefinite future. The motion was denied by the court, Moraghan, J., with the statement that if the state was not ready to proceed on April 24, the case would be "dismissed and dismissed summarily." The defendant's case did not come to trial on April 24, 1984, because of a lack of judicial personnel due to an ongoing criminal trial. On May 11,1984, the defendant again filed a motion for speedy trial. After hearing argument on the motion on May 25,1984, the court, Maiocco, J., ordered that the state's case against the defendant would follow the trial of a defendant named "Skidmore." After learning that there would not be a jury called during the summer months, on July 12, 1984, the defendant again filed a motion to dismiss for lack of a speedy trial. On July 20, 1984, the court, Stodolink, J., denied the motion. On September 12,1984, the case against the defendant was called for trial. Prior to the commencement of trial, the defendant again made a motion to dismiss for lack of a speedy trial. In support of that motion, counsel for the defendant apprised the court of the difficulties he had in locating a key witness, Deborah Schlemmer, and serving her with a subpoena. It is apparent from the record that Schlemmer is the same witness to whom the defendant's counsel referred in his statement to the court on March 22,1984. See foot note 4, supra. Further, in support of his motion, the defendant called a former boyfriend of the missing witness, who testified that he had last seen her approximately two weeks before, and that she had been living at a particular Danbury address in the past but that he did not know where she was then living. The court, Geen, J., denied the defendant's motion to dismiss. Thereafter, on September 12, 1984, voir dire examination of jurors began, and on September 14,1984, the jury impaneled to decide the case against the defendant was sworn in, and testimony from the state's first witness was presented. The defendant's claim that he was denied his right to a speedy trial takes two forms. First, he argues that the delay in trying him violated General Statutes § 54-82c and 54-82d. Second, he contends that the delay in trying him violated his right to a speedy trial under the federal and state constitutions. Since "[constitutional issues are not considered unless absolutely necessary to the decision of the case"; Edelson v. Zoning Commission, 2 Conn. App. 595, 600, 481 A.2d 421 (1984); we first consider the defendant's statutory argument in support of his motions to dismiss on speedy trial grounds. A The defendant contends that he was entitled to the protection against delayed trials afforded to inmates in Connecticut correctional facilities by General Statutes § 54-82c and 54-82d. Those provisions establish procedures by which a person who "has entered upon a term of imprisonment" within a state correctional facility may request a speedy disposition of outstanding Connecticut criminal charges. If a criminal case is not brought to trial within the statutory period of 120 days from the delivery of the prisoner's request, accompanied by his custodian's certificate, to the appropriate prosecuting official and court, the case must be dismissed. State v. Toste, 198 Conn. 573, 585-87, 504 A.2d 1036 (1986); State v. McCarthy, 197 Conn. 166, 169-70, 496 A.2d 190 (1985). The defendant, who was incarcerated prior to trial due to his inability to make bond, contends that because a "parole sticker" was also lodged against him, he had at that point "entered upon a term of imprisonment" within the meaning of § 54-82c, entitling him to the dismissal of the charges pursuant to § 54-82d. Because we conclude, however, that a parolee who is confined while awaiting a parole revocation hearing has not entered upon a term of imprisonment within the meaning of General Statutes § 54-82c, the defendant's statutory argument must fail. General Statutes § 54-82c is patterned after a similar provision, codified at General Statutes § 54-186 and known as the Agreement on Detainers, which applies to prisoners who are incarcerated in one jurisdiction and face charges in another. A primary purpose behind both statutes is to alleviate problems posed by outstanding detainers on efforts at prisoner rehabilitation. At committee hearings on the bill which became General Statutes § 54-82c, Representative Marjorie D. Farmer noted that "[a]ny program of rehabilitation which is undertaken in a penal institution is ineffective if a man has time hanging over his head." Conn. Joint Standing Committee Hearings, General Law, Pt. 1, 1957 Sess., p. 229. Similarly, proponents of the Interstate Agreement noted that the uncertainty and anxiety accompanying outstanding charges often inhibits prisoner response to training programs and thwarts efforts at rehabilitation. See United States v. Mauro, 436 U.S. 340, 359, 98 S. Ct. 1834, 56 L. Ed. 2d 329 (1978). See also Conn. Joint Standing Committee Hearings, Federal and Intergovernmental Relations, 1957 Sess., pp. 37-42. General Statutes § 54-82c, like § 54-186, then, provides a mechanism by which an inmate can remove the uncertainty of pending charges and can compel a speedy resolution of those charges. At the time the defendant attempted to invoke the provisions of General Statutes § 54-82c, he was being held, at least in part, as a result of an alleged parole violation. See General Statutes § 54-127. Although the record is not clear on this point, it appears that no hearing had yet been held to determine whether in fact the defendant violated the terms and conditions of his parole and whether his parole should be revoked as a result. This would be in accord with procedures used by the board of parole, which provide that revocation hearings "shall be held within approximately sixty days of . . . the date of sentence for a new criminal offense." Connecticut Board of Parole, Statement of Organization and Procedures (6th Ed. 1979), 17. With regard to both the substantive charges pending against the defendant and his parole status, therefore, the defendant was in an-essentially pretrial posture. Because pretrial detainees possess no immediate interest in institutional rehabilitation programs, various courts, including our own Supreme Court, have recognized that such persons are not within the class of persons protected by detainer statutes. State v. Toste, supra, 586, citing United States v. Reed, 620 F.2d 709, 711 (9th Cir.), cert. denied, 449 U.S. 880, 101 S. Ct. 229, 66 L. Ed. 2d 104 (1980), and United States v. Milhollan, 599 F.2d 518, 528 (3d Cir.), cert. denied, 444 U.S. 909, 100 S. Ct. 221, 62 L. Ed. 2d 144 (1979). The federal Court of Appeals for the Third Circuit has noted that, even though the basis for a parolee's detention is the underlying sentence from which he has been paroled, until such time that the parole violator is recommitted after a hearing and his incarceration thereby made certain and fixed as to duration, no term of imprisonment can be said to have commenced or resumed within the terms of the federal counterpart to General Statutes § 54-186. United States v. Dobson, 585 F.2d 55, 59 (3d Cir.), cert. denied, 439 U.S. 899, 99 S. Ct. 264, 58 L. Ed. 2d 247 (1978). We find Dobson to be persuasive authority. Like the parolee in Dobson, the defendant in this case was not in the position of those inmates whom General Statutes § 54-82c was designed to protect. He had not entered upon a term of imprisonment with definite parameters. We therefore conclude that the defendant, who was incarcerated in a state correctional institution as a result of a "parole sticker" lodged against him, was not entitled to the protections afforded by General Statutes § 54-82c. B We turn now to the defendant's constitutional speedy trial claim. The sixth amendment guaranty of a speedy trial is a fundamental right applicable to the states through the fourteenth amendment to the United States constitution. Klopfer v. North Carolina, 386 U.S. 213, 223, 87 S. Ct. 988, 18 L. Ed. 2d 1 (1967). "This right is also guaranteed by the Connecticut constitution, article first, § 8." State v. Johnson, 190 Conn. 541, 544, 461 A.2d 981 (1983). "The Supreme Court of the United States and [the Connecticut Supreme Court] have identified four factors which form the matrix of the defendant's constitutional right to speedy adjudication: '[l]ength of delay, the reasons 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). A balanc ing test is to be applied on a case by case basis. None of the factors standing alone demands a set disposition; rather it is the total mix which determines whether the defendant's right was violated. State v. Nims, supra, 591-92." State v. Johnson, supra, 544-45. Our consideration of the four Barker factors leads us to conclude that the defendant has failed to establish that he was denied his constitutional right to a speedy trial. "The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance." Barker v. Wingo, supra, 530. The protection afforded the defendant by the constitutional speedy trial guaranty was activated on October 5, 1983, when he was arrested. See Dillingham v. United States, 423 U.S. 64, 96 S. Ct. 303, 46 L. Ed. 2d 205 (1975). Voir dire examination of jurors began on September 12, 1984, and the defendant's trial commenced on September 14, 1984, when the jury was impaneled and sworn. The state concedes, as it must, that a delay of eleven months and nine days is sufficiently long to warrant further inquiry. See State v. Brown, 172 Conn. 531, 536, 375 A.2d 1024, cert. denied, 434 U.S. 847, 98 S. Ct. 153, 54 L. Ed. 2d 114 (1977) (nine months delay sufficient to trigger further inquiry). Application of the Barker balancing test next requires a consideration of the reasons for the delay. The delay in the present case can be divided into three segments, each of which had a different cause. The parties do not dispute the reasons for these periods of pretrial delay. The bulk of the first period of delay, from October 5, 1983, to March 22, 1984, can be attributed largely to the time required for normal pretrial procedures. The second period, from March 22 to April 24, 1984, was due to the unavailability of key state witnesses and holiday scheduling difficulties. The third period, from April 24 to the commencement of trial, appears to have been caused by calendar difficulties and a shortage of judicial personnel. "While docket congestion does not justify or excuse delay; State v. Davis, 192 Conn. 739, 742, 474 A.2d 776 (1984); it is considered a neutral reason and is 'weighed less heavily against the state than purposeful delaying tactics.' State v. Gasparro, 194 Conn. 96, 100, 480 A.2d 509 (1984), cert. denied, 474 U.S. 828, 106 S. Ct. 90, 88 L. Ed. 2d 74 (1985). This reason must nonetheless be considered 'since the ultimate responsibility for such circumstance must rest with the government rather than the defendant.' Barker v. Wingo, supra, 531." State v. Flowers, 198 Conn. 542, 550-51, 503 A.2d 1172 (1986). As to the third Barker factor, the record in this case clearly demonstrates that the defendant vigorously requested a speedy trial on a number of occasions. "Delay in the face of forceful assertion becomes less excusable for that very reason. We count the defendant's assertion of his right heavily against the state . . . ." State v. Flowers, supra, 548-49. The final Barker factor which we must consider is prejudice caused by the delay. Our Supreme Court has observed that "the linchpin of the speedy trial claim is a showing of prejudice." State v. Lloyd, 185 Conn. 199, 209, 440 A.2d 867 (1981). Prejudice maybe actual or presumed; a showing of actual prejudice may not be required at all where other factors weigh heavily against the state. State v. Flowers, supra, 551. In this case, the factors discussed above certainly weigh in the defendant's behalf, but not so strongly as to indicate a violation of his constitutional right to a speedy trial in the absence of a showing of actual prejudice. See id., 552 (finding that the analysis of the first three Barker factors in that case provided no showing of misconduct on the part of the state sufficient to warrant a presumption of prejudice); State v. L'Heureux, 166 Conn. 312, 348 A.2d 578 (1974). Prejudice, in the context of a speedy trial claim, "should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. The [United States Supreme Court] has identified three such interests: (i) to'prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired." Barker v. Wingo, supra, 532. Of these, the Supreme Court has pointed out, "the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system." Id. The defendant claims to have been prejudiced in a number of ways. He first claims that the eleven months of pretrial incarceration had a negative psychological impact on him and resulted in the "disruption of his work, isolation from his family, [and] increasing pressure to accept some form of plea bargain in spite of his consistent claim of innocence." In addition, the defendant claims that his defense was impaired by his inability to assist his counsel in attempting to locate a piece of physical evidence, and by the unavailability of a critical defense witness who allegedly "was lost as a direct result of the delay." As to the first type of prejudice asserted by the defendant, his showing of anxiety and frustration is not sufficiently grave in this case to rise to the level of a constitutional violation. 'While prejudice in the nature of that asserted here is unfortunately present in every case of pretrial delay, general claims of anxiety are thought insufficient to invoke what has been termed 'the unsatisfactorily severe remedy of dismissal.' . . ." (Citations omitted.) State v. Flowers, supra, 553. Similarly, the defendant's claim of prejudice to his ability to present a defense due to his inability to assist counsel in attempting to locate a piece of physical evidence must fail. At the March 22, 1984 hearing on his oral motion to dismiss, defense counsel stated: "[TJhere is at least one set of circumstances that we have been trying to track down concerning something that was disposed of in a certain place. [The defendant's] mere incarceration has made it almost impossible to find this place. If he was not incarcerated we might have found that particular piece of evidence that we are looking for." Without any information as to what this evidence may have been or how it might have assisted the defendant, no finding of prejudice can be made. "Conclusory, vague or oblique allegations [of prejudice] are discountenanced." State v. Johnson, supra, 546. The defendant's claim of prejudice to his ability to present a defense due to the unavailability of a key witness, however, presents a closer question. Recognizing, as it must, that "[i]f witnesses die or disappear during a delay, the prejudice is obvious"; Barker v. Wingo, supra, 532; the state argues that the defendant has failed to sustain his burden of establishing (1) that the testimony of the missing witness would have been material to the defense, (2) that the witness was unavailable due to the delay rather than some other factor of fortuity, and (3) that the witness was in fact unavailable, all of which are required to show prejudice to the ability to present a defense due to a missing witness. See State v. Flowers, supra, 558-60; State v. Johnson, supra, 546. The missing witness in this case was Deborah Schlemmer. On October 5, 1983, Schlemmer made a sworn statement before two members of the Danbury police department. That statement is included in the appellate record and reprinted in full in the footnote. Schlemmer's statement portrays the burglary as having been committed by Hyde alone, without the participation or knowledge of the other occupants of the car, including the defendant. If believed by the jury, Schlemmer's expected testimony might have absolved the defendant of criminal responsibility on the burglary charge. See General Statutes § 53a-103; 53a-8. Additionally, as to the larceny charge, Schlemmer's statement indicates that the defendant was only aware that Hyde had stolen the video cassette recorder, which was valued at approximately $800. If believed by the jury, Schlemmer's expected testimony could be reasonably expected to support only a finding of guilt as an accessory to a misdemeanor larceny. See General Statutes § 53a-125, 53a-119, 53a-8. Accordingly, since Schlemmer was a witness to the crime who could reasonably be expected to offer testimony which would have exonerated the defendant of the crimes with which he was charged, her testimony was certainly material to the defense. Next, the state contends that the defendant has failed to show that Schlemmer's alleged unavailability was due to the delay rather than some other fortuitous factor. The record in this case does not support such a con elusion. On March 22, 1984, the defendant was ready to proceed to trial but could not do so due to the unavailability of prosecution witnesses. At that time, the defendant moved to dismiss the charges, apprising the trial court that, although he had subpoenaed Schlemmer for appearance at trial on that date, he had had difficulty locating her and that further and indefinite continuances might result in the disappearance of this witness. By the time his trial commenced, the defendant's concerns, expressed to the court nearly six months before, seemed to have come to pass. This is not a case where it is unclear whether the missing witness would have been available as a witness even if the defendant had been tried earlier. Compare State v. Troynack, 174 Conn. 89, 94, 384 A.2d 326 (1977). It is clear that the defendant would have had this essential witness available to testify at the time the case was first called to trial. Therefore, the defendant has successfully shown that delay was a cause of the unavailability of this material witness. Lastly, the state argues that the defendant failed to establish that Schlemmer was in fact unavailable as a witness. State v. Flowers, supra, 558. The state correctly points out that proof of unavailability "requires some showing by the defendant that he has taken affirmative steps reasonably calculated to procure the witness for trial"; id.; but contends that "[t]he evidence and representations of counsel establish merely one unsuccessful attempt at serving Schlemmer with a subpoena and some confusion as to her exact address [which is] insufficient to establish her unavailability." We agree that the defendant failed to show that Schlemmer was in fact unavailable. This conclusion is fatal to the defendant's claim. The defendant provided the court with the following evidence and representations of counsel regarding his efforts to find Schlemmer. A defense investigator learned that Schlemmer had quit her job. The investigator could not locate the missing witness through her mother. On the morning on which the case was called to trial, the investigator went to Schlemmer's last known address to serve her with a subpoena, but no one came to the door. After the case had been called for trial, counsel for the defendant also questioned two witnesses in court in an effort to locate Schlemmer. Neither witness was in a particularly good position to know of Schlemmer's whereabouts. During the several days of trial, defense counsel also reported to the court that he was aware of a rumor that Schlemmer had been seen in nearby Brewster, New York, at three o'clock in the morning. No further efforts were made to locate the missing witness. The defendant did not have to prove Schlemmer's unavailability to a certainty. Flowers only requires "some showing by the defendant that he has taken affirmative steps reasonably calculated to procure the witness for trial." Id. In other words, a defendant who claims that the absence of a material witness has prejudiced his ability to put forth a defense must show that he has exercised due diligence in attempting to locate the witness. See 17 Am. Jur. 2d, Continuance § 32; 3 F. Wharton Criminal Procedure (12th Ed. Torcía 1975) § 428. Based on this record, we conclude that the defendant failed to exercise due diligence in his attempt to locate this key witness and secure her attendance at trial. The evidence shows that the defendant made only one attempt to subpoena Schlemmer at her last known address on the morning of the first day of trial. At a minimum, due diligence required more, particularly in the absence of any evidence that the missing witness was no longer living there. In fact, the testimony of Schlemmer's former boyfriend and a rumor which counsel brought to the court's attention during the trial indi cated that Schlemmer was still in the Danbury area within two weeks prior to the trial, and even during the trial. Nonetheless, the defendant made no further efforts to locate or subpoena Schlemmer during any of the six days of trial. Further, while the evidence shows that the defendant could not locate the witness through her mother, there is nothing to indicate that her mother knew of her daughter's whereabouts at any time relevant to this case. Most significantly, there is no indication that the defendant sought to locate Schlemmer through any of a number of obvious and accessible sources, such as her landlord, neighbors, former employer, former coworkers, or other friends. While information from those individuals might not have succeeded in ultimately locating Schlemmer, they would have permitted the trial court to conclude that affirmative steps reasonably calculated to procure the witness for trial had been undertaken by the defendant. In the absence of a showing that such a diligent search was made, however, the trial judge was correct in concluding that the defendant had not shown that the missing witness was in fact unavailable. Therefore, we conclude that the defendant has failed to show that the delay resulted in prejudice to his ability to put forth an effective defense. II The defendant next claims that the trial court erred in its instructions to the jury regarding liability as an accessory to the offense of burglary in the third degree. Specifically, the defendant contends that the challenged instructions failed to advise the jury adequately of the dual intent requirement of accessory liability under General Statutes § 53a-8, namely, the intent to aid the principal and the intent to commit the underlying offense. See State v. Harrison, 178 Conn. 689, 694, 425 A.2d 111 (1979). Because the defendant neither requested a particular charge on accessorial intent nor excepted to the charge as given, he seeks review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). We have recently clarified our formulation for Evans review. We ask the following questions when an Evans claim is made and must answer each in the affirmative before continuing to the succeeding question: (1) does the defendant raise an issue which, by its terms, implicates a fundamental constitutional right? (2) does a limited review of the record show that the defendant's claim is truly of constitutional proportions and not simply characterized as such by the defendant? (3) was there, in fact, based on the record, a deprivation of a constitutional right of a criminal defendant? and (4) did the deprivation deny the defendant a fair trial, thereby requiring that the conviction be set aside? State v. Huff, 10 Conn. App. 330, 333-34, 523 A.2d 906 (1987); State v. Thurman, 10 Conn. App. 302, 306-307, 523 A.2d 891 (1987). "The first two questions relate to whether a defendant's claim is reviewable, and the last two relate to the substance of the actual review." State v. Newton, 8 Conn. App. 528, 531, 523 A.2d 1261 (1986). The defendant, by claiming that the court's failure adequately to instruct the jury on the dual intent required to convict him as an accessory to a crime amounted to an omission of an instruction on an essential element of the crime charged, has satisfied the first requirement for Evans review. State v. Grant, 6 Conn. App. 24, 28-29, 502 A.2d 945 (1986). Our limited review of the record discloses, however, that the defendant's claim is not truly of constitutional proportions, but is simply characterized as such by him. The trial court read General Statutes § 53a-8 in full, and did not, in its further comments on the meaning of the statute and in its application of the statute to the facts of the case, negate the essential meaning of the statutory language. See State v. Giannotti, 7 Conn. App. 701, 706-707, 510 A.2d 451, cert. denied, 201 Conn. 804, 513 A.2d 700 (1986). The statute itself contains the dual intent language. Although the court could have explained the dual intent requirement more fully, we cannot say that its failure to do so amounts to a claim of constitutional proportions. State v. Greene, 11 Conn. App. 575, 582-83, 528 A.2d 855 (1987). Thus, the defendant has failed to satisfy the second requirement for full Evans review because his constitutional claim is not adequately supported by the record. State v. Huff, supra, 334. Ill The defendant's next two claims of error relate to his conviction on the larceny offense. The defendant claims (1) that the court's charge to the jury on larceny impermissibly allowed the jury to convict him of an offense with which he was not charged, and (2) that there was insufficient evidence to convict him of larceny in the third degree. A The defendant argues that the trial court unconstitutionally enlarged the offense with which he was charged, when it instructed the jury that it could convict him of larceny if it found that he committed larceny by taking, by obtaining, or by withholding. The governing statute; General Statutes § 53a-119; creates criminal liability under these three alternatives. The information by which the defendant was charged, however, only accused the defendant of violating the statute by a wrongful taking. The defendant failed to raise this claim at trial or take an exception to the trial court's charge. In fact, he filed a written request that the trial court charge the jury on each alternative form of larceny, along with a request to charge which included definitions of each alternative. The defendant contends, nevertheless, that this claim is reviewable on appeal under State v. Evans, supra, because he has been denied a fundamental constitutional right and a fair trial. Employing the refined Evans analysis set forth above, we conclude that, while the defendant has labeled his claim as constitutional, he has failed to satisfy the second requirement for Evans review, because his claim is not truly of constitutional proportions. Since the jury was instructed on three methods of committing the same crime, in the absence of a showing that "the court's charge caused him unfair surprise or prejudiced the preparation of his defense"; State v. Franko, 199 Conn. 481, 490, 508 A.2d 22 (1986); the defendant cannot establish a constitutional violation. "[T]he affirmative action of the defendant in submitting a written request that the trial court instruct the jury on the [obtaining or withholding] theories] of liability negates any claim that he was unfairly surprised by the inclusion of such an instruction in the court's charge. See State v. Franko, supra, 490-91." State v. Scognamiglio, 202 Conn. 18, 23, 519 A.2d 607 (1987); see also State v. Silveira, 198 Conn. 454, 467, 503 A.2d 599 (1986) (error induced by appellant cannot be a ground for reversal and will not be reviewed); State v. Vilhotti, 11 Conn. App. 709, 713, 529 A.2d 235 (1987) (same). B The defendant also argues that the larceny conviction is defective in that the evidence was insufficient to convict him of larceny by taking as charged in the information. Although the defendant has couched his claim in terms of evidentiary insufficiency, in reality his claim is one of instructional error. He argues that the evidence which supports a conviction as an acces sory to the taking does not support the theory on which the court submitted the case to the jury, namely, as a principal. The defendant correctly contends that there was no evidence to convict him of larceny by taking as a principal. He concedes that he could have been convicted of larceny as an accessory notwithstanding the fact that the information charged him only as a principal; State v. Fleming, 198 Conn. 255, 268 n.15, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986); but he argues that the court's charge submitted to the jury only the question of his guilt of larceny as a principal. In support of this argument the defendant points out that, at the conclusion of the court's charge, the state took an exception on the ground that the court had failed to instruct the jury on accessory liability as it related to the larceny charge. The defendant also points out that the court in response to his motion for articulation, concluded that "[t]here was sufficient evidence to submit to the jury the question of the defendant's guilt of the offense [of larceny in the third degree] as a principal," without any mention of his liability as an accessory. Thus, the defendant argues, he could not be convicted as an accessory to the taking. We disagree, because we conclude that the court did submit the case to the jury on a theory of accessorial liability to the taking. There is no dispute that the evidence in this case was sufficient to convict the defendant of larceny as an accessory to the taking. Although the charge as given is less than a model of clarity in this respect, we conclude that, fairly read, it adequately instructed the jury on the concept of accessory liability in relation to the larceny charge to support the conviction. Thus, the defendant was properly convicted, as an accessory, of larceny by taking, and his claim of evidentiary insufficiency as to larceny must fail. A charge to the jury must be reviewed as a whole and considered from the standpoint of its probable effect upon the jurors in guiding them to a proper verdict in the case. State v. McKnight, 191 Conn. 564, 582, 469 A.2d 397 (1983); State v. Taxiltaridis, 2 Conn. App. 617, 620, 481 A.2d 98 (1984). For this reason, we are not bound by the views of the court or counsel in resolving this issue. In this case, the court preceded its instruction on accessory liability, by stating: "Now, as to Robert Foshay, the same principle of law as to Burglary in the Third Degree applies to him, but I shall speak to you about another legal principle which applies to this case and that is this: Both defendants in this case are charged with Burglary in the Third Degree and Larceny in the Third Degree." (Emphasis added.) Although the remainder of the court's charge was structured so that the accessory liability concept was specifically applied to the evidence in the case only in the context of the burglary offense and prior to any instruction on the elements of the larceny offense, it is likely from the charge as given that the jurors understood accessory liability to apply to both counts. This is so because their attention was drawn to both counts when the concept was explained, and because the evidence in the case indisputably pointed to the defendant's guilt on both intimately related charges only as an accessory. Although it would have been preferable to have linked the accessory instruction more specifically to the instruction on the larceny offense, review ing the instructions as a whole and considering them from the standpoint of their probable effect upon the jury in guiding them to a correct verdict, we cannot say that the jury was without adequate legal instruction on the applicability of accessory liability, as contained in General Statutes § 53a-8, to the larceny offense of which the defendant was convicted. IV The defendant's next claim of error is that the court erred by admitting into evidence irrelevant and prejudicial evidence of uncharged misconduct. Specifically, he challenges the admission into evidence of the testimony of Inconstanti that he was in possession of two hypodermic needles at the time of his arrest. The state concedes, and we agree, that the court erred in allowing this testimony. See generally State v. Johnson, 188 Conn. 515, 523, 450 A.2d 361 (1982). We conclude,, however, that the error was harmless. Where, as here, the error involved the admission of extraneous misconduct evidence, the defendant bears the burden of proving harmful error. State v. Silva, 201 Conn. 244, 250, 513 A.2d 1202 (1986). "The question is whether the trial court's error was so prejudicial as to deprive the defendant of a fair trial, or, stated another way, was the court's ruling, though erroneous, likely to affect the result? State v. Gonzales, 196 Conn. 115, 119, 491 A.2d 1067 (1985)." State v. Brown, 199 Conn. 14, 25, 505 A.2d 690 (1986). We conclude that the defendant has failed to meet his burden of proving the harmfulness of the erroneously admitted evidence. The defendant claims that the challenged testimony permitted the jury to speculate that the defendant was a user of illicit drugs and thereby may have viewed him as more likely to commit these property crimes to finance his drug use. The jury could have reached this conclusion, however, as much from other, unchallenged evidence as from Inconstantes testimony. Officer Nelson Carvalho testified without objection that after he saw the defendant tuck something under the seat of the automobile, he reached under the seat and found an eyeglass case containing two syringes. " 'An erroneous ruling should not be considered reversible error if the evidence admitted thereby has already properly entered the case.' " State v. Randolph, 190 Conn. 576, 589-90, 462 A.2d 1011 (1983), quoting State v. Jeustiniano, 172 Conn. 275, 283, 374 A.2d 209 (1977). Additionally, on the basis of a review of the entire record, we find that it was unlikely that the evidence of the defendant's possession of drug paraphernalia in this case contributed to the verdict. V The defendant's final claims of error relate to the conviction of being a persistent serious felony offender pursuant to General Statutes § 53a-40 (b) and 53a-40 (g). The defendant claims that the trial court erred in deny ing his motion to dismiss this charge, and that the part of the information accusing him of being a persistent serious felony offender did not give him fair notice that he faced enhancement of his sentence on both of the underlying felony counts of which he was convicted in this case. The facts relevant to these claims are as follows. The defendant was originally charged in a two-part information, the first part of which was a short form document, and the second part of which was in a long form format. In the short form document, the defendant was charged with third degree burglary, third degree larceny, illegal possession of narcotics, and possession of drug paraphernalia. The long form document accused the defendant of being a persistent serious felony offender pursuant to General Statutes § 53a-40 (b). The defendant filed a motion for a bill of particulars. With the defendant's consent, the state complied with the order to provide a bill of particulars by filing a long form information detailing the burglary and larceny counts. The drug related offenses contained in the original short form information were not included in the long form information. No new long form information was provided with respect to the persistent serious felony offender charge. Subsequently, the state filed an amended long form information containing the two substantive counts. A Prior to trial on the persistent serious offender charge, the defendant moved to dismiss that charge, arguing that the court lacked jurisdiction over this charge because it had not been included in the amended information, and that such a charge under § 53a-40 cannot be made in a separate information. The trial court denied the motion. The defendant correctly points out that "[a] person cannot be charged as a persistent offender under § 53a-40 in a separate information or indictment. If the allegation of prior offenses is not included in an information or indictment charging a specific crime, it is ineffective." State v. Lewis, 176 Conn. 270, 272-73, 407 A.2d 955 (1978). The defendant incorrectly asserts, however, that the original long form information charging him under § 53a-40 somehow disappeared when the amended information was filed following his motion for a bill of particulars. Since an information which alleges both a substantive charge and a recidivist charge must be in two separate parts; Practice Book § 619; and since the charge under § 53a-40 was already in long form in this case, it elevates form over substance to require the state to supply the defendant with another copy of the § 53a-40 portion of the information when it is clear that it was amending only the first part of the information as to its particulars. "The purpose of the rule requiring that the substantive and persistent felony offender violations be contained in the same indictment is to give the defendant adequate notice of the charges against him so that he may properly prepare his defense." State v. Secore, 194 Conn. 692, 701, 485 A.2d 1280 (1984). Here, the record amply demonstrates that the defendant had notice of the recidivist charge and was not prejudiced or unfairly surprised when the second part of the information came to trial. Indeed, in the course of the defendant's argument on one of his speedy trial motions, after the state's amended information was filed, the defendant made clear that he still considered himself subject to the persistent serious offender charge. In the absence of a showing of prejudice or unfair surprise, we conclude that the trial court did not err in denying the defendant's motion to dismiss the persistent serious felony offender charge. B The defendant also argues that the trial court, after finding him to be a persistent serious felony offender as charged in the second part of the information, erred in enhancing his sentence on both substantive offenses pursuant to General Statutes § 53a-40(g), because the information contained only a single allegation that the defendant was a persistent serious felony offender. The defendant argues that the single count of being a persistent serious felony offender deprived him of adequate notice that the state sought an enhanced sentence on both the burglary and the larceny offenses. We disagree. There is nothing in the record to indicate that the defendant was surprised by the ultimate enhancement of the sentences on both underlying offenses. A single persistent serious felony offender charge included in an information accusing a person of two substantive counts, to which the same recidivist provision applies, both logically and legally indicates that the state intends to seek an enhanced sentence on any conviction arising out of the first part of the information. Consequently, the defendant's claim that he was denied his constitutional right to notice of the charges against him based on the single count persistent offender allegation is without merit. Cf. State v. Scognamiglio, supra, 21-25. There is no error. In this opinion the other judges concurred. General Statutes § 53a-103 provides in pertinent part: "A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein." General Statutes § 53a-124 provides in pertinent part: "(a) A person is guilty of larceny in the third degree when he commits larceny as defined in section 53a-119 and: (1) The value of the property or service exceeds one thousand dollars . . . . " "[General Statutes] Sec. 54-127. rearrest. The request of said commissioner [of correction], or any officer of the department of correction so designated by the commissioner, or said board of parole or its chairman shall be sufficient warrant to authorize any officer of the department of correction, or any officer authorized by law to serve criminal process within this state, to return any convict or inmate on parole into actual custody; and any such officer, police officer, constable or sheriff shall arrest and hold any parolee or inmate when so requested, without any written warrant, and, for the performance of such duty, the officer performing the same, except officers of said department, shall be paid by the state, through the department of correction, such reasonable compensation as is provided by law for similar services in other cases." General Statutes § 54-128 provides in pertinent part: "Any paroled convict or inmate who has been returned to the custody of the commissioner of correction or any institution of the department of correction for violation of his parole may be retained in the institution from which he was paroled for a period equal to the unexpired portion of the term of his sentence at the date of the request or order for his return less any commutation or diminution of his sentence earned except that the board of parole may, in its discretion, determine that he shall forfeit any or all of such earned time, or may be again paroled by said board." "The Court: What's the presumption of prejudice you are talking about? "Mr. Carvalko [Defense Counsel]: Well, your Honor, several fold. One, there has been some difficulty in tracking witnesses. For instance, I believe that one witness in fact her name was changed for one reason or another. She actually moved and we had to put investigator's out to find her. At least what my investigator tells me she may get married and she may even leave the state; whether that occurs before April 14, I don't know. "The Court: Did you find her? "Mr. Carvalko: Yes. "The Court: Is she under subpoena? "Mr. Carvalko: Yes, at this point." "Mr. Carvalko: . I believe if my recollection is correct, for sure on one occasion, probably more than one occasion, I apprised the Court that there was a very key witness by the name of Deborah Schlemmer who was in a position to observe my client, okay, during the events that ensued during this alleged crime and that statements she had made to the police in writing were very favorable to my client and that it was my concern that she might leave the jurisdiction. There were rumors that were circulating around town and that I was made aware of and I continued to emphasize that by that prospect occurring, my client would be gravely prejudiced. "A couple of days ago when I learned that we were going to go on trial, I started going back over sources to discover her whereabouts and learned that she quit the employment that she had. She couldn't be located through her mother and we asked the investigator to serve her with a subpoena if she could be found. He went to a place this morning where he thought she might be and apparently she wasn't there. Maybe she's there and maybe she isn't, but she certainly didn't come to the door. "So at this point we are left without what would seem to be a very key individual in this case and for that reason I feel that my prior pleas that this case would be — my client could be deeply prejudiced by not having that witness, have come to fruition and I would ask the court to dismiss the counts against my client for lack of speedy trial notwithstanding the fact that he has been tried within the twelve months that the statute requires when one is incarcerated. "The Court: The witness, from what you've said, Mr. Carvalko, is not missing. She just did not make herself available to your investigator to be served a subpoena is the way I interpret your statement. "Mr. Calvalko: Your honor, if you interpreted it that way, I am — I apologize because I didn't mean to mislead the Court. My understanding, and we can ask Mr. Tom Bouley who's in the courtroom to take the stand and precisely to take it out of the realm of speculation, testify as to what occurred this morning, but I understand he went to the door, he knocked on the door and he did not see her. Obviously, we're thinking in our own mind that perhaps she's there. "The Court: But you haven't given me any evidence that she has left this State, the State of Connecticut. You just say that nobody answered the door. There's a difference between not answering a door or being at work and not there or refusing to answer the door and being not within the State of Connecticut. "Mr. Carvalko: Well, if we can't find her, your Honor— "The Court: That's not what you said. "Mr. Carvalko: Well, I've indicated we can't find her. She left her place of employment. Her mother indicates she doesn't know where she is and Mr. Bouley has made an attempt to serve her with subpoenas and can't locate her. "The Court: Based on information that he knew where she was. "Mr. Carvalko: Based upon information that he thought he knew where she was, yes. "The Court: But he has no information that she does not live there. "Mr. Carvalko: All right, your Honor. "The Court: Is that true? "Mr. Carvalko: I think that's true. "The Court: All right then, as far as we know, she may still be living there. "Mr. Carvalko: She may still be living there. "The Court: She may not be living there, but you have not produced evidence to say that she's not. I'm not talking about — And in cases like this, we can't talk about possibilities. We have to talk about what is. Either she is available in the State of Connecticut someplace, may not want to testify, may not know that she's being asked to testify, may not know anything. If she's in the State of Connecticut and is subject to process, then your motion to dismiss is improper." General Statutes § 54-82c, entitled "Prisoner's Right to Speedy Trial On Pending Charges," provides in pertinent part: "(a) Whenever a person has entered upon a term of imprisonment in a correctional institution of this state and, during the continuance of the term of imprisonment, there is pending in this state any untried indictment or information against such prisoner, he shall be brought to trial within one hundred twenty days after he has caused to be delivered, to the state's attorney or assistant state's attorney of the judicial district or geographical area, in which the indictment or information is pending, and to the appropriate court, written notice of the place of his imprisonment and his request for final disposition to be made of the indictment or information. For good cause shown in open court, the prisoner or his counsel being present, the court may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the warden, community correctional center administrator or other official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner and decisions of the parole board relating to the prisoner. "(b) The written notice and request for final disposition referred to in subsection (a) hereof shall be given or sent by the prisoner to the warden, community correctional center administrator or other official having custody of him, who shall promptly forward it together with the certificate to the appropriate prosecuting official and court by registered or certified mail, return receipt requested. "(c) The warden, community correctional center administrator or other official having custody of the prisoner shall promptly inform him in writ ing of the source and contents of any untried indictment or information against him concerning which the warden, administrator or other official has knowledge and of his right to make a request for final disposition thereof." The defendant does not claim that he was denied his right to a speedy trial under Practice Book § 956B. Under that section, the defendant's trial was required to commence within one year from the date of the filing of the information. The state complied with that requirement in this case. General Statutes § 54-82d provides: "If an action is not assigned for trial within the period of time as provided in section 54-82c, no court of this state shall any longer have jurisdiction thereof, nor shall the untried indictment or information be of any further force or effect, and the court shall enter an order dismissing the same." The sixth amendment to the United States constitution provides, in pertinent part: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . . ." This constitutional right is made applicable to state prosecutions through the fourteenth amendment to the United States constitution. Klopfer v. North Carolina, 368 U.S. 213, 223, 87 S. Ct. 988, 18 L. Ed. 2d 1 (1967). Article first, § 8 of the Connecticut constitution provides, in pertinent part: "[I]n all prosecutions by indictment or information, the accused shall have a right to a speedy, public trial . . . ." Although the defendant relies on both the sixth and the fourteenth amendments to the United States constitution and article first, § 8 of the Connecticut constitution, he offers no separate analysis of the Connecticut constitution as a basis for different treatment of the federal and state constitutional claims. We decline to undertake such analysis. See State v. Camerone, 8 Conn. App. 317, 321 n.1, 513 A.2d 718 (1986). It is not necessary to determine in this appeal precisely when the defendant's trial began for speedy trial purposes, as the difference between September 12 and September 14 is not significant under the facts of this case. At trial, the following statement was marked for identification by the defendant, and included in the record, after the trial court precluded its admission into evidence: "STATEMENT OF DEBORAH L. SCHLEMMER I, Deborah L. Schlemmer, give the following statement after being fully advised of my constitutional rights. On October 5,1983,1 was at my home at 22 Well Ave., Danbury, Conn. Fuzzy Robert Foshay came to my house and with him was my boyfriend Warren Booth and Bobby Hyde, and Foshay's wife and daughter. Warren wanted to sell a 19" TV to a Kenny on Shepherd Rd. So after going to the bank and then to a store to buy soda, Fuzzy dropped off his wife and daughter and the rest of us went towards the Germantown area. Kenny already knew about the TV and he works where Ace Glass used to be. His truck was there but Kenny was not there. So we went to Kenny's house on Shepherd Rd. Warren got out of the car and went to Kenny's door and knocked on the door several times but no one was there. Warren came back to the car and said that Kenny was not at home. No one answered the door. Fuzzy said where are we going now. Bobby Hyde then said wait a minute and let me try. Warren said Bobby don't go doing nothing. Warren said don't go and get me into any shit. Bobby then went into the glassed in porch. While we were sitting in the car. I saw Bobby knocking on the door. I heard two noises that sounded like someone kicking in the door. Warren said let's get the hell out of here. We pulled into Jimmy's Market on the side and then we went around the block and then came back to Jimmy's Market and we found Hyde next to Jimmy's Market standing with something large in his hands. Hyde got into the front seat with the machine and said let's get the hell out of here. Bobby Hyde said let's go and get rid of it and get some money. We went to Ciminos Store. Fuzzy got out and came back with a soda. Fuzzy then drove us to Eden Drive and Fuzzy got out of the car at the top of Eden Dr. and Bobby Hyde drove while Warren and I stayed in the back seat. Hyde stopped at the project, lower part. Hyde got out of the car and went to the door and knocked. Both Hyde and the black man then came to the car and Hyde showed the man the machine but the black man said that he did not have the money, that he did not want it. Hyde got back into the car and we went to pick up Fuzzy on top of the hill. Hyde got out of the car with the machine and put it in the trunk of the car and we then drove off. Hyde wanted to sell the machine for $300.00 and he didn't know where to get rid of it. Fuzzy said that there is a guy that he knew that might buy it but the phone number is at Fuzzy's house. So we drove to Fuzzy's house, went up the driveway, when we met the Police Officer who told us to stop right there. Shortly after, other police arrived. I saw Hyde with a silver pocket watch and a ladies gold watch in his hands while he was in the car. I do not know what he did with it after the arrest. I FULLY UNDERSTAND THAT IF I MAKE A STATEMENT THAT IS UNTRUE AND WHICH IS INTENDED TO MISLEAD A LAW ENFORCEMENT OFFICER IN THE PERFORMANCE OF HIS OFFICIAL FUNCTION, I WILL BE IN VIOLATION OF SECTION 53A-157 OF THE CONNECTICUT STATE STATUTES. A FALSE STATEMENT IS A CLASS A MISDEMEANOR. /SI DEBORAH L. SCHLEMMER" When a.person is convicted under more than one statutory alternative, the judgment cannot stand unless the evidence was sufficient to establish guilt under each statutory provision upon which the trier of fact may have relied. See State v. Williams, 202 Conn. 349, 363-64, 521 A.2d 150 (1987). The defendant does not, however, claim that the evidence was insufficient to convict him of larceny by obtaining or by withholding, as a principal or as an accessory. His claim is only with respect to the alternative of larceny by taking and we therefore limit our review to that statutory basis. General Statutes § 53a-40 (b) provides in pertinent part: "A persistent serious felony offender is a person who (1) stands convicted of a felony; and (2) has been, prior to the commission of the present felony, convicted of and imprisoned under an imposed term of more than one year or of death, in this state or in any other state or in a federal correctional institution, for a crime." General Statutes § 53-40 (g) provides: "When any person has been found to be a persistent serious felony offender, and the court is of the opinion that his history and character and the nature and circumstances of his criminal conduct indicate that extended incarceration will best serve the public interest, the court in lieu of imposing the sentence of imprisonment authorized by section 53a-35 for the crime of which such person presently stands convicted, or authorized by section 53a-35a if the crime of which such person presently stands convicted was committed on or after July 1,1981, may impose the sentence of imprisonment authorized by said section for the next more serious degree of felony." In this case, the court pursuant to these statutes, enhanced the defendant's sentences for the class D felonies of burglary in the third degree and larceny in the third degree by imposing sentences authorized for class C felonies.

