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Foti, J. These are consolidated appeals, brought by Elizabeth M. Gaynor and other neighboring property owners (neighbors), from the decision of the trial court sustaining in part and dismissing in part two appeals from the decision of the defendant conservation commission of the town of Fairfield (commission). The first appeal challenges the trial court's reversal of the commission's denial of Manatuck Associates' application for a permit to conduct regulated activities on eight lots in a proposed ten lot subdivision. The second appeal challenges the trial court's affirmance of the commission's approval with conditions as to the remaining two lots. The following facts are pertinent to these appeals. Manatuck Associates (Manatuck) owns thirty-five acres of abandoned farmland located in the Southport section of the town of Fairfield. Manatuck proposed to subdivide the parcel into residential building lots in order to construct ten luxury homes. The land, which contains approximately eleven acres of regulated wetlands, is located within the watershed of Great Brook, which also traverses the site. The parcel is bisected by More-house Lane, a narrow country road. Pursuant to the town's inland wetlands and watercourses regulations, Manatuck was required to apply to the commission for a permit before conducting any regulated activities associated with its proposed development of this parcel. The wetlands permit application that is the subject of the present appeals was preceded by an application filed in February, 1989, which, in addition to proposing regulated activities related to lot development (i.e., storm water discharge, filling, excavation), contained a detailed proposal to improve access to the ten building lots through extensive reconstruction of Morehouse Lane. This earlier application was denied by the commission, despite a staff report recommending conditional approval, primarily because the proposed road and culvert improvements would severely impact on the adjacent wetlands. On June 2,1989, Manatuck filed another application, substantially the same as the first, except that it eliminated all reference to the Morehouse Lane improvements. After due notice and public hearings on the second application, the commission voted unanimously on October 19, 1989, to approve it with certain specified conditions as to two of the lots and to deny it without prejudice with respect to the remaining eight lots. Manatuck thereafter appealed from the commission's denial with respect to the eight lots, claiming, inter alia, that the denial was arbitrary, capricious, and an abuse of discretion, and that it was unsupported by substantial evidence in the record. The neighbors intervened pursuant to General Statutes § 22a-19 (a), and appealed from the commission's approval of the permit for the two lots, claiming that Manatuck's application was incomplete in that it failed to address regulated activities necessary for the proposed subdivision's access. The trial court sustained Manatuck's appeal and dismissed the neighbors' appeal, in effect ordering the commission to approve the application in its entirety. The present appeals followed. On appeal, the commission, as appellee, claims that the trial court improperly disregarded substantial evidence in the record that supported the commission's decision to approve the development of two lots while postponing development of the remaining eight, and improperly substituted its own evaluation of the evidence for that of the commission. The neighbors, who challenge the trial court's decision inasmuch as it now permits Manatuck to proceed with development on all ten lots, claim that the trial court (1) improperly concluded that an applicant can avoid wetlands review simply by eliminating from its plans all regulated activities associated with required road and bridge improvements while seeking approval of a ten lot subdivision, and (2) exceeded its scope of review by substituting its findings and conclusions for that of the commission. The dispositive issue in these appeals is whether the trial court improperly found that the decision of the commission to approve Manatuck's application in part and to deny it in part was unsupported by substantial evidence. We disagree with the trial court that there was no substantial, reliable and probative evidence in the record to support the commission's decision. Our review of the record reveals that there was such evidence. We first set forth the proper standard for the trial court's review of the decision of an inland wetlands commission. "[I]n an appeal from a decision of an inland wetlands commission, a trial court must search the record of the hearings before that commission to determine if there is an adequate basis for its decision." Gagnon v. Inland Wetlands & Watercourses Commission, 213 Conn. 604, 611, 569 A.2d 1094 (1990). Even if the agency's reasons for denying an application are merely speculative, "the reviewing court must search the record for reasons to support the agency's decision . . . and, upon finding such, uphold that decision regardless of the language used by the agency in stating its reasons for the denial." Madrid v. Inland Wetlands Agency, 25 Conn. App. 446, 451, 594 A.2d 1037, cert. denied, 220 Conn. 915, 597 A.2d 334 (1991). "The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given. . . . The evidence, however, to support any such reason must be substantial; [t]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency. Feinson v. Conservation Commission, 180 Conn. 421, 425-26, 429 A.2d 910 (1980), quoting Lawrence v. Kozlowski, 171 Conn. 705, 708, 372 A.2d 110 (1976), cert. denied, 431 U.S. 969, 97 S. Ct. 2930, 53 L. Ed. 2d 1066 (1977), and cases there cited." (Citations omitted; internal quotation marks omitted.) Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 539-41, 525 A.2d 940 (1987). If there is contradictory evidence in the record, the reviewing court must take that into account; however, "the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence . . . ." (Internal quotation marks omitted.) Id., 542; Milardo v. Inland Wetlands Commission, 27 Conn. App. 214, 218, 605 A.2d 869 (1992). While we find that there was sufficient evidence to support the commission's decision solely on the basis of lot development concerns, we must address whether the commission properly considered the question of improvements along Morehouse Lane because the trial court based its decision largely on that issue. The trial court found that in approving only two of Manatuck's ten proposed lots, "[t]he commission acted outside the scope of its authority in considering the anticipated improvements to the access road." The court further found that the commission's decision "contains mere speculation as to the impact on drainage along Morehouse Lane. The commission's decision turns on speculative considerations concerning matters not a part of the application or the record before it." The court found that "in determining that Morehouse Lane 'of necessity' must be reconstructed to provide lot access . . . and then conditioning subsequent approval of [Manatuck's] application on 'securing approval for a permanent road access route' . . . the commission sought to regulate the width of Morehouse Lane, a power that has been given to the planning and zoning commission under General Statutes § 8-25 and 8-26." We recognize at the outset that road improvements per se are not within the jurisdiction of an inland wetlands agency. "[LJocal inland wetland bodies are not little environmental protection agencies. Their environmental authority is limited to the wetland and watercourse area that is subject to their jurisdiction. They have no authority to regulate any activity outside their jurisdictional limits." Connecticut Fund for the Environment, Inc. v. Stamford, 192 Conn. 247, 250, 470 A.2d 1214 (1984). Moreover, "although in considering an application for a permit to engage in any regulated activity a local wetland agency must, under § 22a-41, take into account the environmental impact of the proposed project, it is the impact on the regulated area that is pertinent, not the environmental impact in general." Id. This was not, however, a case in which the commission based its decision on a matter of a "noninland wetlands nature." Id., 251. We disagree with the trial court that in denying Manatuck's application as to eight of the proposed lots, the commission was required to forego any consideration of the Morehouse Lane access road. General Statutes § 22a-41 provides that in deciding whether to approve or to deny an application to conduct regulated activities, a wetlands commission must consider "all relevant facts and circumstances, including but not limited to . . . [inter alia] [t]he suitability or unsuitability of such activity to the area for which it is proposed. " (Emphasis added.) Section 6 of the town of Fairfield inland wetlands and watercourses regulations contains similar language to that of General Statutes § 22a-41. Section 4.2 of the town regulations authorizes the commission to regulate "those activities which directly or indirectly [impact on] inland wetlands and watercourses." "As these regulations were enacted under authority of the . . . Wetlands and Water Courses Act [General Statutes § 22a-28 through 22a-45] the same canons of construction are applicable as though [they] were enacted as a state statute." Aaron v. Conservation Commission, 183 Conn. 532, 537, 441 A.2d 30 (1981). It is undisputed that one of the "relevant facts and circumstances" related to the development of Manatuck's subdivision was the question of access to the proposed lots. In its first application to the commission, Manatuck had addressed the access problem by proposing extensive road improvements and culvert reconstruction at the point where Morehouse Lane crosses Great Brook. Although Manatuck deleted all reference to road and culvert repairs from its second application, Manatuck continued to recognize that such repairs were essential. Manatuck's representative stated emphatically at the public hearing on September 5,1989, that "[i]t's a hazardous road; it's in terrible condition, and it should be dealt with." At the October 3,1989 public hearing, he conceded that "any improvements to More-house Lane with regard to improving the road for subdivision approval, ultimate subdivision approval would involve encroachments in the wetlands area, the Great Brook area." At the October 3,1989 public hearing, Judy Slayback, the neighbors' environmental expert, indicated that it was impossible to determine the environmental impact of Manatuck's project without considering the potential road improvements. Manatuck disputed Slayback's testimony and stated repeatedly that the road issue was irrelevant to the commission's consideration of its present application, noting that this was a planning and zoning, not a wetlands concern. Manatuck pointed out that if the town plan and zoning commission later determined that Morehouse Lane did need improvement, Manatuck or the town, or both, would be before the wetlands agency again to obtain permission for the road reconstruction. We note with interest that on April 10, 1990, the Fairfield town plan and zoning commission voted to deny Manatuck's subdivision application in connection with the development of lots two and three principally because the existing access road, Morehouse Lane, is "totally inadequate to serve additional homes." Seven of the eight reasons for the zoning commission's denial address the deteriorated condition of Morehouse Lane. The result of that denial is that extensive reconstruction of Morehouse Lane — whether it is undertaken by Manatuck or the town of Fairfield — is inevitable if Manatuck is ever to build its proposed ten lot subdivision. A copy of the zoning commission's decision was part of the record before the trial court when it rendered its decision. The foregoing clearly demonstrates that, contrary to the decision of the trial court, the need to make improvements to Morehouse Lane was not merely speculative. The trial court correctly noted that "the planning and zoning commission, not the inland wetlands commission, has the authority to require the widening of existing roads or the construction of new roads to service a subdivision." In deciding whether to approve or to deny Manatuck's application, however, the commission was not required to disregard the fact that these improvements inevitably would have to be made in order to accommodate a ten lot subdivision. Manatuck has based much of its argument on its claim that Morehouse Lane is a public road, and therefore such improvements are not Manatuck's responsibility. The trial court determined, without evidence before it, that Morehouse Lane was, in fact, a public road. On that basis, the trial court further determined that the commission could not properly base its decision on any future improvements to the road because these improvements would be the responsibility of the town of Fairfield. We need not decide whether More-house Lane was a public road. Under the Fairfield regulations, the commission acted within the scope of its authority in determining that inevitable road construction related to the development of Manatuck's subdivision-regardless of whether it was performed by Manatuck or the town of Fairfield — would have an adverse impact on the wetlands area and necessitated a postponement in the development of some of the lots. To adopt Manatuck's view would inhibit an inland wetlands agency from considering all pertinent "facts and circumstances" related to the "suitability or unsuitability of [a project] to the area for which it is proposed." General Statutes § 22a-41. On the basis of the facts of this case, we do not agree that the commission was required to forestall consideration of the impact of road improvements on the wetlands area, given that it was undisputed that such improvements inevitably would have to be made. There is no question that activities occurring outside a wetlands area may have a significant adverse impact on the wetland itself. Mario v. Fairfield, 217 Conn. 164, 170, 585 A.2d 87 (1991); Cioffoletti v. Planning & Zoning Commission, 209 Conn. 544, 561, 552 A.2d 796 (1989); see T. Tondro, Connecticut Land Use Regulation, p. 130. Obviously, pollution of wetlands can be "caused" by actions on parcels of land adjacent to and perhaps even remote from designated wetlands areas. The legislature, in enacting General Statutes § 22a-42, has given municipalities a broad grant of authority to carry out and effectuate the purposes of the Inland Wetlands and Watercourses Act. To interpret the act as precluding the commission from taking into consideration all of the facts and circumstances related to a wetlands permit "would clearly work to undermine some of the basic purposes of the act, which seeks not only to protect the state's inland wetlands and water courses, from pollution, but also to preserve their very existence and protect them from any disturbance, whether polluting or not, which could affect their 'conservation, economic, aesthetic, recreational' or other values. See General Statutes § 22a-36." Aaron v. Conservation Commission, supra, 551. Apart from the road concerns, there was evidence in the record that lot development activities alone would have an impact on the wetlands. While Manatuck provided certain sediment and erosion control specifications and proposed installation of antitracking aprons, downslope silt fencing and stockpiled areas, as well as seeding and mulching along exposed surfaces, the commission concluded that these measures were not sufficient to counteract the anticipated impact on the wetlands area. With respect to storm water runoff associated with development, there was conflicting evidence in the record pertaining to its harmful effects. Manatuck proposed using roof leader dry wells. The commission, on the basis of its staff recommendations, determined that these would not sufficiently compensate for the runoff. The commission found that the application contained numerous regulated activities involving runoff, drainage and flooding that would adversely affect the wetlands. The trial court noted that the commission relied heavily on its staff report, which contradicted an earlier staff report prepared in connection with Manatuck's first application. The earlier report had recommended approval of all ten lots, with certain specified conditions. Between the time the first and second reports were prepared, the Fairfield conservation director wrote to Manatuck's attorney to explain that he had examined the proposal more thoroughly in connection with the second application, and now believed the proposal would have "significant adverse effect on the regulated area." The commission was not obligated to adopt the conclusions of its original staff report, particularly where the commission did not adopt it in the first place; the earlier application was denied even though the staff report had recommended approval. Manatuck argues that the court correctly concluded that the commission had improperly based its decision entirely on the staff report and had disregarded the only expert testimony submitted, which favored the proposed ten lot subdivision. Manatuck relies on Feinson v. Conservation Commission, supra, and Tanner v. Conservation Commission, 15 Conn. App. 336, 544 A.2d 258 (1988). In Feinson, our Supreme Court concluded that "a lay commission acts without substantial evidence, and arbitrarily, when it relies on its own knowledge and experience concerning technically com plex issues such as pollution control, in disregard of contrary expert testimony, without affording a timely opportunity for rebuttal of its point of view." Feinson v. Conservation Commission, supra, 429; Milardo v. Inland Wetlands Commission, 27 Conn. App. 214, 222, 605 A.2d 869 (1992). In the present case, the commission's denial, in part, of the requested wetlands permit was supported by the report submitted by the soil erosion and sediment control officer and conservation enforcement officer of the commission, along with the testimony of neighbors as to existing flooding problems at the site. Manatuck was afforded a timely opportunity to rebut the evidence submitted. The report was part of the record in the application; it was known to Manatuck and available for rebuttal. "An agency decision must be based on reliable evidence made public and the applicant must have an opportunity to respond to agency concerns." Kaeser v. Conservation Commission, 20 Conn. App. 309, 314, 567 A.2d 383 (1989). Nonexperts may offer reliable and substantial evidence. Id., 315. "Moreover, there is a 'presumption that public officials acting officially properly performed their duties.' Aczas v. Stuart Heights, Inc., 154 Conn. 54, 58-59, 221 A.2d 589 (1966). This encompasses the presumption that the public official is qualified in the field wherein his or her official duties lie until the contrary is shown. State v. Main, 69 Conn. 123, 140, 37 A. 80 (1897)." Kaeser v. Conservation Commission, supra, 320-21 (Berdon, J., concurring). The court concluded that the staff report, on which the commission relied in denying the application, was tainted and not reliable evidence. In so doing, the trial court substituted its judgment for that of the commission. "An administrative agency is not required to believe any witness, even an expert. . . . Nor is an agency requested to use in any particular fashion any of the materials presented to it as long as the conduct of the hearing is fundamentally fair." (Citations omitted.) Manor Development Corporation v. Conservation Commission, 180 Conn. 692, 697, 433 A.2d 999 (1980). The reasons given by the commission for the approval in part and denial in part of Manatuck's application for a permit were supported by substantial evidence. Nothing in the record leads us to conclude that the commission's denial was illegal, arbitrary and capricious, or fundamentally unfair. The commission properly exercised its discretion in acting on Manatuck's application. The judgment in the first case (Docket No. 10538) is reversed and the case is remanded to the trial court with direction to render judgment dismissing Manatuck's appeal. The judgment in the second case (Docket No. 10539) is affirmed. In this opinion the other judges concurred. The commission is the duly designated municipal agency entrusted with enforcement of the Wetlands and Watercourses Act, General Statutes § 22a-28 through 22a-45. Section 2.11 of the Fairfield inland wetlands and watercourses regulations defines regulated activity as "any operation within or use of a wetland or watercourse involving removal, relocation or deposition of material, or any obstruction, construction, alteration; or pollution, of such wetland or watercourse, except as otherwise indicated in Section 3 of these Regulations." (Section 3 specifies certain permitted uses and operations that are not involved in the present appeal.) The commissioner of environmental protection was named as a defendant in the original appeal but is not a party to the present appeal. General Statutes § 22a-41 provides: "(a) In carrying out the purposes and policies of [the Inland Wetlands and Watercourses Act], including matters relating to regulating, licensing and enforcing of the provisions thereof, the commissioner shall take into consideration all relevant facts and circumstances, including but not limited to: "(1) The environmental impact of the proposed action; "(2) The alternatives to the proposed action; "(3) The relationship between short-term uses of the environment and the maintenance and enhancement of long-term productivity; "(4) Irreversible and irretrievable commitments of resources which would be involved in the proposed activity; "(5) The character and degree of injury to, or interference with, safety, health or the reasonable use of property which is caused or threatened; and "(6) The suitability or unsuitability of such activity to the area for which it is proposed. "(b) In the case of an application which received a public hearing, a permit shall not be issued unless the commissioner finds that a feasible and prudent alternative does not exist. In making his finding the commissioner shall consider the facts and circumstances set forth in subsection (a). The finding and the reasons therefor shall be stated on the record." "6A The Agency shall consider the following in making its final decision on a permit application: 6.1.1 All evidence offered at or before any public hearing. 6.1.2 Any reports from other commissions and/or federal or state agencies, including the Fairfield County Soil and Water Conservation District and/or the Connecticut Department of Environmental Protection. 6.1.3 Additional requested information. 6.1.4 All relevant facts and circumstances, including but not limited to the following: He 6.1.4.6 The suitability of such action to the area for which it is proposed. . . ." "4.2 By the terms of the definition of a regulated activity the Agency shall regulate only those activities which directly or indirectly: 4.2.1 remove material from; 4.2.2 relocate material on; 4.2.3 deposit material in; 4.2.4 construct; 4.2.5 obstruct; 4.2.6 alter, or 4.2.7 pollute inland wetlands and watercourses." "I have to state for the record that in reviewing application 89 No. 7, I had to, in good conscience, evaluate, the fact that in order to build this subdivision, you have to have standard roads to access the site, sites. You have to have drainage improvements. You may need to have storm water detention or retention facilities. I don't know. That's more of an engineering issue in terms of whether those latter needs are met. So, therefore, many of the ways that I approached this analysis was keeping in mind that the impacts of this proposed application 89 No. 7 are not just those from the ten lots and the million or 2 million dollar houses, but also what is needed to get to those lots. As was previously mentioned, the existing Morehouse Lane spans the width from 10 to 16 feet throughout its length. It is subject to anywhere from a few inches of flooding, probably on an annual basis, to up to 5 feet of flooding during the projected 100-year design storms. It also crosses the Great [Brook] wetland watercourse corridor. There are many concerns and issues that are inherent with any road improvements which will have to be made in order to build the ten lots. You cannot evaluate the building of the ten lots without consideration of those issues." We render no opinion on the propriety of the zoning commission's decision, but refer to it only to reinforce the point that inadequate subdivision access was not, contrary to the trial court's conclusion, a matter of "mere speculation."

Foti, J. The named defendant, Robert G. Larson, appeals from the judgment of strict foreclosure. The defendant claims that the trial court improperly rendered judgment after refusing to set aside a default for failure to plead. We affirm the judgment of the trial court. The following facts are pertinent to our decision. In February, 1991, the plaintiff commenced a foreclosure action against a number of defendants, all of whom were defaulted. The defendant Robert G. Larson appeared pro se and was subsequently defaulted in May, 1991, for failure to plead. The plaintiff filed a motion for judgment of strict foreclosure on July 12, 1991. On August 5, 1991, Attorney John H. Parks filed an appearance for the defendant. A hearing on the plaintiff's motion for judgment was scheduled on the short calendar list for Monday, August 19, 1991. On that morning, prior to the 10 a.m. short calendar, the defendant filed an answer to the complaint, in which he claimed to have insufficient knowledge or informa tion on which to form a belief as to each and every paragraph. The answer was dated August 16,1991, and certified as having been mailed to all counsel of record on August 17,1991. Counsel for the plaintiff protested to the court that he had no prior notice or knowledge of the answer and sought to proceed on his motion. The court then asked Parks whether he wanted to have the court set aside the default. The court received no response to this question. The clerk then noted on the defendant's answer, "8-19-91 Default not reopened (Scheinblmn, J.)" and signed the notation. The plaintiff then provided the court with the original promissory note and mortgage deed, an affidavit of debt dated August 15,1991, and an original appraisal report performed by Robert G. Stewart. The defendant was given the opportunity, through counsel, to question the appraiser, but counsel declined the offer. The court rendered a judgment of strict foreclosure and set law days beginning October 23, 1991. The defendant claims that pursuant to Practice Book § 363A the clerk should have set aside the default for failure to plead because he filed an answer before judgment was rendered, and that, therefore, judgment could not have been rendered. "The design of the rules of practice is both to facilitate business and to advance justice; 'they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice.' " Snow v. Calise, 174 Conn. 567, 574, 392 A.2d 440 (1978); Practice Book § 6. "Rules of practice must be construed reasonably and with consideration of this purpose. . . . Rules 'are a means to justice, and not an end in themselves; their purpose is to provide for a just determination of every proceeding.' " (Citations omitted.) In re Dodson, 214 Conn. 344, 363, 572 A.2d 328, cert. denied, 572 U.S. 328, 111 S. Ct. 247, 112 L. Ed. 2d 205 (1990). Applying these principles to the circumstances of this case, we conclude that the court acted reasonably. The record is clear that the sole purpose of the attempt to open the default was to delay the proceedings so that counsel for the defendant might negotiate a better result with the plaintiff. The delay was sought in the hope of working something out "as a package deal on two properties." "[W]e would be reluctant to find an abuse of discretion [for failing to set aside the default and rendering judgment] and to remand . . . where there is nothing in the record to suggest that a meritorious defense may exist. ' ' Burritt Mutual Savings Bank of New Britain v. Tucker, 183 Conn. 369, 374, 439 A.2d 396 (1981). We note that the defendant's answer claimed insufficient knowledge on which to form a belief as to each and every paragraph of the complaint, including allegations that the defendant had signed the promissory note and mortgage deed. It is obvious that unless the defendant is incapacitated or otherwise unavailable to his attorney, such information is within his knowledge so as to require an admission or denial. " 'Courts have an inherent power to disregard . . . pleadings which have been interposed for the purpose of thwarting the orderly progress of a case.' " Friedlander v. Friedlander, 191 Conn. 81, 91, 463 A.2d 587 (1983); Burritt Mutual Savings of New Britain v. Tucker, supra, 373. We will not elevate form over substance. The defendant's sole purpose was delay. He has failed to suggest any defense of at least arguable merit. He was also given full opportunity to participate in the proceedings on the plaintiff's motion for judgment of foreclosure, having conceded that no equity existed in the property. The judgment is affirmed. In this opinion the other judges concurred. All other defendants were defaulted for either failure to appear or failure to disclose a defense. They have not appealed. We will refer in this opinion to the named defendant as the defendant. Practice Book § 363A provides: "Where a defendant is in default for failure to plead pursuant to Sec. 114, the plaintiff may file a written motion for default which shall be acted on by the clerk upon filing, without placement on the short calendar. "If a party who has been defaulted under this section files an answer before a judgment after default has been rendered by the court, the clerk shall set aside the default." We note that the proposed amendment to Practice Book § 363A provides: "If a claim for a hearing in damages or a motion for judgment has been filed the default may be set aside only by the court." The relevant colloquy is as follows: "The Court: I see an answer dated August 16. Did that follow the default? "Mr. Parks: Yes, Your Honor. The default as to Robert Larson. "The Court: So you want me to reopen the default? "Mr. Parks: I think what happened, Your Honor, let me explain, Mr. Larson has two properties that are both under foreclosure by Tolland Savings Bank. "The Court: In this one action? "Mr. Parks: No. A separate action that is also going to judgment. He has got an offer to purchase that, and I was hoping in the time between my filing of the answer and Attorney Levine's filing his default for failure to disclose a defense that we might be able to work out something as a package deal on two properties. I know this is the eleventh hour, and I apologize to him and to his appraiser, but I wasn't able to — as you can see, I just filed my appearance, and I wasn't able to do anything any quicker. "Mr. Levine: Good morning, Your Honor. For the record, Attorney Jerome Levine. I'm here this morning with Mr. Stewart as my appraiser, and I want to indicate to the court what has happened. I have no pleading from Mr. Parks and was informed when I walked into the courthouse this morning that he had filed some kind of a pleading. I know— "The Court: It was filed this morning. "Mr. Levine: That's correct, Your Honor. I know that he appeared in this matter approximately two weeks ago because it was on for judgment two weeks ago and since I was just back from vacation, I couldn't get every thing together. I did not hear from Mr. Parks in the two week interim. I called him on Friday merely as a courtesy to say, 'I'm going forward.' I did not hear from him on Friday, and when I got to my office this morning, there was a phone message— "The Court: Mr. Parks, let me ask you this, if I give a foreclosure by sale, you're going to have enough time to see if you can work something out? "Mr. Parks: I hadn't anticipated that, Your Honor, because I do believe there is no equity here. "Mr. Levine: There is no equity, Your Honor. "The Court: There is no equity. Well, if I give you a nice law day, you can still work things out. "Mr. Parks: Well, we would prefer to do it the other way, Your Honor, but— "The Court: Well, what am I supposed to do with Mr. Levine? He came here to court. He brought his witnesses. He says he's been back two weeks and he hasn't heard from you. He called you Friday, and you didn't return the call. What am I supposed to do, ignore him? "Mr. Parks: No, Your Honor. I apologize for this situation. My client slept on this situation, and I got the thing— "The Court: Well, then we're going to proceed, and your comments for the record to protect your client are noted."

Per Curiam. In this matter, a default entered against the defendants on June 24,1991. The defendants subsequently filed a motion to open the default and the plaintiffs subsequently filed a motion for judgment, both of which were heard on August 6,1991. The trial court denied the defendants' motion and rendered judgment for the plaintiffs. The defendants then filed a motion to reargue and a motion to open the judgment, both of which were heard by the trial court on September 30,1991, and denied. The defendants appeal from the denial of their motions. The defendants, as appellants, are solely responsible for providing an adequate record on which this court can review the decision of the trial court. See Practice Book § 4061. The defendants have failed to provide this court with transcripts of the hearings held by the trial court in considering these various motions. Transcripts of these hearings would have provided the only possible record on which this court could review the trial court's exercise of its discretion with respect to these motions. Because the defendants have not fulfilled their duty to provide an adequate record for review, their claims must fail. Oakes v. New England Dairies, 219 Conn. 1, 16, 591 A.2d 1261 (1991). The judgment is affirmed.

Freedman, J. The defendant appeals from the judgment of conviction, rendered after a jury trial, of burglary in the third degree in violation of General Statutes § 53a-103a, possession of burglar's tools in violation of General Statutes § 53a-106 and interfering with a police officer in violation of General Statutes § 53a-167a. The defendant claims that (1) the trial court's instruction on flight as consciousness of guilt incorrectly stated the law, misled the jury and improperly commented on his failure to testify, and (2) the prosecutor, during closing argument, improperly commented on the defendant's failure to testify. We affirm the judgment of the trial court. The jury reasonably could have found the following facts. At approximately 2 p.m. on January 8,1991, the owner of a house at 101 Greenwich Avenue in Stamford entered her house and discovered a burglar in the process of breaking in. She immediately called the police. The police arrived at the scene where one of the responding officers, Scott Duckworth, found the defendant standing inside an open window at the back of the house. The defendant, who was wearing a tan jacket and light blue gloves, slid through the window and, when both Duckworth and another officer at the scene, Colin Morris, ordered him to stop, he ran from the officers. After a brief chase, the defendant escaped by scaling an eight foot fence. With the help of backup officers, Morris and Duckworth sealed off the area and continued their search for the defendant. Both Morris and Duckworth had recognized him as Maurice Washington. During the search, Morris found a tan jacket and a pair of light blue gloves on the ground. Approximately fifteen feet from the gloves and jacket was an entryway to a house, which was covered with a sheet or towel. The officers found the defendant inside the entryway, crouched down and sweating, and wearing a sweatshirt but no jacket. Another officer who had joined the search drew his gun and told the defendant not to move. When the defendant disregarded the order and started to move, Morris stepped into the entryway to seize the defendant and a struggle ensued. Eventually, the defendant was taken outside, placed on the ground and handcuffed. A subsequent search of the tan jacket revealed a screw driver and a pry bar or nail puller in the jacket pocket. In a substitute information, the state charged the defendant with burglary, possession of burglar's tools, and interfering with a police officer. The defendant did not testify at trial. The court instructed the jury, at the state's request, that it could consider the defendant's flight from the scene as tending to prove consciousness of guilt. The jury returned a verdict of guilty on all counts. The defendant raises several challenges to the trial court's instruction on flight as consciousness of guilt. He claims that the instruction given was an incomplete and misleading statement of the law, that the trial court improperly failed to limit the jury's consideration of flight as consciousness of guilt to the burglary and possession of burglar's tools charges, and that the jury's improper consideration of flight as consciousness of guilt on the interfering charge may have misled the jury as to the other two charges. He also claims that, in giving the instruction, the trial court improperly commented on the defendant's failure to testify by stating that "[f]light, if unexplained, tends to prove consciousness of guilt." The defendant failed to raise any objection to the instruction he now challenges. In fact, the defendant even failed to request any other charge regarding flight as consciousness of guilt. Nevertheless, he argues that these claims are entitled to review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The defendant can prevail on his unpreserved constitutionally based claims only if the following four conditions are met: "(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." Id. It is by now well established in Connecticut that "[t]he defendant's flight, when considered together with all the facts of the case, may justify an inference of the accused's guilt. State v. Rosa, 170 Conn. 417, 433, 365 A.2d 1135, cert. denied, 429 U.S. 845, 97 S. Ct. 126, 50 L. Ed. 2d 116 (1976)." State v. Fernandez, 27 Conn. App. 73, 89-90, 604 A.2d 1308 (1992). "Flight is a form of circumstantial evidence." State v. Piskorski, 177 Conn. 677, 723, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979). "Trial courts [therefore] are justified, in appropriate cases, in instructing the jury regarding the inferences to be drawn from evidence of flight." State v. Fernandez, supra, 90. A claim challenging an instruction that mandates a particular inference adverse to the defendant may sufficiently implicate constitutional rights to satisfy the second condition of State v. Golding, supra. State v. Smith, 219 Conn. 160, 165, 592 A.2d 382 (1991). "A jury charge in which the court removes from the jury's consideration an issue that is one of the essential elements of the crime, and thereby relieves the state of the burden of proving every element beyond a reasonable doubt, would violate the holding of Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979)." State v. Tillman, 220 Conn. 487, 503, 600 A.2d 738 (1991). A proper instruction on flight as consciousness of guilt, however, merely identifies a permissive inference that the jury might draw from the defendant's conduct. State v. Smith, supra. "An instruction about consciousness of guilt is [therefore] not so directly related to an essential element of the crime as to warrant plenary discussion of whether 'the claim is of constitutional magnitude alleging a violation of a fundamental right.' State v. Golding, supra, 239-40; see State v. Smith, [supra, 166]." State v. Tillman, supra, 504. Furthermore, language in the instruction that states that "flight, if unexplained, tends to prove consciousness of guilt" has been approved by the Connecticut Supreme Court and has been found not to violate a criminal defendant's constitutional right. State v. Holloway, 209 Conn. 636, 650-52, 553 A.2d 166, cert. denied, 490 U.S. 1071, 109 S. Ct. 2078, 104 L. Ed. 2d 643 (1989); State v. Bowens, 24 Conn. App. 642, 651, 591 A.2d 433, cert. denied, 220 Conn. 906, 593 A.2d 971 (1991). Here, contrary to the defendant's assertion, the instruction did not create a mandatory inference. Rather, it is clear that "[t]he instruction merely identifies a permissive inference that the jury might draw from the defendant's [flight], an item of circumstantial evidence." State v. Smith, supra. The trial court, in its charge, specifically stated: "The flight of a person accused of a crime is a circumstance which when considered together with all of the facts of the case may justify a finding of the defendant's guilt. However, flight, if shown, is not conclusive. It is to be given the weight to which you, the jury, think it is entitled under the circumstances." (Emphasis added.) The trial court also instructed: "If you find that he was fleeing the scene for the purpose of avoiding apprehension, you may consider it as evidence of his consciousness of guilt. It is up to you to give the evidence the weight to which you think it is entitled." (Emphasis added.) With respect to the defendant's claim that use of the word "unexplained" improperly comments on his failure to testify, the trial court specifically instructed: "The defendant has not testified in this case. An accused person is under no obligation to testify in his own behalf. He has a constitutional right not to testify. You may not draw any unfavorable inference from the accused's failure to testify." Because the instruction was proper under Connecticut law, did not create a mandatory inference adverse to the defendant, and did not improperly comment on the defendant's failure to testify, the defendant cannot prevail on his multifaceted attack on the charge. "The defendant's claim is . . . properly viewed as evidentiary rather than constitutional in significance. Unpreserved nonconstitutional claims such as this 'do not warrant special consideration simply because they bear a constitutional label.' State v. Golding, supra, 240." State v. Smith, supra, 166. The defendant has not met the second Golding prong and thus we decline to review this unpreserved claim. We also decline to afford plenary review to the defendant's claim that the trial court's failure to instruct the jury that it could not use his flight as tending to prove his consciousness of guilt with respect to the interfering with a public officer charge. Even if this claim were of constitutional magnitude, the defendant cannot satisfy the third Golding condition, namely, that a constitutional violation clearly exists and clearly deprived the defendant of a fair trial. "In reviewing a constitutionally based challenge to the court's instructions to the jury, we must examine the charge as a whole to determine whether it is reasonably possible that the jury was misled by the challenged instruction. . . . The charge is not to be judged in artificial isolation from the overall charge." (Citations omitted; internal quotation marks omitted.) State v. Falcon, 26 Conn. App. 259, 269, 600 A.2d 1364 (1991), cert. denied, 221 Conn. 911, 602 A.2d 10 (1992). It is not reasonably possible that the jury was misled into believing that it could consider the defendant's flight as consciousness of guilt on the interfering charge. The evidence was clear that the defendant fled only from the scene of the burglary and not the apprehension, from which the interfering charge arose. It also is not reasonable to conclude that the jury believed that the instruction permitted it to use the interfering as consciousness of guilt of the other two charges. The plain language of the court's instruction makes clear that it was flight "from the scene of the alleged crime" that could be considered by the jury as tending to prove consciousness of guilt. We conclude that the jury could not have reasonably mistaken this reference to the scene of the crime as the scene of the interfering charge rather than the scene of the burglary. Nowhere in the instruction did the court suggest that a guilty verdict on the interfering charge could be used as tending to prove the defendant's guilt on the other two charges. The defendant also challenges the following remark made by the prosecutor during closing argument: "Officer Duckworth was at one point five to eight feet away from the [defendant]. He had his gun drawn, pointed at Mr. Washington. He was face to face with him. And he knew him, because he had given him a ride in his car twice before. That testimony of Officer Duckworth is uncontroverted." (Emphasis added.) The defendant claims that a single use of the word uncontroverted "necessarily must be understood by the jury to be a comment on the failure of the accused to testify. It is, therefore, constitutionally prohibited." The defendant failed to object to this remark by the prosecutor, but now seeks review under State v. Golding, supra. An examination of the defendant's claim, however, fails to reveal a constitutional violation that clearly deprived him of a fair trial and thus he cannot prevail on this claim. "Comment by the prosecuting attorney . . . on the defendant's failure to testify is prohibited by the fifth amendment to the federal constitution. Griffin v. California, 380 U.S. 609, 615, 85 S. Ct. 1228, 14 L. Ed. 2d 106 (1965)." State v. Menzies, 26 Conn. App. 674, 695, 603 A.2d 419, cert. denied, 221 Conn. 924, 608 A.2d 690 (1992). In its closing argument, however, "the state may properly call to the attention of the jury any portion of the evidence that stands uncontradicted. Such a comment becomes objectionable only when it focuses the attention of the jury on the failure of the defendant to testify . . . ." (Internal quotation marks omitted.) State v. Menzies, supra, 696, quoting State v. Walker, 206 Conn. 300, 307, 537 A.2d 1021 (1988). "In determining whether a prosecutor's comments have encroached upon a defendant's right to remain silent we have espoused the following criterion. . . . Was the language used manifestly intended to be, or was it of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify? State v. Walker, 206 Conn. 300, 307, 537 A.2d 1021 (1988)." (Internal quotation marks omitted.) State v. Negron, 221 Conn. 315, 325, 603 A.2d 1138 (1992); see also State v. Menzies, supra. The defendant has failed to present to us any evidence tending to suggest that the prosecutor's single use of the word uncontroverted was intended to be or was taken by the jury to be a comment on the accused's failure to testify. Our review of the transcript leads us to the conclusion that the remark would reasonably have been interpreted by the jury as an observation that the defendant failed to either discredit the testimony of Duckworth on cross-examination or through the examination of other witnesses. The prosecutor is not "precluded in argument from commenting on the strength of its case or the weakness of the defense case. . . . The prosecutor is entitled to comment on a defendant's failure to call witnesses to contradict the factual character of the government's case . as well as his failure to support his own factual theories with witnesses. . . ." (Citations omitted; internal quotation marks omitted.) State v. Kluttz, 9 Conn. App. 686, 705-706, 521 A.2d 178 (1987). " '[A] court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations.' Donnelly v. DeChristoforo, 416 U.S. 637, 647, 94 S. Ct. 1868, 40 L. Ed. 2d 431 (1974)." State v. Negron, supra, 325-26. Because there was no clear constitutional violation, the defendant cannot prevail on this claim. Finally, the defendant argues that the trial court's instruction regarding unexplained flight and the prosecutor's remark on the "uncontroverted" evidence are direct violations of General Statutes § 54-84, which prohibits comment by either the trial court or the prosecutor on the defendant's failure to testify. "That statute recognizes only a defendant's right not to testify, and at his election, to have the jury instructed that they may not draw any unfavorable inference against him for exercising that right." State v. Holloway, supra, 651. Because, however, we have concluded that there was nothing improper in either the court's instruction or the prosecutor's remark, the defendant cannot prevail on these claims. The judgment is affirmed. In this opinion the other judges concurred. The trial court gave the following instruction on consciousness of guilt: "I am going to give you a brief instruction on a concept that we call in the law consciousness of guilt. Whenever a person is on trial for a criminal offense, it is proper to show the person's conduct subsequent to the alleged criminal offense which may have been influenced by that act. Here there was evidence in the case to flight or the defendant running from the scene of the alleged crime in this particular case. Flight, when unexplained, tends to prove consciousness of guilt. The flight of a person accused of a crime is a circumstance which when considered together with all of the facts of the case may justify a finding of the defendant's guilt. However, flight, if shown, is not conclusive. It is to be given the weight to which you, the jury, think it is entitled to under the circumstances. Here there was evidence produced by the state's witnesses that the defendant fled from the scene of the alleged crime. If you find that he was fleeing the scene for the purpose of avoiding apprehension, you may consider it as evidence of his consciousness of guilt. It is up to you to give the evidence the weight to which you think it is entitled. The defendant has not testified in this case. An accused person is under no obligation to testify in his own behalf. He has a constitutional right not to testify. You may not draw any unfavorable inference from the accused's failure to testify." We note that in its instruction to the jury, the court stated: "The defendant has not testified in this case. An accused person is under no obligation to testify in his own behalf. He has a constitutional right not to testify. You may not draw any unfavorable inference from the accused's failure to testify." Because the jury is presumed, in the absence of a fair indication to the contrary, to have followed the court's instructions; State v. Ortiz, 217 Conn. 648, 669, 588 A.2d 127 (1991); we would conclude that, even if the remark violated the defendant's constitutional right not to testify, the violation was harmless beyond a reasonable doubt. The defendant has presented no reasons that indicate that the jury did not follow the court's instructions, nor can we perceive any. General Statutes § 54-84 provides: "(a) Any person on trial for crime shall be a competent witness, and at his or her option may testify or refuse to testify upon such trial. The neglect or refusal of an accused party to testify shall not be commented upon by the court or prosecuting official, except as provided in subsection (b) of this section. "(b) Unless the accused requests otherwise, the court shall instruct the jury that they may draw no unfavorable inferences from the accused's failure to testify. In cases tried to the court, no unfavorable inference shall be drawn by the court from the accused's silence."

Daly, J. The defendant appeals from a judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3) and larceny in the sixth degree in violation of General Statutes § 53a-126b (a). The defendant claims that the trial court improperly (1) instructed the jury on a theory of criminality under § 53a-134 (a) (3) for which there was no evidence, (2) defined serious physical injury in its definition of dangerous instrument, (3) excluded evidence of possible third party culpability, and (4) defined reasonable doubt. We affirm the judgment of the trial court. The jury could reasonably have found the following facts. On January 7, 1989, Valerie Root was working at a package store in Windsor Locks. During the course of the afternoon, a man entered the store and approached Root as she was standing behind the cash register. The man pulled out a utility knife and said "This isn't a game; give me all the money or I'll cut you." Root gave him all the money in the cash register as well as additional money kept in a cigar box below the cash register. The man wanted more money, so Root removed her jewelry and gave it to him. After examining the jewelry, the man left it behind and exited the store. Root felt that the entire incident took about five minutes. There were no other people in the store at the time of the robbery. Root reported the robbery to the police and gave a description of the perpetrator. She later viewed a series of photographs of possible suspects, and ultimately identified the defendant from a photograph as the person who committed the robbery. Root identified the defendant in court as the robber. The defendant testified that he was working near Boston on January 6, 1989, and returned home to Connecticut during the early evening hours. He further stated that he was taking care of his daughter on the day of the robbery. I The defendant claims that the trial court improperly instructed the jury on a theory of criminality for which there was no evidence presented by the state. The defendant argues that the court allowed the jury to consider the defendant's "use" of a dangerous instrument as a basis for supporting a conviction of a violation of § 53a-134 (a) (3). He argues that this was improper because the evidence indicated that the perpetrator only threatened to use the knife and did not actually use it. The defendant asserts that the court could not instruct the jury on the use of a dangerous instrument as there was no evidence that the perpetrator used the utility knife. The defendant interprets § 53a-134 (a) (3) as providing two separate methods of committing the crime of robbery in the first degree. The defendant posits that a person cannot "ordinarily use a dangerous instrument and at the same time threaten to use a dangerous instrument." The court read § 53a-134 (a) (3) to the jury. The court noted that "the distinction between robbery and robbery in the first degree in the case before us is the threat to use a dangerous instrument." The court further stated that "[i]f you find that no actual physical force was inflicted upon the victim but that the victim was threatened with physical force, you must also find to sustain a verdict of guilty that the defendant threatened the victim with immediate use of physical force." The defendant did not object to the court's charge. He seeks review of this claim under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), and State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). We review this claim because it implicates the defendant's constitutional right to be proven guilty beyond a reasonable doubt of each element of the charged crime. State v. Allen, 216 Conn. 367, 388, 579 A.2d 1066 (1990). Although the defendant relies on State v. Williams, 202 Conn. 349, 521 A.2d 150 (1987), to support his claim, his reliance on that case is misplaced. In Williams, the trial court instructed the jury on both subdivisions of General Statutes § 53a-133. The state conceded that it did not present any evidence to support a conviction based on subdivision (2) of § 53a-133. Because there was no evidence to support a conviction under the second statutory alternative, the judgment of conviction was reversed even though there was sufficient evidence to support a conviction under subdivision (1) of § 53a-133. Reversal of the conviction was required because a trial court cannot submit to the jury an issue on which there is no evidence to support a finding. State v. Williams, supra, 364; State v. Chapman, 28 Conn. App. 360, 365, 610 A.2d 1328 (1992). Here, the state has not conceded that there was no evidence to support the finding that the defendant used a dangerous instrument. The defendant seems to argue that "use" of a dangerous instrument requires that the instrument be used to harm the victim in order to over come the victim's resistance. The defendant concedes that there was evidence to support a charge on the threat of use of a dangerous instrument under § 53a-134 (a) (3). The term "use" is not defined in the Connecticut penal code. We conclude that once the defendant displayed the utility knife and ordered the victim to give him the money in the cash register, he used a dangerous instrument. The use of a dangerous instrument does not require evidence that the victim was actually touched or harmed by the instrument. In contrast, a threat to use a dangerous instrument also occurred in this case when the defendant threatened to cut the victim if she did not cooperate with him. Because there was evidence indicating that the defendant both used and threatened the use of a dangerous instrument, the trial court properly instructed the jury on both portions of § 53a-134 (a) (3). See State v. John, 210 Conn. 652, 688-89, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989). II The defendant next claims that the trial court improperly instructed the jury as to what constitutes a "dangerous instrument" for purposes of § 53a-134 (a) (3). The court first read the statutory definition of dangerous instrument and stated that "serious physical injury imports a meaning of more than physical injury." The court then gave the statutory definition of physical injury. The defendant argues that the trial court incorrectly defined "serious physical injury" because it did not read the statutory definition set forth in General Statutes § 53a-3 (4). The defendant claims that the court's statement about serious physical injury constituted an affirmative misstatement of an essential element of robbery in the first degree. The defendant did not properly preserve this claim by taking exception to the trial court's charge. We conclude that the defendant is not entitled to review of this claim under either State v. Golding, supra, or under the plain error standard on the basis of State v. Johnston, 17 Conn. App. 226, 551 A.2d 1264 (1988), cert. denied, 210 Conn. 810, 556 A.2d 609 (1989), and State v. Huff, 10 Conn. App. 330, 523 A.2d 906, cert. denied, 203 Conn. 809, 525 A.2d 523 (1987). In Huff, the defendant sought to challenge for the first time on appeal the trial court's omission of the definition of serious physical injury as it related to the definition of dangerous instrument, an essential element of the crime of assault in the second degree. We declined to review the defendant's claim because " '[sjerious physical injury,' is not itself, however, an essential element of the crime charged. It is but a definitional component of an essential element. A court's failure to read the statutory definition of a phrase which itself appears as part of the definition of an essential element, is not an error of constitutional proportion." State v. Huff, supra, 335. The defendant attempts to avoid this result by arguing that, in this case, the trial court misstated the meaning of serious physical injury, rather than merely omitting the definition of serious physical injury. The court did not give an incorrect definition of serious physical injury when it stated that it involves "more than physical injury." The court made clear that a seri ous physical injury is more than a physical injury. The court's failure to explain fully all of the definitional components of the essential element concerning a "dangerous instrument" did not rise to the level of a constitutional violation. See State v. Johnston, supra. The defendant has failed to establish the existence of a constitutional violation that clearly deprived him of a fair trial. The defendant also has failed to establish the existence of plain error from the court's instruction on dangerous instrument that resulted in manifest injustice. See id. Ill The defendant claims that the trial court improperly excluded evidence of third party culpability. We disagree. The following additional facts are relevant to this claim. During his cross-examination of Detective John Murphy of the Windsor Locks police department, the defendant sought to present evidence about a robbery that occurred in Agawam, Massachusetts, on January 6, 1989. The Agawam robbery involved a suspect who had a similar physical description to that of the defendant. The Agawam suspect also employed a utility knife. The trial court refused to admit this evidence because the defendant failed to offer any evidence directly connecting any other person responsible for the Agawam robbery. The trial court sustained the state's objection and gave the defendant an exception. The trial court noted that it would allow further inquiry about the Agawam robbery if the defendant produced some evidence connecting the Agawam suspect to this robbery. The defendant also sought to offer evidence of a robbery that took place in Enfield, a town near Windsor Locks. According to the defendant's offer of proof, made outside of the jury's presence, the Enfield police brought the victim of the Enfield robbery to the defendant's arraignment. The victim in that case stated that the defendant was not the person who committed the Enfield robbery, which was committed in a manner similar to the Windsor Locks robbery. The defendant sought to develop this evidence through Officer Rick Rachele of the Windsor Locks police department. Defense counsel asked Rachele whether he remembered bringing the defendant to the Enfield courthouse for the defendant's arraignment. Rachele had no recollection of transporting the defendant to his arraignment. Defense counsel then stated: "I can't get anywhere if in fact this witness doesn't remember arraigning my client in Enfield court because he would then have no recollection of whether or not [the] Enfield police department had brought the victim in that robbery to Enfield court to identify my client, so I think the issue is moot as a practical matter, Your Honor." The court noted that it would not admit any evidence about the other robberies until there was some evidence linking a person other than the defendant to them. The court found that evidence indicating that the defendant was not responsible for the Enfield robbery was irrelevant to the issues in this case. The defendant never attempted to offer evidence linking another person to the Windsor Locks robbery. Evidence indicating that a third party and not the defendant was responsible for the crime with which the defendant is charged is generally admissible. State v. Burge, 195 Conn. 232, 252, 487 A.2d 532 (1985). "The defendant, however, must show some evidence which directly connects a third party to the crime with which the defendant is charged. . It is not enough to show that another had the motive to commit the crime . . . nor is it enough to raise a bare suspicion that some other person may have committed the crime of which the defendant is accused." (Citations omitted.) State v. Echols, 203 Conn. 385, 392, 524 A.2d 1143 (1987). "The trial court's ruling on the relevancy of third party inculpatory evidence will be reversed on appeal only if the court has abused its discretion or an injustice appears to have been done." State v. Payne, 219 Conn. 93, 117, 591 A.2d 1246 (1991). The defendant failed to offer any reliable evidence linking a third party to the commission of the Windsor Locks robbery. The fact that the victim of a similar robbery in a nearby town stated that the defendant was not responsible does not constitute reliable evidence that the defendant did not commit the Windsor Locks robbery. The defendant never offered any evidence linking another person to the robbery in Windsor Locks. The trial court's finding that evidence of the other robberies was irrelevant did not constitute an abuse of discretion or cause an injustice. IV The defendant's final claim concerns the trial court's instruction on reasonable doubt. The defendant argues that the trial court's references to the jurors' considering decisions in their own personal affairs when deciding on a verdict impermissibly diluted the state's burden of proof. Again, the defendant did not raise this issue at trial by taking an exception to the trial court's charge on reasonable doubt. He seeks review of this claim under State v. Golding, supra. In State v. Falcon, 26 Conn. App. 259, 271, 600 A.2d 1036 (1991), we refused to review the defendant's unpreserved claim that "the trial court's instructions relating a reasonable doubt to the jurors' own affairs 'trivialized' the state's burden of proof." Id. This instruction did not constitute a constitutional violation. Id. Because the challenged instruction on reasonable doubt did not constitute a constitutional violation, we refuse to review this claim. See State v. Johnson, 214 Conn. 161, 177-80, 571 A.2d 79, (1990). The instructions in the present case are almost identical to the instructions in State v. Falcon, supra, 270. We conclude that State v. Falcon, supra, controls the disposition of this claim. The judgment is affirmed. In this opinion the other judges concurred. General Statutes § 53a-134 (a) provides in pertinent part: "A person is guilty of robbery in the first degree when, in the course of the commis sion of the crime [of robbery, defined in General Statutes § 53a-133] or of immediate flight therefrom, he . . . (3) uses or threatens the use of a dangerous instrument . . . A defendant "can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant's claim will fail." (Emphasis in original.) State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). General Statutes § 53a-133 provides: "A person commits robbery when, in the course of committing a larceny, he uses or'threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny." General Statutes § 53a-3 (7) provides in pertinent part: " 'Dangerous instrument' means any instrument, article or substance which, under the circumstances in which it is used or attempted or threatened to be used, is capable of causing death or serious physical injury . . . General Statutes § 53a-3 (4) provides: " 'Serious physical injury' means physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ . . . ." General Statutes § 53a-3 (3) provides: " 'Physical injury' means impairment of physical condition or pain . . . ."

Landau, J. The petitioner, Melvin Daniels, an inmate at the state correctional institution in Somers, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. In his petition, he alleged that he was illegally confined for two reasons pertinent to this appeal. He claimed that (1) he was denied effective assistance of counsel in that his trial counsel failed both to seek cautionary instructions regarding the identification of the codefendant and to request a new trial, and (2) he was denied a fair trial as a result of his being tried jointly with a codefendant, the admission of a midtrial surprise identification of the codefendant, and the trial court's charge to the jury. The facts pertinent to this appeal are fully set forth in State v. Chapman, 16 Conn. App. 38, 39-40, 546 A.2d 929, cert. denied, 209 Conn. 827, 552 A.2d 433 (1988), but will be restated here to the extent necessary to address the petitioner's appellate claims. At approximately 9 p.m. on July 26,1985, three young black males entered the New China restaurant in New Haven. The tallest carried a sawed-off shotgun, wore a scarf or bandanna over his face and ordered everyone not to move. One of the other two males also wore a scarf or ban danna over his face and the third wore a stocking mask. All three were dressed in dark clothing. They took money and jewelry from various customers and from the cash register. During the course of the robbery, the barrel of the shotgun inadvertently hit the leg of the owner of the restaurant. No shots were fired. At approximately 10 p.m. on the same evening, a nearby gas station was robbed by two young black males, the taller one with a bandanna over his face and carrying a sawed-off shotgun and the other wearing a stocking mask. During this robbery, John Cooke, the night manager of the station, was poked in the face with the shotgun, causing his lip to bleed, and a customer was pushed against a wall. Cooke was asked to open the safe. When he replied that he did not have the combination, the perpetrators threatened to shoot him and began counting backwards from five to zero. They left the station without firing any shots. They were seen running in the direction of Fitch Street. Shortly thereafter, two young black males entered the Convenient Food Store on the corner of Fitch and Blake Streets. The taller man wore a bandanna over his face and carried a sawed-off shotgun and the other wore a stocking mask. The taller man ordered everyone not to move and jabbed the store clerk with the gun as he attempted to push the alarm. When the clerk was unable to open the register, the gunman fired one shot into the air over the clerk's head, blowing out four lights. Both males then left. The petitioner and two other males were apprehended and charged with two counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4) and one count of attempted robbery in the first degree in violation of General Statutes § 53a-134 (a) (2) and 53a-49. At the joint trial of the petitioner and Chapman, the third participant in the robberies, James Owens, testi fied for the state. He described the events of the entire evening, implicating both the petitioner and Chapman. John Cooke, the gas station night manager, also testified at trial. During a recess after his cross-examination, Cooke indicated to the prosecutor that while he was testifying he recognized Chapman's eyes as those of the male who carried the shotgun. Cooke was recalled to the stand and identified Chapman, by his eyes and the shape of his head, as the taller male who carried the shotgun. Chapman's attorney objected to the identification on the grounds that the procedure was suggestive and the identification unreliable. The objection was overruled. The petitioner's attorney made no objection, nor did he request that the trial court instruct the jury that the evidence was admissible only against Chapman and not against the petitioner. The codefendant was convicted on all three counts. On appeal to this court, the petitioner argues that the habeas court improperly concluded that because he had the benefit of two competent counsel, his trial counsel and his codefendant's counsel, and because he had failed to meet his burden of establishing that the representation by his attorney at trial was ineffective and prejudicial, he was not deprived of effective assistance of counsel. He also argues that the habeas court improperly found that "[t]he trial court's cautionary remarks at the beginning of the trial and in [its] charge should have sufficed. There is no evidence that . . . the cautionary instructions [would have been] made. Most important, there was no certainty that the outcome would have been different." (Emphasis added.) The petitioner, therefore, asserts that the court's conclu sion that he was not denied a fair trial by being tried jointly with a codefendant or by the surprise midtrial identification of the codefendant was improper. We agree with the habeas court. I The petitioner first claims that the habeas court improperly found that he could not prevail on his claim of ineffective assistance of counsel because he could not prove that his attorney's failure to seek cautionary instructions regarding the identification of the codefendant and to request a new trial was deficient or resulted in any prejudice. "We first consider our scope of review. Although the underlying historical facts found by the habeas court may not be disturbed unless they were clearly erroneous, whether those facts constituted a violation of the petitioner's rights under the sixth amendment 'is a mixed determination of law and fact that requires the application of legal principles to the historical facts of this case.' Cuyler v. Sullivan, 446 U.S. 335, 342, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980). As such, that question requires plenary review by this court unfettered by the 'clearly erroneous' standard. Id.; see also Mannhalt v. Reed, 847 F.2d 576, 579 (9th Cir.), cert. denied, 488 U.S. 908, 109 S. Ct. 260, 102 L. Ed. 2d 249 (1988); Government of the Virgin Islands v. Zepp, 748 F.2d 125, 134 (3d Cir. 1984). Indeed, we have applied that scope of review, without specifically articulating it, to claims of ineffective assistance of counsel. See Johnson v. Commissioner, 218 Conn. 403, 423-29, 589 A.2d 1214 (1991); Siemon v. Stoughton, 184 Conn. 547, 440 A.2d 210 (1981). In accordance with this scope of review, we next consider the merits of the petitioner's claim." Phillips v. Warden, 220 Conn. 112, 131-32, 595 A.2d 1356 (1991). " ' "A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel's performance was deficient. . . . Second, the defendant must show that the deficient performance prejudiced the defense. . . . Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied, 467 U.S. 1267, 104 S. Ct. 3562, 82 L. Ed. 2d 648 (1984); Aillon v. Meachum, 211 Conn. 352, 357, 559 A.2d 206 (1989).' " Williams v. Warden, 217 Conn. 419, 422, 586 A.2d 582 (1991). " 'Establishing that counsel's performance was deficient "requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland v. Washington, supra, 687. To demonstrate this, "the defendant must show that counsel's representation fell below an objective standard of reasonableness." Id., 687-88. "In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances." Id., 688. "Judicial scrutiny of counsel's performance must be highly deferential," and courts "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be con sidered sound trial strategy.' Id., 689, quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 100 L. Ed. 83 (1955), reh. denied, 350 U.S. 955, 76 S. Ct. 340, 100 L. Ed. 831 (1956); see also Burger v. Kemp, 483 U.S. 776, 788-96, 107 S. Ct. 3114, 97 L. Ed. 2d 639, [reh. denied, 483 U.S. 1056, 108 S. Ct. 32, 97 L. Ed. 2d 820] (1987); Darden v. Wainwright, 477 U.S. 168, 185-86, 106 S. Ct. 2464, 91 L. Ed. 2d 144 (1986); Aillon v. Meachum, supra, 357; Valeriano v. Bronson, 209 Conn. 75, 86, 546 A.2d 1380 (1988); Levine v. Manson, 195 Conn. 636, 640, 490 A.2d 82 (1985)." ' " Williams v. Warden, supra, 423, quoting Fair v. Warden, 211 Conn. 398, 403-404, 559 A.2d 1094, cert. denied, 493 U.S. 981, 110 S. Ct. 512, 108 L. Ed. 2d 514 (1989). With these standards in mind, we now turn to the merits of the petitioner's claim. The petitioner asserts that the habeas court improperly determined that his trial attorney's failure to seek a cautionary instruction as to the use of that identification or to seek a new trial because of the prejudice of the joinder of his case with that of his codefendant did not constitute ineffective assistance of counsel. The habeas court heard testimony from Thomas Corradino, counsel for the codefendant, and from the petitioner's trial counsel. Their combined testimony revealed that the petitioner and Chapman sought a joint trial and that because of the related circumstances of the cases and the identical witnesses who would be testifying against each of the defendants, it was reasonable for the two defendants to be tried jointly. Moreover, the habeas testimony indicated that the decision not to challenge the in-court identification of Chapman or to request a limiting instruction regarding the admissibility of the identification was a trial tactic intended to distance the petitioner from Chapman in the minds of the jurors. The habeas court correctly-concluded on the basis of this testimony that the petitioner failed to meet his burden of proving that his counsel's conduct was deficient. Because the petitioner has failed to meet this first prong of Strickland v. Washington, supra, we need not consider whether the petitioner was prejudiced by his counsel's conduct. II The petitioner next claims that the habeas court improperly found that he was not denied a fair trial by being tried jointly with a codefendant or by the surprise midtrial identification of the codefendant, and that the trial court's instructions to the jury "should have sufficed" to direct the jury in its use of the evidence produced at trial. This claim was not raised at trial. It was raised for the first time before the habeas court. The appropriate standard for reviewability in a habeas corpus proceeding of constitutional claims not adequately preserved at trial is the Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977); standard of "cause and prejudice." Johnson v. Commissioner, 218 Conn. 403, 412-13, 589 A.2d 1214 (1991). The petitioner must show good cause for his failure to preserve a claim at trial and actual prejudice resulting from the alleged constitutional violation. In order for the petitioner to obtain habeas review of this claim, he must demonstrate (1) cause for his failure to seek severance or object to the identification testimony at trial and (2) that the joinder of defendants and the identification testimony was prejudicial. The petitioner must satisfy both elements to obtain relief. Id., 419. The habeas court made no finding regarding the petitioner's burden of establishing cause and prejudice. In Giannotti v. Warden, 26 Conn. App. 125, 599 A.2d 26 (1991), cert. denied, 221 Conn. 905, 600 A.2d 1859 (1992), this court was faced with a similar situation. The court concluded, after reviewing the transcript of the habeas hearing, that no evidence had been presented of "at least the second requirement of the Wainwright cause and prejudice standard" and therefore determined that the petitioner had failed to satisfy his burden of proving cause and prejudice. Id., 129. Giannotti permits this court to review the record, in an effort to determine whether any evidence of cause and prejudice has been provided by a petitioner. Where no evidence has been provided, this court can independently conclude that the petitioner has failed to meet the cause and prejudice test. Where, however, there has been evidence presented on the issues of cause and prejudice and the habeas court does not make a finding on the record that the petitioner has either met or failed to meet his burden of establishing cause and prejudice, we will not review the inadequately preserved constitutional claim on the merits. Rather, we will remand the case to the habeas court for it to determine whether the petitioner has satisfied his burden of establishing cause and prejudice. See Watley v. Commissioner, 219 Conn. 231, 592 A.2d 911 (1991); Jackson v. Commissioner, 219 Conn. 215, 592 A.2d 910 (1991). As our Supreme Court noted in Johnson, v. Commissioner, supra, 419, it is the duty of the habeas court to make such a determination. Here, the record is clear that the petitioner has failed to provide evidence of either cause for his failure to raise these issues at trial or any resulting prejudice. Thus, he is not entitled to review of this claim on the merits. The judgment is affirmed. In this opinion the other judges concurred. In his writ of habeas corpus, the petitioner also claimed that he was illegally incarcerated due to ineffective assistance of his appellate counsel. This issue was not raised by the parties in the petitioner's appeal to this court. Issues that are not briefed are deemed to be abandoned. See, e.g., State v. James, 211 Conn. 555, 588, 560 A.2d 426 (1989); State v. Gaines, 196 Conn. 395, 397-98 n.2, 493 A.2d 209 (1985). We note that the proper standard is that of "a reasonable probability" of a different outcome. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Aillon v. Meachum, 211 Conn. 352, 357, 559 A.2d 206 (1989). The habeas court's citation to an improper standard is harmless, however, in light of our conclusion regarding the petitioner's duty to demonstrate that his trial counsel's conduct was deficient. "It is axiomatic that ' "the right to counsel is the right to the effective assistance of counsel." ' Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 . . . (1984), quoting McCann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970)." Phillips v. Warden, 220 Conn. 112, 132, 595 A.2d 1356 (1991). Attorney Corradino was an experienced trial attorney and now serves as a judge of the Superior Court. At the habeas hearing, the petitioner's trial counsel stated: "I thought [the identification] would be very damaging to Mr. Chapman's case, but I didn't feel as though it would cause a great deal of difficulty for Mr. Daniels simply because it didn't involve Mr. Daniels as far as being identified. But, in any case, I determined at that point in time to give the impression to the jury certainly and to the judge that it didn't affect our case in any way

Dupont, C. J. The defendant appeals from the judgment of conviction, rendered after a jury trial, of the crimes of attempted murder in violation of General Statutes § 53a-49 (a) (2) and 53a-54a, assault in the first degree in violation of General Statutes § 53a-59 (a) (1), and burglary in the first degree in violation of General Statutes § 53a-101 (a) (2). The defendant claims that (1) General Statutes § 54-56d, the competency statute, is unconstitutional on its face and as applied to him, (2) the trial court abused its discretion by failing to hold a hearing on the defendant's competency, (3) the prosecutor made improper remarks during closing argument, which deprived the defendant of his right to an impartial jury and a fair trial, and (4) the evidence presented at trial was insufficient to justify a conviction of burglary in the first degree. We affirm the judgment of the trial court. On the basis of the evidence presented at trial, the jury could reasonably have found certain relevant facts. The defendant and the victim were acquaintances who belonged to the same church. The defendant was amorously attracted to the victim but the attraction was not mutual. The defendant frequently annoyed the victim by means of letters, telephone calls and face-to-face remarks. Although, at the request of the victim, church officials spoke to the defendant about his behavior, the defendant persisted in trying to establish an amorous relationship with her. In the early hours of May 24, 1990, the defendant entered the victim's apartment through a window and waited for her to return. He claimed, in a statement to the police, that he entered the apartment to discuss his relationship with the victim. Upon her return, however, the defendant did not speak to the victim but hid until she went to bed and had fallen asleep. Shortly thereafter, the victim woke to find the defendant on top of her in her bed. The victim screamed and scratched at the defendant. The defendant then held a pillow to the victim's face, stuffed a cloth into her mouth and began to hit the victim in the head several times with a hammer he had found in the attic of the victim's apartment. The defendant then ran from the victim's apartment. The victim's head wound was twenty inches long and required many stitches. I The defendant's first two claims involve General Statutes § 54-56d. He first claims that § 54-56d is unconstitutional because facially it violates both state and federal guarantees of due process. Specifically, his claims of a lack of due process are that (1) the procedural aspects of the statute, namely the presumption of competency and the placing of the burden of proving incompetency on the defendant, undermine the goal of the statute, and (2) the statute gives unfettered discretion to the trial judge to determine whether a hearing on the issue of competency should be held. The defendant also claims that the trial court abused its discretion by failing to hold a hearing on his competency. We disagree with these claims. Additional facts are relevant to our resolution of these claims. On March 11,1991, during jury selection, the defendant filed a pro se motion for the dismissal of his counsel. The court denied the motion. The following day, out of the presence of any jurors, the defendant, dressed in prison garb and shackles, lay on the floor of the courtroom, refusing to communicate with anyone. Defense counsel made a motion to have the defendant evaluated for competency pursuant to § 54-56d, claiming that the defendant did not understand all of the charges against him and was unable to assist in his defense. The trial judge responded that no evidence had been submitted to indicate that a competency hearing under § 54-56d was warranted. The trial judge then stepped down from the bench and personally addressed the defendant, who was still lying on the courtroom floor. After initially not responding to several questions from the trial judge, the defendant agreed to cooperate with his counsel and conduct himself with proper decorum. The defendant then requested more time to prepare his case with his counsel. The court granted his request. The trial resumed five days later, and the defendant made no further mention of his motion for a competency hearing either during the trial or after conviction. The motion for evaluation was never acted upon, nor did the defendant ever request a ruling from the court. A The challenge to the constitutionality of this statute is being raised for the first time on appeal. In considering the defendant's claim, we must first determine whether his claim can be reviewed by this court. Generally, an issue must be raised in the trial court in order to preserve the issue for appeal, including a challenge to the constitutionality of a statute. McLaughlin v. Bronson, 206 Conn. 267, 276, 537 A.2d 1004 (1988); State v. Banta, 15 Conn. App. 161, 182, 544 A.2d 1226, cert. denied, 209 Conn. 815, 550 A.2d 1086 (1988). In the rare instances where review of the constitutionality of a statute has been granted, without constitutionality having been raised at trial, it has been under the exceptions of State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), as refined by State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), and only when the constitutional challenge involves vagueness of the statute, the defendant's fundamental right to a fair warning of the conduct embraced by the statute is implicated, and the record is adequate to facilitate review. See State v. Schriver, 207 Conn. 456, 459, 542 A.2d 686 (1988); State v. Lang, 23 Conn. App. 272, 275, 580 A.2d 71 (1990). The defendant did not challenge the constitutionality of the competency statute at trial, and, on appeal, has not requested Evans-Golding review. Furthermore, his challenges do not meet all of the requirements of Evans-Golding because the record is inadequate to review whether the statute was unconstitutionally applied to him. The trial court never ruled on the defendant's motion for a competency hearing and, therefore, § 54-56d was never applied to the defendant. Without a hearing on the motion, and without findings or rulings of the trial court, there is no record to review. B To convict an accused person while he is legally incompetent violates state and federal due process. Gold v. Warden, 222 Conn. 312, 313 n.3, 610 A.2d 1153 (1992); State v. Johnson, 22 Conn. App. 477, 488, 578 A.2d 1085, cert. denied, 216 Conn. 817, 580 A.2d 63 (1990). A competency hearing, however, is not available on demand. State v. Lloyd, 199 Conn. 359, 366, 507 A.2d 992 (1986); State v. Johnson, supra, 489; State v. Janice, 20 Conn. App. 212, 214, 565 A.2d 553, cert. denied, 213 Conn. 811, 568 A.2d 795 (1989). Rather, "the decision to grant a hearing requires the exercise of sound judicial discretion." State v. Lloyd, supra. In exercising this discretion, a trial court is required to examine all of the information it possesses and weigh the need for a hearing in each case. Id. The defendant here did not pursue his motion for a competency hearing, and his claim, therefore, relates to the court's failure to require an inquiry into his competency to stand trial either on its own motion or because the defendant had, during the voir dire stage of the trial, moved for a competency hearing. The trial court properly exercised its discretion. The trial court's decision not to order a competency hearing was based on personal observations and conversations with the defendant. The court found that "on the basis of what I saw yesterday, he is lucid . . . intelligent . . . articulate, he [has] prepared several well constructed motions for discovery . . . and [has] made argument that the court found . . . comprehensible and constructive." The court further commented that the defendant had not submitted any evidence to the court that would warrant a competency hearing. The trial judge is in a particularly advantageous position to observe a defendant's conduct during a trial and has a unique opportunity to assess a defendant's competency. A trial court's opinion, therefore, of the competency of a defendant is highly significant. Gold v. Warden, supra, 320. The defendant's behavior in lying on the floor of the courtroom was viewed not as an act of incompetency but rather as a maneuver to attempt to dismiss his counsel and delay the trial. See State v. Sharkey, 821 S.W.2d 544, 546 (Mo. App. 1991). The defendant's actions were partially successful. Although the court did not dismiss the defendant's counsel, the defendant did get a five day continuance. The defendant's actions, in their totality, were insufficient to require the court to order a competency hearing. Thus, the trial court did not abuse its discretion or violate the defendant's right to due process by not ordering a competency hearing and proceeding with the trial after a five day continuance. II The defendant next claims that during closing argument the prosecutor made improper remarks that deprived the defendant of a fundamental constitutional right and a fair trial. We disagree. Since the defendant did not object to the prosecutor's comments at trial and thereby failed to preserve properly this claim, the defendant relies on the "exceptional circumstances" doctrine of State v. Evans, supra, 70, and State v. Golding, supra, 239-40, to obtain review. Such review, however, is unavailable where the rec ord does not show misconduct that was blatantly egregious and "merely consisted of isolated and brief episodes that did not reveal a pattern of conduct repeated through the trial." State v. Somerville, 214 Conn. 378, 393, 572 A.2d 944 (1990); State v. Williams, 204 Conn. 523, 537, 529 A.2d 653 (1987). The defendant claims that the prosecutor's remarks in his closing argument were not isolated and brief episodes. Rather, he contends that the prosecutor's closing argument was a mixture of the prosecutor's opinion, facts not in evidence, emotional appeals to the jury, and improper and prejudicial comments on the guilt, the credibility and the silence of the defendant. The record, however, does not support the defendant's claim. The record clearly shows that the prosecutor's comments, to which the defendant objects, were either responses to the defendant's closing remarks or sentences taken out of context. The prosecutor's comments did not clearly deprive the defendant of a fair trial, and the defendant cannot prevail under the third element of Golding. Ill In his final claim, the defendant asserts that the evidence presented at trial was insufficient to support a conviction of burglary in the first degree. Specifically, the defendant claims that the jury could not reasonably have concluded, on the basis of the evidence, that the defendant had the necessary intent required by the statute. We disagree. The conviction for which the defendant challenges the sufficiency of the evidence is burglary in the first degree. Upon the close of the state's evidence at trial, the defendant made a motion for judgment of acquittal on three of the five counts with which he was charged. The defendant introduced no evidence, and did not testify in his own behalf. The burglary charge, which is the subject of the defendant's final claim, was not one of the three counts for which the defendant sought a judgment of acquittal. If a defendant fails to move for a judgment of acquittal, he has not raised his claim of insufficiency of the evidence at trial; State v. Brown, 198 Conn. 348, 351-52, 503 A.2d 566 (1986) (claim of insufficiency of evidence properly preserved by making timely motion for acquittal); making appellate review possible only under State v. Golding. The defendant here has not preserved his claim that there was insufficient evidence to support a guilty verdict as to the crime of burglary in the first degree because he did not seek a judgment of acquittal as to it. The defendant contends that on the basis of his testimony, the victim's testimony and his acquittal of the sexual assault charges, the jury could not reasonably have found that the defendant had the intent to commit a crime when he entered the victim's apartment. For the state to prove burglary in the first degree, the state must establish that the defendant intended to commit a crime when he entered the victim's apartment. See General Statutes § 53a-101 (a) (2). The evidence presented at trial showed that the defendant illegally entered the victim's apartment that night. Upon the victim's return home, the defendant hid and waited until she went to bed. He then climbed on top of her and stuffed a towel into her mouth. The towel did not belong to the victim nor was it in her apartment before the attack on her. The evidence also showed that prior to the attack that night the defendant had obtained the victim's keys and told her that he could have "gotten into [her] apartment and done something to [her]." The evidence allowed the reasonable inference that the defendant brought the towel with him with the intent to commit a crime when he entered the victim's apartment. State v. Montanez, 219 Conn. 16, 21, 592 A.2d 149 (1991); State v. Dunn, 26 Conn. App. 114, 124, 598 A.2d 658 (1991). Construing this evidence in a light most favorable to sustaining the jury's verdict, the jury reasonably found that the defendant had the necessary intent for burglary in the first degree and was guilty beyond a reasonable doubt. We conclude that although the defendant's claim is of constitutional magnitude, and there is a record adequate for review, the record does not meet all the required conditions under Golding because the record adequately shows that the alleged constitutional violation clearly does not exist and that the defendant was not clearly deprived of a fair trial. See State v. Golding, supra, 240. The judgment is affirmed. In this opinion the other judges concurred. General Statutes § 53a-101 (a) (2) provides: "A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and . in the course of committing the offense, he intentionally, knowingly or recklessly inflicts or attempts to inflict bodily injury on anyone." General Statutes § 54-56d provides in pertinent part: "(a) competency required, definition. A defendant shall not be tried, convicted or sentenced while he is not competent. . A defendant is not competent if he is unable to understand the proceedings against him or to assist in his own defense. "(b) presumption of competency. A defendant is presumed to be competent. The burden of proving that the defendant is not competent by clear and convincing evidence and the burden of going forward with the evidence are on the party raising the issue. "(c) request FOR examination. If at any time during a criminal proceeding it appears that the defendant is not competent, counsel for the defendant or for the state, or the court, on its own motion, may request an examination to determine the defendant's competency." In Medina v. California, 505 U.S. , 112 S. Ct. 2572, 120 L. Ed. 2d 353 (1992), the United States Supreme Court held that state competency statutes that presume competency and require a defendant to prove incompetency do not violate federal guarantees of due process of law. The defendant was acquitted of two charges: attempted sexual assault in the first degree in violation of General Statutes § 53a-49 (a) (2) and 53a-70, and sexual assault in the third degree in violation of General Statutes § 53a-72 (a) (1) (A). The relevant colloquy is as follows: "[The Defendant]: I've got to plead my case as the case go along. "[The Court]: You should have the opportunity to assist Mr. Cosgrove in the defense of your case. "[The Defendant]: Going on when. Today is just nothing. . . . "[The Court]: I'll give you a continuance of almost a week. Is that all right? "[The Defendant]: Yes. I just need some time, you know. "[The Court]: You are satisfied with that. All right." The defendant made motions for judgment of acquittal on the charges of attempted sexual assault in the first degree in violation of General Statutes § 53a-49 (a) (2) and 53a-70, sexual assault in the third degree in violation of General Statutes § 53a-72 (a) (1) (A), and attempted murder in violation of General Statutes § 53a-49 (a) (2) and 53a-54a. The defendant's motions were denied. The defendant was not charged with the "remains unlawfully" portion of the statute.