Spallone, J. The defendant appeals from the judgment of conviction, rendered after a jury trial, of the crime of risk of injury to a child in violation of General Statutes § 53-21. The jury could reasonably have found the following facts. In late 1981 or at some time thereafter, the defendant established a sexual relationship with his stepdaughter. At the time the relationship began, the victim was thirteen years old and in the eighth grade. These sexual encounters continued for a period of approximately three years and on some occasions intercourse occurred. Finally, when she was a sophomore in high school, the stepdaughter sought to discourage the defendant's advances. The defendant, however, persisted in his efforts to continue the relationship and wrote an eleven page letter that alluded to the sexual activity that had taken place between them. On February 22, 1985, after the defendant and his wife had separated, the stepdaughter informed her mother of what had occurred over the years between her and the defendant. The next day the stepdaughter gave a detailed statement of what had transpired to the Old Lyme police. The defendant claims that the trial court committed reversible error (1) in admitting the testimony of a treating physician that the defendant had been treated for gonorrhea, (2) in excluding from evidence a handwriting exemplar offered by the defendant, and (3) in denying the defendant's motions for judgment of acquittal. The defendant's first claim of error is without merit. While the victim's earlier statement put the date later, at trial the victim testified that the defendant first initiated sexual contact with her as early as 1981. The victim's mother thereafter testified that, in May of 1982, she and the defendant visited the family physician, Jay Graves, who found the defendant to be suffering from gonorrhea. The mother tested negative. The defendant's counsel offered no objection to this testimony by the mother. In fact, during cross-examination of the mother, the defendant's counsel introduced a letter written by her which contained the same information relative to the defendant's venereal disease. Graves was subsequently called as a witness and testified as to the defendant's gonorreheal infection and that the disease is contagious and transmitted through sexual contact. The defendant objected to the admission of this testimony as irrelevant and violative of the physician-patient privilege. The objections were overruled by the court and the doctor's testimony was admitted. The defendant now claims that the trial court erred in admitting Graves' testimony as to the venereal disease because (1) the information was not contained in the state's response to the defendant's motion for disclosure and production made pursuant to Practice Book § 741, (2) the testimony was not relevant to any material issue at the trial, (3) the prejudicial effect of the testimony far outweighed its probative value, and (4) the testimony was a privileged communication between doctor and patient. We will not review the defendant's claim that the state violated a duty to disclose under Practice Book § 741 because this claim was not raised at trial. Practice Book § 4185; see, e.g., State v. Miller, 186 Conn. 654, 672, 443 A.2d 906 (1982); State v. Perieve, 186 Conn. 599, 611-12, 442 A.2d 1345 (1982). Moreover, the defendant has not asserted, nor do we find, that the claim is reviewable under the doctrine of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). We find no merit in the defendant's claim that the court erred in overruling the defendant's relevancy objection to Graves' testimony. In overruling the objection, the court concluded that the evidence was relevant to a determination of whether the defendant impaired the health of a minor by engaging in sexual contact with her while afflicted with a communicable sexual disease. The trial court is vested with broad discretion in rulings on questions of relevancy. State v. Fritz, 204 Conn. 156, 167, 527 A.2d 1157 (1987). On appeal, we are limited in our review to a determination of whether, under the circumstances of the case, the trial court, in exercising its broad discretion, could legally act as it did, and we will not intervene unless there is a clear abuse of the court's discretion. See Birgel v. Heintz, 163 Conn. 23, 26, 301 A.2d 249 (1972); State v. Aspinall, 6 Conn. App. 546, 554, 506 A.2d 1063 (1986). We find that the trial court could reasonably conclude that the evidence of the defendant's affliction with a sexually communicable disease was relevant to the charges against him. See State v. Jenkins, 7 Conn. App. 653, 655, 509 A.2d 1098 (1986); State v. Manluccia, 2 Conn. App. 333, 335-36, 478 A.2d 1035 (1984). Nor do we find that the court erred in failing to exclude the evidence on the ground that its prejudicial impact outweighed its probative value. Because of the inherent difficulties in balancing probative value against prejudicial effect, our appellate courts have repeatedly entrusted the resolution of this determination to the trial court. State v. Tucker, 181 Conn. 406, 416, 435 A.2d 986 (1980). Every reasonable presumption must be given in favor of the correctness of the court's ruling and reversal will ensue only where an abuse of discretion is manifest or where injustice appears to have been done. State v. Barlow, 177 Conn. 391, 394, 418 A.2d 46 (1979). In the context of the entire trial, it is apparent that little, if any, prejudice resulted to the defendant when the trial court admitted Graves' testimony. The defendant's wife had testified, without objection, to the defendant's venereal disease. In addition, the defendant himself had introduced a letter to the same effect. Furthermore, the defendant never sought an instruction limiting the purposes for which the jury could consider this evidence. We cannot say that the trial court abused its discretion in admitting Graves' testimony. Finally, the admission of Graves' testimony violated no physician-patient privilege of confidentiality because no such privilege exists in Connecticut. There is no common law physician-patient privilege and none has been accorded in Connecticut or in federal courts as a general evidentiary principle. See Shaw v. Scoville, 369 F.2d 909, 911 n.2 (2d Cir. 1966); State v. Hanna, 150 Conn. 457, 465, 191 A.2d 124 (1963); State v. Reid, 146 Conn. 227, 232, 149 A.2d 698 (1959); Zeiner v. Zeiner, 120 Conn. 161, 167, 179 A. 644 (1935). It is not our role to reconsider this established precedent. See Gibbs v. Mase, 11 Conn. App. 289, 290 n.1, 526 A.2d 7 (1987); State v. Weisser, 9 Conn. App. 255, 257-58, 518 A.2d 655 (1986). In his second claim of error, the defendant contends that the trial court erred by refusing to admit a particular handwriting exemplar as a full exhibit until the defendant had testified as to its contents. The court initially refused to admit the handwriting exemplar of the defendant because the content of the exemplar contained allegations relevant to issues in the case that had not been testified to by any witnesses. The court, however, later allowed the letter into evidence as an exhibit after the defendant testified as to its content. We find no error in the trial court's ruling on this matter. In his final claim of error, the defendant contends that the court erred in denying his motion for judgment of acquittal at the close of the state's case-in-chief. At the conclusion of the state's case, the defendant made an oral motion to dismiss to the court. The court denied the motion, holding that the state had presented a prima facie case and that the matter was therefore one of the credibility of the witnesses. After reviewing the record, transcript, and exhibits in this case, we agree that the evidence was sufficient, if credited, to convict the defendant of the crime of risk of injury, and that the case was properly allowed to go to the jury. See State v. Miller, 202 Conn. 463, 486-87, 522 A.2d 249 (1987); State v. Dumlao, 3 Conn. App. 607, 613, 491 A.2d 405 (1985). There is no error. In this opinion the other judges concurred. General Statutes § 53-21 provides: "Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both." The trial court concluded: "The [risk of injury] statute does talk about impairing the health, morals, and so forth of a child, and certainly someone who has a communicable disease if it is so and the jury does so find that certain activity did take place, the jury can, therefore, find that the person did impair the child's health if that person knew about the communicable disease and thereafter performed acts, but that's something for the jury to decide, not for me to decide." We note that even if the court had erred by allowing Doctor Graves' testimony into evidence, such error would be harmless because the substance of his testimony was previously introduced without objection through the testimony of the defendant's former wife and through the defendant's introduction of a letter specifically referring to his venereal disease. " 'An erroneous ruling should not be considered reversible error if the evidence admitted thereby has already properly entered the case.' " State v. Randolph, 190 Conn. 576, 589-90, 462 A.2d 1011 (1983), quoting State v. Jeustiniano, 172 Conn. 275, 283, 374 A.2d 209 (1977); see also State v. Vennard, 159 Conn. 385, 393, 270 A.2d 837 (1970), cert. denied, 400 U.S. 1011, 91 S. Ct. 576, 27 L. Ed. 2d 625 (1971). The handwriting exemplar provided in pertinent part: "I was asleep sometime between 1:00 a.m. and 2:00 a.m. [The victim] shook me, and I awakened to hear [the victim] crying. I inquired why she was crying. She said she could not sleep thinking about the problems of the house. I can't take it anymore. My sisters don't talk to me. I ean't be in the middle anymore. The girls ridicule me for speaking to you. Eveiytime I go downstairs, they give me dirty looks because I've spoken to you. Mom is upset because I talk to you, because you talk to me, and you don't talk to them. Why can't you be nice to them? Why can't you change? I can't live like this anymore. Mom gets upset too much. The girls hate me for showing concern for you when they can't stand you, but if you can change and talk to them, I would get along with them better."

Schaller, J. After a jury trial, the defendant was convicted of criminal trespass in the first degree in violation of General Statutes § 53a-107. The defendant, who represented himself at trial, has appealed pro se claiming that the trial court erred (1) in submitting the matter to the jury when the evidence was insufficient to establish his guilt beyond a reasonable doubt, (2) in charging the jury improperly, as well as in refusing to charge as requested, and (3) in submitting the matter to the jury when public policy and the habits of the country imply a license or privilege to enter a building lobby. Because we find merit to the defendant's first claim of error, we need not consider the remaining claims. At the close of the state's case, the defendant moved for a judgment of acquittal and a new trial. These motions were subsequently denied by the trial court after the jury rendered its verdict. In the interval, the defendant proceeded to introduce his own evidence. In doing so, the defendant waived review of the sufficiency of the state's case. We must, therefore, consider his challenge to the sufficiency of evidence based upon the evidence in toto. See State v. Simino, 200 Conn. 113, 118, 509 A.2d 1039 (1986); State v. Rutan, 194 Conn. 438, 440, 479 A.2d 1209 (1983). When we review the sufficiency of the evidence, we are limited to inquiring " ' "whether the jury could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt." ' " State v. Rutan, supra, 444, quoting State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984). On review, we do not reweigh the evidence or judge the credibility of witnesses. State v. Banks, 194 Conn. 617, 619, 484 A.2d 444 (1984). The evidence presented at trial must be construed in the light most favorable to sustaining the verdict. State v. Little, 194 Conn. 665, 673, 485 A.2d 913 (1984); State v. Scielzo, 190 Conn. 191, 196, 460 A.2d 951 (1983). The jury has the right to draw reasonable and logical inferences from the facts proved, as long as they are rational and founded upon the evidence and not arrived at by speculation or conjecture. State v. Little, supra; State v. Scielzo, supra, 196-97. The defendant's right to be acquitted unless proved guilty beyond a reasonable doubt of every element of the offense charged is a fundamental constitutional right. State v. Smith, 194 Conn. 213, 217, 479 A.2d 814 (1984). In order to convict the defendant of criminal trespass in the first degree, the state had to prove beyond a reasonable doubt the following essential elements of that offense: (1) that the defendant, knowing he was not privileged or licensed to do so, entered or remained in a building; and (2) that the defendant com mitted that act after an order to leave or not to enter had been personally communicated to him by the owner or other authorized person. General Statutes § 53a-107. The defendant claims, inter alia, that the evidence was insufficient to prove beyond a reasonable doubt that he had been personally ordered by the owner or other authorized person not to enter the building in question. We agree. Construing the evidence most favorably to sustaining the verdict, the jury could reasonably have found the following facts. During the spring and summer of 1985, the defendant was engaged in a custody dispute with Debra Young, the mother of their six year old son, Kevin. During that time, Young was dating Daniel Parmelee, whom she later married. On April 5,1985, the defendant went to Parmelee's residence at the Park Washington apartment complex in Middletown and engaged in a brief discussion with Parmelee concerning Young and Kevin. After this discussion, Parmelee told the defendant that Parmelee did not want him on the premises. It also prompted Parmelee to communicate this desire to the building superintendent, James Calan, and to call the police. Later that evening, Officer Paul Mangini of the Middletown police department was dispatched from police headquarters to the defendant's residence where he told the defendant not to harass Young or Parmelee and to stay away from the premises at 256 Washington Street, Parmelee's apartment complex. Mangini never spoke with Young, Parmelee or Calan. On April 19, 1985, Calan observed a man sitting in a car parked across the street from the apartment complex. He summoned Parmelee, who identified the defendant. The police were then called. When Officer James Klick of the Middletown police department responded, Calan and Parmelee explained the situation and asked him to warn the defendant that he was not wanted on the property. Klick went over and spoke briefly with the defendant, who then left the area. Klick did not testify at the trial. On May 18, 1985, Parmelee, while passing in front of his apartment complex in a car, in which Young and Kevin were passengers, observed the defendant in the front exterior doorway of the lobby of the building. The lobby of the building is a room which contains mailboxes, some chairs and two doors. The exterior doorway, in which the defendant was observed, provides access to and from the sidewalk and was kept unlocked and open to the public. The interior door provides access to the various apartments, was kept locked and could only be opened electrically or with a key. At Par-melee's request, Young and Kevin identified the defendant who was, by the time they observed him, walking on the sidewalk in front of the apartment building. Parmelee called the police shortly thereafter, complaining that the defendant was trespassing. Officer David Gervais responded but, by the time he arrived, the defendant had left the scene. It was this May 18, 1985 incident for which the defendant was subsequently arrested and convicted. We find the evidence insufficient to sustain the conviction for criminal trespass in the first degree because the state failed to prove that the defendant was ordered personally by the owner of the premises, or other authorized person, not to enter the building. The jury could reasonably have found that Parmelee personally communicated to the defendant an order not to enter the building. The criminal trespass statute requires, however, that a person enter or remain in a building or other premises after an order to leave or not to enter has been personally communicated to such person "by the owner of the premises or other autho rized person." General Statutes § 53-107 (a) (1). The question to be resolved, then, is whether Parmelee, as a tenant, can be considered an "owner" with respect to his order not to enter the public lobby of the apartment building for purposes of § 53-107. In answering this question, we are mindful that the court must construe the statutory language strictly to avoid imposing criminal liability where none is expressly intended by the legislature. State v. Roque, 190 Conn. 143, 151, 460 A.2d 26 (1983). " 'The word "owner" is one of flexible meaning, and it varies from an absolute proprietary interest to a mere possessory right. . It is not a technical term and, thus, is not confined to a person who has the absolute right in a chattel, but also applies to a person who has possession and control thereof.' " Gill v. Petrazzuoli Brothers, Inc., 10 Conn. App. 22, 27, 521 A.2d 212 (1987), quoting if Hope v. Cavallo, 163 Conn. 576, 580-81, 316 A.2d 407 (1972). Our landlord-tenant law generally presumes that a landlord retains possession, control, and responsibility for all common areas in leased premises, such as the public lobby in this case. Compare General Statutes § 47a-7 (a) (3) (landlord's duty to "keep all common areas of the premises in a clean and safe condition") with General Statutes § 47a-ll (b) (tenant's responsibility to "keep such part of the premises that he occupies and uses as clean and safe as the condition of the premises permit"); see also 49 Am. Jur. 2d, Landlord and Tenant § 806. Similarly, tort law principles recognize that a landlord, having retained control of common areas, is responsible for their maintenance and repair because he has a right of entry and control of those areas, while no tenant can claim exclusive control of them. Perkel v. Grayson, 119 Conn. 465, 469-70, 177 A. 534 (1935); Fonseca v. Lavado, 28 Conn. Sup. 509, 511, 268 A.2d 415 (1970), cited with approval in State v. Tippetts-Abbett-McCarthy-Stratton, 204 Conn. 177, 184, 527 A.2d 688 (1987); 49 Am. Jur. 2d, supra, § 805. Further, there is nothing in the record before us to suggest that Parmelee's landlord transferred exclusive control of the lobby area to Parmelee. See Martel v. Malone, 138 Conn. 385, 85 A.2d 246 (1951). There was no evidence that Calan or any other agent of the owner ever conferred such authority upon Parmelee. Therefore, Par-melee, as a tenant in a multi-unit apartment building had no authority to order the defendant not to enter the public lobby of Parmelee's apartment complex. The jury could reasonably have found that Calan did authorize Klick to order the defendant not to enter the building. Klick, however, did not testify. Beyond the defendant's testimony that Klick never issued such an order to him, there is no evidence of the words spoken between Klick and the defendant. The jury also could reasonably have found that Mangini ordered the defendant not to enter the building. The mere fact that he is a police officer does not, however, under these circumstances, authorize him to do so. See, e.g., State v. Gordon, 437 A.2d 855 (Me. 1981). Mangini testified that he never spoke with Calan and, therefore, was not authorized by him. Mangini was sent to the defendant's residence by his shift commander. While Calan could have authorized the police department to' issue the order, thus transferring his authority to the officer dispatched, there was no evidence that Calan ever did so. Calan's testimony indicated only that he called the police, without revealing the content of that communication. Under General Statutes § 53a-107, the state has the burden of proving that an order was personally communicated by an owner or other authorized person. While establishing that Calan was an authorized per son, the state failed to prove that he personally communicated the order. Further, while proving that an order was personally communicated, the state failed to prove that the person issuing the order was authorized. There is error, the judgment of conviction is set aside and the case is remanded to the trial court with direction to render a judgment of acquittal. In this opinion the other judges concurred. "[General Statutes] Sec. 53a-107. criminal trespass in the first degree: class a misdemeanor, (a) A person is guilty of criminal trespass in the first degree when: (1) Knowing that he is not licensed or privileged to do so, such person enters or remains in a building or any other premises after an order to leave or not to enter personally communicated to such person by the owner of the premises or other authorized person; or (2) such person enters or remains in a building or any other premises in violation of a restraining order issued by the superior court."