Lavery, J. This appeal involves the plaintiff's claim that the defendant wrongfully terminated his employment. The plaintiff, Richard Munson, brought an action in three counts against the defendant, United Technologies Corporation, Hamilton Standard Division, alleging that the defendant's termination of his employment was wrongful because it breached their employment contract and breached an implied covenant of good faith and fair dealing, and employees of the defendant had made negligent misrepresentations to him. After a jury trial, the trial court directed a verdict for the defendant on the negligent misrepresentation count, and submitted the remaining two counts to the jury. The jury rendered a general verdict for the defendant on both counts. On appeal, the plaintiff claims that the trial court improperly (1) excluded admissible testimony, (2) directed a verdict for the defendant on the negligent misrepresentation count, (3) charged the jury on the relevant contract law, and (4) refused to grant either the motion to set aside the verdict or the motion for a new trial. The plaintiff further asserts that the trial court's action is not protected by the general verdict rule. We affirm the judgment of the trial court. The following facts are relevant to this appeal. In 1973, the plaintiff applied for and accepted a position as a security officer with the defendant. The plaintiff remained in the employ of the defendant for the next eleven years. Because of the plaintiff's tardiness from November, 1983, through October, 1984, he received four formal warnings from his supervisor, Lieutenant John Garvulenski. On October 15, 1984, Garvulenski gave the plaintiff what he termed a final verbal warning. Despite this warning, the plaintiff was late four more times before December 12, 1984. The two instances of tardiness that triggered the termination of the plaintiffs employment occurred on December 5 and December 8, 1984. On December 5, the plaintiff arrived at work more than two hours late. When asked for an explanation by his shift supervisor, he answered that he was late because he was working at his other job. On December 8, the plaintiff arrived at work more than four hours late, explaining that he had been drinking at a party the previous night. On Monday, December 10, 1984, the head of the defendant's security force, Captain Clarence Toler, brought the plaintiff's attendance record to David McGrath, director of security for the defendant. Toler recommended that the plaintiff's employment be terminated. McGrath, who made the final decision, decided that the plaintiff's termination was warranted due to the reasons given for his two most recent incidents of tardiness and his overall history of tardiness. Other relevant facts will be set forth as necessary. The plaintiff's first claim is that the trial court improperly excluded his testimony regarding the statements allegedly made to him by two of the defendant's employees. The plaintiff was prepared to testify that in the early stages of the application process, he met with Frank Grismaula, who was employed in the defendant's personnel department. During their hour long meeting, the plaintiff asked Grismaula if the position was a union position. Grismaula stated that it was not, and further told the plaintiff that a union was not necessary because a progressive discipline policy was in place. In 1981, Lieutenant Albert K. MacDonald, one of the plaintiff's supervisors, told the plaintiff that he had no present problem with his attendance, and that if any problems arose in the future, progressive discipline would begin anew, with counseling, verbal warning and written warning. The trial court found that the plaintiff's testimony-regarding statements made by Grismaula and MacDonald was inadmissible because the plaintiff had failed to establish their authority to speak on behalf of the defendant. The plaintiff asserts that the authority of Grismaula and MacDonald was indeed established, and that the statements were not hearsay or were admissible as admissions of a party opponent. The mere existence of an employment relationship without more does not render statements of an employee admissible against an employer. Liebman v. Society of Our Lady of Mount St. Carmel, Inc., 151 Conn. 582, 586, 200 A.2d 721 (1964). "Before evidence can be admitted to show what an agent said, it must be established that the agent was authorized by the principal to make an admission." Robles v. Lavin, 176 Conn. 281, 284, 407 A.2d 957 (1978); Hartford National Bank & Trust v. DiFazio, 6 Conn. App. 576, 586, 506 A.2d 1069 (1986). The agency relationship must be proved by a fair preponderance of the evidence. Robles v. Lavin, supra; Leary v. Johnson, 159 Conn. 101, 105, 267 A.2d 658 (1970). The plaintiff concedes that Grismaula's and MacDonald's statements, even if not hearsay, were not admissible if they lacked the authority to make the statements. "Apparent authority must be derived not from the acts of the agent but from the acts of his principal. '[The] acts of the principal must be such that (1) the principal held the agent out as possessing sufficient authority to embrace the act in question, or knowingly permitted him to act as having such authority, and (2) in consequence thereof the person dealing with the agent, acting in good faith, reasonably believed, under all the circumstances, that the agent had the necessary authority.' " Lettieri v. American Savings Bank, 182 Conn. 1, 8, 437 A.2d 822 (1980); Edart Truck Rental Corporation v. B. Swirsky & Co., 23 Conn. App. 137, 139, 579 A.2d 133 (1990). In support of the proffered testimony, the plaintiff offered evidence that Grismaula had interviewed him for a job with the defendant. The plaintiff, however, knew only that Grismaula worked in the defendant's personnel department, and did not know Grismaula's job title. To justify the admission of the statements by MacDonald, the plaintiff relied on the testimony of Toler that lieutenants, as supervisors, attempted to answer employees' questions concerning the defendant's policies by referring to the supervisors' policy guide or obtaining assistance from the personnel department. This was the sum total of evidence presented by the plaintiff in support of the proffered testimony. The record reveals that the plaintiff offered no evidence to establish that Grismaula or MacDonald had the actual authority to make statements binding on the defendant concerning its disciplinary policies. Likewise, the plaintiff failed to offer evidence concerning any acts or statements of the defendant that would serve to vest either Grismaula or MacDonald with the apparent authority necessary to bind the defendant by their statements. "It is a well established principle of law that the trial court may exercise its discretion with regard to evidentiary rulings, and the trial court's rulings will not be disturbed on appellate review absent an abuse of that discretion." Hall v. Burns, 213 Conn. 446, 451, 569 A.2d 10 (1990); State v. Menzies, 26 Conn. App. 674, 685-86, 603 A.2d 419, cert. denied, 221 Conn. 924, 608 A.2d 690 (1992). We conclude that the trial court did not abuse its discretion in determining that Grismaula and MacDonald lacked the authority to bind the defendant and, therefore, the exclusion of this testimony was proper. The plaintiff also asserts that the trial court improperly excluded the testimony of David Oliver, another employee of the defendant. Oliver sought to testify that in 1985, after the plaintiff's termination, a supervisor told him that a progressive discipline policy had always been in effect for the security department. This testimony was excluded by the trial court on relevancy grounds. "The trial court has broad discretion in determining the relevancy of evidence. State v. Alvarez, 216 Conn. 301, 309, 579 A.2d 515 (1990). Evidence is admissible if it has a reasonable tendency to prove or disprove a material fact in issue or shed some light upon some material inquiry. Note, 73 A.L.R.2d 769, 787. State v. DeJesus, [194 Conn. 376, 381, 481 A.2d 1068 (1984)]. State v. Doehrer, 200 Conn. 642, 649, 513 A.2d 58 (1986)." (Internal quotation marks omitted.) State v. Ireland, 218 Conn. 447, 455-56, 590 A.2d 106 (1991); Lombardi v. Groton, 26 Conn. App. 157, 163, 599 A.2d 388 (1991), cert. denied, 221 Conn. 908, 600 A.2d 1361 (1992). The court determined that this proffered testimony was not relevant, in part because the defendant did not have a strict policy regarding the distribution of information concerning any discipline, policy. Consequently, the information allegedly given to Oliver was not necessarily the same as that given to the plaintiff, if any such information was given to the plaintiff at all. We conclude that the trial court's exclusion of this testimony was not an abuse of discretion. The plaintiff next claims that the trial court improperly directed a verdict against him on the negligent misrepresentation count. "The standard of review of directed verdicts is well settled. A directed verdict is justified if on the evidence the jury could not reasonably and legally have reached any other conclusion. . . . On reviewing the action of the trial court in first directing and thereafter refusing to set the verdict aside, the evidence must be considered in the light most favorable to the plaintiff. . . . While it is the jury's right to draw logical deductions and make reasonable inferences from the facts proven . it may not resort to mere conjecture and speculation. . If the evidence would not support a finding of the particular issue, the trial court has a duty not to submit it to the jury. . . (Citations omitted.) Merola v. Burns, 21 Conn. App. 633, 636, 575 A.2d 1025 (1990); Sokolowski v. Medi Mart, Inc., 24 Conn. App. 276, 285-86, 587 A.2d 1056 (1991). "[EJven an innocent misrepresentation of fact 'may be actionable if the declarant has the means of knowing, ought to know, or has the duty of knowing the truth.' . . . The governing principles are set forth in similar terms in § 552 of the Restatement Second of Torts (1979): 'One who, in the course of his business, profession or employment . . . supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.' . . ." (Citations omitted.) D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 217-18, 520 A.2d 217 (1987). Even considering the evidence in the light most favorable to the plaintiff, the evidence introduced at trial was insufficient for the jury reasonably to find in favor of the plaintiff on his claim of negligent misrepresentation. On October 15, 1984, when Garvulenski gave the plaintiff a final verbal warning, he told him that next time he was tardy he would receive a written warning. The defendant asserts that this was a negligent misrepresentation because his subsequent tardiness resulted not in a written warning, but in the termination of his employment. The evidence clearly demonstrates, however, that the plaintiffs employment was not terminated merely for chronic tardiness, but for the occurrences of tardiness on December 5 and 8, 1984, which were exacerbated by the unacceptable reasons the plaintiff gave to justify his lateness, that is, working another job and excessive drinking. Given the circumstances of those two occurrences, the trial court correctly concluded that the plaintiff did not present sufficient evidence to send the count of negligent misrepresentation to the jury. We conclude that the trial court properly directed a verdict for the defendant on the negligent misrepresentation count. The plaintiffs third claim is that the trial court's instructions to the jury on the breach of contract charge were improper. In light of the general verdict rule, we need not review this claim. " 'The so-called general verdict rule provides that, if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party. Stone v. Bastarche, 188 Conn. 201, 204, 449 A.2d 142 (1982); Collucci v. Pinette, 185 Conn. 483, 489, 441 A.2d 574 (1981). The rule applies whenever a verdict for one party could reasonably be rendered on one or more distinct causes of action; see Matthews v. F.M.C. Corporation, 190 Conn. 700, 706, 462 A.2d 376 (1983); or distinct defenses. See Royal Homes, Inc. v. Dalene Hardwood Flooring Co., 151 Conn. 463, 466, 199 A.2d 698 (1964). A party desiring to avoid the effects of the general verdict rule may elicit the specific grounds for the verdict by submitting interrogatories to the jury. Alternatively, if the action is in separate counts, a party may seek separate verdicts on each of the counts.' Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 202-203, 520 A.2d 208 (1987); see also Hall v. Burns, 213 Conn. 446, 484-85 n.9, 569 A.2d 10 (1990)." Spitzer v. Haims & Co., 217 Conn. 532, 551-52, 586 A.2d 1164 (1991). This case is analogous to Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 520 A.2d 208 (1987). In Finley, the plaintiff's complaint alleged that his employment was wrongfully terminated because of breach of express contract, promissory estoppel and breach of an implied covenant of good faith. Id., 192. The jury rendered a general verdict for the defendant. Id. Although the trial court improperly instructed the jury on the statute of frauds; id., 198; our Supreme Court upheld the verdict based on the general verdict rule. Id., 204. "While we acknowledge that the trial court's erroneous instructions would have tainted any finding for the defendant on the issue of the contract's existence, we presume that the jury's verdict included a finding that the plaintiff's termination was justified by his unsatisfactory job performance. Accordingly, we conclude that the verdict for the defendant must be sustained." Id. In the present case, the jury rendered a general verdict for the defendant on the breach of contract count. The plaintiff did not submit interrogatories to the jury in order to determine its findings on each of the plaintiff's claims. The portion of the jury charge that the plaintiff challenges on appeal relates only to the breach of the contract. Because the defendant denied both the existence of a contract provision requiring written warning prior to discharge and its breach, the general verdict rule dictates the conclusion that the jury found all issues for the defendant; that is, no contract requirement existed, and if a contract did exist, that there was no breach. Therefore, even if the jury charge on breach was incorrect, the defendant cannot prevail because of the general verdict rule, and thus, any such claim of error would be rendered harmless. Finley v. Aetna Life & Casualty Co., supra. Finally, the plaintiff claims that the trial court improperly refused to grant his motions to set aside the verdict and for a new trial. Our Supreme Court has recently discussed the trial court's role in deciding a motion to set aside a verdict. "In passing upon a motion to set aside a verdict, the trial judge must do what every juror ought to do in arriving at a verdict. The juror must use all his experience, his knowledge of human nature, his knowledge of human events, past and present, his knowledge of the motives which influence and control human action, and test the evidence in the case according to such knowledge and render his verdict accordingly. . . . The trial judge in considering the verdict must do the same, or fail in the discharge of that function which the law has laid upon him; and if, in the exercise of all his knowledge from this source, he finds the verdict to be so clearly against the weight of the evidence in the case as to indicate that the jury did not correctly apply the law to the facts in evidence in the case, or were governed by ignorance, prejudice, corruption or partiality, then it is his duty to set aside the verdict. . . ." (Citations omitted; internal quotation marks omitted.) State v. Hammond, 221 Conn. 264, 267-68, 604 A.2d 793 (1992). On the basis of our preceding discussion, we conclude that the trial court properly denied the plaintiff's motion to set aside the verdict. The plaintiff's assertion that the trial court should have ordered a new trial likewise must fail. "[Ojur standard of review of the trial court's denial of a motion for a new trial is limited to a determination of whether, by such denial, the court abused its discretion. State v. Rothenberg, 195 Conn. 253, 264, 487 A.2d 545 (1985) ." State v. Leavitt, 8 Conn. App. 517, 524, 513 A.2d 744, cert. denied, 201 Conn. 810, 516 A.2d 886 (1986) . As a reviewing court considering the trial court's decision granting or denying a motion for a new trial, we must be mindful of the trial judge's superior opportunity to assess the proceedings over which he or she has personally presided. State v. Hammond, supra, 269. We conclude that the trial court did not abuse its discretion in denying the plaintiff's motion for a new trial. The judgment is affirmed. In this opinion the other judges concurred. The plaintiff was initially employed as a firefighter. His job was reclassified as a fire/security officer when the defendant merged its fire department and its security force. Attendance records for 1983 and 1984 show that the plaintiff had been late for work over forty times. In sustaining the defendant's objection to the proffered testimony, the court explained, "We don't have, I think, in the present status of evidence as it comes in, anything which would give us a basis for saying that you have established the authority of either the immediate supervisor or the personnel individual to speak as the authorized agent of the company on the subject [of progressive discipline]."

Daly, J. The defendant appeals from a judgment of conviction, rendered after a jury trial, of manslaugh ter in the first degree in violation of General Statutes § 53a-55 (a) (1). The defendant claims that the trial court improperly (1) restricted his cross-examination of the state's witnesses about their involvement with illegal narcotics, (2) admitted as a prior inconsistent statement evidence that a state's witness had been threatened, (3) instructed the jurors to reach a verdict after they had announced that they were deadlocked, (4) instructed the jury about the state's burden of proof, and (5) instructed the jury about inferences to be drawn from the evidence. We affirm the judgment of the trial court. The jury reasonably could have found the following facts. On July 19, 1989, the victim, Larry Bush, and Willie Carr went to the P. T. Barnum apartments in Bridgeport. Upon their arrival, the victim got into an argument and a fight with a group of Hispanic males. Carr testified that the defendant, who was standing with the group of Hispanic males, drew a gun and began shooting as Carr ran for cover. After the shooting stopped, Carr returned to the area and found Bush mortally wounded. Carr, who was acquainted with the defendant, made both an out-of-court and in-court identification of the defendant as the person who had the gun. Rohan Clarke testified that he was at the apartment complex on the day of the shooting overseeing some individuals who were selling illegal narcotics for him. Clarke stated that he was acquainted with both the victim and the defendant. Clarke also testified that he saw the defendant shoot the victim. He admitted that he did not want to be a witness and was present in court only because of a subpoena by the state's attorneys' office. Roderick Ford, a state's witness, testified that he was at the apartment complex on July 19, 1989, but that he did not witness the incident. This testimony contradicted his earlier sworn statement in which he identified the defendant, whom he knew as the person who shot the victim. Dolores Feliciano, a tenant at the apartment complex, testified on behalf of the defendant. She testified that she saw a black man shoot another black man. She did not know the defendant or the victim in this case. I The defendant first claims that the trial court improperly restricted his cross-examination of the state's witnesses about their involvement with illegal narcotics: The defendant argues that the court's restrictions violated his federal and state constitutional rights to confront the witnesses against him. The following facts are relevant to this claim. Carr, who had a prior felony conviction for possession of narcotics, testified that he was not involved with illegal drugs at the time of the shooting. The defendant questioned Carr about his relationship with an individual identified as John Allen. Carr stated that he did not work for Allen during July, 1989. The defendant attempted to make an offer of proof outside the jury's presence about Carr's involvement with illegal narcotics. The defendant could state only that he had some information that Carr was involved with selling drugs. The court ruled that this was not the time to conduct discovery about Carr's involvement with narcotics. The defendant objected and took an exception to the court's ruling. The court allowed the jury to be told only that Carr had an unspecified felony conviction. The court allowed the defendant to inquire whether Carr was using drugs at the time of the shooting because that would affect his ability to perceive and remember the events. Clarke, another state's witness, admitted that he was on probation for selling marihuana at the time that he testified. He further admitted that he had other people sell narcotics for him on July 19, 1989, at the apartment complex. This constituted a violation of his probation. During cross-examination, defense counsel asked Clarke how much money he made from the sale of drugs. The court sustained the state's objection to this question. The court found that details of Clarke's drug transactions and the amount of income generated from them were not probative of any issue in the case. The defendant took an exception to the court's ruling. After further cross-examination, the defendant asked Clarke if he wore a beeper. Clarke stated that he was wearing a beeper in court. Defense counsel then asked if he could see the beeper. The state's objection to this question was sustained. The court found that this would not relate to the issue of credibility and sustained the objection on the same basis as the previous objection. "The confrontation clause of the sixth amendment requires that the defendant be accorded some irreducible minimum of cross-examination into matters affecting the reliability and credibility of the state's witnesses." State v. Ortiz, 198 Conn. 220, 224, 502 A.2d 400 (1985). We must first determine whether the defendant was allowed the minimum cross-examination so as " 'to expose to the jury the facts from which the jurors, as the sole triers of facts and credibility, [can] appropriately draw inferences relating to the reliability of the (state's) witnesses.' " State v. Crumble, 24 Conn. App. 57, 65-66, 585 A.2d 1245 (1991), quoting Davis v. Alaska, 415 U.S. 308, 318, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974). Even if the constitutional standard of cross-examination was satisfied, we must also determine whether the court's restriction constituted an abuse of discretion. State v. Crumble, supra, 65. It is also well established that the defendant's right to cross- examine a witness is not absolute and may be subject to reasonable limitations. State v. Thompson, 191 Conn. 146, 148, 463 A.2d 611 (1983). "Every evidentiary ruling which denies a defendant a line of inquiry to which he thinks he is entitled is not constitutional error." State v. Vitale, 197 Conn. 396, 403, 497 A.2d 956 (1985). After reviewing the record, we conclude that the constitutional standard for confrontation was met. The defendant informed the jury that Clarke was on probation presently and at the time of the incident for selling marihuana. Clarke admitted to having others sell drugs for him on the day of the shooting in violation of his probation. He also stated that he was gambling when the shooting occurred and that the victim was not one of his customers. The defendant also asked over the state's objection whether the victim was a customer of any of the witness' sellers. This indicated that Clarke was significantly involved in the sale of illegal drugs because he had others selling for him. During redirect examination, Clarke admitted that, had he not been subpoenaed, he would not have come forward to testify. Therefore, Clarke's credibility was clearly brought into question by the defendant's cross-examination. We next examine whether the court abused its discretion by refusing inquiry into the details related to Clarke's selling of drugs and its limitation of the defendant's inquiry into Clarke's wearing of a beeper. An abuse of discretion occurs if the defendant establishes that the trial court's restrictions on his cross-examination were clearly prejudicial. State v. Castro, 196 Conn. 421, 426, 493 A.2d 223 (1985). Because the trial court's limitation of his cross-examination of Clarke was not a constitutional violation, we will give "every reasonable presumption" in favor of upholding the court's ruling when determining if the ruling amounted to an abuse of discretion. State v. Briggs, 179 Conn. 328, 333, 426 A.2d 298 (1979), cert. denied, 447 U.S. 912, 100 S. Ct. 3000, 64 L. Ed. 2d 862 (1980). The defendant has failed to establish prejudice resulting from the court's limitation of his cross-examination of Clarke. A trial court is vested with broad discretion in determining the relevance and admissibility of evidence. State v. Bunkley, 202 Conn. 629, 649, 522 A.2d 795 (1987). "The evidence sought through cross-examination must be relevant." State v. Johnson, 21 Conn. App. 291, 293, 573 A.2d 1218 (1990). The court's finding that the specific details related to the amount of income from Clarke's drug transactions and inquiry about wearing a beeper were irrelevant to the issues in this case and, thus, did not constitute an abuse of discretion. We apply the same analysis to the court's limitation of cross-examination concerning Carr. During cross-examination, Carr stated that he identified the defendant as the shooter upon discovering that the police viewed Carr as a suspect in the shooting. He stated that he was not involved in any way with illegal drugs during July, 1989. Carr also admitted to a felony conviction for which he served approximately eight months in jail. At the end of Carr's testimony on June 26,1989, the court asked Carr to remain available in case he was recalled as a witness. On July 2,1990, Carr was recalled as a witness by the defense. The defendant did not attempt to develop any further information about Carr's involvement with illegal drugs. The defendant questioned Carr about his association with an individual named Jakeem who was involved in an argument with the victim before he was shot. Again, we find that the constitutional standard was satisfied by the defendant's cross-examination of Carr. Carr denied being involved with illegal drugs during July, 1989. The defendant failed to offer any evidence contradicting this answer. The court's ruling that Carr's possession conviction could be referred to only as an unspecified felony conviction did not constitute an abuse of discretion. See State v. Geyer, 194 Conn. 1, 12-13, 480 A.2d 489 (1984). "Although a narcotics offense, such as [a] conviction for possession of heroin, reflects adversely on the general character of a witness, it has no direct materiality in determining the credibility of a witness." State v. Roman, 6 Conn. App. 189, 191, 504 A.2d 529 (1986). The defendant has failed to establish any prejudice resulting from the court's rulings on his cross-examination of Carr. II The defendant next claims that the trial court improperly admitted as a prior inconsistent statement evidence that a state's witness had been threatened. The following additional facts are relevant to this claim. The defendant was initially charged with murder in violation of General Statutes § 53a-54a (a). On October 12, 1989, at the defendant's probable cause hearing, Roderick Ford testified that he saw the defendant shoot the victim. Ford also gave a written statement to Detective David Silva of the Bridgeport police impheating the defendant on July 25,1989. Ford further testified that he met with a public defender representing the defendant at the probable cause hearing on the morning of October 12,1989. Ford told the public defender that the defendant did not shoot the victim and that he did not know the defendant. Ford testified that the defendant told him to say this. Ford also stated that he had been threatened by some people associated with the defendant. He admitted to selling drugs for the defendant on the day of the shooting. At trial, the state called Ford to testify about the events surrounding the shooting. Ford testified that he did not see what happened to the victim. He then stated that he lied in his statement given to Silva implicating the defendant. When asked why he lied, Ford responded, "I don't know." Ford insisted that he also lied at the probable cause hearing about the defendant's involvement in the shooting of the victim. The state then sought to elicit Ford's recollection of being threatened at the time of the probable cause hearing. The defendant objected to this line of questioning and argument was held outside the presence of the jury. The court allowed the state to ask about threats made against Ford because it was relevant to the change in his testimony. The court also stated that because Ford testified at the probable cause hearing about being threatened it could be admissible as a prior inconsistent statement. Ford testified that although he had been threatened about testifying in October, 1989, since then he had not received any other threats. Ford confirmed that the defendant had told him in October, 1989, to say that the defendant did not participate in the shooting. "The general rule is that threats against witnesses are not relevant and are thus inadmissible as evidence unless the defendant is linked in some way to the making of the threats." State v. Walker, 214 Conn. 122, 129, 571 A.2d 686 (1990). "An exception to the general rule concerning the admissibility of evidence of threats exists, however, where the evidence of threats is offered not to prove the guilt of the accused but rather to explain a witness' prior inconsistent statement." Id. The defendant argues that Ford did not make any inconsistent statements that would require explanation through the admission of threats against the witness. Ford claimed to have been threatened in October, 1989. Despite these threats, Ford testified at the probable cause hearing that the defendant shot the victim. Ford then changed his story and claimed that he had lied about the defendant's involvement. Ford stated that he had not been threatened after the initial threats in October, 1989. " 'The scope and extent of the explanation for the conduct or inconsistent statements [of a witness] is a matter within the discretion of the trial court and we may reverse only upon a finding of abuse of that discretion. State v. Charles, 525 S.W.2d 360, 363 (Mo. App. 1975).'..." State v. Walker, supra, 130, quoting State v. May, 587 S.W.2d 331, 336 (Mo. App. 1979). Ford's testimony at trial linked the defendant to the making of a threat concerning his involvement in the shooting. Ford testified that the defendant told him in October, 1989, to state that he did not shoot the victim. This threat was admissible because it was linked to the defendant. The court did not abuse its discretion in allowing the state to show that Ford had previously acknowledged being threatened by people associated with the defendant. Ford was unable to give any reason why he lied earlier about the defendant's involvement. Even though the threats were made in October, 1989, and did not initially prevent Ford from implicating the defendant, the earlier threat provides some basis for the change in Ford's testimony. The court's determination that the threats may have explained Ford's conduct in changing his story was within its discretion. Ill The defendant next claims that the court improperly charged the jury on reasonable doubt. The defendant argues that the court's instructions diluted the state's burden of proof in violation of his state and federal constitutional rights. The defendant claims that the court's instructions incorrectly forced the jury to articulate a basis for their doubts. He further claims that the court incorrectly characterized a reasonable doubt as one which a person "would pay some heed to" in his or her daily affairs. We reject both aspects of the defendant's claim. In its original charge, the court explained what constituted a reasonable doubt. During the course of its deliberations, the jurors requested that the court further explain reasonable doubt in "laymen's terms." The court repeated its earlier definition of reasonable doubt. The court's instruction in this case that "a reasonable doubt is a doubt for which a valid reason can be assigned" has been upheld in State v. Findlay, 198 Conn. 328, 345-46, 502 A.2d 921, cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986). State v. Theriault, 24 Conn. App. 502, 508, 589 A.2d 379 (1991); see also State v. Ryerson, 201 Conn. 333, 342-43 n.2, 514 A.2d 337 (1986) (trial court's instruction that a reasonable doubt is one for which a reasonable person could assign a valid reason is not improper). We reject this aspect of the defendant's claim. The defendant also claims that the court should not have defined a reasonable doubt as one which the jurors "would pay some heed to." This instruction is similar to the instruction upheld in State v. Theriault, supra. The trial court in that case defined "a reasonable doubt as 'the kind of doubt that in the serious affairs that concern in your everyday life, you would pay heed and attention to.' " Id. Here, the trial court also stated that a reasonable doubt is "[t]he kind of doubt that would make a reasonable person hesitate to act." In both State v. Smith, 210 Conn. 132, 147-48, 554 A.2d 713 (1989), and State v. Johnson, 214 Conn. 161, 177-80, 571 A.2d 79 (1990), our Supreme Court preferred this definition concerning hesitation over a definition of reasonable doubt as one that jurors would be "willing to act upon" in their important affairs. On the basis of our review of the original charge and supplemental instructions, we conclude that the court's definition of reasonable doubt was correct and did not dilute the state's burden of proof. IV The defendant next claims that the court incorrectly instructed the jury about drawing inferences from the evidence. The defendant did not file a written request to charge on inferences and also failed to take an exception to the court's charge on inferences. " 'We generally do not consider a claimed error regarding the giving of or failure to give an instruction "unless the matter is covered by a written request to charge or exception has been taken . . . immediately after the charge is delivered." . . .'" (Citations omitted.) State v. Williams, 202 Conn. 349, 362, 521 A.2d 150 (1987). The defendant argues that this claim is reviewable under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We disagree with the defendant's analysis and find that this claim is not reviewable. The court's instruction on circumstantial evidence required both the underlying fact and the inferred fact to be proved beyond a reasonable doubt. A similar instruction was found to be an incorrect statement of the law in State v. McDonough, 205 Conn. 352, 355, 533 A.2d 857 (1987), cert. denied, 485 U.S. 906,108 S. Ct. 1079, 99 L. Ed. 2d 238 (1988); State v. Rivera, 24 Conn. App. 670, 677, 591 A.2d 440, cert. denied, 219 Conn. 914, 593 A.2d 139 (1991). The trial court, however, is not required to give a separate jury instruction that circumstantial evidence offered by the defendant does not have to be proved beyond a reasonable doubt before the jury can consider it. See State v. Ortiz, 217 Conn. 648, 667-69, 588 A.2d 127 (1991). "[A]s long as the charge given does not suggest that the defendant's circumstantial evidence must be ignored unless he proves that evidence beyond a reasonable doubt," the court does not have to give a specific instruction differentiating between circumstantial evidence offered by the state from that offered by the defendant. State v. Willis, 24 Conn. App. 678, 682, 591 A.2d 445 (1991), aff'd, 221 Conn. 518, 605 A.2d 1359 (1992). We have consistently found similar incorrect jury instructions on circumstantial evidence to be harmless beyond a reasonable doubt. State v. Tinsley, 24 Conn. App. 685, 689, 591 A.2d 448, cert. denied, 220 Conn. 902, 593 A.2d 968 (1991); State v. Willis, supra. Because the defendant did not bear any burden of proof, the jury was not misled by this instruction, which, in effect, increases the state's burden of proof. See State v. James, 211 Conn. 555, 581, 560 A.2d 426 (1989); State v. Tinsley, supra. We decline the defendant's invitation to reverse our position on this issue. The defendant is not entitled to review of this claim because he has failed to satisfy the fourth prong of Golding. V The defendant next claims that the trial court improperly instructed the jury after it reported to the court that it was deadlocked and unable to reach a unanimous verdict. During the course of its deliberations, the jury sent a note to the court stating that it was deadlocked. The court asked the jurors to continue deliberations. The jury then sent another note that stated: "We the jury have reached a verdict of not guilty on the first degree murder charge. However, we are deadlocked on the intentional manslaughter with a vote of eight guilty and four not guilty. Four not guilty jurors totally discredit all the testimony of Carr, Ford and Clarke. We're deadlocked." After further deliberations, the jury again notified the court that they were "hopelessly deadlocked" on all manslaughter charges. The court then gave a Chip Smith charge to the jury. After another question about the difference between manslaughter in the first and second degree, the jury reached a verdict. The defendant argues that the court's Chip Smith charge was coercive because it was directed only to the minority jurors who favored an acquittal. The defendant never objected at trial to the court's Chip Smith charge. He asserts that because this claim concerns a fundamental constitutional right, it can be reviewed on the record, and is entitled to Evans/Golding review. The Chip Smith instruction, which derives from State v. Smith, 49 Conn. 376 (1881), has been consistently upheld as constitutional and proper when a jury announces that it is unable to reach a unanimous verdict. See State v. Ryerson, 201 Conn. 333, 349-50, 514 A.2d 337 (1986); State v. O'Neil, 200 Conn. 268, 281-84, 511 A.2d 321 (1986); State v. Ralls, 167 Conn. 408, 424-25, 356 A.2d 147 (1974), overruled on other grounds, State v. Rutan, 194 Conn. 438, 479 A.2d 1209 (1984). Our Supreme Court has noted that " '[n]o specific words are required if jurors are properly instructed that each juror's vote must reflect his [or her] considered judgment as to how the case is to be decided. . . . The right to disagree is implicit.' " State v. Ralls, supra, 425, quoting United States v. Bowles, 428 F.2d 592, 595-96 (2d Cir.), cert. denied, 400 U.S. 928, 91 S. Ct. 193, 27 L. Ed. 2d 188 (1970). The trial court does not have to inform the jury that it is not required to reach a verdict. State v. Smith, 222 Conn. 1, 22-23, 608 A.2d 63 (1992). In this case, the court's Chip Smith charge stated that the jurors should not abandon their firm and honest convictions in order to reach a unanimous result. The court asked only that the minority jurors reevaluate their opinions and be open to further discussion on the majority position. The court did not warn the jurors about the negative consequences of mistrial resulting from a deadlocked jury. "The potential of a mistrial, upon a deadlock, often regarded as coercive, was fully absent in this charge. See, e.g., Commonwealth v. Rodriquez, 364 Mass. 87, 100 n.16, 300 N.E.2d 192 (1973)." State v. O'Neill, supra, 284. In State v. Avcollie, 188 Conn. 626, 640-42, 453 A.2d 418 (1982), cert. denied, 461 U.S. 928, 103 S. Ct. 2088, 77 L. Ed. 2d 299 (1983), the defendant argued that the Chip Smith charge was coercive because the court was aware that the jury was deadlocked eleven to one for conviction. Id., 641. Our Supreme Court rejected the defendant's claim that the court's Chip Smith charge was "tantamount to a directed verdict of guilty." Id. Here, the jurors were deadlocked eight to four for conviction. Therefore, the minority was in a stronger position than in Avcollie. In this case, the court's instructions encouraged the jurors to reach a unanimous result but emphasized that the result should be a product of each juror's own honest and firm beliefs. This is the proper function of the Chip Smith charge. Id. We find that the "Chip Smith" charge in this case was proper. The defendant has failed to establish the existence of a constitutional violation resulting from this instruction. The defendant was not deprived of a fair trial by this instruction and, therefore, fails to satisfy the third prong of State v. Golding, supra. The judgment is affirmed. In this opinion the other judges concurred. The court instructed: "The burden then is on the state to prove the accused guilty of the crime for which he is charged, and the accused does not have to prove his innocence . And we have been using the term beyond a reasonable doubt, and I will now define and explain that phrase to you. It has no technical or unusual meaning. You can arrive at the real meaning of it by emphasizing the word reasonable. A reasonable doubt, a reasonable doubt is a doubt for which a valid reason can be assigned. It is a doubt if something more than a guess or a surmise. . . . It is a doubt based upon reasonable and common sense. The kind of doubt that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt if proof of such a compelling and convincing nature that you would be willing to rely on it without hesitation in your most important affairs. A reasonable doubt in other words is a real doubt, an honest doubt, a doubt which has its foundation in the evidence or lack of evidence. It is such a doubt as a series of affairs which concern you in everyday life, you would pay some heed to. The law does not require proof beyond all doubt. But the law does require however, is that after hearing all the evidence if there is something in the evidence or lack of evidence which leaves in the minds of the jury as reasonable men and women a reasonable doubt of the guilt of the accused, then the accused must be given the benefit of that doubt and acquitted." A defendant "can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant's claim will fail." (Emphasis in original.) State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The court instructed: "It is your duty to make every reasonable effort to come to a verdict. You must listen to what the other jurors say. You must not hesitate to reconsider their opinion. . As reasonable people you normally should ultimately be able to come to a unanimous agreement upon a verdict. On the other hand, the verdict must be one which each juror considers just in his or her own mind. A juror cannot desert his or her own mind. A juror cannot desert his or her firm and honest convictions simply to reach an agreement which he or she regards as wrong. Although the verdict which each of you agrees must express his or her own conclusion, and not be a mere acquiescence in the conclusion of your fellow jurymen. Yet, in order to bring your twelve minds to a unanimous result, you should consider the questions you have to decide not only carefully, but also with due regard in deference to the opinions of each other. In conferring together you ought to pay proper respect to each other's opinion and listen with an open mind to each other's arguments. If much the larger number of you reach a certain conclusion, a dissenting juror or jurors should consider whether his or her opinion is a reasonable one when the evidence does not lead to a similar result in the minds of so many men and women who are equally honest and equally intelligent, who have heard the same evidence with the same attention, with equal desire to arrive at the truth, and under the sanction of the same oath. If a majority of you are for one decision, the minority ought to seriously ask themselves whether they may not reasonably or ought not to doubt their own conclusions when it is not concurred in by most of those with whom they are associated. And they may well distrust the weight or sufficiency of the evidence upon which they rely when it fails to bring the minds of their fellows to the same conclusion they hold. . . ."

Landau, J. This is an appeal from the judgment of the Superior Court confirming an arbitration award in favor of the defendants and concomitantly denying the plaintiffs application to vacate the award. The issues to be addressed in this appeal are whether the trial court (1) improperly rendered judgment in favor of and against parties not named in the action, and (2) compelled the plaintiff to arbitrate matters he was not contractually bound to arbitrate. The record discloses the following facts. The plaintiff, Frank Delio, the owner of the subject property and the sole shareholder of The Hidden Garden Florist II, Inc., leased the property to The Earth Garden Florist, Inc. Larry Blankenship personally guaranteed the lease. The property involved is a parcel of land on which a greenhouse and a separate two-family house are situated. On November 7,1986, the parties entered into the following three agreements which are integral parts of a single transaction: (1) a lease by the plaintiff to the defendants of the greenhouse but not of the residence; (2) a business purchase agreement involving the sale of the plaintiffs business to the defendants; and (3) a purchase and sale agreement in which the defendants received a three year option to purchase the entire premises. The lease contained the follow ing arbitration clause: "Article 36 Arbitration Section 36.01 Any controversy or claim arising between the parties with respect to this lease unless other provision is made herein, shall be settled by arbitration in New Canaan in accordance with the laws of the state of Connecticut, pursuant to the rules of the American Arbitration Association and conducted in accordance with the rules of said Association. The party desiring arbitration shall do so by giving notice to that effect to the other party; said notice shall contain a specific description of the subject matter in dispute. All expenses of arbitration, including the expenses of witnesses shall be paid as awarded by the arbitrator(s) who shall be requested to include the payment of such expenses in the decision. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof." On February 8, 1988, the defendants notified the plaintiff of their intent to exercise the option agreement. The parties agreed to a closing date of March 18,1988. The plaintiff failed to tender the property on that date although the defendants were ready, willing and able to close. Because the defendants exercised their option to purchase, they did not pay rent on March 1,1988, with the expectation that the rent would be adjusted at the March 18, 1988 closing. No objection was made to the defendants' failure to pay rent, nor was a written notice of default, as required by article 15 of the lease, given to the defendants. On April 22, 1988, the defendants informed the plaintiff, in writing, that the plaintiff was in default of the lease, that there was no reason for the defendants to continue paying rent and that they were still anxious to purchase the property. On October 25, 1989, the defendants renewed their exercise of the option by written notice, setting the closing at the New Canaan Bank and Trust Company on October 31, 1989. On the morning of October 31, the plaintiff indicated that he was unable to give clear title, would need thirty days to clear the title and for the first time demanded "18 months of unpaid rent." The plaintiff again failed to tender the property and again the defendants were at all times ready, willing and able to close on the property. On November 29, 1989, the plaintiff served the defendants with a notice to quit. On March 13, 1990, the plaintiff commenced an action to evict the defendants and for back rent. On May 5, 1990, the defendants filed a motion to stay the action pending arbitration pursuant to article 36 of the lease. Over the plaintiffs strenuous objections, the defendants' renewal of the motion to stay was granted on June 26, 1990. During March and April of 1991, the arbitration of the defendants' claims and the plaintiff's claim for back rent was conducted with the full participation of both parties. Following the arbitration, a one page order was entered directing Delio and The Hidden Garden Florist II, Inc., to pay The Earth Garden Florist, Inc., Larry Blankenship and Katherine Blankenship $150,000. The Earth Garden Florist, Inc., and Larry Blankenship moved for the trial court to confirm the award and Delio moved for the trial court to vacate the award. This appeal followed. In his first claim, the plaintiff asserts that the trial court was without jurisdiction to render judgment in favor of Katherine Blankenship and against The Hidden Garden Florist II, Inc., because neither was named as a party to the action. The trial court rendered judgment in favor of The Earth Garden Florist, Inc., Larry Blankenship and Katherine Blankenship and against Delio and The Hidden Garden Florist II, Inc. The only plaintiff named in this action is Delio and the only defendants named in this action are The Earth Garden Florist, Inc., and Larry Blankenship. With respect to the trial court's judgment in favor of Katherine Blankenship, we conclude that because she was not a named party, the trial court was without jurisdiction to render judgment in her favor. The jurisdiction of the trial court is limited to those parties expressly named in the action coming before it. General Motors Acceptance Corporation v. Pumphrey, 13 Conn. App. 223, 227, 535 A.2d 396 (1988). Until one is given notice of the actions or proceedings against him and is thereby given opportunity to appear and be heard, the court has no jurisdiction to proceed to judgment either for or against him even though it may have jurisdiction of the subject matter. "One who is not served with process does not have the status of a party to the proceeding. . . . A court has no jurisdiction over persons who have not been made parties to the action before it. See Simko v. Zoning Board of Appeals, 205 Conn. 413, 533 A.2d 879 (1987); Graham v. Zimmerman, 181 Conn. 367, 373, 435 A.2d 970 (1980)." General Motors Acceptance Corporation v. Pumphrey, supra, 227-28. We, therefore, vacate the judgment as it pertains to Katherine Blankenship. See Practice Book § 4183. With respect to the claim that the trial court was without jurisdiction to render judgment against The Hidden Garden Florist II, Inc., we conclude that the plaintiff is not the proper party to raise this claim. The plaintiff was named personally in this action and does not have standing to challenge the judgment as it applies to a third party, despite the fact that he is the sole shareholder of that third party. " ' "Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented." ' " DiBonaventura v. Zoning Board of Appeals, 24 Conn. App. 369, 373-74, 588 A.2d 244, cert. denied, 219 Conn. 903, 593 A.2d 129 (1991), citing Board of Pardons v. Freedom of Information Commission, 210 Conn. 646, 648-49, 556 A.2d 1020 (1989). The general rule is that one party has no standing to raise another's rights. See State v. Williams, 206 Conn. 203, 207, 536 A.2d 583 (1988). " 'When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue . . . .' Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 492, 400 A.2d 726 (1978). '[Standing is] ordinarily held to have been met when a complainant makes a colorable claim of direct injury he . . . is likely to suffer . . . .' Maloney v. Pac, 183 Conn. 313, 321, 439 A.2d 349 (1981)." Malerba v. Cessna Aircraft Co., 210 Conn. 189, 192, 554 A.2d 1048 (1989). In accordance with these guidelines, we must determine whether Delio has made any colorable claims of direct injury that he is likely to suffer in his individual capacity as a result of the judgment rendered against The Hidden Garden Florist II, Inc. Admittedly, any judgment entered against The Hidden Garden Florist II, Inc., is the responsibility of the plaintiff as the sole shareholder and will be paid out of the corporate assets of The Hidden Garden Florist II, Inc. This, however, is insufficient to meet the test of Maloney v. Pac, supra, that the party contesting the judgment suffer direct injury in his individual capacity. The plaintiff will be required to pay the judgment rendered against The Hidden Garden Florist II, Inc., out of its corporate assets, in his capacity as the sole shareholder, not in his capacity as an individual. Because we conclude that the plaintiff was without authority to challenge the judgment rendered against The Hidden Garden Florist II, Inc., we do not address the merits of this claim. The plaintiffs second claim, that the trial court compelled him to arbitrate matters that he was not contractually bound to arbitrate, merits little discussion. The plaintiff argues that the arbitration clause in the lease, article 36, was applicable only to disputes pertaining to the lease itself and not to disputes pertaining to the business purchase agreement or the purchase and sale agreement. We are not persuaded. We note that the plaintiff did not appeal from the trial court order compelling him to proceed to arbitration, but rather chose to participate in the arbitration as directed by the trial court. The plaintiff does not contest the trial court's right to compel arbitration. Rather he challenges the scope of the subject matter he was compelled by the trial court to arbitrate. We adhere to the established rule that "arbitrability of a dispute is ordinarily a legal question for the courts. . . Beloff v. Progressive Casualty Ins. Co., 203 Conn. 45, 54, 523 A.2d 477 (1987); see also Gaudet v. Safeco Ins. Co., 219 Conn. 391, 399, 593 A.2d 1362 (1991); Welch Group, Inc. v. Creative Drywall, Inc., 215 Conn. 464, 467, 576 A.2d 153 (1990); Frager v. Pennsylvania General Ins. Co., 155 Conn. 270, 274, 231 A.2d 531 (1967). "[A]n order directing the parties to proceed with arbitration is a final judgment from which one can appeal. Dewart v. Northeastern Gas Transmission Co., 139 Conn. 512, 514, 95 A.2d 381 (1953)." Quinn v. Middlesex Ins. Co., 16 Conn. App. 209, 211, 547 A.2d 95, cert. denied, 209 Conn. 817, 550 A.2d 1085 (1988). In Quinn v. Middlesex Ins. Co., supra, the plaintiff, rather than proceeding to arbitration, and then challenging an adverse arbitration award, properly appealed to this court directly from the trial court's order to proceed to arbitration of an uninsured motorist claim. Here, the plaintiff's failure to appeal directly from the trial court order compelling arbitration precludes him from pressing this claim on appeal. The judgment, as it pertains to Katherine Blankenship, is vacated; the remainder of the judgment is affirmed. In this opinion the other judges concurred. The property was foreclosed on by Mechanics and Farmers Savings Bank on July 13, 1990. Article 34 of the lease states in pertinent part: "It is understood and agreed between the parties hereof that the within lease, contract with Hidden Garden Florist II, Inc. and contract to purchase the demised premises are integral parts of a single transaction, and that a default by either party under any of the said agreements shall be construed to create a default of the others." The defendants were to conduct a greenhouse and florist business on the premises. The monthly rent was $3200. The sale of the business for $125,000 included the fixtures and equipment, the business goodwill, and a covenant not to compete. The defendants paid the plaintiff $50,000 for the option to purchase the entire premises for the amount of $600,000 during the three year term of the lease. On April 7, 1986, a modification agreement was entered into whereby the purchase price of the property was reduced to $550,000. The plaintiff argued that the arbitration submission authorized by the trial court far exceeded the terms of the arbitration agreement in the lease. The July 13,1990 foreclosure on the subject property; see footnote 1, supra; effectively terminated the plaintiff's action to evict the defendants. Practice Book § 4183 provides in relevant part: "The [appellate] court may, on its own motion, modify or vacate any order made by the trial court, or a judge thereof, in relation to the prosecution of the appeal." Similarly, our Supreme Court noted in Oliva v. Aetna Casualty & Surety Co., 181 Conn. 37, 39-40, 434 A.2d 304 (1980), that "[t]he function of the court . is to determine, in the first instance, whether the issue is arbitrable. If the court so decides, an order compelling arbitration is issued. If, on the other hand, the court decides that the issue is not arbitrable, it can proceed to decide the issue on the merits. In such a case, however, the plaintiff can appeal on the ground that the court erred in concluding that the issue was not arbitrable." See also Security Ins. Co. of Hartford v. DeLaurentis, 202 Conn. 178, 183, 520 A.2d 202 (1987); Wilson v. Security Ins. Group, 199 Conn. 618, 622, 509 A.2d 467 (1986).

Norcott, J. The defendant appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4) and conspiracy to commit robbery in the first degree in violation of General Statutes § 53a-48 (a) and 53a-134 (a) (4). He was sentenced to twenty years imprisonment on each charge, to be served consecutively to a sentence he currently is serving in federal prison. On appeal, the defendant claims that the trial court (1) improperly denied his motions for judgment of acquittal because of evidentiary insufficiency, (2) improperly instructed the jury on an essential ele ment of the crime of robbery in the first degree, and (3) improperly instructed the jury on an essential element of the crime of conspiracy to commit robbery in the first degree. We affirm the trial court's judgment. The jury could reasonably have found the following facts. Delroy Lewis was driving his car on Sigourney Street in Hartford accompanied by his fiancee, Dawn Jones, on June 12,1988. At a traffic light, a car pulled up on the passenger side of Lewis' vehicle. The defendant was a passenger in the second car. When the light changed, the defendant's car swerved in front of Lewis' and for the next few blocks continued swerving near Lewis' car. The driver of the second car was never identified. During this time, Jones saw a gun pointed at her from the defendant's car, although she was uncertain whether it was the driver or the defendant who pointed it at her. Lewis did not see the gun during the time the defendant's car was swerving close to his. At a traffic light farther along the road, the driver of the second car left his vehicle and told Lewis that he was going to shoot him. Lewis then turned his car onto another street. At this point, the driver of the other car returned to his vehicle and again swerved in front of Lewis' car, blocking it. Jones got out of Lewis' car to ask the defendant and the other driver why they were behaving as they did. The other driver got out of his vehicle again, armed with a gun, and said that he was going to shoot Lewis. He approached Lewis' car and kicked the door. Lewis saw the gun and maneuvered his vehicle around the other car and drove away, leaving Jones at the scene. Lewis stopped his car a short distance away. He was followed by the defendant and the unidentified driver in the other car. Jones screamed and began running toward Lewis. The defendant and the driver both got out of their vehicle and approached Lewis. Lewis got out of his car. The driver of the other vehicle, who at this point did not have a gun, then punched Lewis in the face. During a scuffle that ensued, a ring Lewis was wearing was either pulled off by the other driver or fell off. Lewis was unable to find it later. During the scuffle, Lewis heard the other driver order the defendant to "bring the gun" from the car. The defendant then approached with the gun and asked the driver to move because he was between the defendant and Lewis. When Lewis saw the weapon, he fled toward a parking lot. Moments later, he looked back and saw both men driving away. The defendant was driving Lewis' car. Lewis then ran to Jones saying, "They stole my car." At the conclusion of the state's case-in-chief, the defendant moved for judgment of acquittal. He also moved for judgment of acquittal after all of the evidence had been presented and again at his sentencing. The trial court denied all three motions. This appeal followed. I Sufficiency of the Evidence The defendant first claims that the trial court improperly denied his motions for acquittal because there was insufficient evidence to support his convictions. We disagree. When reviewing a claim of evidentiary insufficiency, we employ a two part test. We first review the evidence presented at trial, construing it in the light most favorable to sustaining the jury's verdict. Next, we determine whether, on the facts so construed and the inferences reasonably drawn therefrom, the jury could have concluded that the cumulative force of the evidence established the defendant's guilt beyond a rea sonable doubt. State v. Lewis, 220 Conn. 602, 606, 600 A.2d 1330 (1991); State v. Jupin, 26 Conn. App. 331, 337, 602 A.2d 12, cert. denied, 221 Conn. 914, 603 A.2d 404 (1992). In determining if the jury reasonably could have found the defendant guilty, we ask if any rational factfinder could have done so. State v. Montanez, 219 Conn. 16, 20, 592 A.2d 149 (1991); State v. Jupin, supra, 338. A The defendant first attacks the sufficiency of the evidence that resulted in his conviction of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4). He argues, in essence, that the state failed to prove beyond a reasonable doubt that he used or threatened immediately to use physical force to prevent Lewis from resisting the taking of his car. In the defendant's view, the force or the threat of force he exhibited had nothing to do with the loss of Lewis' ring or the taking of his car. Thus, there was no robbery. "Robbery is an offense against the person, the distinguishing characteristic of which is the intimidation of the victim." State v. Hawthorne, 175 Conn. 569, 573, 402 A.2d 759 (1978); State v. Childree, 189 Conn. 114, 123, 454 A.2d 1274 (1983). Under the plain language of General Statutes § 53a-133, a criminal defendant "commits robbery when, in the course of committing a larceny," he engages in forcible conduct with a proscribed purpose. State v. Tweedy, 219 Conn. 489, 498, 594 A.2d 906 (1991). A larceny does not constitute a robbery unless the force or threat of force is for the purpose of coercing the victim in the manner described in § 53a-133. State v. Gordon, 185 Conn. 402, 410-11, 441 A.2d 119 (1981), cert. denied, 455 U.S. 989, 102 S. Ct. 1612, 71 L. Ed. 2d 848 (1982). The term "purpose" is synonymous with the terms "object" and "intent." State v. Kurvin, 186 Conn. 555, 567, 442 A.2d 1327 (1982). Intent may be determined from the inferences drawn from the defendant's conduct; State v. Morrill, 193 Conn. 602, 609, 478 A.2d 994 (1984); because " '[ijntent is a mental process which ordinarily can be proven only by circumstantial evidence.'" State v. Tweedy, supra, 501, quoting State v. Just, 185 Conn. 339, 355, 441 A.2d 98 (1981). With respect to the defendant's assertion that his robbery conviction cannot be based on the larceny of the ring, this is not in dispute because the jury was not' instructed as to accessory liability. Rather, it was instructed that it had to find that it was the defendant who, in the course of committing a larceny, threatened the immediate use of physical force against Lewis so as to prevent him from resisting the taking of his personal property. See State v. Tweedy, supra. Thus, the jury had to consider the theft of the car as the larceny giving rise to the robbery charge. The evidence clearly demonstrates that the defendant and his companion engaged in a continuing course of conduct that included swerving their automobile to impede Lewis' car, cutting him off, and threatening him by brandishing a gun as the cars proceeded along Sigourney Street. When the defendant finally got out of the car to bring his companion a gun, the defendant further threatened Lewis with the use of force by requesting the unidentified driver to move so there would be a clear path between Lewis and the gun the defendant was carrying. At this point, Lewis fled and looked back to see the defendant driving away in his car. Viewing the evidence in the light most favorable to sustaining the jury's verdict, as we must, we conclude that sufficient evidence existed to find beyond a reasonable doubt that the defendant's display of the gun and his request that his companion move were intended to prevent Lewis from resisting the taking of his car. State v. Gordon, supra, 411. Although the defendant argues that the taking of the car was only a larceny because the threat of force ended when Lewis fled, such is not the case. Inherent in the defendant's reasoning is the mistaken assumption that the use of force or the threatened use of force must occur simultaneously with the taking of the property for the force or threat of force to be for the purpose of preventing resistance. The time frame for committing the offense of robbery, however, is " 'the course of committing a larceny,' " rather than the course of forcible conduct. State v. Tweedy, supra, 498-99; State v. Gordon, supra, 410-11. "An offender . . . may commit robbery although he does not use or threaten to use force at the precise time he takes the property . . . ." (Emphasis added.) State v. Gordon, supra; State v. Tweedy, supra, 499 n.10. With the facts here, it was entirely reasonable for the jury to conclude that the defendant threatened Lewis for the purpose of preventing resistance to the taking of the car. B The defendant next challenges the sufficiency of the evidence that led to his conviction of conspiracy to commit robbery in the first degree in violation of § 53a-48 (a) and 53a-134 (a) (4). He argues that the state lacked the evidence necessary to prove that he entered into a plan to commit the crime of robbery in the first degree, or that he intended to use force to commit the underlying larceny of Lewis' car. "To establish the crime of conspiracy under § 53a-48 of the General Statutes, it must be shown that an agreement was made between two or more persons to engage in conduct constituting a crime and that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators. The state must also show intent on the part of the accused that conduct constituting a crime be performed. . . ." (Internal quotation marks omitted.) State v. Lewis, supra, 606-607, quoting State v. Beccia, 199 Conn. 1, 3, 505 A.2d 683 (1986). Further, the state also must show that the conspirators intended to agree and that they intended to commit the elements of the underlying offense. State v. Beccia, supra, 4. Thus, to convict the defendant, the jury had to find (1) that the defendant agreed with his companion to take Lewis' car, (2) that, at the time of the agreement, the defendant and his companion intended to take the car, and (3) that the defendant or his companion committed an overt act in furtherance of the conspiracy. To prove that there was an agreement, it is well established that circumstantial evidence is sufficient because conspiracies, by their very nature, are formed in secret and only rarely can be proved otherwise than by circumstantial evidence. State v. Holmes, 160 Conn. 140, 150, 274 A.2d 153 (1970); see also State v. Ghere, 201 Conn. 289, 299, 513 A.2d 1226 (1986) ("existence of a formal agreement between the conspirators need not be proved" because only in rare instances can a conspiracy be established by proof of an express agreement). Here, the evidence clearly demonstrates that the entire chain of events, including the swerving of the car, the blocking of Lewis' car, and the use of a gun by the defendant and his request to his companion to move out of the way so that he was not between Lewis and the gun, could be seen as intentional conduct supporting the existence of a plan to take Lewis' car. Further, the defendant's overt acts of bringing the gun to his companion and driving away with Lewis' car constitute acts in furtherance of the conspiracy to take the car. Although the defendant at oral argument suggested that "the taking of the vehicle was a larcenous and fortuitous afterthought to what went before," we cannot agree. Under the circumstances here, it was reasonable and logical for the jury to infer that the defendant and his companion agreed to take Lewis' car, that they intended to do so and that they committed overt acts to that end. II Challenge to Jury Instructions A The defendant next contends that the court, in its instructions to the jury, improperly defined an essential element of the crime of robbery in the first degree. Specifically, he argues that, in response to the jury's requests for clarifications of the court's charge, the court improperly defined the phrase in § 53a-134 (a) (4) "in the course of the commission of the crime," thereby violating his state and federal constitutional rights not to be convicted except upon proof beyond a reasonable doubt of each element of the offense charged. We are unpersuaded. During deliberations, the jury twice sought clarifications of the court's instructions. First, the jury asked whether it had to believe that the defendant himself threatened Lewis with a gun or whether the earlier display of a gun would be sufficient to sustain a charge of robbery in the first degree. In response, the court reread the charge it had given earlier on the crime of robbery in the first degree. Thereafter, the jury requested the court to further define the word "course" in the definition of the offense of robbery in the first degree so as to learn when "in the course" of the commission of the crime begins. The court then told the jury, "There is no legal, specifically legal, definition of 'the course of,' but I can tell you where it would fit into the statutory scheme. 'In the course of' would mean after the intent to commit the larceny has arisen and the defendant or a participant with him has taken some step in fulfillment of this intent to commit the crime. Now, if you are focusing on the time, as you put it in your question, does the course begin with the [swerving of the car] — that's [a] question of fact for you to decide, whether it fits within the intent to commit the crime at that time. Did they intend to do it and did they take some step in fulfillment of this intent to commit the crime? . So, obviously, you're going to have — you heard all of the evidence about when the weapon was allegedly displayed and you'll have to fit that in your own mind, taking into consideration the entire factual situation and see whether or not you feel that that display — or the evidence that you heard about the display of the gun and the different times was in the course of the commission of the crime of robbery in the first degree." At the outset, we note that the defendant concedes this claim was not properly preserved at trial and now seeks review under the plain error doctrine embodied in Practice Book § 4185, State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). First, the defendant's claim does not rise to the level of plain error. "Plain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings . . . and results in an unreliable verdict or miscarriage of justice." (Citations omitted; internal quotation marks omitted.) State v. Polanco, 26 Conn. App. 33, 39, 597 A.2d 830, cert. denied, 220 Conn. 926, 598 A.2d 367 (1991); Commissioner v. Youth Challenge of Greater Hartford, Inc., 219 Conn. 657, 671, 594 A.2d 958 (1991). This claim does not raise such an issue. Thus, plain error review is unwarranted. This court and our state Supreme Court, however, have permitted Evans-Golding review of similar claims that certain language used in the charge in a criminal case had the effect of diluting the state's constitutional burden to prove a defendant guilty beyond a reasonable doubt. State v. Johnson, 214 Conn. 161, 571 A.2d 79 (1990); State v. Harvey, 27 Conn. App. 171, 605 A.2d 563 (1992); State v. Smith, 26 Conn. App. 279, 600 A.2d 1036 (1991). Accordingly, we review this claim to determine if the defendant has been deprived of his fundamental constitutional right not to be convicted except upon proof beyond a reasonable doubt of each element of the offense charged. State v. Golding, supra; State v. Evans, supra. Where an alleged improper instruction is of constitutional dimension, "the test is whether it is reasonably possible that the jury was misled." State v. Quintana, 209 Conn. 34, 50, 547 A.2d 534 (1988). We do not evalu ate a contested portion of an instruction in artificial isolation from the overall charge. Id. Instead, we examine the charge in its entirety. State v. Hopkins, 222 Conn. 117, 130, 609 A.2d 236 (1992); State v. Grullon, 212 Conn. 195, 204, 562 A.2d 481 (1989). While the instructions need not be exhaustive, perfect or technically accurate, they must be correct in law, adapted to the issues and sufficient for the guidance of the jury. State v. Hopkins, supra; Preston v. Keith, 217 Conn. 12, 17, 584 A.2d 439 (1991). Reversal is warranted only if, in the context of the whole instruction, there is a reasonable possibility that the jury was misled in reaching its verdict. State v. Fleming, 198 Conn. 255, 269, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986). Our Supreme Court has determined that "if the use of force occurs during the continuous sequence of events surrounding the taking or attempted taking, even though some time immediately before or after, it is considered to be 'in the course of the robbery or the attempted robbery within the meaning of the statute." State v. Ghere, supra, 297. Here, the court's first response to the jury's inquiry was a correct statement of the law. Its second response to the jury's request properly stated that "in the course of" commission of the crime would occur after "the defendant or a participant with him has taken some step in fulfillment of this intent to commit the crime." What constituted such "steps" were, as the court stated, factual issues within the jury's domain. Here, the jury reasonably and logically could have inferred that both the brandishing of the gun in the car, and the defendant's act of bringing it to his companion and asking that he step aside so that nothing would be between the gun and Lewis were acts directly connected with committing the crime of robbery in the first degree. See, e.g., id., 298 ("use of force was within the sequence of events directly con nected to the attempted robbery"). On the basis of our independent review, we conclude that the challenged aspect of the court's instructions, taken in the context of the entire charge, was correct in law, adapted to the issues and sufficient to guide the jury. See Preston v. Keith, supra. B Finally, the defendant argues that the court improperly instructed the jury on the element of intent necessary to sustain a conviction for the crime of conspiracy to commit robbery in the first degree. Specifically, he claims that because the court's charge amounted to a "general intent" instruction, his state and federal constitutional rights were violated because he was convicted in the absence of proof beyond a reasonable doubt of one of the necessary elements of the offense charged. We disagree. Here again, we note that the defendant concedes that this claim has not been properly preserved for review. He seeks review under the plain error doctrine embodied in Practice Book § 4185, and under State v. Evans, supra, and State v. Golding, supra. Although, the defendant's claim does not rise to the level of plain error; State v. Polanco, supra; we nevertheless afford it Evans-Golding review, since other, similar jury instruction claims alleging error of constitutional magnitude have been granted such review. See State v. Johnson, supra; State v. Harvey, supra; State v. Smith, supra. When the court initially instructed the jury on the conspiracy charge, it read the information and stated, inter alia, that "[t]o constitute the crime of conspiracy, the state must prove the following elements beyond a reasonable doubt. One, there was an agreement between two or more persons to engage in conduct constituting a crime; two, there was an overt act in fur therance of the subject of the agreement; and three, there was the intent on the part of the defendant that conduct constituting a crime be performed." The court also told the jury that a conspiracy conviction would have to be based "on the charge contained in the information," and that in order to convict the defendant, it would have to be found that the defendant "had a specific intent to violate the law" that was the object of the conspiracy. Thereafter, the jurors asked to hear the three elements of the crime again. The court repeated the elements of conspiracy, stating, inter alia, that the state had to prove beyond a reasonable doubt that there was "the intent on the part of the defendant that conduct constituting a crime be performed." The defendant argues that since conspiracy is a specific intent crime; State v. Beccia, supra, 4; the court's instruction was improper because it permitted the jury to find him guilty of some crime, rather than the crime that was the object of the conspiracy. Id. Again, we note that our role in reviewing jury instructions is not to dissect them critically in a microscopic search for possible error. State v. Hopkins, supra, 129. We examine them in their entirety; id., 130; State v. Grullon, supra; to determine if they are correct in law, adapted to the issues and sufficient for the guidance of the jury. State v. Hopkins, supra; Preston v. Keith, supra. Our review of the record discloses that the jury was well informed as to what offense was the object of the conspiracy. In charging the jury, the court said that the information used to charge the defendant would be with the jurors in the deliberation room. The court read the information during its charge. It recited the three elements necessary to prove conspiracy and further told the jury that it could not find the defendant guilty unless the state proved beyond a reasonable doubt that he "had a specific intent to violate the law" that was the object of the conspiracy. The court then reiterated that to convict the defendant, the jury had to find that there was proof beyond a reasonable doubt of the crimes alleged in the information. We therefore conclude that the court's instruction on the conspiracy charge was proper in that it stated the law correctly, adapted the issues to the case at hand and gave the jury sufficient guidance to reach a verdict. State v. Hopkins, supra; Preston v. Keith, supra. The judgment is affirmed. In this opinion the other judges concurred. General Statutes § 53a-134 (a) provides in pertinent part: "A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime . (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm . . . ." General Statutes § 53a-133 provides: "robbery defined. A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny." General Statutes § 53a-48 (a) provides: "A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy." The court told the jurors, inter alia, that "[a] person is guilty of robbery in the first degree when in the course of the commission of the crime or the immediate flight therefrom, he or another participant in the crime displays or threatens what he represents by his words or conduct to be a pistol, revolver or other firearm."