Foti, J. The defendant tenant appeals in this summary process action from an execution of judgment in favor of the plaintiff. The defendant claims that the court erred (1) in granting the plaintiffs application for execution of judgment without scheduling a hearing pursuant to Practice Book § 387A, and (2) in denying the defendant's motion for a hearing on the plaintiff's application for execution of judgment. We find no error. The facts are not in dispute. In May, 1984, the defendant entered into a one year lease, which was automatically renewable, for an apartment managed by the plaintiff. The rental agreement required monthly payments of $132 which was subject to an annual adjust ment approved by the agency for housing and urban development (HUD). The defendant became delinquent in her rent payments and, on March 6, 1985, entered into a stipulated agreement that called for a judgment of possession of the unit in favor of the plaintiff with a stay of execution through December 31,1985. The stipulated agreement required her to pay $132 per month for use and occupancy "subject to HUD-approved adjustments." The defendant was also required to make monthly payments of $53 to remunerate the plaintiff for a $1591 rent arrearage. On May 13, 1985, the defendant was notified that, pursuant to the HUD-approved rent adjustment, her use and occupancy fee would increase by $28 per month beginning July 1, 1985. The defendant failed to pay the increased amount; rather, she submitted checks in the amount due prior to the adjustment. On July 26,1985, the plaintiff notified the defendant that it intended to seek her immediate eviction for failure to pay the increased amount, and applied for a summary process execution of judgment pursuant to Practice Book § 387A. The defendant moved for a hearing on the plaintiffs application for a summary process judgment, which the court denied. The defendant's objection to the court's consideration of the plaintiff's application without a hearing was overruled. The defendant contends that a hearing was required on the plaintiff's application for judgment because the use and occupancy fee that resulted from the HUD-approved adjustment was not a "sum certain" as that term is used in Practice Book § 387A. The defendant claims that the court erred in rendering judgment for the plaintiff without holding a hearing. We disagree. The defendant's original lease established rent contingent on an annual adjustment approved by HUD. An administrative appeal process was established for contesting these adjustments. Thus, when the defendant entered into the stipulated agreement, she was made well aware of the process by which rents could be increased or decreased and the process for contesting those adjustments. The defendant now claims that the adjusted amount was not a "sum certain" because it was not an exact dollar amount, but was an amount based on an independent agency's determination. A "sum certain" is merely a term of art for a sum which is "capable of reduction to certainty." Anderson v. Bridgeport, 134 Conn. 260, 264, 56 A.2d 650 (1947). In contract actions, the price must be capable of being ascertained from the contract. "By this is not meant that the exact amount in figures must be stated in the agreement; however, where that is not the case, the price must, by the terms of the agreement, be capable of being definitely ascertained." 17 Am. Jur. 2d, Contracts § 82. A sum certain which can be determined from the face of the agreement is distinguished from implied obligations which call on the trier of fact to determine a reasonable price. H. B. Toms Tree Surgery, Inc. v. Brant, 187 Conn. 343, 346, 446 A.2d 1 (1982). In this case, the stipulated agreement represented a contract obligation of the defendant to pay for use and occupancy; that amount was capable of being ascertained with certainty subsequent to the HUD-approved adjustment. The trial court's conclusion that the stipulated agreement represented a "sum certain" merely gave effect to the intentions of the parties expressed in the agreement. White Oak Corporation v. Department of Revenue Services, 198 Conn. 413, 422, 503 A.2d 582 (1986). Thus, the court's conclusion that Practice Book § 387A does not require a hearing on the plaintiff's application for execution of judgment was supported by the subordinate facts. There is no error. In this opinion the other judges concurred. "[Practice Book] Sec. 387A. summary process executions "Whenever a summary process execution is requested because of a violation of a term in a judgment by stipulation, a hearing shall be required. If the violation consists of nonpayment of a sum certain, an affidavit with service certified in accordance with Sec. 120 shall be accepted in lieu of a hearing. ." Attached to the defendant's original lease was the following provision: "Redetermination of Rent, Dwelling Size and Eligibility "a. Once a year Management will conduct a regular redetermination of rental. "b. Tenant agrees to furnish such information and certifications regarding family composition and income as may be necessary for management to make determinations with respect to rent eligibility, appropriateness of dwelling size, and monthly rent. "c. Tenant agrees to transfer to an appropriate size dwelling unit based on family composition, upon appropriate notice from management that such a dwelling unit is available. "d. If the regular redetermination shows that the rent being charged the family must be changed, the rent shall be adjusted in accordance with the change in income. "e. Rent as fixed in Section 2 or 3d will remain in effect for the period between regular rent redetermination unless during such period: "(1) Rent shall be subject to change by reasons of change of income, family composition or extent of exceptional medical or other unusual expenses in accordance with HUD established schedules and criteria. "(2) It is found that Tenant has misrepresented to Management the facts upon which his rent is based, so that the rent he is paying is less than he should have been charged. If this is found, then the increase in rent may be made retroactive or the lease may be terminated. "f. In the event of any rent adjustment pursuant to Sections 3d or 3e, Management will mail or deliver a 'Notice of Rent Adjustment' to Tenant in accordance with Section 10 thereof. In the case of rent decrease, the adjustment will become effective the first day of the following month. In case of rent increases, the adjustment will become effective the first day following the first full calendar month, unless the rent increase results from a finding of intentional misrepresentation under Section 3e (2) above." The lease contained the following provision: "Grievance Procedure "All grievances or appeals arising under this lease shall be processed and resolved pursuant to the grievance procedure of Management which is in effect at the time such grievance or appeal arises, which procedure is posted in the Project Office and incorporated herein by reference." The record is devoid of any attempt by the defendant to challenge the HUD-approved adjustment of her use and occupancy fee.

Per Curiam. There is no error.

Norcott, J. The defendant appeals from the judgment of the trial court setting aside the jury verdicts for the plaintiffs as inadequate and ordering a new trial unless the defendant filed additurs with the court. The sole issue is whether the trial court's decision to set aside the verdicts constituted an abuse of discretion. We find error in part. On June 11,1982, the named plaintiff was the operator of a car that was stopped in a parking area waiting to enter a line of traffic when his car was struck by a car being driven by the defendant. The defendant's car had left the traveled portion of the roadway and traveled easterly approximately sixty-one feet along a sidewalk before striking the plaintiff's car. As a result of the accident, the named plaintiff required medical attention. By complaint dated February 22, 1983, the named plaintiff instituted this action to recover damages for the injuries he incurred as a result of the defendant's negligence. He was joined in this action by his wife, who sought to recover for loss of consortium. Before trial, the defendant stipulated to liability. The matter was then submitted to the jury as a hearing in damages. At the hearing in damages the named plaintiff produced evidence that he had injured his neck in the acci dent and had been diagnosed as having a 10 percent permanent partial disability of both the neck and left shoulder. Both the named plaintiff and his wife also testified that the injury had restricted his activities around the house. The named plaintiff requested that the jury award him $3310.82 in special damages and further damages for pain and suffering. The defendant produced evidence that the named plaintiff had twice previously suffered neck injuries. The evidence indicated that on one of those prior occasions the named plaintiff had filed a lawsuit claiming that his neck might be permanently disabled. The jury returned a general verdict for the named plaintiff in the amount of $3310.86 and also returned a general verdict for his wife, but refused to award any damages for the loss of consortium. The trial court refused to accept either of the verdicts and asked the jury to reconsider their decisions keeping in mind the issue of pain and suffering. The jury deliberated again and returned with the same verdicts. This time the verdicts were accepted and ordered recorded. The plaintiffs then moved to set aside the verdicts claiming that the awards were inadequate as a matter of law. The trial court granted the plaintiffs' motion and ordered a new trial unless the defendant filed additurs with the court in the amounts of $11,689.14 for the named plaintiff and $100 for his wife. As we have noted before, "[tjhere are serious constitutional issues posed by setting aside a jury verdict. This is so because ' "[Ijitigants have a constitutional right to have issues of fact decided by the jury." Bambus v. Bridgeport Gas Co., 148 Conn. 167, 169, 169 A.2d 265 (1961).' " Zarrelli v. Barnum Festival Society, Inc., 6 Conn. App. 322, 326, 505 A.2d 25, cert. denied, 200 Conn. 801, 509 A.2d 516 (1986). Accordingly, a court should be hesitant to set aside a jury's verdict and must only do so when the jury verdict "so shock[s] the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption." Shea v. Paczowski, 11 Conn. App. 232, 233, 526 A.2d 558 (1987). "A court should be especially hesitant to set aside a jury's award of damages." Zarrelli v. Barnum Festival Society, Inc., supra. " 'The assessment of damages "defies any precise mathematical computation"; Floyd v. Fruit Industries, Inc., 144 Conn. 659, 675, 136 A.2d 918 (1957); and, therefore, establishing damages . is a task peculiarly within the expertise of a jury.' " Zarrelli v. Barnum Festival Society, Inc., supra. Once a trial court has acted to set aside a jury's verdict, however, its decision is entitled to great weight. Hearl v. Waterbary YMCA, 187 Conn. 1, 3, 444 A.2d 211 (1982). "This is so because '[f]rom the vantage point of the trial bench, a presiding judge can sense the atmosphere of a trial and can apprehend far better than [an appellate court] can, on the printed record, what factors, if any, could have improperly influenced the jury.' Birgel v. Heintz, 163 Conn. 23, 26, 301 A.2d 249 (1972)." Zarrelli v. Bamum Festival Society, Inc., supra, 327. Accordingly, our function on appeal is to determine whether the trial court's decision to set aside the jury verdicts constituted a " 'clear abuse of discretion.' " Gerrety Co. v. Palmieri, 11 Conn. App. 226, 230, 526 A.2d 555 (1987). The defendant's first claim on appeal is that the trial court abused its discretion in setting aside the jury's verdict of "$00" in damages to the named plaintiff's wife and ordering a new trial unless the defendant filed an additur with the court for nominal damages in the amount of $100. It has long been held that when a person's rights have been violated that person is entitled to at least nominal damages as compensation. Dimmock v. New London, 157 Conn. 9, 16, 245 A.2d 569 (1968); Malmberg v. Lopez, 12 Conn. App. 438, 531 A.2d 161 (1987). "Generally, nominal damages are fixed without regard to the extent of harm done and are assessed in some trifling or trivial amount — often only one cent or one dollar. ." 1 M. Minzer, J. Nates, C. Kimball, D. Axelrod & R. Goldstein, Damages in Tort Actions (1987) § 2.00; see also Buden v. Dombrouskas, 147 Conn. 728, 730, 166 A.2d 157 (1960). Our Supreme Court has held, however, that an award of $100 can qualify as nominal damages. Hammarlund v. Troiano, 146 Conn. 470, 473, 152 A.2d 314 (1959). Thus, we find that the trial court did not abuse its discretion by setting aside the jury's verdict on the loss of consortium and ordering a new trial unless the defendant filed an additur with the court for nominal damages in the amount of $100. The second claim raised by the defendant is that the trial court abused its discretion in setting aside the jury award to the named plaintiff as inadequate. The trial court's decision to set aside the verdict was based on the court's conclusion that the jury had failed to award any damages for pain and suffering. The court reached this conclusion because the amount of damages awarded by the jury was only four cents greater than the amount of special damages claimed by the plaintiff. As a general rule, it is manifestly unjust for the jury to fail to award damages for pain and suffering when it awards special damages. Johnson v. Franklin, 112 Conn. 228, 229, 152 A. 64 (1930); 1 M. Minzer, J. Nates, C. Kimball, D. Axelrod & R. Goldstein, supra, § 4.64. The problem with the trial court's application of that general rule in this case is that there was no reasonable basis upon which the court could have concluded that the jury's verdict was limited to special damages. Before deliberating, the jury was instructed to consider both special damages and damages for pain and suffering when fashioning their verdict. In addition, the jury was given a supplemental instruction in which they were asked to reconsider their verdict keeping in mind the issue of pain and suffering. The named plaintiff made no objection to either of these instructions. Therefore, we may assume that the jury was properly instructed on those principles of law and that they followed those principles in reaching their verdict. Goodman v. Metallic Ladder Mfg. Corporation, 181 Conn. 62, 65, 434 A.2d 324 (1980). Furthermore, the verdict rendered by the jury in this case was a general one. As such, it did not indicate what factors the jury considered in making their decision or what monies were awarded as special damages and what monies were awarded as compensation for pain and suffering. Katsetos v. Nolan, 170 Conn. 637, 658, 368 A.2d 172 (1976). The record before us suggests that the jury could have included both special damages and damages for pain and suffering in its total award to the named plaintiff. The defendant produced evidence which suggested that not all of the special damages incurred by the named plaintiff were attributable to his injury in the car accident, and the court twice instructed the jury on awarding damages for pain and suffering. Without the submission of interrogatories to the jury, the trial court should not have assumed that the jury disregarded its instructions. Goodman v. Metallic Ladder Mfg. Corporation, supra; Henry A. Finman & Sons, Inc. v. Connecticut Truck and Trailer Service Co., 169 Conn. 407, 411, 363 A.2d 86 (1975). There is error in part, the judgment is set aside as to the named plaintiff only and the case is remanded with direction to reinstate the jury verdict, and to render judgment thereon. In this opinion the other judges concurred.

Loiselle, J. The plaintiff, Rusco Industries, Inc., brought this action in a single count against the Hartford Housing Authority, hereinafter referred to as the Housing Authority; the general contractors, Manway Construction Company, Inc., and Damar Construction Corporation, hereinafter referred to as the general contractor; and a surety, Fidelity and Deposit Company of Maryland, hereinafter referred to as Fidelity. Summary judgments were rendered against all the defendants on the issue of liability. After a hearing in damages, judgment for $21,096 was rendered against the general contractor and Fidelity. These two defendants have appealed. The plaintiff alleged a subcontract with the general contractor to furnish windows and frames in the amount of "$93,346" with payment of $72,260 leaving "still due and owing the sum of $21,096.00." The plaintiff alleged that by virtue of its installation of windows and frames the Housing Authority "has the benefit of the plaintiff's property and has been unjustly enriched thereby to the extent of $21,096.00." The plaintiff further alleged that Fidelity issued a performance and payment bond as surety to the Housing Authority, that demand for payment of $21,096 was made on all defendants, and that it had not received that sum. After the defendants had filed their answers and special defenses, the plaintiff moved for summary judgment against all defendants. The plaintiff's affidavit, by its agent, recited that windows and frames had been installed in the Housing Authority, that on August 23, 1971, no representative of the defendants was on the job, and that it would take about two weeks to finish its part of the job at a cost of about $2000. The general contractor filed a counter affidavit alleging that the prime contract, to which the subcontract and orders were subject, provided for periodic progress payments, that payments were to be made by the general contractor to the plaintiff under their agreement only to the extent that the general contractor had received payment for the plaintiff's work from the Housing Authority, and that all such obligations by the general contractor to the plaintiff were satisfied. The general contractor's counter affidavit also raised questions concerning the plaintiff's workmanship, that is, "certain windows installed by plaintiff in the vestibule areas of the project were not installed according to plans and specifications, and there is a claim that certain windows had been installed out of plumb." The Housing Authority filed a counter affidavit claiming that it was not unjustly enriched and that it had instituted action against the general contractor for breach of contract and for the costs of correction of defects and completion. The court denied summary judgment on February 16, 1972. The plaintiff moved to reargue the motion. The court then granted the motion nisi against the general contractor if no pleadings on any issue of law were filed in ten days. The court's memorandum on the reargument of the motion for summary judgment was filed April 11, 1972. The record indicates that the same memorandum was filed again on April 24, 1972, followed by motions by all parties. The Housing Authority filed an additional counter affidavit reciting in detail the claim of defective workmanship on the part of the plaintiff necessitating replacement and repair. On July 10, 1972, the court filed a "Final Memo on Motion for Summary Judgment." It is stated there that "[t]o bring this matter to a temporary conclusion, it is the opinion of this court that the summary judgment order already issued should include the defendants, general contractors and the Hartford Housing Authority. It is necessary to ascertain amounts held and owed by each. Plaintiff should apply for a hearing in damages to ascertain amounts due from each defendant." The judgment dated July 10, 1972, is against only the general contractor and the Housing Authority. On February 9, 1973, the plaintiff moved for a summary judgment against Fidelity claiming that as summary judgment in liability was rendered against the general contractor, the "surety cannot stand in the better position than its principal." Fidelity filed a long and detailed counter affidavit claiming breach of contract on the part of the Housing Authority and reciting the contract provisions between the plaintiff and the general contractor as to the schedule of payments previously shown in the general contractor's counter affidavit. It was also stated that the plaintiff did not complete its subcontract and that the "windows and door frames in the vestibule area of the project were not installed according to the plans and specifications." On February 16, 1973, the court rendered an interlocutory summary judgment against Fidelity on the issue of liability but held that there was a genuine issue of fact as to damages. A hearing in damages was held and the court rendered a judgment of $21,096 against the general contractor and Fidelity. The first error assigned by these two defendants, that the court erred in granting the plaintiff's motion for summary judgment, is dispositive of their appeal. Practice Book § 303 provides for judgment 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." To oppose the motion for summary judgment successfully, the defendants had to recite facts in accordance with Practice Book § 300 which contradicted those stated in the plaintiff's affidavit. Dougherty v. Graham, 161 Conn. 248, 250, 287 A.2d 382; Dorazio v. M. B. Foster Electric Co., 157 Conn. 226, 229, 253 A.2d 22. What a "genuine issue as to any material fact" may be was discussed at length in United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 260 A.2d 596. It was stated therein that the test of the requirement for the granting of a summary judgment as a matter of law is resolved by applying to the established facts the same criteria as used in determining whether a party would be entitled to a directed verdict on the same facts. Id., p. 380. In determining the motion for summary judgment, the court is limited to deciding whether an issue of fact exists, but, in so doing, it cannot try that issue if it does exist. Pine Point Corporation v. Westport Bank & Trust Co., 164 Conn. 54, 55, 316 A.2d 765; Rathkopf v. Pearson, 148 Conn. 260, 264, 170 A.2d 135. On the pleadings and the affidavits, the parties were at issue on whether under the contract any money was due the plaintiff and whether the work and materials furnished were defective and, if so, to what extent. Also, the issue was raised as to whether the condition of nonpayment by the Housing Authority was the fault of, or created by, the Housing Authority or the general contractor. The ultimate issue involved a mixed question of fact and law which required an evidentiary hearing to determine the issues presented. Accordingly the plaintiff's motions for summary judgment should not have been granted. Spencer v. Good Earth Restaurant Corporation, 164 Conn. 194, 319 A.2d 403; Pine Point Corporation v. Westport Bank & Trust Co., supra. There is error, the judgments against Manway Construction Company, Inc., Damar Construction Corporation, and Fidelity and Deposit Company of Maryland for liability and damages are set aside and the case is remanded with direction to proceed according to law. In this opinion the other judges concurred.

Loiselle, J. The plaintiff is a truck driver licensed by the state of Rhode Island. While operating a trailer truck northerly on route 5 in Berlin, Connecticut on October 30, 1971, he collided with another vehicle. As a result of this collision three persons died. The defendant, the commissioner of motor vehicles, following a hearing held before a hearing officer of the department of motor vehicles, and as a result of reviewing the evidence therein produced, concluded that the plaintiff, James Cutlip, caused or contributed to death as a result of an accident, through negligence or carelessness, as well as through violation of § 14-222 of the Connecticut General Statutes. As a result, the plaintiff's privilege to operate motor vehicles in Connecticut was suspended for not less than one year. The plaintiff appealed from the commissioner's decision and order to the Court of Common Pleas, where the issues were found for the defendant and the appeal was dismissed. The plaintiff has appealed from that judgment to this court. The plaintiff claims that he was denied procedural due process because the hearing went forward without his being afforded any reasonable opportunity to obtain counsel once he knew the seriousness of what was involved. The record does not support this claim. The plaintiff was advised of his right to be represented by counsel in a letter of notice of November 28, 1972, which summoned him to the hearing. At the hearing he was asked if he wanted an attorney and was told that he had the right to have one. Further, the plaintiff was asked, "Would you rather we reassign the hearing and you bring an attorney with you?" His answer to this last inquiry was, "Sir, the only thing I can tell you is the truth, so what I know so." Thereafter the hearing officer told him that he could testify or not and that he could ask any questions. Waiver is the intentional relinquishment of a known right. It is not necessary that a waiver be made in express terms. It may be inferred from the declarations and conduct of the party if it is reasonable to do so. Novella v. Hartford Accident & Indemnity Co.; 163 Conn. 552, 562, 316 A.2d 394; Breen v. Aetna Casualty & Surety Co., 153 Conn. 633, 644, 220 A.2d 254; DiFrancesco v. Zurich General Accident & Liability Ins. Co., 105 Conn. 162, 168, 134 A. 789. The plaintiff elected to proceed with the hearing after having been amply informed that he could have counsel if he so desired. Having waived his opportunity to be represented by counsel, the plaintiff cannot now claim that he was denied that opportunity. The plaintiff next states that the defendant failed to comply with the Uniform Administrative Procedure Act, then General Statutes § 4-166 — 4-189. His first claim is that the 'hearing notice was inadequate. This claim is without merit. The hearing notice of November 28, 1972, notified the plaintiff to appear at a hearing pursuant to General Statutes § 14-111 (c), at a designated room of the defendant's headquarters at 60 State Street, Wethersfield, and at a designated time. The notice contained a statement of purpose which indicated that the hearing was to determine whether the plaintiff caused or contributed to a fatal accident which occurred in Berlin on October 30, 1971, through his violation of designated statutes or through negligence or carelessness, and that if such were found, suspension for not less than one year would result. The notice complied with statutory requirements. The plaintiff next cites specific instances in which he claims that the hearing officer admitted improper evidence in violation of General Statutes §4-178, which provides that "[t]he rules of evidence as applied in non-jury civil cases in the courts of this state shall be followed." The record reveals that the plaintiff was asked in every instance whether he objected to the offer of evidence, each of which was hearsay in nature, and he specifically stated that he had no objection. Where hearsay evidence is admitted without objection, the trier of facts may give such weight to it as he deems it is worth. Stanley Works v. New Britain Redevelopment Agency, 155 Conn. 86, 96, 230 A.2d 9; Pluhowsky v. New Haven, 151 Conn. 337, 343, 197 A.2d 645; Brown v. Rahr, 149 Conn. 743, 182 A.2d 629; Sizer v. Lenney, 146 Conn. 457, 151 A.2d 889. The plaintiff claims that he was an inexperienced person before such hearings. As previously stated, however, he was advised that he could be represented by counsel and was specifically told just prior to the hearing that if he wanted counsel the hearing would be postponed. After having made the choice to proceed without counsel, the plaintiff cannot now claim that he was prejudiced by the admission of evidence to which he did not object. State v. Grimes, 154 Conn. 314, 323, 228 A.2d 141. On June 2, 1973, the defendant sent to the plaintiff a notice of his final decision, which was not in compliance with then General Statutes § 4-180, in that it did not state separately the findings of fact and conclusions of law. On June 11, 1973, this requirement was eliminated from the notice. Public Act No. 73-620, § 17; see also § 18. An examination of the statute prior to June 11, 1973, clearly indicates that this provision was directory only and that failure to comply would not render the defendant's action void. Morningside Assn. v. Planning & Zoning Board, 162 Conn. 154, 156, 292 A.2d 893. Further, a notice in compliance with the provisions of the statute prior to June 11, 1973, was sent to the plaintiff on September 13, 1973. The plaintiff claims that the defendant based his action on matters outside the record and that the action was arbitrary and unsupported by the evidence. The certified record filed with the court constitutes the entire record upon which the defendant based his decision and amply supports the decision that the plaintiff was responsible for deaths through negligence and carelessness. The claim that the defendant's action was unsupported by the evidence and that he went outside the certified record is without merit. The final assignment of error is that § 14-111 (c) constitutes a denial of equal protection in violation of both the federal and state constitutions. The plaintiff admits that the purpose of the statute, which is to procure highway safety by regulating hazardous drivers, is properly within the exercise of police power. He claims, however, that the statute reaches drivers by reason of causation of death bnt does not reach all drivers who are within that class deemed unsuitable or unfit to drive consistent with the concept of safety on the highway. Stated another way, the plaintiff claims that where two operators are each engaged in the same conduct, with the result being that death is caused by one, and not by the other, and where the license of the operator causing the death is suspended, there is such unequal treatment as to violate the equal protection clause. "It is a universally accepted rule of constitutional law that the legislative department in the use of its police power is the judge, within reasonable limits, of what the public welfare requires. The court's function in examining the constitutional aspect of police legislation is to decide whether the purpose of the legislation is a legitimate one and whether the particular enactment is designed to accomplish that purpose in a fair and reasonable way. If an enactment meets this test, it satisfies the constitutional requirements of due process and equal protection of the laws. Schwartz v. Kelly, 140 Conn. 176, 179, 99 A.2d 89; Carroll v. Schwartz, 127 Conn. 126, 129, 14 A.2d 754. Courts cannot question the wisdom of police legislation and must accord to the legislature a liberal discretion, especially in matters involving potentialities generally recognized as dangerous." Pierce v. Albanese, 144 Conn. 241, 249, 129 A.2d 606. The fact that death has been caused is a reasonable basis for treating the operator of an automobile who has caused death separately from one who has not. The legislative purpose is apparent. Public safety would better be ensured by removing from the highway that class of drivers found to be responsible for accidents that cause death. Under § 14-111 (c) a reasonable dis tinction has been drawn as a matter of public policy without violating the equal protection or due process clauses of the federal and state constitutions. There is no error. In this opinion the other judges concurred. "[General Statutes] Sec. 4-177. contested cases. notice, record. . . . (b) The notice shall include: (1) A statement of the time, place, and nature of the hearing; (2) a statement of the legal authority and jurisdiction under which the hearing is to be held; (3) a reference to the particular sections of the statutes and regulations involved; (4) a short, and plain statement of the matters asserted. If the agency or other party is unable to state the matters in detail at the time the notice is served, the initial notice may be limited to a statement of the issues involved. Thereafter upon application a more definite and detailed statement shall be furnished." "[General Statutes] Sec. 4-180. final decision or order. A final decision or order adverse to a party in a contested case shall "be in writing Or stated in the record. A final decision shall include findings of fact and conclusions of law, separately stated. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings. If, in accordance with agency regulations, a party submitted proposed findings of faet, the decision shall include a ruling upon each proposed finding. Parties shall be notified either personally or by mail of any decision or order. Upon request a copy of the decision or order shall be delivered or mailed forthwith to each party and to his attorney of record." "[General Statutes] Sec. 14-111. suspension or revocation of REGISTRATION, LICENSE OR RIGHT TO OPERATE. . . . (c) Suspension of license after fatal accident. The commissioner shall not suspend the license of any operator concerned in any motor vehicle accident resulting in the death of any person solely because such death has occurred, unless the facts as ascertained by the commissioner, after a hearing, indicate responsibility on the part of such operator for such accident, and, if, after such hearing, the commissioner finds that such operator has caused or contributed to such death through the violation of any provision of this chapter or of chapter 248 or through negligence or carelessness, such suspension shall be for not less than one year. . .

Per Curiam. The plaintiff is the owner of property located in a business zone in the town of West-port. On April 4, 1972, he made application for a zoning permit to erect a new building on that property; however, the defendant zoning enforcement officer, Benjamin A. Davis, refused to accept the application. That refusal was based on a purported resolution passed on March 22, 1972, by the other defendants, all members of the Westport planning and zoning commission, which declared that "no application . . . for a Zoning Permit in Business Districts . . . will be accepted by, or considered filed with, the Planning and Zoning Commission, or an employee of the . . . Commission, between March 23, 1972 and May 8, 1972." In the same resolution it was stated that the commission would hold a public hearing on May 4, 1972, to consider the adoption of new regulations for business zones. The plaintiff thereupon applied to the Superior Court for a writ of mandamus ordering the defendants to issue a zoning permit for the development of his land and such other relief as the court may deem proper. The defendants demurred to the complaint. That demurrer was overruled, and, after a hearing, the trial court concluded that the defendants' resolution suspending the acceptance of zoning permit applications was illegal and void. The court ordered the defendants "to accept the application of . . . [the plaintiff] and to process said application in accordance with . . . [the] pertinent provisions of the Planning and Zoning Regulations of the Town of Westport existing on April 4, 1972, except for the commission resolution dated March 22,1972, . . . and to issue the zoning permit if those regulations have been complied with." The defendants appealed to this court from the judgment rendered, assigning numerous errors in the findings and conclusions of the trial court. All but one of those assignments of error are predicated on the erroneous belief that the trial court ordered the defendants to issue the permit to the plaintiff, notwithstanding any discretion that they might ordinarily exercise in considering whether to grant the zoning permit application. The trial court's order, however, only directed the defendants to perform a ministerial function — that of accepting the plaintiff's zoning permit application. Whether the defendants exercise discretionary functions in considering the application in accordance with the applicable zoning regulations is not at issue. The order specifically states that the defendants are to determine whether those regulations have been complied with. The only assignment of error properly before us is directed at the trial court's conclusion that the resolution which declared a moratorium on the acceptance of business zoning permit applications was illegal and of no effect. The findings disclose that the resolution was adopted without notice to the public and without a hearing. Since that resolution purported to amend the zoning regulations of the town of Westport, it could not be legally adopted without the public notice and hearing required by § 8-3 of the G-eneral Statutes. There is no error.