Foti, J. The defendant appeals from the judgment of conviction, rendered after a jury trial, of two counts of larceny in the first degree in violation of General Statutes § 53a-122 (a) (2) and General Statutes § 53a-122 (a) (4), and second degree forgery in viola tion of General Statutes § 53a-139. The defendant claims that the trial court incorrectly (1) found sufficient evidence to sustain a guilty verdict on the two counts of first degree larceny, (2) found sufficient evidence to sustain a guilty verdict on the charge of forgery, and (3) admitted into evidence certain secondary documents in violation of the best evidence rule. We affirm the judgment of the trial court. The jury could reasonably have found the following facts. The defendant was employed as a scheduler at the Mansfield Training School, a state agency. As a scheduler, she was responsible for maintaining records of employees' work history and attendance, including overtime, compensation time, sick leave, holidays, vacations, and personal leave, as well as keeping track of her own attendance. To keep track of employees' attendance, the defendant listed their hours on time and attendance records which were then signed by her supervisor and thereafter kept on file in her office. The defendant then transcribed the information contained in these records onto biweekly time sheets (biweeklies) which she submitted to the payroll department. Payroll personnel then transferred the information contained in the biweeklies onto official payroll time cards and initialed the upper corner of each biweekly. Payroll personnel used the information copied from the biweeklies to calculate the amount of pay due to each employee according to the category of hours worked and the employee's wage rate. Payroll personnel kept the payroll cards in their office and returned the biweeklies to the defendant after making photocopies of them. After she received the biweeklies from the payroll department, the defendant kept them on file in her office. During the period of time from October 25,1985, to July 13, 1989, the defendant submitted biweeklies to the payroll department on which she inflated the actual number of hours she worked. After transcribing the numbers onto the payroll cards, the payroll department returned the biweeklies to the defendant. The defendant then either deleted the inflated hours from the biweeklies or substituted forged biweeklies so that the biweeklies on file in her office reflected only the hours actually worked. She then forged the initials of payroll personnel on the altered biweeklies. During an investigation into the defendant's conduct, the defendant's biweeklies were recovered from her office. These documents revealed only a few hours of overtime in comparison to the payroll cards, which indicated that the defendant had been paid for many hours of overtime. Additionally, the defendant's biweeklies contained numerous erasures and white-out markings. There were no similar erasures evident on the biweeklies of other employees, which were also on file in the defendant's office. Additionally, the defendant had blank copies of biweeklies in her office. Overall, the payroll cards and other documents indicated that the defendant had been paid for between 2800 and 2950 hours of overtime, totaling approximately $59,000, in four years. During some weeks, the defendant was paid for between forty and fifty hours of overtime. At trial, there was testimony that the defendant's job did not require this amount of overtime. Furthermore, it was the policy of Mansfield Training School that all overtime hours be approved by the assistant director of the school. There was testimony that the defendant had received permission from her supervisor for only a few hours of overtime work during the four year period in question. Several witnesses testified at trial that they had rarely seen the defendant work before or after her regular shift, which was from 7 a.m. until 3:30 p.m. Many of these witnesses also testified that during the times in question, they did not see the defendant's car parked at the school. Furthermore, there was testimony that the defendant had stated to her supervisor that she always was able to complete her work within the normal work week and could not understand why other schedulers had difficulty doing so. I The defendant first claims that the evidence was insufficient to sustain a verdict of guilty of first degree larceny in violation of General Statutes § 53a-122 (a) (2) and (4). The defendant argues that the jury could not have reasonably concluded that she was guilty beyond a reasonable doubt, and that the state failed to prove beyond a reasonable doubt that she did not work the overtime hours she submitted to the payroll department on the biweeklies. The defendant emphasizes that none of the state's witnesses could say definitively that she was not working during the times she claimed to have worked. Our review of the record, however, leads us to reject the defendant's arguments. Although the state's case rested largely on circumstantial evidence, "there is no legal distinction between direct and circumstantial evidence so far as probative force is concerned." State v. Haddad, 189 Conn. 383, 390, 456 A.2d 316 (1983); State v. King, 216 Conn. 585, 602, 583 A.2d 896 (1990). "It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involv ing substantial circumstantial evidence." State v. Perez, 183 Conn. 225, 227, 439 A.2d 305 (1981). "When an appeal challenges the sufficiency of the evidence to justify a verdict of guilty, we have a twofold task. We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the verdict. . . . We then determine 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." ' " (Citations omitted.) State v. Braxton, 196 Conn. 685, 691, 495 A.2d 273 (1985); State v. Kennedy, 20 Conn. App. 354, 368, 567 A.2d 841 (1989), cert. denied, 215 Conn. 805, 573 A.2d 317 (1990). It is a well established principle that we, as a reviewing court, do not " 'sit as a [seventh] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. We have not had the jury's opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility.' " State v. Rodriquez, 200 Conn. 685, 693, 513 A.2d 71 (1986), 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). We will not disturb the determination of the trier of fact if, viewing the evidence in the light most favorable to sustaining the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Edwards, 201 Conn. 125, 151, 513 A.2d 669 (1986); State v. Waterman, 7 Conn. App. 326, 338-39, 509 A.2d 518, cert. denied, 200 Conn. 807, 512 A.2d 231 (1986). "The state need not offer proof of guilt 'beyond a possible doubt.' " State v. Hicks, 169 Conn. 581, 585, 363 A.2d 1081 (1975). The defendant was charged with two counts of larceny in violation of General Statutes § 53a-122 (a) (2) and (4). Larceny occurs when, "with intent to deprive another of property or to appropriate the same to himself or a third person, [a person] wrongfully takes, obtains or withholds such property from an owner." General Statutes § 53a-119; State v. Marra, 174 Conn. 338, 342, 387 A.2d 550 (1978); State v. Rochette, 25 Conn. App. 298, 304, 594 A.2d 1006, cert. denied, 220 Conn. 912, 597 A.2d 337 (1991). To convict a person under § 53a-122 (a) (2), the state must prove that the value of the property exceeded $10,000, and to convict a person under § 53a-122 (a) (4), the state must prove that the property was obtained by defrauding a public community, with the value of the property in excess of $2000. At trial, the state presented alternative theories of guilt. The state's primary theory was that the defendant did not actually work the overtime hours that she claimed on her biweeklies and for which she was paid. In the alternative, the state asserted that even if the defendant had worked the overtime hours in question, she did so wrongfully because she had not received approval from her supervisor to work the extra hours, and she did so to obtain moneys to which she was not entitled. She committed a larceny by obtaining that overtime pay by false pretenses in violation of § 53a-119 (2). We conclude that there was sufficient evidence for the jury to have found the defendant guilty under either theory. The state offered the testimony of Charles Devaux, the personnel manager at Mansfield Training School during the time in question, who investigated the irregularities in the defendant's attendance sheets. During his investigation, Devaux compared the biweeklies that were turned into the payroll department with the time and attendance records and found many inconsistencies. On the biweeklies submitted to payroll, the defendant claimed many hours that were not listed on the time and attendance sheets. Devaux testified that there were also many erasures of overtime hours on the biweeklies made after they were returned to the defendant from the payroll department. Devaux found 352 instances in which a total of 2950 hours of unauthorized overtime was listed on the payroll time cards but not on the time and attendance sheets. Also, he discovered sixteen holidays on which the defendant reported to the payroll department that she had worked, but on the time and attendance sheets listed herself as not working. These instances totaled 128 hours. Devaux found that on forty-two occasions, the defendant had listed herself as working but had taken vacation. Additionally, he testified that on twelve occasions, the defendant called in sick, but had marked herself as working on the payroll records. This time totaled seventy hours. He discovered eight occasions on which the defendant reported to payroll that she was sick, and reported to her supervisor that she was taking vacation time. Devaux testified that in inspecting the biweeklies recovered from the defendant's office, it appeared to him that they did not contain the correct initials of the staff in the payroll department. With regard to the state's primary theory that the defendant falsely claimed to have worked the hours in question, the state presented at least nine witnesses who testified that they had rarely, if ever, seen the defendant work before or after her regular shift. For example, Thomas O'Meara, a shift supervisor at Mansfield Training School, testified that during the time in question, his desk was located three feet from the defendant's. O'Meara testified that he worked a flexible schedule, meaning that he would adapt his schedule to the needs of the unit and often worked the second, third and weekend shifts. O'Meara testified that the defendant was typically present in the office during her regularly scheduled shift, 7 a.m. until 3:45 p.m., and that to his knowledge she did not work flexible time. O'Meara testified that during the times he worked the second, third and weekend shifts, he never saw the defendant at work, nor did he observe her car parked in the parking lot. The state introduced the biweeklies, the time and attendance records, and the official payroll time cards into evidence. For example, the defendant's biweeklies from March 14, 1986, through March 21, 1986, show that the defendant took vacation on March 14, and March 17 through 21. The biweeklies indicate that March 15 and 16 were pass days. The time and attendance records for that period correspond to the biweeklies. The time cards submitted to the payroll department, however, indicate that on March 14, the defendant worked seven hours, on both March 15 and 16, she worked eight hours overtime, and between March 17 and 21, she worked seven hours per day. Similarly, the time and attendance cards for October 28 and 29, 1986, indicate that the defendant took vacation on those dates. The biweeklies for those dates also reflect that the defendant took vacation on those dates. The payroll time cards indicate, however, that the defendant worked eight hours on each of those days. O'Meara testified that he approved the defendant's vacations on those dates, and she did not request permission to reschedule her vacation time. The evidence was also sufficient to prove the defendant's guilt under the state's alternative theory that, even if the defendant did in fact work all of the hours she claimed to have worked, she did so wrongfully because she had not received authorization to work overtime. Several witnesses testified at trial that employee overtime was a critical problem at Mansfield Training School and that employees were under pressure to reduce their overtime hours as much as possi ble. The defendant was aware of this problem and had attended several meetings where this issue was discussed. The defendant was aware that all schedulers were required to obtain the approval of their supervisors in order to work overtime. There was testimony that the defendant had been granted approval to work only a relatively small number of overtime hours during the period in question. Furthermore, the defendant admits in her brief that she did not comply with the rule requiring preapproval of overtime hours. We conclude that the evidence was sufficient to sustain the defendant's conviction under either of the state's theories of guilt. From the evidence presented, the jury could have reasonably found the defendant guilty of larceny in violation of subdivisions (2) and (4) of General Statutes § 53a-122 (a). II The defendant next claims that there was insufficient evidence to sustain her conviction of forgery in the second degree in violation of General Statutes § 53a-139. The defendant argues that there was insufficient evidence to prove that she altered the biweeklies, and, even if there was sufficient evidence to prove that she did so, the evidence was not sufficient to show that the altered records were not true and accurate. Moreover, the defendant maintains that the state failed to meet its burden of proving that in altering the records, the defendant intended to deceive, defraud or otherwise injure another as required by General Statutes § 53a-139. We do not agree. Our review of the record and the transcript leads us to conclude that there was sufficient evidence for the jury to find that the defendant forged the initials of payroll personnel on the biweeklies in violation of General Statutes § 53a-139. The following additional facts are necessary to our resolution of this claim. Kathy Incandella, a payroll officer at the Mansfield Training School, testified that as a matter of course, when the biweeklies are submitted to the payroll department, she and the other payroll officers transpose the information onto official payroll time cards that remain in the payroll department. The officers then return the biweeklies to the scheduler. She testified that each payroll officer sees each timesheet and initials the biweeklies at the top of each sheet. At trial, the state showed Incandella a series of the defendant's biweeklies that had been recovered from the defendant's office. Incandella testified that the initials KI, which appeared on the biweeklies in the location where payroll officers typically place their initials, were not in her own handwriting. She also testified, after viewing several other biweeklies with initials purporting to be those of her coworkers, that those initials were not in the handwriting of her coworkers. Diane Boisvert, another payroll officer at Mansfield Training School, also testified as a state's witness at trial. She testified that she also reviewed and initialed biweeklies and transposed the information onto time cards during the period in question. After viewing several of the defendant's biweeklies that had been recovered from the defendant's office, she testified that although the initials DB appeared at the top left hand corner of the biweeklies, the initials were not in her handwriting. She also testified that she was familiar with the handwriting of Incandella and other payroll officers, and that the initials that were purported to be theirs on several other biweeklies were not their initials. In addition, payroll officer Kellsey Bastis offered testimony substantially similar to that of Incandella and Boisvert. The defendant contends that the state failed to sustain its burden of proof with regard to the element of intent under General Statutes § 53a-139. The defendant asserts that if she did alter the documents in question, there was insufficient evidence to prove that she did so with fraudulent intent. " 'Intent is a mental process which ordinarily can be proven only by circumstantial evidence.' State v. Zdanis, 182 Conn. 388, 396, 438 A.2d 696 (1980), cert. denied, 450 U.S. 1003, 101 S. Ct. 1715, 68 L. Ed. 2d 207 (1981). 'The use of inferences based on circumstantial evidence is necessary because direct evidence of the accused's state of mind is rarely available.' State v. Rodriguez, 180 Conn. 382, 404, 429 A.2d 919 (1980) . . . ." (Citation omitted.) State v. Edwards, supra. The defendant's intent in altering the biweeklies was a question for the jury. State v. Edwards, supra, 152. The testimony of the various payroll officers that the initials on the biweeklies recovered from the defendant's office were not their own, in conjunction with the testimony of Devaux regarding the numerous instances of additional overtime claimed by the defendant on the biweeklies submitted to payroll, would allow a jury reasonably to conclude that the defendant had forged the initials of the payroll employees with the intent to defraud. Thus, we conclude that there was sufficient evidence from which the jury could reasonably have found the requisite intent proven, as well as the other elements necessary for a conviction of forgery in the second degree. Ill Finally, the defendant claims that the trial court improperly admitted into evidence certain secondary documents in violation of the best evidence rule. The following additional facts are relevant to this claim. Jody DiCarli, the payroll supervisor at Mansfield Training School, testified that beginning on March 24, 1989, the payroll department was instructed to photocopy each biweekly received from each scheduler before returning the original biweekly to the scheduler. Over the defendant's objection, the trial court admitted into evidence exhibit J, consisting of copies of the photocopies that were made by the payroll department. The state offered exhibit J to show that the defendant's biweeklies on file in the payroll department corresponded with the information on the official payroll time cards, but did not match the biweeklies retrieved from the defendant's office. The documents in exhibit J contained the words "original Xerox." The defendant asserts that the admission of these second generation copies violated the best evidence rule because the state offered no testimony or evidence that the original photocopies were unavailable, that a good faith effort was made to locate the original photocopies, or that the documents admitted into evidence were identical to the original photocopies. The defendant claims that, at a minimum, the court should have required the state to establish the unavailability of the original copies or held an evidentiary hearing to determine whether the documents offered were identical copies of the original copies. "As defined by our Supreme Court, the best evidence rule forces a party to produce the original writing, if it is available, when the terms of that writing are material and must be proved. Brookfield v. Candlewood Shores Estates, Inc., 201 Conn. 1, 10, 513 A.2d 1218 (1986); see also C. McCormick, Evidence (3d Ed. 1984) § 230. 'The best evidence rule typically applies when attempting to prove the contents of " 'instruments such as deeds, wills or contracts, where a slight variation of words may mean a great difference in rights.' " Brookfield v. Candlewood Shores Estates, Inc., supra, 10-11, quoting C. McCormick, supra, § 231.' " Coelm v. Imperato, 23 Conn. App. 146, 150, 579 A.2d 573, cert, denied, 216 Conn. 823, 581 A.2d 1054 (1990). "The purpose of the [best evidence] rule is to secure the most accurate rendition of the terms and wording of a document . . . and to guard against'fraud and imposition.'" C. Tait & J. LaPlante, Connecticut Evidence § 10.7. Pursuant to General Statutes § 52-180 (e), reproductions of business records are admissible as originals if the conditions set forth in General Statutes § 52-180 (a) are satisfied. Burkert v. Petrol Plus of Naugatuck, Inc., 5 Conn. App. 296, 299, 497 A.2d 1027 (1985); C. Tait & J. LaPlante, Connecticut Evidence § 10.10. "A copy of a business record is admissible under the statute if (1) the copy was made in the ordinary course of business and (2) the copy accurately reproduced the original on a durable medium." State v. Crumble, 24 Conn. App. 57, 69, 585 A.2d 1245, cert. denied, 218 Conn. 902, 588 A.2d 1077 (1991). We note as a threshold matter that appellate review of the admission of a document under § 52-180 is limited to determining whether the trial court abused its discretion. River Dock & Pile, Inc. v. O & G Industries, Inc., 219 Conn. 787, 795, 595 A.2d 839 (1991). In this case, the original biweeklies would clearly be admissible as business records under § 52-180 (a) because (1) they were made in the regular course of business, (2) it was the regular course of Mansfield Training School to make such a record, and (3) they were made at the time of the act described in the report, or within a reasonable time thereafter. Bell Food Services, Inc. v. Sherbacow, 217 Conn. 476, 485, 586 A.2d 1157 (1991). Furthermore, copies of the original biweeklies would be admissible under § 52-180 (c). DiCarli testified that she examined exhibit J and that it correlated to the original time cards submitted to payroll by the defendant. She also testified that all of the hourly information in exhibit J was in the defendant's handwriting. This testimony provided a sufficient basis for the trial court to conclude that the copies "accurately reproduced the original on a durable medium." State v. Crumble, supra. The question that we must resolve in this case is whether a photocopy of a photocopy is admissible under General Statutes § 52-180. There is no requirement in § 52-180 (c) that only an original copy may be introduced. Furthermore, our Supreme Court has stated that the statutory business record exception to the hearsay rule should be liberally construed. River Dock & Pile, Inc. v. O & G Industries, Inc., supra. We conclude that a second generation copy is also admissible under § 52-180 (c) as long as the original satisfies the conditions of § 52-180 (a). Therefore, the trial court did not abuse its discretion in admitting the second generation copies of the biweeklies. The trial court properly determined that any doubt about the accuracy of the documents went to the weight to be afforded them by the jury rather than to their admissibility. Emhart Industries, Inc. v. Amalgamated Local Union 376, U.A.W., 190 Conn. 371, 387, 461 A.2d 422 (1983). The judgment is affirmed. In this opinion the other judges concurred. General Statutes § 53a-122 (a) provides in pertinent part: "A person is guilty of larceny in the first degree when he commits larceny as defined in section 53a-119 and . (2) the value of the property . . . exceeds ten thousand dollars . . . ." General Statutes § 53a-122 (a) provides in pertinent part: "A person is guilty of larceny in the first degree when . . . (4) the property is obtained by defrauding a public community, and the value of such property exceeds two thousand dollars." General Statutes § 53a-139 (a) provides in relevant part: "A person is guilty of forgery in the second degree when, with intent to defraud, deceive or injure another, he falsely makes, completes or alters a written instrument or issues or possesses any written instrument which he knows to be forged, which is or purports to be, or which is calculated to become or represent if completed . (2) a public record or an instrument filed or required or authorized by law to be filed in or with a public office or public servant . . . ." General Statutes § 52-180 (c) provides: "Except as provided in chapter 3, if any person in the regular course of business has kept or recorded any memorandum, writing, entry, print, representation or combination thereof, of any act, transaction, occurrence or event, and in the regular course of business has caused any or all of them to be recorded, copied or reproduced by any photographic, photostatic, microfilm, microeard, miniature photographic or other process which accurately reproduces or forms a durable medium for so reproducing the original, the original may be destroyed in the regular course of business unless its preservation is otherwise required by statute. The reproduction, when satisfactorily identified, shall be as admissible in evidence as the original in any judicial or administrative proceeding, whether the original is in existence or not, and an enlargement or facsimile of the reproduction shall be likewise admissible in evidence if the original reproduction is in existence and available for inspection under direction of court. The introduction of a reproduced record, enlargement or facsimile shall not preclude admission of the original." General Statutes § 52-180 (a) provides: "Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if the trial judge finds that it was made in the regular course of business, and that it was the regular course of the business to make the writing or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter."

Per Curiam. This appeal by Robert Gelormino and Shirley Gelormino is from two judgments of the trial court, one denying the application by the Gelorminos to correct an arbitration award in part, to vacate it in part and to affirm it in part, and the other granting the application by Alexander Liberman to confirm the same award. The trial court did not set forth any facts, reasons or law to support its decision. The Gelorminos failed to move for an articulation of the decision and, in oral argument before this court, requested that we remand the matter to the trial court for the purpose of having the court explain the facts it found and the law it relied on. This we decline to do. It is the appellants' duty to take the necessary steps to provide us with an adequate record for appellate review. Practice Book § 4061. The Gelorminos could have ensured the adequacy of the record by filing a motion for articulation pursuant to Practice Book § 4051 asking the trial court to set forth the basis for and reasoning behind its decision. They elected not to do this. Without an adequate record, we are left to guess or speculate as to the existence of a factual predicate. See State v. Rosedom, 34 Conn. App. 141, 145-46, 640 A.2d 634 (1994). As it is not the function of this court to find facts, we decline to review this claim. The judgments are affirmed. Robert Gelormino and Shirley Gelormino also challenge the trial court's denial of their motion to postpone and to strike the case from the trial list. The record, however, contains no indication that this motion was ever acted on. Furthermore, even if we presume the motion was denied, the trial court provided no basis for its decision and the Gelorminos failed to move for articulation. Therefore, we are unable to review this claim.

Lavery, J. The plaintiff appealed to the trial court from the denial by the Westport zoning board of appeals (board) of his request for a variance. On appeal to this court, the plaintiff claims that the trial court improperly found that the board had not abused its discretion in denying the variance. The dispositive issue is whether the board and the trial court correctly concluded that the plaintiffs property had merged with an adjoining property that the plaintiff once owned. We reverse the judgment. The plaintiff owns an undeveloped lot at 5 Winding Lane in Westport. The plaintiff bought the property in 1980 from Buddy B., Inc. At the same time, the plaintiff bought an adjoining lot that had been conveyed with the first lot since 1965. The sole access to the plaintiffs property is a twenty-one foot wide right-of-way from the west side of Winding Lane, known as Winding Lane West, that also serves two lots to the north of the plaintiffs property. This right-of-way was first mapped when the plaintiffs property was conveyed in 1942. It was recorded on August 15, 1958. The plaintiffs property is located in an area zoned for residential use, in which lots are required to be no smaller than one acre and shaped so that a 150 foot square can be inscribed within the property. The plaintiffs lot is one acre in area but is shaped in such a way that the largest square that can be inscribed on the property measures 144.47 feet. In 1982, the plaintiff sold the adjoining lot and its residence to the Johnsons (Johnson lot). When the plaintiff attempted to sell the property in question in 1991, the Westport director of planning and zoning informed the prospective purchaser that the lot did not comply with the zoning regulations because it could not accommodate a 150 foot square. The planning director also stated that the parcel was not in compliance with the right-of-way width requirements because more than one lot was being served by Winding Lane West. The sale was not completed. The plaintiff then applied to the board for a variance of both the shape requirement and the access requirement. After a public hearing, the board denied the plaintiffs application because the board found that there was insufficient hardship and that any hardship that may have existed was self-created. The plaintiff appealed that decision to the Superior Court, which upheld the board's finding that the hardship was self-created. The trial court also found that the merger doctrine applied and that the plaintiff failed to prove that the board's denial effected an unconstitutional taking. This appeal followed. The record reveals that the trial court and the board believed that the plaintiff's property had merged with the Johnson lot in 1956. The planning director based her opinion that the plaintiff's property was not a conforming lot, at least in part, on her belief that the two properties had merged. The transcript of the public hearing reveals that the board operated on the assumption that the two properties had merged. Finally, the trial court specifically found that merger had occurred and based its analysis of hardship on that belief. Building lots in Westport must be no smaller than one acre, and must be shaped in such a way that a square with 150 foot sides could be drawn within some portion of the property. The record reveals that the plaintiffs property satisfies the size requirement, but fails to satisfy the shape requirement. The largest square that could be inscribed within the plaintiffs property measures 144.47 feet per side. Thus, the plaintiffs property is nonconforming. Merger in Westport is governed by § 6-3.2 of the zoning regulations. That section provides that adjoining lots merge if (1) they were owned by the same person on or after March 24, 1952, (2) one or both lots are undeveloped, (3) one or both lots do not conform to the area and shape requirements of the zoning regulations, and (4) if "taken together [the resulting combined lot] would . . . more nearly [meet] the requirements of [the] regulations with regard to lot . shape . . . ." The plaintiffs property was owned by the owner of the Johnson lot on March 24, 1956. It remains undeveloped, and fails to conform with the shape requirements of the zoning regulations. Thus, the trial court concluded that the plaintiffs property satisfied the first three requirements for merger. The board appears to have assumed that the plaintiffs property also satisfied the fourth requirement; the trial court explicitly found so. The trial court based its ruling on the fact that if the two properties were considered together, two 150 foot sides of a "square" could be inscribed in the lot. The trial court appears to have believed that a "square" with two 150 foot sides and other shorter sides more nearly approximates a 150 foot square. The trial court concluded that the result of combining the plaintiffs property and the Johnson lot would more nearly conform to the shape requirement. Therefore, the merger provision was invoked and the two properties merged. Our review of the record and the applicable regulations, however, convinces us that the two properties never merged, thus undermining the basis for the trial court's hardship analysis. In order for the merger provision to apply, the result of the combined lots must "more nearly" permit a 150 foot square to be inscribed within it. In considering whether the combination of the plaintiff's property and the Johnson lot would more nearly conform to that regulation, we must interpret the 150 foot square requirement. We interpret and construe local ordinances according to the principles of statutory construction. Czajkowski v. Planning & Zoning Board, 14 Conn. App. 283, 288, 540 A.2d 716 (1988). We construe words and phrases according to the commonly approved usage of the language. General Statutes § 1-1 (a). Where an ordinance does not define a term, we look to the common understanding expressed in dictionaries. See Southington v. State Board of Labor Relations, 210 Conn. 549, 561, 556 A.2d 166 (1989). A square is defined as "a rectangle with all four sides equal." Webster's Third New International Dictionary. A rectangle is defined as "a parallelogram all of whose angles are right angles." Id. A parallelogram is defined as "a quadrilateral with opposite sides parallel." Id. Finally, a quadrilateral is defined as "a plane figure of four sides and consequently four angles." Id. These definitions lead us to the following conclusion: a square is a plane figure of four equal sides and four right angles. Thus, the combination of the plaintiffs property and the Johnson lot would invoke the merger provision if the resulting combined lot could accommodate a figure of four sides and four right angles larger than 144.47 feet. The trial court ruled that a figure with two 150 foot sides more nearly conformed to the requirement of four 150 foot sides with right angles. We do not agree. What the trial court actually described is a hexagon with two sides 150 feet long, one side 144.47 feet long, and three shorter sides. We conclude that a hexagon that encompasses more area than a square does not more nearly conform to a regulation that requires a square. The regulation at issue does not merely concern size; lots must be at least one acre and shaped a certain way. A five acre lot would satisfy the size requirement but would still not comply with the shape requirement if it was not wider than 149 feet. There was no evidence in the record before the trial court, nor any evidence before the board, that the combination of the plaintiff's property and the Johnson lot could accommodate a square larger than 144.47 feet. Because a combination of the plaintiff's property and the Johnson lot would not have conformed more nearly to the square requirement, the merger provision was never invoked. The defendant argues for the first time on appeal that the combination of the plaintiff's lot and the Johnson lot did more nearly conform to the square requirement because a square with 149 foot sides can be inscribed entirely within the Johnson property. Thus, the board asserts that, when the lots are combined, a square measuring 149 feet can be inscribed in the resulting combined lot and, because a 149 foot square more nearly conforms to the 150 square requirement, the merger provision is invoked. The board's assertion, however, is without basis in the record. There was no evidence presented to the board regarding the size of the Johnson lot. Likewise, there was no evidence in the record on which the trial court could have based a ruling that the Johnson lot could accommodate a 149 foot square. The function of an appellate court is to review a case on the theory on which it was tried and decided. Archambault v. Wadlow, 25 Conn. App. 375, 378-79, 594 A.2d 1015 (1991). Since the record provides no support for the board's claim, and since it was not raised below, we cannot entertain that claim. See id. Because the merger provision was never invoked, the lots did not merge. Thus, the plaintiff owned a separate, nonconforming lot. If it had been in use prior to the adoption of the shape requirement, the nonconforming use would be protected from later zoning regulations by General Statutes § 8-2. Because the property has not yet been developed, however, the plaintiffs property was not in use and is not exempt from the shape requirement. Sherman-Colonial Realty Corp. v. Goldsmith, 155 Conn. 175, 183, 230 A.2d 568 (1967); Johnson v. Zoning Board of Appeals, 35 Conn. App. 820, 825, 646 A.2d 953 (1994). If the plaintiffs property was part of a valid subdivision approved prior to adoption of the lot shape requirement, the plaintiffs property would be exempt from the shape regulation. General Statutes § 8-26a (b); see Johnson v. Zoning Board of Appeals, supra, 824. The plaintiffs property, however, was never part of a subdivision. The chain of title reveals that the plaintiffs property was always a separate and distinct parcel and was not a part of any subdivision. Thus, the shape requirement applies to the plaintiff's property, and the property is not a legal nonconforming lot. Therefore, the only way the plaintiff could avoid application of the shape requirement would be by a variance, which the plaintiff sought. The board denied the plaintiff's application on the ground that his property had been merged with the Johnson lot. The board concluded, in light of that presumption, that the plaintiff had created his own hardship by selling the Johnson lot. The trial court agreed with this assessment. Because the board and the trial court based their rulings on an incorrect application of law, the plaintiff has never received a hearing on his application for a variance without reference to the Johnson lot. The proper ties never merged; the plaintiff has the right to an opportunity to attempt to demonstrate hardship on the basis of his property alone, without reference to the Johnson lot. Similarly, the plaintiff never received a hearing on his application for a variance from the access requirement without reference to the Johnson lot. The board based its ruling on the application for access variance at least in part on its assumption that the hardship was self-created due to the merger of the plaintiff's lot and the Johnson lot. Again, the plaintiff is entitled to an opportunity to demonstrate that he will suffer hardship by the application of the access requirements to his property alone. The judgment is reversed and the case is remanded with direction to render judgment remanding the case to the Westport zoning board of appeals for a hearing on whether the plaintiff's lot, standing alone, warrants a variance from the application of the shape and access requirements. In this opinion the other judges concurred. Because our resolution of this issue requires a remand for a new hearing, we need not consider the plaintiff's other claims. Westport zoning regulations § 12-3 provides: "Each lot shall have a minimum of one (1) acre (43,560 square feet) and shall be of such shape that a square with one hundred fifty (150) feet on each side will fit on the lot." The Westport planning and zoning director issued her opinion in a letter to the buyer in which she explained her reasoning as follows: "This lot is not in compliance with the Westport zoning regulations, therefore no zoning certificate of compliance can be issued for the following reasons: "1. The lot shape is non-conforming, since a 150' x 150' square will not fit on to this lot. "2. The lot did not meet the zoning standards in existence at the time it was created. "According to Section 2 (k) of the September 8,1930 (including amendments to 12/8/42) Westport zoning regulations there shall not be more than one house for a 20' wide easement or right-of-way. The right-of-way leading to [the plaintiff's property] also serves as an accessway to Lot 78. "3. In 1971 [the plaintiff's property] was under the same ownership as an adjacent lot [the Johnson lot]. Both lots were owned by Buddy B. Inc. Since [the plaintiff's lot] was nonconforming as to lot shape and undeveloped it merged with [the Johnson lot]." Westport zoning regulations § 6-3.2 provides in pertinent part: "If two or more adjoining lots of record, one or more of which are undeveloped and fail to meet the requirements of these regulations with regard to lot area and/or lot shape, were in the same ownership on March 24, 1956 or subsequent date, and if such lots taken together would form one or more lots, each more nearly meeting the requirements of these regulations with regard to lot area and lot shape, such lot or lots shall merge and shall no longer be considered legally existing as separate lots . . . ." A hexagon is defined as a "plane polygon of six angles and therefore six sides." Webster's Third New International Dictionary. General Statutes § 8-2 (a) provides in relevant part: "Such regulations shall not prohibit the continuance of any nonconforming use, building or structure existing at the time of the adoption of such regulations." General Statutes § 8-26a (b) provides: "Notwithstanding the provisions of any general or special act or local ordinance, when a change is adopted in the zoning regulations or boundaries of zoning districts of any town, city or borough, no lot or lots shown on a subdivision plan for residential property which has been approved, prior to the effective date of such change, by the planning commission of such town, city or borough, or other body exercising the powers of such commission, and filed or recorded with the town clerk, shall be required to conform to such change."

Foti, J. The respondent appeals from only that part of the judgment that consists of a warning issued pursuant to General Statutes § 46b-149 (h). The respondent claims that the trial court improperly issued the "Long Lane Warning" concerning future possible behavior because (1) the respondent had attained the age of sixteen, and (2) it was not part of the previous agreement of the parties. On June 10,1993, the respondent, a fifteen year old girl, was adjudicated a child from a family with service needs pursuant to General Statutes § 46b-120. The respondent had admitted, in the presence of her attorney and her mother, to being a runaway. At the request of the parties, the court postponed the dispositional hearing until October 21,1993, to allow for the preparation of both psychiatric and probation reports. The respondent became sixteen years of age on August 1, 1993. At the dispositional hearing held in accordance with Practice Book § 1034.1, the parties agreed to an order of commitment to the department of children and families (DCF) for an indeterminate period not to exceed eighteen months, pursuant to General Statutes § 46b-149 (h) (2). The respondent was directly placed at New Hope Manor, a residential, nonsecure group home and treatment facility for girls. The respondent was ordered by the court to cooperate with treatment and to remain at that facility until she was successfully discharged. At the request of the state's advocate, the court then warned the respondent that if she did not abide by the rules at New Hope Manor, she could be sent to Long Lane School, a secure facility primarily for children who have been adjudged delinquent. The respondent objected to the warning and appealed. Because she does not challenge the order of commitment, but rather only the court's issuance of the warning, and because she cannot demonstrate a specific injury as a result of that warning, we must conclude that the respondent lacks aggrievement. We therefore dismiss her appeal. "A threshold inquiry of this court upon every appeal presented to it is the question of appellate jurisdiction . . . [and a] requisite element of appealability is that the party claiming error in the decision of the trial court be aggrieved . . . ." (Citations omitted; internal quotation marks omitted.) Scarsdale National Bank & Trust Co. v. Schmitz, 24 Conn. App. 230, 232, 587 A.2d 164 (1991). "The test for demonstrating aggrievement is well settled: '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 success fully establish that this specific personal and legal interest has been specially and injuriously affected by the decision.' Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 307, 592 A.2d 953 (1991)." First Charter National Bank v. Ross, 29 Conn. App. 667, 674, 617 A.2d 909 (1992), appeal dismissed, 228 Conn. 203, 635 A.2d 796 (1994). The respondent can point to no actual injury that results from the action of the court. There is no challenge to the finding of the court or to the order of commitment to the commissioner of DCF. The only challenge here is to the issuance of the "Long Lane Warning." The respondent acknowledges that under certain circumstances the court does have authority to issue an appropriate warning under General Statutes § 46b-149 (h). She argues, however, that there is a lack of enforceability of the "Long Lane Warning" in this case. The argument is essentially that, should a future violation occur, the juvenile court could not entertain a new petition of delinquency because the respondent is no longer a child. General Statutes § 46b-149 refers specifically to a "child," which is defined by § 46b-120 as "any person under sixteen years of age." The respondent's claim is based on a contingency that is far too remote to satisfy the injury requirement of aggrievement. The parties agree that no measures have been taken to implement the warning and no sanction was imposed on the respondent in conjunction with the warning. We cannot speculate as to the result of a future violation. The respondent can suffer no harm as a result of the warning of a future violation of a court order that maybe unenforceable and ineffective. The appeal is dismissed. In this opinion the other judges concurred. General Statutes § 46b-149 (h) provides in relevant part: "If the court issues any order which regulates future conduct of the child, the child shall receive adequate and fair warning of the consequences of violation of the order at the time it is issued, and such warning shall be provided to the child, to his attorney and to his legal guardian in writing and shall be reflected in the court record and proceedings." Because we conclude as we do, we find it unnecessary to address the claim raised by the commissioner of DCF that the respondent fails to satisfy the criteria for justiciability. Justiciability requires that (1) there be an actual controversy between or among the parties to the dispute, (2) the interest of the parties be adverse, (3) the matter in controversy be capable of being adjudicated by judicial power, and (4) the determination of the controversy will result in practical relief to the complainant. Zarembski v. Warren, 28 Conn. App. 1, 6-7, 609 A.2d 1039, cert. denied, 223 Conn. 918, 614 A.2d 831 (1992). The parties agree that the warning as given does not comply with the statute in that no writing was ever presented to the respondent, her attorney or her legal guardian. The parties also agree that an order committing the respondent to Long Lane would not be enforceable under the existing circumstances.

Norcott, J. The defendant appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3). He was sentenced to a term of twenty years imprisonment, suspended after fourteen years, with five years of probation. On appeal, the defendant claims that he was denied his fundamental right to a fair trial for the following reasons: (1) the trial court improperly instructed the jury as to manslaughter in the first degree under General Statutes § 53a-55 (a) (3) because that crime is not a lesser included offense of the crime with which he was charged; (2) there was insufficient evidence of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3) to warrant a jury instruction; and (3) the prosecutor improperly commented during her closing argument on the veracity of a state's witness and on facts not in evidence. We affirm the judgment of the trial court. The jury could reasonably have found the following facts. At about 10 p.m. on August 20, 1989, David Walker, his brother and his uncle were sitting in front of the Mile High Restaurant on Albany Avenue in Hartford when a car driven by the victim, James Brown, skidded along the road, nearly striking a bicyclist, Clive Wilson. The victim then drove into a nearby gasoline station after which he and Wilson exchanged words. When Wilson departed, the victim drove back onto Albany Avenue heading west. While passing a field across the street from where Walker was sitting, the victim's car was struck by an unidentified projectile. The victim stopped his car, got out and approached a group of youths that included Wilson, an individual known as "Tallest" and the defendant. Wilson struck the victim's upper body with a tree branch. Tallest then threw a bottle at the victim. While the victim was backing up, trying to escape, the defendant ran up and struck him in the head with a brick. The victim stumbled and collapsed on the street. He died from his injuries two days later. At trial, the defendant testified that he was not at the scene of the incident and denied having been involved in the events leading up to the victim's death. He stated that he did not learn of the incident until the next day when various acquaintances mentioned it to him. At the completion of the state's case-iri-chief, the defendant moved for a judgment of acquittal, which the trial court denied. After all of the evidence had been presented, both the state and the defendant submitted requests to charge. The state requested a charge on the lesser included offense of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1), which requires proof that the defendant intended to cause serious physical injury, and General Statutes § 53a-55 (a) (3), which requires proof that the defendant had acted recklessly in engaging in conduct that created a grave risk of death to another. The defendant requested a charge on the lesser included offenses of manslaughter in the second degree in violation of General Statutes § 53a-56 (a) (1), and criminally negligent homicide in violation of General Statutes § 53a-58. The defendant also renewed his motion for judgment of acquittal and also requested that the jury be charged on the lesser included offenses of General Statutes § 53a-55 (a) (1) and (3). The court instructed the jury as to all of the lesser included offenses as the parties requested. The defendant did not except to the instructions as given. After the jury returned its verdict, the defendant filed motions pursuant to Practice Book § 899, 902 and 905 for judgment of acquittal, a new trial, and in arrest of judgment, respectively, contending for the first time that under the facts of this case a violation of General Statutes § 53a-55 (a) (3) is not a lesser included offense of the charge of murder in violation of General Statutes § 53a-54a, and that the evidence was insufficient to support the conviction. The court denied the motions, and this appeal followed. I The defendant's first two claims center on the propriety of the trial court's charge on manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3). The defendant first claims that under the facts here this crime is not a lesser included offense as defined by State v. Whistnant, 179 Conn. 576, 427 A.2d 414 (1980). Second, he argues that even if it is a lesser included offense under Whistnant, the court's instruction was improper because there was insufficient evidence as to the element of recklessness. Because these claims are interrelated, we consider them together. A In arguing that the instruction on the lesser included offense of manslaughter in the first degree under General Statutes § 53a-55 (a) (3) was violative of State v. Whistnant, supra, the defendant first contends that because the evidence shows only that he intentionally struck the victim, the conviction for reckless manslaughter cannot stand. Since he was acquitted of the murder charge, he now claims that he is entitled to a judgment of acquittal on the reckless manslaughter charge. Second, the defendant asserts that because he denied striking the victim or being involved in his death in any way, his state of mind was never sufficiently in dispute to warrant an instruction on reckless manslaughter. We disagree. We first note that the defendant has not properly preserved this claim for appellate review pursuant to Practice Book § 852 and that he seeks review, under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), of an instruction he himself requested. Ordinarily, action induced by an appellant cannot be a ground for error. See State v. Scognamiglio, 202 Conn. 18, 25, 519 A.2d 607 (1987); State v. Turner, 24 Conn. App. 264, 272, 587 A.2d 1050, cert, denied, 218 Conn. 910, 591 A.2d 812 (1991). "It seems a bit disingenuous for the defendant to claim the trial court committed error by instructing the jury on [first degree manslaughter] when he requested an instruction on that very issue." State v. Scognamiglio, supra. Although it is the general rule that a party cannot be heard to complain about such an instruction when he himself has requested it; State v. Shipman, 195 Conn. 160, 165, 486 A.2d 1130 (1985); unpreserved claims of constitutional magnitude, even when induced by the appellant, may be reviewed pursuant to Golding. See State v. Maselli, 182 Conn. 66, 70, 437 A.2d 836 (1980), cert. denied, 449 U.S. 1083, 101 S. Ct. 866, 66 L. Ed. 2d 807 (1981); State v. Murdick, 23 Conn. App. 692, 702, 583 A.2d 1318, cert. denied, 217 Conn. 809, 586 A.2d 1233 (1991). In this case, however, because "a lesser included offense instruction is purely a matter of common law, and therefore does not implicate constitutional rights; see State v. Herring, 210 Conn. 78, 105, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989); State v. Thomas, 205 Conn. 279, 282, 533 A.2d 553 (1987); State v. McIntosh, 199 Conn. 155, 158, 506 A.2d 104 (1986); State v. Whistnant, [supra, 581]; the defendant has failed to satisfy the second condition of Golding. Accordingly, his claim for reversal predicated on the alleged impropriety of the court's lesser included offense instructions necessarily fails." State v. Ortiz, 217 Conn. 648, 659, 588 A.2d 127 (1991). Not every claim warrants review simply because it is affixed with a constitutional label. See, e.g., State v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982). B The defendant further argues that even if manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3) is a lesser included offense under Whistnant, the court's instruction was improper because there was insufficient evidence as to the element of recklessness. Again, we disagree. Because the defendant has properly preserved this claim for appellate review, we scrutinize it under the well established analytical framework that both we and our Supreme Court have established for review of such claims. First, we review the evidence in the light most favorable to sustaining the jury's verdict. Second, we determine whether, on the facts so construed and the inferences reasonably drawn therefrom, the jury could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. State v. Famiglietti, 219 Conn. 605, 609, 595 A.2d 306 (1991). Reasonable and logical inferences may be drawn, but the jury may not resort to speculation and conjecture. State v. King, 216 Conn. 585, 601-602, 583 A.2d 896 (1990). Each essential element of the crime must be proved beyond a reasonable doubt. Id., 601. Our review of the record leads us to conclude that sufficient evidence existed for the jury to find the defendant guilty of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3). Walker, who witnessed the attack, testified that the defendant ran toward the victim and, with an overhand or slightly sidearm motion, struck the victim once in the head with a brick as the victim was moving backward toward the street. If a single slap in the face that led to a subdural hematoma and caused the victim to be in a coma for up to eighteen months can supply the factual predicate to support a finding of reckless conduct that creates a risk of death to another; see State v. Jupin, 26 Conn. App. 331, 341, 602 A.2d 12, cert. denied, 221 Conn. 914, 603 A.2d 404 (1992); then it is extremely difficult to conclude that a jury could not find that striking someone in the head with a brick also constitutes reckless conduct. We conclude that there was sufficient evidence for the jury to convict the defendant of first degree manslaughter in violation of General Statutes § 53a-55 (a) (3). II The defendant next claims that improper remarks during the state's closing argument violated his due process right to a fair trial. Specifically, he claims that he was prejudiced by the prosecutor's expression of her opinion as to the credibility of the state's chief witness, Walker, and by her references to facts not in evidence. Because this claim also was not properly preserved at trial, the defendant again seeks review under State v. Golding, supra. While prosecutorial misconduct of constitutional dimension may arise during closing argument, thereby implicating the fairness of a trial; State v. Williams, 204 Conn. 523, 539, 529 A.2d 653 (1987); State v. Pelletier, 196 Conn. 32, 33-34, 490 A.2d 515 (1985); State v. Peruta, 24 Conn. App. 598, 608-609, 591 A.2d 140, cert. denied, 219 Conn. 912, 593 A.2d 137 (1991); an unpreserved prosecutorial misconduct claim is not reviewable if the claimed misconduct consisted of isolated and brief episodes, did not disclose a pattern of conduct repeated throughout the trial, or conduct not blatantly egregious. State v. Tweedy, 219 Conn. 489, 509, 594 A.2d 906 (1991); State v. Henry, 27 Conn. App. 520, 529, 608 A.2d 696 (1992). The defendant points to a single remark referring to apparent inconsistencies in Walker's testimony regarding where on the head the victim was struck. The defendant claims that the prosecutor's reference to a police detective, who did not testify, and to his report, which was not introduced into evidence, could have affected the jury's evaluation of Walker's testimony. Finally, the defendant points to remarks made by the prosecutor referring to Walker's credibility and truthfulness in testifying as to what he saw, and reporting the incident as a matter of civic duty and not to obtain a reward that had been offered for information about the incident. The record discloses that although the defendant initially objected to the prosecutor's remarks and moved for a mistrial or, in the alternative, a curative instruction, he took no exception when the court denied the motion for a mistrial. During colloquy, the court pointed out that during closing argument, it was the defendant who "artfully and professionally . . . stretched the parameters of final argument beyond the point of what is tolerable and what is acceptable." The court disagreed with his claim that the prosecutor had engaged in egregious conduct, stating that it "did not view any of her remarks as coming anywhere close to constituting substantial and irreparable harm to the defendant." The next day, the prosecutor told the court that she did not believe that her remarks were improper, but suggested that the court nevertheless give the jury a curative instruction. The defendant agreed that such an instruction would be appropriate and did not object when it was given. Review of this claim is foreclosed by State v. Somerville, 214 Conn. 378, 393, 572 A.2d 944 (1990), in which our Supreme Court stated that review of prosecutorial misconduct claims under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), "is unavailable where the claimed misconduct was not blatantly egregious and merely consisted of isolated and brief episodes that did not reveal a pattern of conduct repeated throughout the trial." In this case, the defendant does not claim, nor can he claim, that the alleged offensive remarks were anything more than isolated statements that did not evince any pattern of misconduct. Moreover, it is well settled that, on appeal, we do not review rulings that the defendant accepted or requested at trial; State v. Murdick, supra, 699; especially when, as here, the defendant has agreed with an adverse ruling at trial and did not take exception to it. See State v. Maisonet, 16 Conn. App. 89, 97, 546 A.2d 951, cert. denied, 209 Conn. 816, 550 A.2d 1086 (1988), cert. denied, 489 U.S. 1014, 109 S. Ct. 1127, 103 L. Ed. 2d 189 (1989). Even if we were to review this claim, no favorable result would inure to the defendant. Although it is true that it is improper for a prosecutor to state personal beliefs about a witness' credibility; State v. Hammond, 221 Conn. 264, 289, 604 A.2d 773 (1992); when seen in context, the prosecutor's remarks were neither so prejudicial nor so egregious as to constitute grounds for a new trial. Id., 289-90. The judgment is affirmed. In this opinion the other judges concurred. The defendant was acquitted of the charge of murder in violation of General Statutes § 53a-54a and was found not guilty of the lesser included offense of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1). General Statutes § 53a-55 (a) provides: "A person is guilty of manslaughter in the first degree when . (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person." Before a jury instruction on a lesser included offense can be given, the following requirements, set forth in State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980), must be met: "(1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser." State v. Edwards, 214 Conn. 57, 62-63, 570 A.2d 193 (1990); State v. Jupin, 26 Conn. App. 331, 346, 602 A.2d 12, cert. denied, 221 Conn. 914, 603 A.2d 404 (1992). Practice Book § 852 provides in pertinent part: "The [appellate] court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking exception shall state distinctly the matter objected to and the ground for the. objection. . . ." "[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional error beyond a reasonable doubt." (Emphasis in original.) State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). After the victim's death, an offer of a $5000 reward for information about the incident was published in a local newspaper.

Lavery, J. The principal issue in this habeas corpus appeal is whether the habeas court properly found that the petitioner, Samuel J. Veal, was afforded effective assistance of counsel as guaranteed by the United States and Connecticut constitutions. A jury found the petitioner guilty of murder in violation of General Statutes § 53a-54a, and the trial court imposed a sentence of sixty years. The petitioner appealed to the Supreme Court which upheld the conviction in State v. Veal, 201 Conn. 368, 517 A.2d 615 (1986). The petitioner then brought a petition for a writ of habeas corpus in the Superior Court, claiming that he had been deprived of his constitutional right to effective assistance of counsel as guaranteed by the United States and Connecticut constitutions. In the habeas court, the petitioner claimed that he had received ineffective assistance of counsel because his trial coun sel (1) had failed to raise and present an affirmative defense of extreme emotional disturbance when adequate pretrial investigation by counsel would have disclosed that this was the only viable defense available, (2) had presented a "defense of apologia" as the sole defense, and (3) had failed to object on hearsay grounds concerning threats made by the petitioner against the victim. The following findings of fact were among those made by the habeas court in its memorandum of decision: (1) the petitioner had failed to make the required showing of either deficient performance or sufficient prejudice; (2) the petitioner had a fair trial and had not sustained his burden of proving ineffective assistance of counsel under the United States or Connecticut constitutions; and (3) the petitioner made no showing that the justice of his trial was rendered unreliable by a breakdown in the adversarial process caused by deficiencies in counsel's assistance. The habeas court dismissed the petition, and the petitioner, upon the granting of certification, appealed to this court. On appeal, the petitioner claims that the habeas court failed to recognize trial counsel's deficient performance and the resulting prejudice to the petitioner's defense because (1) the trial counsel failed to object properly on the grounds of hearsay to the admission of the statements of three witnesses, (2) the trial court improperly concluded that trial counsel had conducted an adequate investigation into the petitioner's defense of extreme emotional disturbance, (3) the court improperly concluded that the failure to advance the affirmative defense of extreme emotional disturbance was a strategic or tactical decision, (4) the court failed to find that the petitioner overcame the presumption that the challenged actions of trial counsel were sound trial strategy, and (5) the court did not find trial counsel's performance to be deficient and that such deficiency prejudiced the petitioner. We affirm the judgment of the habeas court. The facts relevant to the petitioner's murder conviction can be summarized as follows. "During the evening of July 30,1983, a number of people were sociably playing cards at a private home in Hartford. When additional visitors arrived around 11 p.m., the card game broke up and four of the visitors, the [petitioner], another man and two women, then left the house. As they were walking away from the house, the [petitioner], without visible provocation, fired a shot at one of the women, who had formerly been his girlfriend. After the victim fell to the ground, the [petitioner] fired additional shots at her at close range. The victim died at St. Francis Hospital without ever having regained consciousness. In firing at the victim, the [petitioner] also hit the other woman, who suffered a bullet wound in her arm. The [petitioner] fled from the scene of the crime but was apprehended later that evening by the Hartford police." State v. Veal, supra, 370. We first address our scope of review. In a habeas corpus appeal, this court may not disturb underlying historical facts found by the habeas court unless they are clearly erroneous. Phillips v. Warden, 220 Conn. 112, 131, 595 A.2d 1356 (1991). When determining whether those facts constitute a violation of the petitioner's right to effective assistance of counsel, however, this court is not bound by such a limited standard of review, because such a determination is a mixed determination of law and fact that requires the application of legal principles to the historical facts of this case. Id. The sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution guarantee the right to effective assistance of counsel. Quintana v. Warden, 220 Conn. 1, 4, 593 A.2d 964 (1991); Levine v. Manson, 195 Conn. 636, 649, 490 A.2d 82 (1985). "A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel's performance was deficient. . . . Second, the defendant must show that the deficient performance prejudiced the defense. . . . Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied, 467 U.S. 1267, 104 S. Ct. 3562, 82 L. Ed. 2d 864 (1984) "Establishing that counsel's performance was deficient requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment. . To demonstrate this the defendant must show that counsel's representation fell below an objective standard of reasonableness. . In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances. . . . Judicial scrutiny of counsel's performance must be highly deferential, and courts must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." (Citations omitted; internal quo tation marks omitted.) Fair v. Warden, 211 Conn. 398, 402-404, 559 A.2d 1094, cert. denied, 493 U.S. 981, 110 S. Ct. 512, 108 L. Ed. 2d 514 (1989); Williams v. Warden, 217 Conn. 419, 422-23, 586 A.2d 582 (1991). "[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the [petitioner] as a result of the alleged deficiencies. . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." (Citations omitted; internal quotation marks omitted.) Fair v. Warden, supra, 411. "It is axiomatic that '[t]he petitioner, as the plaintiff in a habeas corpus proceeding, bears a heavy burden of proof; Lubensky v. Bronson, 213 Conn. 97, 110, 566 A.2d 688 (1989); see also Hayes v. Maggio, 699 F.2d 198 (5th Cir. 1983); and that the claimed error of law must constitute a 'fundamental defect which inherently results in a miscarriage of justice . . . . Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 7 L. Ed. 2d 417 (1962). Habeas corpus provides an extraordinary legal remedy for illegal detention; McClain v. Robinson, 189 Conn. 663, 668, 457 A.2d 1072 (1983); and should be available to those ' "whom society has grievously wronged." ' Kuhlman v. Wilson, 477 U.S. 436, 447, 106 S. Ct. 2616, 91 L. Ed. 2d 364 (1986). It is against these standards that we measure the petitioner's claims." Ostolaza v. Warden, 26 Conn. App. 758, 760, 603 A.2d 768, cert. denied, 222 Conn. 906 608 A.2d 692 (1992). I The Admission of Alleged Hearsay Statements At trial, the state introduced statements the victim made to three individuals shortly before her death. The substance of these statements is as follows. First, Lil lian Newton testified that the day before the victim was murdered the victim told her that the petitioner had showed her a gun the previous night and that she was afraid of him. Newton further testified that the victim told her that the petitioner had threatened her. Second, Willie Mae Slayton testified that two days before the victim was murdered the victim had asked her not to leave "because Sammy is going to kill me." Finally, Vanessa Dunston, the victim's daughter, testified that approximately one week prior to the murder the victim told her, "I know Sammy has a gun and he's not afraid to use it." Dunston further testified that the victim told her that "she hoped that [the petitioner] don't shoot her in the head with it." Trial counsel objected to the admission of each of the statements on the basis of relevance and prejudice, expressly disavowing reliance on any hearsay theory. State v. Veal, supra, 376. The trial court overruled the objections, finding the testimony to be relevant, probative and not prejudicial. After reviewing the evidence introduced by the state on the element of intent, the habeas court concluded that the petitioner was not prejudiced by the admission of the statements made by the victim to the three witnesses. On this issue, the habeas court made the following findings of fact. "Three days before the murder, the petitioner told Willie Mae Slayton that he was going to kill 'that black bitch' [the victim]; on the night of the murder, the petitioner tried to pick a fight when he arrived at the card game; while playing cards, the petitioner kept reaching under the table, 'messing with his leg'; when asked what the problem was, he replied T just got something to do'; as the card game broke up and the parties left, the petitioner pulled something out of his sock, fired a shot, and the victim fell; the petitioner ran to the victim and when he reached her, he bent over her and kept firing the gun, saying, 'Bitch, I finally got you. Bitch, I finally got you.' There was a total of seven different bullet tracks, three of which involved the brain, any one of which could have caused death by itself. When arrested a short time later, the petitioner told Detective [James] Pasquerell that he had shot the victim because 'he had just about had it with her.' " The petitioner argues that he was prejudiced because the alleged hearsay statements not only substantiated the claim of intent to kill but essentially made the state's case. He claims that outside of Slayton's statement there was no other proof of intent without those statements, and that but for the admission of the statements the state would not have met its burden of proof on the element of intent. We disagree. "Generally, intent can be proved only by circumstantial evidence. . . . Where there is sufficient evidence to support a reasonable inference that the defendant intended to commit the crime charged, whether such an inference should be drawn is properly a question for the jury to decide." State v. Morrill, 193 Conn. 602, 609, 478 A.2d 994 (1984); State v. Grant, 219 Conn. 596, 603, 594 A.2d 459 (1991). Indeed, "[t]he question of intent is purely a question of fact to be determined by the jury." State v. Adams, 14 Conn. App. 119, 124, 539 A.2d 1022 (1988). The evidence of intent, absent the statements of Newton, Slayton and Dunston, was overwhelming. In addition to his statement to Slayton, the petitioner was observed instigating a fight with the victim on the night of the incident. He was observed shooting seven bullets into her head at close range while exclaiming, "Bitch, I finally got you. Bitch, I finally got you." After he was arrested, the petitioner told the police that he shot the victim because "he had just about had it with her." We agree with the habeas court that the evidence, both direct and circumstantial, was overwhelming even without the statements at issue. The petitioner has not sustained his burden of proving the result of the trial would have been different if the three statements had been precluded, and thus the prejudice prong of Strickland has not been satisfied. II Pretrial Investigation of Extreme Emotional Disturbance Defense The habeas court made the following findings of fact relating to counsel's investigation of the petitioner's potential emotional disturbance defense. "After the petitioner informed his trial attorney that he was interested in pursuing the defense of extreme emotional disturbance, trial counsel had the petitioner examined by Walter Borden, a forensic psychiatrist. Borden concluded that there was no clinical evidence to suggest either an insanity defense or an extreme emotional disturbance defense. Trial counsel then had the petitioner examined by another forensic psychiatrist, John Felber. Felber also concluded that there was no clinical basis for an extreme emotional disturbance defense. The investigation conducted by trial counsel and trial counsel's investigator included the contacting of witnesses who could testify regarding the relationship between the petitioner and the decedent." The court also found that trial counsel was familiar with the relationship between the petitioner and the victim, and that trial counsel had hired two well known psychiatrists who separately found that the there was no clinical basis to support the defense of extreme emotional disturbance. The court concluded that the experienced trial counsel's decision not to go forward on an extreme emotional disturbance defense without the benefit of an expert witness was sound trial strategy. This conclusion was based on the trial counsel's reason ing that the state could put on psychiatric experts who could testify not only as to the lack of extreme emotional disturbance but also as to their opinions of the petitioner's mental state or condition pursuant to General Statutes § 54-86 (i). We conclude that the habeas court's findings and conclusions were proper. As in Fair v. Warden, supra, the petitioner has failed to demonstrate the deficiency of trial counsel's performance under the first prong of Strickland. "In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances. [Strickland v. Washington, supra], 688. Judicial scrutiny of counsel's performance must be highly deferential and courts must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Id., 689 . . . ." (Citations omitted; internal quotation marks omitted.) Fair v. Warden, supra, 403-404. In the present case, trial counsel thoroughly investigated the defense of extreme emotional disturbance, consulting two well qualified psychiatrists. We agree with the habeas court that "[b]ecause of the calculated, logical progression that trial counsel went through in analyzing the problem of whether to pursue an extreme emotional disturbance defense, the petitioner has failed to overcome the strong presumption that the action of not pursuing the defense was sound trial strategy." We conclude that the petitioner did not sustain his burden of proof that trial counsel's performance fell below the Strickland standard. The petitioner's remaining claims are subsumed into the extreme emotional disturbance defense claim. As in Fair v. Warden, supra, 405-407, trial counsel advised the petitioner to accept a plea bargain but the petitioner refused. Counsel then pursued a strategy of attempting to explain the petitioner's conduct and to raise a reasonable doubt on the element of intent. In Fair, the petitioner's entire case at trial consisted of a plea for juror sympathy. Id., 406. Our Supreme Court observed that "[e]ven if trial counsel's actions amounted only to a plea for juror sympathy or for a lenient sentence, such a tactical choice has been held not to amount, per se, to ineffective assistance of counsel." Id., 407. In this case, trial counsel actively sought to negate the element of intent. Our review of the record reveals that trial counsel's performance was more than merely competent. The judgment is affirmed. In this opinion the other judges concurred. General Statutes § 53a-54a provides: "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." Because the Connecticut constitutional issue has not been separately briefed, however, we decline to address it. State v. Rosado, 218 Conn. 239, 251 n.12, 588 A.2d 1066 (1991).

Foti, J. The defendant appeals from the judgment of conviction, rendered after a jury trial, of assault of a peace officer in violation of General Statutes § 53-167c (a) (1) and larceny in the sixth degree in violation of General Statutes § 53a-119 and 53a-125b (a). On appeal, the defendant claims that the trial court improperly instructed the jury on the defense of justification concerning the initial aggressor, and the stan dard for determining reasonable physical force. We affirm the judgment of the trial court. The jury reasonably could have found the following facts. On Saturday, July 15, 1989, at approximately 5:15 p.m., the defendant was observed in the rear of the Ally Oop clothing store in Fairfield where some Batman tee shirts had been stolen earlier that day. After the defendant exited the store, Fairfield detective Christopher Lyddy observed him walking quickly down an alley next to the building. The defendant took a white bag from some bushes behind the store and returned through the alley to the street. After learning from the store owner about the stolen tee shirts, Lyddy confronted the defendant and observed a partially open white plastic bag containing Batman tee shirts on a bus stop bench near the defendant. When apprehended, the defendant was using a public telephone in the bus stop enclosure. After identifying himself and displaying his badge, Lyddy arrested the defendant and searched him for weapons. As Lyddy attempted to handcuff the defendant's left wrist, the defendant spun around and struck a glancing blow to the officer's head with his right hand. The defendant attempted to run, but Lyddy grabbed the defendant by the shoulders and fell on top of him. The defendant then grabbed the officer's service revolver and placed the barrel against Lyddy's stomach. Lyddy seized the cylinder to prevent the weapon from firing. They continued to struggle for several minutes until, with the aid of a bystander, Lyddy removed the pistol from the defendant's hand. Lyddy sustained injuries as a result of the struggle. The defendant first claims that the trial court misstated a portion of the jury charge regarding self-defense. The original transcript indicated that the jury had been instructed that the defendant could not be found guilty unless the state could prove that he "wasn't" the initial provocateur or aggressor and did not attempt to withdraw. The state filed a motion to rectify the trial transcript, and, after a hearing on the state's motion, the court granted the relief requested. The transcript was rectified to reflect the trial court's instruction that the state had to prove that the defendant "was" the initial provocateur or aggressor. We granted the defendant's motion for review but denied the relief requested, thereby declining to reverse the trial court's decision. The defendant's first claim is, in essence, a request that we reconsider our action in regard to his motion for review. We decline to do so, and, thus, this claim must fail. State v. Holloway, 22 Conn. App. 265, 275, 577 A.2d 1064, cert. denied, 215 Conn. 819, 576 A.2d 547 (1990); Harris Calorific Sales Co. v. Manifold Systems, Inc., 18 Conn. App. 559, 568, 559 A.2d 241 (1989). The defendant next claims that the trial court improperly instructed the jury on the defense of justification by using an improper standard for determining reasonable physical force. He claims that the court, in explaining the defense of justification, stated twice that "reasonable force is that force which an average person of ordinary intelligence and like circumstances would judge to be necessary." General Statutes § 53a-19, which justifies the use of physical force for purposes of self-defense, presents a question of fact that focuses on what the person asserting the defense reasonably believes under the circumstances. State v. DeJesus, 194 Conn. 376, 389, 481 A.2d 1277 (1984). "Self-defense thus requires the trier of fact to measure the justifiability of the defendant's actions from a subjective perspective." State v. Hall, 213 Conn. 579, 586, 569 A.2d 534 (1990). "The Connecticut test for the degree of force in self-defense is a subjective-objective one. The jury must view the situation from the perspective of the defendant. Section 53a-19 (a) requires, however, that the defendant's belief ultimately must be found to be reasonable." State v. DeJesus, supra, 389 n.13. The standard of review to be applied to a claim of an improper instruction on the elements of self-defense is whether it is reasonably possible that the jury was misled. State v. Grullon, 212 Conn. 195, 204, 562 A.2d 481 (1989); State v. Corchado, 188 Conn. 653, 660, 453 A.2d 427 (1982). The charge is to be read as a whole; sections are not to be judged in isolation from the overall charge. State v. Reed, 174 Conn. 287, 305, 386 A.2d 243 (1978). The charge is not to be "critically dissected in a microscopic search for possible error." State v. Foreshaw, 214 Conn. 540, 548, 572 A.2d 1006 (1990). The test to be applied to any part of a charge is whether the charge as a whole presents the case to the jury in a manner to prevent injustice. State v. Maturo, 188 Conn. 591, 599, 452 A.2d 642 (1982). We review the whole charge to determine whether it sufficiently guided the jury to a proper verdict. State v. Shaw, 24 Conn. App. 493, 499, 589 A.2d 880 (1991). It is obvious from reading the instruction that the trial court properly addressed the subjective aspects of the self-defense justification claim. Our review reveals no reasonable possibility that the jury was misled. The trial court instructed the jury, in language similar to that of § 53a-19 (a), that "[a] person is justified in the use of reasonable physical force upon another when he reasonably believes that such force is necessary to protect himself . . . ." The court further instructed that "the danger or apparent danger claimed by the defendant is to be determined from his standpoint at the time of the attack and under all the existing circumstances, the act leading to the defendant's claim of self-defense need not be an actual threat or assault. The test is not what the other person actually intended but what the aggressor's act caused the defendant to reasonably believe was his intention. In other words, the danger need not have been actual, real, imminent or unavoidable. In judging the danger to himself, however, the defendant is not required to act with infallible judgment." Thereafter, in instructing the jury on the use of deadly force, the court stated: "[The defendant] may justifiably use deadly force only if he reasonably believes that the other person was using or about to use deadly physical force or inflicting or about to inflict great bodily harm." "Taken as a whole the charge sufficiently apprised the jury that the test for self-defense is both subjective and objective." State v. Williams, 25 Conn. App. 456, 466, 595 A.2d 895, cert. denied, 220 Conn. 916, 597 A.2d 339 (1991). The court herein, unlike the court in Williams, used language similar to that of § 53a-19 (a). Although the challenged portion of the jury instruction here is nearly identical to that challenged in Williams, a meaningful distinction between the facts of Williams and the facts of the present case can be made based on the trial court's use of language from § 53a-19 (a). We conclude that it is not reasonably possible that the jury was misled. Because it is not reasonably possible that the jury was misled, even if the instruction on the subjective-objective use of force was improper, any error was harmless beyond a reasonable doubt. The judgment is affirmed. In this opinion the other judges concurred. The defendant was found not guilty of attempted murder in violation of General Statutes § 53a-54a (a) and 53a-49. General Statutes § 53a-19 (a) provides in pertinent part: "[A] person is justified in using reasonable physical force upon another person to defend himself . . . from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose . . . ."

Per Curiam. The judgment is affirmed.

Per Curiam. The judgment is affirmed.

Per Curiam. After examining the record on appeal and considering the briefs of the parties, the matter having been submitted to the court upon waiver of oral argument, we conclude that the appeal should be dismissed on the ground that certification was improvidently granted. The appeal is dismissed.

Per Curiam. The judgment is affirmed.

Per Curiam. This is the defendant lessee's appeal from a judgment for the plaintiff lessor in a summary process action based on a written lease that by its terms expired on July 31,1994. "While a writ of restoration may issue upon a reversal of a summary process judgment, it can only issue if the lease has not expired by its terms." Evergreen Manor Associates v. Farrell, 9 Conn. App. 77, 78, 515 A.2d 1081 (1986). Under the circumstances here, there is no practical relief that this court can give. It is not the province of appellate courts to decide moot questions disconnected from the granting of actual relief. Id. The appeal is dismissed.