Loiselle, J. The defendant, John L. Lewis, was charged initially in a one-part information with robbery in the second degree, in violation of General Statutes § 53a-135, to which he pleaded not guilty. On the day scheduled for trying the robbery count, the state, with no advance notice, moved that his prior plea be withdrawn and that he be again put to plea on a substitute two-part information, charging him also with being a persistent felony offender, in violation of § 53a-40 (e) of the General Statutes. The defendant objected to this procedure, but his objection was overruled. Lewis was found guilty of the robbery by a jury and subsequently found guilty of being a persistent felony offender by the court. He was sentenced under the persistent felony offender statute to an indeterminate term, with a maximum allowable penalty of life imprisonment. The defendant has appealed, claiming error in the court's refusal to quash the second portion of the information charging him as a persistent offender and in not deleting his juvenile record from the presentence report. There is no claim that there was any error in the jury verdict relating to the first part of the information. The state did not obtain a grand jury indictment even though a conviction under § 53a-40 (e) coupled with a conviction for second degree robbery could carry a sentence of life imprisonment. Neither side raised this issue in their briefs but it was brought to the attention of this court during oral argument. Since it is jurisdictional in nature, it is considered first. The Connecticut constitution, article first, § 8, provides in part that "[n]o person shall be held to answer for any crime, punishable by death or life imprisonment, unless on a presentment or an indictment of a grand jury." General Statutes § 54-45 states in part that " [n] o person shall be put to plea or held to trial for any crime the punishment of which may be death or imprisonment for life unless an indictment has been found against him for such crime by a grand jury legally impaneled and sworn." Since the penalty for a conviction of robbery compounded by a conviction under the persistent felony offender statute could have been life imprisonment, and, in fact, was, it was mandatory that Lewis be indicted by a grand jury. State v. Holloway, 144 Conn. 295, 302, 130 A.2d 562 (1957). The failure of the trial court to quash the second part of the information was error and the sentence based upon it must be reversed. Where one has been charged as a persistent offender, the allegations of prior offenses in the second part of an information or indictment affect only the punishment to be imposed under the first part and must be included in the same information or indictment with a specific substantive criminal charge. State v. Grady, 153 Conn. 26, 32, 211 A.2d 674 (1965); State v. Reilly, 94 Conn. 698, 702, 110 A. 550 (1920). A person cannot be charged as a persistent offender under § 53a-40 in a separate infor mation or indictment. If the allegation of prior offenses is not included in an information or indictment charging a specific crime, it is ineffective. State v. LaSelva, 163 Conn. 229, 233, 303 A.2d 721 (1972); State v. Delmonto, 110 Conn. 298, 147 A. 825 (1929). Consequently, as the first part of the information has been conclusively determined by a jury, the second part of the information must be dismissed. The proceeding under the first part of the information was distinct, so it is not affected by the dismissal of the second part. Therefore, this case is remanded for resentencing on the first part of the information. A remand for resentencing does not raise the issue of double jeopardy here because a remand does not include a second trial or further fact-finding. Sanabria v. United States, 437 U.S. 54, 98 S. Ct. 2170, 57 L. Ed. 2d 43 (1978); Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978). It is the sentence and not the verdict that was erroneous or inconclusive. State v. Langley, 156 Conn. 598, 601, 602, 244 A.2d 366 (1968), cert. denied, 393 U.S. 1069, 89 S. Ct. 726, 21 L. Ed. 2d 712; 21 Am. Jur. 2d, Criminal Law 14 167, 572; cf. Leifert v. Turkington, 115 Conn. 600, 603, 604, 162 A. 842 (1932). The defendant claims error in the court's refusal to strike the six references in the presentence report to his juvenile difficulties, claiming that they all preceded In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967), and that the procedures and safeguards of fundamental fairness and due process did not apply to our juvenile court at that time. The error claimed was argued and briefed in this respect and the issue is discussed in this context. Five of the references made in the presentence report were to charges which were dismissed and one which was referred to the adnlt probation department. An excerpt from the state's brief well expresses this court's opinion on this issue: "Even assuming that the juvenile notations represented juvenile adjudicatory stages which fell within the doctrines enunciated in In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967); In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); and Ivan V. v. City of New York, 407 U.S. 203, 92 S. Ct. 1951, 32 L. Ed. 2d 659 (1972), there has been no demonstration of constitutional deprivation. As previously stated, according to the presentence entries, each allegation was dismissed. Therefore, even assuming that there was a denial of some or all of the principles required by the above cases, there was no prejudice because there was never a conviction. Each matter had been dismissed. If there had been a conviction and a showing that there had been a denial of essentials of due process and fair treatment as regards the establishment of the burden of proof, neither of which has been shown nor is even demonstrable, then perhaps there would be some merit to the defendant's argument. However, in the situation at bar both are lacking." None of the incidents involved an adjudication of criminal charges; and, moreover, the information relating to these incidents was well within the investigatory mandate of General Statutes § 54-109. There is error in part, the judgment is set aside and the ease is remanded with direction to dismiss the second part of the information and with further direction to resentence the defendant on the first part of the information. In this opinion the other judges concurred. General Statutes § 53a-40 (e). "When any person has been found to be a persistent dangerous felony offender, and the court is of the opinion that his history and character and the nature and circumstances of his criminal conduct indicate that extended incarceration and lifetime supervision will best serve the public interest, the court, in lieu of imposing the sentence of imprisonment authorized by section 53a-35 for the crime of which such person presently stands convicted, may impose the sentence of imprisonment authorized by said section for a class A felony." General Statutes § 53a-35 allows a maximum penalty for a class A felony to be life imprisonment. Lewis was sentenced to a term of not less than ten years nor more than life.

Longo, J. The plaintiff brought an action in the Superior Court for foreclosure of two mortgages, each for $250,000 and having similar terms. The two contiguous parcels of property upon which the loans were taken are located in Danbury, Connecticut, and are owned by the corporate defendant, American Trading Co., Inc., and the defendant Nicholas A. Attiek, individually. Those two defendants, hereinafter referred to as the defendants, pleaded a special defense claiming that the plaintiff, Sawyer Savings Bank, was barred from maintaining any action or suit in Connecticut because it violated the provisions of § 36-5a of the General Statutes. On the basis of the evidence presented at the hearing on the issues raised by the defendants' special defense, the trial court's finding discloses the following material facts: The plaintiff is a savings bank chartered under the laws of the state of New York and has its principal office in Saugerties, New York. The defendant American Trading Co., Inc., is a Connecticut corporation having its principal office in Danbury. The defendants initially approached the plaintiff through the efforts of an independent mortgage broker. There were no meetings between the plaintiff and the defendants in Connecticut specifically concerned with the mortgage loans in question. On October 1, 1974, the mortgage deeds and notes were executed and delivered in New York, and the necessary funds were transferred to the defendants in White Plains, New York. At the time the notes and mortgages were executed and the funds transferred, the bank understood that the defendants, either individually or in a corporate capacity, owned the property mortgaged by the defendants. The loan was made in New York and was secured by land in Connecticut. Representatives of the plaintiff visited the mortgaged premises in Danbury prior to making the loans. No Connecticut bank participated in the mortgage loans, and the plaintiff had made no other mortgage loans in Connecticut. On the basis of the foregoing evidence, the trial court (Testo, J.) found the issues for the plaintiff on the special defense raised by the defendants, and concluded that the plaintiff's acceptance of the two mortgages on Connecticut real estate securing the loans made in New York did not violate the provisions of § 36-5a, and ordered the foreclosures to proceed. The defendants have appealed from the subsequent judgment of foreclosure rendered by the court (Hull, J.). The sole issue presented in this appeal is whether the plaintiff's activities constituted "transacting business in this state" within the prohibition of General Statutes § 36-5a, so as to bar foreclosure under the provisions of § 33-412 (a). We agree with the trial court that there was no violation of § 36-5a. Section 36-5a generally prohibits a foreign bank such as the plaintiff from transacting in Connecticut the business which it is authorized to conduct under its certificate of incorporation or by the laws of the state under which it was organized, unless it is empowered to do so by the laws of this state. The statute contains two specific exceptions to the proscription against the transacting of business in this state by foreign banks. A foreign bank may (1) contract with a Connecticut bank to acquire a part or entire interest in a loan made by a Connecticut bank, or (2) may participate with a Connecticut bank in making a loan. Neither exception applies to this case. The statute also contains a general exception, expressed in the phrase "without excluding other activities which may not constitute transacting business in this state." The defendants contend that because the legislature expressly provided two exceptions to the prohibition of § 36-5a, both of which require involvement by a domestic bank in the loan transaction, the legislature necessarily intended to limit the reach of the general exception to other activities by foreign banks that also involve Connecticut banks in some way. We do not agree. "Legislative intent is to be found not in what the legislature meant to say, but in the meaning of what it did say." Doe v. Institute of Living, Inc., 175 Conn. 49, 57, 392 A.2d 491. Generally a statutory term should be given the meaning it has in common usage. Ibid. Nothing in the language of General Statutes § 36-5a suggests that the legislature intended to limit "other activities which may not constitute transacting business in this state" to other activities involving Connecticut banks. The more logical and reasonable interpretation is that the legislature chose to exempt the potentially extensive foreign bank activities described in the two exceptions because of the participation of Connecticut banks, and left to the courts the determination of other foreign bank activities of such a minimal nature as not to constitute "transacting business in this state." This interpretation is supported by the history of the relevant legislation as judicially construed, of which the legislature must be presumed to be mindful. Knights of Columbus Council v. Mulcahy, 154 Conn. 583, 589-90, 227 A.2d 413; Buxton v. Ullman, 147 Conn. 48, 56, 156 A.2d 508, appeal dis missed, 367 U.S. 497, 81 S. Ct. 1752, 6 L. Ed. 2d 989. Prior to 1961 the privileges of foreign banks were generally governed by General Statutes § 33-395 to 33-412, the foreign corporation statutes, where the phrase "transacting business" appears many times. Section 33-397 (c) then provided: "Without excluding other activities which may not constitute transacting business in this state, nothing in this section shall prohibit a foreign banking corporation from doing any or all of the acts hereinafter set forth." General Statutes § 33-397 (c) was repealed in 1961; Public Acts 1961, No. 423, §3; and § 36-5a was enacted in the same legislation. We conclude that in amending the statutory exemptions from the prohibition against the transaction of business in Connecticut by foreign banking corporations, the legislature did not intend to change the nature of the test applicable to business activities not specifically exempted by statute. We have ruled that the question of whether a foreign corporation is transacting business so as to require a certificate of authority must be determined on the complete factual picture presented in each case, and that the corporation's activities must be more substantial than those which would suffice to subject it to service of process. Eljam Mason Supply, Inc. v. Donnelly Brick Co., 152 Conn. 483, 485, 208 A.2d 544; see also Alfred M. Best Co. v. Goldstein, 124 Conn. 597, 1 A.2d 140. Relevant considerations in those eases were the situs of the contract, the presence of corporate offices and agents in Connecticut, and the extent of business activities in Connecticut. In this case, the record discloses that the negotiations for the loans, the preparation of the mortgage instruments, the signing of the mortgage deeds and notes, the payment to the defendants of the sums loaned, and the subsequent payments of principal installments and interest took place in New York State. While the mortgage deeds securing the loans were recorded in Connecticut, the final act which had to be done in order to make the agreement between the parties effective, namely, the payment of the monies loaned, was in New York. Clearly, the situs of the contract entered into by the parties was in New York. The plaintiff had made no other mortgage loans in Connecticut. It maintained no office or place of business in the state nor did it have officers or an agent present here for the solicitation of business. We conclude that the trial court did not err in finding that the plaintiff was not transacting business in violation of General Statutes § 36-5a. There is no error. In this opinion the other judges concurred. The trial court considered the matter as if only one mortgage were involved, since the facts and the legal principles were identical. The defendant Bank of Trumbull took no part in this appeal. "[General Statutes] See. 36-5a. foreign corporations not to do business in this state, excepted activities. No banking corporation which is organized under the laws of or has its principal office in any other state shall transact in this state the business authorized by its certificate of incorporation or by the laws of the state under which it was organized, unless empowered so to do by some general or special act of this state, except for the purpose of carrying out and renewing contracts existing on August 1, 1903; provided, without excluding other activities which may not constitute transacting business in this state, no such foreign banking corporation shall be deemed to be doing or transacting business in this state by reason of its contracting with a bank located in this state for the acquisition by sueh foreign banking corporation of a part interest in or the entire interest in a loan which sueh domestic bank proposes to make or in any loan made before or after October 1, 1961, by sueh domestic bank, or participating with a domestic bank in making sueh a loan, together with a like interest in any security and any security instrument given or proposed to be given to sueh domestic bank to evidence sueh loan. . A foreign banking corporation which transacts business in this state in violation of this section shall be subject to the penalties imposed by subsections (a), (d) and (e) of section 33-412." "[General Statutes] See. 33-412. eights and liabilities of CORPORATION TRANSACTING BUSINESS WITHOUT AUTHORITY. (a) No foreign corporation transacting business in this state in violation of section 33-396 shall be permitted to maintain any action, suit or proceeding in any court of this state unless such corporation has obtained a certificate of authority. . . ." Section 235 of the New York Banking Law (McKinney 1971) specifically authorizes a New York savings bank sueh as the plaintiff to invest in mortgages and notes on real property.

Longo, J. This is an appeal by the plaintiff's former employer, Griffin Hospital, from a judgment of the Superior Court in Litchfield County dismissing its appeal from a decision of the unemployment compensation commissioner for the fifth district awarding unemployment benefits to the plaintiff employee. The record discloses the following facts: The plaintiff had been employed by the defendant Griffin Hospital from June 18, 1969, through February 19, 1971, and was later employed by another employer, Sun Chief, for a period of six months ending April 14, 1972. He left his job with Sun Chief for lack of transportation and applied for unemployment benefits which were awarded to him. Subsequently, when his benefit payments terminated, the plaintiff filed a new claim for benefits as of June 4,1972. By combining the wages earned from his two different employers, Griffin Hospital and Sun Chief, the com missioner decided that the plaintiff had sufficient earnings in at least two quarters of his 1971 base period, which qualified him for additional benefits. The statute applicable to this situation, General Statutes § 31-235, provided in pertinent part as follows: "An unemployed individual shall be eligible to receive benefits with respect to any week only if it has been found that . (3) he has been paid wages by an employer who was subject to the provisions of this chapter during the base period of his current benefit year in an amount at least equal to thirty times his benefit rate for the total unemployment, some part of which amount has been paid or was earned in at least two different calendar quarters of such base period." (Emphasis added.) In appeals of this nature the court cannot substitute its discretion for that legally vested in the commissioner but determines on the record whether there is a logical and rational basis for the decision of the commissioner or whether, in the light of the evidence, he has acted illegally or in abuse of his discretion. Bartlett v. Administrator, 142 Conn. 497, 505, 115 A.2d 671; Stapleton v. Administrator, 142 Conn. 160, 165, 112 A.2d 211; Lanyon v. Administrator, 139 Conn. 20, 28, 89 A.2d 558. The defendant hospital contends that the plain wording of the statute permits wages paid only by "an," meaning "one," employer subject to the act to be considered in determining an employee's eligibility to receive benefits. Under this interpretation, the plaintiff would not have qualified for benefits since he was not paid sufficient wages by one employer in two different quarters of his base period as required by § 31-235 (3). The basic issue, then, is whether wages paid by more than one employer in the qualifying period can be combined in determining an employee's eligibility for unemployment benefits. The trial court, in dismissing the defendant hospital's appeal, cited § 1-1 (f) of the General Statutes, which provides that "[w]ords importing the singular number may extend and be applied to several persons or things, and words importing the plural number may include the singular." The defendant hospital claims that this section, being permissive in nature, should be applied only where there is no rational ground for restricting or extending the express wording of a statute; Levine v. Randolph Corporation, 150 Conn. 232, 241, 188 A.2d 59; and claims further that, in considering the Unemployment Compensation Act as a whole, there is a rational basis for limiting the word "an" as used in § 31-235 (3) to its meaning of "one." The legislative enactments prior to and subsequent to the enactment of § 31-235 (3) do not support the limited interpretation placed upon the statute by the defendant hospital. General Statutes § 7507 (3) (Rev. 1949) provided for eligibility of an employee if he were found to have "been paid wages during the base period of his current benefit year." Clearly, the statute, which was the forerunner of § 31-235, merely prescribes the period of time when wages must have been paid to an employee but does not limit the number of employers who are required to pay the wages. In 1953, § 7507 was amended to require that wages be paid "by an employer who was subject to the provision of . . . [chapter 374]." Again, the statute merely qualifies or limits the payment of wages determining eligibility for payment of benefits to those employers who are subject to the provisions of the act, thereby specifically excluding wages paid by employers who are not so covered. It is presumed that the legislature enacts legislation in view of existing relevant statutes and intends it to be read with them so as to make one consistent body of law. Cicala v. Administrator, 161 Conn. 362, 365, 288 A.2d 66, and cases cited therein. The purpose of the Unemployment Compensation Act is remedial, and its provisions are to be construed liberally as regards beneficiaries in order that it may accomplish its purpose. Derench, v. Administrator, 141 Conn. 321, 324, 106 A.2d 150; see Kelly v. Administrator, 136 Conn. 482, 487, 72 A.2d 54. The legislature has emphasized this purpose in § 31-274 (c) in the following language: "The provisions of this chapter shall be construed, interpreted and administered in such manner as to presume coverage, eligibility and nondisqualification in doubtful cases." Consequently, in light of the legislative intent as clearly expressed in the statutes, the trial court was justified in holding that the commissioner's interpretation of the law and its application to the facts was not in error. Levine v. Randolph Corporation, supra. There is no error. In this opinion the other judges concurred. Subsection (3) of § 31-235 was amended by Public Acts 1973, Nos. 73-106 and 73-671. When General Statutes § 7507 (Rev. 1949) was amended by Public Acts 1953, No. 354 § 3 and 11, the legislature also amended § 7497 by adding subsection (e) thereto, the pertinent part of which states: "If a claimant during such base period was employed by both the state and other employers subject to the provisions of this chapter, the amount to be paid into the fund by the state, with respect to such claimant, shall be an amount equal to the amount of benefits paid to such claimant in addition to such amount as the claimant was entitled to receive on the basis of the wages paid to such claimant by such other employers." (Emphasis added.) This clearly shows the legislature's intent that the wages of all base period employers are to be used to establish eligibility and is in accord with long-established administration of the Unemployment Compensation Act whereby the credits from all employers in the base period are utilized to determine a claimant's eligibility. This was not changed by $ 31-235 (3).

Per Curiam. The parties to this appeal were divorced on March 23, 1973, on complaint by the plaintiff. In lieu of alimony, the plaintiff was awarded the defendant's interest in the residence they had occupied as a home. She was also awarded custody of the parties' four minor children, now ranging in age from fifteen to seven and one-half years. The defendant was ordered to pay support in the amount of $20 per week for each child. In November, 1973, the plaintiff moved for a modification of the order for support and after hearing the court rendered judgment increasing the amount of the weekly support payments from $20 a week to $30 a week for each child. It is from this modification of the judgment that the defendant has appealed to this court. The record discloses that in filing the financial statements required by the provisions of § 380 of the Practice Book, as amended, as they were in effect at the time of the original decree and at the time of the modification, the defendant failed to comply with the requirement that he report his "gross earnings, gross wages and all other income." Instead of listing his gross earnings and gross wages with the details as to any deductions, the defendant in both affidavits listed only what he claimed as his net weekly income. The amount of his gross pay was first elicited at the hearing on the modification. The defendant has assigned as error the court's computation made as a result of the modification hearing that based on gross earnings then disclosed the defendant's net weekly income was $189 rather than $153 and $156 as stated in his affidavits. As this court, however, observed in Baker v. Baker, 166 Conn. 476, 489, 352 A.2d 277, quoting from Crowell v. Palmer, 134 Conn. 502, 510, 58 A.2d 729: " 'Where a defendant has by his wrongful conduct made the calculation of damages difficult, he will not he heard to urge such difficulty as a reason for not assessing by approximation.' " It also appears that the defendant during the summer of 1973 did some part-time carpentry work for remuneration which was not reported on his affidavit submitted at the hearing for modification. General Statutes § 46-57 expressly provides that upon the dissolution of a marriage the parents of a minor child of the marriage who is in need of maintenance "shall maintain such child according to their respective abilities" and sets out the criteria which the court shall consider in requiring such support. It further provides that upon complaint or motion by either parent subsequent to a decree dissolving the marriage the court shall inquire into the child's need of maintenance and the respective abilities of the parents to supply such maintenance and "make and enforce such decree for the maintenance of such child as it considers just." The amount to be awarded for the support of the minor children rested in the sound discretion of the trial court. " 'An abuse of judicial discretion will be reviewed on appeal in this as in other cases, but trial courts have a distinct advantage over an appellate court in dealing with domestic relations, where all of the surrounding circumstances and the appearance and attitude of the parties are so significant.' LaBella v. LaBella, 134 Conn. 312, 318, 57 A.2d 627." Baker v. Baker, supra, 488. We find no abuse of the court's discretion in the modification decree which it rendered. There is no error.

Bogdanski, J. This controversy arises from a 1967 judgment granting a divorce to the plaintiff, Ruth Sillman, awarding her custody of her four minor children and ordering the defendant, Eugene Sill-man, to pay "$150 per month . . . for each of his minor children." In May, 1973, the plaintiff filed a motion for contempt alleging that the defendant had "failed . to pay for the support of the minor child, Emily" since October of 1972. To that motion the defendant filed a special defense alleging that Public Acts 1972, No. 127, § 1, now General Statutes § 1-ld, changed the age of majority from twenty-one to eighteen years, effective October 1, 1972; that Emily was over eighteen years of age on that date; and that he was therefore relieved of all legal responsibility for her support. On June 12, 1973, the defendant moved to modify the judgment regarding support for a second child, Jane, who turned eighteen years of age on June 2, 1973, claiming that he was, as a matter of law, no longer responsible for her support. The trial court overruled the special defense and denied the motion to modify on the basis of Vicino v. Vicino, 30 Conn. Sup. 49, 298 A.2d 241. The defendant has appealed to this court from those rulings. The issues presented in both rulings are practically identical. Only the denial of the motion to modify, however, is properly before us. The overruling of a special defense is merely an interlocutory ruling. See Guerin v. Norton, 167 Conn. 282, 283, 355 A.2d 255. The question before us is whether court-ordered support to a "minor" child terminates as a matter of law when a child reaches the age of eighteen after the effective date of the act. The defendant contends that the purpose and intent of the act was to give eighteen-year-olds full status as adults; that by so doing, the legislature relieved parents of all responsibilities for eighteen-year-olds; that it would be illogical to grant them full status as adults and, at the same time, retain parental responsibility for their support; that when eighteen-year-olds were still considered minors, support payments were made to the parent; that since they are now considered adults, the support payment would presumably have to be made directly to the emancipated child; that neither parent would be able to exercise control over the payments; and that this would result in the anomalous situation wherein a parent would have to support an eighteen-year-old, but would have no control over his person. Section 1-1d of the General Statutes (§ 1 of the act) reads in part as follows: "[O]n and after October 1, 1972, the terms 'minor,' . . . shall be deemed to refer to a person under the age of eighteen years and any person eighteen years of age or over shall be an adult for all purposes whatsoever and have the same legal capacity, rights, powers, privileges, duties, liabilities and responsibilities as persons heretofore had at twenty-one years of age, and 'age of majority' shall be deemed to be eighteen years." There are eighty-two other sections in the act which repealed numerous sections of the statutes and substituted new language conforming to the purpose and intent of the act. At the heart of this controversy, however, is § 83 of the act (§ 1-le of the General Statutes) which provides as follows: "Nothing in this act shall impair or affect any act done, offense committed or right accruing, accrued or acquired, or an obligation, liability, penalty, forfeiture or punishment incurred prior to . . . [October 1,1972], and the same may be enjoyed, asserted and enforced, as fully and to the same extent and in the same manner as they might under the laws existing prior to said date, and all matters civil or criminal pending on said date . . . may be continued . . . under and in accordance with the provisions of the law in force at the time of the commission of said act done, offense committed, right accruing, accrued, or acquired, or obligation, liability, penalty, forfeiture or punishment incurred." The plaintiff contends that child support is a substantive right; that the language of the "saving clause" is plain and unambiguous; and that that language expresses a legislative intent to continue support orders entered prior to the effective date of the act until the child reaches age twenty-one, the former age of majority. "It is a cardinal rule of construction that statutes are to be construed so that they carry out the intent of the legislature. . . . [That] intent is to be ascertained from the language of the statute itself, if the language is plain and unambiguous." Hurlbut v. Lemelin, 155 Conn. 68, 73, 230 A.2d 36; Wright v. Brown, 167 Conn. 464, 468, 356 A.2d 176; Kellems v. Brown, 163 Conn. 478, 515, 313 A.2d 53; United Aircraft Corporation v. Fusari, 163 Conn. 401, 410, 311 A.2d 65. Except for the general saving clause, General Statutes § 1-1e (§ 83 of the act), and a few specific saving clauses, every section of the act is consistent with the expressed legislative intent to make eighteen-year-olds adults "for all purposes whatsoever." General Statutes § 1-ld (§ 1 of the act). Under the act an eighteen-year-old may vote, borrow money, sell or buy liquor, and engage in licensed occupations. Once the child reaches eighteen years of age, guardianship is terminated; General Statutes § 45-43 (§66 of the act); and parents no longer have a legal duty to support the child. General Statutes § 17-320, 53-304 (§§ 29 and 76 of the act). The plaintiff argues that certain statements made on the floor of the house at the time the act was introduced support her contention that the legislature intended to continue previously ordered support payments until age twenty-one. The intention or state of mind of an individual member of the legislature, however, is not conclusive even when it can be ascertained. Toll Gate Farms, Inc. v. Milk Regulation Board, 148 Conn. 341, 348, 170 A.2d 883. The intent of the legislative body is to' be found not in what it meant to say, but in what it did say. Schwab v. Zoning Board of Appeals, 154 Conn. 479, 482, 226 A.2d 506. To interpret the saving clause, Greneral Statutes § 1-le, to mean that a divorced parent must continue to pay child support until the child reaches age twenty-one would' be inconsistent with the broad purposes of the act. Under such an interpretation the eighteen-to-twenty-year-old "adult" would still be considered a minor for purposes of support yet would be free of his parent's custody and control. In interpreting a statute, the application of common sense is not to be excluded. Knoll v. Kelley, 142 Conn. 592, 596, 115 A.2d 678. "The entire enactment must be examined and its parts reconciled and made operative so far as possible." United Aircraft Cor poration v. Fusari, supra, 411. When more than one construction is possible, we adopt the one which makes the statute effective and workable, and not one which leads to difficult or bizarre results. Kellems v. Brown, supra, 506; City Savings Bank v. Lawler, 163 Conn. 149, 159, 302 A.2d 252. The saving clause speaks of protecting rights "accruing, accrued, or acquired" and obligations. Court-ordered support payments to "minor children" do not fall within that language for two reasons. First, the order to pay child support in a divorce judgment is not a final adjudication of the rights and duties of the parent and the minor child. The court has continuing jurisdiction to modify such an order. Public Act No. 74-169 § 8, repealing Public Act No. 73-373 § 15 (formerly § 46-23 of the General Statutes); see Raymond v. Raymond, 165 Conn. 735, 737, 345 A.2d 48; Cleveland v. Cleveland, 165 Conn. 95, 100, 328 A.2d 691. Such an order "does not operate to crystallize or limit the duty of the parent to support his minor child, but merely defines the extent of his duty during the life of the order." Rosher v. Superior Court, 9 Cal. 2d 556, 559, 71 P.2d 918. The life of the support order in this case was, if not modified sooner, limited to the period of the child's "minority," as that word is defined by the legislature. It is true that the parties and the court may have expected that the children would remain minors until they reached age twenty-one, but the legislature has now precisely fixed the age of majority at eighteen. Saving clauses do not save such expectations. 82 C.J.S., Statutes, §440; see 16 Am. Jur. 2d, Constitutional Law, § 423. Second, the condition of minority "is a status rather than a fixed or vested right, there being no vested property rights in the personal privileges of infancy." 42 Am. Jnr. 2d 9, Infants, § 1; see Jungjohann v. Jungjohann, 213 Kan. 329, 333, 516 P.2d 904; 43 C.J.S., Infants, §19. The North Carolina Supreme Court, confronted with a similar statute and preexisting support order, stated that "neither the parent nor the infant has any vested right in a support order which would extend the payments beyond the age of emancipation. . . . 'The rule is settled beyond a doubt that majority or minority is a status rather than a fixed or vested right and that the Legislature has such power to fix and change the age of majority.' Valley National Bank v. Glover, 62 Ariz. 538, 159 P.2d 292." Shoaf v. Shoaf, 282 N.C. 287, 290, 192 S.E.2d 299. The Vermont Supreme Court, reviewing a similar fact situation, held as follows: "Nor does the statute fixing the period of minority at the time of the entry of the original decree operate to vest any rights. Minority is a status subject to change by legislative enactment. . . . The status of the Beaudry children is defined not by the decretal order of 1959, but by the terms of 1 V.S.A. § 173. They will attain their majority at the age of eighteen, and the court is without power to order provision for their support . . . beyond that age." Beaudry v. Beaudry, 132 Vt. 53, 58, 312 A.2d 922. In addition to the . Shoaf and Beaudry cases, supra, other jurisdictions have held that even though the age of majority was fixed at age twenty-one at the time of the decree ordering child support payments, the obligation of support terminated upon the effective date of the act lowering the age of majority, or upon the child's attaining age eighteen, whichever the case may be. Speer v. Quinlan, 96 Idaho 119, 525 P.2d 314; Rice v. Rice, 213 Kan. 800, 518 P.2d 477; Jungjohann v. Jungjohann, supra; Fellows v. Fellows, 267 So. 2d 572 (La. App.); Phelps v. Phelps, 85 N.M. 62, 509 P.2d 254; Garey v. Garey, 482 S.W.2d 133 (Tenn.). In the Rice and Jungjohann cases, supra, the argument was raised that statutes affecting substantive rights are not to be applied retrospectively to affect any right accrued or any duty imposed, and that the new age of majority statute; Kan. Stat. Ann. § 38-101 (Sup. 1972); was such a statute. The saving clause involved in those cases; Kan. Stat. Ann. § 77-201 (Sup. 1972); is similar to our General Statutes § 1-le, and provided as follows: "The repeal of a statute does not . . . affect any right which accrued, any duty imposed, any penalty incurred, nor any proceeding commenced, under or by virtue of the statute repealed." The Kansas Supreme Court disposed of that argument by pointing out that it was not applicable. "As we have previously stated the rights of minority are not fixed or vested rights but privileges subject to termination. . . . The statute made eighteen the age of majority from and after July 1, 1972. It affected no rights accrued before that date. It did not reach back to make a person an adult from and after his eighteenth birthday but only operated from and after the effective date of July 1,1972." Jungjohann v. Jungjohann, supra, 335-36; see Rice v. Rice, supra, 804-805. We find the above rationale to be sound on both a legal and public policy basis. We recognize that some courts, including our own Superior Court, have taken a different view. See Vicino v. Vicino, 30 Conn. Sup. 49, 298 A.2d 241; Field v. Field, 291 So. 2d 654 (Fla. App.); Waldron v. Waldron, 13 Ill. App. 3d 964, 301 N.E.2d 167; Kirchner v. Kirchner, 465 S.W.2d 299 (Ky. App.); Baker v. Baker, 80 Wash. 2d 736, 498 P.2d 315. Those eases, however, have not recognized the inconsistency in continuing support orders for eighteen-to-twenty-year-olds who are adults for all other purposes; nor have they recognized that minority is a status. We do not agree with the conclusion reached by the court in Vicino v. Vicino, supra. We therefore conclude that minority is a status with no fixed, vested or accrued rights in future support; that the saving clause in § 1-le of the General Statutes does not authorize either a parent or the emancipated child to enforce court-ordered support for a "minor" child once the child has reached eighteen years of age; and that court-ordered support for a "minor" child terminates when that child reaches the age of eighteen on or after October 1, 1972. There is error and the case is remanded with direction to grant the defendant's motion to modify. In this opinion the other judges concurred. See, e.g., General Statutes § 45-96a (§ 73 of the act) which states that the word majority as used in a will or trust instrument prior to the effective date of the act is to be construed to mean a person who has attained the age of twenty-one. Reference is made to 15 H.R. Proc., Pt. 5, 1972 Sess., p. 2078, 'wherein Bepresentative Albert B. Webber stated that "this bill provides that nothing which had heretofore been done on the basis of the present age of the [sic] majority of 21 years shall be impaired. This means, for example, that court decrees in effect before the effective date of this act providing for the support of minors shall apply until the age of .21." But see the previous paragraph on the same page wherein Bepresentative Webber stated that orders for support will cease at age eighteen. See also 15 S. Proc., pt. 3, 1972 Sess., p. 1057, wherein Senator William E. Strada, Jr., commented that the "[b]ill imposes responsibilities as well as granting privileges." He then listed examples including the reduction to eighteen of the age at which children are no longer covered by the support statutes.

Peters, J. The principal issue in this case is the admissibility into evidence of certain items seized, on a suspicion of arson, during a belated warrant-less search of burnt-out premises. The defendant, Frederick Schonagel, is appealing from his conviction, after a jury trial, of conspiracy to commit arson in the second degree in violation of General Statutes §53a-48 (a) and 53a-112 (a) (1) (B) (2). The jury could reasonably have found the following facts. The defendant owned and operated Tire City, a tire dealership located in two main structures on Boston Avenue in Bridgeport. The defendant had insured the business in an amount in excess of $500,000. On Thursday, September 22, 1977, the defendant procured the services of a Tire City employee, Anderson Velasquez, and his younger brother, John Velasquez, to set fire to the premises. Urging them to obtain six five-gallon containers full of gasoline, the defendant promised to pay the Velasquez brothers $20,000 out of the $500,000 insurance payment he hoped to collect. Later that evening, the defendant gave Anderson the keys to Tire City, as well as more detailed instructions on how to set the fire. Around midnight, the Velasquez brothers drove to Tire City. They poured gasoline from the containers throughout the two buildings, leaving trails of the flammable liquid to the entrances. At around 3 a.m. on Friday, September 23, 1977, the gasoline ignited, causing a tremendous explosion. Anderson fled, John was knocked nnconscions, and in the ensuing conflagration both buildings were destroyed. The defendant raises four issues on appeal. First, he claims that the trial court erred in admitting into evidence two crushed metal containers, seized by the police from the debris of Tire City during a warrantless search on September 26, 1977, because their admission violated his right to be free from unreasonable searches and seizures, as that right is guaranteed by the fourth and fourteenth amendments to the United States constitution and article first, § 7, of the constitution of Connecticut. Second, he claims the trial court erred in admitting the same containers into evidence as exhibits, because the state was unable to identify them as the gasoline cans used in the commission of the crime. Third, he claims the trial court erred in denying his motion to dismiss, because the state's failure to disclose the names of witnesses who had made allegedly exculpatory statements to the police had deprived him of due process and a fair trial. Fourth, the defendant claims the trial court erred in permitting testimony as to his use of cocaine, because the probative relevance of such evidence of a prior bad act was outweighed by its prejudicial impact. We will consider each of these claims in turn. I The facts concerning the contested search and seizure are essentially undisputed. Officials of the Bridgeport fire and police departments suspected arson as soon as they arrived at the scene on Friday, September 23, 1977, within minutes after the explosion occurred. The magnitude and intensity of the flames and the simultaneity of the fires in separate buildings were consistent with the use of an accelerant such as gasoline in starting the fires. Moreover, when the unconscious John Velasquez was dragged from one of the fiery buildings, the police observed that he smelled strongly of gasoline. A patrolman was immediately stationed at the scene to prevent looting and the premises remained guarded twenty-four hours a day until September 28,1977. Later on that Friday morning, the Bridgeport building inspector determined that what remained of the structure was in danger of imminent collapse and ordered it demolished. At the request of the defendant's insurer, however, demolition was postponed for a half hour to permit measurements to be made and photographs to be taken of the premises. Thereafter the buildings were flattened. Work was then discontinued during the weekend of September 24 and 25. On Monday morning, September 26, 1977, the demolition contractor, using trucks, payloaders, and bulldozers, continued dismantling what remained of the buildings and began carting away the debris. On that same Monday, at about noon, John Velasquez made a statement to the police confessing his part in the arson and implicating the defendant. In his statement, he referred to the gasoline cans used in starting the fire. Without any effort to obtain a warrant, an officer was immediately dispatched to the Tire City premises to search for the cans. Within an hour, two crushed and corroded metal containers were discovered. The warrantless search continued the following day, and resulted in the seizure of a brick and soil samples. During the trial, the defendant made a motion to suppress the seized articles; i.e., the containers, the brick and the soil samples. The state, in opposing the motion, argued that the defendant no longer possessed a reasonable expectation of privacy in the premises at the time of the search, and that, with respect to the metal containers, the exigent circumstances created by the ongoing removal of debris made it necessary to forgo the obtaining of a warrant. Without issuing a memorandum of decision, the trial court granted the motion to suppress the brick and soil particles, citing Michigan v. Tyler, 436 U.S. 499, 98 S. Ct. 1942, 56 L. Ed. 2d 486 (1978), in which the United States Supreme Court held that once a reasonable time after a fire has elapsed, additional entries to investigate the cause of the fire must be made pursuant to a warrant. Id., 511. The motion to suppress the metal containers was denied. On appeal, the state concedes that the search conducted for the gasoline cans may be sustained, if at all, only by the exigent circumstances surrounding it. The defendant claims (a) that no exigent circumstances existed, (b) that in light of the state's continuing failure to obtain a warrant as the search persisted through the following day, the claim of exigency is pretextual, and (c) that whatever exigency existed on September 26 resulted from the state's failure to act expeditiously in investigating the arson once it had probable cause to obtain a search warrant, which the defendant claims was already established on Friday, September 23. Because we agree with the defendant that the state did not establish the existence of exigent circumstances, we do not consider his second and third claims of error on this aspect of his appeal. According to well-settled principles, the fourth amendment, and its state counterpart, article first, § 7, forbid as unreasonable most searches that are conducted outside of the judicial process. Mincey v. Arizona, 437 U.S. 385, 390, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978); Coolidge v. New Hampshire, 403 U.S. 443, 481, 91 S. Ct. 2022, 29 L. Ed. 2d 564, reh. denied, 404 U.S. 874, 92 S. Ct. 26, 30 L. Ed. 2d 120 (1971); Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967); State v. Zindros, 189 Conn. 228, 236-37, 456 A.2d 288 (1983); State v. Federici, 179 Conn. 46, 53, 425 A.2d 916 (1979). Because the requirement of obtaining a warrant is the rule, and exceptions to that requirement are few and jealously guarded, anyone claiming an exemption from that requirement bears the burden of showing the need for it. Arkansas v. Sanders, 442 U.S. 753, 759-60, 99 S. Ct. 2586, 61 L. Ed. 2d 235 (1979); United States v. Bruton, 647 F.2d 818, 822 (8th Cir.), cert. denied, 454 U.S. 868, 102 S. Ct. 333, 70 L. Ed. 2d 170 (1981); State v. Zindros, supra, 237; State v. Krause, 163 Conn. 76, 80, 301 A.2d 234 (1972); State v. Keeby, 159 Conn. 201, 206, 268 A.2d 652 (1970), cert. denied, 400 U.S. 1010, 91 S. Ct. 569, 27 L. Ed. 2d 623 (1971). Nonetheless, there are circumstances where the societal costs of obtaining a warrant outweigh the reasons for prior recourse to a neutral magistrate. When confronted with emergency situations in which the delay necessary to obtain a warrant creates a risk of loss or destruction of evidence, courts have recognized that such exigency makes a warrantless search not unreasonable. Schmerber v. California, 384 U.S. 757, 770-71, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966); United States v. McEachin, 670 F.2d 1139, 1144 (D.C. Cir. 1981); State v. Januszewski, 182 Conn. 142, 152, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981); State v. Krause, supra, 81. See 2 LaFave, Search and Seizure § 6.5 (1972). We recognize that exigency is not the only basis upon which warrantless searches may be sustained, but we believe it to be the only issue properly before us on the present appeal. As this case comes to us, there is no occasion to find either an abandonment of the defendant's reasonable expectation of privacy or a valid consent to the search that took place. When the trial court ordered suppression of the brick and soil particles seized by the police on September 27, it necessarily determined, as a matter of fact, that the defendant retained a reasonable expectation of privacy in the searched premises at that time. See State v. Zindros, supra, 236, 239-40. The state has taken no issue on this appeal with that order. Consequently the state has not argued that the defendant's privacy interest was different on September 26, with regard to the containers whose seizure was upheld, than on the following day, with regard to the seizure of the brick and soil particles which were suppressed. There can be no doubt that the trial court ruled on the privacy issue on all the items seized in the defendant's favor. Because the defendant had obtained a favorable ruling on the privacy issue, and because the state in its brief conceded that the search could be sustained only by a finding of exigent circumstances, we would be justified in overturning the trial court's finding of fact on privacy only if we found it to be plain error. The record does not support such a conclusion. There was evidence at the trial that the defendant owned not only the buildings and the business of Tire City but the underlying real property as well. A representation, at oral argument, that, at the time of the search, the defendant had recommenced doing business on the premises was not challenged by the state. This evidence, while not voluminous, suffices to sustain the trial court's ruling in the present procedural circumstances. There is even less in the record concerning the defendant's consensual abandonment of his right of privacy. There was some evidence that the defendant's insurer, by virtue of the insurance contract, had a right to inspect the premises in the event of a fire. The state has not argued that consent to entry, given to one person or class of persons, automatically confers license upon the police to enter the premises in search of evidence of criminal conduct. The authorities are to the contrary. See Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 329, 99 S. Ct. 2319, 60 L. Ed. 2d 920 (1979); Lewis v. United States, 385 U.S. 206, 211, 87 S. Ct. 424, 17 L. Ed. 2d 312 (1966), reh. denied, 386 U.S. 939, 87 S. Ct. 951, 17 L. Ed. 2d 811 (1967). It is true that at the time the search occurred, the defendant's buildings had been substantially demolished and their component parts and contents were being removed from the premises. In determining whether the defendant retained a reasonable expectation of privacy in the underlying premises, however, the issue is not whether "a given 'area,' viewed in the abstract, is 'constitutionally protected .'" Katz v. United States, supra, 351. But cf. State v. Stavricos, 506 S.W.2d 51 (Mo. Ct. App. 1974); State v. Aragon, 89 N.M. 91, 547 P.2d 574 (1976). Rather, the issue is whether the disputed search violated the expectation of privacy upon which the defendant justifiably relied. See Katz v. United States, supra; 1 LaFave, supra, $2.2, p. 273 (1972). What an individual seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. Katz v. United States, supra, 351-52. In the present ease, the condition of the premises at the time of the search resulted from both the fire and the dismantling operation ordered by the Bridgeport building inspector. The extent of the destruction produced by the fire alone is not the subject of our inquiry. It suffices to note that a fire does not necessarily diminish the owner's reasonable expectation of privacy in the burned building. See Michigan v. Tyler, supra, 506; State v. Zindros, supra, 242. The dismantling operation was undertaken based on a hazard to public safety perceived upon inspection by the municipal administrator competent to make such a determination. The United States Supreme Court has recognized that inspections undertaken to abate dangerous conditions, "because [they] . . . are neither personal in nature nor aimed at the discovery of evidence of crime, . . . involve a relatively limited invasion of the urban citizen's privacy." (Emphasis added.) Camara v. Municipal Court, 387 U.S. 523, 537, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967); see also Reich, "Midnight Welfare Searches and the Social Security Act," 72 Yale L.J. 1347 (1963). It follows that the remedial operations which are the natural result of such an inspection do not necessarily attenuate further the owner's expectation of privacy. In finding the defendant retained such an expectation, the trial court might well have concluded that m the confused aftermath of the blaze the defendant did not see the full implication, as far as his privacy interests were concerned, of the dismantling operation. His presence on the premises, at the time of the search, is as consistent with exercise of his right to privacy as it is with his abandonment of any such expectation. We cannot say, under the circumstances, that the court's finding was plainly in error. The question before us is, therefore, whether the trial court was correct in its determination that exigent circumstances excused the failure of the police to obtain a warrant before they searched the remains of the Tire City premises on September 26. We recognize that the existence of exigent circumstances is a question of fact; United States v. Brock, 667 F.2d 1311, 1318 (9th Cir. 1982); United States v. Williams, 630 F.2d 1322, 1327 (9th Cir.), cert. denied sub nom. Murchison v. United States, 449 U.S. 865, 101 S. Ct. 197, 66 L. Ed. 2d 83 (1980); and that we are bound to uphold the trial court's denial of the defendant's motion to suppress if there is a reasonable view of the evidence that will sustain it. United States v. Williams, supra, 1327; see State v. Zindros, supra, 238. We therefore accept as proven the state's contention that, at the time when the police learned of the existence of the gasoline cans, their imminent removal from the searched premises was a distinct possibility. On the present record, however, that possibility does not suffice to establish that there was then an emergency "which would render a search ineffective if delayed by the time necessary to get a warrant." State v. Krause, supra, 81. The present record rebuts exigency because it contains nothing to show that it was impossible or unreasonable for the police to obtain a temporary halt to the removal of debris while they went to get a warrant. Apparently the police made no such effort. The previous Friday, according to the evidence, razing of the burnt-out structure had been halted at the request of insurance investigators, even after the building inspector had determined the structure to be a hazard to the public. There was no evidence that, on the Monday of the search, a delay in completion of the removal work would have endangered the public safety, would have created additional danger, or would otherwise have been unreasonable. See United States v. Gargotto, 510 F.2d 409, 411 (6th Cir. 1974), cert. denied, 421 U.S. 987, 95 S. Ct. 1990, 44 L. Ed. 2d 477 (1975). Since a police officer was already on the premises, he could have ensured that no evidence would be removed during the short time that obtaining a warrant would have taken. United States v. McEachin, 670 F.2d 1139, 1146 (D.C. Cir. 1981). We note, as have other courts, that it is more difficult to demonstrate exigency when the claimed risk relates to the fear of removal rather than of destruction of evidence that the police want to seize without a warrant. United States v. Rubin, 474 F.2d 262, 268 (3d Cir.), cert. denied sub nom. Agran v. United States, 414 U.S. 833, 94 S. Ct. 173, 38 L. Ed. 2d 68 (1973); People v. Smith, 5 Ill. App. 3d 341, 350, 275 N.E.2d 480 (1971). See 1 LaFave, supra, § 3.2, p. 449. When there are reasonable alternatives to a warrantless search, the state has not satisfied its burden of proving exigent circumstances. United States v. Kunkler, 679 F.2d 187, 191-92 n.3 (9th Cir. 1982); United States v. Adams, 621 F.2d 41, 44-45 (1st Cir. 1980); United States v. Dias-Segovia, 457 F. Sup. 260, 273 (D. Md. 1978). The exception for exigency, like other exceptions to the warrant requirement, is limited in reach "to that which is necessary to accommodate the identified needs of society." Arkansas v. Sanders, 442 U.S. 753, 760, 99 S. Ct. 2586, 61 L. Ed. 2d 235 (1979); Mincey v. Arizona, 437 U.S. 385, 393, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978); Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971). The state contends that even if the trial court's failure to suppress the metal containers was erroneous, the error was harmless. We cannot agree. As the state acknowledges, where the error of the trial court intrudes upon the constitutional rights of the accused, it is the state's burden to show that the error was harmless beyond a reasonable doubt. State v. Truppi, 182 Conn. 449, 465, 438 A.2d 712 (1980), cert. denied, 451 U.S. 941, 101 S. Ct. 2024, 68 L. Ed. 2d 329 (1981); State v. Sorbo, 174 Conn. 253, 257, 386 A.2d 221 (1978). In this case, the metal containers served to corroborate the only testimony, that of the Velasquez brothers, which unequivocally implicated the defendant in the conspiracy with which he was charged. It is true that defense counsel vigorously cross-examined these witnesses concerning alleged inconsistencies in their testimony and as to their respective criminal activities and records. Nonetheless, we recognize, as do the commentators, that the containers themselves, present with the jury in the jury room, may well have played a major role in the jury's deliberations. "Real proof often has enormous apparent probative force because the lay trier may lose sight of the fact that its connection to a party may depend upon the credibility of an authenticating witness." 5 Weinstein's Evidence § 901(a) [01] (1982). "[T]here is a general mental tendency, when a corporal object is produced as proving something, to assume, on sight of the object, all else that is implied in the case about it." (Emphasis in original.) 7 Wigmore, Evidence (Chadbourn Rev. 1978) §2129, p. 704; see McCormick, Evidence (2d Ed. 1972) § 212, pp. 521 — 25. We conclude that we cannot find the error harmless in the present circumstances. See State v. Onofrio, 179 Conn. 23, 32, 425 A.2d 560 (1979); State v. Acklin, 171 Conn. 105, 116, 368 A.2d 212 (1976). II Even if the search had not violated the defendant's constitutional rights, the defendant claims that admitting the two metal containers into evidence was error because there was an insufficient evidentiary foundation for their identification. Since we have determined the inadmissibility of these containers on constitutional grounds, we need not consider this claim of error. m The defendant's third claim on appeal is that the trial court erred in denying the defendant's motion to dismiss on grounds of the state's failure to disclose, until the trial was under way, three allegedly exculpatory statements made to the police during their pretrial investigation. The statements established the following: that a man resembling John Velasquez was seen in a Howard Johnson's restaurant shortly before the explosion on September 23, 1977; that two males were seen running from the vicinity of Tire City shortly after the explosion; and that a black or Hispanic man was seen running from the scene after the explosion, and that he got in a car and drove away. The defendant claims that the evidence contained in these statements was exculpatory in that (a) it contradicted testimony of the Velasquez brothers than John Velasquez had visited the Howard Johnson's restaurant at 9:30 p.m. to hear the defendant's proposal and had not subsequently returned there and (b) it tended to contradict the state's theory that the arson was committed by only two individuals. The statements have now been disclosed to the defendant. Any prejudice to his defense which resulted from their nondisclosure may be avoided upon retrial. It is therefore necessary only to determine whether the trial court erred in denying the defendant's motion to dismiss. We conclude that it did not. It is undisputed that the state has both a statutory and constitutional obligation to disclose all material evidence it possesses that is favorable to an accused. See United States v. Agurs, 427 U.S. 97, 107, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976); General Statutes § 54-86c; State v. Packard, 184 Conn. 258, 277, 439 A.2d 983 (1981). "The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish 'materiality' in the constitutional sense." United States v. Agurs, supra, 109-10; State v. Bember, 183 Conn. 394, 405, 439 A.2d 387 (1981). We are not persuaded that the undisclosed material created a reasonable doubt that did not other wise exist. State v. Bember, supra, 406-407. Even if we were to assume that the undisclosed information was material, the proper remedy in the circumstances of the present case would have been an order for a continuance once the statements were made available or a declaration of mistrial. See Practice Book § 747. The defendant did not request these remedies. The trial court therefore properly denied the defendant's motion to dismiss. IV The defendant's fourth and final claim is that the trial court erred in admitting and failing to strike testimony of Robert Kettles that the defendant purchased for his own use $50,000 worth of cocaine in the six-month period prior to the fire. The state argues on appeal that the large expenditure is probative of motive, in that it establishes a financial incentive to commit the arson. The defendant claims that absent evidence that he could not otherwise afford the expenditure, the testimony is irrelevant and inflammatory. Because the issue is likely to arise on retrial, we consider it now. Our review of the record indicates that on at least three occasions prior to Kettles' testimony, the jury heard testimony that the defendant used drugs, including cocaine. No objection was raised by defense counsel at those times. On one of those occasions, the testimony concerning the defendant's use of drugs was elicited by defense counsel himself. Under the circumstances, the additional prejudice that might have resulted from Kettles' testimony was insignificant. The trial court properly admitted the evidence and denied the motion to strike. If the defendant, upon retrial, properly preserves an objection to this testimony, it will be the responsibility of the trial court carefully to balance the relevance and the prejudicial impact of evidence of drug use. The trial court will have to consider to what extent an expensive drug habit is probative of motive to commit arson, and to what extent the state has proven that the defendant cannot afford his habit. Especially if the probative value of such testimony is found to be minimal, the trial court will have to weigh carefully its potential for seriously prejudicing the jury against the defendant. State v. Carter, 189 Conn. 631, 642-44, 458 A.2d 379 (1983); State v. Nardini, 187 Conn. 513, 521-22, 447 A.2d 396 (1982); State v. Marquez, 160 Conn. 47, 52, 273 A.2d 689 (1970). Because we cannot predict the course of a new trial, we cannot give further direction on this issue at this time. There is error, the judgment is set aside and a new trial is ordered. In this opinion the other judges concurred. "[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." "[General Statutes (Eev. to 1979)] See. 53a-112. arson in the second degree : class c felony, (a) A person is guilty of arson in the second degree when he starts a lire or causes an explosion: (1) With intent to destroy or damage a building , . . (B) whether his own or another's, to collect insurance for such loss; and (2) such act subjects another person to a substantial risk of bodily injury or another building to a substantial risk of destruction or damage." The state, in its brief, concedes that the search by the police was not "motivated by a need to correct a potentially dangerous condition on the premises or to locate any objects which could possibly cause a future fire. The safety of surrounding premises or people was not the moving factor." We note that the declarants of two of the undisclosed statements were ealled as witnesses at trial, where their testimony reiterated the contents of their prior statements. The third declarant, who had witnessed the flight of two males, was unavailable to testify at trial; however, a defense witness testified that he saw four Hispanie youths fleeing the scene shortly after the Are. Practice Book § 747 (formerly §2158) provides: "SANCTIONS nob failure to comply. If the prosecuting authority fails to comply with Sec. 740, the judicial authority may, on motion of the defendant or on his own motion, grant appropriate relief, which may include one or more of the following: (1) Eequiring the prosecuting authority to comply; (2) Granting the defendant additional time or a continuance; (3) Believing the defendant from making a disclosure required by See. 756, prohibiting the prosecuting authority from introducing specified evidence, or dismissing the charges; or (4) Entering sueh other order as he deems proper."

Bogdanski, J. This controversy arose ont of a nniqne factual context, one which occurs perhaps once in a generation: The separation in wartime of children from their parents. It has given rise to six appeals, all of which stem from the same chain of events starting in Vietnam in the 1970s. The plaintiff is the mother of two minor children, Mark and Paul, who are the subject of this action. The plaintiff is also the mother of a third son, Larry, bom in 1972'. All three boys are of mixed Vietnamese and Caucasian blood. On September 16, 1976, the plaintiff filed a petition for a writ of habeas corpus seeking the return of Mark and Paul, whom she had relinquished in Vietnam to Friends For All Children (hereinafter FFAC) on April 14, 1975. She claimed that (1) the relinquishment was revocable under Vietnamese law; (2) the relinquishment document was signed under duress; and (3) it would be in the best interest of the children to be with their natural mother. On April 22, 1977, the trial court found all three issues for the defendants. The plaintiff and her children lived in Vietnam until 1975. At the trial, the plaintiff testified that, towards the end of the Vietnam war, she became frightened that if the North Vietnamese took over Saigon, she and her children would be killed. Throughout the war, rumors prevailed that the North Vietnamese would kill civilians and that mixed blood children would be in particular danger. During late 1974 and early 1975, the North Vietnamese army captured large parts of South Vietnam. Newspapers and television media carried stories of refugees fleeing the captured areas. One witness told of television news of dead people in the streets, and children trying to crawl on their mothers' corpses. The plaintiff herself recalled the news of massive civilian deaths when the North Vietnamese had temporarily captured the city of Hue in 1972. As the northern army came closer to Saigon, the plaintiff became more fearful for her children. There was a general atmosphere of panic and fear in the city. In early April, 1975, in response to the emerging military situation, the United States Agency for International Development and the South Vietnamese Ministry of Social Services jointly arranged Operation Babylift, the evacuation of over 2000 children from orphanages in Vietnam. The Vietnamese government issued collective permits for children evacuated in a group, and waived much of the individual documentation normally required for foreign adoptions. Most, but not all, of the children were orphans in various stages of adoption. Vietnamese parents in some cases gave up their children for adoption in the United States through the babylift when they themselves could not arrange a way out of the country. In the fall of 1974, the plaintiff began making plans to get her children out of Vietnam and to the United States. She did not, however, part with the children until April, 1975. The plaintiff asked the defendant Lucas, an American working in Saigon, to take her children to the United States. He agreed to do so providing he could adopt them and arranged for the plaintiff to sign a relinquishment document to Friends For All Children, Inc., an American international adoption agency operating in Saigon with which Lucas had had a prior relationship. Lucas had been a volunteer foster parent to some of FFAC's children and had discussed adoption with the agency before. On April 15,1975, the plaintiff signed an FFAC document entrusting the two children to the agency. The English translation of the relinquishment document stated, "I the undersigned . . . having sole custody of this child, do hereby irrevocably relinquish all my parental rights and custody of the said child to Friends For All Children, Saigon. I release this child for the purpose of adoption by suitable adoptive parents who can assure his/her future. I understand that once the adoption has been consummated legally, the adoptive parents will assure all the legal rights and responsibilities for the child. I hereby waive any rights which I now have as mother to the child." The two older boys were taken out of Vietnam by FFAC on April 24, 1975, and sent to live with Lucas' brother and sister-in-law in Massachusetts while Lucas remained in Thailand. When she signed the FFAC document, the plaintiff had no way of getting to the United States herself. Sometime later, however, she was able to arrange for her own transportation to the United States leaving her youngest child in Vietnam with an American minister. When the plaintiff arrived in this country, she immediately began a long legal battle for the return of her children. In its 1977 decision, the trial court found that the plaintiff voluntarily relinquished her parental rights in the two children, that the relinquishment agreement was not revocable under Vietnamese law and that, even if it was revocable, the court would not accord comity to such an unlimited right of revocation. The court further concluded that the legal issue was reduced to a case in which a natural mother, who had relinquished her parental rights, wished to abrogate her agreement. The court then applied the "best interests of the child" test set forth in General Statutes § 46b-56 (formerly § 46-42) and ruled that the children should remain with Lucas. On her appeal, the plaintiff asserts that the trial court, in effect, terminated her parental rights which it had no authority to do. We agree. In this habeas proceeding, the trial court had no jurisdiction to terminate parental rights. This is so even though it was the plaintiff who requested the court to rule on the validity of the relinquishment agreement. It is well settled that a claim that a court lacks subject matter jurisdiction cannot be waived by the parties. LaBow v. LaBow, 171 Conn. 433, 440, 370 A.2d 990 (1976). Termination of parental rights means "the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and his parent or parents so that the child is free for adoption . . . General Statutes §45-61b (g). It is a most serious and sensitive judicial action. In re Juvenile Appeal (Anonymous) 181 Conn. 638, 640, 436 A.2d 290 (1980). " 'Although that ultimate interference by the state in the parent-child relationship may be required under certain circumstances, the natural rights of parents in their children "undeniably warrants deference and, absent a powerful countervailing interest, protection.' " Ibid, quoting In re Juvenile Appeal (Anonymous), 177 Conn. 648, 671, 420 A.2d 875 (1979). Parental rights may be terminated by decree of the probate court pursuant to General Statutes § 45-61c (b) or by decree of the juvenile division of the Superior Court in a proceeding brought by the commissioner of children and youth services under § 17-43a. Neither procedure was followed in the present case. Although the defendants argue that the trial court did not seek to terminate the plaintiff's parental rights, that clearly was the effect of its ruling when it found that the relinquishment was irrevocable. The relinquishment document signed by the plaintiff did not terminate the plaintiff's parental rights under Connecticut law. Even if the relinquishment were irrevocable under Vietnamese law, we would not accord comity to it. "[CJomity is a flexible doctrine, the application of which rests in the discretion of the state where enforcement of a foreign order is sought. Because comity is a flexible doctrine, its contents are peculiarly subject to the dictates of public policy and considerations of fairness to litigants." Walzer v. Walzer, 173 Conn. 62, 70, 376 A.2d 414 (1977). It is the public policy of this state that a court of competent jurisdiction approve a termination petition. See General Statutes § 45-61a through § 45-61f. Under our law termination of parental rights cannot be effected through private contractual arrangements. In her complaint, the plaintiff had petitioned the court for the custody of her children to vindicate her parental rights. Exercising its habeas powers, the court could decide the issue of custody, based upon the best interests of the children, so long as it did so with due regard for the plaintiff's parental rights. In any controversy between a parent and a stranger, the parent " 'should have a strong initial advantage, to be lost only where it is shown that the child's welfare plainly requires custody to be placed in the stranger.' " In re Juvenile Appeal (Anonymous), 177 Conn. 648, 662, 420 A.2d 875 (1979). "The right to the integrity of the family is among the most fundamental rights guaranteed by the fourteenth amendment." State v. Anonymous, 179 Conn. 155, 162-63, 425 A.2d 939 (1979). Thus, the plaintiff has a constitutional right to preserve her parental rights in the absence of a powerful countervailing state interest. Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972). This amounts to a presumption which the defendant must overcome. To the extent that the language in such cases as Howarth v. Northcott, 152 Conn. 460, 464, 208 A.2d 540 (1965), and Antedomenico v. Antedomenico, 142 Conn. 558, 562, 115 A.2d 659 (1955), which involved custody contests between biological parents, suggests a rule different from that which we articulate today for disputes involving a third party, those cases are hereby overruled. On remand, the trial court may not consider the relinquishment a controlling factor in determining custody. The relinquishment does not abrogate the presumption in favor of parental custody. As the natural parent, the plaintiff is entitled to custody unless it is established that the children's welfare plainly requires otherwise. The trial court also ordered visitation between the plaintiff and the children to take place on October 2 and 3,1978. On October 2, the defendants filed an appeal and failed to produce the children on the assumption that the appeal automatically stayed the visitation order. On October 4, 1978, the plaintiff moved that the defendant be held in contempt for failure to comply with the visitation order. The court, however, declined to act on the contempt motion until this court had acted on the appeals. The plaintiff now assigns error in the court's refusal to grant her contempt motion. Since the trial court did not decide the issue on the merits, we cannot review its decision. This court hears no evidence and cannot find facts. Pelc v. Danbury, 166 Conn. 364, 366, 349 A.2d 825 (1974). The plaintiff has also raised other claims of error in the denial of her writ of habeas corpus. Because our determination requires reversal, they need not be considered. As already noted, five other appeals are involved in this controversy. The defendant has appealed from decisions of the trial court ordering visitation by the plaintiff to take place on October 2, 3 and 10,1978. Since those dates are long past, these appeals are now moot. "'[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). The defendant has also appealed from an order of the trial court granting the plaintiff visitation from January 22, 1979, until January 26, 1979, between the hours of 1 p.m. and 4:30 p.m. daily and each year thereafter five days during the month of January, the specific days to be ordered by the court, and daily on the Monday following Easter Sunday, to the Friday of each year between the same hours and under the same conditions. On January 4, 1980, the court ordered dates for visitation to be January 21-25, 1980. On January 18, 1980, the defendant took an appeal from this order also. General Statutes § 46b-56 provides that the Superior Court may make any proper order regarding the visitation of children, guided by the best interests of the children. The court's decision must stand unless it abused its discretion. Spicer v. Spicer, 173 Conn. 161, 162, 377 A.2d 259 (1977). We find no such abuse of discretion present here. On July 5, 1978, the plaintiff again moved for custody. This was denied by the court on November 8, 1978. The plaintiff appealed on December 26, 1978. The present decision renders this issue moot. With respect to the appeal of the habeas corpus action, there is error, the judgment is set aside and the case is remanded for further proceedings not inconsistent with this opinion. In this opinion the other judges concurred. The youngest child had been placed for adoption in Colorado by another international adoption agency, Friends of Children of Vietnam. A Colorado court eventually returned this child to the plaintiff's custody. In re Le Thanh Tung, Colorado District Court, Adams County, Docket No. J6-5679-N (June 16, 1977) (reporter's partial transcript). Other American courts which have considered similar eases have returned the Vietnamese children to their natural parents. Tinh v. Drury, California Superior Court, Docket No. HCN 0032 (February 8, 1977); Le Thi Sang v. Knight, California Superior Court, San Jaoquin County, Docket No. 125898 (April 26, and September 22, 1977); In re San Nang Hien, California Superior Court, Los Angeles County, Docket No. A-9896 (January 14, 1976); Duong Bich Van v. Dempsey, Michigan Circuit Court, 6th Circuit, Oakland County, Docket No. 76-140499AH (June 21, 1976); Baker v. Scott, Ohio Court of Appeals, Docket No. 38455 (May 29, 1979); Duong Thi Yen Nga v. Coner, Pennsylvania Court of Common Pleas, Miscellaneous Term, Chester County, Docket No. 153 (July 30, 1976). As used by Clark, the term "stranger" means anyone not a parent. It may include relatives, friends or child care agencies. Clark, Domestic Relations § 17.5, p. 591 n.1.