Freedman, J. The defendant appeals from a judgment of conviction, following a jury trial, of conspiracy to commit robbery in the first degree in violation of General Statutes § 53a-134 (a) (2) and 53a-48. The defendant claims that the trial court improperly (1) admitted the prior statement of a witness for substantive purposes, (2) admitted evidence that was more prejudicial than probative, and (3) gave a "missing witness" instruction under the Secondino rule. The defendant additionally argues that there was insufficient evidence to establish the essential elements of conspiracy. Finally, the defendant urges us to repudiate the Secondino rule as applied to criminal cases. We affirm the judgment of the trial court. The jury reasonably could have found the following facts. On February 17, 1991, at approximately 1:10 a.m., the victim, Christian Prince, was found lying on the sidewalk in front of St. Mary's Church on Hillhouse Avenue in New Haven. He was transported to Yale-New Haven Hospital at 1:43 a.m., where it was discovered that he was suffering from a gunshot wound to the chest. Despite attempts to resuscitate the victim, he was pronounced dead at approximately 2:06 a.m. An autopsy revealed that a single, small caliber bullet had been fired into the victim's chest, causing his death. On February 27, 1991, Randy Fleming and Andre Edwards, two of the state's witnesses, were arrested on unrelated drug charges. Subsequently, both Fleming and Edwards gave statements to the police implicating the defendant in the shooting of the victim. The defendant was later charged, by substitute information, with felony murder in violation of General Statutes § 53a-54c, murder in violation of General Statutes § 53a-54a, attempted robbery in the first degree in violation of General Statutes § 53a-134 (a) (2), and conspiracy to commit robbery in the first degree in violation of General Statutes § 53a-48 and 53a-134 (a) (2). The defendant was found guilty of conspiracy to commit robbery in the first degree and not guilty of murder; a mistrial was rendered on the felony murder and attempted robbery charges, as the jury was unable to reach a verdict on those counts. Additional facts will be discussed where relevant to a specific claim made by the defendant. I The defendant first argues that the trial court improperly admitted Fleming's statement into evidence for substantive purposes. The following additional facts are necessary for a proper resolution of this issue. At trial, the state called Fleming as a witness. Fleming testified that he saw the defendant at around 11:30 p.m. on the night of February 16, 1991, at the Oasis Lounge. Fleming testified that the defendant was at the Oasis Lounge for "at least half an hour, forty-five minutes." He stated that he saw the defendant leave the Oasis Lounge with an individual named Money Russ at around midnight. According to Fleming's testimony, after the defendant left the bar, he remained outside in front of his house for a while, and then went inside his house at around 12:15 a.m., because he had a 12:30 a.m. curfew. Fleming testified that he next saw the defendant the following day. The state then marked for identification a thirty-one page statement given by Fleming on May 10,1991, to Detectives Vincent Raucci and Mel Cartocetti of the New Haven police department. Fleming conceded that the facts to which he testified at trial were entirely different from the facts given in the statement to the police but he repeatedly stated that he was forced to make the prior statement to the police. The statement and the tape recording from which it was transcribed were then admitted as full exhibits pursuant to State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986). The statement given to the police contains the following version of the incident in question. Fleming and the defendant, along with Robert Newton and Robert Jones, were riding around on the night of the shooting in a white Nissan Sentra automobile. The defendant was driving. The defendant told Fleming that he wanted to stick up a "cracker," i.e., a white person. The defendant showed Fleming that he had an automatic weapon. When they approached the victim, the defendant put on a ski mask that covered his face, crossed the street to confront the victim, and demanded money. The victim gave the defendant his wallet without a struggle. The defendant pistol-whipped the victim and fired five shots. Fleming saw the victim fall sideways after being shot. The defendant then got back into the car and stated that he had dropped the wallet. According to Fleming's statement, after the shooting, they drove to 575 Winchester Avenue. Jones went home and the defendant, Fleming and Newton went inside. Fleming and Newton told Andrew Fairweather and Andre Edwards what had occurred. The next day, the defendant and Fairweather agreed that Fair-weather would destroy the gun. Fairweather, however, eventually gave the gun back to the defendant, who put it in a bookbag on a shelf in the house. The day after the shooting, after the defendant learned that the victim had died, Fleming saw the defendant stuffing a pipe down the barrel of the gun so that the police would be unable to trace it. The defendant argues that (1) the prior statement was unreliable because three months had elapsed between the incident and the interrogation, (2) the statement was not given under circumstances that indicate reliability, (3) the witness was responding to leading questions, and (4) there was no other evidence corroborating the statement. The defendant also argues that the admission of the statement was harmful error. "Prior inconsistent statements of nonparty witnesses are hearsay and, generally, inadmissible to prove the truth of the matters they assert." In re Bassel C., 33 Conn. App. 90, 94, 633 A.2d 733 (1993). In State v. Whelan, supra, 200 Conn. 753, our Supreme Court adopted an exception to the hearsay rule allowing the substantive use of a prior inconsistent statement of a nonparty witness under certain prescribed circumstances reasonably assuring reliability. State v. Woodson, 227 Conn. 1, 20, 629 A.2d 386 (1993). Such a statement is admissible substantively "if the declarant: (1) signed the statement . (2) had personal knowledge of the facts set forth in [his] statement; and (3) testifies at trial and is subject to cross-examination." State v. Borrelli, 227 Conn. 153, 158-59, 629 A.2d 1105 (1993); see also State v. Williams, 231 Conn. 235, 249, 645 A.2d 999 (1994); In re Bassel C., supra, 94. This exception applies to tape-recorded as well as written statements. State v. Woodson, supra, 21. "[A] prior inconsistent statement ha[s] to be given under circumstances ensuring its reliability and trustworthiness in order to be admissible." State v. Grant, 221 Conn. 93, 100, 602 A.2d 581 (1992) The admission for substantive purposes of a prior inconsistent statement is limited " 'to situations where the likelihood of fabrication is slight and the risk of coercion, influence or deception is greatly reduced.' " Id., quoting State v. Whelan, supra, 200 Conn. 753. "It is the trial court's responsibility to weigh the reliability of each statement on a case-by-case basis." (Internal quotation marks omitted.) State v. Borrelli, supra, 227 Conn. 161. The defendant first argues that Fleming's statement was unreliable because three months had elapsed between the incident and the interrogation. "Whether a statement is made within a short time after the crime occurred has . . . been considered in determining reliability." State v. Wager, 32 Conn. App. 417, 428, 629 A.2d 1146, cert. denied, 228 Conn. 912, 635 A.2d 1231 (1993); State v. Buster, 224 Conn. 546, 557-58, 620 A.2d 110 (1993); State v. Grant, supra, 221 Conn. 100-101; State v. Alvarez, 216 Conn. 301, 314, 579 A.2d 515 (1990); State v. Whelan, supra, 200 Conn. 750. This is because "prior statements are, necessarily, made closer to the event in question, when memories are fresher and when there is less likelihood that the statement is the product of corruption, false suggestion, intimidation or appeals to sympathy." State v. Whelan, supra, 750. In State v. Wager, supra, 32 Conn. App. 428, we noted that there is no requirement that a statement be signed at any particular time. Similarly, there is no specific time when a statement becomes unreliable due to the length of time between the commission of the crime and the making of the statement. Rather, the court considers whether the statement was made "long before the witness' memory might have faded." State v. Whelan, supra, 200 Conn. 754; State v. Borrelli, supra, 227 Conn. 160; State v. Alvarez, supra, 216 Conn. 314. There is nothing in the record to indicate that Fleming's memory had faded at the time he gave the statement to the police. We therefore conclude that the statement was not unreliable simply because it was made three months after the crime occurred. The defendant next argues that Fleming's prior statement did not meet the "criteria for ensuring reliability" established by State v. Grant, supra, 221 Conn. 93, and State v. Borrelli, supra, 227 Conn. 153, and therefore should not have been introduced for substantive purposes. We note, however, that neither Grant nor Borrelli established "criteria" that need to be satisfied before an inconsistent statement may be admitted for substantive purposes. In both cases, our Supreme Court noted that certain facts supported the trial court's finding of reliability. In the present case, there are likewise sufficient indicia of reliability in the circumstances surrounding Fleming's statement to uphold its admission for substantive purposes. As a threshold matter, the prior statement satisfies the criteria established by Whelan to admit the statement for substantive purposes. Fleming signed the statement and initialed each of its thirty-one pages. He further swore to its truth and accuracy. Fleming indicated in the statement that he was present at the time of the murder; therefore, it was based on personal knowledge. Fleming also testified and was subject to cross-examination at trial. "Therefore . . . the jury had the opportunity to observe [the witness'] demeanor and assess his credibility at trial. . . . The jury in this case could determine whether to believe [the witness'] prior . . . statement, his trial testimony, or neither." (Citations omitted.) State v. Wager, supra, 32 Conn. App. 429. As in State v. Grant, supra, 221 Conn. 100-101, there was a contemporaneous tape recording of the interview with the witness. Fleming could have been subjected to criminal prosecution for making false statements to the police. General Statutes § 53a-157 and 53a-180. See State v. Grant, supra, 101. Fleming confirmed at trial that the words in the statement were the words he had spoken to Cartocetti and Raucci. See State v. Borrelli, supra, 227 Conn. 160. We therefore find that the statement was given under circumstances that indicate reliability. The defendant also argues that the statement should not have been admitted because the witness was responding to leading questions. The record reveals that although some leading questions were asked, Fleming was asked numerous questions intended to elicit narrative responses, including a request to describe what happened on the night of the shooting. On the basis of the record before us, we cannot conclude that the statement was unreliable because it was made in response to leading questions. Finally, the defendant argues that the statement was unreliable because there was no other evidence corroborating the statement. We conclude, however, that the statement was supported by corroborating evidence. Cartocetti testified at trial that at one point, the officers and Fleming went out and the officers bought Fleming lunch. While out with the officers, Fleming took them to the location where he personally observed the shooting of the victim and pointed out the location where the victim's wallet was found. Edwards testified at trial that, on the night in question, he overheard the defendant asking Fairweather for guns "to do some stickups" and that he saw Fairweather give guns to the defendant. On the basis of the foregoing, we conclude that the trial court properly admitted Fleming's prior statement as substantive evidence. II The defendant next argues that the trial court should not have admitted certain evidence that he claims was more prejudicial than probative. Specifically, the defendant argues that because he was charged with conspiracy to commit first degree robbery, the state was required to prove that he had the specific intent to commit robbery while armed with a deadly weapon. The defendant argues that the state failed to meet this burden and, in fact, was allowed to introduce a .22 caliber revolver into evidence without establishing its connection to the defendant. "Evidence is not rendered inadmissible simply because it is not conclusive. It is admissible if it tends to support a relevant fact even in a slight degree, so long as it is not prejudicial or merely cumulative." State v. Morrill, 197 Conn. 507, 548, 498 A.2d 76 (1985). " '[A] trial court has broad discretion in determining whether the probative value of proffered evidence is outweighed by the prejudice that is likely to result from its admission. . . . We will not overturn the court's determination of this issue absent an abuse of discretion.' " State v. Payne, 31 Conn. App. 370, 374, 625 A.2d 231, cert. denied, 227 Conn. 901, 630 A.2d 73 (1993), quoting State v. Busque, 31 Conn. App. 120, 128-29, 623 A.2d 532 (1993), appeal dismissed, 229 Conn. 839, 643 A.2d 1281 (1994). We conclude that the trial court's ruling in the present case was well within its discretion. At the trial, the state offered for identification, over the defendant's objection, three guns that had been obtained at a raid on 575 Winchester Avenue on February 27, 1991. One of these weapons, a .22 caliber revolver, was later introduced, over defendant's objection, as a full exhibit. The defendant argues that the admission of the .22 caliber revolver was unduly prejudicial to him because it was not established that it was in the defendant's possession at the time of the incident, nor was it connected to the bullet found in the victim's body. In support of this argument, the defendant points out that his fingerprints were not found on the gun and he was not tested for gunpowder residue. He also notes that he did not reside at 575 Winchester Avenue and was not present when the guns were seized. The defendant also relies on the testimony of Edward McPhillips from the firearms section of the state police forensic laboratory. McPhillips testified that in March, 1991, he received the bullet that was taken from the victim and was asked to examine several weapons to determine whether the bullet was fired from any of them. He testified that because of the bullet's condition, he could not tell whether it was fired from the .22 caliber revolver. He further acknowledged that, according to a report by the Federal Bureau of Investigation, the bullet could not have come from the .22 caliber revolver. Finally, the defendant refers to the testimony of Fleming acknowledging that he had told the police that he had seen the defendant with a .25 caliber weapon on the night of the shooting. Although the testimony relied on by the defendant supports his position that the weapon was not connected to him, the record reveals additional testimony that identifies the .22 caliber revolver as the weapon used by the defendant to shoot the victim. As noted earlier, Edwards testified that he overheard a conversation between Fairweather and the defendant in which the defendant requested guns. Fairweather obtained several guns and gave them to the defendant. Edwards then identified two guns, including the .22 caliber revolver, as having been guns given to the defendant by Fairweather on the night in question. Edwards further testified that the defendant returned the guns two days later. James Harris, an inspector in the state's attorney's office, testified that Fairweather told him that he had given a .22 caliber revolver to the defendant, and that the defendant had returned it after a concert that had been performed on the night of the shooting. Fairweather testified that, sometime prior to the shooting, the defendant asked him for a gun and Fairweather gave him a loaded .22 caliber revolver. We conclude that the trial court did not abuse its discretion in admitting the .22 caliber revolver into evidence. There was sufficient evidence connecting the defendant to the weapon and to the shooting of the victim. Therefore, it was relevant. We further conclude that the court correctly concluded that the probative value of the evidence was not outweighed by any prejudicial impact to the defendant. Ill The defendant next argues that the court improperly delivered a missing witness instruction with regard to the failure of the defendant's mother to testify. Specifically, the defendant argues that the state did not prove that his mother was available, nor did it prove that she was a witness that the defendant would naturally produce. We disagree with the defendant, and conclude that the court properly delivered the requested instruction. "The missing witness rule was stated in Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960). That rule provides that '[t]he failure of a party to produce a witness who is in his power to produce and who would naturally have been produced by him, permits the inference that the evidence of the witness would be unfavorable to the party's cause.' Id., 675. Two requirements must be fulfilled before a party is entitled to a Secondino charge: the witness must be available, and he must be a witness whom the party would naturally produce. Id. . . ." (Citation omitted.) State v. Charlton, 30 Conn. App. 359, 370, 620 A.2d 1297, cert. denied, 225 Conn. 922, 625 A.2d 824 (1993); see State v. Grant, supra, 221 Conn. 105. With regard to availability, the defendant argues, citing State v. Wood, 208 Conn. 125, 140, 545 A.2d 1026, cert. denied, 488 U.S. 895, 109 S. Ct. 235, 102 L. Ed. 2d 225 (1988), and Shelnitz v. Greenberg, 200 Conn. 58, 74-75, 509 A.2d 1023 (1986), that the state did not present any evidence that the defendant was able to produce his mother as a witness in court. The defendant makes this argument despite the testimony of his sister that his mother lived with her in New Haven and could testify. We conclude, on the basis of the testimony of the defendant's sister, that the evidence established the requisite availability. See State v. Daniels, 180 Conn. 101, 110, 429 A.2d 813 (1980) (defendant's testimony that missing witness was "home, I guess" provided jury with sufficient evidence to support showing of availability); but see State v. Wood, supra, 140 (availability of missing witness for deposition but not for in-court appearance did not show that party was able to produce witness' presence in court). The defendant further argues that because his mother's testimony would have been cumulative of the testimony provided by the other three alibi witnesses, she was not a witness whom the defendant would nat urally produce. He therefore argues that the court should not have given the missing witness instruction. As the court stated in State v. Grant, supra, 221 Conn. 106, however, "[t]he testimony of several witnesses in support of an alibi defense can hardly be characterized as unimportant or cumulative." See also State v. Ruiz, 202 Conn. 316, 324-25, 521 A.2d 1025 (1987). We therefore reject the defendant's claim that his mother's testimony would have been merely cumulative. IV The defendant next argues that the evidence was insufficient to establish the essential elements of conspiracy to commit first degree robbery pursuant to § 53a-134 (a) (2) and 53a-48. Specifically, the defendant argues that the state failed to prove the existence of an agreement, one of the essential elements of the crime of conspiracy. "When we are called upon to review a sufficiency of the evidence claim, we impose a two part analysis. We first construe the evidence in the light most favorable to sustaining the verdict. . We next determine whether, from that evidence and all the reasonable inferences that flow from the evidence, a trier of fact could reasonably find that the defendant was guilty beyond a reasonable doubt." (Citations omitted; internal quotation marks omitted.) State v. Patterson, 35 Conn. App. 405, 412-13, 646 A.2d 258, cert. denied, 231 Conn. 930, 649 A.2d 254 (1994). " 'To prove the crime of conspiracy, in violation of § 53a-48, the state must establish beyond a reasonable doubt that an agreement existed between two or more persons to engage in conduct constituting a crime and that subsequent to the agreement one of the conspirators performed an overt act in furtherance of the conspiracy. State v. Rouleau, 204 Conn. 240, 258, 528 A.2d 343 (1987); State v. Estrada, 28 Conn. App. 416, 420, 612 A.2d 110, cert. denied, 223 Conn. 925, 614 A.2d 828 (1992). The state is also obligated to prove that the accused intended that conduct constituting a crime be performed. State v. Rouleau, supra [258]; State v. Channer, 28 Conn. App. 161, 168, 612 A.2d 95, cert. denied, 223 Conn. 921, 614 A.2d 826 (1992).' State v. Hooks, 30 Conn. App. 232, 241-42, 619 A.2d 1151, cert. denied, 225 Conn. 915, 623 A.2d 1025 (1993)." State v. Jones, 35 Conn. App. 839, 846-47, 647 A.2d 43 (1994). In the present case, the defendant was charged with conspiracy to commit robbery in the first degree, by agreeing with Fleming, Jones and Newton to engage in or cause the performance of conduct constituting that crime. The overt act alleged was that "[t]he accused and coconspirators drove around parts of New Haven in the early morning hours of February 17,1991, looking for a person to rob." The defendant argues, however, that the facts as presented to the jury "indicate that only the defendant was armed and only the defendant confronted the victim. Although, according to [Fleming's] recanted statement, everyone in the car knew of the defendant's pursuit, there is no evidence to demonstrate that there was an agreement that the purpose of riding in the car was to locate a victim." "The existence of a formal agreement between the parties . . . need not be proved; it is sufficient to show that they are knowingly engaged in a mutual plan to do a forbidden act. . . . Because of the secret nature of conspiracies, a conviction is usually based on circumstantial evidence. . . . Consequently, it is not necessary to establish that the defendant and his coconspirators signed papers, shook hands, or uttered the words'we have an agreement.' . . . Indeed, a conspiracy can be inferred from the conduct of the accused." (Citations omitted.) State v. Boykin, 27 Conn. App. 558, 564-65, 609 A.2d 242, cert. denied, 223 Conn. 905, 610 A.2d 179 (1992). From the evidence presented at trial, the jury reasonably could have found that the defendant had entered into an agreement with the occupants of the vehicle to rob someone. The defendant is correct in his assertion that mere presence at the scene of the crime, even coupled with knowledge of the crime, is not sufficient to establish guilt of a conspiracy; rather, evidence tending to show knowing participation in a conspiracy is also needed. State v. Stellato, 10 Conn. App. 447, 454, 523 A.2d 1345 (1987). Such evidence is present here. The jury had before it the statement given by Fleming to the police, in which he stated that everyone in the car on the night in question knew that the defendant was going to rob someone and that they all remained in the car while the defendant confronted the victim. Furthermore, according to the statement, after the defendant returned to the car, Fleming asked him why he shot the victim when he had the wallet. Construing the evidence in the light most favorable to sustaining the verdict, the jury reasonably could have concluded that the defendant was guilty beyond a reasonable doubt of conspiracy to commit first degree robbery. V The defendant's final argument is that there are compelling policy reasons for repudiating the Secondino rule as applicable in a criminal case. This argument warrants little discussion. The Supreme Court has stated that "[t]he Secondino rule applies to criminal prosecutions." State v. Ross, 230 Conn. 183, 209, 646 A.2d 1318 (1994). "This court will not reexamine or reevaluate Supreme Court precedent. Whether a Supreme Court holding should be reevaluated and possibly discarded is not for this court to decide." State v. Reis, 33 Conn. App. 521, 527, 636 A.2d 872, cert. denied, 229 Conn. 901, 640 A.2d 118 (1994). The judgment is affirmed. In this opinion the other judges concurred. General Statutes § 53a-134 (a) provides in pertinent part: "A person is guilty of robbery in the first degree when, in the course of the commission of the crime . or of immediate flight therefrom, he or another participant in the crime . (2) is armed with a deadly weapon . . . ." General Statutes § 53a-48 (a) provides: "A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy." Randy Fleming is unrelated to the defendant. We refer in this opinion to James Fleming, Jr., as the defendant and to Randy Fleming as Fleming. Fleming acknowledged, however, that he did not see the defendant actually go inside his house and that the last time he saw him, the defendant was standing outside in front of his house. In State v. Grant, supra, 221 Conn. 100-101, the court noted that "the statements were contemporaneous tape recordings of the entire interview with each witness. The interviews were conducted only a few days after the shooting. The testimony of the police officers to whom the statements were given indicated that they did not initiate either inquiry regarding [the crime]. Moreover, making false statements to the police could have subjected [the witnesses] to criminal prosecution. General Statutes § 53a-157 and 53a-180 . Finally, both witnesses were subject to cross-examination . . . ." (Citation omitted.) In State v. Borrelli, supra, 227 Conn. 160, the victim of a crime reported the incident to the police and later recanted her statement. The court noted that "the victim gave her statement to a police officer on the day of the incident described in the statement. . . . She also signed the statement after reading it, and swore to its accuracy under oath. She confirmed at trial that the words in the statement were the words that she had spoken to [the police officer]." Id. The court further noted that the victim's statement was not made in response to leading questions and there was ample corroborative evidence that supported the information contained in the prior statement. Id., 160-61. "While it is not necessary for a written, signed statement to be sworn in order for it to be admitted under the Whelan doctrine; State v. Almeda, 211 Conn. 441, 452, 560 A.2d 389 (1989); it certainly is a circumstance that adds to the reliability of the statement." State v. Borrelli, supra, 227 Conn. 160 n.6. For example, the statement contains the following exchange: "Q. Okay and when [the defendant] got out of the car did he have to cross the street to get to the student? "A. Yes. "Q. Okay when he got up to the student, could you see what he was doing? "A. I heard him yelling. "Q. Okay you could hear it? "A. Yeah. "Q. What did he say? "A. 'Get me your wallet. Give me your money.' "Q. Did you hear what the student said? "A. 'Here, take the money.' He said 'Here take the money.' Then he said, T should shoot you. Should shoot this cracker man. I should shoot this cracker.' "Q. Okay from where you were, could you see the student hand him the wallet? "A. He went like this. Yes he went like this. He handed him the wallet. And then [the defendant] said, T should shoot this cracker,' and then he just started — I just heard him fire shots. Then I seen [the defendant] running back to the car and then he said, T dropped the wallet, I dropped the wallet.' " In light of this conclusion, it is unnecessary for us to consider the defendant's claim that the trial court's improper admission of that evidence was harmful. Fleming also denied that this statement was truthful. Fairweather further testified that the defendant returned the gun to him prior to the night of the shooting. The defendant's sister testified that on the night in question, the defendant came home at around 1:15 a.m. She further testified as follows: "Q. Who else was home at the time? "A. Me, my two kids, and my mother. "Q. And what was your mother doing? "A. She was in her living room watching TV. "Q. So, she would have seen him come in too, wouldn't she? "A. Yeah, she had to let him in the house. "Q. And she still lives with you? "A. Yes, she does. "Q. And she's around, you saw her today, in fact? "A. Yes, I did. "Q. So, she can testify that it was 1:15 also? "A. Yes, she was there." The defendant refers to the testimony of Pamela Swint, a "friend-acquaintance," and Mary Martin, an acquaintance and bartender at the Oasis Cafe on the night in question. Both witnesses testified that they saw the defendant at the Oasis Cafe on the night of the shooting. The defendant also refers to the testimony of his sister, Tonya Fleming, who stated that the defendant came home at approximately 1:15 a.m., and that at that time, their mother was at home watching television. In light of this conclusion, it is unnecessary for us to consider the defendant's claim that the trial court's error in giving the charge was harmful.

Per Curiam. The sole issue in this land use appeal is whether the named defendant, the planning and zoning commission of the town of Middlefield, had the authority to deny the special permit application filed by the plaintiff, Whisper Wind Development Corporation, even though the plaintiffs application complied with the technical requirements of the permit regulations. In Whisper Wind Development Corp. v. Planning & Zoning Commission, 32 Conn. App. 515, 630 A.2d 108 (1993), the Appellate Court affirmed the judgment of the trial court dismissing the plaintiff's appeal. The Appellate Court agreed with the defendant's contention that, in the case of a special permit, zoning regulations may authorize a planning and zoning commission to deny an application on the basis of enumerated general considerations such as public health, safety and welfare. Id., 519-22. We granted the plaintiff's petition for certification to appeal this question of regulatory authority. After examining the record on appeal, and after considering the briefs and arguments of the parties, we conclude that the judgment of the Appellate Court must be affirmed. The issue on which we granted certification was properly resolved in the thoughtful and comprehensive majority opinion of the Appellate Court. It would serve no useful purpose for us to repeat the discussion therein contained. Cf. Board of Education v. State Board of Education, 228 Conn. 433, 436, 636 A.2d 378 (1994); Stankiewicz v. Zoning Board Of Appeals, 211 Conn. 76, 78, 556 A.2d 1024 (1989); State v. Leonard, 210 Conn. 480, 481, 556 A.2d 611 (1989). The judgment of the Appellate Court is affirmed. We granted the plaintiffs petition for certification to appeal limited to the following issue: "Was the Appellate Court correct in concluding that the trial court properly determined that the plaintiff's failure to meet the general health, safety and welfare requirements set forth in the town's zoning regulations provided an adequate basis for the defendant's denial of a special permit application, even though the plaintiff's application complied with all of the technical requirements of the regulations applicable to special permits?" Whisper Wind Development Corp. v. Planning & Zoning Commission, 227 Conn. 929, 632 A.2d 706 (1993).

Arthur M. Field's petition for certification for appeal from the Appellate Court (AC 12918) is dismissed.

Palmer, J. The principal issue raised by this appeal is whether a client who has agreed to the settlement of a marital dissolution action on the advice of his or her attorney may then recover against the attorney for the negligent handling of her case. The plaintiff, Elyn K. Grayson, brought this action against the defendants, Edward M. Kweskin, Emanuel Margolis, and their law firm, Wofsey, Rosen, Kweskin and Kuriansky, alleging that they had committed legal malpractice in the preparation and settlement of her dissolution action. After trial, a jury returned a verdict in the amount of $1,500,000 against the defendants. The trial court, Bailen, J., rendered judgment for the plaintiff in accordance with the jury verdict, and this appeal followed. The defendants claim that: (1) the plaintiff failed to establish, as a matter of law, that she was entitled to a recovery against them; (2) the evidence was insufficient to support the jury's verdict; (3) the trial court's rulings on certain evidentiary issues constituted an abuse of discretion; and (4) the trial court's instructions to the jury were improper. We affirm the judgment of the trial court. The relevant facts and procedural history are as follows. In 1981, Arthur I. Grayson (husband) brought an action against the plaintiff for the dissolution of their marriage. On May 28,1981, the third day of the dissolution trial before Hon. William L. Tierney, Jr., state trial referee, the plaintiff, on the advice of the defendants, agreed to a settlement of the case that had been negotiated by the defendants and counsel for her husband. The agreement provided, inter alia, that the plaintiff would receive lump sum alimony of $150,000 and periodic alimony of $12,000 per year. Judge Tierney found that the agreement was fair and reasonable and, accordingly, rendered a judgment of dissolution incorporating the agreement. On September 23, 1981, the plaintiff moved to open the judgment on the ground that the settlement agreement had been based on a fraudulent affidavit submitted to the court and to the plaintiff by her husband.* The trial court, Jacobson, J., denied the plaintiffs motion to open the judgment and the plaintiff appealed to the Appellate Court, which affirmed the judgment. Grayson v. Grayson, 4 Conn. App. 275, 494 A.2d 576 (1985), appeal dismissed, 202 Conn. 221, 520 A.2d 225 (1987). The plaintiff also brought this legal malpractice action against the defendants. Her complaint alleged that she had agreed to the settlement of the dissolution action on the advice of the defendants who, she claimed, had failed properly to prepare her case. The plaintiff further alleged that as a result of the defendants' negligence, she had agreed to a settlement that "was not reflective of her legal entitlement" and that she had "thereby sustained an actual economic loss." At trial, the plaintiff introduced evidence concerning her thirty year marriage, its breakdown due to her husband's affair with another woman, and the couple's financial circumstances. After a detailed recounting of the history of the divorce litigation, the plaintiff presented the testimony of two expert witnesses, Thomas Hupp, a certified public accountant, and Donald Cantor, an attorney who specialized in the practice of family law. Hupp testified that the defendants had failed properly to value the marital estate and, in particular, the husband's various business interests. Cantor gave his opinion that the defendants' representation of the plaintiff fell below the standard of care required of attorneys in marital dissolution cases. Specifically, Cantor testified that: (1) the defendants had not conducted an adequate investigation and evaluation of the husband's business interests and assets; (2) they had not properly prepared for trial; (3) as a result of the defendants' negligence, the plaintiff had agreed to a distribution of the marital estate and an alimony award that were not fair and equitable under the law; see General Statutes § 46b-81 (c) and 46b-82; and (4) the plaintiff would have received a greater distribution of the marital estate and additional alimony had she been competently represented. The trial court, Bailen, J., denied the defendants' motion for a directed verdict at the close of the plaintiff's case. In their case in defense, the defendants testified concerning their handling of the plaintiff's case, and they also presented the expert testimony of two attorneys, James Stapleton and James Greenfield. These experts expressed the opinion that the defendants' representation of the plaintiff comported with the standard of care required of attorneys conducting dissolution litigation. The jury returned a verdict for the plaintiff in the amount of $1,500,000. The defendants thereafter filed motions to set aside the verdict and for judgment notwithstanding the verdict. The trial court denied those motions and rendered judgment in accordance with the verdict. Additional facts are set forth as relevant. I The defendants first claim that the trial court improperly denied their motions for a directed verdict and for judgment notwithstanding the verdict on the ground that the plaintiff was barred from recovering against them, as a matter of law, due to her agreement to settle the marital dissolution action. We conclude that the plaintiff was not so barred. The defendants urge us to adopt a common law rule whereby an attorney may not be held liable for negligently advising a client to enter into a settlement agreement. See Muhammad v. Strassburger, McKenna, Messer, Shilobod & Gutnick, 526 Pa. 541, 587 A.2d 1346 (1991). They argue that, as a matter of public policy, an attorney should not be held accountable for improperly advising a client to settle a case unless that advice is the product of fraudulent or egregious misconduct by the attorney. See id. The defendants contend that the adoption of such a rule is necessary in order to promote settlements, to protect the integrity of stipulated judgments, and to avoid the inevitable flood of litigation that they claim will otherwise result. They claim that such a rule is particularly appropriate if, as here, the court has reviewed and approved the settlement agreement. We have long recognized that the pretrial settlement of claims is to be encouraged because, in the vast number of cases, an amicable resolution of the dispute is in the best interests of all concerned. "The efficient administration of the courts is subserved by the ending of disputes without the delay and expense of a trial, and the philosophy or ideal of justice is served in the amicable solution of controversies." Krattenstein v. G. Fox & Co., 155 Conn. 609, 614, 236 A.2d 466 (1967). We have also acknowledged that, with appropriate judicial supervision, the "private settlement of the financial affairs of estranged marital partners is a goal that courts should support rather than undermine." Hayes v. Beresford, 184 Conn. 558, 568, 440 A.2d 224 (1981); Baker v. Baker, 187 Conn. 315, 321-22, 445 A.2d 912 (1982). At a time when our courts confront an unprecedented volume of litigation, we reaffirm our strong support for the implementation of policies and procedures that encourage fair and amicable pretrial settlements. We reject the invitation of the defendants, however, to adopt a rule that promotes the finality of settlements and judgments at the expense of a client who, in reasonable reliance on the advice of his or her attorney, agrees to a settlement only to discover that the attorney had failed to exercise the degree of skill and learning required of attorneys in the circumstances. "Although we encourage settlements, we recognize that litigants rely heavily on the professional advice of counsel when they decide whether to accept or reject offers of settlement, and we insist that the lawyers of our state advise clients with respect to settlements with the same skill, knowledge, and diligence with which they pursue all other legal tasks." Ziegelheim v. Apollo, 128 N.J. 250, 263, 607 A.2d 1298 (1992). Therefore, when it has been established that an attorney, in advising a client concerning the settlement of an action, has failed to "exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the [legal] profession . . . [and that conduct has] resulted in] injury, loss, or damage to the [client]"; (internal quotation marks omitted) Davis v. Margolis, 215 Conn. 408, 415, 576 A.2d 489 (1990); the client is entitled to a recovery against the attorney. Accordingly, like the majority of courts that have addressed this issue, we decline to adopt a rule that insulates attorneys from exposure to malpractice claims arising from their negligence in settled cases if the attorney's conduct has damaged the client. See Edmondson v. Dressman, 469 So. 2d 571 (Ala. 1985); Bill Branch Chevrolet, Inc. v. Burnett, 555 So. 2d 455 (Fla. App. 1990); McCarthy v. Pedersen & Houpt, 250 Ill. App. 3d 166, 621 N.E.2d 97 (1993); Braud v. New England Ins. Co., 534 So. 2d 13 (La. App. 1988); Fishman v. Brooks, 396 Mass. 643, 487 N.E.2d 1377 (1986); Lowman v. Karp, 190 Mich. App. 448, 476 N.W.2d 428 (1991); Ziegelheim v. Apollo, supra, 250; Cohen v. Lipsig, 92 App. Div. 2d 536, 459 N.Y.S.2d 98 (1983); but see Muhammad v. Strassburger, McKenna, Messer, Shilobod & Gutnick, supra, 526 Pa. 541. Furthermore, we do not believe that a different result is required because a judge had approved the settlement of the plaintiff's marital dissolution action. Although in dissolution cases "[t]he presiding judge has the obligation to conduct a searching inquiry to make sure that the settlement agreement is substantively fair and has been knowingly negotiated"; Hayes v. Beresford, supra, 184 Conn. 568; Baker v. Baker, supra, 187 Conn. 321; see General Statutes § 46b-66; the court's inquiry does not serve as a substitute for the diligent investigation and preparation for which counsel is responsible. See Monroe v. Monroe, 177 Conn. 173, 183, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S. Ct. 20, 62 L. Ed. 2d 14 (1979) ("lawyers who represent clients in matrimonial dissolutions have a special responsibility for full and fair disclosure, for a searching dialogue, about all of the facts that materially affect the client's rights and interests"). Indeed, the dissolution court may be unable to elicit the information necessary to make a fully informed evaluation of the settlement agreement if counsel for either of the parties has failed properly to discover and analyze the facts that are relevant to a fair and equitable settlement. Finally, we do not share the concern expressed by the defendants about the impact that our resolution of this issue will have on settlements, stipulated judgments, and the volume of litigation. Indeed, the defendants do not suggest that attorneys have heretofore been unwilling to recommend settlements out of concern over possible malpractice suits, for attorneys in this state have never been insulated from negligence claims by the protectional rule urged by the defendants. Because settlements will often be in their clients' best interests, we harbor no doubt that attorneys will continue to give advice concerning the resolution of cases in a manner consistent with their professional and ethical responsibilities. We similarly reject the defendants' prediction of a dramatic increase in legal malpractice claims by parties to marital dissolution actions who, after judgment, have become disenchanted with the settlement agree ments negotiated by their attorneys. Again, we have no reason to believe that our resolution of the defendants' claim will prompt an increase in malpractice suits against attorneys because, in declining to narrow the existing common law remedy for attorney malpractice, we create no new claim or theory of recovery. Moreover, as the New Jersey Supreme Court has recently stated in response to the same concern expressed by the defendants here, "plaintiffs must allege particular facts in support of their claims of attorney incompetence and may not litigate complaints containing mere generalized assertions of malpractice. We are mindful that attorneys cannot be held liable simply because they are not successful in persuading an opposing party to accept certain terms. Similarly, we acknowledge that attorneys who pursue reasonable strategies in handling their cases and who render reasonable advice to their clients cannot be held liable for the failure of their strategies or for any unprofitable outcomes that result because their clients took their advice. The law demands that attorneys handle their cases with knowledge, skill, and diligence, but it does not demand that they be perfect or infallible, and it does not demand that they always secure optimum outcomes for their clients." Ziegelheim v. Apollo, supra, 128 N.J. 267. We believe, therefore, that the rule proposed by the defendants is neither necessary nor advisable. Accordingly, we conclude that a client who has agreed to the settlement of an action is not barred from recovering against his or her attorney for malpractice if the client can establish that the settlement agreement was the product of the attorney's negligence. II The defendants next claim that the evidence was insufficient to support the jury's verdict with respect to both liability and damages and, therefore, that the trial court improperly denied their motions to set aside the verdict and for judgment notwithstanding the verdict. We disagree. It is well established that "[w]e undertake only limited appellate review of a trial court's denial of a motion for judgment notwithstanding the verdict and of a motion to set aside the verdict. In each case, we accord great deference to the trial court's superior opportunity to view the trial in its entirety. In reviewing the decision of the trial court, we consider the evidence in the light most favorable to the sustaining of the verdict. . . . Our function is to determine whether the trial court abused its discretion in denying [either] motion . The trial court's [denial of each motion] is entitled to great weight and every reasonable presumption should be indulged in favor of its correctness. ." (Citations omitted; internal quotation marks omitted.) Blanchette v. Barrett, 229 Conn. 256, 264, 640 A.2d 74 (1994). With these principles in mind, we address the defendants' claims of evidentiary insufficiency. A The defendants contend that the evidence does not support a determination that they were deficient in their representation of the plaintiff. They also claim that the plaintiff's evidence was so speculative that a jury reasonably could not have concluded that the defendants' conduct was the proximate cause of any economic harm to the plaintiff. We disagree. The following evidence, which the jury could have credited, is relevant to these claims. At the time of the trial of the marital dissolution action, the plaintiff and her husband had been married for thirty years. The plaintiff, fifty-three years old, was a graduate of Simmons College, and for eight years had owned and operated her own real estate business. Prior to opening her real estate office, the plaintiff had remained at home to raise the couple's three daughters. Her husband, a fifty-six year old graduate of the Wharton School of Finance and Columbia Law School, was a successful entrepreneur. Among her husband's business interests were several bowling alleys. He held a 20 percent general partnership interest in Nutmeg Bowl, Colonial Lanes and Laurel Lanes, and was in charge of their management. In addition, he owned 100 percent of the stock in three lounges that served food and beverages to patrons of the bowling alleys. The husband also had a beneficial interest in the Grayson Associates Pension and Profit Sharing Plan, which in turn was a limited partner in the three bowling alleys. Grayson Associates, Inc., a management company in which the husband was the sole shareholder, received management fees from the three bowling alleys. Although Grayson Associates had a fair market value of $487,000, the husband's financial affidavit listed only its book value of $14,951. The husband's financial affidavit also listed a $46,080 limited partnership interest in Georgetown at Enfield Associates (Georgetown partnership), and a future general partnership interest in that partnership of $959.76. The husband's affidavit failed to disclose, however, that he intended to take a $185,000 partnership distribution from the Georgetown partnership and that he was entitled to $45,000 in management fees from that partnership. To the contrary, the affidavit affirmatively represented that the husband would receive no future income from the Georgetown partnership. Finally, the husband's affidavit indicated an annual income of approximately $62,000. The plaintiff's financial affidavit, which was prepared by the defendants in consultation with the plaintiff, indicated that she had no income. The plaintiff had testified at her deposition prior to the dissolution trial, however, that she earned approximately $25,000 annually from her real estate business, and that she expected to receive commissions in excess of $34,000 in 1981. The plaintiff's expert witness Cantor expressed his opinion that the defendants had been negligent in failing properly to discover and evaluate certain assets of the marital estate. Specifically, Cantor testified that the defendants had improperly failed to: (1) ascertain the full value of the Georgetown partnership; (2) discover the $165,000 anticipated distribution to the husband by that partnership; and (3) discover the $45,000 management fee owed to the husband by the partnership. Cantor also testified that because the defendants had failed to obtain appraisals for several of the assets, including 636 Kings Highway and Grayson Associates, Inc., the defendants were unable to challenge various inconsistencies in the husband's financial affidavit. Cantor further testified that the defendants had failed properly to establish the husband's "residual interest in the bowling alleys . as a general partner," an asset not expressly valued in the husband's affidavit. Cantor also explained that, in his opinion, the defendants had failed to exercise due care in the preparation of the plaintiff's financial affidavit. In Cantor's judgment, the plaintiff's credibility had been seriously and unnecessarily compromised because her financial affidavit did not include the income from her real estate business. Cantor also noted that the plaintiff's credibility may have been further undermined by virtue of the defendants' submission of three separate documents containing three different valuations of another marital asset, the Daniel Oil Company. Cantor expressed his opinion that at the end of the two days of trial, there was not enough financial information available to the lawyers to permit them to responsibly recommend settlement to the plaintiff. He further concluded that the defendants' failure to satisfy the standard of skill and care required of attorneys in such cases was the cause of economic damage to the plaintiff because, in his view, she would have received a larger distribution of the marital estate had the defendants represented her competently. Finally, Cantor testified to his opinion that the plaintiff reasonably could have anticipated receiving 40 to 60 percent of the total marital estate, which, according to the plaintiff's witnesses, had a value of approximately $2,400,000. Cantor also opined that the plaintiff reasonably could have anticipated receiving periodic modifiable alimony of approximately 35 to 50 percent of the parties' combined incomes. We conclude that the evidence adduced at trial was sufficient to support the jury's determination that the defendants were negligent in their representation of the plaintiff. The jury reasonably could have determined, on the basis of the testimony of the plaintiff's expert, that the defendants had negligently failed to discover and value the husband's business interests and related assets, and that the terms of the settlement agreement did not represent a fair and equitable distribution of the true marital estate. Moreover, the jury was entitled to credit Cantor's testimony that the defendants' advice to accept the settlement agreement was the product of their inadequate investigation and preparation. We further conclude that the evidence supported the jury's determination that the defendants' negligence was the proximate cause of economic damage to the plaintiff. "[T]he test of proximate cause is whether the defendant's conduct is a substantial factor in bringing about the plaintiff's injuries . The existence of the proximate cause of an injury is determined by looking from the injury to the negligent act complained of for the necessary causal connection." (Citations omitted; internal quotation marks omitted.) Wu v. Fairfield, 204 Conn. 435, 438, 528 A.2d 364 (1987). Cantor testified that competent counsel would not have advised the plaintiff to enter into the settlement agreement, and that she would have received a significantly greater distribution of the marital estate had she been properly represented. Although the defendants vigorously contested this testimony, the jury was entitled to credit it. In view of that testimony, we cannot say that the jury necessarily resorted to conjecture, surmise or speculation in reaching its verdict. Id.; Pisel v. Stamford Hospital, 180 Conn. 314, 340, 430 A.2d 1 (1980); Slepski v. Williams Ford, Inc., 170 Conn. 18, 22, 364 A.2d 175 (1975). The jury reasonably could have concluded, therefore, that the defendants' negligence was the proximate cause of economic harm to the plaintiff. B The defendants further claim that the jury's verdict was excessive as a matter of law. We do not agree. The jury could have credited the testimony of the plaintiff's witnesses that the value of the marital estate, at the time of the divorce, was approximately $2,400,000, and that the value of the plaintiff's distribution, under the terms of the stipulated judgment, was approximately $450,000. Because the jury could have concluded, as Cantor testified, that the plaintiff reasonably could have expected to receive up to 60 percent of the value of the marital estate, namely, $1,400,000, the jury also could have determined that the plaintiff, had she been competently represented, would have received approximately $1,000,000 more of the estate's assets than she had been awarded pursuant to the stipulated judgment. In addition, on the basis of Cantor's testimony that the plaintiff could have expected to receive alimony of between 35 and 50 percent of the parties' combined annual income, the jury reasonably could have concluded that the plaintiff would have received alimony of up to $35,000 more per year than she had agreed to in settlement of the marital dissolution action. Furthermore, the jury was free to have calculated the economic damage to the plaintiff in lost alimony from the date of the marital dissolution action in 1981 indefinitely in to the plaintiff's future. Viewed in the light most favorable to the plaintiff, therefore, the evidence supported the jury's verdict of $1,500,000. "Litigants have a constitutional right to have factual issues resolved by the jury. . . . This right embraces the determination of damages when there is room for a reasonable difference of opinion among fair-minded persons as to the amount that should be awarded. . . . The amount of a damage award is a matter peculiarly within the province of the trier of fact, in this case, the jury. . . . The size of the verdict alone does not determine whether it is excessive. The only practical test to apply to this verdict is whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption." (Citations omitted; internal quotation marks omitted.) Mather v. Griffin Hospital, 207 Conn. 125, 138-39, 540 A.2d 666 (1988); see also Bartholomew v. Schweizer, 217 Conn. 671, 687, 587 A.2d 1014 (1991). Because the jury reasonably could have concluded that the defendants' negligence caused economic damage to the plaintiff in the amount of $1,500,000, the verdict was not excessive as a matter of law. Therefore, the defendants' claim that the trial court improperly denied their motions to set aside the verdict and for judgment notwithstanding the verdict must fail. Ill The defendants also claim that the trial court's rulings on several evidentiary issues require reversal of the judgment against them. Specifically, the defendants contend that the trial court improperly permitted the plaintiff to introduce: (1) testimony concerning the defendants' failure to seek an order of alimony pendente lite; (2) testimony concerning the attitude toward women held by the dissolution court; (3) expert testimony concerning the defendants' failure to discover certain of the husband's undisclosed assets; and (4) certain decisions issued by the trial court, Jacobson, J., the Appellate Court and this court. Our role in reviewing evidentiary rulings of the trial court is settled. "This court has consistently held that trial courts are vested with broad discretion in rulings on relevancy and every reasonable presumption must be given in favor of the court's ruling. . . . Evidence is relevant if it tends to establish a fact in issue or corroborates other direct evidence. . . . Rulings on such matters will be disturbed on appeal only upon a showing of a clear abuse of discretion." (Citations omitted; internal quotation marks omitted.) Holy Trinity Church of God in Christ v. Aetna Casualty & Surety Co., 214 Conn. 216, 222, 571 A.2d 107 (1990). We conclude that the trial court acted within its discretion in permitting the introduction of the challenged evidence. A The defendants first claim that the trial court improperly permitted the plaintiff to testify that the defendants had failed to seek an order of alimony pendente lite notwithstanding her request that they do so. The defendants contend that the testimony was not relevant to any of the plaintiff's claims because Cantor did not testify that the defendants' failure to seek temporary alimony constituted a breach of their duty of care to the plaintiff. We do not agree. The trial court could reasonably have concluded that the plaintiff's testimony bore sufficient relevance to the relationship between the plaintiff and the defendants, and, in particular, the manner in which the defendants' had responded to her requests, to allow its admission. In that regard, we have noted that "the fiduciary responsibility of a lawyer to his client, particularly in matrimonial settlements, requires reasonable inquiry into the wishes as well as the objective best interests of the client." (Emphasis added.) Monroe v. Monroe, supra, 177 Conn. 183. In addition, a motion for temporary alimony that had been filed, but not pressed, by the defendants, was admitted into evidence without objection. Finally, the defendants have failed to demonstrate that the plaintiffs testimony was likely to have been unduly prejudicial, particularly in view of the fact that plaintiffs counsel did not seek to exploit it. Therefore, we conclude that the trial court did not abuse its discretion in allowing the plaintiffs testimony concerning the defendants' failure to pursue her request for alimony pendente lite. B The defendants also claim that the trial court should not have required the defendant Kweskin to testify on cross-examination as to whether he believed that Judge Tierney held the view that the proper role of a wife was in the home. In view of other related defense testimony, we disagree. The defendants' expert Greenfield testified that in his opinion, Judge Tierney believed that women should be "modestly taken care of." Greenfield further testified that he considered it to be the responsibility of a matrimonial lawyer to be aware of any bias, to the extent possible, of the dissolution court that might have a bearing on the court's handling of the marital dissolution action. Moreover, the defendant Margolis had testified that he believed that Judge Tierney was more likely to believe the husband's testimony than the plaintiff's. In light of this testimony, Kweskin's beliefs concerning Judge Tierney's views toward women generally, and working women in particular, were relevant to the issue of how the defendants intended to address any perceived bias he may have held toward women. Under the circumstances presented, therefore, we con- elude that the trial court did not abuse its discretion in overruling the defendants' objection to the plaintiff's inquiry. C The defendants next claim that the trial court improperly allowed the plaintiff's expert to testify concerning the defendants' failure to bring to the attention of the dissolution court certain financial information concerning the Georgetown partnership. The defendants argue that the expert testimony should have been excluded in view of the fact that (1) testimony about those assets might have been elicited by the defendants had the marital dissolution trial proceeded to conclusion, but that, in any event, (2) the defendants' failure to bring the husband's expectancy interest in the Georgetown partnership to the attention of the dissolution court did not, as a matter of law, constitute a breach of the standard of care owed by the defendants to the plaintiff. We disagree. We briefly reiterate the facts relevant to this claim. On the first day of the marital dissolution trial, the husband filed an affidavit with the court purporting to identify his assets. The affidavit stated that the husband expected no future income from the Georgetown partnership. In fact, at the time of the trial, the husband planned to take a distribution of approximately $185,000 from the Georgetown partnership, and the partnership owed him $45,000 in management fees. The husband's affidavit did not contain this information. The plaintiff's expert, Cantor, testified that the defendants would have uncovered these interests had they engaged in proper discovery and conducted a reasonably diligent pretrial investigation. Cantor further testified that the revelation of the husband's interest in these payments was critically important to the dis solution court's evaluation of the husband's credibility and to the court's determination of the fair and equitable distribution of the marital estate. The defendants claim that these payments, as mere "expectancies," were irrelevant as a matter of law to any issue in the marital dissolution action. On the basis of this premise, the defendants argue that the dissolution court could not have considered these anticipated payments for any reason and, therefore, that the testimony of the plaintiff's expert on the subject was improper. First, we do not agree with the defendants that the expert testimony was improperly admitted because there might have been testimony about the payments if the trial of the marital dissolution action had continued. The trial did not proceed, and Judge Tierney was not otherwise made aware of the expected payments when he approved the parties' settlement agreement. The jury in this case reasonably could have concluded that the dissolution court would not have approved the agreement had it been fully and properly apprised of the husband's true financial circumstances. Furthermore, we do not believe that the dissolution court was necessarily precluded from consideration of the Georgetown partnership distribution and management fees. In view of the clear and unequivocal testimony that the husband would receive the partnership distribution and management fees, we cannot conclude that his receipt of the payments was so speculative or contingent that the trial judge could not have considered them. See Eslami v. Eslami, 218 Conn. 801, 806-808, 591 A.2d 411 (1991). Moreover, the issue of the relevance and significance of those anticipated payments was properly the subject of expert testimony, and the jury was free to credit the testimony of Cantor on the issue. "The requirement of expert testimony in malpractice cases serves to assist lay people, such as members of the jury and the presiding judge, to understand the applicable standard of care and to evaluate the defendant's actions in light of that standard. Fitzmaurice v. Flynn, 167 Conn. 609, 617, 356 A.2d 887 (1975); Decho v. Shutkin, 144 Conn. 102, 106, 127 A.2d 618 (1956); Bent v. Green, [39 Conn. Sup. 416, 420, 466 A.2d 322 (1983)]." Davis v. Margolis, supra, 215 Conn. 416. "The general standard for admissibility of expert testimony in Connecticut is simply that the expert must demonstrate a 'special skill or knowledge, beyond the ken of the average juror, that, as properly applied, would be helpful to the determination of an ultimate issue.' Siladi v. McNamara, 164 Conn. 510, 513, 325 A.2d 277 (1973); see State v. George, 194 Conn. 361, 373, 481 A.2d 1068 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 963, 83 L. Ed. 2d 968 (1985). In malpractice cases, the expert's testimony must be evaluated in terms of its helpfulness to the trier of fact on the specific issues of the standard of care and the alleged breach of that standard. Fitzmaurice v. Flynn, supra, 616-18. . . . Once the threshold question of usefulness to the jury has been satisfied, any other questions regarding the expert's qualifications properly go to the weight, and not to the admissibility, of his testimony. Sanderson v. Bob's Coaster Corporation, 133 Conn. 677, 682, 54 A.2d 270 (1947)." (Citations omitted.) Davis v. Margolis, supra, 215 Conn. 416. Because the trial court reasonably concluded that the expert testimony would assist the jury to understand the nature of the defendants' duty to the plaintiff in the circumstances, the defendants' contention that the trial court improperly permitted the challenged testimony is without merit. D The defendants further claim that the trial court improperly allowed the plaintiff to introduce certain written opinions of the trial court, Jacobson, J., the Appellate Court and this court concerning the plaintiffs motion to open the marital dissolution judgment. Under the circumstances of their introduction, we are not persuaded that the admission of these opinions constituted an abuse of discretion. The judicial opinions introduced by the plaintiff consisted of the memorandum of decision of the trial court, Jacobson, J., dated September 19, 1983, denying the plaintiff's motion to open the marital dissolution decree; the opinion of the Appellate Court affirming the judgment of the trial court; and the opinion of this court dismissing, as improvidently granted, the plaintiff's petition for certification to appeal from the judgment of the Appellate Court. The plaintiff sought the admission of these opinions in response to the opening statement to the jury of counsel for Gervasoni, the accountant who had assisted the defendants in preparing the marital dissolution case. In his opening statement, Gervasoni's counsel attacked the plaintiff for seeking to open the marital dissolution decree and for appealing the denial of her motion to the Appellate Court and to this court. The statement, which included counsel's characterization of the reasons why the courts had rejected the plaintiff's claim, strongly suggested that each of the decisions constituted a ratification of the settlement agreement and a rejection of the plaintiff's claim that she had been ill-advised to enter into it. The trial court did not abuse its discretion in concluding that the judicial opinions in question were admissible as a relevant response to Gervasoni's opening statement to the jury. Although relevant, evidence may be excluded by the trial court if the court determines that the prejudicial effect of the evidence outweighs its probative value. Berry v. Loiseau, 223 Conn. 786, 804, 614 A.2d 414 (1992); Russell v. Dean Witter Reynolds Inc., 200 Conn. 172, 191-92, 510 A.2d 972 (1986). We have identified at least four circumstances where the prejudicial effect of otherwise admissible evidence may outweigh its probative value: "(1) where the facts offered may unduly arouse the jury's emotions, hostility or sympathy, (2) where the proof and answering evidence it provokes may create a side issue that will unduly distract the jury from the main issues, (3) where the evidence offered and the counterproof will consume an undue amount of time, and (4) where the [party against whom the evidence has been offered], having no reasonable ground to anticipate the evidence, is unfairly surprised and unprepared to meet it." State v. DeMatteo, 186 Conn. 696, 702-703, 443 A.2d 915 (1982); State v. Greene, 209 Conn. 458, 478-79, 551 A.2d 1231 (1988). The defendants claim that the judicial opinions should have been excluded because they tended to create a side issue that was likely to have distracted the jury. They have articulated no reason, however, why the admission of the opinions was likely to have caused such a distraction. Moreover, the defendants have provided no explanation of which specific statements or references in the opinions were likely to have caused them prejudice, or why. We will not speculate concerning the prejudicial effect of otherwise relevant evidence when the party challenging the admission of the evidence on the ground of undue prejudice has failed to identify, with reasonable particularity, the source of the alleged prejudice and the reason why the evidence was likely to have been prejudicial. See Pet v. Dept. of Health Services, 228 Conn. 651, 675-76, 638 A.2d 6 (1994). Accordingly, the defendants' claim must fail. IV The defendants also challenge the trial court's instructions to the jury, claiming that they were fundamentally inadequate because the court improperly failed to relate the facts of the case to the applicable law. The defendants, however, did not request that the trial court refer to any specific facts in its jury charge, and they similarly failed to except to the court's instruction on that ground. We therefore do not reach the merits of the defendants' claim. See Practice Book § 315. We also decline the defendants' invitation to afford plain error review to this claim. "Review under the plain error doctrine . . . is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings." (Citations omitted; internal quotation marks omitted.) State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985); Williamson v. Commissioner of Transportation, 209 Conn. 310, 317, 551 A.2d 704 (1988); see Practice Book § 4185. On the basis of our careful review of the trial court's thorough jury instructions, we conclude that the defendants' claim of error does not merit consideration under the plain error doctrine. The judgment is affirmed. In this opinion the other justices concurred. The plaintiff also brought suit against Robert Gervasoni, an accountant who assisted the defendants in the preparation of the marital dissolution action, and Gervasoni's accounting firm, Edward Isaacs Co. (Isaacs). The jury returned a verdict in favor of Gervasoni and Isaacs. Because the plaintiff has not appealed from the judgment rendered for Gervasoni and Isaacs, they are not parties to this appeal. The defendants appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). "The stipulated judgment ordered the [husband] to pay to the [plaintiff] lump sum alimony of $150,000, payable in installments of $50,000 by June 28, 1981, $50,000 by August 28, 1981 . . . and $50,000 by February 28,1982 . . . together with nonmodifiable periodic alimony of $12,000 per year. The [husband] was also ordered to pay $15,000 as part of the [plaintiff's] attorney's fees and to maintain a $50,000 life insurance policy on his life owned by the [plaintiff] and payable to her. The [plaintiff] was ordered to transfer her one-half interest in a business building at 636 Kings Highway, Fairfield, to the [husband], the equity in which he claimed was $50,000. The [plaintiff] was required to relinquish her claim in the amount of $27,000 to a certificate of deposit managed by the [husband]. The [plaintiff] was awarded full ownership of Daniel Oil [Company], which the [husband's] affidavit claimed produced an income of $18,000 per year. Works of art valued by the [husband] at $64,700 were ordered divided between the parties. Otherwise, each was to retain substantial other assets shown on their affidavits. The principal asset shown by the [husband's] affidavit [was] the valuation, after taxes due on liquidation, of his pension plan in Grayson Associates, Inc., at $340,152 and the principal asset shown by the [plaintiff's] affidavit [was] the former family residence at 15 Berkeley Road, West-port, in which the claimed equity was $167,000." Grayson v. Grayson, 4 Conn. App. 275, 277-78, 494 A.2d 576 (1985). The pertinent portions of that affidavit, and other facts relevant to the marital dissolution action, are set forth in Grayson v. Grayson, supra, 4 Conn. App. 275. The plaintiffs motion to open the marital dissolution judgment was heard and decided by Judge Jacobson. Unless otherwise indicated, references in this opinion to the trial court are to Judge Bailen. General Statutes § 46b-81 (c) provides in relevant part: "In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party . . . shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates." General Statutes § 46b-82 provides in relevant part: "In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party . . . shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent's securing employment." The husband's partner in the Georgetown partnership, Leslie Barth, testified that, at the time of the dissolution trial, the husband planned to take a partnership distribution of $185,000 from the Georgetown partnership, and that the partnership also owed the husband $45,000 in management fees. Cantor testified that "[t]he value of the assets is the prime information that . [a lawyer] need[s] to have in order to sit down and intelligently discuss how the assets will be divided. If you don't have that information, you are crippled when you sit down to attempt to negotiate." In support of Ms opinion, Cantor noted that: (1) the plaintiff and her husband had been married for thirty years; (2) the plaintiff was fifty-three years old; (3) the evidence indicated that the husband had committed adultery; and (4) the plaintiff had contributed significantly to the marital estate. In Cantor's view, these were all significant factors to be considered by a court in determining how the assets of the parties should be divided and whether alimony should be awarded. Cantor testified that if the plaintiff had received a distribution of the marital estate that was at the high end of the 40 to 60 percent range, then she could have expected to receive an alimony award that was at the low end of the 35 to 50 percent range. Although the husband's financial affidavit listed annual income of approximately $62,000, the jury could have concluded, based on the testimony of the plaintiffs witnesses, that the husband's annual income was as much as twice that amount. The defendants also claim that the trial court improperly permitted the plaintiff's expert to testify that the defendants had negligently failed to bring to the attention of the dissolution court evidence of the husband's adultery. We do not address this claim because the defendants failed to object to the testimony in the trial court. See Practice Book § 4185. For example, plaintiff's counsel made no mention of the testimony in her closing argument to the jury. After the trial court overruled the defendants' objection to the plaintiffs question, Kweskin responded that he did not know whether Judge Tierney held any bias toward women, but that if the judge did have such a bias, he would not have allowed it to affect the exercise of his judgment in the case. The defendants make the same claim in arguing that the trial court improperly failed to direct the jury, in its instructions at the conclusion of the evidence, to disregard Cantor's testimony about the Georgetown partnership distribution and management fees. We reject that claim for the reasons stated above. Grayson v. Grayson, supra, 4 Conn. App. 275. Grayson v. Grayson, supra, 202 Conn. 221. See footnote 1. The relevant portions of the opening statement of counsel for Gervasoni are as follows: "[After reaching a settlement, the parties] said this is what we have decided, they read [the agreement] into the record and [the trial judge,] Judge Tierney, said, I approve it, because he too knew that it was a favorable settlement for Mrs. Grayson. "And the evidence will show that the court put its stamp of approval on it, and the evidence will show that that dissolution action then became a matter of record. And the settlement became final. "Now, that didn't satisfy Mrs. Grayson. She wasn't really even at this point satisfied with what she had managed to get in the settlement. She decided at this point that she didn't get enough, that she should have had more, and the evidence will show that she then went back into this court, not now yet against her attorneys or her accountants, but she went back into the court seeking to overthrow the settlement, seeking to set it aside, and the evidence will show that that's a very rare occurrence, and that's where Judge Burton Jacobson comes in. . . . "Judge Jacobson, again, a respected judge . . . had this case brought before him when he was sitting in this very courthouse as a judge, and the claim there by Mrs. Grayson was that this case should be, that this settlement should be overturned because she didn't know, she didn't get enough, she was unhappy with it, her husband was too wealthy, he got too good a deal, it should be started all over again. "Judge Jacobson heard the case, as he was obligated to do. Whether he thought it was a bad case or a good case, everybody has a right to bring a suit in court and have it decided, and another trial took place, this time without a jury before Judge Jacobson, in this very building. The evidence will show that he listened to that trial and refused to reopen the case or do anything about it. Because he felt that, as he decided finally, that the settlement was a fair settlement and that there was no reason to disturb this settlement, throw it out, start all over, do anything about it. "So, again, this hearing again from the Superior Court at Stamford, again before Judge—Superior Court Judge Jacobson who says, no, it stands. And the evidence will then show that now we have two judges, Judge Tierney, Judge Jacobson putting their stamp of approval on the settlement. But Mrs. Grayson still wasn't happy. It went on yet. She appealed Judge Jacobson's decision. Didn't like it. And the appeal then went up to Hartford to the court known as the Appellate Court, which the evidence will show is the immediate appeal court over the Superior Court—we are now in the Superior Court—the court known as the Appellate Court, and the Appellate Court is the next level. "So she doesn't like what Judge Jacobson does, up she goes to the Appellate Court. The Appellate Court held another hearing, the attorneys had to go up, the attorneys had to write briefs and file briefs, then they had to go up to the Appellate Court, and the evidence will show that that's exactly what happened, they wrote the briefs on both sides, they rehashed what happened before Judge Tierney, they rehashed what happened before Judge Jacobson, they made their claims back and forth again and they went up to the [Appellate] Court, which consists of three judges who sit on the bench in a trio really to decide the case, and these are judges who have appellate experience, who are selected really to exercise appeal jurisdiction over the Superior Court. And these three judges, three of them, looked at the case and heard it, heard the arguments, and the court ruled, there is only one decision, and one majority decision there, and the court ruled in that majority decision that, again, there was no fraud, there was no hid ing, there was nothing unfair, there was no overreaching. So, in effect the Appellate Court sanctioned and affirmed and approved of what Judge Tier-ney had done and what Judge Jacobson had done. "Still Mrs. Grayson wasn't satisfied. Mrs. Grayson then asked for permission to appeal the Appellate Court ruling, to go further to the Connecticut Supreme Court. In this type of case the Connecticut Supreme Court has to grant permission to argue, to take an appeal. The appeal is not automatic as it is for the Appellate Court. She wasn't going to let it go then. She wanted it to go to the Supreme Court of the State of Connecticut. "The Supreme Court of the State of Connecticut, the evidence will show, after the filing of some papers and the request to hear it and the asking for arguments, refused to hear it on a factual basis. They, in effect, said we are not going to hear it; the Appellate Court decision stands. All right. "So now we have the trial before Judge Tierney, the trial before Judge Jacobson, the Appellate Court, the Supreme Court, nobody will touch this divorce agreement. Mrs. Grayson still isn't happy, she is still looking for more money. So then she turns on her attorneys and her accountants—not going to get anymore money through the divorce action, not going to get anything more from her husband, the court systems says, okay, okay, okay. "So her next bet, the next level is, now I think I'll sue the attorneys and I think I'll sue the accountants, I may get some money that way. And that's what this case is about, and that's why we are here in court and I think that when you listen to the case, bear in mind the evidence that is going to be coming out of the case. The evidence will demonstrate that her case about being misled or not told or somehow defrauded is as weak and insignificant now as it was before Judge Tierney and Judge Jacobson and the Appellate Court. The fact of the matter is that the attorneys and the accountants acted well, they acted faithfully, they acted loyally and they went the last mile for her. They do not deserve this fate, ladies and gentlemen, and I would urge that you listen to the evidence carefully, keep an open mind until both sides are heard and I think that you will see this case and you'll find favorably in favor of the defendants." We note that the defendants made no objection to the opening statement of counsel for Gervasoni. The defendants initially excepted to the trial court's failure to instruct the jury on the Georgetown partnership with greater factual specificity. During the colloquy following the court's instructions, however, the defendants expressly withdrew their exception. Practice Book § 315 provides in relevant part: "The supreme court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of objection. . . ." Although we do not reach the merits of the defendants' unpreserved jury instruction claim, we note that the trial court, in its jury charge, thoroughly reviewed the allegations of the plaintiff's complaint, identified facts that were not in dispute, explained the roles of the parties' expert witnesses with reference to their testimony, and otherwise adapted its instructions on the applicable law to the facts and issues of the case.

The plaintiff's petition for certification for appeal from the Appellate Court, 35 Conn. App. 338 (AC 12486), is denied.