Bogdanski, J. This appeal is from the finding and award of the workmen's compensation commissioner for the sixth district awarding the plaintiff disability benefits for an injury found to have arisen out of and in the course of his employment with the defendant employer. The Court of Common Pleas dismissed the appeal. From that judgment, the defendants have appealed to this court. The material facts found by the 'commissioner are as follows: The plaintiff, Glenn, has been employed as a meat cutter by the defendant Stop and Shop, Inc., since March, 1970. On September 3, 1970, Glenn was lifting a piece of meat at his place of employment when he slipped and fell, injuring his elbow, knee and buttocks. He received medical attention for those injuries, and his employer accepted the accident as a workmen's compensation claim. On January 20, 1971, Glenn was involved in an automobile accident in which he received injuries to his back. After medical attention and rest, he returned to work. Glenn's work consisted of lifting pieces of meat weighing sixty to one hundred pounds onto a lift truck and then trucking it to his work station where he would cut the meat. When the meat was completely cut into pieces, he would start his work cycle again, continuing for a full, eight-hour workday. From September 3, 1970, to December 30,1971, Glenn had periodic low-back and left-leg pain. He was able to continue with his normal work, however, through the week before Christmas, 1971. During that week, in addition to the loading, cutting and unloading of meat, he had to load and unload turkeys. When he returned to work after the Christmas holidays he had great difficulty walking, especially with his left leg, and on December 30, he was in such great pain that he had to leave work. Glenn immediately sought medical attention and was subsequently hospitalized. He was unable to return to work until March 6, 1972. On the basis of the testimony of Dr. Mark Pohlman, a licensed physician who treated Glenn on and after December 30, 1971, the commissioner found that neither the accident at work on September 3, 1970, nor the automobile accident on January 20, 1971, were causally connected with the low-back and left-leg pain that caused Glenn to leave work on December 30, 1971. He did find, however, that "the claimant's low back condition and resulting physical disability were caused by the repetitive heavy lifting required in his employment," and that there was a 5 percent permanent partial disability to Glenn's back. The commissioner then concluded that Glenn's "low back and left leg pain arose out of and in the course of his employment with . . . [Stop and Shop, Inc.] over a long period of time, with primary emphasis on the pre-Christmas period in December 1971 as being the culminating factor in . [his] need for medical and hospital attention." Disability benefits were awarded for Glenn's temporory total disability from December 30, 1971, to March 6, 1972, and for the 5 percent permanent partial disability to his back. On subsequent motion by Stop and Shop, Inc., the commissioner refused to correct the finding and award. On appeal, the Court of Common Pleas reviewed the record certified to it by the commissioner and eonelnded that there was evidence, including competent medical testimony, to support the findings of the commissioner and that those findings reasonably supported his conclusions. On appeal to this court, Stop and Shop, Inc., has assigned error in the trial court's "failing to overrule" the conclusions of the commissioner, in its concluding that Glenn had suffered an injury arising out of and in the course of his employment, and in its overruling of the claims of law raised in the "reasons of appeal." Those assignments of error indicate that Stop and Shop, Inc., misunderstood some of the principles governing judicial review of the finding and award of a workmen's compensation commissioner. The court does not retry the case nor substitute its judgment for that of the commissioner as to the weight of the evidence on questions of fact. General Statutes § 4-183 (g); Practice Book § 435. The court reviews the conclusions of the commissioner to determine whether they are inconsistent with the subordinate facts found and, when a motion to correct the finding has been denied by the commissioner, may he called upon to review the record to determine whether there was any evidence to support the findings. General Statutes § 4-183 (g) (5); Practice Book §435, 437; see Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 174, 355 A.2d 227. The finding will not be corrected unless it contains facts found without evidence or omits material facts that are admitted or undisputed. Practice Book § 435; Wheat v. Red Star Express Lines, 156 Conn. 245, 248, 240 A.2d 859. On appeal to this court the decision of the court on the motion to correct is reviewable. The assignments of error, however, should specify the decision upon each paragraph of the motion desired to be reviewed. Practice Book § 443. Rather than follow that procedure, Stop and Shop, Inc., appears to be directly attacking the commissioner's ultimate conclusion on the ground of the insufficiency of the evidence. That is not a reviewable assignment of error. Mack v. Blake Drug Co., 152 Conn. 523, 525, 209 A.2d 173; Rainey v. Tunnel Coal Co., 93 Conn. 90, 93, 105 A. 333. The conclusion that Glenn suffered an injury that arose out of and in the course of his employment is supported by the commissioner's finding that his low-back condition and left-leg pain were caused by the repetitive heavy lifting required in his employment. "Injury" as used in the Workmen's Compensation Act includes "an injury to an employee which is causally connected with his employment and is the direct result of repetitive trauma or repetitive acts incident to such employment." General Statutes § 31-275. As discussed above, the underlying finding of causation has not properly been assigned as error on this appeal. We note, however, that Stop and Shop, Inc., did request the commissioner to strike that finding in its motion to correct; that the Court of Common Pleas did review the record to determine whether there was any evidence to support it; and that the briefs of the parties are primarily addressed to the issue of whether there was evidence to support the finding of causation. Under those circumstances, the issue is sufficiently identified for our consideration and review. Dr. Pohlman testified that Glenn's back condition was caused by a degenerative disc in the lower lumbar spine which was irritating the nerve in the left leg. He stated that neither Glenn's accident at work nor his automobile accident was causally connected with the degenerative disc. It was his opinion that the repetitive lifting of sixty to one hundred pounds of meat which Glenn was required to do as an incident of his employment for Stop and Shop, Inc., "could have caused degeneration or deterioration of the lumbar disc." He further testified that Glenn had a partial sacralization of his lowermost vertebrae, a congenital defect, which may have been a contributing factor in the degeneration of the disc. Without more, that medical testimony would have been insufficient for the commissioner to find that Glenn's employment was a proximate cause of his back condition and left-leg pain. The rule was stated in Madore v. New Departure Mfg. Co., 104 Conn. 709, 714, 134 A. 259: "If upon the facts the medical expert is merely willing to testify that the disease might have, or was likely to have, resulted from the employment, or the conditions under which it was carried on, but is unwilling to go further and testify that, in his opinion, taking into consideration all of the facts presented and considering every other hypothesis suggested, it was reasonably probable that the disease resulted from the employment, . . . the commissioner or court should not conclude that the disease did result from the employment, unless the facts outside this medical testimony fairly warrant that conclusion." In this case, however, the doctor later responded in the affirmative to the following question: "Doctor, you have given us your opinion earlier based upon reasonable medical probability [that] there is a causal connection between this continuing lifting and . . . [Glenn's] present problems, am I correct in that?" Stop and Shop, Inc., raised no objection to that question or the answer. Moreover, Glenn himself testified that during his employment with Stop and Shop, Inc., and prior to his automobile accident in January, 1971, he was having lower back trouble with pain in his left leg; that after he had fully recovered from the accident, he still experienced the same low-back and left-leg pain during the time that he was working; and that after the additional heavy lifting during the week before Christmas, he felt such extreme pain that he had to leave work on December 30, 1971. The commissioner could have relied on Doctor Poll!man's later assertion that his opinion was based on "reasonable medical probability" as well as Glenn's testimony regarding the nature of his work, his increasing pain and his ultimate disability. Considered in its entirety the evidence was sufficient to support the finding that Glenn's back condition and left-leg pain were caused by the repetitive heavy lifting required in his employment. We cannot say that the commissioner's finding is so unreasonable as to justify judicial interference. Mund v. Farmers' Cooperative, Inc., 139 Conn. 338, 343, 94 A.2d 19; see General Statutes § 4-183 (g). As to the possibility that a congenital defect contributed to the degeneration of the disc, "the employer takes the employee in that state of health which is his when the employment begins." Cashman v. McTernan School, Inc., 130 Conn. 401, 409, 34 A.2d 874. The provision in § 31-275 of the General Statutes that calls for apportionment of compensation in the case of "aggravation of a preexisting disease" refers only to occupational diseases. Cashman v. McTernan School, Inc., supra, overruling Henry v. Keegan, 121 Conn. 71, 183 A. 14; Bongialatte v. H. Wales Lines Co., 97 Conn. 548, 552, 117 A. 696. Thus, aggravation in the course of employment of a nonoccupational disease is compensable. See Tourville v. United Aircraft Corporation, 262 F.2d 570, 571 (2d Cir.). The final claim of Stop and Shop, Inc., is that the medical testimony is not inconsistent with the theory that the degeneration of Grlenn's disc began long before his employment with Stop and Shop, Inc., owing to his occupation as a meat cutter for over ten years. More than theories are required, however, since such an assertion is an attempt to show that there was a preexisting occupational disease. The burden of proof is on the employer to make such a showing. Dombrowski v. Jennings & Griffin Co., 103 Conn. 720, 729, 731-32, 131 A. 745. It failed to meet that burden. The trial court was therefore correct in its determination that the record supported the findings of the commissioner, and that his conclusions were not inconsistent with the facts found or the applicable law. There is no error. In this opinion the other judges concurred.

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

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

Shea, J. The respondent in this action has appealed from the judgment terminating her parental rights in regard to her eleven year old son, T. The judgment relied npon two of the grounds set forth in General Statutes § 17-43a (a): "(2) the parents have failed to achieve any such degree of personal rehabilitation as would reasonably encourage the belief that at some future date they could assume a responsible position in their child's life; or (3) the parents, by reason of continuing physical or mental deficiency have, and for such period of time as will be detrimental to the best interest of the child, will be unable to provide him with the care, guidance and control necessary to his physical, educational, moral and emotional well-being . . . The respondent claims that there was insufficient evidence before the court to support the termination order on either basis cited by the court. We have concluded that the evidence does support the adjudicatory portion of the termination order on the second of those grounds, continuing mental deficiency, as provided in § 17-43a (a) (3). Because the grounds for termination under the relevant statute are listed in the alternative, this conclusion makes it unnecessary to address the trial court's determination that the respondent had failed to achieve a sufficient degree of personal rehabilitation as provided in § 17-43a (a) (2). We find no error in the court's interpretation and application of U7-43a (a) (3). In rendering judgment, the court accepted the findings of the referee to whom the matter had been referred. Taking judicial notice of proceedings prior to the termination hearing, the referee found the following: When neglect proceedings were ini tiated in 1974 the respondent, Mrs. S, as the result of the dissolution of her marriage, had legal and physical custody of her son T, aged three, her daughter B, aged ten, and her son D, aged eleven. T, subject of this proceeding, was removed from his mother and committed to the commissioner of children and youth services after an adjudication by the Juvenile Court that he had been physically abused by Mrs. S and denied adequate emotional nurture in her care. Mr. S, who had remarried, was unable to provide a home for the child at that time. In 1976 an application by Mrs. S for revocation of commitment was denied, the court having concluded that Mrs. S, limited by mental and emotional problems which had not measurably improved with regular therapeutic intervention, could not provide the level of parenting required to care adequately for T, a child with severe developmental problems. On the basis of the evidence presented at the termination hearing, the referee made additional findings regarding both the child T and Mrs. S. T's ability to relate consistently to his foster parents and psychiatric caseworker had improved since his commitment and he was functioning at a behavioral level which permitted him to be placed in a public school for the 1978-79 school year, rather than in the highly structured private school which he had attended for two previous years. Despite this progress, the court found that T, with his devel opmental problems, had exhausted the mental and emotional resources of two sets of motivated and competent foster parents and was certain to bring a high degree of stress to any living situation. His conduct, characterized by rapid mood swings calculated to elicit retaliatory responses from an adult insensitive to his needs, required parents with above average insight and understanding, who could work in cooperation with professional assistance from outside agencies. T intermittently denied the existence of his biological parents, though he saw both of them with relative frequency. He displayed no deep emotional attachment to his mother, despite her biweekly visits with him. Nevertheless, when interviewed by the referee, he expressed a preference, if change were coming, for living with his mother. Mrs. S was found to have continuing mental and emotional problems for which she had been receiving psychiatric treatment once a month at a hospital, prescribed medication, and biweekly home visits from a regional health nurse. She had, however, adequately provided physical care for her two older children within the constraint of a small income provided by disability and aid to dependent children grants. In considering the entire family structure, the referee accepted expert testimony that the adjustment of Mrs. S and her family was marginal and could be undermined easily by additional stress. The fourteen year old daughter B recently had been admitted to a hospital with strap-marks from a whipping Mrs. S had inflicted with a piece of belt when the child had refused to stop screaming after accidentally burning her arm while baking cookies. Since T's commitment, Mrs. S had regularly arranged for visits on alternate Satur days, either in the foster homes or currently at her own home. She was unable, however, to see any change in her son during his years of placement in foster homes and displayed no understanding of the difficulties she would face if T returned to her care. The referee found that the ability of Mrs. S to provide parental care was limited by her continuing mental and emotional, problems. Despite the treatment and other assistance she was receiving, her resources were sometimes stretched beyond their limits in caring for the two older children and she could not realistically be expected to fulfill T's needs. The referee concluded that the state had proved by clear and convincing evidence that the respondent was suffering from a continuing mental deficiency which rendered her unable to provide her son T with the care, guidance and control necessary to his well-being as required by U7-43a (a) (3). I In order to terminate the parental rights of the respondent under $ 17-43a (a) (3) the state was required to prove by clear and convincing evidence (1) that she suffered from a "continuing physical or mental deficiency" and (2) that, by reason of this condition, she had been and would, for such a period of time as would be detrimental to the best interest of the child, be unable to furnish him with the necessary care, guidance and control. See Anonymous v. Norton, 168 Conn. 421, 429, 362 A.2d 532, cert. denied, 423 U.S. 935, 96 S. Ct. 294, 46 L. Ed. 2d 268 (1975); In re Nunez, 165 Conn. 435, 439, 334 A.2d 898 (1973). In regard to the first element, there can be no serious question of the adequacy of the evidence that the respondent suffered from a continuing mental deficiency. When the testimony of the psychiatrist who had treated her for an extended period of time was ruled inadmissible, the court appointed another psychiatrist to make an examination. The report of this psychiatrist, which was admitted into evidence, indicated that Mrs. S had experienced two "mental breakdowns" about twenty-six years earlier, for each of which she was hospitalized for several weeks. During one of these confinements she received shock treatments. Following T's birth, about seven years before trial, she suffered another "breakdown" for which she was hospitalized three weeks. Since then she had been receiving medication for her mental condition and was seen by a psychiatrist each month. Her medical history indicated that she had been diagnosed as suffering from chronic undifferentiated schizophrenia. During the examination, impairment of recent and remote memory was evident. Her thought processes were slow, simple, and very concrete, although there was no evidence of thought disorder. Frequently she did not understand questions asked by the examiner. She had left school at the age of sixteen while she was in the seventh grade. She had a fair amount of knowledge considering her education but had difficulty doing calculations. The diagnosis of the examining psychiatrist was (1) inadequate personality; (2) probable borderline intelligence; and (3) chronic undifferentiated schizophrenia. The report also recommended further testing to rule out a mild organic brain syndrome which some of the respond ent's symptoms suggested. We find no merit in the claim of the respondent that the examination conducted by the court appointed psychiatrist was inadequate to justify the conclusions reached in regard to her mental condition or that the court could not reasonably rely upon the opinion of this expert. The second element required for termination under § 17-43a (a) (3) involves the relationship between the mental deficiency and the ability of the parent to care for the particular child who is the subject of the proceeding. The referee found that the respondent's mental deficiency prevented her from achieving the level of parenting ability necessary to respond to the needs of her son. The respondent challenges the sufficiency of the evidence to support this finding, but it is clear that several witnesses, whose qualifications were never questioned, expressed the same opinion. The report of the examining psychiatrist stated that the low intelligence of the respondent affected her judgment, capacity for insight and ability to empathize with T, to understand the complexities of his behavior, to seek appropriate solutions, and to provide him with the intellectual stimulation he needs; that she suffered from extreme emotional impoverishment and a sense of neediness; that she would not be able to satisfy this very needy child and she might retaliate with abuse; that returning T was likely to set up an intolerable and explosive situation; and that her psychiatric history suggested limited tolerance for stress, and her blunted affect and slow thought processes, most likely the result of chronic schizophrenia, further impair her capacity to relate to others, especially a child. The social worker who investigated the case reported that the psychiatrist who had been treating Mrs. S diagnosed her as "schizophrenic," "a long term disabled person," and "a totally inadequate person who relates poorly." This doctor felt very strongly that she would be unable to relate to T emotionally and meet his needs. The staff at the hospital where Mrs. S was being treated felt that their attempts to teach parenting and related skills to Mrs. S had failed because she had not gained any insight into her own behavior and saw no need to improve her way of relating. The social worker expressed the view that Mrs. S was an inadequate, passive person who lacked the capability of consistently interacting and stimulating a depressed, withdrawn child and could not handle T under stressful situations. Mrs. S had said that .even during her visits with T he ignored her and did not listen to her. Faced with this plenitude of expert testimony in support of the conclusion reached by the referee, the respondent points to testimony about the strong bond of mutual affection which existed between her and T. She claims that few parents could be expected to provide the "extraordinary level of parenting" which the referee found T required and that she should not be penalized for his deficiencies. It is quite clear, however, that the referee found Mrs. S to be a substandard parent, whose "restricted mental, emotional and judgmental resources . . . are presently stretched to and sometimes beyond their outermost limits by her efforts to guide and discipline" her two other children. The reference to T's exceptional needs merely emphasizes the breadth of the gap between her marginal capability and his requirements. Under § 17-43a (a) (3) the court must consider, once mental deficiency has been determined, whether such disability makes a parent incapable of adequately responding to the needs of the particular child involved. The respondent also challenges the refusal of DCYS to extend the visitation periods, as she had requested, in order to allow an opportunity for a more viable mother-son relationship to develop and to verify the prognostications of professionals by actual experience. A decision against overnight visitation had been made after a psychiatric evaluation of Mrs. S in 1975 and was based upon that report as well as the observations of the agency social worker, who concluded that her condition would not permit such an arrangement. "Psychological testimony from professionals is rightly accorded great weight." In re Juvenile Appeal (Anonymous), 177 Conn. 648, 667, 420 A.2d 875 (1979). The considerations advanced by the respondent are more appropriately addressed to the trier than to our function of appellate review. "[W]e are not in a position to second-guess the opinions of witnesses, professional or otherwise, nor the observations and conclusions of the Juvenile Court when they are based on reliable evidence." Id., 668. We find no error in the conclusion of the referee that the petitioner had proved the ground for terminating the parental rights of the respondent in accordance with § 17-43a (a) (3) by clear and convincing evidence. The dissenting opinion, Parskey, J., appears to challenge the constitutionality of § 17-43a (a) (3) as a ground for termination of parental rights, at least as we have construed and applied it in this case. Wisconsin v. Yoder, 406 U.S. 205, 233-34, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972), is relied upon for the proposition that "it is only where the child's essential health and safety needs are in jeopardy that the right of the state to override the parental rights is justified." We disagree with such a reading of that decision, which was rendered in a different context, because the passage relied upon speaks not only of health or safety but also of the "potential for significant social burdens." Id. A further elucidation in the opinion of the criterion for state interference is whether parental control will "impair the physical or mental health of the child, or result in an inability to be self-supporting or to discharge the duties and responsibilities of citizenship, or in any other way materially detract from the welfare of society." Id. We see no conflict between these concerns and those contained in the standard for termination established by § 17-43a (a) (3): inability of the parents "by reason of continuing physical or mental deficiency . to provide [a child] with the care, guidance and control necessary to his physical, educational, moral and emotional well-being . . . ." The dissenting opinion, Parskey, J., also seems to take the broader ground that terminating the parental rights of a mentally deficient parent "introduces a concept of no fault termination of parental rights" which penalizes such a parent for his mentally deficient status. Termination of parental rights is ordinarily a necessary prelude to an adoption or other dispositive action to be taken in the best interests of the child. In weighing the interests of the child against the hardship imposed on the parent, the legislature may properly strike the balance at the point where the mental or physical deficiency, even though not involving fault, is so great as to render the parent incapable of measuring up to the child's needs as those are delineated in U7-43a (a) (3). II A finding that a statutory ground for termination has been established does not automatically require the termination of parental rights, because the statute is phrased permissively: "The superior court . . . may grant such petition upon finding [one of the five grounds for termination] . . . (Emphasis added.) Greneral Statutes § 17-43a. Ordinarily the only purpose served by such a termination is to make a child available for adoption. See In re Juvenile Appeal (Anonymous), supra, 673. In the case before us no other objective is suggested by the evidence. Unless there is a realistic prospect for adoption of T, it would make no sense to sever his existing tie to his mother and set him adrift as a permanent ward of the state. In accordance with this consideration the referee recommended that the decree terminating parental rights not enter until the petitioner had satisfied the court that "T will forthwith or within a reasonable time thereafter, and without the necessity of undergoing an interim placement, be placed in adoption . . . ." The trial court, for reasons undisclosed by the record, and without objection from any party, did not follow this part of the recommendation but simply ordered termination without further evidence of the adoptability of T after affirming two of the statutory grounds found by the referee. Before the referee, a social worker testified that she had found parents who were interested in adopting T even though, they were aware of his problems. The recommendation of the referee indicates that he contemplated a further proceeding in which the prospects for adopting T would be explored in greater depth as the central issue. The failure to conduct such a hearing, even though implicitly assented to by counsel, was error on the part of the trial court and leaves a gap in the termination proceeding which must be filled. Because of the passage of more than three years since the judgment, the deficiency may be more difficult to cure than if the additional hearing had been contemporaneous with the judgment. At this point it would be speculative to assume that the same adoptive home is still available or that prospects for the adoption of T have not changed. Other considerations related to the best interests of T, the touchstone of the dispositional phase of the termination proceeding at which we have now arrived; In re Juvenile Appeal (Anonymous), supra, 673-74; may also have intervened. These would include any substantial change in circumstances which has occurred during the pendency of the appeal indicating that the ground for termination which we rely upon no longer exists. Although we have affirmed the conclusion of the trial court in the adjudicatory phase that the statutory ground for termination of the respondent's parental rights under § 17-43a (a) (3) has been proved, we deem it necessary to remand the case for further proceedings as to the prospects for finding an adoptive home for T and for consideration of whether any substantial change has taken place in the condition of Mrs. S or T which has removed § 17-43a. (a) (3) as a present ground for termination. See Interstate Fur Mfg. Co. v. Redevelopment Agency, 154 Conn. 600, 604, 227 A.2d 425 (1967). The petitioner, of course, would have the burden of satisfying the court of the current likelihood of the adoption of T and the absence of any such change of circumstances by clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745, 769-70, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). In order to minimize any further delay in the final resolution of this matter and in the exercise of our general supervisory power over appeals; Practice Book § 3096; it is ordered that the further proceedings contemplated by this opinion take place within sixty days from this date. It is further ordered that, if any party shall seek review of the determination made by the trial court at such proceedings within the time allowed for taking an appeal prescribed in Practice Book § 3007, the case shall be returned to this court for such review, without the necessity of filing a formal appeal. There is error in part, the judgment is set aside except for the adjudication of the existence of the ground for termination specified in General Statutes § 17-43a (a) (3), and the ease is remanded for further proceedings in accordance with this opinion. In this opinion, Petebs and IIennessy, Js., concurred. "[General Statutes] See. 17-43a. termination op parental rights op child committed to COMMISSIONER, (a) 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 superior court upon hearing and notice, as provided in sections 45-61d and 45-61f, may grant such petition upon finding that over an extended period of time, which, except as hereinafter provided in this subsection, shall not be less than one year: (1) The parents have abandoned the child in the sense that they have failed to maintain a reasonable degree of interest, concern or responsibility as to the child's welfare; or (2) the parents have failed to achieve any such degree of personal rehabilitation as would reasonably encourage the belief that at some future date they could assume a responsible position in their child's life; or (3) the parents, by reason of continuing physical or mental deficiency have, and for such period of time as wiE be detrimental to the best interest of the child, wiE be unable to provide him with the care, guidance and control necessary to his physical, educational, moral and emotional well-being; or (4) there is no ongoing parent-child relationship, which means the relationship that ordinarEy develops as a result of a parent having met on a day to day basis the physical, emotional, moral and educational needs of the ehEd and to allow further time for the establishment or reestablishment of such parent-ehEd relationship would be detrimental to the best interest of the ehEd; or (5) that both parents, or the sole parent of such ehEd have consented to termination of parental rights with respect to such ehEd. The court may waive the requirement that one year expire prior to the termination of parental rights if it finds from the totality of the circumstances surrounding the ehEd that such a waiver is necessary to promote the best interest of the ehEd." The state petitioned for termination on three grounds. General Statutes § 17-43a (a) (2), (3) and (4). After the referee recommended a decision against the respondent on all three grounds, she filed a motion, entitled inappropriately "motion to dismiss," claiming that the referee's findings of fact and the evidence presented by the state were insufficient to support the referee's conclusions. The trial court denied this motion, but did not accept the referee's conclusion that the state had demonstrated the lack of an ongoing parent-ehild relationship as required by General Statutes § 17-43a (a) (4). The referee also recommended the termination of the parental rights of Mr. S to his son under § 17-43a (a) (4), the only ground pressed against him by the state at the time of the hearing. Mr. S consented to the termination of his rights after the referee's decision was announced. Although the decision in Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982), was not announced until after the trial of this case, the referee expressly found that the allegations of the petition in respect to Mrs. S had been established by evidence meeting the "clear and convincing" standard of proof required as a matter of constitutional law for the termination of parental rights. See Santosky v. Kramer, supra, 769-70. Two personal interviews with. Mrs. S, a brief interview with the two older children, and various records of both Mrs. S and T formed the basis for the expert testimony offered by the court appointed psychiatrist. The psychiatrist met with Mrs. S once for one and one-quarter hours and again for one and one-half hours. This court has recognized that length of examination alone does not necessarily detract from the reliability of testimony. Seymour v. Seymour, 180 Conn. 705, 713, 433 A.2d 1005 (1980). Rather, the credibility of the expert opinion is to be evaluated in light of the expert's opportunity to arrive at a reasoned conclusion. Id., 712. Among the records examined were a 1975 psychiatric examination of Mrs. S, a 1975 and 1977 developmental examination of T, a 1975 clinical report and a 1976 psychological examination of T by a children's hospital, a 1977 psychiatric evaluation of Mrs. S and T, a 1979 school psychological report on T, a 1979 psychiatric report on T from another hospital, and a department of children and youth services (DOTS) case summary of T from 1977 to 1979. These reports were a proper basis for expert opinion on psychiatric matters in addition to the interviews, because such reports are commonly relied upon within the profession. State v. Cuvelier, 175 Conn. 100, 107-108, 394 A.2d 185 (1978). Also, "where such evidence is admittéd without objection, it may properly be considered for whatever it is worth on its face in determining the facts in issue." Id., 108. The respondent made no objection to the testimony of the court appointed psychiatrist or to the introduction of her report in evidence. No objection to this hearsay evidence was raised at the trial nor has the respondent claimed it as a basis for error. "Hearsay evidence admitted without objection, if believed by the court, is a sufficient basis for a finding of fact." DeGroat v. DeGroat, 171 Conn. 363, 370 A.2d 963 (1976). The full passage from which the quoted excerpts are taken reads as follows: "To be sure, the power of the parent, oven when linked to a free exercise claim, may be subject to limitation under Prince [v. Massachusetts, 321 U.S. 158, 64 S. Ct. 438, 88 L. Ed. 645 (1944)] if it appears that parental decisions will jeopardize the health or-safety of the child, or have a potential for significant social burdens. But in this case, the Amish have introduced persuasive evidence undermining the arguments the State has advanced to support its elaims in terms of the welfare of the child and society as a whole. The record, strongly indicates that accommodating the religious objections of the Amish by forgoing [sic] one, or at most two, additional years of compulsory education will not impair the physical or mental health of the child, or result in an inability to be self-supporting or to discharge the duties and responsibilities of citizenship, or in any other way materially detract from the welfare of society." (Emphasis added.) Wisconsin v. Yoder, 406 U.S. 205, 233-34, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1952). See footnote 3, supra.