Peters, C. J. In current economic conditions, corporate downsizing is often accomplished in part by offering severance agreements to corporate employ ees. The underlying issue in this case is whether a former employee, having retained the benefits conferred upon him by a severance agreement, may avoid that agreement on the ground of coercion for an indefinite period of time after the alleged coercion has ended. In specific procedural terms, the issue is whether the trial court abused its discretion in setting aside a jury verdict that awarded damages for wrongful termination to such an employee even though he had waited seventeen months before raising the issue of duress. The plaintiff, Gladstone Young, brought an action for damages claiming that his employment had been wrongfully terminated by the defendant, Data Switch Corporation. In response to a special defense of release, the plaintiff alleged that he had a right to disaffirm, on the ground of duress, a severance agreement that he and the defendant had executed. A jury returned a general verdict for the plaintiff and awarded him $413,000 in damages. On the defendant's motion, the trial court set aside the jury verdict. The trial court concluded that the jury verdict could not be sustained because, as a matter of law, the plaintiff had ratified the severance agreement by retaining its benefits and delaying any objection to its validity until sixteen months after the alleged coercion had entirely ceased. The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm the judgment of the trial court. The facts are essentially undisputed. The plaintiff is an electrical engineer who became an employee of the defendant in 1979. Toward the end of 1984, as a result of financial difficulties, the defendant began to restructure its operations. No later than April 15,1985, when the plaintiff was placed on a paid leave of absence, he became aware that his regular employment with the defendant was likely to end. At a subsequent meeting with the defendant's president on May 14, 1985, the plaintiff himself proposed that he be placed on half-salary for a two year period during which he would serve as a consultant to the defendant. While the defendant agreed to consider this proposal, the plaintiff continued on his paid leave of absence. During this leave of absence, the plaintiff explored new scientific opportunities that the defendant subsequently decided not to pursue. On July 26,1985, the defendant's president informed the plaintiff that his employment was being terminated. The plaintiff does not claim that this meeting or its message was in any respect coercive. The plaintiff's claim of duress arises instead out of a subsequent letter, dated August 6, 1985, that contained the details of the severance plan that "[the defendant was] prepared to offer" him. That letter referred, in its opening words, to the plaintiff's having been on "leave effective April 15,1985," and then offered to retain him on a paid leave of absence "through October 15,1985, so that you may retain your right to exercise a significant amount of company stock options." The plaintiff had stock options that he would not have been able to exercise if his employment had been terminated on April 15, 1985, rather than on July 26, 1985, as he had expected. Interpreting this letter as backdating his termination for all purposes, and therefore anticipating substantially adverse eco nomic consequences, the plaintiff felt coerced, he alleges, into acquiescing in the severance agreement. At a meeting held on August 14, 1985, the plaintiff brought his interpretation of this part of the severance offer to the attention of the defendant's president and explained the importance of the stock options to him. The plaintiff himself testified that, in response, the defendant's president assured him that, if he signed the release, he would receive his stock. On August 15,1985, without voicing any further dissatisfaction with its terms, the plaintiff signed the severance agreement, thereby releasing the defendant from all liability arising out of the plaintiff's employment. On August 21, 1985, the plaintiff received the 40,000 shares to which he was entitled by virtue of his previous stock options, and thereafter received the remainder of the benefits, including the right to exercise additional stock options, that were contained in the severance agreement. Subsequent to his execution of the severance agreement, the plaintiff had several further communications with the defendant. Although his first letters indicated no dissatisfaction with his severance package, he later maintained, through counsel, that his employability was being unfairly impaired because the defendant would not release him from the noncompetition clause that had been incorporated by reference into the severance agreement. Even then, he voiced no claim that the severance agreement was itself voidable on the ground of duress. Instead, this letter reflected the fact that, during the months immediately after the plaintiff's termination, he had unsuccessfully sought professional employment as an electrical engineer. In the spring or early summer of 1986, however, soon after the expiration of his unemployment benefits, he stopped this line of inquiry and began devoting all his time to real estate investments. Not until January 20,1987, did the plaintiff first assert a claim that the severance agreement was voidable because it had been obtained by duress. This record categorically establishes that: (1) the only coercive conduct of which the plaintiff complains is the defendant's alleged threat to deprive the plaintiff of his right to exercise his stock options; (2) this alleged coercive conduct ended when the plaintiff exercised his options on August 6,1985; and (3) the severance agreement conferred on the plaintiff measurable economic benefits that he has continued to retain. In light of this record, and the plaintiff's seventeen month delay in asserting his rights, the trial court determined that, although it had instructed the jury to determine whether the plaintiff's disaffirmance of the severance agreement was timely as a matter of fact, it was required to set aside the jury's verdict in the plaintiff's favor as a matter of law. The scope of our review of a trial court's decision to set aside a jury verdict is limited to a determination of whether the trial court abused its discretion. "We have often held that '[t]he decision to set aside the verdict entails the exercise of a broad legal discretion that, in the absence of clear abuse, we shall not disturb. O'Brien v. Seyer, [183 Conn. 199, 208, 439 A.2d 292 (1981)].' Palomba v. Gray, 208 Conn. 21, 24, 543 A.2d 1331 (1988); American National Fire Ins. Co. v. Schuss, 221 Conn. 768, [774,] 607 A.2d 418 (1992); State v. Hammond, 221 Conn. 264, 270, 604 A.2d 793 (1992). In our review of the exercise of this discretion, we accord great weight to the trial court's decision; Labatt v. Grunewald, 182 Conn. 236, 240-41, 438 A.2d 85 (1980); so long as the trial court's exercise of its discretion does not infringe on the constitutional rights of the litigants to have issues of fact determined by a jury. Seals v. Hickey, 186 Conn. 337, 350, 441 A.2d 604 (1982). This right is an 'obviously immovable limitation on the legal discretion of the court to set aside a verdict . . . .' Camp v. Booth, 160 Conn. 10, 13, 273 A.2d 714 (1970)." Ginsberg v. Fusaro, 225 Conn. 420, 425, 623 A.2d 1014 (1993); Jackson v. R. G. Whipple, Inc., 225 Conn. 705, 722-29, 627 A.2d 374 (1993). Although we have no case law that directly discusses whether a party may wait seventeen months to dis-affirm, on the ground of duress, a severance agreement the benefits of which he has retained, the Restatement (Second) of Contracts (1981) contains the applicable principles. Section 381 (1) of the Restatement (Second) provides that "[t]he power of a party to avoid a contract for . . . duress . is lost if, after the circumstances that made it voidable have ceased to exist, he does not within a reasonable period of time manifest to the other party his intention to avoid it." As a general matter, comment (a) to § 381 provides that "what time is reasonable depends on all the circumstances, including the extent to which the delay was or was likely to be prejudicial to the other party . . . .''Comment (a) to § 381 adds, however, that "[o]rdinarily, if the party with the power of avoidance retains during the delay something that he has received from the other party, avoidance will be precluded by the rule stated in § 380." Section 380 (1) of the Restatement (Second), in turn, provides that "[t]he power of a party to avoid a contract for . . . duress . . . is lost if, after the circumstances that made the contract voidable have ceased to exist, he . . . acts with respect to anything that he has received in a manner inconsistent with dis-affirmance." Read in its entirety, therefore, the Restatement equates the retention of benefits with "delay [that is] prejudicial to the other party" and imposes strict time constraints on the avoidance for duress under such circumstances. Application of the principles of the Restatement to the uncontroverted facts in this case lends strong support to the judgment of the trial court. The plaintiff nonetheless argues that the trial court abused its discretion in granting the defendant's motion to set aside the jury verdict. His argument is in two parts. As a general proposition, he relies on cases that have held that the affirmance or disaffirmance of a voidable contract depends on the intent of the person with the power to avoid. More specifically, he maintains that in the circumstances of his case, the jury could reasonably have found that he did not intend to ratify the termination agreement. We disagree. The plaintiff maintains that the governing principle for analysis of his case is the general principle that ratification of a voidable contract is ordinarily a matter of intent. Russell v. Dean Witter Reynolds, Inc., 200 Conn. 172, 186, 510 A.2d 972 (1986). As the plaintiff acknowledges, however, intent may be inferred from silence as well as from affirmative acts. Hartford Accident & Indemnity Co. v. South Windsor Bank & Trust Co., 171 Conn. 63, 72, 368 A.2d 76 (1976). The question necessarily becomes, therefore, whether the trial court abused its discretion in concluding that, as a matter of law, the plaintiff could no longer disaffirm the severance agreement in this case. The plaintiff maintains that there was such an abuse of discretion because the plaintiff could not have been expected to decide whether to disaffirm the severance agreement while he was preoccupied with his need to find alternate employment as an engineer. That argument is unpersuasive for three reasons. First, it does not explain why the plaintiff did not raise his claim when, in the spring or summer of 1986, he abandoned that search and undertook instead to become a real estate investor. Second, it focuses on the foreseeable difficulties that the plaintiff encountered as a result of the noncompetition clause, a clause that bears no relationship to the claim of duress that he is now pursuing. Third, it assumes that a contracting party can retain the benefits of a severance agreement for seventeen months and yet not ratify its terms, simply by turning his attention elsewhere. The plaintiffs job search did not deprive him of the opportunity to consider the validity of the severance agreement; indeed, his unsuccessful search for an engineering position at an acceptable salary furnished the occasion for retaining legal counsel and for correspondence with the defendant on this very subject. The case law in other jurisdictions demonstrates that the dispositive question is not why the plaintiff chose not to disaffirm a contract that is voidable for duress, but whether, once the duress had ceased, he had the opportunity to do so. These cases hold, in accordance with the Restatement, that ratification results, as a matter of law, "if the party who executed the contract under duress accepts the benefits flowing from it or remains silent or acquiesces in the contract for any considerable length of time after opportunity is afforded to annul or avoid it." Gallon v. Lloyd-Thomas Co., 264 F.2d 821, 826 (8th Cir. 1959) (ten months too long); Abbadessa v. Moore Business Forms, Inc., 987 F.2d 18, 23 (1st Cir. 1993) (five months too long); DiMartino v. Hartford, 636 F. Sup. 1241, 1252 (D. Conn. 1986) (two months too long); Schmalz v. Hardy Salt Co., 739 S.W.2d 765, 767-68 (Mo. App. 1987) (three months too long); Powell v. Oman Construction Co., 25 App. Div. 2d 566, 566, 267 N.Y.S.2d 862 (1966) (eleven months too long); McGee v. Stone, 522 A.2d 211, 214-15 (R.I. 1987) (eighteen months too long); see also 1 E. Farn- sworth, Contracts (1990) § 4.19, p. 443. The only case of duress that the plaintiff cites to the contrary; Furman v. Gulf Ins. Co. of Dallas, 152 F.2d 891, 894-95 (8th Cir. 1946); is a case in which, contrary to the facts of this case, the disaffirming party had received no contractual benefits. The defendant consistently maintained, in the trial court, that the plaintiff had ratified the severance agreement as a matter of law by accepting its benefits and by allowing seventeen months to pass before raising his claim of coercion. The trial court denied the defendant's motion for a directed verdict, presumably because it is sound judicial management to allow a case to go to the jury once it has been fully tried. The trial court, however, granted the motion to set aside the verdict for the plaintiff. We conclude that the trial court's decision was not an abuse of its discretion. The judgment is affirmed. In this opinion Borden and Palmer, Js., concurred. The period of delay was actually seventeen months. Under the stock option plan, the plaintiff could exercise his vested options only while he was an employee of the defendant or within ninety days of the termination of his employment with the defendant. On August 6,1985, the plaintiff had exercised his stock options in 40,000 shares by sending a letter and a check in the amount of $33,200.76 to the defendant's president. The option prices and the share prices were such that the execution of the options on that date would have resulted in a net profit to the plaintiff of $167,000. The record does not indicate that the delay in receiving the stock caused economic injury to the plaintiff. These benefits included the following: full salary through December 31, 1985; medical benefits and the use of a car through December 31, 1985; and release of the plaintiff from all liability except for his obligations under certain previously executed noncompetition and nondisclosure agreements. The plaintiff received his final monetary compensation from the defendant on January 29,1986, when he was paid deferred compensation and interest in the amount of $16,500. Because of the extension of his employment through December 31, 1985, the plaintiff was able to exercise options to purchase an additional 8334 shares of stock on October 10, 1985. In two letters dated September 10,1985, and October 15,1985, the plaintiff wrote to the defendant's counsel with respect to certain Securities and Exchange Commission documents and to vacation pay; neither letter mentioned coercion or duress. Thereafter, on December 14, 1985, in a letter to the defendant's chairman, the plaintiff indicated his concern for finding alternate employment but also acknowledged that he did not "wish to hurt [the defendant's] company which has been good to me . . . ." The noncompetition clause in the termination agreement cannot serve as an engine of continuing coercive conduct by the defendant because that clause predated the plaintiff's termination. Thus, it had been a condition of the plaintiff's employment with the defendant long before any claimed coercion, and the plaintiff has never claimed otherwise. It is important to note what the plaintiff does not claim. He does not argue that his employment history with the defendant made it coercive for the defendant to terminate him under any and all circumstances. He does not contend that the severance agreement was inherently coercive because it incorporated by reference his prior agreement not to compete with the defendant by undertaking employment with specified competitors. He has not argued that he was coerced into signing the severance agreement by time pressure or that he, a college trained electrical engineer of sufficient means to exercise stock options, failed to understand the terms of the agreement or could not have sought the advice of counsel. Finally, he does not claim that any of the terms of the severance agreement were unconscionable or violative of good faith. The plaintiff's only claim of duress is his own subjective interpretation of the offer for the severance agreement as an implied threat of interference with his stock options. Although the plaintiff testified that he had not consulted with counsel about the termination agreement, he also testified that, in 1979, he had enlisted the support of counsel in order to obtain company stock to which he was entitled by virtue of his employment agreement. No later than April 22, 1986, he again enlisted the support of counsel to challenge the validity of the noncompetition clause in his original employment contract.

Per Curiam. These appeals challenge the validity of a trial court judgment awarding damages for a former employee's breach of a one year covenant not to com pete that was part of a written employment contract. The plaintiff, Van Dyck Printing Company, sued the defendant, Anthony DiNicola, to recover for profits lost because the defendant, after leaving his employment with the plaintiff, joined another company to solicit business in competition with the plaintiff in violation of an express covenant not to compete. The defendant disputed the enforceability of the covenant not to compete and filed a counterclaim to recover unpaid commissions due to him from his former employment by the plaintiff. The trial court rendered a judgment in favor of the plaintiff on its complaint in the amount of $59,151.29 and in favor of the defendant on his counterclaim in the amount of $4071.77. The issues raised by the parties on appeal relate only to the trial court's judgment on the plaintiff's complaint. The defendant continues to contest the enforceability of the covenant not to compete. Both parties disagree in part with the trial court's assessment of damages. Although their appeals were properly filed in the Appellate Court, we transferred them to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). Our examination of the record on this appeal and the briefs and arguments of the parties persuades us that the judgment of the trial court should be affirmed. The parties do not dispute that the trial court applied the proper legal criteria in determining the enforceability of a covenant not to compete and in assessing the damages that flow from its breach. The application of these criteria to the factual circumstances of this case raises issues that are largely factual and that were properly resolved in the thoughtful and comprehensive memorandum of decision filed by the trial court. See Van Dyck Printing Co. v. DiNicola, 43 Conn. Sup. 191, 648 A.2d 898 (1993). Because that memorandum of decision fully states and meets the arguments raised in the present appeals, we adopt the trial court's well reasoned decision as a statement of the facts and the applicable law on these issues. It would serve no useful purpose for us to repeat the discussion therein contained. Connecticut Resources Recovery Authority v. Refuse Gardens, Inc., 229 Conn. 455, 458-59, 642 A.2d 697 (1994); Daw's Critical Care Registry, Inc. v. Dept. of Labor, 225 Conn. 99, 101-102, 622 A.2d 518 (1993); Loeb v. Al-Mor Corp., 224 Conn. 6, 7, 615 A.2d 149 (1992). The judgment is affirmed. The plaintiff's claim for injunctive relief had become moot by the time of trial.

Per Curiam. The judgment is affirmed.

Per Curiam. The named defendant appeals from the judgment rendered, after a court trial, in favor of the plaintiff on the first count of the complaint. We have fully reviewed the named defendant's three claims of error. With respect to its first two claims, it is disposi tive that the trial court employed an erroneous measure of damages. The court found that the plaintiffs employee negligently caused the roofing materials, which were the subject of the contract between the parties, to leak. This finding was consistent with the claim of the named defendant in its special defense and counterclaim that the roofing materials were installed in a defective manner. Thus, the court had no basis to award, as it did, a recovery to the plaintiff measured by the sales price of the materials supplied by the plaintiff less a 20 percent discount to the named defendant. See Johnson v. Flammia, 169 Conn. 491, 499, 363 A.2d 1048 (1975). Although the named defendant did not move for articulation of the court's decision, it is clear that, no matter how the award is viewed, it was the result of a method of calculation of damages not contemplated by our law. This conclusion makes it unnecessary to review the named defendant's third claim of error. Furthermore, since in this case the issue of liability is so inextricably intertwined with the issue of damages, a new trial on both is required in the interest of justice. There is error, the judgment is set aside and the case is remanded for a new trial.

Spallone, J. The defendant appeals from the judgment rendered after a jury verdict in favor of the plaintiff awarding damages in the amount of $26,000. The defendant claims that the trial court erred (1) in refusing to set aside the verdict, and (2) in its refusal to give a missing witness instruction. From the evidence adduced at trial, the jury would have been justified in finding the following facts: The plaintiff, Mohamed Omar, and the defendant, Norton Mezvinsky, were social friends of long standing prior to the present litigation. During those years, the defendant, who was skilled in investments, and the plaintiff, who relied on the defendant's expertise, would enter into joint ventures wherein the plaintiff would entrust funds to the defendant who would invest those funds on behalf of the plaintiff. From time to time, the defendant would report the results of those investments to the plaintiff and repay the plaintiff his original investments plus any profits which had been made. In November of 1982, at the request of the defendant, the plaintiff entrusted $20,000 to the defendant who was to invest it on behalf of the plaintiff. The defendant, with the plaintiff's assent, made investments which ultimately proved to be profitable. The defendant continued to make a series of investments which included the reinvestment of a portion of the profits made on the original investment; the defendant kept the plaintiff informed as to the results of the investments as they occurred. In the summer of 1983, the plaintiff requested an accounting of all monies due him, including both his original investment and any profits. The defendant, in response, paid the plaintiff $17,000 and indicated that an additional $26,000 would be forthcoming. Thereafter, on several occasions, the plaintiff pressed the defendant for payment of the $26,000. Although the defendant acknowledged this sum was due, the money was not forthcoming. At one point, the defendant and the plaintiff met at the plaintiffs home where the defendant again admitted owing the $26,000 and indicated that it would be paid within a couple of weeks. When the $26,000 was not paid at the time the defendant represented it would be, the plaintiff again pressed the defendant for payment. As a result of the plaintiffs insistence that payment be made, the parties reached an agreement, confirmed by letter, that they would meet at a hotel in New York City where the defendant would make payment. The meeting was held in November of 1983, but the defendant once again failed to pay as agreed. Shortly thereafter, for the first time, the defendant informed the plaintiff that he did not intend to pay. The plaintiff thereafter brought this action, sounding in conversion, which resulted in a plaintiffs verdict in the amount of $26,000. The defendant's motion to set aside the verdict was denied, and judgment was rendered in the amount of $31,188.60, plus costs taxed at $294. The defendant presents us with two theories to support his first claim that the trial court erred in refusing to set aside the verdict. First, the defendant contends that because money cannot be the subject of conversion, the jury verdict must fail; second, he claims that the plaintiff did not present evidence sufficient to support his claim of conversion. We find there is no merit to either claim. Money can clearly be subject to conversion. See Devitt v. Manulik, 176 Conn. 657, 662-63, 410 A.2d 465 (1979) (recovery of money wrongfully taken from joint survivorship bank account); Dunham v. Cox, 81 Conn. 268, 270-71, 70 A. 1033 (1908) (recovery of a sum of money entrusted to the defendant for payment to a third person); Shelby Mutual Ins. Co. v. Della Ghelfa, 3 Conn. App. 432, 445, 489 A.2d 398 (1985), aff'd, 200 Conn. 630, 513 A.2d 52 (1986) (recovery by insurer from insured's attorney pursuant to General Statutes [Rev. to 1979] § 38-325 [b]); see also Unigard Ins. Co. v. Tremont, 37 Conn. Sup. 596, 599-600, 430 A.2d 30 (1981); State v. Blawie, 31 Conn. Sup. 552, 556-57, 334 A.2d 484 (1974). As for the second theory, whether the evidence was sufficient to prove conversion was for the jury to decide. State v. Scielzo, 190 Conn. 191, 196, 460 A.2d 951 (1983). It is also within the province of the jury to determine credibility and the effect to be given the testimony. Gallo v. Gallo, 184 Conn. 36, 38, 440 A.2d 782 (1981). Likewise, it is the jury's right to consider evidence, draw logical deductions and make reasonable inferences from facts proven. State v. Schoenbneelt, 171 Conn. 119, 126, 368 A.2d 117 (1976). It may accept or reject the testimony of any witness; Zarembski v. Three Lakes Park, Inc., 177 Conn. 603, 608, 419 A.2d 339 (1979); and determine the weight to be given the evidence. Angelica v. Fernandes, 174 Conn. 534, 535, 391 A.2d 167 (1978). Accordingly, the trial court's refusal to set aside the verdict on the basis of insufficiency of evidence was not clearly erroneous. There was ample evidence submitted by the plaintiff to support the jury's verdict in this case. The defendant's second claim is that the trial court committed error when it refused to charge the jury that it could draw an adverse inference from the plaintiff's failure to call certain witnesses. We disagree. At the time the defendant submitted his request to charge, he asked that the court instruct the jury in accordance with the adverse inference rule set forth in Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960). The rule established by Secondino, and refined by subsequent caselaw, is that " ' "[t]he failure of a party to produce a witness who is within his power to produce and who would naturally have been produced by him, permits the inference that the evidence of the witness would be unfavorable to the party's cause." ' Secondino v. New Haven Gas Co., supra, 675, quoting Ezzo v. Geremiah, 107 Conn. 670, 677, 142 A. 461 (1928)." Shelnitz v. Greenberg, 200 Conn. 58, 73, 509 A.2d 1023 (1986). The defendant claims that the plaintiff's counsel should have produced Niva Omar, the plaintiff's wife, and Walter Bernas, claimed by the defendant to be one of the plaintiff's "closest personal friends." The defendant failed to offer any positive proof that Niva Omar was available to the plaintiff. "Before a negative inference can be drawn from a party's failure to produce a particular witness, it must be shown that the party was able to procure the witness' physical presence in court." (Emphasis added.) Shelnitz v. Greenberg, supra, 74-75. Contrary to the defendant's contention, the fact that this witness is the plaintiff's spouse does not, per se, make her "available" in the context of a Secondino charge, and the proferred language in Nichols v. Coppola Motors, Inc., 178 Conn. 335, 342, 422 A.2d 260 (1979), does not stand for such a proposition. See State v. Hart, 198 Conn. 424, 428-29, 503 A.2d 588 (1986). The defendant did not sustain his burden of proof under the first prong of Secondino. As to Bernas, there is no dispute with regard to his availability as he was in attendance throughout the trial. This time, however, the defendant runs afoul of the second prong of Secondino which requires that the witness is one who would naturally be produced. " 'A witness who would naturally be produced . . . is one who is known to that party and who, by reason of his relationship to that party or to the issues, or both, could reasonably be expected to have peculiar or superior information material to the case which, if favorable, the party would produce.' Nichols v. Coppola Motors, Inc., [supra, 343], quoting Secondino v. New Haven Gas Co., supra." New England Whalers Hockey Club v. Nair, 1 Conn. App. 680, 685, 474 A.2d 810 (1984). Aside from the bald allegation that Bernas is the plaintiff's "best friend," the defendant did not provide the trial court with any information which would indicate that Bernas possessed "peculiar or superior information material" to the parties' dispute. In the absence of any such evidence, the court was fully justified in refusing to charge the jury as requested. The trial court's conduct in denying the defendant's motion to set aside the verdict as well as its refusal to give a Secondino charge was entirely appropriate under the facts and circumstances of this case. There is no error. In this opinion the other judges concurred. The parties had stipulated that, in the event of a plaintiffs verdict, the statutory interest rate of 8 percent would be applied to the damage award for the period of January 1, 1984, to the date of judgment.

Norcott, J. The plaintiff wife appeals challenging the financial orders rendered by the trial court incident to the judgment dissolving the marriage between the parties. The plaintiff claims that the trial court erred (1) in denying her motion for arrest of judgment and a new trial, (2) in finding that the plaintiff bore a greater percentage of fault for the breakdown of the marriage than did the defendant and in dividing the marital assets in accordance with that finding, (3) in ordering her to transfer to the deféndant her interest in the marital residence, and (4) in finding that the proceeds of a particular annuity fund were not a joint asset of the marriage. We find error in part. The plaintiff and the defendant were married on November 8,1958. There were three children born of the marriage, the youngest of whom was eighteen years of age at the time judgment was rendered dissolving the marriage between the parties. The record reveals that the plaintiff was forty-eight years old and was in reasonably good health at the time of judgment. She is a registered nurse and has received advanced training in the field of oncology. Although she has been employed as a nurse for much of her adult life, she has no retirement benefits, pension plans, health insurance, or other associated benefits. At the time of trial, she was working at a convalescent home earning a gross of approximately $339 per week and a net of $274 per week. The only personal assets the plaintiff possessed were two cars that were registered in her name and $400 on deposit in a joint savings account with the defendant. The defendant was forty-nine years old and had a high school education. For the previous seventeen years he had worked at Sears, Roebuck and Company. The defendant reported in his financial affidavit that he earned a gross of $718 per week but that after taxes, insurance, and contributions to an IRA account and a profit sharing plan he netted $342 per week. He had a profit sharing plan with Sears, Roebuck and Company in which he had invested $18,776. He also had a retirement plan with the company to which he had three years of service credited. The defendant owned one car and had a savings account that contained $30,000, money that had recently been transferred to that account from an annuity held in the defendant's name. Before the money had been withdrawn, the annuity was valued at over $39,000. The plaintiff testified that the money in the annuity consisted of $20,000 that had come from the sale of property owned by the parties plus the interest that had accrued on that amount. The principal asset of this marriage was the jointly held land and residence, a five room single family dwelling. In a financial affidavit given in May of 1985, the plaintiff indicated that the property was worth $75,000. Later, in a sworn financial affidavit dated November 22, 1985, the plaintiff indicated that the property was worth $89,500. At trial, an expert for the plaintiff testified that the property was worth from $89,000 to $90,000. The defendant testified that the property was worth $75,000. Both parties acknowledged that the property was encumbered by a mortgage of approximately $4400 at the time of trial. The marriage between the parties was relatively stable until the death of the parties' oldest child in 1979. The record indicates that both parties suffered from emotional trauma as a result of their child's death. The trial court found that after the death of their child the plaintiff became increasingly hostile, especially with respect to the parties' second child. The plaintiff began to frequent drinking establishments, staying out until 1 a.m. She also developed a relationship with another man. The plaintiff claimed that the defendant often engaged in drunken behavior, had many illicit affairs with women, and physically abused her. During the trial to the court on this matter, the judge called the parties into his chambers. There is no record of what was said in chambers. When the parties returned to the courtroom, no mention was made of what occurred in chambers. After the close of the trial, the court rendered judgment, finding that the marriage had broken down irretrievably and that the plaintiff bore a greater percentage of fault for the breakdown than did the defendant. Pursuant to this finding, the court ordered the defendant to pay the plaintiff periodic alimony in the amount of $75 per week for a period of two years. The court also ordered the defendant to make a lump sum alimony payment of $35,000 to the plaintiff; such payment was due and payable two years from the date of the issuance of the order or upon the sale of the marital residence, whichever came first. The plaintiff was required to transfer her interest in the marital residence to the defendant. As an additional term, the court ordered the defendant to pay the plaintiff $1000 as an allowance for counsel fees. Following the imposition of judgment, the plaintiff filed a motion for arrest of judgment and new trial alleging that the trial court had been prejudiced by information it received during the in-chambers conference held during trial. This motion was denied by the court. I The plaintiff's first claim is that the trial court erred in denying her motion for arrest of judgment and new trial. She argues that during the in-chambers conference a discussion was had concerning the merits of the underlying action as well as the settlement offers proposed by the parties. She argues that the trial judge, being privy to these matters, was unduly prejudiced and should have disqualified himself. As our Supreme Court noted in Krattenstein v. G. Fox & Co., 155 Conn. 609, 614, 236 A.2d 466 (1967), a judge should not become involved "in a chambers conference looking to the settlement of a case which he is about to try as a court and in which he will be called upon to decide the issues of liability and damages . . . ." If a judge does sit or continues to sit on a case after becoming involved in a settlement discussion "[i]t is then impossible to avoid questions as to whether the judge can disregard, on the trial, matters disclosed in conference but unmentioned during the trial and whether a preliminary judgment, formed at the conference and predicated on unsubstantiated claims of proof, may have some subtle influence on a final judgment after a full hearing. It is inevitable that the basis is laid for suspicion, no matter how unfounded or unjustified it may be, and that failure to concur in what the judge may consider an adequate settlement may result in the imposition, upon a litigant or his counsel, of some retributive sanction or the incurrence of judicial displeasure." Id., 614-15. Once a judge has become involved in settlement discussions, the proper procedure is for the judge to disqualify himself from the remainder of the case. Id., 615. General Statutes § 51-39 (c), however, provides that "[w]hen any judge is disqualified to act in any proceeding before him, he may act if the parties thereto consent in open court." Therefore, as a general rule, our courts will not review a claim of judicial bias on appeal unless that claim was properly presented to the trial court by means of a motion for disqualification or a motion for mistrial. Krattenstein v. G. Fox & Co., supra, 616; Cameron v. Cameron, 187 Conn. 163, 168, 444 A.2d 915 (1982). In this case, however, we find it necessary to review the plaintiffs claim of judicial bias despite the fact that no motion was made during trial. We review the claim of bias in this case because it is the plaintiffs contention that the court manifested its bias not only in its judgment, but also in the very words it used in its memorandum of decision. This claim was properly presented to the trial court in the plaintiffs motion for new trial. In its memorandum of decision, the court noted: "The court is cognizant of the parties' negotiations to achieve an equitable division of the assets, thereby to avoid what may be described in retrospect as a bitterly contested dissolution hearing. During his testimony, the defendant repeated his willingness to abide by his earlier settlement proposal. Whatever her reason, the plaintiff, perhaps unwisely, chose not to accept the offer of compromise." The plaintiff contends that this language clearly demonstrated the court's bias. With regard to the in-chambers conference, we have no way of knowing exactly what was discussed. The plaintiff asserts that during the conference the court exhibited hostility towards the plaintiff. The court, however, denies that such hostility existed. The plaintiff has not met her burden of establishing a record about whether there has been any impropriety. State v. Fullwood, 194 Conn. 573, 581, 484 A.2d 435 (1984). We find, further, that the plaintiff's claim of judicial bias is not supported by the words used in the memorandum of decision. The words used indicate that the court was aware of negotiations to settle the case, and that the defendant was willing to abide by them. They do not indicate that the court knew of the content of the negotiations or that, if it did, that awareness was a factor in its determination of the case. II The second issue raised on appeal is that the trial court erred in finding that the plaintiff bore a greater percentage of fault for the breakdown of the marriage than did the defendant and in dividing the marital assets in accordance with that finding. We find no error. One of the several factors that must be considered by the court in fixing the financial awards in a dissolu tion case is the cause of the dissolution. General Statutes § 46b-81 (c) and 46b-82. In determining the cause of the breakdown of the marriage, the trial court is given great discretion to weigh and interpret the evidence before it and to pass upon the credibility of witnesses. Figlar v. Figlar, 174 Conn. 151, 153, 384 A.2d 1 (1978). Our review of the trial court's determination as to the cause of the breakdown of the marriage is limited to questions of whether the court correctly applied the law and could reasonably have concluded as it did. We do not retry the facts. Mailly v. Mailly, 13 Conn. App. 185, 188-89, 535 A.2d 385 (1988); Palazzo v. Palazzo, 9 Conn. App. 486, 488, 519 A.2d 1230 (1987). In assigning to the plaintiff a greater percentage of fault for the breakdown of the marriage than to the defendant, the trial court was clearly making a finding as to the cause of the breakdown of the marriage. In making that finding, the court clearly gave greater weight to the evidence produced by the defendant than that produced by the plaintiff. The evidence produced by the defendant indicated that since the death of the parties' child in 1979 the plaintiff had become increasingly hostile to both him and their remaining children. The evidence also indicated that the plaintiff had begun drinking more heavily after the child's death and had begun frequenting drinking establishments. The defendant testified that the plaintiff had become involved in a relationship with another man and had voluntarily left the parties' home in January, 1985. Given this evidence, we cannot say that the trial court abused its discretion in finding that the actions of the plaintiff were more responsible for the breakdown of the marriage than the actions of the defendant. Ill The plaintiff's third claim of error is that the trial court erred in ordering her to transfer to the defend ant her interest in the marital residence. She claims that the court's award was an invalid order to provide child support to the parties' eighteen year old son and not a valid transfer of marital property to the defendant. We disagree. In ordering the wife to transfer to the defendant her interest in the marital residence, the trial court used the following words: "In order to assure the defendant's continued residency along with his son and to effectuate an orderly sale of the premises should the defendant so choose, the plaintiff is ordered to transfer to the defendant forthwith her interest in the hereinbefore described real estate and improvements." We note, however, that the court also ordered the defendant to pay the plaintiff lump sum alimony in the amount of $35,000, such amount to be due and payable two years after the rendition of judgment or upon the sale of the house, whichever came first. As we have noted before, "[w]e must read the language of a trial court in the context of its entire memorandum of decision, declining to find reversible error solely because of what may be an inappropriate choice of words. Coe-Park Donuts, Inc. v. Robertshaw Controls Co., 1 Conn. App. 84, 87-89, 468 A.2d 292 (1983). We apply this principle to the trial court's memorandum of decision in this case." Fisher v. Fisher, 4 Conn. App. 97, 100, 492 A.2d 525 (1985). We conclude that, reading its language fairly and in the context of the entire memorandum of decision, the court did not enter an order to provide child support. The language of the trial court, while not free of ambiguity, is susceptible of a reading that the court intended the transfer of the marital residence to be an award to the defendant. This reading is supported by our reading of the record. Given the facts of this case, the trial court, in exercising its discretion, could reasonably have concluded that such an award was appropriate. Papageorge v. Papageorge, 12 Conn. App. 596, 599-600, 533 A.2d 229 (1987). IV The plaintiff finally claims that the trial court erred in finding (1) that the value of the marital residence was only $75,000, (2) that a particular annuity fund was created solely by the defendant's employment earnings, and (3) that the defendant had a weekly income of only $350. " ' "The well settled standard of review in domestic relations cases is that this court will not disturb trial court orders unless the trial court has abused its legal discretion or its findings have no reasonable basis in the facts. Gallo v. Gallo, 184 Conn. 36, 50, 440 A.2d 782 (1981)."McGuinness v. McGuinness, 185 Conn. 7, 13, 440 A.2d 804 (1981). "As has often been explained, the foundation for this standard is that the trial court is in a clearly advantageous position to assess the personal factors significant to a domestic relations case, such as demeanor and attitude of the parties at the hearing. . . McPhee v. McPhee, 186 Conn. 167, 177, 440 A.2d 274 (1982)." (Citations omitted.) Ehrenkranz v. Ehrenkranz, 2 Conn. App. 416, 420, 479 A.2d 826 (1984). With regard to the valuation of the marital residence, we hold that the trial court's finding was solidly based on the evidence produced at trial. The defendant testi fied that the fair market value of the home was $75,000. The court was entitled to accept this testimony, especially in light of the fact that the only evidence produced by the plaintiff as to the value of the home was the testimony of an expert who did not know how many rooms the house had. As we have said before, "[djetermination of the value of the properties is a matter properly left up to the trial court. . . . The trier may accept or reject the testimony of an expert, offered by one party or the other, in whole or in part. . 'It is the sole province of the trial court to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.' Smith v. Smith, 185 Conn. 491, 493, 441 A.2d 140 (1981) . We will not retry the facts." (Citations omitted.) Ferrucci v. Ferrucci, 11 Conn. App. 369, 373-74, 527 A.2d 1027, cert. denied, 205 Conn. 805, 531 A.2d 935 (1987). The plaintiff next challenges the trial court's finding that a particular annuity fund was created solely from the defendant's employment earnings. She claims that there was no evidence to support the court's findings. We disagree. The defendant filed a financial affidavit with the court in which he acknowledged the existence of the asset in dispute. In that affidavit, the defendant indicated that the asset was derived from "proceeds from business." In addition, the defendant denied at trial the plaintiff's contention that the annuity was created from the proceeds from the sale of jointly owned property. A judgment rendered will not be reversed unless a conclusion has been reached, or an inference drawn, from a fact, many facts, or the facts found, which affects the judgment rendered in material degree and is legally or logically inconsistent with that or those facts, or is so illogical or unsound, or so violative of the plain rules of reason, as to be unwarranted in law. Edens v. Kole Construction Co., 188 Conn. 489, 497-98, 450 A.2d 1161 (1982); Goold v. Goold, 11 Conn. App. 268, 284, 527 A.2d 696, cert, denied, 204 Conn. 810, 528 A.2d 1156 (1987). On the basis of the record before us, we cannot say that the conclusion reached by the trial court was not reasonable and logical. The plaintiff's final claim is that the court erred in finding that the defendant's net weekly income was $350. In finding the defendant's net weekly income, the court clearly relied on the defendant's financial affidavit. In that affidavit, the defendant indicated that his weekly gross income was $718. He claimed deductions for taxes, group life insurance, medical insurance, an IRA account and a profit sharing plan. The plaintiff asserts that the payments to the profit sharing plan and the IRA should not have been excluded from the defendant's net income. We agree. General Statutes § 46b-81 and 46b-82 require the court to consider, inter alia, the amount and sources of income of the parties when making an award of alimony or a property assignment in a dissolution action. "The available net income, however, rather than gross income is the criterion for the establishment of an appropriate figure for periodic alimony. Collette v. Collette, 177 Conn. 465, 469, 418 A.2d 891 (1979)." Bronson v. Bronson, 1 Conn. App. 337, 340, 471 A.2d 977 (1984). In general accounting practice, net income would ordinarily consist of total income received by a party from all sources, less the legitimate expenses of realizing it. Sturtevant v. Sturtevant, 146 Conn. 644, 648, 153 A.2d 828 (1959). For the purposes of General Statutes § 46b-81 and 46b-82, however, we hold that net earned income for a wage earner is the gross amount of salary, wages or commissions, less all deductions by the employer for obligatory statutory or contractual obligations of the employee. Withholding of income taxes, FICA, and wage garnishment are examples of deductions required by law. Union dues, insurance premiums and some deductions for pension plans are examples of deductions authorized by contract. Optional deductions, such as for IRAs, profit sharing plans, stock purchases, and credit union deposits are not proper deductions for a determination of net earned income for alimony or other financial orders. The latter deductions are optional and inure to the benefit of the employee. They are basically within the control of the employee and would allow him to establish the amount of his own net income were he allowed to deduct them from gross income. In the case under consideration, therefore, the court's finding that the defendant's net earnings were approximately $350 per week is in error. To that amount, the court should have added the IRA deduction and the profit sharing deduction, thereby increasing net earnings of the defendant to approximately $500 per week, an increase of approximately 46 percent. There is error in part, the judgment of the trial court is set aside with respect to its order of periodic alimony only and the case is remanded for further proceedings in accordance with this opinion. In this opinion the other judges concurred. We further note that the plaintiff never sought clarification of the court's memorandum of decision by means of a motion for articulation. See Practice Book § 4051. Had such a motion been filed, the court could have clari fied what the award was intended to be. Absent such a motion, however, we are limited to reviewing the record in an attempt to determine what the court intended. The plaintiff also claims that the trial court erred in considering certain debts owed by the defendant to his mother. After affording this claim the appropriate scope of review, we find it to be completely without merit.

Hull, J. The dispositive issue in this appeal is whether the plaintiff, the Connecticut Humane Society (society), is a public agency within the meaning of General Statutes § 1-18a (a). We conclude that the society is not a public agency and accordingly affirm the judgment of the trial court. The material facts are as follows. The defendant Julie Lewin, the Connecticut coordinator for the Fund for Animals, filed a complaint with the named defendant, the freedom of information commission (FOIC), claiming that the society's failure to file a schedule of its meetings with the secretary of the state and its failure to provide her with notice of its scheduled meetings and its agenda, following her request, were in violation of our Freedom of Information Act (FOIA). See General Statutes § 1-21 (a) and l-21c. The soci ety moved to dismiss the complaint, claiming that it is not a public agency subject to the FOIA. See General Statutes § l-18a (a). Following hearings, the FOIC concluded that the society is a public agency to the extent that it performs activities authorized by various state statutes. See General Statutes § 29-108b, 29-108c, 29-108e through 29-108g, 53-247 through 53-253. The society appealed to the Superior Court, which sustained the appeal, concluding that because the society does not receive government funds, it is not a public agency within the meaning of § l-18a (a). The trial court further concluded that, even if government funding is not essential to public agency status, the society is not a public agency. The FOIC appealed to the Appellate Court and we thereafter transferred the appeal to ourselves pursuant to Practice Book § 4023. The FOIC claims that the trial court: (1) mistakenly concluded that the absence of government funding compelled its conclusion that the society is not a public agency subject to the FOIA; and (2) improperly substituted its judgment for that of the FOIC, concluding that, even if government funding is not essential, the society is not a public agency. I The FOIC first claims that the trial court should not have concluded that an entity must receive government funding in order to be a public agency subject to the FOIA. We agree. General Statutes § 1-18a (a) provides in pertinent part: " '[PJublic agency' or 'agency' means any executive, administrative or legislative office of the state or any political subdivision of the state and any state or town agency, any department, institution, bureau, board, commission, authority or official of the state . . . .''In cases such as this, where it is unclear whether a hybrid public/private entity falls within the definition set forth in § l-18a (a), we have interpreted the section to include within its scope an entity that is the functional equivalent of a public agency. Board of Trustees v. Freedom of Information Commission, 181 Conn. 544, 554-55, 436 A.2d 266 (1980). In determining whether an entity is the functional equivalent of a public agency, we consider the following criteria: "(1) whether the entity performs a governmental function; (2) the level of government funding; (3) the extent of government involvement or regulation; and (4) whether the entity was created by the government." Id., 554; see also Hallas v. Freedom of Information Commission, 18 Conn. App. 291, 294, 557 A.2d 568 (1989). In Hallas v. Freedom of Information Commission, supra, 295, the Appellate Court concluded that "[u]nless all four factors [of the functional equivalency test] are present, the agency does not meet the test and cannot be considered a public agency." Relying on Hallas v. Freedom of Information Commission, supra, the trial court concluded that because it is undisputed that the society does not receive government funding, one of the four criteria is not satisfied and that, therefore, the society cannot be considered a public agency. In light of the myriad of organizational arrangements that may be confronted, under the functional equivalency approach, " 'each new arrangement must be examined anew and in its own context.' Washington Research Project, Inc. v. Department of Health, Education & Welfare, [504 F.2d 238, 245-46 (D.C. Cir. 1974), cert. denied, 421 U.S. 963, 95 S. Ct. 1951, 44 L. Ed. 2d 450 (1975)]. . A case by case application of the factors noted above is best suited to ensure that the general rule of disclosure underlying this state's FOIA is not undermined by nominal appellations which obscure functional realities." Board of Trustees v. Freedom of Information Commission, supra, 554-56. "All relevant factors are to be considered cumulatively, with no single factor being essential or conclusive." Railway Labor Executives' Assn. v. Consolidated Rail Corporation, 580 F. Sup. 777, 778 (D.D.C. 1984), citing Rocap v. Indiek, 539 F.2d 174, 180-81 (D.C. Cir. 1976); see also Irwin Memorial Blood Bank of the San Francisco Medical Society v. American National Red Cross, 640 F.2d 1051, 1055 (9th Cir. 1981); Ciba-Geigy Corporation v. Mathews, 428 F. Sup. 523, 527 (S.D.N.Y. 1977). We conclude that because the determination of whether a hybrid public/private entity is a public agency subject to the FOIA requires a balanced case-by-case consideration of various factors, the trial court improperly concluded that simply because the society does not receive government funding, it cannot be considered a public agency. II The FOIC next claims that, in applying the functional equivalency test, the trial court improperly substituted its judgment for that of the FOIC and, therefore, mistakenly concluded that the society is not a public agency. We disagree. "The interpretation of statutes presents a question of law. Connecticut Hospital Assn. v. Commission on Hospitals & Health Care, 200 Conn. 133, 139-40, 509 A.2d 1050 (1986)." Board of Education v. Freedom of Information Commission, 217 Conn. 153, 158, 585 A.2d 82 (1991). " 'Although the factual and discretionary determinations of administrative agencies are to be given considerable weight by the courts; see General Statutes [Rev. to 1987] § 4-183 (g); Board of Aldermen v. Bridgeport Community Antennae Television Co., 168 Conn. 294, 298-99, 362 A.2d 529 (1975); Westport v. Norwalk, 167 Conn. 151, 355 A.2d 25 (1974); 2 Am. Jur. 2d, Administrative Law § 645, 675; it is for the courts, and not for administrative agencies, to expound and apply governing principles of law. N.L.R.B. v. Brown, 380 U.S. 278, 291, 85 S. Ct. 980, 13 L. Ed. 2d 839 (1965); International Brotherhood of Electrical Workers v. N.L.R.B., 487 F.2d 1143, 1170-71 (D.C. Cir. 1973), aff'd sub nom. Florida Power & Light Co. v. International Brotherhood of Electrical Workers, 417 U.S. 790, 94 S. Ct. 2737, 41 L. Ed. 2d 477 (1974); 73 C.J.S., Public Administrative Bodies and Procedure § 69.' " Wilson v. Freedom of Information Commission, 181 Conn. 324, 342-43, 435 A.2d 353 (1980). Because the FOIC's conclusion that the society is a public agency required an interpretation of § 1-18a (a), its decision was a determination of law. Board of Education v. Freedom of Information Commission, supra. The trial court's review of this decision, therefore, required a determination of whether the FOIC acted unreasonably, arbitrarily, illegally or in abuse of its discretion and whether the FOIC's decision is supported by the evidence. Board of Education v. Freedom of Information Commission, 208 Conn. 442, 452, 545 A.2d 1064 (1988); New Haven v. Freedom of Information Commission, 205 Conn. 767, 773, 535 A.2d 1297 (1988); Board of Trustees v. Freedom of Information Commission, supra, 548-49. The trial court concluded that because the society satisfied only one of the four criteria of the functional equivalency test, the governmental function prong, and that only in part, the FOIC improperly concluded that the society is a public agency. The trial court implicitly concluded, therefore, that the FOIC's decision was unsupported by the evidence. We agree and conclude that, in light of the evidence, the trial court properly concluded that the society is not a public agency within the meaning of § 1-18a (a). Although the society was chartered by the General Assembly in 1881, the trial court aptly noted that, at that time, it was common practice for the General Assembly to incorporate private institutions. See S. Cross, Corporation Law in Connecticut (1972) § 1.2; see also Lombardo v. Handler, 397 F. Sup. 792, 794 (D.D.C. 1975), aff'd, 546 F.2d 1043 (D.C. Cir. 1976), cert. denied, 431 U.S. 932, 97 S. Ct. 2639, 53 L. Ed. 2d 248 (1977) (although national academy of sciences created by government charter, significant that at time of creation, Congress exercised exclusive authorization over all acts of incorporation in District of Columbia). The mere presence of a government charter, therefore, does not compel the conclusion that the society is a public agency. Rocap v. Indiek, supra, 177. The society has a substantial endowment. Because the society determined that it prefers to operate without conditions imposed in connection with the acceptance of state appropriations, it has not received an appropriation of state funds since 1933. Thus, in marked contrast to Board of Trustees v. Freedom of Information Commission, supra, 554, in which the academy was almost entirely publicly financed, there is no element of government funding in the present case. The purpose of the society is to promote humanity and kindness, to prevent cruelty to both man and lower animals, to provide information and literature to the public and to assist in the prosecution of crimes of a cruel and inhuman nature. In furtherance of this purpose, the society provides an educational program for schools, in addition to a pet cemetary and general information on pet care. It also provides for the euthanasia of unwanted pets. Moreover, agents of the society have statutory authorization to: (1) prevent cruel treatment of animals and impose fines or terms of imprisonment for interference with such prevention; General Statutes § 29-108c; (2) detain abandoned or cruelly treated animals; General Statutes § 29-108e; (3) collect fees for costs associated with the detention of animals from the owners of the animals; General Statutes § 29-108e; see also General Statutes § 29-108Í; and (4) kill animals under special circumstances. General Statutes § 29-108g. The commissioner of public safety is authorized by statute to appoint agents of the society as special police officers, who have the power to arrest and detain persons for violating statutes concerning cruelty to animals. General Statutes § 29-108b; see also General Statutes § 53-247 through 53-253. Because law enforcement is traditionally a function of the government, the society performs a governmental function to the extent that it engages in the law enforcement activities authorized by statute. See General Statutes § 29-108b and 29-108c. Because legislation designed to protect animals from cruelty and neglect is recognized as a valid exercise of the police power; 4 Am. Jur. 2d, Animals § 27; arguably, the society also performs a governmental function insofar as it engages in the statutorily authorized activities involving the detention, shelter and euthanasia of animals. See General Statutes § 29-108e, 29-108g. Nevertheless, the society is not required to undertake any of the activities authorized by statute. Moreover, the state still plays a predominant role in preventing the cruel and inhuman treatment of animals. See, e.g., General Statutes § 22-272a (approved methods of slaughter), § 22-329 (prevention of cruelty to dogs and other animals), § 22-332a (restrictions on use of dogs for medical research), § 22-336 (maintenance of dog pounds), § 22-342 (b) (inspection of kennels), § 22-415 (prevention of cruel and inhuman treatment of equines). Local police, dog wardens and the department of agriculture routinely use the society to investigate complaints of animal abuse and neglect. The society issues warnings and refers continuing instances of animal cruelty and neglect to the office of the state's attorney. The office of the state's attorney and the police rely upon the society to hold detained animals and to provide expertise upon request. Although the society cooperates with the state in its efforts to prevent cruel and inhuman treatment of animals, there is nothing in the record to indicate that the state in any way controls or regulates the society. Compare Board of Trustees v. Freedom of Information Commission, supra (academy has its operations examined and certified by state board of education); Hallas v. Freedom of Information Commission, supra, 296 (because bond counsel did not operate under direct, pervasive or continuous regulatory control of government, regulatory prong not satisfied); see also Forsham v. Harris, 445 U.S. 169, 180, 100 S. Ct. 978, 63 L. Ed. 2d 293 (1980); Railway Labor Executives' Assn. v. Consolidated Rail Corporation, supra, 779. The society is not required to perform any of the activities authorized by statute. Furthermore, performance of the activities is not subject to governmental review. The society is self-directed and its employees are not government employees. Compare Irwin Memorial Blood Bank of the San Francisco Medical Society v. American National Red Cross, supra, 1057 (some degree of government control can be inferred from Presidential power of appointment to governing body of Red Cross). Balancing all the applicable factors, we conclude that, in light of the evidence, the trial court properly concluded that the society is not a public agency. The judgment is affirmed. In this opinion the other justices concurred. General Statutes § l-18a (a) provides: " 'Public agency' or 'agency' means any executive, administrative or legislative office of the state or any political subdivision of the state and any state or town agency, any department, institution, bureau, board, commission, authority or official of the state or of any city, town, borough, municipal corporation, school district, regional district or other district or other political subdivision of the state, including any committee of any such office, subdivision, agency, department, institution, bureau, board, commission, authority or official, and also includes any judicial office, official or body or committee thereof but only in respect to its or their administrative functions." General Statutes § 1-21 (a) provides in pertinent part: "Each such public agency of the state shall file not later than January thirty-first of each year in the office of the secretary of the state the schedule of the regular meetings of such public agency for the ensuing year, except that such provision shall not apply to the general assembly, either house thereof or to any committee thereof." General Statutes § l-21c provides: "The public agency shall, where practicable, give notice by mail of each regular meeting, and of any special meeting which is called, at least one week prior to the date set for the meeting, to any person who has filed a written request for such notice with such body, except that such body may give such notice as it deems practical of special meetings called less than seven days prior to the date set for the meeting. Such notice requirement shall not apply to the general assembly, either house thereof or to any committee thereof. Any request for notice filed pursuant to this section shall be valid for one year from the date on which it is filed unless a renewal request is filed. Renewal requests for notice shall be filed within thirty days after January first of each year. Such public agency may establish a reasonable charge for sending such notice based on the estimated cost of providing such service." We derived the functional equivalency test from federal case law interpreting the federal Freedom of Information Act. See Board of Trustees v. Freedom of Information Commission, 181 Conn. 544, 553, 436 A.2d 266 (1980). "Although our Freedom of Information Act does not derive from any model act or the federal Freedom of Information Act, other similar acts, because they are in pari materia, are interpretively helpful, especially in understanding the necessary accommodation of the competing interests involved. See 2A Sutherland, Statutory Construction (4th Ed.) § 51.06, 52.03." Wilson v. Freedom of Information Commission, 181 Conn. 324, 333, 435 A.2d 353 (1980).

The plaintiffs' motion for review is granted and the order of the trial referee dated June 3, 1976, is overruled.

Loiselle, J. This is an appeal by the plaintiffs from the judgment rendered following a jury verdict for the defendants and from the court's denial of the plaintiffs' motion to set aside the verdict. On November 12, 1971, Wayne A. Going, then sixteen years of age, was operating an automobile owned by his father, Merrill L. Going, on route 31 in Coventry. A collision occurred between that vehicle and one owned by Francis Cammisa and operated by Herbert I. Pagani. Through his father, Wayne brought suit against Pagani and Cammisa for personal injuries 'and other damages and, in his individual capacity, Merrill Going sought to recover for the damages to his automobile and for medical and hospital expenses incurred on behalf of his son. The verdict for the defendants was returned on February 19, 1975. The principal questions raised on the trial involved the location on the highway of the point of impact between the two automobiles, and which had the right of way. On their appeal, the plaintiffs have briefed and argued two assignments of error addressed to evidential rulings of the court, one claim of error in the court's charge and another in its refusal to set aside the verdict. The first claim of the plaintiffs is that the court erred in permitting an investigating police officer, Trooper Donald J. Arcari, to testify, as a result of his observations at the scene of the accident, to his opinion as to the location on the highway of the point of collision between the two cars and also erred in admitting into evidence as exhibits two diagrams of the scene prepared by the officer containing his record of the measurements on the highway, the relative positions of the vehicles on it, and his indication of where in his opinion the point of impact was located. The plaintiffs contend that Trooper Arcari did not have such special skill or knowledge beyond the ken of the average juror as to permit him to express his opinion about the location of the point of impact. Secondly, the plaintiffs argue that even if he did have special skill or knowledge, he lacked sufficient facts on which to express an opinion. The plaintiffs also claim that the exhibits based on the trooper's observation, in illustration of his testimony, were inadmissible if his testimony was. In Waldron v. Raccio, 166 Conn. 608, 613, 614, 353 A.2d 770, involving a similar claim, this court stated: "Expert opinion testimony as to the point of impact in a motor vehicle accident is proper provided the witness has been qualified and an adequate foundation for his testimony has been laid. . . . The trial judge has a broad discretion to determine the qualifications of an expert. . . . '[I]f any reasonable qualifications can be established, the objection goes to the weight rather than to the admissibility of the evidence.' . . . 'Some facts must be shown as the foundation of . an [expert's] opinion, but there is no rule of law declaring the precise facts which must be proved before such an opinion may be received in evidence. It is largely a matter of judicial discretion whether a witness has been shown to have sufficient experience and opportunity of observation to render his opinion of value.' " There was evidence which clearly supported the court's finding that Trooper Arcari was qualified to state an expert opinion. He had served twenty-six months as a member of the Connecticut state police department and had investigated 130 to 140 accidents. He arrived on the accident scene within minutes of the collision, made a visual examination of the scene and took measurements which he charted. The opinion he gave at the trial was based on his experience and his own pertinent, first-hand observation. It was well within the trial court's discretion to admit the trooper's testimony based on his investigation. "The trial court's decision is not to be disturbed on appeal 'unless that discretion has been abused, or the error is clear and involves a misconception of the law.' " Siladi v. McNamara, 164 Conn. 510, 513, 325 A.2d 277. We find no error in the ruling of the court admitting the trooper's testimony and his diagrams to illustrate and explain it. The plaintiffs next contend that the trial court erred in excluding testimony offered by Robert M. Cromwell, the plaintiffs' expert witness, and in excluding exhibits offered to illustrate his testimony. The record indicates no challenge to Cromwell's qualifications as an automotive and mechanical safety engineer with expertise in the reconstruction of accidents. In making its ruling excluding Cromwell's testimony, the trial court stated its conclusion that there were "so many factors that are so far from certain on which this expert bases his opinion, I feel the uncertainties as to the essential facts are such as to make an opinion based on them without substantial probative value in this case." In its memorandum of decision denying the motion to set aside the verdict, the court further specified the basis of its ruling: "This opinion was not permitted since the court found [that] it was based on such conjecture and factual uncertainty as to lack any substantial probative value for the jury. Sears v. Curtis, 147 Conn. 311, 315 [160 A.2d 742]; Floyd v. Fruit Industries, Inc., 144 Conn. 659, 666 [136 A.2d 918]. Cromwell did not examine the accident scene until January 19, 1975, some three years and two months after the accident. The road in question had been resurfaced in the interim. As to the point of impact, the jury heard testimony from the operators of the vehicles involved and from police officers who arrived at the scene shortly after the accident and observed the location of the vehicles and the debris on the roadway. The testimony admitted was, by far, the better evidence and there was no need in this case to resort to evidence which could only serve to confuse and possibly mislead the jury. The plaintiffs' expert was permitted to give his opinion on several points to the jury. Other questions were excluded either because they lacked essential facts or were based on facts not in evidence." The record discloses that Cromwell began his investigation of this accident thirty-eight months after its occurrence. In the meantime, the roadway on which the accident occurred had been repaved, the white or division line on the road had been changed, and the plaintiffs' automobile had been removed from the scene of the accident and later moved again. Cromwell's reconstruction of the accident and his opinion about the crucial point of impact were based on calculations made from photographs, the changed accident site, and the moved automobile. His reconstruction of the accident scene and resulting conclusion as to the point of impact and width of the highway differed substantially from the observations and actual measurements taken by the police at the scene shortly after the accident occurred. As the memorandum of decision stated, "[t]his opinion was not permitted since the court found it was based on such conjecture and factual uncertainty as to lack any substantial probative value for the jury." The facts upon which an expert's opinion is based are an important consideration in determining the admissibility of his opinion. See annot., "Admissibility of opinion evidence as to point of impact or collision in motor vehicle accident case," 66 A.L.R.2d 1048. As that annotation indicates (p. 1051): "[I]t may be noted that the cases holding or recognizing the admissibility of skilled or expert opinion evidence show that the witness giving the testimony had an opportunity to investigate the scene reasonably soon after the accident and had sufficient experience to form a reasonable opinion based upon his observations." This state has long had a simple and workable standard for the admissibility of expert opinion. "The true test of the admissibility of such testimony is not whether the subject matter is common or uncommon, or whether many persons or few have some knowledge of the matter; but it is whether the witnesses offered as experts have any peculiar knowledge or experience, not common to the world, which renders their opinions founded on such knowledge or experience any aid to the court or the jury in determining the questions at issue." Taylor v. Monroe, 43 Conn. 36, 44, cited with approval in Schomer v. Shilepshy, 169 Conn. 186, 191, 363 A.2d 128. Implicit in this standard is the requirement, later articulated, that the expert's knowledge or experience must be directly applicable to the matter specifically in issue. Siladi v. McNamara, 164 Conn. 510, 513-14, 325 A.2d 277. As we have already noted, the trial court has wide discretion in ruling on the admissibility of expert testimony and this discretion is "not to be disturbed . . . 'unless that discretion has been abused, or the error is clear and involves a misconception of the law.' " Siladi v. McNamara, supra, 513. We find no abuse of discretion in the ruling of the court in this case nor can we hold that the court could not conclude, as it did, that the uncertainties in the essential facts on which the witness' opinion was predicated were such as to make an opinion based on them without substantial value. Sears v. Curtis, 147 Conn. 311, 315, 160 A.2d 742; Floyd v. Fruit Industries, Inc., 144 Conn. 659, 666, 136 A.2d 918, and cases cited. The plaintiffs' next claim of error is addressed to the court's charge to the jury. They contend that the jury were "hopelessly confused" on the correlation of sections of the statutes mentioned in the charge. In their complaint, the plaintiffs alleged that the defendant driver had violated § 14-231 of the General Statutes by failing to pass to the right of the plaintiffs' vehicle and violated § 14-236 by failing to drive as nearly as practicable entirely within his single traffic lane as marked. The court originally charged the jury by reading § 14-231 in its entirety, adding, however, cautionary instruction that § 14-236 of the General Statutes might be more applicable. The plaintiffs excepted to this portion of the charge and the court then recalled the jury to recharge with respect to both statutes allegedly violated. When the jury subsequently requested that the statutes be reread, the trial court complied and, after reading § 14-231, stated "that second half of the statute about giving to the other at least one-half of the main-traveled portion is not the applicable portion of the statute that you should consider in this case, because highways divided by a white line are more specifically governed by 14-236." The plaintiffs took no exception to the clarifying instruction. Even if there were error in the original charge, and that is doubtful, the supplemental charge, to which no exception was taken, corrected it. This claim of error is, therefore, without merit. The defendants' final claim of error is addressed to the court's ruling denying their motion to set aside the verdict. Their motion was predicated upon the claims of error pressed on this appeal. We have found no merit to these claims and, accordingly, find no error in the court's denial of the motion to set aside the verdict. There is no error. In this opinion the other judges concurred. "[General Statutes] See. 14-231. vehicles in opposite djgkections to pass on kight. Drivers of vehicles proceeding in opposite directions shall pass each other to the right, and upon highways having width for not more than one line of traffic in each direction each driver shall give to the other at least one-half of the main-traveled portion of the highway as nearly as possible." "[General Statutes] Sec. 14-236. multiple-lane highways. When any highway has been divided into two or more clearly marked lanes for traffic, (1) a vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has ascertained that such movement can be made with safety and (2) the state traffic commission may erect, on state highways, and local traffic authorities, in accordance with standards approved by the state traffic commission, may erect on highways under their jurisdiction, signs directing slow-moving traffic to use a designated lane or, with signs, signals or markings, may designate those lanes to be used by traffic moving in a particular direction regardless of the center of the highway, and drivers of vehicles shall obey the directions of each such sign, signal or marking."

' The plaintiff's motion to dismiss the appeal of the defendant Herbert H. Hediek from the Superior Court in Hartford County is granted.

House, C. J. This is an appeal from a judgment of the Superior Court (George, J.) on an appeal by the plaintiff, Enrique Guevara, from a decision of the unemployment compensation commissioner for the fifth district. The commissioner's decision, from which the appeal was taken, was rendered on January 28, 1973, and the appeal to the Superior Court was taken on February 1, 1973. Accordingly, the provisions of 1974 Public Acts, No. 74-339, establishing an appellate system for the review of employment security, manpower and unemployment compensation proceedings, which became effective July 1, 1974, and 1975 Public Acts, No. 75-339, concerning appeals from unemployment compensation proceedings, which became effective October 1, 1975, have no application to the proceedings in this case, which are governed by the statutes in effect prior to the effective dates of the later statutes. The ease arose from a ruling of the defendant administrator denying unemployment compensation benefits to the plaintiff because the plaintiff had refused to apply for a job to which he was referred by the administrator. The plaintiff appealed this denial to the unemployment compensation commissioner who affirmed the decision of the administrator. The plaintiff then appealed to the Superior Court (Hull, J.) which remanded the case for a finding concerning the availability of public transportation between the plaintiff's residence and the place of employment to which the plaintiff had been referred. On the remand, the commissioner found that although taxi service was available during the time in question there was no other public transportation available. The court (George, J.) thereupon sustained the plaintiff's appeal. The defendant administrator then moved to open and reargue the court's decision. This motion was granted but the court affirmed its prior ruling and judgment was rendered reversing the commissioner and sustaining the appeal. It is from this judgment that the present appeal was taken. The pertinent facts found by the commissioner are as follows: The plaintiff was a forty-three-year- old single male who resided in Danbury and who had been employed by the Danbury public school system from January 13, 1972, through April 10, 1972. He applied for unemployment compensation and on May 30, 1972, the state employment service referred him to a position with Kanthal Corporation in Bethel where suitable employment was available for him. Bethel is a part of the Danbury labor market. The plaintiff "on the spot" refused the referral, claiming that he had no personal means of transportation, that the distance between his home and the Kanthal plant in Bethel was too great for him to walk in the morning, and that he would be too tired to walk back home at the conclusion of his day's work. It was found that, depending on the route taken, the distance between the plaintiff's residence and the available work at Kanthal Corporation was at the most 2.9 miles and at the least 2.1 miles. The plaintiff did not introduce any evidence substantiating his claim that that distance was too far to travel or that he would be too tired at the conclusion of his day's work to walk that distance home. The commissioner noted that on previous occasions the plaintiff had been faced with transportation problems in getting to and from other work and that those prior problems had been resolved by his worldng out an arrangement with friends or fellow workers. By "on the spot" refusing the referral to the work available at Kanthal, the plaintiff did not even allow himself an opportunity to arrange for such transportation. Based on those facts, it was ruled "that the distance from the claimant's place of residence at the time of his referral to Kanthal Corporation of Bethel falls within the category of reasonable distance of his residence, for this particular claimant," and the decision of the administrator denying the plaintiff benefits for the period in question was affirmed. The controlling portion of the Unemployment Compensation Act, General Statutes § 31-236 (1), provided that an individual should be ineligible for benefits if it is found that he failed, without sufficient cause, to apply for available, suitable work when directed to do so by the public employment bureau or the administrator. Suitable work is defined as either employment in his usual occupation or field or other work for which he is reasonably fitted, provided such work is "within a reasonable distance of his residence." In reversing the decision of the commissioner, the Superior Court clearly improperly substituted its own conclusion for that of the commissioner. It is well settled that "[a]n unemployment commissioner is an administrative officer. Upon an appeal from his decision the Superior Court does not try the matter de novo. It is not its function to adjudicate questions of fact. Nor may it substitute its own conclusions for those of the commissioner. It may go no further than to determine whether the commissioner acted unreasonably, arbitrarily or illegally. Lanyon v. Administrator, 139 Conn. 20, 28, 89 A.2d 558. The courts are bound by the findings of subordinate facts and the reasonable conclusions of fact made by the commissioner. Carper v. Administrator, 139 Conn. 515, 520, 95 A.2d 378; Almada v. Administrator, 137 Conn. 380, 391, 77 A.2d 765." Bartlett v. Administrator, 142 Conn. 497, 505, 115 A.2d 671. "If his [the commissioner's] conclusions are reasonably and logically drawn, the court is legally powerless to alter them." Stapleton v. Administrator, 142 Conn. 160, 165, 112 A.2d 211; see also Practice Book § 435, 445. There is error, the judgment is set aside and the case is remanded with direction to enter judgment for the defendant. In this opinion the other judges concurred.

The defendant's motion for a review of the order of the trial court denying on September 30, 1976, a reduction of his bond is granted and the relief sought therein is denied.

Loiselle, J. The plaintiff's operator's license was suspended for a period of at least one year by the defendant commissioner of motor vehicles pursuant to General Statutes §14-111 (c). The plaintiff appealed to the Court of Common Pleas and his appeal was sustained. The commissioner of motor vehicles has appealed from that judgment. According to its memorandum of decision, the Court of Common Pleas sustained the appeal on the ground that the adjudicator abused his discretion in relying solely on hearsay statements which the court held were not competent evidence. We find that the appeal was properly sustained for another reason. "A judgment responsive to the issues and supported by the facts should stand, even if the court's method of reaching its decision might be questionable." Malone v. Steinberg, 138 Conn. 718, 723, 89 A.2d 213; see also Walsh v. Turlick, 164 Conn. 75, 84, 316 A.2d 759. The adjudicator of the motor vehicle department found that on October 14, 1973, at approximately 1 a.m., the plaintiff's vehicle, traveling south at approximately fifty to fifty-five miles per hour, appeared to jump the red light facing it and crashed broadside into another vehicle. The other vehicle had been heading north and was continuing through the intersection in an attempt to make a left turn and head west, although the traffic light facing it had turned red. A passenger in the other vehicle was killed. The adjudicator concluded that the plaintiff caused or contributed to the death of the passenger. The plaintiff's operator's license was suspended. The only witness who testified at the hearing was a police officer who had arrived at the accident scene within five to ten minutes after the collision. The other evidence, and the only evidence pointing to the , plaintiff's culpability, was contained in affidavits of four witnesses to the accident who were not present at the hearing. These affidavits were admitted over the plaintiff's objection. The hearing, being contested, was subject to the Uniform Administrative Procedure Act, General Statutes § 4-166—4-189, § 4-178 of which reads in part as follows: "Any oral or documentary evidence may be received, but the agency shall, as a matter of policy, provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence. Agencies shall give effect to the rules of privilege recognized by law. Subject to these requirements, when a hearing will be expedited and the interests of the parties will not be prejudiced substantially, any part of the evidence may be received in written form." At the outset, it is noted that evidence in written form is not, as a matter of law, inadmissible in an administrative hearing conducted under General Statutes §4-178 unless it substantially prejudices a party. The words "substantially prejudice" as they appear in the statute are to be construed according to commonly approved usage of the language; General Statutes § 1-1; Balch Pontiac-Buick, Inc. v. Commissioner of Motor Vehicles, 165 Conn. 559, 565, 345 A.2d 520; "[o]r, stated another way, statutory language is to be given its plain and ordinary meaning." Klapproth v. Turner, 156 Conn. 276, 280,240 A.2d 886. Both parties cite Richardson v. Perales, 402 U.S. 389, 91 S. Ct. 1420, 28 L. Ed. 2d 842, in support of their respective positions. There the United States Supreme Court ruled that medical reports, although hearsay, were sufficiently trustworthy to constitute substantial evidence to support the denial of a disability claim. Federal law requires a reviewing court to set aside an agency finding if the finding is not supported by "substantial evidence." 5 U.S.C. §706 (2) (E). Our statute differs in that it pro vides that a court may reverse or modify an agency decision if substantial rights of the appellant have been prejudiced because the administrative findings are clearly erroneous in view of the reliable, probative and substantial evidence on the whole record. General Statutes §4-183 (g) (5). This ease, however, turns on the authority of a court to reverse an agency decision under § 4-183 (g) (1), where the administrative decision is in "violation of . . . statutory provisions," such as § 4-178 of the General Statutes. On this issue the standard set forth in Richardson is not irrelevant. If hearsay evidence is insufficiently trustworthy to be considered "substantial evidence" and it is the only evidence probative of the plaintiff's culpability, its use to support the agency decision would be prejudicial to the plaintiff, absent a showing, which has not been made here, that the appellant knew it would be used and failed to ask the commissioner to subpoena the declarants. In Richardson the United States Supreme Court, in determining that medical reports were trustworthy although hearsay, looked to those factors which assured the underlying reliability and probative value of the hearsay evidence. Richardson v. Perales, supra, 402. Among the factors which were considered as establishing trustworthiness were: the doctors had no bias or interest in the case; the reports "were based on personal consultation and personal examination and rested on accepted medical procedures"; id., 403; there was no inconsistency on the face of the reports; and written medical reports by treating physicians have long been rec ognized by the courts as having inherent reliability and probative worth. The trustworthiness of the hearsay evidence considered in the present case fails to meet the criteria set forth in Richardson. Although the declarants were apparently unbiased, the weight accorded their testimony might have been considerably affected by cross-examination. Nighttime observations of an accident at an intersection simply lack the inherent reliability of documents such as medical reports. This hearsay does not rise to the level of the evidence held to be trustworthy in Richardson. The evidence was not directed to a collateral or incidental aspect of the case, but was concerned directly with the matter at issue. Unlike the situation in Cutlip v. Connecticut Motor Vehicles Commissioner, 168 Conn. 94, 97-98, 357 A.2d 918, where hearsay evidence was received without objection, the plaintiff in this ease objected to the. admission of the hearsay evidence. And, unlike Lawrence v. Kozlo wski, 171 Conn. 705, 715, 372 A.2d 110, there was no other evidence supporting the conclusion of the adjudicator. It follows that the use of this hearsay evidence substantially prejudiced the plaintiff. The Court of Common Pleas properly sustained the appeal. There is no error. In this opinion the other judges concurred. "[General Statutes] Sec. 14-111. suspension or revocation op registration, license or right to operate. . (e) 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. A motor vehicle parked in a manner permitted by law shall not be deemed to be concerned in such accident." Section 14-110 of the General Statutes gives the commissioner subpoena power.

The plaintiff'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 Court, 24 Conn. App. 264, is denied.

Callahan, J. The named defendant, the town of Glastonbury plan and zoning commission (commission), granted a special permit to the defendant Whit Osgood authorizing the construction of a single family dwelling on a ten acre rear lot. The plaintiffs, Double I Limited Partnership (Double I) and its two general partners, Bruce S. Beck and Daniel Guachione, own property adjacent to Osgood's rear lot and other property within 100 feet of the lot. They appealed the commission's decision to the Superior Court. The Superior Court rejected the plaintiffs' claims that the commission's approval of the rear lot was improper and that the notice provisions of General Statutes § 8-3c (b) violated the plaintiffs' due process rights, and it therefore dismissed the appeal. We affirm the judgment of the trial court. The material facts are not in dispute. Pursuant to § 6.8 of the zoning regulations of the town of Glastonbury, Osgood applied to the commission for a special permit that would allow him to build a single family home on a rear lot. The lot is located on the easterly side of a portion of Dayton Road that the town of Glastonbury has designated as an abandoned road. The plaintiffs Beck and Guachione own land abutting the westerly side of this same portion of Dayton Road, while the plaintiff Double I owns land within 100 feet of Osgood's rear lot. Osgood's application stated that he would construct a twenty foot wide paved driveway over the abandoned road to provide access to the lot. The driveway would extend from his lot to the public portion of Dayton Road, a distance of approximately 750 feet. One portion of the abandoned road that would become part of the driveway travels over approximately fifty feet of land owned by the plaintiffs. The construction of the driveway would affect few other property owners. The commission approved the application for a special permit at a public hearing held on December 6, 1988. The commission had published notice of the hearing in a local newspaper in full compliance with the provisions of General Statutes § 8-3c (b) and § 14.5 of the Glastonbury zoning regulations, but the plaintiffs did not receive actual notice. The plaintiffs did not attend the hearing, but they appealed the commission's rul ing to the Superior Court after the commission published notice of its decision as required by § 8-3e (b). In their appeal of the commission's decision to grant the special permit, the plaintiffs claimed that: (1) the board's action was arbitrary, illegal, and an abuse of discretion because the proposed dwelling was not within 1000 feet of the public portion of Dayton Road and because Osgood did not own a "fee interest in a right-of-way" providing access to his lot as required by § 6.8.4 (e) of the Glastonbury zoning regulations; and (2) the notice provisions of § 8-3c (b), as applied to the plaintiffs, denied them due process of law. The trial court dismissed the plaintiffs' appeal and also denied the named defendant's motions for sanctions against the plaintiffs for alleged bad faith pleading and harassing litigation tactics. The plaintiffs filed a petition for certification to appeal and the named defendant filed a petition for certification to cross appeal. The Appellate Court granted both petitions and we transferred the matter to this court pursuant to Practice Book § 4023. On appeal, the plaintiffs raise the same two claims they argued before the trial court, while the named defendant in its cross appeal claims that the trial court improperly denied its motions for sanctions. I The plaintiffs' first claim is that the commission erred in granting the special permit because Osgood's application did not satisfy the requirements of § 6.8.4 (e) of the Glastonbury zoning regulations. Section 6.8.4 (e), which sets forth one of the criteria that must be satis fied before the commission can authorize construction on a rear lot, provides that "[t]he owner(s) of each rear lot or lots shall own the fee interest in a right-of-way at least 20 feet wide; provided, however, that the Commission may, in its discretion, waive the requirement of fee ownership, as long as property over which said right-of-way passes shall have frontage on a Town road in excess of 20 feet over the minimum frontage required in the underlying zone or shall be property to which frontage requirements are not applicable." (Emphasis added.) The plaintiffs contend that the only reasonable interpretation of the phrase, "fee interest in a right-of-way," is one that requires the applicant for a special permit for rear lot construction to have fee simple title, as opposed to a mere easement, to a strip of land at least twenty feet in width that extends from the rear lot to a public road. General Statutes § 13a-55 provides a right-of-way over an abandoned roadway for owners of property abutting the abandoned road. The defendants assert, and the trial court implicitly concluded, that the reference in § 6.8.4 (e) to a "fee interest in a right-of-way" is ambiguous and that the commission could reasonably have interpreted the regulation to mean that Osgood's indefeasible statutory right-of-way under § 13a-55 satisfied the requirements of § 6.8.4 (e). We agree. When ruling upon an application for a special permit, a planning and zoning board acts in an administrative capacity. A.P. & W. Holding Corporation v. Planning & Zoning Board, 167 Conn. 182, 184-85, 355 A.2d 91 (1974); Farina v. Zoning Board of Appeals, 157 Conn. 420, 422, 254 A.2d 492 (1969). "Generally, it is the function of a zoning board or commission to decide 'within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply. The trial court had to decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts. Pascale v. Board of Zoning Appeals, 150 Conn. 113, 116, 117, 186 A.2d 377 [1962]; Stern v. Board of Zoning Appeals, 140 Conn. 241, 244, 99 A.2d 130 [1953]. In applying the law to the facts of a particular case, the board is endowed with a liberal discretion, and its action is subject to review by the courts only to determine whether it was unreasonable, arbitrary or illegal. Connecticut Sand & Stone Corporation v. Zoning Board of Appeals, 150 Conn. 439, 442, 190 A.2d 594 [1963].' " Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 152, 543 A.2d 1339 (1988). The ultimate issue is whether the trial court was correct in ruling that the commission's decision to grant the special permit was not arbitrary, illegal or an abuse of its discretion. Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 654, 427 A.2d 1346 (1980); Bogue v. Zoning Board of Appeals, 165 Conn. 749, 752, 345 A.2d 9 (1974). If, in granting the special permit, the commission construed § 6.8.4 (e) beyond the fair import of its language, then the commission acted in an arbitrary and illegal manner. Spero v. Zoning Board of Appeals, 217 Conn. 435, 441, 586 A.2d 590 (1991); Capalbo v. Planning & Zoning Board of Appeals, 208 Conn. 480, 490-91, 547 A.2d 528 (1988). The rules of statutory construction apply to the interpretation of local regulations. See Schwartz v. Planning & Zoning Commission, supra, 153. We look first to the language of the regulation to determine the intent of the enacting body. Spero v. Zoning Board of Appeals, supra. If the language of the regulation is ambiguous, the court can look to its purpose as an aid in construing it. Nickel Mine Brook Associates v. Joseph E. Sakal, P.C., 217 Conn. 361, 364, 585 A.2d 1210 (1991); Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 405, 528 A.2d 805 (1987). As a threshold matter, we note that the commission did not explicitly state its reasons for concluding that § 6.8.4 (e) was satisfied. It is well established, however, that if the commission fails to state clearly the reasons for its decision, the trial court, and this court on appeal, must search the record to find a basis for the commission's decision. Parks v. Planning & Zoning Commission, 178 Conn. 657, 661-62, 425 A.2d 100 (1979); A.P. & W. Holding Corporation v. Planning & Zoning Board, supra, 186-87. During the hearing, the defend ant Osgood referred to his rights to access his property and improve the right-of-way under the abandoned road statute, § 13a-55, and we conclude that those rights provide an adequate basis for the commission's action. Section 13a-55 provides in pertinent part that "[property owners bounding a discontinued or abandoned highway . . . shall have a right-of-way over such discontinued or abandoned highway to the nearest or most accessible highway . . . .''In Luf v. Southbury, 188 Conn. 336, 344, 449 A.2d 1001 (1982), we stated that under § 13a-55 owners of property abutting an abandoned road have an easement of access over the abandoned road to the public highway and also have the right to improve the existing roadbed. We also noted that owners of land abutting a highway, including both abandoned and public highways, have a fee interest in the land under the road to the midpoint of the highway. Id., 341-45. The plaintiffs claim that § 13a-55 does not provide an adequate basis for the commission's decision because the language of § 6.8.4 (e) unambiguously requires the applicant for a permit to build on a rear lot to have a fee simple interest, rather than an easement, in the entire strip of land providing access to the rear lot. We disagree. The reference in § 6.8.4 (e) to a "fee interest in a right-of-way" is inherently ambiguous. The Glastonbury zoning regulations provide no definition of this term. "Right-of-way" is generally defined as "a legal right of passage over another person's ground—compare easement, servitude." (Emphasis added.) Webster's Third New International Dictionary; accord Black's Law Dictionary (5th Ed. 1979); 25 Am. Jur. 2d, Ease ments and Licenses § 7, p. 422. The term "fee interest" normally connotes a fee simple interest, or absolute ownership, of real property. See Hochberg v. Zoning Commission, 19 Conn. App. 357, 360, 561 A.2d 984 (1989) ("a highway easement over land owned in fee by a private party does not eliminate that party's fee ownership"); 28 Am. Jur. 2d, Estates § 8-10. Because the term "right-of-way" is usually viewed as describing a right to travel over the property of another, the coupling of the terms "fee interest" and "right-of-way" in § 6.8.4 (e) creates ambiguity. The defendants argue that the commission could reasonably have interpreted the term "right-of-way" to mean an easement, as did the trial court, and that the reference to a "fee interest" was meant to assure that the easement was not held for a limited term. See Rosenblum v. Eisenhauer, 29 Conn. Sup. 216, 224, 280 A.2d 537 (1971) (an easement can " 'be a freehold or a chattel interest according to its duration, and may be enjoyed in fee, and it may be a base, qualified, or determinable fee, or it may be less than a fee, or even for a term of years' "), quoting 28 C.J.S., Easements § 1 (b), p. 621. The defendants also rely on the trial court's observation that one of the purposes in regulating construction on rear lots is to assure that emergency vehicles can have access to the property. The defendants note that their interpretation of § 6.8.4 (e) is entirely consistent with this purpose. In light of the liberal discretion with which the commission is endowed in interpreting its own regulations; Schwartz v. Planning & Zoning Commission, supra, 152; we agree with the trial court that the commission could reasonably have concluded that the defendant Osgood's statutory right-of-way under § 13a-55 satisfied the requirement of § 6.8.4 (e) that he have a "fee interest in a right-of-way." II The plaintiffs' second claim is that General Statutes § 8-3c (b) denied them their rights to procedural due process guaranteed under the fourteenth amendment 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. Section 8-3c (b) provides that notice of the time and place of a hearing on a special permit application "shall be published in a newspaper having a substantial circulation in such municipality at least twice, at intervals of not less than two days, the first not more than fifteen days, nor less than ten days, and the last not less than two days before the date of such hearing." The plaintiffs assert that they were entitled, at a minimum, to notice by mail of the hearing on the defendant Osgood's application. In order to prevail on their due process claim, the plaintiffs must prove that: (1) the property interest they assert is cognizable under the due process clause; (2) they have been deprived of that property interest; and (3) the deprivation of the property interest has occurred without due process of law. Connecticut Education Assn. v. Tirozzi, 210 Conn. 286, 293, 554 A.2d 1065 (1989). We agree with the trial court that the plaintiffs are unable to demonstrate that they have been deprived of a constitutionally cognizable property interest. A The first property interest asserted by the plaintiffs is their "statutory right to notice and an opportunity to be heard" before the defendant commission pursuant to § 8-3c (b). In essence, the plaintiffs are claiming that they have a property interest in the procedures set forth in § 8-3c (b) and that they were denied the right to avail themselves of these procedures because the statute did not require that they receive actual notice of the hearing. We conclude that the asserted interest does not constitute a constitutionally cognizable property interest. "Property interests are more than abstract needs, desires or unilateral expectations of benefits or privileges. Rather, a person must have 'a legitimate claim of entitlement' to a benefit or privilege to have a property interest in that benefit. Board of Regents v. Roth, [408 U.S. 564, 577, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972)]. 'Property interests are not created by the Constitution, "they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law . . . ." ' Cleveland Board of Education v. Loudermill, 470 U.S. 532, 538, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985), quoting Board of Regents v. Roth, supra, 577; see also Paul v. Davis, 424 U.S. 693, 709, 96 S. Ct. 1155, 47 L. Ed. 2d 405, reh. denied, 425 U.S. 985, 96 S. Ct. 2194, 48 L. Ed. 2d 811 (1976)." Connecticut Education Assn. v. Tirozzi, supra, 294. A party seeking to demonstrate a property interest entitled to protection under the due process clause cannot "simply rely upon the procedural guarantees of state law or local ordinance." Cain v. Larson, 879 F.2d 1424, 1426 (7th Cir.), cert. denied, 493 U.S. 992, 110 S. Ct. 540,107 L. Ed. 2d 537 (1989), citing Bishop v. Wood, 426 U.S. 341, 345-47, 96 S. Ct. 2074, 48 L. Ed. 2d 684 (1976). A statute or ordinance providing procedural guarantees does not create a constitutionally protected property interest unless it sets forth substantive criteria that limit the discretion of the decision-making body. Cain v. Larson, supra; Fleury v. Clayton, 847 F.2d 1229, 1231 (7th Cir. 1988); see Olim v. Wakinekona, 461 U.S. 238, 248-51, 103 S. Ct. 1741, 75 L. Ed. 2d 813 (1983); Hewitt v. Helms, 459 U.S. 460, 471, 103 S. Ct. 864, 74 L. Ed. 2d 675 (1983). A common example of such substantive criteria is a requirement that employees be fired only "for cause." Cain v. Larson, supra. Even if the statute includes substantive criteria, a party whose asserted property interest is not related to the substantive criteria but rather is grounded solely in the procedures set forth in the statute does not have a constitutionally cognizable property interest. Id., 1427. The only substantive criterion set forth in § 8-3c (b) is the following provision: "The commission shall not render a decision on the application until the inland wetlands agency has submitted a report with its final decision to such commission. In making its decision the zoning commission shall give due consideration to the report of the inland wetlands agency." Since the plaintiffs do not claim that the commission disregarded the provision of § 8-3c (b) concerning the report of the inland wetlands agency, the interest they assert is divorced from the substantive criterion in § 8-3c (b). The plaintiffs assert a property interest only in the procedures afforded by § 8-3c (b), namely, the right to notice and an opportunity to be heard at the hearing on the application. Such an interest is not protected under the due process clause. See Cain v. Larson, supra. Even if the plaintiffs did not rely on the procedural provisions in § 8-3c (b) and claimed instead that they had a property interest in the commission's rejecting Osgood's application on the basis of the substantive criterion in § 8-3c (b), their argument would still fail. The inland wetlands agency recommended that Osgood's application be granted. Therefore, § 8-3c (b) does not provide the plaintiffs with a basis for a legitimate claim of entitlement to a rejection of Osgood's application. See Yale Auto Parts, Inc. v. Johnson, 758 F.2d 54, 57-59 (2d Cir. 1985) (plaintiff had a mere unilateral expectation in issuance of certificate of location approval by zoning board where it could not demonstrate a very strong likelihood of approval had the board properly exercised its discretion); Ravalese v. East Hartford, 608 F. Sup. 575, 576-78 (D. Conn. 1985) (plaintiff had only a unilateral expectation in not having his property included in a flood plain zone because zoning board had broad discretion). The trial court properly relied on Fusco v. Connecticut, 815 F.2d 201 (2d Cir.), cert. denied, 484 U.S. 849, 108 S. Ct. 149, 98 L. Ed. 2d 105 (1987), in concluding that § 8-3c (b) does not create constitutionally protected property rights. The plaintiffs in Fusco claimed that General Statutes § 8-3 and 8-7, which provide for notice by publication of hearings concerning zoning matters, had deprived them of property without due process of law because those statutes do not require that actual notice of such hearings be given to parties who are statutorily aggrieved under General Statutes § 8-8 (a). Id., 204. The notice provisions of § 8-3 and 8-7 are similar to the provisions of § 8-3c (b) at issue in this case. In Fusco, the plaintiffs, lacking actual notice of zoning hearings concerning land abutting their property, failed to take a timely appeal from the resulting decisions. Id., 203-204. The court rejected the plaintiffs' claim that they had a property interest in their right to appeal under § 8-8 (a), noting that "[t]he opportunity granted abutting landowners and aggrieved persons to appeal decisions of planning and zoning commissions and zoning boards of appeal is purely procedural and does not give rise to an independent interest protected by the fourteenth amendment." Id., 205-206, citing BAM Historic District Assn. v. Koch, 723 F.2d 233, 236-37 (2d Cir. 1983); Yale Auto Parts, Inc. v. Johnson, supra, 58. The plaintiffs' reliance on Logan v. Zimmerman Brush Co., 455 U.S. 422, 430, 102 S. Ct. 1148, 71 L. Ed. 2d 265 (1982), is misplaced. In Logan, the United States Supreme Court held that the plaintiff had a constitutionally protected property interest in his right to use the adjudicatory procedures of the Illinois fair employment practices statute. Id., 428-33. Noting that "[t]he hallmark of property . is an individual entitlement grounded in state law, which cannot be removed except 'for cause' "; id., 430; the court concluded that the plaintiff's interest in using the adjudicatory procedures satisfied this requirement because the adequacy of his cause of action would be assessed using the equivalent of a "for cause" standard. Id., 431. In contrast, the property interest asserted by the plaintiffs in the present case has no connection to the substantive criterion set forth in § 8-3c (b). We conclude therefore that the plaintiffs' interest in attending the hearing on the defendant Osgood's application was not a protected property interest under the due process clause. B The plaintiffs also contend that the impact of the commission's decision on their own property, in which they clearly have a property interest, is a constitutionally cognizable deprivation. A portion of the defendant Osgood's proposed driveway will travel over approximately fifty feet of the abandoned road on land owned by the plaintiffs. The plaintiffs claim that this "actual physical invasion" of their land is protected under the due process clause. We disagree. The plaintiffs cannot dispute the fact that Osgood possessed the right-of-way under § 13a-55 prior to the commission's decision, including the right to use and improve the existing roadbed. The only effect of the commission's decision was to make the improvement and use of the right-of-way a strong likelihood rather than a mere possibility. Because the plaintiffs' ownership interest was always subject to Osgood's rights under § 13a-55, we find no support for the plaintiffs' position that the commission's decision deprived them of their property in a constitutional sense. The plaintiffs contend that their claim of deprivation is supported by Mennonite Board of Missions v. Adams, 462 U.S. 791, 103 S. Ct. 2706, 77 L. Ed. 2d 180 (1983), and Tulsa Professional Collections Services, Inc. v. Pope, 485 U.S. 478, 108 S. Ct. 1340, 99 L. Ed. 2d 565 (1988). In Tulsa Professional Collections Services, Inc., the court held that a creditor's cause of action against a decedent's estate for an unpaid bill was a property interest protected under the due process clause and that a nonclaim statute barring the claim if it was not brought within a certain time period had deprived him of that interest. Id. In Mennonite Board of Missions, the court concluded that a mortgagee of property that had been sold in a tax sale was entitled to actual notice of the sale because it would deprive him of a constitutionally cognizable property interest. Mennonite Board of Missions v. Adams, supra. Both of these cases involved state action that " 'immediately and drastically diminish[ed]' " the value of the property interest at stake. Tulsa Professional Collections Services, Inc. v. Pope, supra, 485, quoting Mennonite Board of Missions v. Adams, supra, 798. In contrast, the present plaintiffs have made no showing that their interest will be affected to nearly the same degree as those in Tulsa Professional Collections Services, Inc., and Mennonite Board of Missions, and Osgood already had the right to improve his right-of-way prior to the commission's decision. The plaintiffs also rely on Pinsky v. Duncan, 898 F.2d 852, 854 (2d Cir.), modified, 907 F.2d 17 (2d Cir.), cert. granted sub nom. Connecticut v. Doehr, U.S. , 111 S. Ct. 42, 112 L. Ed. 2d 18 (1990), in which the court held that the nonpossessory attachment of real estate constitutes a deprivation of property under the due process clause. In Pinsky, the court noted that attachment "has a significant impact on the owner's ability to exercise the full scope of his property rights" because it impairs the marketability of real property, it can harm the property owner's credit rating, and it can deprive the owner of using the property as collateral. Id. These effects differ dramatically from any that will accompany the construction of Osgood's driveway on a small portion of the plaintiffs' land, especially in light of the fact that Osgood could have built the driveway with or without the commission's approval of his application. See also Fusco v. Connecticut, supra, 206 (zoning board decision did not deprive abutting landowner of property in a constitutional sense). We conclude that the plaintiffs have not suffered a deprivation recognized under the due process clause and therefore deny their due process claim. Ill In its cross appeal, the named defendant alleges that the trial court should have granted its motions for sanctions against the plaintiffs. It alleges that the plaintiffs made false factual allegations without reasonable cause, that the conduct of the plaintiffs during the pleading and discovery stages was oppressive and harassing, and that the appeal is meritless. The trial court denied the motions, noting that the most the court could find was that the plaintiffs had "over-lawyered for questionable purposes." The named defendant claims that it was entitled to sanctions under Practice Book § 111 and under the trial court's inherent authority to impose sanctions. Fattibene v. Kealey, 18 Conn. App. 344, 358-61, 558 A.2d 677 (1989). "[T]he task of determining whether sanctions should be imposed is inherently fact bound, and requires carefully circumscribed discretion to be exercised by the trial court." Id., 362; see Gionfrido v. Wharf Realty, Inc., 193 Conn. 28, 33-34, 474 A.2d 787 (1984). We have reviewed the record and we conclude that the trial court did not abuse its discretion in denying the motions for sanctions. The judgment is affirmed on both the appeal and the cross appeal. In this opinion the other justices concurred. The other defendants are the chairman of the Glastonbury plan and zoning commission and the town clerk of Glastonbury. Section 6.8 of the zoning regulations of the town of Glastonbury provides: "6.8.1 authorization: In accordance with the provisions of this section, the Town Plan and Zoning Commission may grant special permits to allow the construction of dwellings with permitted accessory buildings on rear lots in residential zones. "6.8.2 definition: rear lot: A lot which does not meet the frontage requirements of these regulations for the underlying zones. "6.8.3 resubdivision limitation: A Section 6.8 Special Permit shall not be granted in conjunction with any rear lot created by the resubdivision of any lot(s) which are part of any subdivision approved after the effective date of this ordinance. "6.8.4 requirements for rear lots: A special permit authorizing single-family dwelling construction on rear lot(s) may only be granted following satisfactory demonstration to the Town Plan and Zoning Commission that the following criteria have been met: "(a) Construction of dwelling(s) will not impair the health, safety, general welfare of future occupants, abutting landowners; and will not impair future land use, and road layouts anticipated by the Plan of Development. "(b) A rear lot shall have a minimum area of 80,000 square feet. The Commission may issue a special permit for smaller rear lots of record existing as of October 22, 1973. "(c) A principal dwelling on a rear lot shall not be located further than 1,000 feet from the street line of the Town street to which access is provided; measured along the centerline of the rear lot access driveway. The Commission may waive the 1,000' driveway limit to allow a rear lot driveway up to 1,500' in length measured along the centerline. "(d) There shall be a maximum of one single-family dwelling with permitted accessory buildings or uses on a rear lot. The Commission may grant special permits allowing the construction of single-family dwellings on a maximum of two adjacent or contiguous rear lots serviced by a common access drive. "(e) The owner(s) of each rear lot or lots shall own the fee interest in a right-of-way at least 20 feet wide; provided, however, that the Commission may, in its discretion, waive the requirement of fee-ownership, as long as property over which said right-of-way passes shall have frontage on a Town road in excess of 20 feet over the minimum frontage required in the underlying zone or shall be property to which frontage requirements are not applicable. "(f) All access driveways serving one or more rear lots shall have a minimum unobstructed width of 20'. All access driveways with an average grade in excess of 8% shall be paved with 2" of compacted bituminous concrete and constructed with appropriate stormwater control to minimize washouts. All access drives shall have a surface base of 10" of compacted bank run gravel or stone. No rear lot access drive shall contain any grade in excess of 15%. The Commission may require additional driveway standards based upon actual field conditions. "(g) All rear lots shall be provided with a vehicular turnaround at the dwelling in order to accommodate emergency vehicles. The Town street entrance to the rear lot access driveway shall be posted with a house number identification sign with numbers at least 6" high. "(h) Each rear lot shall comply in all respects with the requirements of the underlying zone as established in Sections 3 and 4 of the Building-Zone Regulations, except for frontage requirements. For purposes of determining compliance with this subsection, the lot line from which the access driveway leads shall be considered the front line of any proposed rear lot. "6.8.5 The following written reports shall be requested by the applicant and made available to the Office of Community Development ten (10) days prior to the Public Hearing: "1. Reports from the Police and Fire Marshal as to the feasibility of ready access by emergency vehicles to each dwelling." "[General Statutes] Sec. 8-3c. special permits, exceptions and EXEMPTIONS. HEARINGS. PILING REQUIREMENTS, (a) If an application for a special permit or special exception involves an activity regulated pursuant to sections 22a-36 to 22a-45, inclusive, the applicant shall submit an appli cation to the agency responsible for administration of the inland wetlands regulations no later than the day the application is filed for a special permit or special exception. "(b) The zoning commission or combined planning and zoning commission of any municipality shall hold a public hearing on an application or request for a special permit or special exception, as provided in section 8-2, and on an application for a special exemption under section 8-2g. The commission shall not render a decision on the application until the inland wetlands agency has submitted a report with its final decision to such commission. In making its decision the zoning commission shall give due consideration to the report of the inland wetlands agency. Notice of the time and place of such hearing shall be published in a newspaper having a substantial circulation in such municipality at least twice, at intervals of not less than two days, the first not more than fifteen days, nor less than ten days, and the last not less than two days before the date of such hearing. In addition to such notice, such zoning commission may, by regulation, provide for notice by mail to persons who are owners of land which is adjacent to the land which is the subject of the hearing. At such hearing any party may appear in person and may be represented by agent or by attorney. Such commission shall decide upon such application or request within the period of time permitted under section 8-7d. Whenever a commission grants or denies a special permit or special exception, it shall state upon its records the reason for its decision. Notice of the decision of the commission shall be published in a newspaper having a substantial circulation in the municipality and addressed by certified mail to the person who requested or applied for a special permit or special exception, by its secretary or clerk, under his signature in any written, printed, typewritten or stamped form, within fifteen days after such decision has been rendered. Such permit or exception shall become effective upon the filing of a copy thereof (1) in the office of the town, city or borough clerk, as the case may be, but, in the case of a district, in the offices of both the district clerk and the town clerk of the town in which such district is located and (2) in the land records of the town in which the affected premises are located, in accordance with the provisions of section 8-3d." Section 14.5 of the Glastonbury zoning regulations provides: "14.5 hearings. The Commission shall hold a public hearing whenever required by the Connecticut General Statutes, as amended, and may hold a public hearing on any application to it for any other matter. The Commission shall adopt appropriate and reasonable procedures for the timing, notice and conduct of such hearings, except as otherwise provided or required in the Connecticut General Statutes, as amended. "At any hearing, any party may appear in person and may be represented by an agent or by an attorney." The plaintiff Beck did admit that while Osgood's application was pending he visited his property and noticed stakes on Osgood's rear lot. Section 6.8.4 (c) of the Glastonbury zoning regulations provides that, in the absence of a waiver by the commission, construction on a rear lot shall not be located farther than 1000 feet from the town street to which access is provided. The plaintiffs had argued that the application did not meet this requirement, but they abandoned this claim at the final hearing. The plaintiffs have not pursued that argument in this appeal. General Statutes (Rev. to 1987) § 13a-55 provides: "right-of-way of PROPERTY OWNERS BOUNDING A DISCONTINUED OR ABANDONED HIGHWAY OR A HIGHWAY ANY PORTION OF WHICH IS DISCONTINUED OR ABANDONED. Property owners bounding a discontinued or abandoned highway, or a highway any portion of which has been discontinued or abandoned, shall have a right-of-way over such discontinued or abandoned highway to the nearest or most accessible highway, provided such right-of-way has not been acquired in conjunction with a limited access highway." The defendants also argue as an alternative ground for affirmance that the commission properly exercised its discretion under § 6.8.4 (e) to waive, under certain circumstances, the requirement that the applicant have "fee-ownership" of a right-of-way. On the basis of our agreement with the defendants' principal claim, we do not need to address this alternative ground. The trial court concluded that "[w]hile defendant Osgood does not own a fee interest his statutorily given right-of-way must be deemed equivalent to a fee interest, thereby satisfying [§ 6.8.4 (e) of the Glastonbury Zoning Regulations]. So voted the Commission and so agrees the court." The plaintiffs challenge the trial court's conclusion that the commission actually ruled on whether Osgood had any type of interest that would satisfy the requirement of § 6.8.4 (e) that the applicant have a fee interest in a right-of-way. The plaintiffs contend that the transcript of the hearing indicates that the commission believed it could approve Osgood's application without determining whether Osgood possessed the required right-of-way. We first note that the burden of proof in demonstrating that the commission acted improperly is borne by the plaintiffs. Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 654, 427 A.2d 1346 (1980); Horvath v. Zoning Board of Appeals, 163 Conn. 609, 316 A.2d 418 (1972). Although we note that the transcript of the hearing provides some support for the plaintiffs' position, on the basis of our review of the transcript we conclude that the commission did rule on this issue prior to granting the special permit. Osgood's right-of-way under General Statutes § 13a-55 is twenty-four feet wide, the width of the abandoned portion of Dayton Road. His proposed driveway is twenty feet wide, which satisfies the width requirement in § 6.8.4 (e) of the Glastonbury zoning regulations. Osgood's application was approved by the chief of the Glastonbury police department, who indicated that the rear lot would be accessible by emergency vehicles. See text of statute in footnote 3, supra. Because the language of the due process provisions of the federal and state constitutions is similar, and because the plaintiffs have not argued that the Connecticut constitution provides broader due process rights than the federal constitution, we will address these claims together. Connecticut Education Assn. v. Tirozzi, 210 Conn. 286, 293 n.8, 554 A.2d 1065 (1989). The trial court also held that even if the plaintiffs had been deprived of a constitutionally cognizable property interest, their claim would still fail because notice by publication was sufficient under the circumstances of this case. We do not need to address this issue because we conclude that the plaintiffs have suffered no such deprivation. We do note, however, that we have previously held that constructive notice by publication of actions that affect large numbers of property owners is constitutionally sufficient. General Dynamics Corporation v. Groton, 184 Conn. 483, 491-92, 440 A.2d 185 (1981); Edward Balf Co. v. East Granby, 152 Conn. 319, 325-26, 207 A.2d 58 (1965). Although General Statutes § 8-3c (b) provides that zoning commissions may, by regulation, choose to provide actual notice of hearings by mail to abutting landowners, the commission has not done so. A "statutorily aggrieved" party is "any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision" of a zoning board of appeals. General Statutes § 8-8 (a) (1). Such persons have the right to appeal the board's decision to the Superior Court. Id. The plaintiffs also rely on Fong v. Planning & Zoning Board of Appeals, 212 Conn. 628, 633-34, 563 A.2d 293 (1989), where we held that a successful applicant to the zoning board of appeals was an indispensable party to an appeal of the board's decision. We stated that the applicant acquired a "special interest" in the appeal when he received a favorable ruling from the board. Id., 633. Unlike the plaintiffs in the present case, however, the applicant in Fong, having initially received a favorable decision, had a legitimate claim of entitlement rather than a mere unilateral expectation of a favorable decision on appeal to the Superior Court. The plaintiffs also argued before the trial court that the construction of the driveway would decrease the value of their land and claimed that this loss constituted a constitutionally cognizable deprivation. The trial court found that the construction of the driveway would not diminish the value of the plaintiffs' property. The plaintiffs do not challenge that finding in this appeal, and therefore we do not address whether a diminution in value is a cognizable deprivation. "[Practice Book] Sec. Ill—untrue allegations or denials "Any-allegation or denial made without reasonable cause and found untrue shall subject the party pleading the same to the payment of such reason able expenses, to be taxed by the court, as may have been necessarily incurred by the other party by reason of such untrue pleading; provided that no expenses for counsel fees shall be taxed exceeding two hundred fifty dollars for any one offense. Such expenses shall be taxed against the offending party whether he prevails in the action or not." The named defendant claims that Practice Book § 111 compelled the trial court to order sanctions because it asserts that the trial court found that the plaintiffs made untrue allegations about the length of the proposed driveway without reasonable cause. Although the trial court did find that the plaintiffs' claims about the length of the driveway were incorrect, the trial court made no specific finding as to whether these allegations were made without reasonable cause. Because the named defendant never sought articulation of the basis for the trial court's denial of its motions for sanctions, the record is inadequate for review of this issue and therefore we decline to address it. See Robert S. Weiss & Co. v. Mullins, 196 Conn. 614, 622, 495 A.2d 1006 (1985).

House, C. J. The plaintiff brought this appeal from a judgment rendered on the defendant's cross complaint, dissolving, on the grounds of irretrievable breakdown, the marriage between the plaintiff, John R. Ayers, and the defendant, Shirley F. Ayers, and committing to the defendant, subject to the right of reasonable visitation in the plaintiff, the care, custody and education of the two of their children who were still minors. The plaintiff was ordered to pay the sum of thirty dollars per week toward the support of each of the two minor children and was ordered to pay the sum of fifteen dollars per week as alimony. Also, the plaintiff's interest in the family home and land on route 97 in Abington was awarded to the defendant, who was ordered to save the plaintiff harmless from further payment on a mortgage on those premises and from taxes levied by the town of Pomfret accruing after April 1, 1975. In addition, the plaintiff was directed to pay to the defendant an allowance toward her counsel fees of $750 within ninety days of the date of judgment. The trial referee, acting as the court, found the following pertinent facts: The plaintiff and the defendant intermarried on January 5, 1948, at Bel Air, Maryland. They lived together twenty-five years during which time they had eight children, two of whom were minors at the time of the hearing in 1975. At the time of the hearing, the plaintiff was forty-eight years old and the defendant forty-four years old. The plaintiff is a mason and for the years 1973-76, was a mason foreman. His gross earnings for 1973 were $19,366.30 and, for 1974, $15,585.57. He was unemployed eleven weeks in 1974 and was laid off again in 1975. He is in good health, competent, skilled, and capable of earning approximately $15,000 per year. The defendant worked as a waitress for seven years during the marriage and for four years at a yarn and carpet store to help pay off the mortgage on the family home. At the time of the hearing, she was working in a federally funded program, learning to be a licensed practical nurse; she received $74 weekly plus $5 per week for each of the two minor children living with her and $6 per week for travel to the Day Kimball Hospital where she was training. During the marriage, the parties had many violent quarrels. The plaintiff complained that the defendant was not a good disciplinarian of the eight children and that she was not a good housekeeper. The defendant objected to the very strict conduct and orders of the plaintiff toward the children. In the fall of 1972, the plaintiff met a married woman in whom he developed a romantic interest and whom he continued to see frequently. The defendant endeavored to break up this relationship and to restore the marriage but met with no success. In September, 1973, the plaintiff notified the defendant he wanted a divorce and would give her "the house, the kids, the car, and the bonds; all he wanted to retain was his savings account of about $3000 and have his freedom." The plaintiff left the family home on September 5, 1973. The plaintiff and the defendant were joint owners of the family residence on route 97 in Abington. It is an eight-room house with four bedrooms. It is an attractive house on two acres of land and there is a swimming pool installed for the pleasure of the children. It had a fair market value of $55,000 and was encumbered with a mortgage on which the balance was approximately $6400. The residence was the only home the children had ever had and the defendant continues to live there with the two minor children and a twenty-year-old daughter. The court found that the home is the best possible place for the defendant to live and care for the children. After bringing this action on February 1, 1974, for dissolution of the marriage, and before the defendant filed her cross complaint in June of 1974, the plaintiff took ont a life insurance policy for $10,000 naming his woman friend as the beneficiary. The court also found that the defendant had no offer of employment and might not have until licensed by the state after many months of training to become a practical nurse. Her earning capacity then will be much less than the plaintiff's. Despite the arguments between the parties over the children and housekeeping, it was the plaintiff who abandoned the home for another woman and sued for dissolution of the marriage. The court concluded that the defendant will need an award of moderate continuing alimony for the next few years. The plaintiff filed three assignments of error. The first is that the court refused to find one paragraph of the plaintiff's draft finding to the effect that at the time of the hearing both parties "had been seeing a member of the opposite sex socially although only the husband was seeing another woman prior to the de facto separation." He asserts that these facts were admitted or undisputed. Not only is the relevance and materiality of such a finding doubtful in view of the court's unattacked findings concerning the conduct of the plaintiff prior to the separation, but the plaintiff has failed to support his assertion that the facts were admitted or undisputed. To secure an addition to the finding the plaintiff must point to some part of the appendix, the pleadings or an exhibit properly before us which discloses that the defendant admitted the truth of the fact or that its validity was conceded to be undisputed. Baker v. Baker, 166 Conn. 476, 479, 352 A.2d 277; Stoner v. Stoner, 163 Conn. 345, 347, 307 A.2d 146. A fact is not admitted or undisputed merely because it has not been contradicted. Practice Book § 628. "It is for the trier to pass upon the credibility of witnesses and the weight to be accorded the evidence." Edgewood Construction Co. v. West Haven Redevelopment Agency, 170 Conn. 271, 272, 365 A.2d 819. The plaintiff's second assignment of error is that the court failed to rule on eight claims of law contained in his draft finding. These claims all relate to the provisions of § 46-51 of the General Statutes which sets out the factors which a court is to consider in reaching a decision with respect to the assignment of property and transfer of title to be included in a decree dissolving a marriage. The claims of law are all to the effect that the court "should consider" those criteria and that in the light of those criteria it is "an abuse of discretion" for the court to render the decree which it did. We find no merit to this assignment of error. In its finding, the court expressly stated that "[t]he plaintiff claimed that the Court, in considering this matter, was bound to follow .and consider the requirements of . . . [title] 46, General Statutes of Connecticut," that "[t]he Court assured counsel that it was familiar with . . . [title] 46, recognized that the Court was bound by its provisions and would carefully consider them," and that "[t]he Decision herein, the Judgment and the Finding above, all reflect the acceptance by the Court of plaintiff's claim." In view of the express statement of the court that it accepted the plaintiff's claims and that its decision reflected that acceptance, there is no justification whatsoever for the plaintiff's assertion that the court erred by failing to rule on those claims. The remaining assignment of error attacks several conclusions of the court on the grounds that the facts set forth in the finding do not support them. The attacked conclusions include findings that the marriage broke down irretrievably owing to the plaintiff's romantic involvement with another woman which began ten months before the separation of the parties, that the defendant is entitled to alimony, that the best interest of the minor children is served by their being in the custody of the defendant with reasonable rights of visitation in the plaintiff, that the defendant will need a moderate allowance of continuing alimony in addition to reasonable contributions toward the support of the children, that the right, title and interest of the plaintiff in the family home should be awarded to the defendant, and that the defendant is entitled to a reasonable allowance toward her counsel fees to defend the plaintiff's action. We find no merit whatsoever in these claims of error. Each of the attacked conclusions is amply supported by the unattacked findings of fact. It is obvious that the court fully considered all of the many factors which, pursuant to the provisions of § 46-51, 46-52 and 46-59 of the General Statutes, it was bound to consider in granting the dissolution of the marriage and in exercising its discretion with respect to custody, support, alimony, counsel fees, and the award of property. As we have repeated time and again, 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. Trial courts, therefore, have broad discretion in determining questions of custody and the type, duration and amount of alimony and support which is proper in each case, acting in accordance with the standards and guidelines provided in the General Statutes. Aguire v. Aguire, 171 Conn. 312, 313, 370 A.2d 948; Pasquariello v. Pasquariello, 168 Conn. 579, 584, 362 A.2d 835; Krieble v. Krieble, 168 Conn. 7, 8, 357 A.2d 475. "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, 374 A.2d 172. We find no abuse of discretion on the part of the trial court in this case. There is no error. In this opinion the other judges concurred.

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

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

Per Curiam. Two of the appellants in these cases, the Hartford Electric Light Company and the Connecticut Light and Power Company, have moved this court for expedited appeals and for other relief. Section 762 of the Practice Book states in part: "In the interest of expediting decision, or for other good cause shown, the supreme court may suspend the requirements or provisions of any of these rules in a particular case on application of a party or on its own motion and may order proceedings in accordance with its direction." The motion to expedite the appeals is granted. The following orders are therefore entered: The exhibits in the appeals shall not be printed in the record on appeal; if they have not already done so, the appellants shall designate the parts of the files to be included in that record, pursuant to § 612A of the Practice Book, by December 17,1976; by December 27, 1976, the appellees shall designate any additional parts of the files they wish to have included in the record; the appellants shall file their briefs within twenty-one days after the record is distributed; the appellees shall file their briefs within twenty-one days after the appellants' briefs are filed. When the briefs of all parties have been filed, this court will assign the appeals for hearing. These expedited appeals have been granted for two reasons. First, the cases are of great public importance, as they involve the rates properly chargeable by the utilities to their numerous customers. Second, we have clearly stated in a prior opinion that the rates to be charged by the utilities during the pendency of these appeals are a matter for the public utilities control authority (PUCA) to determine. Nevertheless, our opinions have been misinterpreted to an extent that members of the PUCA and officers of the utilities have been exposed to charges alleging contempt of court, arising from judgments that are on appeal and the validity of which have not yet been passed upon by this court. It is well established that where a trial court has found that an administrative agency has made invalid or insufficient findings, such court must remand the matter to the agency for further proceedings. Bogue v. Zoning Board of Appeals, 165 Conn. 749, 345 A.2d 9; Watson v. Howard, 138 Conn. 464, 86 A.2d 67. It is not the trial court's function to shepherd and supervise the actions of the administrative agency in implementing the remand. The purpose of judicial review of an administrative order is not to have the court decide the matter de novo, but rather to have the court determine whether the agency's order is properly arrived at and is supported by the record and the evidence. Contempt proceedings are not a proper substitute for the orderly process of appeal from that determination. The appellants have asked this court, in connection with the expedited appeal, to stay all proceedings relating to the 1974 rates in the trial courts and in the PUCA, and to order all parties to the appeals to file any motions in any way related to these proceedings only with this court. These requests are denied. It is not necessary to decide now whether this eonrt has the power to grant snch extraordinary relief. It suffices that any error in those proceedings can he cured on appeal. It would he inappropriate for this court, or any other court, in this instance, to interfere with the orderly process of appeal. Hartford v. Hartford Electric Light Co., 172 Conn. 13, 15, 372 A.2d 130.

The defendants Robert J. Sheridan and Carol A. Sheridan's petition for certification for appeal from the Appellate Court is denied.

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

Per Curiam. In this action seeking damages for injuries resulting from an attack by a dog owned by the defendant, the jury returned with an initial verdict awarding the plaintiff $35,000 as damages. Since the ad damnum of the complaint was only $25,000, the trial court did not accept the verdict. Upon receipt of the verdict the court excused the jury and conferred with counsel in chambers. The jury were recalled and the court informed the jury that the maximum permissible verdict was $25,000 and ordered the jurors to return to the jury room to "reconsider" and to "put the figure in under the ad damnum clause." The jurors deliberated for fifteen minutes and returned with a verdict for the plaintiff in the amount of $7500. The court accepted the verdict, ordered it recorded, and refused the plaintiff's request to return the jurors for a second reconsideration. Thereupon, the plaintiff moved the court to set the verdict aside on the grounds that it was contrary to the law, against the evidence and inadequate. Upon the failure of the defendant to offer an additur of $4500 ordered by the court, the verdict was set aside on June 16, 1976. Thereafter, on July 6, 1976, the plaintiff filed a motion requesting the court to reinstate the original verdict of $35,000, to reduce it to $25,000 and to render judgment thereon. The court denied the motion on July 23, 1976, and ordered a new trial. The plaintiff has appealed from the above rulings of the court. The plaintiff argues in her brief that since the original verdict was in excess of the stated ad damnum, § 247A of the Practice Book mandates the procedure which the court is to follow, namely, that the court "shall reduce the award to, and render judgment in, the amount demanded." However, as argued by the defendant, under the provisions of Practice Book § 246, the court may, if it judges that the jury have mistaken the evidence or the law, return the jury for a second or third consideration. Implicit in the rule is the right of the trial court to set aside any verdict which, in the opinion of the court, is excessive or inadequate. In our view, we need not consider the above claims in view of the fact that the plaintiff did not object to the procedure that the court ordered the jury to follow, nor did she take an exception to the court's additional instructions concerning the verdict. The purpose of the rule (Practice Book § 249) requiring that exceptions to a charge be taken "immediately after the charge is delivered" is to alert the court to any claims of error while there is still an opportunity for correction. Towhill v. Kane, 147 Conn. 191, 193, 158 A.2d 251. Alleged errors which have not been the subject of an exception in the trial court are considered to be raised for the first time on appeal and will not be considered by this court. Failure to raise the claim at trial denies the court an opportunity to correct its ruling, if erroneous, and also frequently deprives this court of the elucidation which might be provided by the trial court's explanation of its ruling. Since no exception to the charge or the procedure followed by the court was taken, the plaintiff's claims will not be reviewed. Pollack v. Gampel, 163 Conn. 462, 474, 313 A.2d 73; State v. Hawkins, 162 Conn. 514, 516-17, 294 A.2d 584, cert. denied, 409 U.S. 984, 93 S. Ct. 332, 34 L. Ed. 2d 249. There is no error.

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

Per Curiam. On a trial to a jury, the defendant was found guilty of deviate sexual intercourse in the first degree and brought the present appeal from the judgment rendered on the verdict. The sole claim pursued on the appeal is that the trial court erred in overruling the defendant's objections to several questions asked of him on cross-examination. The inquiries were addressed to the circumstances of the conduct of the defendant in appearing in front of the home of the victim of the assault two weeks after the incident which gave rise to the charges against him. The questions concerned a matter about which the defendant had testified on direct examination. It is unnecessary to discuss in detail the specific questions asked during this portion of the cross-examination and the rulings of the court, permitting some and excluding others. It suffices to note that as to the specific rulings of the court which the defendant claims were erroneous, no exceptions were taken. "An exception to the ruling must be taken in order to make it a ground of appeal." Practice Book § 226. "This court will not review rulings on evidence where no exception was taken as required by the rule." State v. Hawkins, 162 Conn. 514, 517, 294 A.2d 584, cert. denied, 409 U.S. 984, 93 S. Ct. 332, 34 L. Ed. 2d 249. As we noted in the Hawkins case (pp. 517-18), after citing some of the many cases following the rule: "During the course of a trial, objections to rulings on evidence are numerous, and often indiscriminately made and summarily disposed of. An exception, being a protest against a ruling of the court, makes clear that the party unfavorably affected by a ruling is not satisfied and does not acquiesce therein. Thus, the trial court is notified of those rulings which are relied on as grounds for appeal and is given an opportunity for second thought and possible correction at that time or at a later stage in the trial. . We, therefore? view with disfavor the failure of counsel to except properly, whether because of a mistake of law, inattention or design, and thereafter, if the outcome of the trial proves unsatisfactory, to assign such errors as grounds of appeal. 'Such methods amount to trial by ambuscade of the judge.' See State v. DeGennaro, 147 Conn. 296, 304, 160 A.2d 480, cert. denied, 364 U.S. 873, 81 S. Ct. 116, 5 L. Ed. 2d 95." There is no error.

The defendant's motion in the appeal from the Superior Court in Litchfield County that no finding of facts be made by the trial court is denied.

Wright, J. In October of 1959, the defendant Connecticut Light and Power Company converted a coal burning home furnace to gas operation for the named plaintiff Josephine Giglio (hereinafter the plaintiff) in her apartment in Waterbury. On October 7, 1967, the plaintiff's daughter, feeling cold, raised, the thermostat regulating the furnace. When the furnace did not start, she cheeked the system's "Baso Safety Switch," an indicator designed to tell whether the pilot light was on or off. If the pilot light were on, the color silver should have appeared in the window with the word "on" displayed. If the pilot light were off, the word "off" and the color red should have appeared. The indicator on the plaintiff's Baso safety switch always showed partially silver and partially red, thereby confusing the plaintiff. On numerous occasions prior to the incident in question, the plaintiff Josephine Giglio had informed Connecticut Light and Power Company employees of the condition of the indicator. On those occasions the defendant's employees told the plaintiff to check to see if the pilot light was lit. In order to check to see if the pilot light was on, the plaintiff necessarily had to open the furnace door. On this particular occasion, the plaintiff's daughter opened the furnace door and observed that the pilot light was on, but at the same time the furnace was not running and no heat was being generated. The plaintiff Josephine Giglio then checked the furnace and pilot light herself. When she opened the furnace door, there was a simultaneous "puff" or "roll-out" of flames that shot out and severely burned the plaintiff. At trial, the plaintiff's claim sounded in counts of negligence and strict liability in tort. The jury returned an identical verdict for the plaintiff Josephine Giglio on both counts. Where there are two or more counts, a general verdict will be upheld if any of the counts are valid. Franks v. Lockwood, 146 Conn. 273, 279, 150 A.2d 215; Mercier v. Naugatuck Fuel Co., 139 Conn. 521, 525, 95 A.2d 263; Bulkley v. Andrews, 39 Conn. 523, 534. Similarly, where there are two or more distinct causes of action, a general verdict will cure an erroneous charge as to one of them. Barbieri v. Pandiscio, 116 Conn. 48, 53, 163 A. 469. In view of the foregoing, we are restricting onr discussion to the second count of the substitute complaint relating to strict liability in tort. We express no opinion as to the negligence claim. The defendant has assigned numerous errors. Some of these assignments would be pertinent if the judgment on the first count relating to negligence were to be scrutinized by this court. Since we are restricting our opinion, however, to the second count relating to strict liability in tort, there remain only three main issues to be reviewed. I DO THE EVIDENCE AND THE LAW SUPPORT A PLAINTIPP's VERDICT ON THE THEORY OP STRICT TORT LIABILITY? The issue in this case is whether the defendant Connecticut Light and Power Company's failure adequately to warn the plaintiff of the possibility of a "roll-out" in the event that the furnace door were opened while the pilot light was on but with the furnace not running constituted an unreasonably dangerons condition, thereby rendering the furnace defective. We answer this issue in the affirmative. Under the doctrine of strict liability in tort we find that the jury had sufficient evidence upon which to hold the defendant liable for the damages caused by its defective product. In Garthwait v. Burgio, 153 Conn. 284, 216 A.2d 189, we accepted the principles adopted by the American Law Institute as contained in § 402A of the Restatement (Second), Torts, establishing strict liability in tort. We have reaffirmed those principles in subsequent eases. Wachtel v. Rosol, 159 Conn. 496, 271 A.2d 84; Rossignol v. Danbury School of Aeronautics, Inc., 154 Conn. 549, 227 A.2d 418. In order to recover under the doctrine of strict liability in tort the plaintiff must prove that: (1) the defendant was engaged in the business of selling the product; (2) the product was in a defective condition unreasonably dangerous to the consumer or user; (3) the defect caused the injury for which compensation was sought; (4) the defect existed at the time of the sale; and (5) the product was expected to and did reach the consumer without substantial change in condition. Restatement (Second), Torts §402A (1965); see Rossignol v. Danbury School of Aeronautics, Inc., 154 Conn. 549, 562, 227 A.2d 418. The parties did not dispute that the defendant was in the business of selling or leasing gas furnaces, nor is it disputed that the gas furnace reached the plaintiff without substantial change in condition. The focus of this case then is whether the furnace was in a defective condition unreasonably dangerous to the plaintiff. The doctrine of strict liability in tort is concerned with the character of the product injected into the stream of commerce, not with the specific conduct of the defendant. 2 Dooley, Modern Tort Law §32.35 (1977). The plaintiff must prove that the product is unreasonably dangerous. Comment i of the Restatement (Second) of Torts, §402A, defines an "unreasonably dangerous" product as one "dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics." In this regard, it is important to note that it is not necessary that the plaintiff in a strict liability tort action establish a specific defect, so long as there is evidence of some unspecified dangerous condition. See Lindsay v. McDonnell Douglas Aircraft Corporation, 460 F.2d 631, 637 (8th Cir. 1972); 2 Dooley, Modern Tort Law, op. cit., § 32.49; 63 Am. Jur. 2d, Products Liability § 15. Whether a product is unreasonably dangerous is a question of fact to be determined by the jury. As we recently stated, "[t]his includes those questions arising under § 402A, and the jury can draw their own reasonable conclusions as to the expectations of the ordinary consumer and the knowledge common in the community at large." Slepski v. Williams Ford, Inc., 170 Conn. 18, 23, 364 A.2d 175. It is well established in this jurisdiction; Tomer v. American Home Products Corporation, 170 Conn. 681, 689, 368 A.2d 35; Basko v. Sterling Drug, Inc., 416 F.2d 417 (2d Cir. 1969); as well as in a majority of other jurisdictions; see generally, 2 Dooley, Modern Tort Law, op. cit., §32.39; that "[a] product may be defective because a manufacturer or seller failed to warn of the product's unreasonably dangerous propensities." See Restatement (Second), Torts § 402A; Prokolkin v. General Motors Corporation, 170 Conn. 289, 365 A.2d 1180; Noel, "Manufacturer's Negligence of Design or Directions for Use of a Product," 71 Yale L.J. 816 (1962); Prosser, "The Fall of the Citadel," 50 Minn. L. Rev. 791, 826 (1965-66). Dean Prosser, the Restatement (Second) Reporter, states: "There is no dispute that the seller is under a duty to give adequate warning of unreasonable dangers involved in the use of which he knows, or should know. The duty extends not only to dangers arising from improper design or other negligence in manufacturing, but also to dangers inseparable from a properly made product of the particular kind." Prosser, Law of Torts (4th Ed. 1971), pp. 646-47. See Basko v. Sterling Drug, Inc., supra, 426. In other words, the failure to warn in such circumstances is, of itself, a defect. Prosser, op. cit., p. 659. In the case at hand, the facts clearly show that the defendant knew, or should have known, of the potentiality of a dangerous roll-out occurring. The evidence revealed that the manufacturer anticipated, and that the defendant was aware of, this dangerous possibility. The safety unit contained no warnings. The only wording on the unit constituted instructions, intended for a service person, and for the consumer, on how to start the pilot light in the event it went out. Moreover, these instructions were applicable only where the pilot light was out. There were no instructions or warning on what to do, or what not to do, when the pilot light was on, but the furnace was not running and no heat was being generated, as was the situation in this case. In any event, the duty to warn involves more than instructions intended for service personnel. The warning must consider the consumer's comprehension. Technical language or instructions are insufficient. Similarly, language directed to persons who could not reason ably be expected to understand the nomenclature is insufficient. West v. Broderick & Bascom Rope Co., 197 N.W.2d 202 (Iowa 1972); 2 Dooley, Modern Tort Law, op. cit., § 32.39. Warnings must specifically identify for the user the danger inherent in the product's use. Moreover, on several occasions the plaintiff notified the defendant's employees that the safety unit on the furnace did not clearly indicate whether the pilot light was on. The defendant's employees' instructions to the plaintiff to open the furnace door to see if the pilot light was on in no way resembles a warning. As stated above, the defendant knew the capabilities of the furnace to accumulate unburned fuel which could result in a dangerous roll-out. The defendant had a duty adequately to warn the plaintiff of this unreasonably dangerous condition. The failure to place an adequate warning on the furnace's safety unit, as well as the failure verbally to warn the plaintiff of the possibility of a roll-out, amount to a defect in the furnace giving rise to an unreasonably dangerous condition. Upon the evidence presented, the jury could properly conclude that the defendant was strictly liable in tort for the injuries resulting therefrom. II DID THE TRIAL COURT ERR IN ALLOWING AN AMENDMENT TO ADD ALLEGATIONS OF DEFECTS IN THE PRODUCT ? As previously stated, the accident occurred on October 2, 1967. Original counsel brought suit on September 30, 1968. On August 6, 1974, the plaintiffs filed a motion to amend their substitute complaint to allege that the defendant permitted certain defects to remain in the furnace system. The amendment was allowed by the trial court. In this appeal the defendant claims that the trial court erred in allowing such an amendment more than seven years after the accident occurred. The defendant makes no claim that the amendment resulted in a delay or surprise. The trial took place in December, 1976. In the intervening two and one-third years from the date of the amendment, the defendant conducted a number of experiments and tests on various parts of the furnace system. In view of the fact that the court has broad discretion on the allowing of amendments, we must examine the pleadings to determine whether the amendment injected a completely new cause of action. An examination of the third count of the original complaint reveals the following paragraphs: "5. Said purported safety unit was sold to plaintiff Josephine Giglio in a defective condition unreasonably dangerous to plaintiff Josephine Giglio and reach [sic] the plaintiff Josephine Giglio without substantial change in condition in which it was sold. "6. On or about October 7,1967, as a result of the continuing tortuous [sic] conduct of defendant The Connecticut Light & Power Company, gas in said furnace exploded and shot flames on the plaintiff Josephine Giglio and caused her the hereinafter stated severe burns and injuries. "7. The tortuous [sic] conduct of defendant The Connecticut Light & Power Company continued from the time of said sale of the purported safety unit until October 7, 1967 because the defendant The Connecticut Light & Power Company continu ally permitted said purported safety unit to be available for use although they knew or should have known that said purported safety unit was defective and inherently dangerous and a continuing source of unreasonable risk of injury to plaintiff Josephine Giglio and they failed to indicate and warn plaintiff Josephine Giglio by label or otherwise of the dangers she was exposed to." In Gallo v. G. Fox & Co., 148 Conn. 327, 330, 170 A.2d 724, we stated: "A cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief. Bridgeport Hydraulic Co. v. Pearson, 139 Conn. 186, 197, 91 A.2d 778; Veits v. Hartford, 134 Conn. 428, 434, 58 A.2d 389. 'A right of action at law arises from the existence of a primary right in the plaintiff, and an invasion of that right by some delict on the part of the defendant. The facts which establish the existence of that right and that delict constitute the cause of action.' Pavelka v. St. Albert Society, 82 Conn. 146, 147, 72 A. 725. . . . It is proper to amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same." As to relation back of amendments, we said in Keenan v. Yale New Haven Hospital, 167 Conn. 284, 285, 355 A.2d 253, that "[a]mendments relate back to the date of the complaint unless they allege a new cause of action." This doctrine is akin to rule 15 (c) of the Federal Rules of Civil Procedure, which provides in pertinent part: "(c) relation back oe amendments. Whenever the claim or defense asserted in the amended pleading arose ont of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading." Pursuant to this rule the court in Hockett v. American Airlines, Inc., 357 F. Sup. 1343 (N.D. Ill. 1973), found that an amendment to add a spouse to allege a claim for loss of consortium related back. That court summarized (pp. 1347-48) the law as follows: "Rule 15 (e) is based upon the concept that a party who is notified of litigation concerning a given transaction or occurrence has been given all the notice that statutes of limitation are intended to afford, 3 Moore's Federal Practice para. 15.15 [3]. The objective of state statutes of limitations, to protect persons from the necessity of defending stale claims, is served under Rule 15 (c), since the amendment will not relate back unless the original pleading has given fair notice to the adverse party that a claim is being asserted against him from some particular transaction or occurrence, Wright, Law of Federal Courts, p. 276 (2d ed. 1970)." In reviewing the pertinent law and the allegations of the original complaint, we find in the instant case that the court did not abuse its discretion in allowing the amendment specifying defects in the furnace equipment. in IS THE CLAIM OP THE PLAINTIFF JOSEPHINE GIGLIO BARRED BY THE APPROPRIATE STATUTE OF LIMITATIONS? The claim in this case is based on a continuing course of conduct. The converting of the furnace was done on October 12, 1959, bnt on several occasions after 1959, the plaintiff Josephine Giglio notified the defendant of difficulties with the furnace, and the defendant on those occasions gave the plaintiff various instructions. It was for the jury to say whether such instructions were adequate. In Handler v. Remington Arms Co., 144 Conn. 316, 321, 130 A.2d 793, we said: "When the wrong sued upon consists of a continuing course of conduct, the statute does not begin to run until that course of conduct is completed. Vilcinskas v. Sears, Roebuck & Co., 144 Conn. 170, 174, 127 A.2d 814." In that case the court held that the sale of a defective cartridge, without indicating the danger on the label, was a continuing omission of a duty to the prospective user of the cartridge. As the present suit was pending on June 4, 1976, it comes within the purview of § 52-577a of the General Statutes, which provides that no strict tort liability action for a defective product shall be brought but within three years of the date of injury, and not later than eight years from the date of sale, lease or bailment of such product. While the record indicates that the furnace was converted to a gas furnace on October 12, 1959, the record also indicates that the offending Baso switch was first installed on September 29, 1961, and the solenoid valve was first installed on March 10,1961. On subsequent dates there were repeated complaints by the plaintiff to the defendant concerning the furnace, and repeated instructions and advice given to the plaintiff by the defendant. As suit was brought on September 30, 1968, it is clear that the action was commenced within three years of the accident and within eight years of the installation of the alleged defective device. We distinguish this case from Prokolkin v. General Motors Corporation, 170 Conn. 289, 365 A.2d 1180, which held that liability for a defective product dates from the sale of the product. That case was based on § 52-577 of the General Statutes, prior to the enactment of § 52-577a. There is no error. In this opinion the other judges concurred. These instructions read: "1. Close main and pilot burner gas valves and wait at least five minutes for unburned gas to escape. 2. Turn on pilot gas only and ignite pilot gas. Press release button and hold firmly pressed in for 30 seconds. Baso will then remain in operation position and switch will close circuit." "[General Statutes] Sec. 52-577a. limitation of action based ON STRICT TORT LIABILITY FOR PRODUCTS IN DEFECTIVE CONDITION, (a) No action to recover damages for injury to the person or to real or personal property caused by any product in a defective condition shall be brought against one who manufactures, sells, leases or bails any such product but within three years from the date when the injury is first sustained, discovered or in the exercise of reasonable care should have been discovered except that no such action may be brought later than eight years from the date of sale, lease or bailment of such product. (b) In any such action the seller, lessor or bailor may implead any third party who is or may be liable to him for all or part of the plaintiff's claim, if such third party defendant is served with the third party complaint within one year from the date the cause of action brought under subsection (a) of this section is returned to court. (c) The provisions of this section shall apply to all actions pending on or brought after June 4, 1976 claiming strict liability regardless of the date of the act or omission complained of." Section 52-577a has been amended by Publie Acts 1979, No. 79-483, to provide that the now ten year limitation within which products liability claims must be brought does not apply to consumer claimants.

Arthur H. Healey, J. This appeal arose from the entry of certain orders of alimony, support and payment of joint liabilities at the time of the final dissolution of the parties' marriage. The dissolution of the marriage and the plaintiff's custody of two minor children were not contested. After a hearing on the issues of alimony and support, the trial court awarded $100 per week alimony to the plaintiff, $50 per week for the support of each of the two children, and ordered the defendant to maintain certain medical insurance policies for the benefit of the two children and to assume fully the parties' "joint" liabilities in the amount of $21,838.72. On appeal the defendant husband claims that there was insufficient evidence before the trial court to justify the entry of these orders and, thus, that the orders cannot stand. I We consider first the defendant's claims that relate to the award of alimony and support. Because the defendant indicated in his financial statement that he had no current income whatsoever, the trial court based its award of alimony and support upon two factors: (1) the probable continued receipt by the defendant of substantial amounts of money from his mother; and (2) the defendant's earning capacity. The defendant has made a substantial attack on the finding in this regard. The essence of the attack is that the court's conclusions, upon which this award is based, cannot be supported by certain findings of subordinate facts because those facts were found without evidence and in language of doubtful meaning so that their significance does not clearly appear. It is this court's duty to strike a finding where it is not supported by evidence. Providence Electric Co. v. Sutton Place, Inc., 161 Conn. 242, 245, 287 A.2d 379 (1971); Maltbie, Conn. App. Proc. § 156. Moreover, a finding that is based upon incompetent, equivocal, or speculative evidence cannot stand. Fidelity & Casualty Co. v. Constitution National Bank, 167 Conn. 478, 490, 356 A.2d 117 (1975). With these principles in mind, we examine the disputed findings of fact. The trial court found that, as of October 30,1978, the defendant had received "assets" from his mother totaling $200,000, and that the defendant's mother had "advanced him funds" for the following purposes: to purchase a house in Sharon; to purchase a house in Cornwall; to purchase a radio station ; to purchase a Midas Muffler Shop in Fairfield; to purchase a ping pong business in 1973; to incorporate a business in Delaware in 1978; to travel to Florida and to Maine; and to repair an antique stove. Each of the findings is attacked as having been found in doubtful language so that its significance does not clearly appear. In addition, each finding, except those referring to the funds "advanced" to travel to Florida and to Maine, is attacked as having been found without evidence. The court never stated in its finding whether it considered these "advances" loans or gratuities. The defendant, both in his financial affidavits and in his testimony, claimed that this money was "borrowed" from his mother at various times. The term "advanced," as used in these findings, is ambiguous and unclear. This lack of clarity is compounded by the court's use of the word "assets" to characterize the monies received. In Stanton v. Lewis, 26 Conn. 444, 449 (1857), the term "assets" was said to specify "everything which can be made available for the payment of debts." The term "advance," on the other hand, can describe money received by loan; see Black's Law Dictionary; or money given for which repayment is expected. See Webster, Third New International Dictionary. It is clear that if the term advances was meant to describe loans, the two terms are mutually exclusive, for a loan is not an assets but a liability. Unfortunately, the trial court filed no memorandum of decision to which we could look to determine the basis of its decision and to interpret its findings. See Sempey v. Lenz, 172 Conn. 207, 209, 374 A.2d 188 (1977); Griffith v. Security Ins. Co., 167 Conn. 450, 456, 356 A.2d 94 (1975), and cases there cited; Maltbie, Conn. App. Proc. § 152. We would be called upon to decide if the monies received, whether they be loans, as the defendant contends, or gratuities, as the court suggests, may form part of the basis of an award of alimony and support; see 66 A.L.R. 219, "Gratuities or Expectations as Affecting Amount of Alimony"; were it not for a further defect in the court's conclusions. The court concluded that the monies the defendant received from his mother constituted a "consistent and dependable flow of funds" upon which he could rely. A careful examination of the findings reveals that none supports this conclusion. In fact, an examination of the evidence referred to in the defendant's brief discloses that the only evidence introduced at the hearing on this point was clearly contrary to this conclusion. Therefore, the court's conclusion that the defendant could rely on a "consistent and dependable flow of funds" from his mother, was error, must be stricken, and cannot be used to support the award of alimony and support. Cutler v. MacDonald, 174 Conn. 606, 615, 392 A.2d 476 (1978). II We turn to the defendant's claim that the court's award of alimony and support cannot be justified by the court's conclusion with regard to the defendant's earning capacity. In considering the financial awards, the trial court was required to take into consideration certain relevant statutory criteria. See Ross v. Ross, 172 Conn. 269, 273, 374 A.2d 185 (1977). Section 46b-82 of the General Statutes provides that in determining alimony the court shall consider, among other things, "the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties." Section 46b-84 (b) contains a similar requirement as it relates to the award of child support. Trial courts are required to consider the statutory criteria in passing upon prayers for such awards in domestic relations matters. See Posada v. Posada, 179 Conn. 568, 572, 427 A.2d 406 (1980); Fucci v. Fucci, 179 Conn. 174, 178-81, 425 A.2d 592 (1979). We have held that it is appropriate to enter an award of alimony and child support based on demonstrated earning capacity where the actual income of the party charged with that order is not shown. See McKay v. McKay, 174 Conn. 1, 2, 381 A.2d 527 (1977). It is especially appropriate for the trial court to base its award on earning capacity rather than actual earned income where, as here, there is evidence before the court that the person to be charged has wilfully depleted his or her earnings with a view toward denying or limiting the amount of alimony to be paid to a former spouse. See Whitney v. Whitney, 171 Conn. 23, 28, 368 A.2d 96 (1976); Tobey v. Tobey, 165 Conn. 742, 749, 345 A.2d 21 (1974); Yates v. Yates, 155 Conn. 544, 548-49, 235 A.2d 656 (1967). There was evidence before the court that the defendant voluntarily gave up employment because of the institution of the dissolution action, and that, although the defendant had sufficient income to file an income tax return for 1977, he did not do so. This question then remains: When an award of alimony and support is to be based upon earning capacity, what type of evidence is required to support that award? Although it is true that there was evidence that supported a finding that the defendant earned a substantial income in the past as a commodities broker, there was no evidence, and hence no finding, of any specific amounts of such income. Under the circumstances, the award of alimony and child support can only be based on speculation and conjecture and cannot stand. This case is to be distinguished from McKay v. McKay, supra, where we affirmed the trial court's award based on earning capacity. In McKay there was evidence of the specific amount once earned by the defendant. McKay v. McKay, supra, 2. In this case there was no evi dence of the defendant's past salary as a commodities broker, or of the typical salary of a commodities broker of the defendant's ability and experience. There being no factual basis for the order of alimony and support, it cannot stand. Ill The defendant also attacks the court's order that he assume sole responsibility for the joint liabilities of the parties totaling $21,833.72, for which debts the plaintiff had co-signed as an accommodation to the defendant. The defendant listed these debts in his financial affidavit as his individual and sole liability, and the court's finding in this regard is unattacked. Moreover, the debts in question were all incurred at the insistence of the defendant. While there is no express provision in General Statutes § 46b-81 authorizing a court to order that sole liability for the debts of the parties be imposed upon one of the parties, § 46b-81 confers broad powers upon the court in the assignment of property. It provides, in part, that the court "may assign to either the husband or wife all or any part of the estate of the other." Among the factors to be considered in any order entered under § 46b-81 are the "estate, liabilities and needs of each of the parties." We have repeatedly held that the trial court, in a dissolution action, has wide discretion in the type and amount of alimony to be awarded; Pasquariello v. Pasquariello, 168 Conn. 579, 583, 362 A.2d 835 (1975); Krieble v. Krieble, 168 Conn. 7, 357 A.2d 475 (1975); Baker v. Baker, 166 Conn. 476, 488, 352 A.2d 277 (1974); and property to be transferred. LaBella v. LaBella, 134 Conn. 312, 317-18, 57 A.2d 627 (1948). "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 [1970] ; Hammerberg v. Leinert, 132 Conn. 596, 604, 46 A.2d 420 [1946]." Pasquariello v. Pasquariello, supra, 583. In Pasquariello, we also said that " [t]he judicial standards of review which have developed pertaining to awards of alimony are equally applicable to assignments of property." Pasquariello v. Pasquariello, supra, 584. In this context, the "estate" of the parties, as referred to in the statute, comprehends the aggregate of the property and liabilities of each. See Stoner v. Stoner, 163 Conn. 345, 354, 307 A.2d 146 (1972); see also Webster, Third New International Dictionary. We construe the language of § 46b-81 to authorize the trial court to enter the order it did here. In doing so, it did not abuse its discretion. There is no error in the trial court's order requiring the defendant to assume liability for the joint debts of the parties in the amount of $21,833.72. There is error in the trial court's order of alimony and child support, the judgment is set aside and the case is remanded to the trial court for a new hearing, consistent with this opinion, on those matters. In this opinion the other judges concurred. The defendant also claims that the court erred in not ruling on his claims of law set out in his draft finding. The trial court found that the defendant did not make any claims of law at the trial upon which this court is obliged to rule, citing Practice Book, 1978, § 3063. The term "advancement" has been defined as an irrevocable gift made by a parent, during his lifetime, to his child with the intention that the child's share in his parent's intestate estate is to be reduced by the amount given. See 3 Am. Jur. 2d, Advancements § 1, and cases there cited. There is no indication that the term "advanced" was used by the court so as to implicate this technical definition. General Statutes § 46b-84 (b) requires the court, in making an award of child support, to "consider the age, health, station, occupation, earning capacity, amount and sources of income, estate, vocational skills and employability of each of the parents." The defendant's financial affidavit filed at the time of the hearing involved in this appeal indicated that he had no income. We also note that the court's finding that he has personal property not listed on his affidavit is not attached. In examining the record before us, we note that an argument of plaintiff's counsel in respect to the defendant's former salary as a commodities broker was based on matters which were not testified to or otherwise before the court as evidence. We cannot consider purported facts which were presented only in argument of counsel. See Gould v. Gould, 164 Conn. 387, 389, 321 A.2d 443 (1973). We note in this regard that the plaintiff's financial affidavit discloses that she has no income, other than the temporary orders of alimony and support, that she presently uses a borrowed ear, and that she and her children reside in a house provide! by a married couple.