Cotter, C. J. The defendant was convicted after a jury trial of burglary in the third degree in violation of General Statutes § 53a-103 and of larceny in the first degree in violation of General Statutes § 53a-122 (a) (2) in connection with an unlawful entry in a building with intent to commit a crime therein and theft of personal property. He has appealed from the judgment rendered on the verdicts and raises four claims of error. The jury could reasonably have found the following facts. The defendant entered the apartment of Margaret Eusso on April 21, 1977, without her permission by prying open a window. Eusso returned home at approximately 8 p.m. at which time she only caught a glimpse of the intruder's arm before he fled with several thousand dollars worth of personal articles which were not recovered. The police discovered the defendant's fingerprints on a black plastic coin bank which he had moved from the dining room to the bedroom during the burglary. The latent fingerprints found at the scene of the crime were identical to fingerprints of the defendant on file at the New Haven police department. Eusso did not know the defendant and did not authorize him to remove any articles from her home. On June 7,1978, the day before the trial began, the defendant submitted to fingerprinting. These prints also establish that the defendant, Baker, touched the plastic bank. Baker testified and alleged that he accepted the invitation of an acquaintance, Dwight Willoughby, to cut through several backyards to a house which Willoughby identified as his girlfriend's but which in reality belonged to Eusso. There, Willoughby asked the defendant to wait by the back door because his girlfriend did not like unanticipated visitors. Willoughby entered the house from another side and later opened the back door from the inside, wearing gloves, and told Baker to come in. When the defendant entered and followed Willoughby into the bedroom he saw that the drawers had already been pulled from the dresser. Willoughby then handed him a black plastic coin bank, at which point the defendant first realized what was happening and immediately left the house, taking nothing with him. Willoughby testified and denied the defendant's entire story. I The defendant argues for the first time on appeal that he was denied a fair trial because a state's witness improperly brought to the jury's attention the implication that the defendant had been previously involved in criminal activities. To establish that the defendant committed the crime in question the state introduced and compared three separate sets of fingerprints: those obtained from the plastic bank at the scene of the crime, the defendant's prints obtained the day before trial and a copy of the defendant's fingerprints taken by Officer John Lehr of the New Haven police department on August 11,1976, and preserved on a card in a police department file. The state offered Lehr's testimony to lay the foundation for the admission of the fingerprint card dated August 11, 1976. After several preliminary questions Lehr testified concerning his responsibilities and duties on August 11, 1976, and stated "[i]n police nomenclature, I was the doorman at the detention facility." Although the response given could be construed to have created some prejudice in the minds of the jurors, the question posed did not contemplate such a response. The witness could have answered, and indeed a more likely response to the question would have been, that it was his responsibility to take fingerprints. As soon as the statement was uttered the jury was excused. The defendant, however, at no time moved to strike the answer on which he bases this claim of error, nor did he request that the court give the jury any cautionary instructions concerning that answer. Moreover, the defendant's trial counsel at no time moved for a mistrial on grounds of undue jury prejudice or the court's failure either to strike the answer or to give a preña onitary instruction to the jury. Only the most exceptional circumstances will save a claim, constitutional or otherwise, from the fatal consequences of a defendant's failure to make a timely objection. State v. Briggs, 179 Conn. 328, 332, 426 A.2d 298, cert. denied, 447 U.S. 912, 100 S. Ct. 3000, 64 L. Ed. 2d 862; State v. Rogers, 177 Conn. 379, 418 A.2d 50; State v. Adams, 176 Conn. 138, 406 A.2d 1; State v. Evans, 165 Conn. 61, 70, 327 A.2d 576. The policy behind this rule is both ancient and sound and "does not permit a defendant in a criminal case to fail, whether from a mistake of law, inattention or design, to object to matters occurring during a trial until it is too late for them to be corrected or even considered and then, if the outcome proves unsatisfactory, to raise them for the first time on an appeal." State v. Taylor, 153 Conn. 72, 86, 214 A.2d 362, cert. denied, 384 U.S. 921, 86 S. Ct. 1372, 16 L. Ed. 2d 442; State v. Evans, supra, 66; State v. Tuller, 34 Conn. 280, 295. The defendant tries to equate this claim of error with the recognized exception "where the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial." State v. Evans, supra, 70. In the circumstances of this case he cannot now complain of the lack of a cautionary instruction. The remark he complains of revealed nothing of substance. The jury only heard Officer Lehr give his job title without any reference to the defendant or any prior crime for which the defendant may have been charged. Compare State v. Adams, supra. On the present record before us the defendant's counsel may well have made a strategic decision that any further reference to Lehr's remark might have emphasized testimony which left no impact on the jury or which only obscurely hinted to the jury that the defendant may have been involved in prior criminal behavior. See, e.g., United States v. Carter, 448 F.2d 1245 (8th Cir.), cert. denied, 405 U.S. 929, 92 S. Ct. 981, 30 L. Ed. 2d 802; State v. DeFreitas, 179 Conn. 431, 459 n.14, 426 A.2d 799. The record here does not support the defendant's claim that Lehr's answer clearly deprived him of a fair trial. II The defendant also alleges denial of a fair trial due to prosecutorial misconduct in soliciting the testimony of Lehr in order to lay a foundation for and the admission of the August 11, 1976 fingerprint card. He argues that misconduct was committed on the ground that Lehr was an unnecessary witness, that the state had knowledge that his testimony would be prejudicial to the defendant and that the August 11,1976 fingerprint card was merely cumulative because post-arrest fingerprints were available to identify the defendant. A prosecutor must make "patent fairness and impartiality" the foundation of official conduct; State v. Jones, 180 Conn. 443, 458, 429 A.2d 936 (Cotter, C. J., dissenting); and place justice for the guilty as well as the innocent before seeking convictions. State v. Jones, supra; State v. Moynahan, 164 Conn. 560, 568, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S. Ct. 291, 38 L. Ed. 2d 219. " 'A state's attorney should scrupulously avoid questions of probable impropriety.' " State v. Piskorski, 177 Conn. 677, 719, 419 A.2d 866; State v. Brown, 169 Conn. 692, 703, 364 A.2d 186. A demonstrated deliberate effort by a prosecutor to influence the jury against the defendant through the attempted introduction of obviously inadmissible evidence may entitle the defendant to a new trial. United States v. Woods, 486 F.2d 172 (8th Cir.); State v. Hafner, 168 Conn. 230, 249, 362 A.2d 925, cert. denied, 423 U.S. 851, 96 S. Ct. 95, 46 L. Ed. 2d 74. The defendant concedes the relevance of the fingerprint evidence but argues that its prejudicial effect, in light of Lehr's testimony that he, while a doorman at the detention facility, rolled those fingerprints, outweighed its probative value to such an extent that the card was obviously inadmissible when offered by the prosecutor. Evidence is admissible when it tends to establish a fact in issue or corroborate other direct evidence in the case. State v. Crowe, 174 Conn. 129, 384 A.2d 340. In State v. Ralls, 167 Conn. 408, 356 A.2d 147, this court recognized that "[i]n this age and particularly in these times it is a matter of common knowledge that fingerprinting is used in numerous branches of civil service and is not itself a badge of crime." Id., 418. For this reason, there cannot be an automatic rule regarding the admissibility of such evi denee. When, in the exercise of judicial discretion, a trial court determines that the probative value of the fingerprint card outweighs its prejudicial effect, the evidence may be admitted; State v. DeFreitas, 179 Conn. 431, 426 A.2d 799; State v. Turcio, 178 Conn. 116, 422 A.2d 749; State v. Moynahan, 164 Conn. 560, 597, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S. Ct. 291, 38 L. Ed. 2d 219; so that the fact that the trial court in this case admitted the fingerprint card over the objection of the defendant is powerful evidence of its probativity. Evidence which tends to indicate prior misconduct by the defendant may be admitted if it is substantially relevant for some purpose other than to show the probability that the defendant committed the crime for which he is on trial because he is a man of criminal tendencies. United States v. Bradwell, 388 F.2d 619 (2d Cir.), cert. denied, 393 U.S. 867, 89 S. Ct. 152, 21 L. Ed. 2d 135. Reliability is the linchpin in determining the admissibility of identification evidence and that determination depends on the "totality of the circumstances." See Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140. In light of our decision in State v. Ralls, supra, in which it was held that redacted fingerprint cards are not necessarily inadmissible, we cannot say that the fingerprint card in this case was obviously inadmissible when offered by the state. In addition, on the basis of the record before us, and taking into considera tion the failure of the defendant to request cautionary instructions regarding the fingerprint card; Malley v. Manson, 547 F.2d 25 (2d Cir.), cert. denied, 430 U.S. 918, 97 S. Ct. 1335, 51 L. Ed. 2d 598; we cannot conclude that the prejudice resulting from the admission of the August 11, 1976 fingerprint card was of such magnitude as to deny the defendant a fair trial. in A The value of the stolen articles was testified to by Russo, the victim-owner. The defendant claims that before she testified the trial court should have required her to demonstrate her knowledge of the particular values at issue. The trial court exercises judicial discretion in deciding, under the particular circumstances of the case before it, whether to admit a witness' testimony of the value of her property. Coffin v. Laskau, 89 Conn. 325, 329-30, 94 A. 370. Our cases have ruled that the competence of the witness to testify to the value of property may be established by demonstrating that the witness owns the property in question. Misisco v. LaMaita, 150 Conn. 680, 684-85, 192 A.2d 891; Anderson v. Zweigbaum, 150 Conn. 478, 483n, 191 A.2d 133; Saporiti v. Austin A. Chambers Co., 134 Conn. 476, 479-80, 58 A.2d 387; Lovejoy v. Darien, 131 Conn. 533, 536, 41 A.2d 98. The rule establishing an owner's competence to testify reflects both the difficulty of producing other witnesses having any knowledge upon which to base an opinion especially where the stolen items are never recovered; see Jeffries v. Snyder, 110 Iowa 359, 362, 81 N.W. 678; and the common experience that an owner is familiar with her property and knows what it is worth. Casada v. Hamby Excavating Co., 575 S.W.2d 851, 854 (Mo. App.). This rule is applicable in criminal as well as civil cases. Moore v. United States, 388 A.2d 889 (D.C.); Platt v. State, 291 So. 2d 96 (Fla. App.), writ discharged, 313 So. 2d 715; State v. Smith, 209 Kan. 664, 498 P.2d 78; Mercer v. State, 237 Md. 479, 206 A.2d 797; State v. Hammond, 6 Wash. App. 459, 493 P.2d 1249; annot., 37 A.L.R.2d 967, 1000. The trial court granted the defendant a voir dire in the absence of the jury before Busso's testimony was offered, and he did not accept the opportunity at that time or on cross-examination at trial to attack her qualifications or competency to testify. On the record before us we cannot conclude that Busso, in fact, lacked knowledge of the particular value at issue. See 3 Wigmore, Evidence (Chadbourn Ed. 1970) § 716. Compare Beasley v. State, 305 So. 2d 285 (Fla. App.), cert. denied, 315 So. 2d 180; Barber v. State, 23 Md. App. 655, 329 A.2d 760. In the circumstances of this case we consider the underlying principle "that if any reasonable qualifications can be established, the objection goes to the weight rather than the admissibility of the evidence." Wray v. Fairfield Amusement Co., 126 Conn. 221, 224, 10 A.2d 600. Accordingly, the trial court did not err in admitting Busso's testimony. B In this state the degree of larceny and the severity of the punishment vary by statute according to the value of the property stolen. General Statutes § 53a-122 provides: "(a) A person is guilty of larceny in the first degree when . (2) the value of the property or service exceeds two thousand dollars, (b) Larceny in the first degree is a class B felony." If the state did not offer sufficient evidence that the value of the articles taken by the defendant exceeded $2000 then a conviction for larceny in the first degree cannot stand. " 'When a jury verdict is challenged on the ground that the evidence is insufficient to sustain the verdict, the issue is whether the jury could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt' . Each essential element of the crime charged must be established by such proof . . . and although it is within the province of the jury to draw reasonable logical inferences from the facts proven, they may not resort to speculation and conjecture." State v. Saracino, 178 Conn. 416, 419, 423 A.2d 102; State v. Festo, 181 Conn. 254, 259, 435 A.2d 38; State v. Ballas, 180 Conn. 662, 674, 433 A.2d 989. The items taken during the burglary were never recovered and, therefore, were not physically entered in evidence. Busso, however, testified that $300 in cash was stolen along with two fur pieces purchased for $4200, six items of jewelry worth $4950 and four time pieces worth $1275. Whether an owner's testimony as to the current market value provides sufficient information to support a jury verdict depends on the circumstances of each case. Moore v. United States, 388 A.2d 889, 891n (D.C.). In the present case the only items which the victim referred to exclusively by purchase price were the furs. An owner's testimony of value by reference to purchase price may be insufficient if the property is of a sort subject to prompt depreciation or obsolescence. See Moore v. United States, supra, 891. Even if we were to regard the furs as items subject to prompt depreciation, and thus as possibly of a negligible market value, the complainant's testimony that the value of the remaining items exceeded $6000 nevertheless would provide ample evidence for reasonable jurors to be convinced beyond a reasonable doubt that the market value of the stolen property exceeds $2000. In the Matter of R.D.J., 348 A.2d 301 (D.C. App.); Vickers v. State, 303 So. 2d 700 (Fla. App.), cert. denied, 315 So. 2d 187; Jewell v. State, 216 Md. 110, 139 A.2d 707; Commonwealth v. Warlow, 237 Pa. Super. Ct. 120, 346 A.2d 826; State v. Hammond, 6 Wash. App. 459, 493 P.2d 1249. IV Finally, the defendant claims error in the court's failure to include the statutory definition of "value"; General Statutes § 53a-121; in its charge to the jury on larceny in the first degree and in the omission of a specific instruction that larceny in the first degree required proof beyond a reasonable doubt that the value of the stolen property exceeded $2000. The defendant's trial counsel did not request any such instruction or take an exception to the charge as given on these grounds. The court instructed the jury that in order to convict the defendant of the crime of larceny in the first degree they must find that the value of the stolen property exceeded $2000. The trial court also charged the jury that the state was required to prove "every element constituting the offenses charged beyond a reasonable doubt." The court specifically instructed the jury on two occasions that a larceny conviction required the state to prove its case beyond a reasonable doubt. In the charge the court repeated on at least thirty instances that the elements of the offenses charged must be established beyond a reasonable doubt. When no exception is taken to a jury charge, this court will find error only if the charge as given deprived the defendant of a fundamental right or a fair trial. State v. Griffin, 175 Conn. 155, 397 A.2d 89; State v. Reardon, 172 Conn. 593, 602, 376 A.2d 65. In evaluating such claims, we apply the well-established rule that individual instructions are not to be judged in artificial isolation from the overall charge. See State v. Piskorski, 177 Conn. 677, 746, 419 A.2d 866; State v. Roy, 173 Conn. 35, 40, 376 A.2d 391; State v. Crawford, 172 Conn. 65, 69, 372 A.2d 154; State v. Ralls, 167 Conn. 408, 422, 356 A.2d 147. The portion of the charge concerning larceny in the first degree when viewed in its proper perspective as part of the overall charge could not have reasonably misled the jury. State v. Rose, 169 Conn. 683, 688, 363 A.2d 1077. There is no error. In this opinion Peters, Healey and Parskey, Js., concurred. The defense counsel did object in an extensive colloquy to the prejudicial impact which he claimed the "detention facility" remark had in combination with the August 11, 1976 fingerprint card but those remarks were clearly made in an effort to exclude the entire fingerprint card. In the present case the trial court ruled that the August 11, 1976 copy of the fingerprint card was admissible. The defendant properly preserved objections to admitting the copy of that card at trial; on appeal, however, he has not pursued the claim made at trial but has submerged that objection into a claim of prosecutorial misconduct. We, therefore, do not review the trial court's evidentiary ruling. State v. Festo, 181 Conn. 254, 255-56, 435 A.2d 38; State v. Hoffler, 174 Conn. 452, 457, 389 A.2d 1257; State v. McLaughlin, 132 Conn. 325, 339, 44 A.2d 116. We note that in the one instance where Busso admitted that she did not know the value of an item the trial court stopped her from answering questions as to its value and specifically barred her from repeating an appraiser's out-of-court statement as to its value. Yonan Rug Service, Inc. v. United Services Automobile Assn., 69 A.2d 62, 64 (D.C.). Busso testified to the following values for the stolen items: (1) a diamond dinner ring, $800; (2) a gold sapphire ring with a diamond, $250; (3) a jade ring, $200; (4) a grandmother ring, $500. (According to the complainant the grandmother ring contained the birthstones of all her grandchildren as well as her own birthstone.); (5) a big antique watch, $75; (6) a $20 gold piece medallion with a heavy chain, $500; (7) a gold watch with diamonds, $300; (8) a gold watch, $400; (9) a charm bracelet, $1200; (10) a diamond ring with emeralds, $2000. The only testimony regarding the value of a mink coat and a mink stole was their purchase price ($3500 and $700 respectively) at some unspecified date—several years ago. Commonwealth v. Warlow, 237 Pa. Super. Ct. 120, 346 A.2d 826, and State v. Hammond, 6 Wash. App. 459, 493 P.2d 1249, were decided under a statute similar to Connecticut's. Wash. Rev. Code Ann. § 9A.56.010 (12) superseding Wash. Rev. Code Ann. § 9.54-100 as of July 1, 1976; 18 Pa. Cons. Stat. Ann. § 3903 (c) (Purdon) cited in Warlow. General Statutes $ 53a-121 provides: "(a) Por the purposes of this part, the value of property or service shall be ascertained as follows: (1) Except as otherwise specific in this section, value means the market value of the property or services at the time and place of the crime or, if such cannot be satisfactorily ascertained, the cost of replacement of the property or service within a reasonable time after the crime. . (3) When the value of property or service cannot be satisfactorily ascertained pursuant to the standards set forth in this section, its value shall be deemed to be an amount less than fifty dollars."

Bieluch, J. The defendant appeals from his judgment of conviction rendered in accordance with the jury's verdict of guilty on the charges of disorderly conduct, a violation of General Statutes § 53a-182, and reckless driving, a violation of General Statutes § 14-222. On appeal, the defendant challenges only his conviction for disorderly conduct. He claims that he was denied his constitutional right to notice of the specific nature of the factual allegations against him. In support of his claim, he alleges that the state's substitute information and bill of particulars improperly charged that he acted intentionally or recklessly in a single count of disorderly conduct. We find no error. The jury could reasonably have found the following facts. On the night of January 16,1985, at a late hour, Nancy Presson was driving home from work on Route 7 in North Canaan when she noticed a car following her, at first without its headlights on, and later with flashing high beams. As, this car passed her, Presson recognized the defendant, the sole occupant of the car, as a customer earlier that evening in the restaurant where she worked. During this pursuit, the defendant at one point stopped his car in the road ahead of Presson, causing her to do likewise behind him. The defendant approached Presson's car and asked if she wanted to go for a drink. She refused. He then asked her in vulgar terms if she wanted to have sexual intercourse. Again, she refused and said she was going home. She then locked the car doors, after which the defendant reached through the partially closed car window to unlock the door, but he was unsuccessful when she raised the window. He then shook the window and ordered the victim to unlock the door. She then sped away frightened and went home. She reported the incident to the state police the following day. On February 14, 1985, the defendant was charged with breach of the peace, a violation of General Statutes § 53a-181, and reckless driving, a violation of General Statutes § 14-222. Thereafter, the state filed a substitute information charging the defendant with disorderly conduct, a violation of General Statutes § 53a-182, in addition to reckless driving. Simultaneously, the state filed a bill of particulars alleging in the first count that the defendant '[d]id commit the crime of Disorderly Conduct, in that, with intent to cause inconvenience, annoyance or alarm, or recklessly creating] a risk thereof, he did, on the 16th day of January, 1985, on Rt. 7 in the Town of North Canaan, at approximately 11:30 p.m. engage in violent, tumultuous, or threatening behavior, and thereby, did cause inconvenience, annoyance or alarm to one Nancy Presson, all in violation of . § 53a-182 of the Connecticut General Statutes." (Emphasis added.) In response to the state's bill of particulars, the defendant challenged the state's allegations by seeking a supplemental bill of particulars. Since the state alleged intentional or reckless conduct in the disjunctive, he requested that the state be forced to elect between them. The court denied the defendant's motion and the state then proceeded with the presentation of its case, which it completed that day. On the following day the defendant's counsel proceeded with his defense and called the defendant as his only witness. The defendant admitted encountering Presson on the road that evening, but denied the violent actions detailed by the victim's testimony. He testified that he met her on the road, asked her if she wanted to go for a drink, and when she said no, he left without any further incident. The sole issue presented in this appeal is whether the state's accusatory pleadings, namely, the substitute information together with the bill of particulars, gave the defendant fair notice of the charges against him, as guaranteed by the sixth and fourteenth amendments to the constitution of the United States, and article first, § 8, of the Connecticut constitution. The defendant argues that he properly asserted this claim before the trial court, but in any event that the claim implicates his fundamental constitutional rights, which, if adequately supported by the record, may be reviewed under the doctrine of State v. Evans, 165 Conn. 61, 69-70, 327 A.2d 576 (1973). See State v. Cates, 202 Conn. 615, 625-26, 522 A.2d 788 (1987). Because we find from the record that the defendant raised this claim below, we need not decide whether it warrants an Evans review. Pursuant to the defendant's request for articulation, the trial court stated that the "issue was clearly brought to the court's attention, and it is a subject of the current appeal." According to the trial court's articulation, the state filed its substitute information and bill of particulars charging the defendant with disorderly conduct immediately prior to jury selection. On that same day, the court conducted a hearing to consider the defendant's motion to dismiss and his motion for a supplemental bill of particulars requiring the state to elect between the allegations of intentional and reckless conduct. The court considered both of these motions relevant to the offense of disorderly conduct, and denied them. We find, therefore, that the issue was distinctly raised at trial and warrants bur review on appeal. The defendant claims that the state, by its substitute information and bill of particulars, failed to give him proper notice of the charge of disorderly conduct because the bill of particulars alleged in the disjunctive that the defendant, in the commission of the crime, acted intentionally or recklessly. "The language of an [accusatory pleading] serves two primary purposes: it informs the accused of the nature of the crime charged and it acts as a bar to future criminal proceedings on the same cause." State v. Cofone, 164 Conn. 162, 167, 319 A.2d 381 (1972); see State v. Franko, 199 Conn. 481, 490, 508 A.2d 22 (1986); State v. Sumner, 178 Conn. 163, 168, 422 A.2d 299 (1979). "An [accusatory pleading] which charges the commission of two or more offenses in the alternative is fatally defective for the reason that it does not definitely apprise the accused of the specific charge against him." Grasso v. Frattolillo, 111 Conn. 209, 212, 149 A. 838 (1930). The defendant "may not be tried for one act, or another, or another, at the pleasure of the prosecutor, unless there be as many distinct counts in the information." (Emphasis in original.) Smith v. State, 19 Conn. 493, 500 (1849). It has been held, therefore, that alternative allegations contained in a single count, which are stated in the disjunctive, serve to deprive the defendant of his constitutional right to fair notice of the specific offense for which he has been charged. See State v. Eason, 192 Conn. 37, 40, 470 A.2d 688 (1984). This is true even when the allegations are patterned after, and use the words of, the criminal statute. Id. 2 F. Wharton, Criminal Procedure (12th Ed. Torcia) § 291. The defendant's claim is one of duplicity, "the charging of separate offenses in a single count." 2 W. LaFave & J. Israel, Criminal Procedure § 19.2 (e). Practice Book § 817 states that no information shall be dismissed for duplicity, provided that an offense is charged. In a case such as this, where the allegations of a single count are duplicitous, the proper recourse is a motion for a bill of particulars. See, e.g., State v. Cofone, supra, 168. "No appeal . . . based on any of the defects enumerated in Sec. 817 [which includes duplicity of charges] shall be sustained unless it is affirmatively shown that the defendant was, in fact, prejudiced in his defense upon the merits and that substantial injustice was done to him because of such defect." Practice Book § 818. Because we find that the defendant has not affirmatively shown prejudice to the merits of his defense or substantial injustice to him, we conclude that the court did not err in denying his motion to dismiss, and that any error which the court may have made in denying his motion for a supplemental bill of particulars did not constitute reversible error. At the outset, we note that the state's information and bill of particulars alleged that the defendant violated General Statutes § 53a-182, disorderly conduct. By so doing, the defendant was given notice of the crime charged and of the elements of that offense, particularly that it expressly proscribed both intentional and reckless conduct. See also State v. Rodriguez, 180 Conn. 382, 405, 429 A.2d 919 (1980) (where indictment charged specific intent crime, defendant put on notice of lesser included offenses that require a less serious degree of culpable intent). Furthermore, the deficiencies alleged by the defendant do not render the pleadings so indefinite as to preclude them from being pleaded by the defendant as a bar to any further prosecution for the same offense. See State v. Franko, supra; State v. Sumner, supra; State v. Cofone, supra. Nowhere in the defendant's brief, or reply brief, does he allege that he was, in fact, prejudiced by the state's disjunctive pleading. Our review of the record, furthermore, confirms that any such argument would be unsuccessful. General Statutes § 53a-182 provides in the disjunctive that both intentional or reckless conduct is punishable as disorderly conduct. The state's bill of particulars alleged intentional or reckless conduct and could have been amended at any time to allege these elements conjunctively or in separate counts. Most important is the fact that the defense offered at trial consisted of a denial that he had engaged in "violent, tumultuous or threatening behavior." He likewise denied that the victim suffered "inconvenience, annoyance or alarm." At no time did the defendant submit to the jury, by either testimony or argument, that he acted with a lesser degree of intent than that prescribed by the statute. From the defendant's testimony, and defense counsel's closing arguments, it is clear that credibility was the disputed issue in this case, not the defendant's intent. On the basis of the record before us, we cannot find that the defendant was, in fact, prejudiced in his defense on the merits or that he suffered substantial injustice from the disjunctive pleading of the alternate mental states prescribed by General Statutes § 53a-182. See also State v. West, 3 Conn. App. 650, 653-54, 491 A.2d 428, cert. denied, 196 Conn. 810, 494 A.2d 906 (1985). The appeal, therefore, may not be sustained. See Practice Book § 818. There is no error. In this opinion the other judges concurred. "[General Statutes ] Sec. 53a-182. disorderly conduct: class c misdemeanor. (a) A person is guilty of disorderly conduct when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: (1) Engages in fighting or in violent, tumultuous or threatening behavior; or (2) by offensive or disorderly conduct, annoys or interferes with another person; or (3) makes unreasonable noise; or (4) without lawful authority, disturbs any lawful assembly or meeting of persons; or (5) obstructs vehicular or pedestrian traffic; or (6) congregates with other persons in a public place and refuses to comply with a reasonable official request or order to disperse." The defendant does, not challenge the state's assertions that had the state pleaded intentional and reckless conduct conjunctively, the defendant's right to fair notice would have been protected. See Practice Book § 618; State v. Eason, 192 Conn. 37, 40-41, 470 A.2d 688 (1984); State v. West, 3 Conn. App. 650, 653, 491 A.2d 428, cert. denied, 196 Conn. 810, 494 A.2d 906 (1985). "[Practice Book] Sec. 817. —defects not requiring dismissal "No indictment or information shall be dismissed because of any defect or imperfection in, or omission of, any matter of form only, or because of any miswriting, misspelling or improper English, or because of any use of a sign, symbol, figure or abbreviation or, because of any similar defect, imperfection or omission. No indictment or information shall be dismissed merely for misjoinder of parties accused, misjoinder of offenses charged, multiplicity, duplicity or uncertainty, provided an offense is charged." "[Practice Book] Sec. 818. —remedies for minor defects "If the judicial authority determines that any of the defects stated in Sec. 817 exists in any indictment or information, he shall order such relief as is required to remedy such defect, including the severance of such indictment or information into separate counts or the filing of a bill of particulars. No appeal, or motion made after verdict, based on any of the defects enumerated in Sec. 817 shall be sustained unless it is affirmatively shown that the defendant was, in fact, prejudiced in his defense upon the merits and that substantial injustice was done to him because of such defect."

Per Curiam. The plaintiff's sole claim on appeal is that the court below, Kulawiz, J., erred in permitting the defendants to amend their answer by adding a special defense of contributory negligence. The plaintiff alleged that he was injured on April 7,1975, when he was struck by a backhoe owned and operated by the defendants. This suit was filed on June 22, 1976, and the pleadings were closed when the defendants denied negligence on March 3, 1977. A pretrial was held before Kulawiz, J., on the morning of Friday, June 8, 1979. During pretrial the issue of negligence by the plaintiff was raised. The defendants moved for permission to amend their answer to add a special defense of contributory negligence. A hearing on the motion was held on the afternoon of the same day, june 8, 1979, at which time the motion was granted by Kulawiz, J. The amendment was then filed and jury selection began the same afternoon. On Friday, June 15, 1979, the jury returned a general verdict in favor of the defendants. Section 265 of the 1978 Practice Book specifies "amendments to pleadings" as one of the matters which "shall be considered" at pretrial. Consideration of possible amendments to pleadings has been one of the purposes of pretrial since the procedure was first adopted in this state in 1939, effective January 1, 1940. See Practice Book, 1951, § 144; Stanley v. Hartford, 140 Conn. 643, 645-46, 103 A.2d 147 (1954). In discussing the function and purpose of the pretrial conference Professors James and Hazard state that "[t]he necessity or desirability of amending the pleadings should be considered. The judge should make sure that the pleadings will accommodate all the claims and defenses that are revealed at the pretrial conference, and thus obviate the need for amendment at trial and possible continuance." James & Hazard, Civil Procedure (2d Ed. 1977) § 6.16, p. 216. Amendments suggested at pretrial should be filed promptly thereafter. Wesson v. F. M. Heritage Co., 174 Conn. 236, 241-42, 386 A.2d 217 (1978); Johnson v. Toscano, 144 Conn. 582, 588-89, 136 A.2d 341 (1957). That procedure was followed in this case. The plaintiff claims surprise and argues that it is unfair to him for the court to permit the defendants to amend their answer more than two years after the pleadings were closed and just before the commencement of the trial of the case. The plaintiff contends that this action by the court consti tuted an abuse of discretion. We disagree. At no time did the plaintiff request a continuance to permit fuller preparation to meet the special defense at trial. Nor did he submit to the jury interrogatories which would have distinguished the jury's decision on the special defense from the general verdict which encompasses all of the issues in the case. Under the general verdict rule there is a legal presumption that the jury found every issue in favor of the defendants. Burcaw v. Sykora, 173 Conn. 229, 230, 377 A.2d 298 (1977); Harry A. Finman & Son, Inc. v. Connecticut Truck & Trailer Service Co., 169 Conn. 407, 410-11, 363 A.2d 86 (1975); Beauton v. Connecticut Light & Power Co., 125 Conn. 76, 83, 3 A.2d 315 (1938). The grant or denial of a motion to amend the pleadings is a matter within the discretion of the trial court. Sellner v. Beechwood Construction Co., 176 Conn. 432, 438, 407 A.2d 1026 (1979); Antonofsky v. Goldberg, 144 Conn. 594, 597, 136 A.2d 338 (1957). In the interest of justice courts are liberal in permitting amendments; unless there is a sound reason, refusal to allow an amendment is an abuse of discretion. State ex rel. Scala v. Airport Commission, 154 Conn. 168, 178, 224 A.2d 236 (1966); Cook v. Lawlor, 139 Conn. 68, 71-72, 90 A.2d 164 (1952). The trial court is in the best position to assess the burden which an amendment would impose on the opposing party in light of the facts of the particular case. "The essential tests are whether the ruling of the court will work an injustice to either the plaintiff or the defendant and whether the granting of the motion will unduly delay a trial." Smith v. New Haven, 144 Conn. 126, 132, 127 A.2d 829 (1956). In this case the subject of an amended answer properly was brought up at the pretrial and the plaintiff neither asked for additional time to prepare for trial nor demonstrated any prejudice due to the timing of the amendment. Compare Wesson v. F. M. Heritage Co., 174 Conn. 236, 386 A.2d 217 (1978). We find no abuse of discretion. There is no error. Practice Book, 1978, § 265 specifically indicates that a continuance may be entered at the time of the pretrial conference. Practice Book, 1978, § 312 permits interrogatories. For more than fifty years this court has recognized the value of a specific verdict on a special defense in protecting a party from the implications of a general verdict. See Harry A. Finman & Son, Inc. v. Connecticut Truck & Trailer Service Co., 169 Conn. 407, 411, 363 A.2d 86 (1975); Ziman v. Whitley, 110 Conn. 108, 115n, 147 A. 370 (1929).

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

House, C. J. This is an appeal from a judgment of a state trial referee, sitting as a court, granting a dissolution of marriage, awarding alimony, and dividing property of the parties. The action was initiated as a divorce action by the husband who, by substituted complaint, thereafter sought a dissolution of the marriage pursuant to the provisions of Public Act No. 73-373 on the grounds that the marriage had broken down irretrievably. The wife cross-complained, alleging intolerable cruelty and claiming a divorce, alimony, counsel fees, and an assignment of such portion of the plaintiff's estate as to the court should appear to be "just and equitable." The court in its judgment dissolved the marriage on the ground that it had broken down irretrievably, awarded the wife alimony of $100 per week, and ordered the sale of jointly owned real estate and a division of the proceeds of the sale, and a division of other properties. Prom that judgment the defendant wife has appealed to this court. Among the assets of the parties was a jointly owned residence at 330 King's Highway, North Haven. The fair market value of the property was approximately $65,000. There was no mortgage on the property, the defendant having paid the mortgage debt in 1972 from the proceeds of a $7700 loan from her mother. The defendant, on appeal, has pursued the sole issue of whether the court erred in including in its judgment the following order: "And that the parties shall sell the real estate located at 330 King's Highway. Prom the proceeds of the sale (a) all taxes due on the property shall be paid; (b) the defendant shall be reimbursed $7700, the amount of the mortgage payment she made to the mortgagee; and (c) the balance of the proceeds from the sale of the property shall be divided equally between the parties." The defendant has assigned error to that portion of the judgment claiming that, insofar as the court ordered the sale of the property and division of the proceeds of the sale, the order was rendered without any statutory or common-law authority of the court to do so. The statutes which governed the proceedings in this ease were enacted as Public Act No. 73-373, now General Statutes § 46-32 — 46-64b. Section 46-51, governing the specific issue pressed on the appeal, is entitled "Assignment of property" and reads, in pertinent part, as follows: "At the time of entering a decree annulling or dissolving a marriage . . . the superior court may assign to either the husband or wife all or any part of the estate of the other." Section 46-52 provides for the award of alimony to either party and that such alimony may be awarded in addition to or in lieu of property assigned pursuant to § 46-51. Alimony and property assignments are thus now covered by two separate statutes. This was not the case prior to the enactment of Public Act No. 73-373. Under the former statute, both the assignment of property and the award of alimony were covered by one section, § 46-21, which was entitled "Alimony and change of name." Thus, in the earlier opinions of this court and in the decisions of the trial courts little or no distinction in nomenclature was made between property assigned by the court to a wife in a divorce proceeding and periodic or lump sum payments of money ordered to be paid. As a consequence of the title of and language in § 46-21 and its predecessors, the tendency was to consider and label as alimony anything so awarded or assigned. This inexactitude in terminology also undoubtedly arose from the circumstance that from early times any such award or assignment was made pursuant to the authority of the statutes which authorized the courts "to assign to any woman so separated, such reasonable part of the estate of her late husband, as in their discretion, the circumstances of the case may admit; not exceeding one-third part thereof." This power to "assign" was of ancient origin "for the original phraseology was, 'it shall be in the power of' the Court of Assistants, to assign,' etc. The Court of Assistants Was superseded by the establishment of the Superior Court, in May, 1711." Sanford v. Sanford, 5 Day 353, 357; see also Lyon v. Lyon, 21 Conn. 185, 197. As this court observed in the Sanford case (p. 357): "This particular section has long received a practical con strnction . The Superior Court, in granting a bill of divorce to the wife, she being the innocent party, have, where the situation of the estate would not, literally, admit of an assignment of a part, uniformly decreed the payment of a sum of money. This practical construction seems, clearly, to be within the equity of the statute." Subsequently, by legislative action, an order for periodic payments was expressly authorized. See German v. German, 122 Conn. 155, 161, 188 A. 429; Cary v. Cary, 112 Conn. 256, 259, 152 A. 302; Benedict v. Benedict, 58 Conn. 326, 20 A. 428; Sanford v. Sanford, supra. Although provisions for assignments of property and awards of alimony are now contained in separate statutes, the standards by which courts determine the amount of property assigned and alimony awarded are the same. See and compare General Statutes § 46-51 with § 46-52. The distinguishing characteristic of property assignment is the court's duty to consider the "contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates." G-eneral Statutes § 46-51. Under the former statutes, we have repeatedly held that the trial court, in a divorce action, has wide discretion in the type and amount of alimony awarded; Krieble v. Krieble, 168 Conn. 7, 8, 357 A.2d 475; Baker v. Baker, 166 Conn. 476, 488, 352 A.2d 277; Wood v. Wood, 165 Conn. 777, 783, 345 A.2d 5; and property transferred. LaBella v. LaBella, 134 Conn. 312, 318, 57 A.2d 627. Such judicial discretion, however, is always a legal discretion exercised according to the recognized principles of equity. Thomas v. Thomas, 159 Conn. 477, 480, 271 A.2d 62; Hammerberg v. Leinert, 132 Conn. 596, 604, 46 A.2d 420. The judicial standards of review which have developed pertaining to awards of alimony are equally applicable to assignments of property. "An abuse of judicial discretion will be reviewed on appeal in this as in other cases, but trial courts have a distinct advantage over an appellate court in dealing with domestic relations, where all of the surrounding circumstances and the appearance and attitude of the parties are so significant." LaBella v. LaBella, supra, 318. " 'The action of the trial court is not to be disturbed unless it abused its legal discretion, and "[i]n determining this the unquestioned rule is that 'great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness.' Dudas v. Ward Baking Co., 104 Conn. 516, 518, 133 A. 591 . . . ." Ardoline v. Keegan, 140 Conn. 552, 555, 102 A.2d 352.' Camp v. Booth, 160 Conn. 10, 13, 273 A.2d 714. In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did. E. M. Loew's Enterprises, Inc. v. Surabian, 146 Conn. 608, 611, 153 A.2d 463." DiPalma v. Wiesen, 163 Conn. 293, 298, 303 A.2d 709. While an action for divorce or dissolution of marriage is a creature of statute, it is essentially equitable in its nature. Stoner v. Stoner, 163 Conn. 345, 356, 307 A.2d 146. As we said in German v. German, supra, 160: "In New York State as with us, divorce, with its incident of alimony, is a creature of statute. Ackerman v. Ackerman, 200 N.Y. 72, 76, 93 N.E. 192; Cary v. Cary, . . . [supra, 258]. It does not, however, follow that an action for divorce is one at law. The Legislature can create equitable rights and provide equitable remedies as well as it can those cognizable in the law courts. Obviously the relief given in a divorce action is not such as could be granted in a common-law court but is essentially equitable in its nature." The fact that equitable and legal rights have come to be administered by a single court does not change the nature of the decree. German v. German, supra, 162. The power to act equitably is the keystone to the court's ability to fashion relief in the infinite variety of circumstances which arise out of the dissolution of a marriage. Without this wide discretion and broad equitable power, the courts in some cases might be unable fairly to resolve the parties' dispute, i.e., where the sole asset of the parties is their residence to which both have contributed. Equity certainly does not contemplate such a result. Clark, Domestic Relations § 14.8. Equity jurisdiction once obtained will be retained for the purpose of administering complete relief. Seymour Water Co. v. Horischak, 149 Conn. 435, 442, 181 A.2d 112; Clipfel v. Kantrowitz, 143 Conn. 184, 188, 120 A.2d 416. Other courts, guided by a statutory standard of fairness and equity, have ordered the sale of the residence of the parties to a divorce. Pugel v. Pugel, 74 Wash. 2d 281, 444 P.2d 783; Ciulla v. Ciulla, 253 S.W. 643 (Tex. Civ. App.); Caplan v. Caplan, 38 App. Div. 2d 572, 328 N.Y.S.2d 364; see also 24 Am. Jur. 2d, Divorce and Separation, § 931; 27B C.J.S., Divorce, § 292 (1), 294 (6). The power to act equitably has allowed the court on occasion to order a party to change his group life insurance policy to include his wife as an irrevocable beneficiary; Thomas v. Thomas, supra, 482; pay to third parties accounting fees and inves tigatory fees; Stoner v. Stoner, supra, 357; pay the expenses of an appeal; Thomas v. Thomas, supra, 488-89; Krasnow v. Krasnow, 140 Conn. 254, 261-63, 99 A.2d 104. These powers, although not expressly given to the court by statute, have been held to be inherent powers of the trial court in actions for divorce or dissolution of marriage. Stoner v. Stoner, supra; Krasnow v. Krasnow, supra. The plaintiff in the present case is a forty-seven-year-old, self-employed, electrical contractor who has worked at his business ten to twelve hours a day for the last ten years. The defendant is forty-nine years old and had worked for several years during their marriage but has not worked since 1960. The plaintiff and defendant have no children. The dissolution of the marriage was bitterly contested at trial. The major assets of the parties consisted of their residence, two bank accounts of $12,910.26 and $7,476.23, and a car. By far, the most substantial asset was their residence on 330 King's Highway which was valued at approximately $65,000. These assets were ordered divided as follows.: The plaintiff was to assign his interest in the car to the defendant. The funds in the two bank accounts were divided equally between the parties and the residence was ordered sold, the defendant reimbursed $7700 — the amount of the mortgage principal she paid — and the remainder divided equally between the plaintiff and defendant. If we were to hold, as the defendant asks, that the court was without the authority to order the sale of the house, the court would be severely restricted in granting the "just and equitable" relief which the defendant herself claimed. The court in such a situation would be forced either to assign the residence to one or the other of the parties, a clearly inequitable and unfair result in this case, or to leave the parties as common owners of the property which would be an impractical solution and result in the necessity of further legal action. The court's authority not only to order the conveyance of real property but by decree itself to pass title to real estate is undoubted. See General Statutes § 52-22. In light of this and the inherent equitable powers of the court, we conclude that under the circumstances of this case the court did not exceed its equitable powers nor abuse its discretion in entering the decree as it did. There is no error. In this opinion the other judges concurred.

Bieluch, J. This is an appeal by the plaintiffs, Ruth E. Glendenning, H. Barclay Morley, Annette Morley, Henry C. Wheeler, Michael Weatherly, Lois Robards and Harbor Research Corporation, from the granting by the named defendant of an inland wetlands and watercourses permit to the defendant Christian J. Trefz to conduct regulated activities within such protected areas of Fairfield in the village of Southport. The trial court dismissed the appeal for lack of aggrievement. From that judgment the plaintiffs have appealed. We find error. On July 27,1982, Trefz filed an application with the conservation commission of the town of Fairfield, acting as the town inland wetlands agency under the provisions of General Statutes § 22a-42 (c) of The Inland Wetlands and Watercourses Act (IWWA), General Statutes § 22a-36 to 22a-45, inclusive, to conduct regulated activities within the inland wetlands and watercourses area of Southport. Trefz proposed to construct a single family residence on Harbor Road, adjacent to Mill River at Southport Harbor. The site is also surrounded on two sides by Long Island Sound. As part of the proposed construction, Trefz seeks to: (1) raise the grade of the building site by depositing about 425 cubic yards of fill; (2) rehabilitate and heighten the existing retaining wall by installing 360 feet of silt fence within its perimeter; (3) extend an existing sanitary sewer line down Harbor Road to the proposed dwelling; and (4) provide on-site storm water drainage. The plaintiffs are owners of properties on Harbor Road, adjacent to the Trefz lot or in close proximity to it, who are opposed to the granting of the permit. A public hearing on the application was held by the commission on October 20,1983. The matter was thereafter continued on the agenda of the commission until its meeting of December 15, 1983, when it was "approved with the conditions of the October 14,1983, recommendations of the Town Conservation staff, and with the conditions that the site plan indicate no building extension beyond the wharf retaining wall, and that a revised property map be submitted to show only those portions of the property not in question, i.e., all land above the mean high water line." The conditional permit contained the following relevant provisions: "I. REGULATED AREA INVOLVED. The regulated area consists of Southport Harbor, the southernmost extent of the Mill River with its concomitant 144' setback. The entire property borders the Harbor and is contained within the setback; however, no wetlands soils are located on the land area at the site. Soil on site is predominantly fill. The property currently maintains wooden ramped walkways over the River, a floating dock, and a small scale lobster harvesting operation. . . . III. ANTICIPATED IMPACT. . . . There may be a significant loss of view of the Harbor by the adjacent property owners. This proposal will also displace the existing lobster fishery. From an aesthetic point of view, this proposal is a particularly intensive development of waterfront property, and the applicant has proposed no compensatory activities to ameliorate the loss of unobstructed visual harbor contact. " (Emphasis added.) The plaintiffs appealed to the Superior Court from this decision under the provisions of General Statutes § 22a-43 of the IWWA and General Statutes § 4-183 of the Uniform Administrative Procedure Act. They alleged to be aggrieved by the decision of the commission because the proposed regulated activities will result in: (1) obstruction of their view of the harbor; (2) loss of recreation contrary to § 6.1.4.5 of the town's inland wetlands and watercourses regulations; (3) diminution in value of their properties; (4) traffic congestion; (5) damage to their aesthetic sensibilities contrary to § 6.1.4.5 of the regulations; (6) damage to the environmental and ecological stability of their neighborhood contrary to § 6.1.4.6 of the regulations; and (7) destruction of the scenic and historic values of their neighborhood contrary to § 1.1 and 2.14.6 of the regulations. At the court hearing on the plaintiffs' appeal, the defendants challenged the claims of aggrievement. After hearing the plaintiffs' supporting evidence, the court found that they did not sustain their burden of proving aggrievement. In its memorandum of decision, the court, citing Bell v. Planning & Zoning Commission, 174 Conn. 493, 495-96, 391 A.2d 154 (1978), held that "aggrievement requires a showing that the plaintiffs have a specific, personal and legal interest in the subject matter of the decision and that they be specially and injuriously affected in property or other legal rights as distinguished from general interest as members of the community." As to the plaintiffs' various claims and proof of aggrievement, the only finding relative to this evidence, which constituted the court's sole basis for its conclusion that the plaintiffs failed to prove aggrievement, was expressed as follows: "This court has reservations and finds the claim that the mere construction of a building which might partially interfere with the view. of neighboring landowners significantly depreciates the value of their properties to be highly speculative." In this brief conclusion as to the plaintiffs' evidence and claims of law, the court erred. The question of aggrievement is one of fact to be determined by the trial court. The court's conclusions, however, will be found to be erroneous if they violate law, logic or reason or are inconsistent with the subordinate facts. Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 491, 400 A.2d 726 (1978). The IWWA is a segment of title 22a of the General Statutes, entitled "Environmental Protection," which describes its scheme. The policy for the achievement of such purpose is declared in § 22a-1 in pertinent part as follows: "[T]he policy of the state of Connecticut is to conserve, improve and protect its natural resources and environment and to . . . manage the basic resources of air, land and water to the end that the state may fulfill its responsibility as trustee of the environment for the present and future generations." The IWWA is a portion of the state's environmental trust for the benefit of its citizens. General Statutes § 22a-36. Reciprocally, the people of our state have a right to preserve their trust from a breach by the state or any of its municipalities to whom its trusteeship has been delegated. See General Statutes § 22a-42 (authorizing establishment of inland wetlands and watercourses agencies by municipalities). The basic purpose of the act is expressed in § 22a-36 as follows: "It is, therefore, the purpose of sections 22a-36 to 22a-45, inclusive, to protect the citizens of the state by making provisions for the protection, preservation, maintenance and use of the inland wetlands and watercourses by . . . preventing damage from erosion, turbidity or siltation; preventing loss of fish and other beneficial aquatic organisms, wildlife and vegetation and the destruction of the natural habitats thereof . . . protecting the quality of wetlands and watercourses for their conservation, economic, aesthetic, recreational and other public and private uses and values . by providing an orderly process to balance the need for the economic growth of the state and the use of its land with the need to protect its environment and ecology in order to forever guarantee to the people of the state, the safety of such natural resources for their benefit and enjoyment and for the benefit and enjoyment of generations yet unborn." This specific purpose has been adopted as part of the Wetlands and Watercourses Regulations of the Town of Fairfield § 1.1. The Commission's inland wetlands and watercourses regulations, as relevant here, provide: "6.1 The Agency shall consider the following in making its final decision on a permit application: 6.1.4 All relevant facts and circumstances, including but not limited to the following: . . . 6.1.4.4 Irreversible and irretrievable commitments of resources which would be involved in the proposed activity. This recognizes that the inland wetlands and watercourses of the Town of Fairfield . . . may be irreversibly destroyed by deposition, filling and removal of material, by the diversion or obstruction of water flow, and by the erection of structures and other uses. 6.1.4.5 The character and degree of injury to, or interference with, safety, health or the reasonable use of property which would be caused or threatened. This includes recognition of potential damage from erosion, turbidity, or siltation, loss of fish and other beneficial aquatic organisms, wildlife and vegetation; and the dangers of flooding and pollution; and destruction of the economic, aesthetic, recreational and other public and private uses and values of wetland and watercourses. 6.1.4.6 The suitability of such action to the area for which it is proposed. This requires the Agency to balance the need for economic growth of the Town and the use of its land, with the need to protect its environment and ecology for the people of Fairfield and the benefit of generations yet unborn." Although in considering an application for a permit to engage in any regulated activity a local inland wetlands and watercourses agency under both the IWWA and its regulations must take into account the environmental impact of the proposed project, it is the impact on the regulated area that is pertinent, and not the environmental impact in general. Connecticut Fund for the Environment, Inc. v. Stamford, 192 Conn. 247, 250, 470 A.2d 1214 (1984). Any aggrievement claimed on appeal from the grant of a permit for regulated activi ties must, therefore, arise from or relate to their impact upon the environmental factors required to be considered by the agency under the act and its regulations. Any claimed depreciation or loss of value of real estate must result from such environmental impact. Additional claims of aggrievement may arise from the environmental impact of the permitted activities on the regulated area. Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest has been adversely affected. Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 530, 525 A.2d 940 (1987). Environmental matters provide a new breadth to claims of aggrievement, one created by the governmental trusteeship of the environment for the benefit of the public. Monetary loss, such as was the sole consideration of the trial court here, is not the complete measure of aggrievement in environmental appeals and judicial review. Although not relied on here, participation of the public in environmental proceedings, and in any judicial review of such matters, is statutorily allowed by General Statutes § 22a-19 (a), which provides that "any person, partnership, corporation, association, organization or other legal entity may intervene as a party on the filing of a verified pleading asserting that the proceeding or action for judicial review involves conduct which has, or which is likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state." Connecticut Fund for the Environment, Inc. v. Stamford, supra, 248 n.2; Mystic Marinelife Aquarium, Inc. v. Gill, supra, 490. An intervenor under § 22a-19 becomes a proper party in the administrative proceeding and has statutory standing to appeal for the limited purpose of raising environmental issues. Mystic Marinelife Aquarium, Inc. v. Gill, supra. Although Mystic Marinelife concerned the interrelationship between classical aggrievement and statutory aggrievement under § 22a-19 for the limited purpose of raising certain environmental issues, its discussion is relevant to the question now under consideration, namely, the reach of classical aggrievement for judicial review under General Statutes § 22a-43 (a) of the IWWA and § 4-183 (a) of the Uniform Administrative Procedure Act on environmental issues arising from regulated activities allowed by an inland wetlands agency. "The fundamental test for determining aggrievement encompasses a well-settled twofold determination: first, 'the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the decision.' Nader v. Altermatt, 166 Conn. 43, 51, 347 A.2d 89 [1974], and cases cited therein." Mystic Marinelife Aquarium, Inc. v. Gill, supra, 493. The "interest" which may be the subject of aggrievement need not be confined to an interest in real property. Id., 496. It may also be a legally protected interest under the IWWA and local inland wetlands and watercourses agency regulations. See id. This well established rule of aggrievement applies to the statutory scheme under which the appeal here was taken pursuant to § 22a-43 (a) and 4-183 (a). See Mystic Marinelife Aquarium, Inc. v. Gill, supra, 495. To be aggrieved within the provision of § 22a-43 (a) requires that property rights be adversely affected "by any regulation, order, decision or action made pursuant to sections 22a-36 to 22a-45, inclusive, by the [regulating authority]. ." In Mystic Marinelife the Supreme Court upheld the lower court's conclusion that Mystic Seaport lacked classical aggrievement. First, the trial court correctly found no diminution of the value of its abutting property by the proposed structures. Second, on the alleged environmental impact upon its property of greater shoaling by the activity allowed by the permit, the Supreme Court observed: "Shoaling was not even alleged in the substituted complaint as an element of any asserted aggrievement. Mystic Seaport does not refer to any evidence of shoaling offered to the trial court on the issue of aggrievement." Id., 498. In the case before us, the commission in its decision specifically found the following anticipated environmental impact from the permitted regulated activities: "There may be a significant loss of view of the Harbor by the adjacent property owners. This proposal will also displace the existing lobster fishery. From an aesthetic point of view, this proposal is a particularly intensive development of waterfront property, and the applicant has proposed no compensatory activities to ameliorate the loss of unobstructed visual Harbor contact." These stated injurious consequences of the permitted activities were alleged as claims of aggrievement by the plaintiffs in their complaint. While a transcript of the trial testimony has not been supplied with the record in this case, that evidence thereon was submitted to the court is confirmed by its memorandum of decision as follows: "Both during the public hearing and the hearing on aggrievement before this court, the plaintiffs expressed sincere concern that the granting of this application would result in the destruction of a panoramic view of a beautiful and tranquil harbor, the loss of historic and aesthetic values and a diminution of the opportunity of citizens to seek serenity and spiritual renewal from the simple enjoyment of an unencumbered view of a unique vista. The court cannot and certainly does not wish to minimize the importance of such considerations." Notwithstanding such evidentiary recognition of the plaintiffs' claims of aggrievement, as well as the commission's anticipated environmental impact upon which they are based, the court failed to make any findings or conclusions therefrom concerning the plaintiffs' asserted aggrievement. The court's sole finding to support its conclusion of lack of aggrievement was the following: "This Court has reservations and finds the claim that the mere construction of a building which might partially interfere with the view of neighboring landowners significantly depreciates the value of their properties to be highly speculative." In so limiting its finding, the court erred in the standard of aggrievement that it applied in this case. The court should have considered the plaintiffs' claims and evidence of aggrievement in relation to the commission's anticipated environmental impact for the purpose of making findings thereon and drawing its conclusions therefrom as to the plaintiffs' aggrievement. For that reason, the case should be remanded for a rehearing on the plaintiffs' claims of aggrievement. There is error, the judgment is set aside and the case is remanded for further proceedings in accordance with this opinion. In this opinion the other judges concurred. Additional plaintiffs named in the complaint are not parties to this appeal.

Norcott, J. The defendant wife appeals from the judgment of the trial court entered on her cross complaint, dissolving the marriage between the parties. The defendant claims that the trial court erred by making an award to her which was legally insufficient as well as logically inconsistent with the court's findings of facts and conclusions of law. The following facts are pertinent to the present appeal. The defendant, Argero G. Papageorge, and the plaintiff, George E. Papageorge, married on April 19, 1946. In 1961, the parties separated when the plaintiff moved in with another woman. No dissolution of the marriage was sought, however, until twenty-six years later when the plaintiff commenced this action on October 25,1985. The parties are the parents of four grown sons. The plaintiff has another son who is the issue of the plaintiffs current relationship. The defendant is a sixty-three year old woman of reasonably good health. She has had limited formal education and has worked as a seamstress for approximately twenty-five years. Currently, the defendant's income consists of the money she earns as a seamstress, approximately $80 per week, plus $106 per month in social security benefits and various monies paid to her by the plaintiff. For the past 36 years, the defendant has lived in the family residence located at 84 Sherman Court, Fairfield. Prior to the award which is the subject of this appeal, however, the defendant had no real assets in her own name. The defendant did not live extravagantly, and, according to the record, her needs, paramount of which was financial security, were modest. At the time of trial, the plaintiff owned five pieces of real estate in Fairfield and Bridgeport with a total stipulated fair market value of $1,605,000. One of the properties was the family residence which had a fair market value of $250,000. Mortgages on the other four Fairfield-Bridgeport properties totaled approximately $355,000. In addition, the plaintiff owned a restaurant business known as the Sandbar Cafe; his stock value in that business was approximately $200,000. The plaintiff's additional assets consisted of the value of his two automobiles ($9700), cash ($37,000), and a life insurance policy, the cash surrender value of which was $15,000. Against these assets, the plaintiff had liabilities, exclusive of mortgages previously mentioned, totalling $12,500. In all, the plaintiff had a total approximate net worth of $1,499,200. Another noteworthy fact was that the plaintiff derived income from the restaurant business and from rentals of two parcels of his real estate. In 1985, the reported profit from the rental of the plaintiffs properties was $1586.90. It is unclear as to precisely how much income the plaintiff derived from the cash receipts of the restaurant business, and the matter is one of disagreement between the parties. Nevertheless, from his income, the plaintiff supported himself, his wife, his companion and his youngest son. After hearing all the evidence, the trial court awarded the defendant the following: periodic alimony of $300 per week, such payments to be secured by a nonnegotiable mortgage note on two of the plaintiff's properties; a lump sum alimony payment of $15,000; a $5000 cash payment to defray the costs of the defendant's attorney's fees; payment of the defendant's medical expenses which exceed $1000 per calendar year until the defendant becomes eligible for medicare; the naming and maintenance of the defendant as the primary beneficiary of the plaintiff's $100,000 life insurance policy; and the family home, 84 Sherman Court, deeded free and clear of all encumbrances. From the judgment on the order of these awards the defendant now appeals. It is axiomatic that because of its clearly advantageous position to assess all of the circumstances before it, the trial court is accorded broad discretion in awarding alimony and allocating property in dissolution actions. Carpenter v. Carpenter, 188 Conn. 736, 742, 453 A.2d 1151 (1982); Carter v. Carter, 8 Conn. App. 356, 358, 512 A.2d 979 (1986). This court has held that decisions by the trial court on such matters will only be disturbed " 'under the clearest of circumstances.' " Ehrenkranz v. Ehrenkranz, 2 Conn. App. 416, 421, 479 A.2d 826 (1984). Accordingly, our review of the trial court's financial awards to the defendant is limited to determining whether the trial court correctly applied the law to the facts of this case and whether the trial court could reasonably have concluded that such awards were appropriate. Id., 420-21. In fixing the value of property to be assigned and the amount of money to be awarded as alimony in a dissolution matter, the trial court is held to the task of applying the statutory criteria set forth in § 46b-81 (c) and § 46b-82 of the General Statutes. Those statutes provide that when fashioning an award of either property or alimony "the court . . . shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties . . . ." General Statutes § 46b-81 (c); see General Statutes § 46b-82. In addition, when assigning marital property the court must also consider "the opportunity of each for future acquisition of capital assets and income . . . [and] the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates." General Statutes § 46b-81 (c). The defendant claims that the trial court abused its discretion in applying the criteria of these statutes to the evidence before it and thus rendered an award which was legally insufficient. The defendant challenges the trial court's decision to award her only the marital residence worth $250,000 when the plaintiff owned real estate that was valued at well over $1,000,000. As noted above, § 46b-81 (c) of the General Statutes requires the court to consider the contribution of the parties to the "acquisition, preservation or appreciation in value" of the estates when determining what property should be assigned as an award in a dissolution action. The evidence in this case indicates that the bulk of the property owned by the plaintiff was acquired after his separation from the defendant and that the defendant played no role in either the acquisition or preservation of that property. Thus, the trial court's decision to award the defendant the only property the plaintiff possessed upon separation was clearly an exercise of lawful discretion. The defendant also challenges the sufficiency of the remainder of the court's award. In fashioning the remainder of the award, the trial court appropriately considered the needs of the defendant. General Statutes § 46b-82. The defendant described herself as a person of modest needs and one who was primarily interested in financial security for the rest of her life. The trial court's award of periodic alimony when coupled with the lump sum alimony awarded, the defendant's social security, the insurance benefits she is to receive if the plaintiff predeceases her, the security she receives for medical expenses, and the rental income she could receive from the marital residence clearly meets those needs. While the trial court's award can in no way be characterized as overly generous, it is an award which comports with the evidence and law of this state. There is no error. In this opinion the other judges concurred. The plaintiff withdrew his complaint prior to trial, and the trial court proceeded with the cross, complaint alone.