Satter, J. The plaintiff appeals from a judgment in favor of the defendant rendered by the trial court after accepting the report of an attorney trial referee and from an order of the trial court imposing sanctions upon the plaintiff and his counsel. The plaintiff alleged in a five count complaint that the defendant negligently repaired the transmission of the plaintiffs 1980 Audi and breached an express warranty as to the work. The case was referred to an attorney trial referee. After extensive hearings, the attorney referee found that the defendant's warranty applied only to the transmission, and that there was no credible evidence that the plaintiff's damages "arose as a result of negligent transmission repair, defective transmission parts or a breach of warranty-guarantee." Accordingly, he concluded that the plaintiff should not recover from the defendant under any of the five counts of the complaint. The plaintiff filed a motion to correct and a motion objecting to the referee's findings. He also moved to continue the hearing on the ground that the plaintiff had discovered new evidence and had been denied the opportunity to present rebuttal evidence. After consideration of the plaintiffs lengthy motions, the attorney referee, in an order and supplemental report, reached the following conclusions: As to the motion to continue the hearing, the attorney referee found that the plaintiff had failed to meet the requirements for opening a trial on the basis of néwly discovered evidence, because he had not shown (1) that he had exercised due diligence to discover the evidence, (2) that the evidence did not exist at the time of the trial, and (3) that the evidence was material to the issues and would change the outcome of the case. The attorney referee also found that at the end of the hearings the plaintiff had made no attempt to offer rebuttal evidence. As to the motions relating to his findings, the attorney referee meticulously considered all of the plaintiff's attacks upon them. He made a minor correction to include the torque converter under the defendant's warranty but otherwise found that the plaintiff's requested findings of subordinate facts were either not pertinent to the issues in the case or not supported by credible evidence. Pursuant to Practice Book § 439 and 440, the plaintiff filed with the court exceptions and objections to the attorney referee's reports. The court duly rendered judgment in which it noted: "The court having heard the parties finds that the reports of the Attorney Trial Referee should be and they are accepted." After the plaintiff filed his motions relating to the attorney referee's reports and before they were ruled upon by the court, the defendant moved for sanctions against the plaintiff on the grounds that the plaintiff had repeatedly filed pleadings in bad faith and with the intent to harass the defendant and delay entry of judgment. The court, after hearing, granted the defendant's motion and imposed sanctions as follows: "The plaintiff and his counsel are taxed all costs incurred by the defendant, including all reasonable attorney's fees for defendant's counsel, since March 21, 1986." The defendant's counsel filed an affidavit in support of attorney's fees in the amount of $1326, and the plaintiff filed a response. The record does not reveal that the court has determined the amount of its sanctions. The plaintiff asserts two main claims of error: (1) as to the judgment, the trial court erred in making factual findings and conclusions relating to the warranty and the breach thereof, and in denying the plaintiff's request to open the hearing to allow introduction of new evidence; and (2) as to the sanctions, the trial court erred in imposing a punishment on the plaintiff and his counsel for doing what the rules of practice not only permitted, but required in order to challenge the referee's report. We find no error as to the judgment, and dismiss the appeal as to the order of sanctions for lack of jurisdiction. I When the factual basis of a trial court decision is challenged, our function is to determine whether, in light of the pleadings and evidence in the whole record, these findings of fact are clearly erroneous. Bowman v. 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 256-57, 524 A.2d 610 (1987); Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). The primary factual issues of this case were which parts of the car were covered by the warranty and whether the defendant had breached that warranty. The referee found that the warranty applied only to the transmission and torque converter of the plaintiffs car; the damages alleged by the defendant were not caused by negligent repair of those parts, and that there was no breach of warranty. On the issue of opening the hearing, the referee found that the plaintiff had failed to meet the requirements for presenting newly discovered evidence. While the record reveals a conflict of evidence on these matters, the probative force of the evidence is for the trier of fact to determine. Robert Lawrence Associates, Inc. v. Del Vecchio, 178 Conn. 1, 14, 420 A.2d 1142 (1979). The referee's factual findings in favor of the defendant on both issues were not unsupported in the record or mistaken as a matter of law. Bowman v. 1477 Central Avenue Apartments, Inc., supra, 257. Because the referee's findings were not clearly erroneous, the trial court did not err in rendering judgment in accordance with the report. II The court imposed sanctions upon the plaintiff and his attorney, measured by the defendant's costs, including the defendant's reasonable attorney's fees, but the court did not fix the amount of its sanctions. Its order, therefore, is not final. Connecticut Bank & Trust Co. v. CHRO, 202 Conn. 150, 156, 520 A.2d 186 (1987). Although this issue was not raised by the parties, this court has a duty to dismiss, even on its own initiative, any appeal that it lacks jurisdiction to hear. Sasso v. Aleshin, 197 Conn. 87, 89, 495 A.2d 1066 (1985). There is no error as to the judgment of the trial court; the appeal of the court's order of sanctions is dismissed. In this opinion the other judges concurred.

Daly, J. The defendant was convicted by a jury of one count of harassment in violation of General Statutes § 53a-183. From the judgment of conviction, the defendant has appealed claiming that the trial court erred (1) in making certain evidentiary rulings, (2) in failing to issue a capias, and (3) in engaging in judicial misconduct. From the evidence adduced at trial, the jury could reasonably have found the following facts. On October 21, 1983, at about 11:40 p.m., the complainant, Richard Shattuck, answered his telephone whereupon the caller asked to speak with the complainant's daughter, Dana Shattuck. The complainant informed the caller, who gave his name and whose voice was familiar to the complainant, that none of his children was permitted to receive telephone calls after 9 p.m. The caller responded with obscenities. A second phone call was received by the complainant's wife shortly thereafter, the same evening. A third telephone call was received by the complainant on April 18, 1984. The complainant's daughter had been in the company of the defendant earlier in the evening on October 21, 1983, but had departed for home before the telephone calls were made. The defendant maintained that he did not make the phone calls and had been with two companions at a gas station during the period of time in which they occurred. This appeal followed the conviction. The defendant claimed that the trial court erred as follows: (1) in not permitting the complainant's statement to the police to be admitted as a full exhibit; (2) in permitting a defense witness to testify only under special conditions; (3) in restricting cross-examination of a detective; (4) in excluding the testimony of a deputy sheriff; (5) in denying the issuance of a capias for the complainant's daughter; (6) in sustaining the objection to questions posed to a defense witness on direct examination pertaining to that witness' impartiality; (7) in engaging in judicial misconduct involving jury instructions, certain comments made on the evidence, and a restriction placed on the defendant's closing argument; and (8) in admitting into evidence the third telephone call. The defendant sought to have the complainant's statement to the police officer admitted into evidence as an inconsistent statement because certain obscenities were omitted from the report along with the failure to mention that the complainant actually recognized the caller's voice as being that of the defendant. The trial court declined to admit the report into evidence as a full exhibit, finding that the report was not an inconsistent statement. The state's sole ground for objecting to the admission of the report, and one of the grounds upon which the court relied in sustaining the objection, was that it was not inconsistent with the testimony of the complainant. "While it is clearly proper to attack a witness' credibility by evidence of his materially inconsistent statements . . . this can only be done if the court is satisfied that the prior statements are in fact inconsistent. . In the present case, the evidence sought constituted not a statement inconsistent with testimony given on direct examination, but rather an omission, a failure to state certain facts at a prior time." State v. Reed, 174 Conn. 287, 303, 386 A.2d 243 (1978). "If a former statement fails to mention a material fact presently testified to, which it should have been natural to mention in the prior statement, the prior statement is sufficiently inconsistent." State v. Chesney, 166 Conn. 630, 636, 353 A.2d 783 (1974); Holden & Daly, Connecticut Evidence § 125 (d) (1). The omissions in the police report did not constitute an inconsistency with the trial testimony of the witness. Because the defendant had identified himself, there would be no need to state in the report that the complainant recognized the voice. Furthermore, the recital of the obscenities could be deemed repugnant and distasteful to relate in detail. Even if we assume that the complainant's statement was inconsistent with his testimony at trial, where "the witness' attention was called to his prior inconsistent statement, and where he admitted making the statement, his credibility had already been called into question and there was no need for further proof of inconsistency. The trial court is vested with liberal discretion as to how such an inquiry should be conducted . . . ." G & R Tire Distributors, Inc. v. Allstate Ins. Co., 177 Conn. 58, 61, 411 A.2d 31 (1979). We find that there was no error in excluding the report. In the corridor, immediately prior to trial, Roy Bradrick, a police detective who had interviewed certain witnesses as part of his investigation of the case, refused to speak with defense counsel. On cross-examination, the defendant attempted to pursue this alleged refusal to cooperate in order to demonstrate the bias of Bradrick as a witness. The court found that Bradrick was not biased in any way and that his refusal to speak prior to trial did not demonstrate either a lack of cooperation or prejudice to the defendant. In support of his claim that the court erred in limiting his cross-examination, the defendant relies on State v. Haskins, 188 Conn. 432, 450 A.2d 828 (1982), where the court indicated that a "mere refusal of a witness to speak to an investigator for one side of a controversy, by itself, is equivocal, but when coupled with a willingness to cooperate with the other side it is quite another matter." Id., 454. The trial court in Haskins further held: "Partiality of mind whether arising out of favoritism for one side or hostility toward the other is a proper subject of inquiry on cross-examination. . . . Such partiality may be shown not only by direct evidence but also indirectly by conduct or language. . . . But when partiality is claimed circumstantially the inference must be one that can be fairly drawn from the circumstances." Id. The circumstances of this case fail to come within the purview of Haskins nor do they permit an inference of fixed hostility or sympathy for one party or the other. We therefore conclude that the court did not err in its restriction of the cross-examination of the witness. The trial court properly refused to allow deputy sheriff Gregory Nesta to testify concerning his inability to serve process on the complainant's wife and about her reluctance to testify. The trial court can exercise a broad discretion in its rulings on the relevancy of evidence. Holden & Daly, Connecticut Evidence § 67 (c), p. 214. The complainant's wife was privy only to the second telephone call and her testimony would only have been relevant to the second count which was dismissed. The defendant claimed that the trial court erred in failing to issue a capias for the complainant's daughter, Dana, for refusing to obey a subpoena. The defendant argues that had the capias been issued, the daughter's testimony would have contributed significantly to his alibi defense, in particular that her presence at the gas station overlapped that of the defendant. This testimony, however, would have been cumulative of other testimony presented and, therefore, was not sufficiently material to require the court to issue a capias. "If one is not warranted in refusing to honor a subpoena and it is clear to the court that his absence will cause a miscarriage of justice, the court should issue a capias to compel attendance. General Statutes § 52-143 does not, however, make it mandatory for the court to issue a capias when a witness under subpoena fails to appear; issuance of a capias is in the discretion of the court . . . [which] has the authority to decline to issue a capias when the circumstances do not justify or require it. . . . Judicial discretion is always a legal discretion, exercised according to the recognized principles of equity." DiPalma v. Wiesen, 163 Conn. 293, 298, 303 A.2d 709 (1972); see State v. Burrows, 5 Conn. App. 556, 558-59, 500 A.2d 970 (1985), cert. denied, 199 Conn. 806, 508 A.2d 33 (1986). " ' "[T]he action of the trial court will not be disturbed on appeal unless it acted unreasonably and in clear abuse of its discretion. . In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action." ' " Yanow v. Teal Industries, Inc., 196 Conn. 579, 583, 494 A.2d 573 (1985). This court reviews the action of the trial court only as to whether that action cannot be supported in reason. The court did not, therefore, abuse its discretion in not issuing a capias for the complainant's daughter under the particular circumstances of this case. The defendant claims that he should have been permitted to establish the impartiality of a defense witness on direct examination in anticipation of potentially damaging impeachment evidence which might be elicited on cross-examination. The sole question asked of the witness on this subject was whether his friendship with the defendant would influence his testimony. The court sustained the state's objection to the question. The defendant obviously asked the question on direct examination, as a "trial tactic in order to anticipate potentially damaging impeachment evidence on cross-examination. 'Such tactical maneuvering is permissible within the trial court's discretion.' Tait & LaPlante, Connecticut Evidence (1985 Sup.) § 7.18, p. 74." State v. Cox, 7 Conn. App. 377, 388, 509 A.2d 36 (1986). Since the court had discretion to allow or disallow the question, there was no error. The defendant makes a variety of claims that the trial court engaged in judicial misconduct. The defendant contends that the trial court restricted his closing argument to the jury. The defendant never requested that his closing argument be recorded and, therefore, the appellate record before us, which is the appellant's responsibility to provide, is insufficient for us to undertake a proper review of the claims on appeal. Bieluch v. Bieluch, 199 Conn. 550, 552, 509 A.2d 8 (1986); Grunschlag v. Ethel Walker School, Inc., 189 Conn. 316, 320, 455 A.2d 1332 (1983). "The defendant must have realized that the closing arguments were not being recorded and must be deemed to have assented to that procedure. We have frequently refused to consider claims of improper argument where the remarks of counsel have not been transcribed and could not be reconstructed." State v. Vitale, 190 Conn. 219, 226, 460 A.2d 961 (1983). The defendant claims that the trial court made certain statements to the jury which were prejudicial to the defendant and exceeded proper standards of conduct during trial. We need not address the substance of these claims because the defendant did not object or take exception to these statements during trial. The issue is, therefore, not properly preserved for appellate review. The defendant further claims that the trial court abused its discretion by failing to inform the jury in a timely manner that the second count had been dismissed at the completion of the state's case. The defendant argues that when the second charge was dismissed, the trial court should then have informed the jury and not postponed mentioning the dismissal until the defendant's closing argument. "This issue was never presented to the trial court by either a request to charge or by an exception taken to the charge as given. Appellate review on this nonconstitutional issue is, therefore, precluded." State v. Morgan, 179 Conn. 617, 619-20, 427 A.2d 429 (1980). The defendant's next claim alleges judicial misconduct in the trial court's instruction to the jury regarding the friendship between the defense witness Richard Gordon and the defendant. It is within the trial court's discretion to make "fair comment on the evidence and particularly on the credibility of witnesses." State v. Stepney, 191 Conn. 233, 248, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984), quoting State v. Cari, 163 Conn. 174, 182, 303 A.2d 7 (1972). "[W]e have also declared that an instruction on the credibility of alibi witnesses similar to that challenged by this assignment of error is both proper and fair when weighed in the light of the other paragraphs of the charge." State v. Cari, supra. We find no error in the trial court's jury instruction on the friendship issue. The defendant further claims that the trial court abused its discretion in attributing the omissions in the complainant's statement to the officer and not to the complainant. It is within the trial court's discretion to comment on the evidence in a manner which is reasonable and fair and does not amount to a direction of verdict or a distortion of the issues. State v. Schoenbneelt, 171 Conn. 119, 124, 368 A.2d 117 (1976); see also State v. Taylor, 196 Conn. 225, 232, 492 A.2d 155 (1985). There was no indication that the court's comments were unfair or misleading. The defendant finally claims, that the court erred in admitting into evidence the third telephone call of April 18, 1984, on the ground that it demonstrated a continuing course of conduct. This claim is not reviewable because it was not properly preserved for appeal. There is no error. In this opinion the other judges concurred. The second telephone call was the basis of the second count of harassment which was dismissed by the trial court at the conclusion of the state's case. This claim of error is not reviewed because no objection was taken or exception made to the introduction of the testimony. Practice Book § 288. See footnote 2, supra.

Loiselle, J. The defendant has appealed from a judgment of the Superior Court in Fairfield County reassessing the damages sustained by the plaintiff when its property was taken by the defendant through eminent domain. The plaintiff was the owner of 7.95 acres of land fronting on Old Kings Highway South and Tokeneke Road (hereinafter route 136) in Darien. On December 27, 1974, the defendant commissioner condemned and took, for the relocation and improvement of route 136,1.28 acres of unimproved land fronting on route 136 together with certain easements and the denial of access to route 136 along that portion of the plaintiff's property east of the Goodwives River. Damages were assessed at $245,000. On December 26,1974, the day prior to the taking, the defendant filed with the planning and zoning commission of Darien construction plans for the relocation of route 136 as it affected the plaintiff's property. Except for minor refinements these became the final plans. The construction drawings show a five-foot-high chain link fence three feet within the taking line, running a length of four hundred feet, eighty of which cross the intervening property owned by another. A metal "I" beam rail is also shown, running between the plaintiff's remaining property and route 136, for a length of two hundred and ten feet. This rail overlaps the chain link fence for approximately forty feet. The chain link fence is to be installed at the top of a slope which will be created when the defendant lowers the grade of route 136 to allow him to tunnel underneath railroad tracks located on the opposite side of route 136. The grade of the road fronting on the plaintiff's remaining property will be lowered so that a portion of the new road will be one foot lower than the old road and about two feet lower than the plaintiff's remaining property. As the new road proceeds to the east, the cut will become progressively deeper and the banks of the remainder higher until the cut at one point will be almost thirteen feet below the existing grade at the center line of the new road, while the bank at the taking line will be over twenty-one feet higher than the grade at the new center line. The purpose of the proposed chain link fence is to protect persons, animals and objects from falling from the ridge which these cuts produce into the highway below and, at the same time, to protect traffic on the highway from falling objects. The metal beam guardrail is designed to protect persons and vehicles from the hazard of going off the relocated route 136 into the Goodwives River. At the time of taking, the plaintiff's property was in a designed office and research zone and had unrestricted access to both roads upon which it fronted. Plans for a dinner theater and parking area, to be located upon 2.64 acres of the property lying west of the Goodwives River, were underway. The concept of this use was approved by the planning and zoning commission and on March 25, 1975, the zone was changed to permit dinner theaters as well as office buildings. At the trial, the parties stipulated that, on the date of taking, there was a reasonable probability of a zone change. The proposed commercial use of the plaintiff's remaining property would make it a "major traffic generator" and, as such, access across the defendant's property to the relocated route 136 would be permitted only upon application to the state traffic commission, pursuant to § 14-311 of the General Statutes, and to the defendant, pursuant to § 13a-143a of the General Statutes. The plaintiff filed such an application with the state traffic commission on October 10, 1975. No action had been taken on the application at the time of trial, since the timetable for the construction of relocated route 136 had been delayed and no approval could be obtained until the construction had further progressed. The referees, acting as a court, found that "[t]he combination of the chain link fence; the metal beam rail; the lowering in the grade of the roadway; and the creation of the embankment will effectively restrict access between the highway and the frontage of the plaintiff's remaining property west of the river, except for 280 feet at the westerly end of the property on Old King's Highway." Damages were reassessed and the defendant appealed. The single issue raised by this appeal is whether the court erred in awarding substantial damages based in part upon its determination that the taking and concomitant construction would effectively restrict access between route 136 and the remaining portion of the plaintiff's property west of the river. Essentially, the defendant challenges the court's conclusion that an "effective" loss of access exists since, the defendant reasons, "the plaintiff can, and doubtless will, go on to secure approval of its application for a major traffic generator permit and state assisted access, precisely as it planned for its dinner theater tenant." The defendant raises the specter of establishing a precedent which would require him to condemn and pay damages for a denial of access to abutting owners whenever guardrails or safety fences along state highways are proposed. The defendant's argument fails to consider fully those reasons underlying the decision of the court. Both the memorandum of decision and the finding reveal that the reassessment of damages derived from consideration of numerous factors relevant to an assessment of value, including, in fact, the pending application for a driveway onto route 136. Although the finding refers to "the chain link fence" and "the metal beam rail" as factors restricting access, equal, if not greater, weight is given to "the lowering in the grade of the roadway; and the creation of the embankment." The record abundantly supports the contention that these are valid factors to consider in determining value. Indeed, the defendant's own appraiser noted that the taking would "significantly alter the quality of access available to the subject property by virtue of the cuts which render the remainder from approximately 6 feet to 21 feet above the grade of the new highway for a significant portion of the remainder frontage." A highway engineer, witness for the defendant, stated upon cross-examination that "you certainly couldn't climb that twenty-foot cut unless you had a special vehicle. A miracle vehicle." When, through eminent domain, only a portion of a tract of land is taken, "just compensation" includes "recovery for any damages visited upon the remainder which result from the taking." D'Addario v. Commissioner of Transportation, 172 Conn. 182, 184, 374 A.2d 163 (1976); 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). In such a case, the ordinary rule for measuring damages requires a determination of "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); Bowen v. Ives, supra, 236. It is, therefore, proper to consider in assessing damages all of those elements which a well-informed purchaser would view as affecting the value of the property, including the use to be made of the land taken as it might affect the value of the land remaining. Andrews v. Cox, 127 Conn. 455, 458-59, 17 A.2d 507 (1941). From the foregoing principles it is clear that the court acted properly in considering all of those factors, particularly the substantial change in grade, as protected by the fence and rail, which would serve to restrict access from the plaintiff's remaining property to the highway. There is no doubt that access is a factor affecting the value of property. The defendant's assertion that an affirmation of the court's award will lead to future holdings that a loss of access per se results from the contemplated erection of fences and guardrails along a highway is unfounded, supported neither by the court's findings nor by the full record. There is no error. In this opinion the other judges concurred.

Per Curiam. The defendant has appealed from the judgment following his conviction for failure to appear in the second degree in violation of General Statutes § 53a-173, which judgment was rendered pursuant to a conditional plea of nolo contendere entered subsequent to the denial of his motion to dismiss. The defendant was charged in an infraction complaint in December, 1982, with toll evasion in violation of General Statutes § 13a-162. After failing to answer the infraction charge and to appear at his arraignment, he subsequently was charged by information with additional counts of failure to appear in the second degree in violation of General Statutes § 53a-173 and failure to answer an infraction in violation of General Statutes § 51-164r. Following his conviction by the jury on these charges, he appealed to this court. We set aside the judgment and remanded the case for a new trial due to the state's lack of diligence in filing its brief. The Supreme Court denied certification. State v. Whitney, 196 Conn. 804, 492 A.2d 1240 (1985). After the remand, the defendant was charged with a single count of failure to appear in the second degree, to which he filed a motion to dismiss claiming a violation of his constitutional rights. After the motion to dismiss was denied, the defendant entered a conditional plea of nolo contendere and, after his judgment of conviction, filed this appeal pursuant to General Statutes § 54-94a. The defendant initially claims that General Statutes § 53a-173 was applied by the court in contravention of the constitution of Connecticut, article first, § 19, as amended by article IV of the amendments to the con stitution of Connecticut, and in contravention of the fifth and sixth amendments to the United States constitution, because the statute improperly compelled the defendant to appear at a pretrial disposition conference after the defendant entered a plea of "not guilty" and elected to be tried by a jury. It appears that the defendant also challenges the constitutionality of Practice Book§§ 687, 700 et seq. The record supplied to us on the appeal, however, is devoid of any challenge to those rules of practice which relate to pretrial disposition conferences and contains no court order requiring the defendant to appear at any pretrial conference pursuant to Practice Book § 700. The defendant has totally failed to comply with Practice Book § 3060F (c), which provides in relevant part that an appellant's brief shall contain the following: "A statement of the nature of the proceedings and of the facts of the case. The statement of facts shall be in narrative form, and shall be supported by appropriate references to the page or pages of the record or transcript upon which the party relies. ." Furthermore, it is incumbent upon an appellant to ensure that we are provided with an adequate record to review the claims of error. Practice Book § 3060D. The defendant has totally failed to secure such an appellate record, and we are not ordinarily inclined to remand a case to correct a deficiency which the appellant should have remedied. Holmes v. Holmes, 2 Conn. App. 380, 383, 478 A.2d 1046 (1984). We, therefore, have no basis on which to find error on his claim that he was deprived of his constitutional rights. There is no error. The defendant, while appearing pro se, is a member of the Connecticut bar. The record incorrectly refers to General Statutes § 13-162. General Statutes § 51-164r provides: "Any person charged with an infraction who fails to pay the fine and any additional fee imposed or send in his plea of not guilty by the answer date or to appear for any trial which may be required shall be guilty of a class C misdemeanor." General Statutes § 54-94a provides in pertinent part: "When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court's denial of defendant's . . . motion to dismiss, the defendant . . . may file an appeal . . . ." General Statutes § 53a-173 provides in pertinent part: "(a) Any person who, while charged with the commission of a misdemeanor and while out on bail or released under other procedure of law, wilfully fails to appear when legally called according to the terms of his bail bond or promise to appear, is guilty of failure to appear in the second degree." Practice Book § 687 provides in pertinent part: "The prosecuting authority and counsel for the defendant . . . may engage in discussions at any time with a view towards disposition . The prosecuting authority shall be in his office at reasonable times for the purpose of giving to counsel for the defendant . a reasonable opportunity for consultation with him." Practice Book § 700 provides in relevant part: "After conferring with the clerk, the presiding judge shall assign for disposition conferences so much of the jury trial list as he shall deem necessary for the proper conduct of the court and he shall direct the clerk to print and distribute a list of the cases so assigned to the appearing parties. ." Practice Book § 701 provides in pertinent part: "Unless an agreement has been reached in a previous plea discussion, a case will be assigned for a disposition conference . " Practice Book § 702 provides in part: "The prosecuting authority, the defense counsel, and, in cases claimed for jury trial, the defendant shall appear at the time set for the disposition conference unless excused by the court. ."

Hull, J. This negligence case arose out of a very complicated multivehicle accident which occurred on January 13,1976, on an icy area of Interstate 84 (1-84), eastbound, in New Britain. The plaintiff's decedent, Hannelore Zimny, got out of the driver's seat of her damaged car and walked around to the passenger side to help her mother get out of the car. While helping her mother, she was struck by a vehicle and received injuries which resulted in her death forty-five days later. The plaintiff administrator sued nine defendants, eight of whom, including the named defendant, settled the claims prior to or during the trial for a total of $225,000. The case proceeded against only one of the defendants, Thomas W. Hogan, Jr. (hereinafter the defendant). The jury rendered a verdict for the plaintiff in the amount of $1,074,171.90, reduced to $859,337.52 to reflect the decedent's comparative negligence of 20 percent. The defendant filed motions to set aside the verdict and for a new trial in accordance with Practice Book § 320 and 321, and a motion for order of remittitur, pursuant to General Statutes § 52-216a. The trial court denied all of these motions and the defendant filed this appeal. The defendant claims that the trial court erred in several respects: (1) in charging the jury on the rescue doctrine; (2) in admitting certain testimony of the plaintiffs accident reconstruction expert; (3) in failing to set aside the verdict and order a new trial or order a remittitur; (4) in failing to rule that General Statutes § 52-216a violates the equal protection provisions of the United States and Connecticut constitutions; and (5) in failing to set aside the verdict and render judgment for the defendant on the basis of insufficient evidence of negligence. The parties stress conflicting testimony concerning key factors in the accident. A summary of the undisputed evidence and the areas in which the parties disagree follows. On January 13, 1976, between 2 p.m. and 2:15 p.m., Hannelore Zimny was driving her car in an easterly direction on 1-84. She was travelling in the extreme left lane. Her mother, Frieda Zimny, was a passenger in the right front seat. At approximately the same time, a car operated by Hiam J. Lundy was proceeding easterly on 1-84. At a point just east of the Plainville-New Britain line, Lundy's car passed over an ice-coated bridge and went out of control, running into a snowbank on the right hand side of the highway. As Lundy backed his car out of the snowbank onto the highway, he was struck by an unidentified tractor trailer truck travelling in the right hand lane. This truck skidded out of control and came to rest blocking the right lane and a portion of the center lane of the highway. At the same time, the defendant was operating his car eastbound on 1-84, driving in the center lane. The defendant stresses the following evidence: While driving on 1-84, he felt two hard impacts on the rear of his car. The first impact was so hard that the trunk lid on his car popped up, blocking his view of the car that struck him. Approximately ten seconds later, he felt the second of the two blows. After the second blow, his car came to a complete stop on the left hand side of the highway. The Zimny car, which the defendant later learned was the car that hit him, came to rest to the rear of his car near the left side of the highway. The plaintiff stresses entirely different testimony as follows: As the plaintiff's decedent's car and the defendant's car approached the site of the Lundy collision, the defendant, whose speed exceeded the plaintiff's decedent's, started to pass. The defendant saw that the road ahead was obstructed but nevertheless elected to drive through the obstruction. As he passed the vehicle of the plaintiff's decedent, his car fishtailed and its left rear skidded and struck the plaintiff's decedent's passenger side door. That impact caused Zimny's car to rotate in a counterclockwise direction until its front hit the highway curbing. The defendant's car continued to fishtail until its rear collided with the highway retaining wall. As a result of the impact, Zimny's car came to rest in the left lane of 1-84. Certain other testimony is not in dispute. After the accident, Zimny went around the car to get her mother out because she was concerned about the possibility of leaking gasoline. At this point, two tractor trailers being operated in the right and center lanes of 1-84 came on the scene. The tractor trailer in the right lane was owned by Cooper-Jarrett, Inc., and driven by Henry Miller, Jr. As he approached the accident scene, Miller applied his brakes and jackknifed, hitting a van owned by Casson-Matava, Inc., and driven by Dominic A. Angelo. The Angelo vehicle then struck a Pontiac Firebird driven by Stephen H. Bouchner. The Cooper-Jarrett trailer then collided with another tractor trailer owned by Edart, Inc., and driven by John J. McCarthy. The Edart trailer collided with the Zimny vehicle at the moment Zimny was attempting to assist her mother. This collision pinned Zimny between her vehicle and the Edart trailer. The Edart trailer also pushed the Hogan vehicle against the side of a northerly bridge abutment. Fifteen to twenty seconds elapsed between the end of the Hogan-Zimny collision and the collision involving the tractor trailer truck and the Hogan and Zimny cars. The road surface in the area was icy and slippery. By 7:15 p.m., an eastward moving ice storm had reached the accident scene. As a result of glare ice, no tire or skid marks were left by any of the vehicles involved. I The Court's Charge to the Jury on the Rescue Doctrine This issue raises the thorny question, not previously considered by an appellate court in Connecticut, as to the application of the rescue doctrine in a comparative negligence situation. The rescue doctrine was first promulgated by Cardozo, J., in Wagner v. International R. Co., 232 N.Y. 176, 133 N.E. 437 (1921), in which the court stated: "Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognizes them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the imperilled victim; it is a wrong also to his rescuer. The state that leaves an opening in a bridge is liable to the child that falls into the stream, but liable also to the parent who plunges to its aid . The railroad company whose train approaches without signal is a wrongdoer toward the traveller surprised between the rails, but a wrongdoer also to the bystander who drags him from the path . The risk of rescue, if only it be not wanton, is born of the occasion. The emergency begets the man. The wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had . . . ." (Citations omitted.) Id., 180. The Supreme Court established the doctrine in Connecticut in the landmark case of Cote v. Palmer, 127 Conn. 321, 16 A.2d 595 (1940). The plaintiff's decedent, the mother of an eight year old daughter, was killed by the engine of the defendant's train. Her death was a result of her running towards the track in an attempt to move away the daughter who was too close to the track. The court concluded that the jury could have found the defendant negligent. It then went on to consider the question of the mother's contributory negligence. "The question as to contributory negligence on the part of the decedent requires consideration of the so-called 'rescue doctrine,' for only under that doctrine could she be held free from such negligence. It is succinctly stated in the Restatement as follows: 'It is not contributory negligence for a plaintiff to expose himself to danger in a reasonable effort to save a third per son or the land or chattels of himself or a third person from harm.' 2 [Restatement] Torts § 472. In general support of this principle, the following cases, out of many, may be cited: Eckert v. Long Island R. Co., 43 N.Y. 502 [1871]; Wagner v. International Ry. Co., [supra, 180]; Dixon v. New York, N.H. & H. R. Co., 207 Mass. 126, 129, 92 N.E. 1030 [1910]; Perpich v. Leetonia Mining Co., 118 Minn. 508, 512, 137 N.W. 12 [1912]; Bond v. Baltimore & Ohio R. Co., 82 W. Va. 557, 560, 96 S.E. 932 [1918]; see also 3 Elliott, Railroads (3d Ed.) § 1814; note 19 A.L.R. 4. The statement quoted contains in itself a limitation, for it only applies where the effort to save is 'reasonable' and it suggests a question as to the elements involved in determining what effort is to be deemed reasonable. The answer to that, so far as it admits of an answer, is that the same standard generally used in testing whether or not an act is negligent is to be applied; that is, the conduct of an ordinarily prudent person in the same circumstances as the plaintiff. 'The question in such a case is not what a careful person would do, under ordinary circumstances, but what would he be likely to do . . . in the presence of such existing peril.' Pittsburg, C., C. & St. Louis Ry. Co. v. Lynch, 69 Ohio St. 123, 131, 68 N.E. 703 [1903]. Among these circumstances, as the Restatement points out, are undoubtedly the seriousness and imminence of danger, both to the person threatened and the rescuer, and the likelihood or unlikelihood that harm to the former can be averted. Beyond that, an outstanding factor is the instinctive reaction of human nature to the need of one in danger, and where he stands in a close relationship of blood or affection to the rescuer, as in a case like this, a young child to her mother, the reactions naturally incident in such a case. . . . "The mere presence of danger and desire to save person or property from injury or destruction will not alone suffice. To venture life where there is no possibility of saving or where the danger is not great or the possibility of loss serious, may go beyond the limit of that which is legally permissible. . . . It . . . accords with the analogies of the law to apply the usual standard of conduct, that is, the conduct of an ordinarily prudent person under the same circumstances. The standard is the same upon which contributory negligence is always to be determined, but in a case like the one before us, it necessarily involves such circumstances as those which have been mentioned. Requiring as it does in a situation where a mother loses her life in an effort to save her child from serious injury or death, an understanding of the ultimate springs of human conduct, there is a peculiar value in submitting the issue to the judgment of the twelve men or women of the jury, schooled, as they have been, by their various experiences in life. It must be a rare and clear case where a court could override their conclusion. "In the situation before us we have, in the protective instinct of motherhood, one of the strongest incentives to the risk of life; the jury might reasonably conclude that there was imminent danger of death or serious bodily injury to the child and an instinctive reaction to that danger on the part of the mother; and, had the child actually come upon the track in the face of the approaching train, the mother would have barely failed to reach her before it would have been too late. That her sacrifice did not avail to stop the child before she reached the track, cannot be determined from this record; but even if that sacrifice in the ultimate proved unnecessary, that could not affect the decedent's rights, for they were to be determined upon the facts as she might reasonably have believed them to be. Thoresen v. St Paul & Tacoma Lumber Co., 73 Wash. 99, 103, 131 Pac. 645, 132 Pac. 860 [1913]; Corbin v. Philadelphia, 195 Pa. St. 461, 469, 45 Atl. 1070 [1900]. It is true that there must have been a moment when a calm observer would have seen that she could not reach the child in time to protect her and that unless she immediately stopped she would be struck by the train, but her conduct is to be judged, not in the light of cold reason, but in view of the aroused emotions which would animate a mother situated as was the decedent, and of the lack of opportunity for deliberation and the exercise of a cool judgment. . . . We cannot hold that, as matter of law, the decedent's conduct was not that of a reasonably prudent person in like circumstances, using those words in the sense we have stated . . . ." (Citations omitted.) Cote v. Palmer, supra, 326-30; accord Cummings v. General Motors Corporation, 146 Conn. 443, 451-52, 151 A.2d 884 (1959). The Cote statement of the underlying principles of the rescue doctrine is well established law. A recent case formulated the rule as follows: " Where a defendant's negligent act, of commission or omission, has created a condition or situation which involved urgent and imminent peril and danger, to life or property, of himself or of others, those acts of negligence are also negligence in relationship to all others who, in the exercise of ordinary care for their own safety under the circumstances, short of rashness and recklessness, may attempt, successfully or otherwise, to rescue such endangered life or property, by any means reasonably appropriate to the purpose. . . .' " Turpel v. Sayles, 692 P.2d 1290, 1291 (Nev. 1985). In the case before us, the court explained in its charge the doctrines of contributory negligence and comparative negligence and their application to the facts of the case. The defendant properly excepted to the charge on the grounds that "[t]he rescue doctrine, in our judgment, is not applicable in this case since the rescuer may be guilty of contributory negligence when he himself has brought about or helped to bring about the danger, and it is our position that Hannelore Zimny either brought about or helped to bring about the danger from which she attempted to extricate her mother." The defendant agrees that, as far as it went, the court's charge on the rescue doctrine was correct. He argues, however, that the court erred in not charging the jury that the rescue doctrine cannot be invoked by a rescuer who has contributed to placing the victim in a position of peril. It is beyond question that this limitation on the doctrine is universally accepted in cases where a plaintiff's contributory negligence acts as a complete bar to recovery. Sulphur Springs Valley Electric Cooperative, Inc. v. Verdugo, 14 Ariz. App. 141, 144, 481 P.2d 511 (1971); Klang v. Shell Oil Co., 17 Cal. App. 3d 933, 938-40, 95 Cal. Rptr. 265 (1971); Air-line Railway Co. v. Leach, 91 Ga. 419, 422, 17 S.E. 619 (1893); Tarnowski v. Fite, 335 Mich. 267, 269-70, 55 N.W.2d 824 (1952); Padilla v. Hooks International, Inc., 99 N.M. 121, 123-24, 654 P.2d 574 (N.M. App. 1982); 2 Restatement (Second), Torts § 472, comment a; annot., 158 A.L.R. 189; 57 Am. Jur. 2d, Negligence § 423. The defendant notes that no case has been found to the contrary, nor have we found any. All of this universal authority, however, involved cases in which the claimant rescuer's contributory negligence was an absolute bar to recovery. In such cases, not only are there policy reasons to prohibit the at-fault rescuer's recovery, but, and this must be stressed, there would be no occasion to consider the rescuer's post-accident negligence since the rescuer would be barred completely by contributory negligence. Thus, the defendant's claim boils down simply to the question whether the unchallenged rule that a contributor to the peril cannot invoke the rescue doctrine survives intact under Connecticut's comparative negligence law or whether that rule is enveloped within, and in a different form becomes a part of, the doctrine of comparative negligence. Appellate courts in jurisdictions which have adopted a comparative negligence rule have applied the rescue doctrine in cases where the circumstances warrant it. In Cords v. Anderson, 80 Wis. 2d 525, 548, 259 N.W. 2d 672 (1977), two would-be rescuers were injured attempting to rescue a companion who had fallen into a gorge. In analyzing the effect of comparative negligence on the rescue doctrine the court stated: "We hold that a rescuer is not negligent where the rescue, although dangerous, is not unreasonable or unreasonably carried out. In a comparative negligence jurisdiction such as Wisconsin, if the trier of fact finds that the rescue is unreasonable or unreasonably carried out the fact finder should then make a comparison of negligence between the rescuer and the one whose negligence created the situation to which the rescue was a response." In Ryder Truck Rental, Inc. v. Korte, 357 So. 2d 228, 230 (Fla. App. 1978), which involved a police officer injured when he sought to aid the victim of an automobile accident, the Florida Court of Appeals analyzed the question of what effect, if any, the adoption of comparative negligence had upon the rescue doctrine. It concluded as follows: "Now that Florida has abolished contributory negligence [as an absolute defense], the rescue doctrine is no longer needed to allow a rescuer to recover in spite of his contributory negligence, but there is no logical reason why the principles of comparative negligence should not apply in a rescue case. We therefore hold that when the plaintiff in performing a rescue is himself negligent, he should recover only that portion of the entire damages sustained by him as the defendant's negligence bears to the combined negligence of both the plaintiff and the defendant." In Sweetman v. State Highway Department, 137 Mich. App. 14, 357 N.W. 2d 783 (1984), the plaintiff attempted to aid a motorist allegedly injured as the result of the negligent maintenance and design of a highway overpass. The Michigan Court of Appeals closely followed the analysis of Ryder. In so doing, the court extensively discussed the effects of the adoption of a comparative negligence standard on the policy behind the rescue doctrine: "When contributory negligence was the prevailing rule the rescue doctrine served a dual purpose: (1) it helped establish a causal connection between the defendant's negligence and the plaintiff's injury, and (2) it served to eliminate the absolute defense of contributory negligence. Ryder Truck Rental, Inc. v. Korte, [supra]. The doctrine helps to establish proximate cause by providing that where a defendant has created a situation of peril for another the defendant is held to have caused the peril not only to the victim but also to his rescuer. . . . This aspect of the rescue doctrine is wholly viable even in the wake of judicial abrogation of the contributory negligence defense. However, since allocation of negligence to the plaintiff under a system of comparative negligence is not a bar to the plaintiffs recovery, the second attribute of the rescue doctrine is no longer compelling. Stated alternatively, we perceive no harsh result from the application of comparative negligence principles to rescue cases." Sweetman v. State Highway Department, supra, 26. We agree with the logic of these cases and accordingly hold that the first aspect of the rescue doctrine, that it is not negligence for a plaintiff to make a reasonable attempt to save an individual from peril, survives the adoption of a comparative negligence doctrine. Where, however, the attempt is unreasonable, we find that a result different from that obtained under a contributory negligence standard should apply. The rescuer should not be absolutely barred from recovering but, rather, the amount of his recovery should be reduced by the degree to which he is comparatively negligent. The defendant admits that there was no evidence in any of these cases that the plaintiffs had contributed to creating the perilous situation which gave rise to their rescue attempts. Therefore, these cases do not reach the narrow issue we consider. He claims, however, that Padilla v. Hooks International, Inc., supra, 123-24, did involve this issue. He notes correctly that in Padilla the defendants claimed that the plaintiff would-be rescuer had negligently contributed to placing the victim in peril on a backhoe he was repairing. He quotes the majority opinion to the effect that "[tjhere are two ways in which a plaintiff's own negligence can become a fact question in rescue doctrine cases. First, the plaintiff may have been negligent by helping to create the very situation which later 'invited' his rescue. "The rule which relieves from contributory negligence one who voluntarily exposes himself to danger in order to rescue another person from peril does not apply where the rescuer is himself solely or in part responsible for the peril which confronts the one whom he attempts to save. If the third person's peril is due in part to the plaintiff's own negligence, such negligence is a contributing factor in producing any harm which he sustains in his rescue attempt." Id., 123. The Padilla court thus stated the rule applicable before the advent of comparative negligence. It made no analysis, however, of the effect of comparative negligence on the rescue doctrine. That general issue was clearly enunciated by Sutin, J., concurring, who stated that the "rescue doctrine" takes on a different form when applied to the rule of comparative negligence. Id., 580. We do not agree with Padilla's facile acceptance of the old rule. The rescue doctrine no longer serves the purpose of eliminating the absolute defense of contributory negligence in comparative negligence situations. Thus, the bar to its use where the rescuer contributed to the peril no longer makes sense. The purpose of this corollary rule is not applicable to a comparative negligence case and should not be gratuitously extended to that field. Accordingly, we reject the defendant's invitation to follow Padilla. To do so would be to distort and dilute the socially ameliorative doctrine of comparative negligence. We choose instead to follow the clear path set forth in Sweetman v. State Highway Depart ment, supra, that the rescuer's negligence in contributing to the peril is to be considered along with all of the other negligence of the rescuer and the defendant. We hold that the rescue doctrine applies under Connecticut's comparative negligence statute. This is so whether or not the plaintiff-rescuer contributed to the victim's peril. When the plaintiff in seeking to effect a rescue is himself negligent, he should recover only that portion of the entire damages sustained by him as the defendant's negligence bears to the combined negligence of both the plaintiff and the defendant. The defendant does not otherwise challenge the court's charge on the totality of the decedent's contributory negligence, proximate causation and comparative negligence. Accordingly, the court did not err in its charge on the rescue doctrine. II The Court's Allowing the Plaintiff's Accident Reconstruction Expert Robert Cromwell to Testify The defendant claims error in three regards concerning the admission of the testimony of Robert Cromwell, the plaintiff's accident reconstruction expert: (1) in allowing him to testify in violation of a court order entered four years earlier in the case, which order precluded the use of this expert if the discovery schedule set by the court was not followed; (2) in allowing him to testify when such testimony was based upon an insufficient factual foundation which rendered his conclusions speculative and served to confuse and mislead the jury; and (3) in allowing him to testify beyond the scope of the preliminary report admitted into evidence. A brief background of certain rulings in the case is necessary to understand the issues. On June 4, 1979, the trial court, Satter, J., ordered pursuant to the stipulation of the parties that "[t]he plaintiffs Frank Zimny and Frieda Zimny will provide to the defendants copies of the reports of any liability experts, including Mr. Cromwell, on or before July 2, 1979. These plaintiffs further agree that no expert will testify as to any matter not specifically reflected in the expert's report." The court also ordered that "it is further understood that any deviation from [the order] for a justifiable reason must be — will be permitted only on the order of this court." On June 30, 1979, the plaintiff produced a three page document prepared by Robert M. Cromwell, which Cromwell called a preliminary report. On August 30,1984, the court, Aspell, J., ruled that Cromwell could not testify because he had filed only a preliminary report which was not followed up by a final report as required by Judge Satter's June 4,1979 order. The trial court concluded that such testimony would be a "complete surprise" to the defendants as to the substance of his opinion of the cause of the accident. The court also based its ruling on the case of Going v. Pagani, 172 Conn. 29, 372 A.2d 516 (1976), since Cromwell did not begin his investigation of the case until ten months after the accident and did not see the exact conditions or vehicles involved. The court also concluded that the report was conjectural, speculative and lacked probative value. Finally, the court found that Cromwell's testimony would tend to confuse and mislead the jury since the most useful evidence would be the report of the state trooper who investigated the accident. On August 31, 1984, the jury was informed of this exclusion of Cromwell's testimony. The next day the court denied the plaintiff's motion that Cromwell's deposition be taken during the trial with respect to his accident reconstruction report. The court also ruled for a second time that Cromwell could not testify. When court reconvened on September 5,1984, the trial court reversed its ruling stating "I just want to tell you that over the weekend I have carefully reconsidered the cases that affected my ruling with respect to the testimony of Cromwell and after much deliberation I have come to the conclusion that I will allow Cromwell to testify to the extent of the information that he gave in the interrogatories." (Emphasis added.) The defendant excepted to the changed ruling as follows: (1) on the basis of earlier arguments which had resulted in the exclusion of the testimony; (2) on the basis of the court's reversal of its earlier decision; and (3) on the basis of Going v. Pagani, supra. A CLAIMED VIOLATION OF DISCOVERY ORDER The expert's "preliminary report" was submitted within the time required in the discovery order. We have examined with care the three page preliminary report. We conclude that the report is a detailed analysis of the dynamics of the accident, directly faulting Hogan as follows: "[T]he plaintiff, Hannelore Zimny, was operating her 1976 Ford in an easterly direction in the left-hand lane when Thomas W. Hogan, Jr., moved his 1966 Oldsmobile left directly into her path causing contact to be made between the right front of the Zimny vehicle and the left rear of the Hogan vehicle." The report itself concluded by saying: "Based on the damage sustained by vehicles as a result of the various accidents as shown on [p]olice photographs, a reasonable determination of the dynamic motion of the vehicles following impact has been determined, however the reconstruction process must necessarily include all available information and it is the writer's understanding that witness depositions are presently in process and prior to rendering a final opinion with regard to the reconstruction of this accident, information obtained from the deposition will be necessary to more accurately place the vehicles in their proper relationships prior to impact. A final report will be issued after all available information is received. . . . Following the availability of witness depositions presently in process, I will complete the reconstruction study and submit my final report." The defendant claims that Cromwell was awaiting all of the information from the deponents in order to place the vehicles in their proper relationships prior to the impact, and not just for the vehicle identification numbers as he claimed at trial. He contends that Cromwell's "final" opinion as to the pre-impact position of the cars was not available until the time of trial, and asserts therefore, that Cromwell's conclusions were a complete surprise and his testimony unfair as a result. According to the defendant, what occurred here is the kind of "cat and mouse game" which we specifically discountenanced in Sturdivant v. Yale-New Haven Hospital, 2 Conn. App. 103, 106, 476 A.2d 1074 (3984). In Sturdivant, the plaintiff in a medical malpractice case disclosed the name and subject of the testimony of her medical expert during the jury selection process after initially stating in answers to interrogatories that she would use no expert. In supplemental answers to interrogatories she stated that her expert would tes tify as to the "standard of care and departure from the standard of care." The trial court excluded all testimony as to causation because it was beyond the scope of the disclosed subject matter of the expert's testimony. The plaintiff appealed. This court rejected the plaintiff's claim that the expert was not "formally" retained until after the trial, holding that that was a "tactical subterfuge," and upheld the court's discretionary exclusion of the proffered testimony on the basis of Practice Book § 231. We conclude that the situation in this case is a far cry from that in Sturdivant. There, although the plaintiff admitted that she had consulted with the expert "informally" a few years before the trial, the very existence of the expert and the proposed subject matter of his testimony were completely unknown to the defendant. Sturdivant was a classic case of surprise and trial by ambush. Here, the defendant knew the identity of the expert and the nature of his testimony. The defendant had a detailed report in his hands and a similar response to the interrogatories. Both documents placed fault clearly on Hogan. The defendant also claims that the trial court, in allowing Cromwell to testify "to the extent of the information that he gave in the interrogatories," violated Judge Satter's order that no expert testimony be allowed "as to any matter not specifically reflected in the expert's report" and that "any deviation from the order will be permitted only on the order of the court." We conclude that the trial court's order did not violate Judge Satter's order. The trial court's order was specifically limited to the material contained in the preliminary report. Nor has the defendant shown how the testimony deviated from the preliminary report except in very minor ways discussed below. We find that the defendant's claim of complete surprise is more apparent than real. The trial court's order was the type contemplated in Judge Satter's original order. Even if we were to deem the trial court's order a deviation from Judge Satter's order, our Supreme Court has stated: "[Although a judge should not lightly depart from a prior ruling on a motion before the same or a different judge, the prior ruling is not binding." Barnes v. Schlein, 192 Conn. 732, 734, 473 A.2d 1221 (1984). A trial court's decision on whether to impose the sanction of excluding an expert's testimony concerning causation rests within its sound discretion. See Filisko v. Bridgeport Hydraulic Co., 176 Conn. 33, 40, 404 A.2d 889 (1978); see also Pavlinko v. Yale-New Haven Hospital, 192 Conn. 138, 144, 470 A.2d 246 (1984) (discussion of sanctions pursuant to Practice Book § 231). " '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 [1926] Ardoline v. Keegan, 140 Conn. 552, 555, 102 A.2d 352 [1954].' Camp v. Booth, 160 Conn. 10, 13, 273 A.2d 714 [1970]. 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 [1959]." DiPalma v. Wiesen, 163 Conn. 293, 298-99, 303 A.2d 709 (1972). The trial court could reasonably have concluded as it did concerning its threshold decision to permit Cromwell to testify. B CLAIM OF INSUFFICIENT FACTUAL FOUNDATION The defendant claims that the case of Going v. Pagani, supra, requires the exclusion of Cromwell's testimony. In Going, our Supreme Court upheld the trial court's exclusion of Cromwell's expert testimony, stating that "this opinion was not permitted since the court found [that] it was based on such conjecture and factual uncertainty as to lack any substantial probative value for the jury." Id., 33. In reaching this decision the Supreme Court noted (1) that Cromwell did not examine the accident scene until three years and two months after the accident, (2) that the road had been resurfaced in the interim, (3) that the jury had already heard testimony as to the point of impact from the operators of the vehicles involved and from police officers who arrived at the scene shortly after the accident and had observed the location of the vehicles and the debris on the roadway, and (4) that Cromwell's reconstruction of the accident, and his opinion about the crucial point of impact, were based on calculations made from photographs, the changed accident site, and the moved automobile. We have carefully considered the defendant's arguments attempting to show the lack of a factual foundation for Cromwell's opinion in this case. Notwithstanding the defendant's assertions to the contrary, we do not consider Going to state an ironclad rule determinative of every case. Rather, we interpret Going as an example of our Supreme Court's upholding the trial court's ruling concerning the adequacy of the factual foundation of an expert's testimony. There are several significant reasons why we distinguish Going from the present situation. In the present case, Cromwell surveyed the scene only one and a half years after the accident. The highway had not been changed as it had been in Going. His testimony was not offered, as it was in Going, to establish the exact point of impact, but to reconstruct the sequence and pattern of the accident. Additionally, in this case Cromwell based his conclusion on several factors: the police report and measurements contained in it of the vehicles in at-rest positions after the accident; photographs of the accident scene and the damage done to the vehicles; state highway department maps; the size, weights and centers of gravity of the vehicles involved; his expert estimate of the low coefficient of friction of the icy road surface; his expert knowledge of the ways in which vehicles tend to move when they collide on an icy surface; and his own physical survey of the accident scene. Finally, the crucial facet of Cromwell's testimony concerned his conclusion that Hogan's vehicle fishtailed into Zimny's vehicle as Hogan passed Zimny. That conclusion is based on evidence from photographs and the location of the vehicles after the accident. The defendant is correct in arguing that the factual foundation of Cromwell's opinion was weakened as to portions of his testimony which were at variance with actual witnesses. The key portion of his testimony, however, concerned the collision between the Hogan and Zimny vehicles. That testimony was consistent with that of state trooper Gaylord. Finally, Cromwell's reconstruction of this accident did not rest upon an exact mathematical place of the point of impact on the highway. The defendant asserts that the trial court erred by admitting five overlay maps concerning the accident. In support on this claim, he contends that each lacked mathematical precision. Cromwell, however, repeated that each overlay was intended only to give approxi mate locations of the vehicles involved. We find that the defendant's attack on the factual foundation of Cromwell's opinion goes to the weight rather than to the admissibility of Cromwell's opinion evidence. "Whether a witness is qualified to testify as an expert with respect to a certain matter is a decision to be made by the trial court. Oborski v. New Haven Gas Co., 151 Conn. 274, 280, 197 A.2d 73 (1964). That decision will not be disturbed on appeal unless there has been an abuse of discretion or there was a clear error involving a misconception of the law. State v. Cosgrove, 181 Conn. 562, 588, 436 A.2d 33 (1980); Siladi v. McNamara, 164 Conn. 510, 513, 325 A.2d 277 (1973). It is rare for this court to find that a trial court has erred in a ruling permitting expert testimony. Wray v. Fairfield Amusement Co., 126 Conn. 221, 224, 10 A.2d 600 (1940). Once the trial court has determined that the witness has reasonable qualifications to testify as an expert on the question presented, the objection goes to the weight rather than the admissibility of the testimony. State v. Wallace, 181 Conn. 237, 241, 435 A.2d 20 (1980); Osborski v. New Haven Gas Co., supra." McKiernan v. Caldor, Inc., 183 Conn. 164, 167-68, 438 A.2d 865 (1981). " 'The facts upon which an expert's opinion is based are an important consideration in determining the admissibility of his opinion.' Going v. Pagani, supra, 34. 'The question of whether a sufficient foundation was laid is a factual question for the court.' Spoto v. Hayward Mfg. Co., 2 Conn. App. 663, 670, 482 A.2d 91 (1984)." Liskiewicz v. LeBlanc, 5 Conn. App. 136, 141, 497 A.2d 86 (1985). "Expert opinion testimony as to the point of impact in a motor vehicle accident is proper provided the witness has been qualified and an adequate foundation for his testimony has been laid. . . . The trial judge has a broad discretion to determine the qualifications of an expert. . . . '[I]f any reasonable qualification can be established, the objection goes to the weight rather than to the admissibility of the evidence.' Wray v. Fairfield Amusement Co., 126 Conn. 221, 224, 10 A.2d 600 [1940]. 'Some facts must be shown as the foundation of . an [expert's] opinion, but there is no rule of law declaring the precise facts which must be proved before such an opinion may be received in evidence. It is largely a matter of judicial discretion whether a witness has been shown to have sufficient experience and opportunity of observation to render his opinion of value.' " (Citations omitted.) Waldron v. Raccio, 166 Conn. 608, 613-14, 353 A.2d 770 (1974). We conclude that the trial court did not abuse its wide discretion in admitting Cromwell's opinion testimony. C CLAIM OF ERROR IN ALLOWING CROMWELL TO TESTIFY BEYOND THE SCOPE OF THE PRELIMINARY REPORT ADMITTED INTO EVIDENCE The defendant claimed in his motions to set aside the verdict, as well as in objections overruled and properly excepted to at trial, that the trial court erred in allowing Cromwell to testify beyond the scope of the preliminary report. The defendant claims two general errors in this regard: (1) in admitting testimony as to the length of the Angelo vehicle and its placement on a particular map overlay; and (2) in admitting testimony as to the dynamics of the collision between the vehicles operated by the defendant and Hannelore Zimny. The first of these two claims is based on the fact that Cromwell testified at trial that the Angelo vehicle was a maxivan rather than a van, a factor that was not included in the preliminary report. We conclude that was not a significant enough extension of Cromwell's testimony to merit our attention. Concerning the second issue, the defendant claims that Cromwell testified to several other factors which were never mentioned in his preliminary report; the coefficient of friction; the national crash computer program; the specification for vehicles contained in the NADA handbook; the positioning of vehicles based on the center of gravity of each vehicle; and the various types of damage to each vehicle. The defendant points out that Cromwell's preliminary report does not even mention these elements which formed the basis for a substantial portion of his testimony. We do not find that this testimony amounted to a significant extension of the preliminary reports. The trial court's statement at trial that the evidence was merely "an elaboration of what's contained in his report," and that the objection went to the weight, rather than the admissibility, of Cromwell's testimony is well taken. We find no error in this ruling. Ill Error in Failing to Set Aside the Verdict and Order a New Trial or a Remittitur The defendant claims that the verdict was excessive as a matter of law and that the trial court therefore erred in refusing to set aside the verdict and order a new trial or a remittitur. The defendant briefed only the trial court's denial of his motions for a remittitur. We therefore conclude that the claim of error as to denial of his motion for a new trial on the grounds of excessiveness of the verdict was abandoned. See State v. Samaha, 180 Conn. 565, 565 n.1, 430 A.2d 1290 (1980). The trial court articulated its denial of the defendant's motions for remittitur by stating that, in denying them, the court considered the $225,000 paid to the plaintiff as a result of the precedent settlement payments. Thus we must decide whether the court' erred in concluding as a matter of law that the total sum of $1,074,171.90 plus $225,000, or $1,299,171.90, was excessive. The plaintiffs claim includes, of course, damages for Zimny's injuries and suffering before she died and for her ultimate death from those injuries. Zimny was nineteen years and ten months old at the time of the accident. She was admitted to the John Dempsey Hospital, after the accident, suffering a crush injury to her chest, including multiple rib fractures and a crushed right lung; a broken neck injury akin to a hanging type injury; and a lacerated liver with extensive bleeding into the abdominal cavity. Because of damage to her lungs, and the fact that her neck injury caused the upper part of her larynx to be ripped loose of the floor of her mouth, she could not breathe voluntarily. She was conscious and suffered severe pain which was described throughout her hospitalization as dramatically painful. She underwent many operations and surgical procedures including a laparotomy, multiple operations of her larynx, the drilling of holes in her head to install Crutchfield tongs, abdominal operations, a bronchoscopy, and the removal of her entire right lung. She was in an iron lung during her entire hospitalization and was drugged to maintain complete paralysis. On February 24, 1976, forty-five days after the accident, she bled to death as a result of her injuries. Zimny was a student at Eastern Connecticut State College. She was a happy young woman who wished to become an elementary school teacher. She was an excellent student and an achiever. There was expert testimony that based upon a fifty-nine year life expectancy, the net economic loss to her estate was $624,118. The special damages totaled $71,459.36. The law on this subject has recently been summarized by this court in 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), wherein we stated: "A court should be especially hesitant to set aside a jury's award of damages. This is particularly true in a wrongful death case where '[i]t serves no useful purpose to compare a verdict in one . . . case with those in others. No one life is like any other, and the damages for the destruction of one furnish no fixed standard for others.' Fairbanks v. State, 143 Conn. 653, 661, 124 A.2d 893 (1956). 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 for wrongful death is a task peculiarly within the expertise of a jury. Kiniry v. Danbury Hospital, 183 Conn. 448, 461, 439 A.2d 408 (1981); McKirdy v. Cascio, 142 Conn. 80, 85, 111 A.2d 555 (1955). 'However, it is the court's duty to set aside the verdict when it finds that "it does manifest injustice, and is . . . palpably against the evidence. ." State v. Chin Lung, 106 Conn. 701, 704, 139 A. 91 (1927).' Barbieri v. Taylor, [37 Conn. Sup. 1, 3, 426 A.2d 314 (1980)]. " 'The trial court's refusal to set aside [a] jury verdict is entitled to great weight and every reasonable presumption should be given in favor of its correctness.' Kalleher v. Orr, 183 Conn. 125, 127, 438 A.2d 843 (1981); Waldron v. Raccio, 166 Conn. 608, 618, 353 A.2d 770 (1974). This is so because '[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). Our function on appeal is, accordingly, limited to determining whether the lower court abused its discretion in denying the plaintiffs' motion to set aside the verdict. Such a decision 'can be disturbed only by considerations of the most persuasive character, as where the verdict shocks the sense of justice or the mind is convinced that it is in fact entirely disproportionate to the injury. [Maltbie,] Conn. App. Proc., p. 151.' Mulcahy v. Larson, 130 Conn. 112, 114, 32 A.2d 161 (1943). The standard of review for an appellate court in a case like this was first stated in Briggs v. Becker, 101 Conn. 62, 66-67, 124 A. 826 (1924): '[T]he only practical test is whether the total damages awarded fall somewhere within the necessarily uncertain limits of fair and reasonable compensation in the particular case, or whether the verdict so shocks the sense of justice as to compel the conclusion that the jury were influenced by partiality, prejudice, mistake or corruption.' It is important to note that Briggs and the cases that have followed do not require a direct showing of partiality, prejudice, mistake or corruption, but rather stand for the proposition that if the amount awarded 'shocks the sense of justice' as to what is reasonable, then the inferred conclusion is that the jury was misguided in reaching its decision. See generally Raia v. Topehius, 165 Conn. 231, 239, 332 A.2d 93 (1973); Hook v. Dubuque, 153 Conn. 113, 115, 214 A.2d 376 (1965)." (Footnote added.) Zarrelli v. Barnum Festival Society, Inc., supra, 326-27. Given the nature and extent of Zimny's injuries and the pain associated with them, the net economic loss to her estate and the special damages, the amount of damages in this case does not shock the sense of justice so as to compel the conclusion that the jury was influenced by ignorance, partiality, prejudice, or corruption. The court did not err in denying the defendant's motions for a remittitur. IV Whether General Statutes § 52-216 violates the Equal Protection Provisions of the United States Constitution The defendant in this case challenged the constitutionality of General Statutes § 52-216a at the trial court, but he did not argue that it was unconstitutional on equal protection grounds. Rather, he argued in the trial court that § 52-216a, as amended after Seals v. Hickey, 186 Conn. 337, 441 A.2d 604 (1982), was unconstitutionally void for vagueness, and that the court was required to follow the common law by reducing any jury verdict by the amounts the plaintiff received by way of settlement. The court denied this claim. The defendant concedes that he did not raise the equal protection claim at trial but urges the court to review it nonetheless. This violates § 3063 of the Practice Book. We see no reason to depart from the general rule that where an appellant has failed to alert the trial court to a legal claim, even of a constitutional nature, and attempts to raise the issue for the first time on appeal, this court will not consider the issue. Peck v. Jacquemin, 196 Conn. 53, 62 n.13, 491 A.2d 1043 (1985); Chaplin v. Balkus, 189 Conn. 445, 447-48, 456 A.2d 286 (1983); Sands v. Sands, 188 Conn. 98, 106-107, 448 A.2d 822 (1982), cert. denied, 459 U.S. 1148, 103 S. Ct. 792, 74 L. Ed. 2d 997 (1983). y Sufficiency of the Evidence The defendant's final claim is that the evidence of his liability was insufficient to support the jury's verdict. At the close of the plaintiff's case, the defendant moved for a directed verdict upon which the court reserved decision. After the jury verdict was rendered, the defendant made two motions, one to set aside the verdict, and one for judgment pursuant to Practice Book § 320 and 321. The court denied all of these motions. A trial court in passing upon a motion to set aside a verdict, and this court in reviewing its action thereon is limited by established legal principles. Our rule is clear and long-standing although it has been stated in a variety of ways. "If, on the evidence as presented and under the pleadings, the jury could have reasonably found in accordance with the verdict as rendered, then it cannot be set aside as against the evidence." Goodman v. Norwalk Jewish Center, Inc., 145 Conn. 146, 154, 139 A.2d 812 (1958); see also Horvath v. Tontini, 126 Conn. 462, 464, 11 A.2d 846 (1940). It is the trial court's duty to protect the parties by setting aside a verdict where its manifest injustice is so plain as clearly to indicate that the jury has disregarded the rules of law applicable to the case; Jacobs v. Goodspeed, 180 Conn. 415, 417, 429 A.2d 915 (1980); or was influenced by ignorance, prejudice, corruption or partiality in reaching a decision. Kalleher v. Orr, 183 Conn. 125, 126, 438 A.2d 843 (1981); Preisner v. Illman, 1 Conn. App. 264, 268, 470 A.2d 1237 (1984). In setting aside the verdict, the trial court acts in the exercise of a broad legal discretion which, in the absence of a clear abuse, will not be disturbed; and in reviewing the exercise of that discretion every reasonable presumption should be indulged in favor of its correctness. Jacobs v. Goodspeed, supra, 416; Balboni v. Stonick, 2 Conn. App. 523, 526-27, 481 A.2d 82 (1984). Accordingly, in reviewing a jury verdict in relation to a claim of insufficiency of the evidence, the evidence must be viewed in the light most favorable to the plaintiff. See Meyer v. Barnes, 2 Conn. App. 485, 486, 479 A.2d 1236 (1984). We must reiterate the fact that a court should be especially hesitant to set aside a jury's award of damages. " 'The trial court's refusal to set aside [a] jury verdict is entitled to great weight and every reasonable presumption should be given in favor of its correctness.' " Zarrelli v. Barnum Festival Society, Inc., supra, 326; Kalleher v. Orr, supra, 127. In his brief the defendant cites detailed testimony which he claims proves not only evidence of the defendant's non-negligent conduct, but also that the accident was unavoidable. He stresses: (1) testimony of the defendant, his mother, and his sister that while their vehicle travelled on the bridge it was struck very hard twice in the rear by another vehicle later determined to be the Zimny vehicle; (2) his own testimony that his vehicle never spun out either clockwise or counterclockwise and that the front of his car did not collide with or strike the right side of the Zimny vehicle; (3) the testimony of Gaylord concerning the very slippery road conditions; (4) Gaylord's testimony that the cause of the accident was weather conditions and not any thing that any of the operators did; (5) the testimony of Gaylord and Cromwell that the fatal accident was separate and distinct from the Hogan-Zimny accident; (6) various discrepancies in witnesses' testimony, particularly that of the decedent's mother. The plaintiff claims that there was credible evidence of the following: The defendant, who had been proceeding eastbound on 1-84 from Waterbury to the accident scene, knew or should have known that the road surface to the west of the accident was slippery and hazardous. When the defendant came upon the scene of the Lundy collision and saw that the highway was partially obstructed, he nonetheless attempted to proceed through the obstruction. The defendant was operating his vehicle at a rate of speed greater than that of the Zimny vehicle and sought to pass the Zimny vehicle. Because of the defendant's speed, his location on the highway, and the condition of the highway, he lost control of his vehicle and collided with the Zimny vehicle. The collision of the defendant's vehicle with the Zimny vehicle forced the Zimny vehicle into the left curbing of the highway, where it came to rest. The defendant thus left the Zimny vehicle and its occupants in a position of peril. Thereafter and in the course of seeking to effect a rescue of her mother from a position of peril caused by the defendant, the decedent was struck and severely injured by a tractor trailer. It is axiomatic that the jury is the judge of the credibility of witnesses. Balboni v. Stonick, supra, 529. With his sufficiency of the evidence claim, the defendant is in effect attempting to retry the case. This is an extremely complex case in which the jury heard not only from all the surviving participants in the accident, but also from five police officers, a reconstruction expert and a meteorologist. Because of the significance of the case, and the eompli-cated fact pattern, we have examined with care the portions of the transcript cited by the parties. We conclude that there was credible evidence from which the jury could reasonably have found that the defendant was negligent and was the proximate cause of the accident that resulted in the plaintiffs injuries and death. The trial court did not abuse the broad discretion vested in it in denying the defendant's motion to overturn the verdict. We find no error. In this opinion the other judges concurred. Under the rule cited by Turpel v. Sayles, 692 P.2d 1290 (Nev. 1985) the rescuer's actions must be short of rashness or recklessness. Other cases use wanton conduct to limit the rescuer's right to invoke the rescue doctrine. The diverging but overlapping tests developed in a host of cases is ably discussed in the concurring opinion by Sutin, J. in Padilla v. Hooks International, Inc., 99 N.M. 121, 123, 654 P.2d 574 (1982). The law in Connecticut confines the application of the rescue doctrine to one who makes a reasonable effort to effect a rescue. This follows the rule formulated in 2 Restatement (Second), Torts § 472. The court charged the jury on the rescue doctrine as follows: "Now with respect to the rescue doctrine, the defendant Thomas Hogan has made several allegations of comparative negligence against Hannelore Zimny. One of these allegations is that she failed to use reasonable care for her own safety under the circumstances and conditions. Although the allegation of the answer is not specific, the defendant has argued, in effect, that Hannelore Zimny should not have gotten out of her car in an attempt to rescue her mother. You will recall that Hannelore Zimny was struck while she was standing in the highway attempting to open the passenger side door. "I charge you that with respect to the question of contributory negligence, you must bring to bear upon that question the same tests and considerations which you have brought to bear on the issue of Mr. Hogan's negligence in the first instance. In other words, you must find that the act or acts were negligent, and you must find that the act or acts in question were a proximate cause of the accident which led to her eventual death. "Now, in respect to the possible comparative negligence of Hannelore Zimny, there is a doctrine in the law which you may consider when viewing her conduct. That doctrine is known as the rescue doctrine. Succinctly put, that doctrine states that it is not contributory or comparative negligence for a person to expose himself or herself to danger in a reasonable effort to safely [rescue] a third party. You will note that I have used the word 'reasonable.' The rescue doctrine applies only where the effort being made to save another person is reasonable under the circumstances. The conduct of the person doing the rescuing, however, must be judged under the circumstances. "You may find that the circumstances in the case were a sudden emergency which Miss Zimny was confronting. If you find that she was reasonably confronting a sudden emergency, then her conduct is to be judged not in the light of cold reason, but in view of the emotions which a daughter might have for her mother under the circumstances, and you will take into consideration her lack of opportunity for deliberation and the exercise of cool judgment. "In other words, the rescue doctrine has several parts to it. These parts are as follows: (1) you must consider the circumstances of Miss Zimny's conduct; (2) if you find that at the time she attempted to rescue her mother, she was reasonably faced with a sudden emergency and reasonably had fear that her mother might be injured if she did not act; then, (3) you may consider her conduct under the circumstances and you should not judge her as a person who has time for cool deliberation, but a person who may have had aroused emotions for the safety of her mother and acted quickly in a reasonable effort to safely [rescue] her mother from danger. "You may find that the rescue doctrine is particularly applicable when the rescuer stands in a close relationship of blood or affection to the person being rescued. So much for rescue." This charge was substantially similar to the plaintiff's request to charge. The defendant expatiated this objection to the charge in a later exception. "[MR. ADINOLFI:] Yes, your Honor. It's our position that the rescue doctrine here was inapplicable. The case in 127 Connecticut on which your Honor relies is a case in which a mother exposed herself to danger by attempting to warn her child from the railroad tracks and the mother had nothing whatever to do to placing that child in the position of danger. And we have found a case in the court of appeals of Arizona — we don't have — that specific question of whether or not the plaintiff has placed the rescuee in the position of danger has not come up in Connecticut, but it has come up in the court of appeals of Arizona in Sulpher Springs Valley Electric Cooperative Inc. v. Doris Verdugo in 481 Pacific 2d at 511, and that follows the restatement of torts doctrine, Restatement 2d of Torts, section 472, in which it is clear that the rescue doctrine does not apply if the plaintiff himself or herself had anything to do with putting the person to be rescued in that position of danger." General Statutes § 52-272 (a) provides: "In causes of action based on negligence, contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages resulting from injury to persons or damage to property, if the negligence was not greater than the combined negligence of the person or persons against whom recovery is sought. Any damages allowed shall be diminished in the proportion of the percentage of negligence attributable to the person recovering." The plaintiff claims that since the defendants' brief concerning these issues did not comply with Practice Book § 3060F (d) (3), we should not consider these claims of error. The plaintiff is correct that the defendant failed to present his evidentiary claims of error in the manner required. "Because the . . . allegations of error challenge only the trial court's exercise of discretion with regard to the admissibility of expert testimony enforcement of the Practice Book [would] cause no injustice . . . ." Gorra Realty, Inc. v. Jetmore, 200 Conn. 151, 171, 510 A.2d 440 (1986). We therefore could decline to consider the issues raised. See Fogg v. Wakelee, 196 Conn. 287, 492 A.2d 511 (1985); Acheson v. White, 195 Conn. 211, 487 A.2d 197 (1985). Notwithstanding that fact "[bjecause the application of the rule to this case is so complex, we nonetheless choose to consider [his] claims of error on their merits." Liskiewicz v. LeBlanc, 5 Conn. App. 136, 139 n.2, 497 A.2d 86 (1985). For a case in which this court did find error in the trial court's allowing incursions into the area of expert testimony which the court had previously forbidden, see Hartford v. Anderson Fair-Oaks Inc., 7 Conn. App. 591, 600, 510 A.2d 200 (1986). The parties agree that the apparently ubiquitous Cromwell was involved in both cases. We consider this matter on the basis of the gross award of $1,074,171.90 before the reduction of the jury's award by 20 percent due to the plaintiffs decedent's contributory negligence. Although the quoted language concerns the setting aside of a jury verdict its reasoning and authority is obviously equally applicable to the issue of a remittitur by the trial court. General Statutes § 52-216a provides as follows: "An agreement with any tortfeasor not to bring legal action or a release of a tortfeasor in any cause of action shall not be read to a jury or in any other way introduced in evidence by either party at any time during the trial of the cause of action against any other joint tortfeasors, nor shall any other agreement not to sue or release of claim among any plaintiffs or defendants in the action be read or in any other way introduced to a jury. If the court at the conclusion of the trial concludes that the verdict is excessive as a matter of law, it shall order a remittitur and, upon failure of the party so ordered to remit the amount ordered by the court, it shall set aside the verdict and order a new trial. If the court concludes that the verdict is inadequate as a matter of law, it shall order an additur, and upon failure of the party so ordered to add the amount ordered by the court, it shall set aside the verdict and order a new trial. This section shall not prohibit the introduction of such agreement or release in a trial to the court." Practice Book § 3063, made applicable to this court by virtue of Practice Book § 2000, provides: "The supreme court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to trial."

Dupont, C. J. This is an appeal by the plaintiff from the trial court's granting of the defendant's motion for modification of alimony. The sole issue is whether the trial court erred by finding a substantial change in circumstances not contemplated by the parties at the time of the dissolution of their marriage. We find error. The marriage of the parties was dissolved on August 13, 1982. At that time, the defendant was ordered to pay $50 per week per child for the support of the parties' two minor children, and $50 per week as alimony. On October 15,1984, the plaintiff's motion for modification of child support was granted, increasing the defendant's child support payments to a total of $140 per week. On March 7,1986, the defendant filed a motion for modification of alimony and child support. The trial court decreased alimony payments from $50 to $30 per week, but did not alter the child support payments. The defendant was also ordered to pay the plaintiff $10 per week on an arrearage of $2531.87. Two motions for articulation of the court's judgment were filed by the plaintiff and granted. The court stated three bases for its judgment. First, the court found that the plaintiff's weekly gross income had increased from $293.34 to $404.66, with corresponding increases in her net weekly income from $170.98 to $254.27. The court also found that the plaintiff's weekly expenses had decreased from $512.82 to $483.93. The defendant's gross weekly income was found to have decreased from $730 to $678.65, although his net income increased from $471 to $491.27. Second, the court found that the defendant had developed an alcoholic problem in 1985 and 1986. During this period, the defendant depleted a $7000 loan, which he was repaying in weekly installments of $110. Third, the court found that the defendant was in need of a new automobile for transportation to his place of work. On the basis of these findings, the defendant's motion for modification was granted. To modify an order for periodic alimony the court must determine that a substantial change has occurred in the circumstances of either party which was not contemplated at the time the order was entered. O'Bymachow v. O'Bymachow, 12 Conn. App. 113, 116, 529 A.2d 747 (1987). In a modification action, the decision of the trial court is attributed great weight and every consideration must be given in support of its correctness. McGuinness v. McGuinness, 185 Conn. 7, 13, 440 A.2d 804 (1981). The action of the trial court will not be disturbed unless the court has abused its discretion or its finding has no reasonable basis in the facts. O'Bymachow v. O'Bymachow, supra, 116. The plaintiff's increase in net weekly income of $84 does not necessarily constitute a substantial change in circumstances. The increase in the plaintiff's income appears to be due to normal increases in salary as well as to her increased working hours. There is no evidence of a startling dramatic increase in the plaintiff's salary warranting modification. Harlan v. Harlan, 5 Conn. App. 355, 358, 498 A.2d 129 (1985). McCann v. McCann, 191 Conn. 447, 450, 464 A.2d 825 (1983); Hardisty v. Hardisty, 183 Conn. 253, 257-58, 439 A.2d 302 (1981); Serby v. Serby, 4 Conn. App. 398, 402, 494 A.2d 617 (1985). Nor has the defendant experienced a substantial change in his net income, which has actually increased by $20.27, although his gross income has declined. Net income available to the party who is to pay alimony and not gross income is the criterion upon which the court must fix alimony. Collette v. Collette, 177 Conn. 465, 469, 418 A.2d 891 (1979); Tobey v. Tobey, 165 Conn. 742, 747, 345 A.2d 21 (1974). We disagree with the trial court's finding that the defendant's alcoholism and expenditure of $7000 comprised both a substantial and unforeseen change in circumstances. Since there is nothing in the record to indicate that the defendant abused alcohol at the time of the dissolution, there is support for the finding that the problem was uncontemplated at the time of the dissolution. We conclude, however, that the defendant's alcoholism does not, in this case, constitute a substantial change in circumstances. Where the payor spouse has suffered a serious impairment of health or physical condition, and this results in a decrease or cessation of income or increased medical expenses which impair the ability to pay alimony, payments may be modified. 24 Am. Jur. 2d Divorce and Separation § 713; Bronson v. Bronson, 1 Conn. App. 337, 339, 471 A.2d 977 (1984); Swayze v. Swayze, 176 Conn. 323, 328, 308 A.2d 1 (1978). In this case, the defendant's net income did not decrease as a result of his alcoholic condition. Indeed, there is no indication that the defendant has suffered any permanent harm that will prevent him from maintaining or even increasing his current income level. Absent a correlation between the defendant's alcoholism and net income, modification is not warranted. The defendant's indebtedness of $7000 lends no credence to his request for reduced alimony payments. Had this sum been expended in pursuit of counseling or medical assistance, it might constitute a substantial change in circumstance due to illness and corresponding medical expenses. However, there is no evidence that ineluctably ties the $7000 debt to the defendant's alcohol problem. The defendant merely states that he "blew" the money while drinking. He does not claim that he spent the money for treatment of his alcoholism. There is no indication that this expenditure was not a result of his own extravagance, neglect, misconduct or other unacceptable reason; Sanchione v. Sanchione, 173 Conn. 397, 407, 378 A.2d 522 (1977); rather than an unavoidable result of his alcoholic problem. An inability to pay alimony due to indebtedness or other factors must be excusable and not brought about by the defendant's own fault. Id. Finally, we disagree with the trial court's finding that the defendant's need for a new automobile is a relevant consideration. The parties were divorced in 1982. It was certainly foreseeable at that time that either party would require a new automobile in the future. The defendant's need for a new car cannot be deemed a change in circumstances which was not contemplated at the time of the dissolution. There is error, the judgment granting the defendant's motion for modification is set aside, and the case is remanded with direction to deny the defendant's motion for modification. In this opinion the other judges concurred. We note that General Statutes § 46b-86 (a) which provides for modification of alimony or support "upon a showing of a substantial change in the circumstances of either party," has been repealed and substituted by Public Acts 1987, No. 87-104. That act states, in relevant part, that after dissolution of a marriage "modification may be made upon a showing of such substantial change of circumstances, whether or not such change of circumstances was contemplated, at the time of dissolution. By written agreement, stipulation or by decision of the court, those items or circumstances that were contemplated and are not to be changed may be specified in the written agreement, stipulation or decision of the court." (Emphasis added.) This act, however, was not effective until October 1, 1987. The plaintiffs financial affidavit shows that a significant portion of this increase was due to the plaintiffs placing herself on call as a nurse for additional hours. The record indicates that the defendant owed the plaintiff an arrearage of more than $2000 as of the date of the hearing on the defendant's motion for modification. The plaintiff claimed that the large arrearage forced her to work extra hours.

Per Curiam. There is no error.

Hull, J. After a trial to a jury, the petitioner was convicted of felony murder in violation of General Statutes § 53a-54c. The crime involved a fire started by the petitioner on January 14,1977, as a result of which the victim died on April 27, 1978. The petitioner filed a direct appeal in our Supreme Court, which affirmed the conviction. State v. Valeriano, 191 Conn. 659, 469 A.2d 936 (1983), cert. denied, 466 U.S. 974, 104 S. Ct. 2351, 80 L. Ed. 2d 824 (1984). The petitioner thereafter filed the present habeas corpus petition. He claimed that he did not receive the effective assistance of appellate counsel because his appellate counsel did not raise in his direct appeal the common law "year and a day" rule, which bars conviction for a homicide if the victim does not die within a year and a day of the defendant's conduct which caused the death. After an evidentiary hearing, the habeas court denied the petition. Upon a grant of certification by the habeas court, this appeal followed. The principal issue presented in this appeal is whether the traditional "deliberate bypass" standard should be applied to a habeas corpus petition when the failure to raise a particular issue on direct appeal resulted from a deliberate decision on the part of the petitioner's appellate counsel. In the present case, the petitioner's trial counsel, who was also his appellate counsel, raised the "year and a day" rule in the trial court, where it was rejected. The petitioner was not advised by his appellate counsel of the tactical decision to omit the issue regarding the applicability of the "year and a day" rule from his direct appeal. The decision to omit this issue was reached solely by his appellate counsel. The state argues, therefore, that the "deliberate bypass" rule is inapplicable to the facts of the present case. Although this precise issue has not been determined by this or any other Connecticut court, we are guided in our analysis by well settled precedent regarding the writ of habeas corpus as established by both Connecticut and federal courts. The general proposition that a habeas corpus action cannot be used as an alternative to a direct appeal is well established in Connecticut law. See Cajigas v. Warden, 179 Conn. 78, 81, 425 A.2d 571 (1979); Blue v. Robinson, 173 Conn. 360, 369, 377 A.2d 1108 (1977); Vena v. Warden, 154 Conn. 363, 365, 225 A.2d 802 (1966). In Wojculewicz v. Cummings, 143 Conn. 624, 628, 124 A.2d 886 (1956), our Supreme Court held that an exception to this common law limitation should be made when the conviction which gave rise to the challenged detention was obtained in violation of the petitioner's rights under the federal constitution. The court further modified this exception in Vena v. Warden, supra, by adopting the rationale of the United States Supreme Court in Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963), and holding that "a petitioner may collaterally raise federal constitutional claims in a habeas corpus proceeding even though he has failed to appeal his federal constitutional claims directly to [the court] if he alleges and proves, by a fair preponderance of the evidence, facts which will establish that he did not deliberately bypass the orderly procedure of a direct appeal." (Emphasis added.) Vena v. Warden, supra, 366-67. For over a decade, the "deliberate bypass" rule stemming from Fay v. Noia, supra, has been consistently applied by our courts without exception. The rationale of the "deliberate bypass" standard has been summa rized by our Supreme Court as serving two important functions: (1) it prevents piecemeal litigation; and (2) it prevents a prisoner from deliberately deferring his claims until a time when a new trial, if required, would be impossible. See Paulsen v. Manson, 193 Conn. 333, 476 A.2d 1057 (1984); D'Amico v. Manson, 193 Conn. 144, 146-47, 476 A.2d 543 (1984). In applying this standard, a court must find that the record " 'affirmatively disclosefs] that the plaintiffs decision to waive his right to appeal was voluntarily, knowingly and intelligently made' " before it can conclude that there has been a deliberate relinquishment of the right to appeal. D'Amico v. Manson, supra, 148. It is clear, therefore, that the deliberate bypass rule focuses on whether the habeas corpus petitioner personally made, as a criminal defendant, a decision to bypass an appeal. Subsequent to the holding in Fay v. Noia, supra, however, the United States Supreme Court developed a more restrictive standard, that of "cause" and "prejudice," for access to federal habeas corpus relief by a state prisoner. In Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977), the United States Supreme Court held that a state prisoner could not bring his claims to a federal habeas court absent a showing of "cause" for his state procedural default, and actual "prejudice" resulting therefrom. Although the court chose not to define the precise contours of the "cause" and "prejudice" standard, it noted that the standard was narrower than the broad standard set forth in Fay v. Noia, supra. Wainwright v. Sykes, supra, 87. The court recently made clear that the "cause" and "prejudice" standard applies to procedural defaults on appeal as well as to those at trial. Murray v. Carrier, 477 U.S. 478, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986). In the aftermath of Wainwright v. Sykes, supra, various courts have noted that it is unclear as to which cases are to be evaluated by the Fay v. Noia "deliberate bypass" standard, and which are to be evaluated by the Wainwright v. Sykes "cause" and "prejudice" standard. See, e.g., Frazier v. Czarnetsky, 439 F. Sup. 735, 737 (S.D.N.Y. 1977). Our Supreme Court, while consistently adhering to the "deliberate bypass" standard, has nevertheless acknowledged the emergence of the narrower "cause" and "prejudice" standard, and noted that such standard accomplishes the same important functions as those served by the "deliberate bypass" rule. See Paulsen v. Manson, supra, 338 n.5; D'Amico v. Manson, supra, 148. In McClain v. Manson, 183 Conn. 418, 428-29 n.15, 439 A.2d 430 (1981), the court noted the issue as follows: "It appears that the Supreme Court 'is more apt to find a habeas petitioner bound by a bypass with respect to a strategic or tactical decision of the kind normally committed to counsel, than with respect to decisions of the sort entrusted to the defendant himself.' . . . Included in this latter category would be decisions whether to plead guilty, to forego the assistance of counsel, or to refrain from an appeal." The court implied, therefore, that the "deliberate bypass" standard is properly applicable only in those situations where the defendant himself had the ultimate responsibility for a tactical decision resulting in a procedural default. In each of the cases which has been considered by our courts, the petitioner either failed to bring an appeal at all; see, e.g., Paulsen v. Manson, supra; D'Amico v. Manson, supra; or appeared on appeal pro se and therefore made all the tactical decisions regarding the presentation of the appellate issues himself. See, e.g., Galland v. Bronson, 204 Conn. 330, 527 A.2d 1192 (1987). In these situations, the defendant shouldered the ultimate responsibility for the tactical decisions of his case, and therefore was properly subject to a "deliberate bypass" inquiry. The court in McClain v. Manson, supra, left unresolved, however, the question of whether the "cause" and "prejudice" standard should be applied in those situations in which counsel did not raise an issue on appeal. In the present case, we are squarely confronted with this situation and must therefore resolve the question left open in McClain v. Manson, supra. Where, as in this case, the petitioner had no part in the tactical decision which ultimately resulted in the procedural default, and where such a decision is normally and of necessity entrusted to counsel, the "deliberate bypass" standard requiring a showing of a "knowing and intelligent waiver" is inapplicable. See Wainwright v. Sykes, supra, 94 (Burger, C. J., concurring). The determination of which issues to present, and which issues not to present, on an appeal is by its nature a determination committed to the expertise of appellate counsel, and not to his client. Jones v. Barnes, 463 U.S. 745, 749, 103 S. Ct. 3308, 77 L. Ed. 2d 987 (1983). By that determination, appellate counsel seeks to focus the concern of the appellate court on those issues which he deems to be most persuasive, and thus does appellate counsel most effectively present his client's appeal. Id., 751-52. Therefore, it simply does not make sense to ask whether a habeas corpus petitioner personally and deliberately bypassed the appellate process as to a tactical decision which was never his to begin with. Indeed, it would be inconsistent with one of the principal purposes of the deliberate bypass rule to apply it in a case such as this. That rule seeks in part to prevent a prisoner from deliberately deferring his claim until it is too late to retry him effectively. Paulsen v. Manson, supra. It focuses on the interest of the state in prosecuting crimes while the evidence is still available. In a case such as this, however, the focus is on a tactical decision which belongs solely to counsel. A habeas corpus petitioner would always be able to establish that he had not deliberately bypassed an appeal, because he never would have had the final choice in the tactical appellate decision which he seeks to challenge. Thus, he could at any time, subsequent to his direct appeal, no matter how late, meet the threshold requirement for habeas corpus. We therefore conclude that the "cause" and "prejudice" test of Wainwright v. Sykes, supra, rather than the "deliberate bypass" test, applies to the strategic or tactical determination of whether to include a particular issue on appeal. That is precisely the sort of tactical decision which is left to counsel. Our conclusion is also based on our Supreme Court's penchant for following the lead of federal precedent in habeas corpus actions, and on the clear holdings of recent decisions of the United States Supreme Court on this precise issue. Although the United States Supreme Court has eschewed cataloging the circumstances that would and would not justify a finding of "cause," it has stated that "the existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective facts external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, supra, 488. Recent cases have provided some elaboration on the "cause" requirement. On one hand, the United States Supreme Court has held that the ignorance of or inadvertent failure to raise a substantive claim of error does not constitute cause. Id., 493-94. Nor does a deliberate and tactical decision not to pursue a particular claim on appeal constitute cause, as long as that decision does not itself amount to ineffective assistance of counsel. Smith v. Murray, 477 U.S. 527, 535, 106 S. Ct. 2661, 91 L. Ed. 2d 434 (1986). In fact, such a tactical decision "is the very antithesis of the kind of circumstance that would warrant excusing a defendant's failure to adhere to a state's legitimate rules for the fair and orderly disposition of its criminal cases." Id. On the other hand, the failure to raise a novel legal claim which was not reasonably available to counsel at the time of the default may constitute cause. Smith v. Murray, supra; Reed v. Ross, 468 U.S. 1, 104 S. Ct. 2901, 82 L. Ed. 2d 1 (1984). Additionally, ineffective assistance of counsel can constitute cause, even where the claim is based on a single tactical decision of the counsel. Murray v. Carrier, supra, 490. In order to establish prejudice, the petitioner must show "not merely that the errors at . . . trial created a possibility of prejudice, but that they worked to actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." (Emphasis in original.) United States v. Frady, 456 U.S. 152, 170, 102 S. Ct. 1584, 71 L. Ed. 2d 816, reh. denied, 456 U.S. 1001, 102 S. Ct. 2287, 73 L. Ed. 2d 1296 (1982); see also D'Amico v. Manson, supra, 154-57. A finding that the petitioner has failed to carry his burden of showing cause for noncompliance with procedural rules and prejudice resulting therefrom does not end the inquiry. Smith v. Murray, supra, 537. The "cause" and "prejudice" standard will not apply in cases where there has been a "fundamental miscarriage of justice." Id.; Murray v. Carrier, supra. "[I]n an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default." Murray v. Carrier, supra, 496. The petitioner argues that because of his appellate counsel's failure to raise the "year and a day" rule on direct appeal, he was rendered ineffective assistance of appellate counsel. He therefore claims that even under the narrower "cause" and "prejudice" standard, he has demonstrated sufficient cause. Whether counsel's performance was constitutionally deficient is determined under the test of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); see also Smith v. Murray, supra, 533. That test requires a two component inquiry: first, it must be shown that the attorney's performance was so deficient and his errors so serious that "counsel was not functioning as . . . 'counsel' " and, second, that those errors functioned so "as to deprive the defendant of a fair [appeal], [an appeal] whose result is reliable." Strickland v. Washington, supra, 687; see also Levine v. Manson, 195 Conn. 636, 640, 490 A.2d 82 (1985). In assessing the appellate attorney's conduct, we "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under these circumstances, the challenged action 'might be considered sound [appellate] strategy.' " United States ex rel. Roche v. Scully, 739 F.2d 739, 742 (2d Cir. 1984), quoting Strickland v. Washington, supra, 689. Moreover, " '[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.' " Smith v. Murray, supra, 536. If the defendant is "represented by counsel whose performance is not constitutionally ineffective under [this] standard . we discern no inequity in requiring him to bear the risk of attorney error that results in a procedural default." Murray v. Carrier, supra, 488. Applying this standard to the present case, we conclude that the petitioner has failed to demonstrate that his appellate counsel's representation was ineffective. The record reveals that counsel carefully considered the "year and a day" rule, and concluded that the claim would be a weak argument on appeal. Although there are courts which have adopted the "year and a day" rule; see, e.g., State v. Williams, 247 Ga. 200, 275 S.E.2d 62 (1981); State v. Minster, 302 Md. 240, 486 A.2d 1197 (1985); Elliot v. Mills, 335 P.2d 1104 (Okla. Crim. App. 1959); Cole v. State, 512 S.W.2d 598 (Tenn. Crim. App. 1974); State v. Edwards, 104 Wash. 2d 63, 701 P.2d 508 (1985); there are also many courts which have rejected or refused to adopt the rule. See People v. Snipe, 25 Cal. App. 3d 742, 102 Cal. Rptr. 6 (1972); State v. Sandridge, 5 Ohio Op. 3d 419, 365 N.E.2d 898 (1977); Commonwealth v. Ladd, 402 Pa. 164, 166 A.2d 501 (1960); People v. Brengard, 265 N.Y. 100, 191 N.E. 850 (1934); People v. Legeri, 239 App. Div. 47, 266 N.Y.S. 86 (1933). Moreover, Connecticut has never expressly adopted or applied the rule. As the habeas court in this case found, the rule's common law roots were in the inability of primitive medical science to determine the cause of death with reasonable certainty. Those roots may no longer be viable. The petitioner's appellate counsel chose to rely on arguments which reasonably competent counsel would have considered stronger than the "year and a day" rule. See footnote 1, supra. The process of winnowing out the weaker arguments of an appeal and focusing on those more likely to prevail does not constitute ineffectiveness. Rather, it is the "hallmark of effective appellate advocacy." Smith v. Murray, supra, 536. We conclude that the record does not support the petitioner's claim of ineffective assistance of counsel, and that the petitioner has therefore failed to demonstrate cause. In light of this failure, we need not reach the question of whether he was prejudiced by the failure of appellate counsel to raise the "year and a day" rule on appeal. Nor do we find a fundamental miscarriage of justice in this case necessitating a suspension of the application of the "cause" and "prejudice" standard. There is no error. In this opinion the other judges concurred. The petitioner raised three claims of error in his direct appeal. The claims were that the trial court erred (1) in its instruction on the phrase, "in furtherance of such crime," in the felony murder statute, (2) in refusing to submit to the jury an affirmative defense available under the felony murder statute, and (3) in denying the defendant's motion to exclude a witness as incompetent, in permitting that witness to invoke the privilege against self-incrimination, and in refusing to strike his testimony. State v. Valeriano, 191 Conn. 659, 661, 469 A.2d 936, cert. denied 466 U.S. 974, 104 S. Ct. 2351, 80 L. Ed. 2d 824 (1984). The habeas court considered the merits of the "year and a day" rule. In a fifteen page memorandum of decision, the court addressed the rule and concluded that the " 'year and a day' rule, if it ever did exist here, has not evolved; it has atrophied. Appellate counsel was correct, not ineffective." We note that Turcio v. Manson, 186 Conn. 1, 439 A.2d 437 (1982), involved such a situation. In that case, the petitioner directly appealed his conviction but failed to raise a claim that his jury instructions violated the rule of Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979). Sandstrom was decided five months after oral argument in the petitioner's direct appeal and eight days before the release of our Supreme Court's opinion on that direct appeal. Our Supreme Court, in the subsequent habeas corpus action, held that there had been no deliberate bypass of the orderly procedure of direct appellate review. The Sandstrom issue was in the nature of a novel legal claim which was not reasonably available to counsel at the time of the default. Smith v. Murray, 477 U.S. 527, 533, 106 S. Ct. 2661, 91 L. Ed. 2d 434 (1986). We note that in Turdo our Supreme Court applied the "deliberate bypass" standard, although the tactical decision of which issues to present on appeal was made by counsel. That case, however, was decided prior to Murray v. Carrier, 477 U.S. 478, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986), in which the United States Supreme Court extended the "cause" and "prejudice" standard of Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977), to apply to tactical decisions made on appeal.

Spallone, J. The plaintiff is appealing from the judgment rendered after the trial court dismissed her action for lack of subject matter jurisdiction. The facts are largely undisputed. The plaintiff, Maureen Cianci, was formerly employed by the state department of human resources (DHR) and was a member of the defendant union, Connecticut Council for American Federation of State, County and Municipal Employees, Local 884, AFL-CIO (AFSCME). In August, 1979, the plaintiff was issued a warning regarding her job performance. Pursuant to the bargaining agreement, the plaintiff instituted grievance procedures during the course of which she was represented by the defendant. Following the procedures outlined in the agreement, the plaintiff, just prior to entering the final stage of the grievance proceedings, settled her dispute with DHR by agreeing to accept a ninety day leave of absence during which she would undergo counseling. On or about February 9,1980, the plaintiff requested reinstatement. DHR refused to reinstate the plaintiff on the ground that she violated the settlement agreement by not undergoing counseling. On or about September 18, 1980, the plaintiff filed a complaint against DHR, the state of Connecticut and AFSCME with the Connecticut state board of labor relations (board). She alleged that the defendants conspired to deny her her rights and to obtain her dismissal. She alleged also that AFSCME breached its duty of fair representation owed to her. In December, 1981, while her administrative proceedings were pending, the plaintiff brought this separate action in Superior Court against AFSCME alleging, as she had in her complaint before the board, that the defendant breached its duty of fair representation and conspired with DHR to secure her dismissal from her employment. The board, meanwhile, continued its proceedings with respect to the plaintiffs complaint. All parties were represented by counsel before the board. On April 26, 1983, the board dismissed the plaintiffs complaint on the ground that the allegations therein were not supported by the evidence. The plaintiff did not appeal from the board's final order as was her right; General Statutes § 5-274 (d) and 31-109 (d); but pursued her claims against her union in Superior Court by way of the action she had instituted previously. The court ultimately dismissed the plaintiff's action for lack of subject matter jurisdiction. On appeal, the plaintiff claims that the granting of the defendant's motion to dismiss was erroneous. She argues that the trial court had jurisdiction to entertain the underlying action, and that the dismissal deprived her of the right to have her case decided on the merits. Although we recognize the trial court's jurisdiction to entertain the matters involved in the underlying action; see Fetterman v. University of Connecticut, 192 Conn. 539, 557, 473 A.2d 1176 (1984); we conclude that the trial court properly dismissed the action. Because the plaintiff was employed by the state, any complaints initiated by her or in her behalf regarding collective bargaining were controlled by General Statutes § 5-270 et seq. These provisions confer jurisdiction on the board to handle complaints of prohibited prac tices engaged in by employers and employee organizations. The remedies available to a complainant through the board, however, are not exclusive. Fetterman v. University of Connecticut, supra. In Fetterman v. University of Connecticut, supra, the plaintiff brought an action in Superior Court against, among others, her union alleging, as was done here, that the union had violated § 5-272 by failing to represent her fairly. The trial court dismissed the action on the ground that it lacked subject matter jurisdiction to entertain the case in that the plaintiff had failed to pursue and exhaust the administrative remedies available to her prior to commencing the action. On appeal, the Supreme Court concluded that the board's remedies were not exclusive and, consequently, that the trial court erred in dismissing the plaintiffs' claim that the union had violated § 5-270 et seq. The court's ruling demonstrates that the Superior Court and the board have concurrent jurisdiction over matters involving certain labor disputes. "Typically, the creation of [an administrative] agency means the addition to the legal system of a new lawmaking and law applying authority, with no explicit subtraction from the previously-existing power of courts." 4 Davis, Administrative Law (1983) § 22:1, p. 81. In such cases, the doctrine of "primary jurisdiction" dictates that the dispute be directed to the board so as to take advantage of the board's specialized skills and procedures; Sharkey v. Stamford, 196 Conn. 253, 255-56, 492 A.2d 171 (1985); 4 Davis, supra, 81-82; although in Fetterman the Supreme Court remanded the case and directed the trial court to exercise its own jurisdiction over the subject matter. Fetterman v. University of Connecticut, supra. Because the plaintiff in Fetterman invoked only the trial court's concurrent jurisdiction over the subject matter of her complaint, she was not required to exhaust the administrative remedies initially available to her. In contrast, the plaintiff in the present action elected initially to proceed before the board, thereby taking advantage of the specialized skills and procedures enjoyed by it. She did not invoke the court's concurrent jurisdiction. By her election, the plaintiff was constrained to exhaust the remedies available in the manner pre scribed, including the manner by which to appeal. She could not, subsequent to having initiated the administrative proceedings, bring an independent action to test the very issue which the statutory appeal was designed to test. Laurel Park, Inc. v. Pac, 194 Conn. 677, 685, 485 A.2d 1272 (1984); Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 598, 409 A.2d 1029 (1979); Country Lands, Inc. v. Swinnerton, 151 Conn. 27, 33, 193 A.2d 483 (1963); State Water Commission v. Norwich, 141 Conn. 442, 447, 107 A.2d 270 (1954); Davis v. Yudkin, 3 Conn. App. 576, 578, 495 A.2d 714, cert. denied, 197 Conn. 805, 499 A.2d 57 (1985). This requirement " 'foster[s] an orderly process of administrative adjudication and judicial review in which a reviewing court will have the benefit of the agency's findings and conclusions.' " Sharkey v. Stamford, supra, 256, quoting Connecticut Life & Health Ins. Guaranty Assn. v. Jackson, 173 Conn. 352, 358-59, 377 A.2d 1099 (1977). The plaintiff's election to pursue the administrative remedies available to her did not foreclose judicial review of her claims, but rather had the effect of postponing such review until the board issued its final order. See General Statutes § 5-274 (d) and 31-109 (d). Having failed to follow the dictates of General Statutes § 31-109 and 5-274 (d) by not taking an appeal from the final order of the board within two weeks from the date of its order, the plaintiff is now precluded from attacking the findings and conclusions of the board and is bound by its rulings. The plaintiffs claims were fully heard and litigated before the board and the dismissal of her complaint by the trial court did not deprive her of her right to have the action heard on its merits. There is no error. In this opinion the other judges concurred. The basis of the trial court's decision was that the plaintiff waived her statutory right to appeal in that she did not file such an appeal within two weeks from the issuance of the board's final order, as is prescribed by statute. See General Statutes § 5-274 (d) and 31-109 (d). Having found that the plaintiff waived her statutory right to appeal, the court concluded that it lacked subject matter jurisdiction over the action which was before it. Although the legal analysis and policy consideration espoused in this opinion vary from those employed by the trial court in reaching its decision, we sustain the court's ultimate judgment. See Barra v. Ridgefield Card & Gift Gallery, Ltd., 194 Conn. 400, 405-406, 480 A.2d 552 (1984). General Statutes § 5-272 provides in part: "(a) Employers or their representatives or agents are prohibited from: (1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed in section 5-271 including a lockout; (2) dominating or interfering with the formation, existence or administration of any employee organization; (3) discharging or otherwise discriminating against an employee because he has signed or filed any affidavit, petition or complaint or given any information or testimony under sections 5-270 to 5-280, inclusive; (4) refusing to bargain collectively in good faith with an employee organization which has been designated in accordance with the provisions of said sections as the exclusive representative of employees in an appropriate unit; including but not limited to refusing to discuss grievances with such exclusive representative; (5) discriminating in regard to hiring or tenure of employment or any term or condition of employment to encourage or discourage membership in any employee organization; (6) refusing to reduce a collective bargaining agreement to writing and to sign such agreement; (7) violating any of the rules and regulations established by the board regulating the conduct of representation elections. "(b) Employee organizations or their agents are prohibited from: (1) Restraining or coercing employees in the exercise of the rights guaranteed in subsection (a) of section 5-271; (2) restraining or coercing an employer in the selection of his representative for purposes of collective bargaining or the adjustment of grievances; (3) refusing to bargain collectively in good faith, with an employer, if it has been designated in accordance with the provisions of sections 5-270 to 5-280, inclusive as the exclusive representative of employees in an appropriate unit; (4) violating any of the rules and regulations established by the board regulating the conduct of representation elections; (5) refusing to reduce a collective bargaining agreement to writing and sign such agreement." In that courts and administrative agencies often have concurrent jurisdiction, the common law doctrine of primary jurisdiction "is designed to guide a court in determining whether and when it should refrain or postpone the exercise of its own jurisdiction so that an agency may first answer some questions presented." 4 Davis, Administrative Law (1983) § 22:1, p. 81. General Statutes § 5-274 provides in part: "(d) For the purposes of hearings and enforcement of orders under sections 5-270 to 5-280, inclusive, the board shall have the same power and authority as it has in sections 31-107, 31-108 and 31-109, and the employer and the employee organization shall have the right of appeal as provided therein." General Statutes § 31-109 provides in part: "(d) Any person aggrieved by a final order of the board granting or denying in whole or in part the relief sought may obtain a review of such order in the superior court for the judicial district where the unfair labor practice was alleged to have occurred or in the judicial district wherein such person resides or transacts business by filing in the court, or, if said court is not in session, with any judge thereof, within two weeks from the date of such order, a written petition in duplicate praying that the order of the board be modified or set aside. The clerk of the superior court shall thereupon mail the duplicate copy to the board. The board shall then file in said court a transcript of the entire record in the proceeding, certified by the board, including the pleadings, testimony and order of the board. Upon such filing said court or such judge shall proceed in the same manner as in the case of a petition by the board under this section and shall have the same exclusive jurisdiction to grant to the person such temporary relief or restraining order as it deems just and suitable, and in like manner to make and enter a decree enforcing or modifying and enforcing as so modified or set aside, in whole or in part, the order of the board."

The plaintiff's motion to strike from the brief of the defendant Florence DiPietro the appendix; thereto in the appeal from the Superior Court in Hartford County is denied.

Shea, J. This appeal concerns the refusal of a town building inspector to issue a permit to demolish a building located in an area designated as an historic district. In February, 1979, the Farming-ton building inspector denied the application for a demolition permit because the plaintiff Farming-ton Savings Bank failed to obtain prior approval for the demolition from the Farmington historic district commission. The bank appealed the inspector's denial to the zoning board of appeals of the town of Farmington. The zoning board affirmed the inspector's determination. The bank then appealed the zoning board's decision to the Superior Court. The trial court permitted several persons owning property adjacent to or near the bank's land to intervene as defendants. After a trial of the issues, the trial court dismissed the appeal. The bank has appealed to this court from that judgment. The facts are not substantially disputed. In April, 1964, the Farmington town council appointed an historic district study committee. Pursuant to the enabling act; General Statutes (Rev. to 1963) § 7-147a through 7-147m; the council took the necessary steps to establish an historic district in 1965. The study committee submitted to the council a report recommending a proposed district; General Statutes (Rev. to 1963) § 7-147b (b) and (c); which included the plaintiff's property, and held a public hearing on the proposal; General Statutes (Rev. to 1963) § 7-147b (d); written notice of which was sent to owners of record of real property located in the proposed district. General Statutes (Rev. to 1963) § 7-147b (e). The town council then "cause [d] ballots to be taken of the owners of record of all real property to be included in the proposed district on the question of the adoption of an historic district ordinance . . . ." General Statutes (Rev. to 1963) § 7-147b (g). The town of Farmington interpreted the voting eligibility provision of General Statutes (Rev. to 1963) § 7-1471 (b) as rendering the balloting requirement of § 7-147b (g) applicable only to natural persons. Corporate landowners, including the plaintiff, did not receive ballots. Since the proposed district was approved by over 75 percent of those voting, the council, on April 27, 1965, enacted an ordinance, Ordinance No. 47, to effectuate the purposes of the enabling act. See General Statutes (Rev. to 1963) $7-147b(g). Ordinance No. 47, § 5, which is patterned after General Statutes (Rev. to 1963) § 7-147d provides: "No building or structure shall be erected, altered, restored, moved or demolished within the Farming-ton Historic District until after an application for a certificate of appropriateness as to exterior architectural features has been submitted to the [Historic District] Commission and approved by said Commission." The building inspector refused to act upon the bank's application for a demolition permit on the ground that the bank had not obtained a certificate of appropriateness. Although conceding that its property was listed among those parcels of real property included within the historic district established by Ordinance No. 47, the bank claimed that it was not required to seek a certificate of appropriateness because the ordinance was inapplicable to its property. The gist of the bank's argument is that the town of Farmington improperly interpreted the balloting provisions of the historic district enabling act to exclude corporate owners of real property from voting on the proposed district. The result, according to the bank, is the exemption of its property from the historic district. The trial court found that the Farmington town council had properly interpreted the provisions of § 7-lé7l (b), as it existed in 1965, as granting voting privileges only to natural persons owning affected property. The trial court therefore concluded that the bank was subject to the historic district ordinance and 'that the building inspector had properly declined to issue a demolition permit for lack of a certificate of appropriateness. On appeal the bank raises the following issues: (1) whether the trial court erred in concluding that the balloting provisions of the historic district enabling act did not apply to corporate owners of real property within the proposed historic district; and (2) whether Public Acts 1980, No. 80-314(11), now codified as General Statutes § 7-147k, cures the possible defects in the adoption of the historic district ordinance which the plaintiff relies upon in claiming that its property is exempt from that ordinance. Since onr resolution of the second issue disposes of the appeal, we need not address the first. We find no error. I Prior to discussing the effect of General Statutes § 7-147k upon this appeal, we must first address the threshold issue, raised by the defendants, of whether the appeal is properly before this court. According to the defendants, the plaintiff bank should not have pursued administrative remedies, but instead should have brought an action for a declaratory judgment. The defendants contend that the plaintiff's claim that it is exempt from Ordinance No. 47, § 5 is inappropriate for review as a zoning appeal, since such review would be violative of the principle that one cannot seek approval of the zoning board and at the same time attack the validity of the zoning regulations. See Strain v. Zoning Board of Appeals, 137 Conn. 36, 38-40, 74 A.2d 462 (1950); Zelvin v. Zoning Board of Appeals, 30 Conn. Sup. 157, 162, 306 A.2d 151 (1973); 82 Am. Jur. 2d, Zoning & Planning § 259. Moreover, the defendants argue that where the validity of a town ordinance is being challenged an action for a declaratory judgment is appropriate because the town and others are necessary parties. See England v. Coventry, 183 Conn. 362, 365, 439 A.2d 372 (1981); Meadowbrook Third Co-op, Inc. v. Hamden, 165 Conn. 546, 550, 338 A.2d 478 (1973). Although we have often stated that declaratory judgment actions may be appropriate proceedings in which to determine rights in regard to the regulation of administrative agencies; see Hartford Electric Light Co. v. Water Resources Commission, 162 Conn. 89, 104, 291 A.2d 721 (1971); Sage-Allen Co. v. Wheeler, 119 Conn. 667, 673, 179 A. 195 (1935); Sigal v. Wise, 114 Conn. 297, 301, 158 A. 891 (1932); the factor determining the proper forum is the underlying basis of the party's claim. " [Declaratory judgment proceedings are appropriate for determining jurisdictional issues or questions concerning the validity of the regulations of an administrative agency, while questions concerning the correctness of an agency's decision in a particular case or the sufficiency of the evidence can properly be resolved only by appeal. Hartford Electric Light Co. v. Water Resources Commission, [162 Conn. 89] 104-105 [291 A.2d 721 (1971)]." Aaron v. Conservation Commission, 178 Conn. 173, 178, 422 A.2d 290 (1979). The plaintiff's claim clearly falls into the category of "questions concerning the correctness of an agency's decision in a particular case." The bank has consistently contended that its property was never subject to the historic district established by Ordinance No. 47. If the bank were correct in this contention, the procedure it followed— application for permit, appeal to the zoning board and administrative appeal to the Superior Court— would clearly be correct. That the plaintiff might be incorrect in its underlying assumption does not change the appropriateness of the forum chosen. The bank's appeal, therefore, is properly before this court. II In 1980 the General Assembly enacted an extensive revision of the historic district enabling act. See Public Acts 1980, No. 80-314. The legislative history of this revision indicates that it was made in response to the internal inconsistencies and the lack of clarity in the existing statutes resulting from the repeated piecemeal amendment of the act since its passage in 1961. Both chambers of the General Assembly were aware that legal controversies had arisen from the imprecision of the existing statutes and enacted the revision with the express purpose of permitting effective judicial enforcement of historic preservation laws. With this legislative background in mind we turn to the question of what effect, if any, the enactment of § 7-147k has on the plaintiff's action. This section provides in pertinent part: "Any and all historic districts created under the general statutes, prior to October 1,1980, otherwise valid except that such districts, district study committees, municipalities or officers or employees thereof, failed to comply with the requirements of any general or special law, and any and all actions of such districts or historic district commission are validated." General Statutes § 7-147k (a). The plaintiff claims that although its property is located in the area designated as an historic district by Ordinance No. 47, the provisions of that ordinance are inapplicable because the town council did not permit it to vote upon the establishment of the district. In the light of the legislative purpose of the 1980 revision of the historic district enabling act and the plain language of the provision, we interpret § 7-147k (a) as confirming the establishment of the Farmington Historic District despite the alleged defects in its adoption and as rendering obligatory the historic district regulations upon each parcel of real property included in the district by Ordinance No. 47. The basis for the plaintiff's complaint has been eliminated by an act of the Greneral Assembly. The issue concerning whether it was properly excluded from participating in the balloting which established the district has thereby been rendered moot. Ill The plaintiff bank contends that to conclude that the Farmington Historic District was lawfully established or that § 7-147k (a) renders its cause of action moot deprives it of equal protection of the law and due process, respectively, as guaranteed by the federal and state constitutions. We decline to review these claims, which are raised for the first time in this court. Where a legal claim is raised neither by oral argument nor by written brief in the court below, "it will not be the duty of . . . the appellate court to decide the claim." Practice Book § 285A. The constitutional nature of these claims provides no basis for an automatic exception to the application of this rule of judicial discretion in civil actions. See Edmundson v. Rivera, 169 Conn. 630, 635-36, 363 A.2d 1031 (1975); Pizzola v. Planning & Zoning Commission, 167 Conn. 202, 209, 355 A.2d 21 (1974); 16 Am. Jur. 2d, Constitutional Law § 131. We find that the plaintiff's property is properly deemed part of the Farmington Historic District and subject to Ordinance No. 47, § 5, which requires a certificate of appropriateness from the historic district commission prior to the issuance of a demolition permit. Accordingly, we affirm the trial court's dismissal of the plaintiff's administrative appeal. There is no error. In this opinion the other judges concurred. The following provisions of the enabling act, General Statutes (Rev. to 1963) § 7-147a through 7-147m, are relevant to this appeal: "See. 7-147a. historic districts authorized. Any municipality may by vote of its legislative body establish within its confines an historic district or districts to promote the educational, cultural, economic and general welfare of the public through the preservation and protection of buildings, places and districts of historic interest by the maintenance of such as land marks in the history of architecture, of the municipality, of the state or of the nation, and through the development of appropriate settings for such buildings, places and districts. The legislative body of any municipality may make appropriations for the purpose of carrying out the provisions of sections 7-147a to 7-147k, inclusive." "Sec. 7-147b. preliminary steps. Prior to the establishment of an historic district or districts, the following steps shall be taken: "(a) The legislative body shall appoint an historic district study committee for the purpose of making an investigation of a proposed historic district. Bach historic district study committee established under the provisions of sections 7-147a to 7-147k, inclusive, shall consist of five members who shall be electors of the municipality holding no salaried municipal oflico. "(b) The historic district study committee shall investigate and report on the historic significance of the buildings, structures, features, places or surroundings to be included in a proposed historic district or districts and designate the area to be included therein. "(c) The historie district study committee shall transmit copies of its report to the Connecticut historical commission, the planning commission and zoning commission of the municipality, if any, and, in the absence of such a planning commission or zoning commission, to the selectmen or to the warden and burgesses, or to the chief executive oificer of the municipality for their consideration and recommendations, and each such body or individual shall give his recommendations to the historic district study committee within ninety days from the date of receipt of such report. In addition to such other recommendations at it may make, the Connecticut historical commission may comment upon and may recommend either approval, disapproval, modification, alteration or rejection of the boundaries of each proposed district. Such recommendations shall be read in full at the public hearing to be held by the historic district study committee' as hereinafter specified. Failure to make recommendations within ninety days after the date of such receipt shall be taken as approval of the report of the historic district study committee. "(d) The historic district study committee shall hold a public hearing on the establishment of a proposed historic district or districts not less than one hundred twenty days nor more than one hundred fifty days after the transmission of its report as provided in subsection (e) of this section. "(e) Notice of the time and place of such hearing shall be given as follows: (1) Written notice, postage prepaid, shall be given to the owners of record of all real property to be included in the proposed historic district or districts, as they appear on the last-completed grand list, at the addresses shown thereon, at least twenty days before the time set for such hearing, together with a copy of the report of the historic district, study committee or a fair and accurate synopsis of such report, a copy of all recommendations made under subsection (c) of this section, a map showing the boundaries of the area to be included in the proposed district, and a copy of the proposed ordinance; and (2) by publication of such notice in the form of a legal advertisement appearing in a newspaper having a substantial circulation in the municipality at least twice, at intervals of not less than five days, the first not more than twenty days nor less than ten days, and the last not less than two days before such hearing. "(f) The historic district study committee shall submit a final report to the legislative body of the municipality within sixty days after the publie hearing. The report of the committee shall contain the following: (1) A complete description of the area to be included within the proposed historic district or districts, including the total number of buildings therein listed according to their known or estimated ages; (2) a map showing the exact boundaries of the area to be included within the proposed historic district or districts; (3) a proposed ordinance designed to implement the provisions of sections 7-147a to 7-147k, inclusive; (4) a copy of the report and recommendations of the historical commission; (5) such other matters as the committee may deem necessary and advisable. "(g) The legislative body after reviewing the report of the historic district study committee shall cause ballots to be taken of the owners of record of all real property to be included in the proposed district on the question of the adoption of an historic district ordinance and, if seventy-five per cent of all such owners voting thereon vote affirmatively by such ballots, shall take one of the following steps: (1) Beject the report of the committee, stating its reasons therefor; (2) accept the report of the committee and enact an ordinance, to carry out the provisions of sections 7-147a to 7-147k, inclusive; (3) return the report to the historic district study committee with such amendments and revisions thereto as it may deem advisable, for consideration by the committee and a further report to the legislative body within ninety days of such return. "(h) The historic district commission established under section 7-147e may from time to time, by following the procedure set out in subsections (b) to (f), inclusive, of this section, suggest proposed amendments to any ordinance adopted hereunder or suggest additional ordinances to be adopted hereunder." "Sec. 7-147d. certificate of appropriateness. No building or structure shall be erected, altered, restored, moved or demolished within an historic district until after an application for a certificate of appropriateness as to exterior architectural features has been submitted to the commission and approved by said commission. For the purposes of sections 7-147a to 7-147k, inclusive, 'exterior architectural features' shall include such portion of the exterior of a structure as is open to view from a public street, way or place. The style, material, size and location of outdoor advertising signs and bill posters within an historic district shall also be under the control of such commission. The provisions of this section shall not be construed to extend to the color of paint used on the exterior of any building or structure." # "Sec. 7-147k. prior districts unaffected. The provisions of sections 7-147a to 7-147j, inclusive, shall in no way impair the validity of any historic district previously established under any special act." "See. 7-1471. method of balloting, eligibility to vote, (a) Any ballot or balloting required under the provisions of sections 7-147b and 7-147m shall be .taken in writing by mail, or by use of voting machines at a special election warned and held for such purpose, Such warning shall be by written notice mailed to each person eligible to vote in such election at least fifteen days in advance thereof and by publication in a newspaper having a general circulation in the municipality seven days before the election. Any person eligible to vote in any such election shall be given an opportunity to vote by absentee ballot under the usual requirements for voting in such manner. 6(b) In any balloting required under the provisions of said sections, each owner of real property within the district of the age of twenty-one years or more who, jointly or severally, is liable to the town for taxes assessed against him on an assessment of not less than one thousand dollars on the last-completed grand list of the town ,on real property within the district, or who >vould be so liable if not entitled to an exemption under subdivision (17), (20), (23), (24), (26) or (27) of section 12-81, may vote, provided no person holding real property as guardian, conservator, trustee, executor, administrator ,or in any other fiduciary capacity shall be eligible to ballot hereunder, and no such person pr property shall be included in any computation of numbers or percentages required by said sections." The following provisions of Ordinance No. 47, "An Ordinance Cheating a Farmington Historic District and a Farmington Historic District Commission," are relevant to this appeal: "SECTION 1. PURPOSE: ESTABLISHMENT OE EARMIN.6T0N HISTORIC DISTRICT "Jn order to promote the educational, cultural, economic and general w.elfare of the Town of Farmington and others through the preservation and protection of buildings and places of historic interest and through the development of appropriate settings for such buildings and places, a Farmington Historic District, as shown on the map referred to in Section 12 of this Ordinance, is hereby established pursuant to Sections 7-147a to 7-147m, inclusive, of the General Statutes of Connecticut (1963 Supplement) as amended. "SECTION 2. ESTABLISHMENT OF FARMINGTON HISTORIC DISTRICT COMMISSION "A Farmington Historic District Commission, of the Town of Farmington, hereinafter referred to as the Commission, consisting of five members and three alternate members is hereby established. It shall bo the purpose of the Commission to perform the duties and functions of an historic district commission as provided in Section 7-147a to 7-147m, inclusive, of the General Statutes of Connecticut (1963 Supplement) as amended and in this ordinance. "SECTION 5. CERTIFICATE OF APPROPRIATENESS "ISTo building or structure shall be erected, altered, restored, moved or demolished within the Farmington Historic District until after an application for a certificate of appropriateness as to exterior architectural features has been submitted to the Commission and approved by said Commission. 'Exterior architectural features' shall include such portion of the exterior of a structure as is open to view from a public street, way or place. The style, material, size and location of outdoor advertising signs and bill posters within the Farmington Historic District shall also be under the control of the Commission. The provisions of this section shall not be construed to extend to the color of paint used on the exterior of any building or structure. "SECTION 12. BOUNDARIES "The boundaries of the Farmington Historic District shall be as shown on a map, 'Map Showing Proposed Boundaries of the Farm-ington Historic District,' attached hereto and incorporated and made a part of this ordinance." "[General Statutes] See. 7-147k. prior districts unaffected. VALIDATION OF PRIOR CREATIONS AND ACTIONS. NONPROFIT INSTITUTIONS of higher education excluded, (a) The provisions of sections 7-147a to 7-147k, inclusive, shall in no way impair the validity of any historie district previously established under any special aet or the general statutes. Any and all historic districts created under the general statutes, prior to October 1, 1980, otherwise valid except that such districts, district study committees, municipalities or officers or employees thereof, failed to comply with the requirements of any general or special law, and any and all actions of such districts or historic district commission, are validated. "(b) The provisions of sections 7-147a to 7-147k, inclusive, shall not apply to any property owned by a nonprofit institution of higher education, for so long as a nonprofit institution of higher education owns such property." General Statutes (Rev. to 1963) § 7-147b (d) provided that the historic district study committee had to hold a public hearing on the establishment of a proposed historic district after recommending one to the town council. Written notice of the time and place of such a hearing was required by General Statutes (Rev. to 1963) § 7-147b (e) to bo given "to the owners of record of all real property to be included in the proposed historic district . . . ." The trial court found that the plaintiff had not received such notice because the provision had been interpreted as applicable only to natural persons. We do not view the plaintiff's discussion of this lack of notification as asserting a separate ground for finding error below. In its brief the plaintiff refers to this provision requiring notice to "owners of all real property . . ." as supporting its proposition that similar language in the balloting provision, General Statutes (Rev. to 1963) § 7-147b (g), should not be read as limited only to owners who are natural persons. This view comports with the analysis of the trial court, whose ruling concerns only the balloting provision. "The Historie District Enabling Statute is in need of change and improvement, however. Since the law's passage in 1961, almost every session of the General Assembly has had some changes to the law. The result is that certain sections are internally inconsistent and confusing. In other places, the law is unclear or silent on procedure and the responsibilities of the local commission. Senate Bill 16 provides the opportunity to benefit from some 20 years of experience in creating and operating historic districts in the first comprehensive re-drafting of the historic district law since its inception. "Senate Bill 16 represents the culmination of years of work by the staff of both the Connecticut Historical Commission and the Association of Connecticut Historic District Commissioners. This bill has been subjected to detailed criticism by local historic district commission members on several occasions." Hearings before Joint Standing Committee on Planning & Development 1980 Sess., Pt. 1, p. 99 (remarks of John W. Shannahan, Director of the Connecticut Historical Commission and State Historical Preservation Officer for Connecticut). "Bill 16 is essentially a housekeeping bill which is meant to clarify and in some ways simplify the present procedure for setting up an historic district. "The bill does not substantially change the process or alter the significance of an historic district and has been the result of many years of research and study by people who have been closely involved with the process. The proposed revision to the present law attempts to clarify sections where the procedure for the town is unclear and to remove internal inconsistencies. In addition, where the duties of the Connecticut Historical Commission are confusing, the bill defines them more accurately." Hearings before Joint Standing Committee on Planning & Development 1980 Sess., Pt. 1, p. 107 (remarks of Holly Sehadler, Connecticut Preservation Action). "This bill would clarify and make a broad range of substantive and technical changes in the law governing the formation and operation of the historic districts created by municipalities. . . . [T]he bill would . . . clarify [the] existing statute concerning court actions for enforcement of the law and the disposition of fines." (remarks of Sen. Nancy L. Johnson), 23 S. Proc., Pt. 7, 1980 Sess., pp. 1977-78. For similar comments made during debate in the lower chamber of the General Assembly see 23 H. B. Proc., Pt. 19, 1980 Sess., p. 5467 (remarks of Bep. Joseph J. Farrieelli). The record and judgment file contain no evidence that either of these claims was ever brought to the attention of the trial court. No transcripts were filed in this appeal. Any equal protection objections to an unfavorable reading of General Statutes (Rev. to 1963) § 7-147b (g) and (1) were clearly foreseeable prior to trial. General Statutes § 7-147k became effective on October 1, 1980, prior to the rendering of judgment by the trial court on November 18, 1980. The plaintiff concedes that, although the trial court memorandum contained no reference to the validating statute, the defend ants did raise the issue of the impact of that enactment in their post-trial briefs. The plaintiff, too, therefore, presumably had an opportunity to present its due process argument.

Speziale, J. The underlying issue presented on appeal in each of these six companion cases is whether the action of the defendant commissioner, suspending medicaid benefits to the plaintiffs, was illegal in light of controlling federal law. The relevant facts are the same in all six cases and are undisputed: Each of the six plaintiffs is a resident of the Elim Park Baptist Home, Inc., a nonprofit religious home for the aged in Cheshire. The home requires an entry fee of $2000 and, thereafter, residents are charged a monthly fee for room, board, and medical expenses. The plaintiffs each paid, or had paid by a relative on her behalf, the $2000 entry fee. They all qualified for and received medical assistance under the title XIX "Medicaid" program (42 U.S.C. § 1396 et seq.) and the medicaid payments were used to meet their monthly medical expenses. In 1975 and early 1976, medicaid payments to the plaintiffs were suspended by the commissioner of social services. The basis for the suspension was that the $2000 entry fee represented an asset transferred by the plaintiffs without reasonable consideration, and that, pursuant to General Statutes § 17-109 (e), the plaintiffs were not entitled to medicaid benefits until this asset was exhausted, after having been applied toward the cost of care at the appropriate rate. The plaintiffs all appealed the suspension of benefits and requested fair hearings. At each of the hearings, the fair hearing officer upheld the suspension. In support of this conclusion, the memorandum of each of the hearing officers referred to General Statutes § 17-109 (e), and, in addition, alluded to the existence of a life care contract to which General Statutes § 17-116 would be applicable. The plaintiffs then appealed the decisions of the fair hearing officers to the Court of Common Pleas. While the appeals were pending before that court, the United States District Court for the District of Connecticut released its decision in Buckner v. Maher, 424 F. Sup. 366 (D. Conn. 1976), holding that the "transfer-of-assets" rule in § 17-109 (e) of the General Statutes violates the supremacy clause by presuming that assets are available to welfare recipients which are in fact not available. On the basis of the Buckner case and of Morgan v. White, 168 Conn. 336, 362 A.2d 505 (1975), the Court of Common Pleas found that the commissioner had acted illegally in suspending medicaid payments to the plaintiffs and ordered that the plaintiffs be awarded medical assistance and that the Elim Park Baptist Home be reimbursed for any medical services advanced since the suspension which would otherwise have been paid for by the state under the medicaid program. It is from the judgments rendered in those six cases that the defendant has appealed to this court. Subsequent to the filing of this appeal, the United States Supreme Court summarily affirmed the District Court decision in Maher v. Buckner, 434 U.S. 898, 98 S. Ct. 290, 54 L. Ed. 2d 184 (1977). The defendant has consequently withdrawn the claim that the reviewing court erred in holding that because Connecticut's transfer of assets rule is inconsistent with applicable federal law, it violates the supremacy clause. The remaining claims pressed by the defendant on appeal are essentially that: (1) the plaintiff in each of the cases has a valid life care contract with the Elim Park Baptist Home and is therefore ineligible for medicaid; and (2) these life care contracts are available assets to the plaintiffs. It is clear that under applicable federal law only assets actually available to a medicaid applicant may be considered in determining eligibility. 42 U.S.C. § 1396a (a) (17) (B); 42 Fed. Reg. No. 9 at 2687-88 (Jan. 13, 1977) (revising 45 C.F.R. § 248.21); Buckner v. Maher, supra, 373 n.12; Wilczynski v. Harder, 323 F. Sup. 509 (D. Conn. 1971); Morgan v. White, supra, 345. In its memorandum of decisions, the Court of Common Pleas acknowledged the reliance of the fair hearing officers on the life care contract statute (General Statutes § 17-116) as well as on the transfer of assets rule (§17-109 [e]) as their grounds for sustaining the action of the commissioner. The court emphasized, however, that "even if it [the life care contract provision] did apply to the arrangement at the Elim Park Baptist Home — and the court is not so convinced — it would still fall before the primacy clause." We agree. At the outset, it should be noted that the fair hearing officers should not have included the reference to the life care contract statute in their findings. The suspension of benefits by the commissioner was grounded on §17-109 (e), the transfer of assets rule, and no evidence was presented at the fair hearings that the plaintiffs had life care contracts within the meaning of § 17-116. The fair hearing officers should have confined themselves to the question of whether the commissioner's action was valid under § 17-109 (e). See Morgan v. White, supra, 340n. Consequently, we do not decide whether the plaintiffs actually possess life care contracts with the home. Even if the finding of a life care contract had been properly made, however, it would not withstand attack under Buckner. Regardless of the existence of a "life care contract," applicants are entitled to assistance under federal law unless the contract is an asset actually available to them. The home in which the plaintiffs reside imposes a monthly charge for medical expenses; the $2000 entry fee cannot be applied by the residents to meet these payments. The funds simply are not actually available to the plaintiffs. Where there is no actual fraud on the part of the medicaid applicants or of the home in which they reside; see General Statutes § 17-83Í; the commissioner cannot deny benefits on the basis of an irrebutable presumption that anyone who possesses what is allegedly a life care contract has funds which are actually available to meet medical expenses. See Salemma v. White, 175 Conn. 35, 39-41, 392 A.2d 969 (1978). It is thus clear that controlling federal law precludes the commissioner from denying or suspending medicaid benefits merely on the basis of the existence of a life care contract. To the extent that § 17-116 of the General Statutes deprives a person holding a life care contract of medical assistance on any ground other than the actual availability of assets, it must fall before the supremacy clause. There is no error. In this opinion the other judges concurred. "[General Statutes] See. 17-109. eligibility. Any person shall be eligible for an old age assistance award who . . . (e) has not made, within seven years prior to the date of application for such aid, an assignment or transfer or other disposition of property without reasonable consideration or for the purpose of qualifying for an award; provided ineligibility because of such disposition shall continue only for that period of time from date of disposition over which the fair value of such property, together with all other income and resources, would furnish support on a reasonable standard of health and decency . . . ." "[General Statutes] Sec. 17-116. eligibility of applicant having life caee conteact. Assistance shall be given under the provisions of this part to any otherwise eligible person in any boarding home or institution although he is being cared for under a life contract or agreement authorized by the bylaws of such home or institution, in the same manner as if there were no contract or agreement; provided (a) the contract or agreement was entered into and such care commenced prior to April 3, 1957, and has continued to the time of application by sueh person for assistance; (b) the con traet or agreement is with a charitable institution which operates a home or institution in this state which is tax-exempt; (e) the person is, at the time of application, a resident of such home or institution in this state in accordance with such contract or agreement; (d) the consideration transferred, conveyed or paid over to such home or institution by such person or in his behalf would have been used up prior to the date of application for assistance at,-, a monthly rate of seventy-five dollars and, if such consideration has not been used up at such rate, such person shall not be eligible for assistance until the consideration has been exhausted in accordance with such rate; and (e) the income of such home or institution from endowments or contributions is insufficient to permit continued performance of the contract or agreement. Awards shall be granted to persons eligible hereunder in an amount not exceeding the rate set by the commissioner for care in comparable facilities, less the per eapita share of such income of the home or institution, provided the resources of each applicant or beneficiary shall also be taken into consideration." The defendant's statement of issues also raises the claim that the court lacked jurisdiction to order reimbursement to the home for medical services advanced to the plaintiffs following the suspension of medicaid payments by the commissioner. Because this claim has not been briefed by either the defendant or the plaintiffs, we treat it as abandoned.

Loiselle, J. Following a jury trial, the defendant was convicted of assault in the first degree, in violation of General Statutes § 53a-59 (a) (3), and of risk of injury to a minor child, in violation of General Statutes § 53-21. On appeal to this court, the defendant challenges the court's rulings denying both his motion to suppress and his request for a mistrial. The defendant's first claim is directed to the court's ruling admitting into evidence a sweatshirt obtained by the police from the defendant on the night of the assault. The surrounding facts, as revealed in the defendant's brief, are as follows: On June 23, 1975, the victim was discovered on a roadside in the town of Wallingford. He was subsequently taken to his home and then to the local police station. The defendant, a neighbor of the victim, was at home when the victim arrived at his own residence. The defendant and his wife followed the victim to the station. Upon their arrival at the station, the defendant and his wife were asked downstairs, where both were given Miranda warnings. Because the defendant had been named as the assailant, he was asked to give his version of the events which had transpired earlier in the evening. Later, he alone was taken into the detective room, where he was again advised of the fact that he had been named as the assailant. Although Miranda warnings were not explicitly reiterated for the defendant, he was given a Miranda warning card which he was requested to sign. He was then asked to turn over the sweatshirt he was wearing, which, after a pause, he agreed to do. The state's version of the relevant events is as follows: Lieutenant Murt Howard, upon entering the detective division of the station, noticed red spots on the defendant's sweatshirt. The lieutenant was told that the defendant had already been advised of his rights, and the defendant revealed that he understood those rights. When asked about the spots on his shirt, the defendant replied that "it could be red paint" since he had been painting a bicycle at home. Upon further inquiry as to whether it could be blood, the defendant responded that this was possible, since he had cut himself while repairing the bike. Lieutenant Howard then asked the defendant if he would turn over the sweatshirt, advising the defendant that he had a right to refuse this. After some thought, the defendant agreed, stating that "I have been treated fairly here and I will give you the sweatshirt." Soon after, the defendant left the station, accompanied by his wife. He was not formally arrested for over a week, at which point he was arrested pursuant to a bench warrant issued by the Superior Court. The defendant claims that the court's ruling admitting the sweatshirt into evidence violated his fifth amendment privilege against self-incrimination as well as his fourth amendment right to be secure against unreasonable searches and seizures. Because the privilege against self-incrimination serves only to protect "an accused . . . from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature," but does not extend to protect a suspect from serving as the source for "real or physical evidence"; Schmerber v. California, 384 U.S. 757, 761, 764, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966); the defendant's fifth amendment claim must fail. Consequently, the question narrows down to whether the mode by which the police obtained the defendant's sweatshirt violated fourth amendment strictures. The fourth amendment to the United States constitution provides 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 . . . ." A specifically established exception to the warrant and probable cause requirements of this provision is that of a search conducted pursuant to consent. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). The admissibility of evidence derived from a consensual search is contingent, however, upon proof by the state that consent was freely and voluntarily given and not the result of duress or coercion, express or implied. Id., 222, 248. In determining whether this standard is met, courts look to "the totality of all the surrounding circumstances — both the characteristics of the accused and the details of the interrogation." Id., 226. The defendant appears to predicate his claim that no consent was given upon the fact that he was the subject of a custodial interrogation and that such a circumstance is inherently coercive, vitiating the possibility of consent voluntarily and freely given. In Schneckloth v. Bustamonte, supra, the United States Supreme Court explicitly adopted a "totality of the circumstances" test for the determination of voluntariness, bypassing a proposed "talismanie" test relied upon by a lower court. Notably, the court, remarking upon the finding in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), that custodial interrogations by the police were inherently coercive, expressly limited its holding to those searches which took place pursuant to consent given outside the custodial atmosphere. Subsequently, however, in United States v. Watson, 423 U.S. 411, 424, 96 S. Ct. 820, 46 L. Ed. 2d 598 (1976), the court, confronting the issue of the voluntariness of consent given by one arrested and within police custody — although not within the station house — noted that "the fact of custody alone has never been enough in itself to demonstrate a coerced confession or consent to search." See also United States v. Frazier, 560 F.2d 884, 889 (8th Cir. 1977); United States v. Wiener, 534 F.2d 15, 17 (2d Cir. 1976); United States v. Candella, 469 F.2d 173, 175 (2d Cir. 1972). Consequently, whether the defendant is within police custody at the time consent is given is merely one factor to be considered in determining whether the consent was "voluntarily and freely given." The fact of custody may require more careful scrutiny; see United States v. Wiener, supra, 17; but it does not alone preclude the giving of voluntary consent. Whether the defendant was technically in custody at the time he gave up his sweatshirt is not, then, determinative. Rather, the question of whether a consent to a search was in fact voluntary is a question of fact to be determined from the totality of all the relevant circumstances. The record before us substantiates the court's conclusion that the defendant's act in giving up his sweatshirt was voluntary, essentially the product of free, uncon strained choice. The defendant came to the station of his own accord, he was advised of his rights, he was told that he had been named as the assailant, the questions addressed to him with respect to his sweatshirt put him on notice that it could be used to implicate him, he was told that he need not comply with the request to hand over his sweatshirt, and, finally, he left the station, accompanied by his wife, at the close of the questioning. Furthermore, when asked at the trial whether he had voluntarily surrendered his shirt, the defendant conceded that he had. Under these circumstances, it would be difficult to say that the court erred in ruling that the defendant acted voluntarily in giving up his shirt. The defendant's next claim pertains to the court's ruling denying his motion for a mistrial. The facts surrounding this claim are as follows: During the course of the defendant's cross-examination of Lieutenant Howard, the defendant asked, "Now, is there anything that you asked Mr. Adams to do, sign a statement, sign the consent to the lie detector, signing the consent to have his picture taken, letting you cheek his hands — is there anything he refused to do?" The lieutenant responded, "No, sir, he was cooperative. I asked him — he had made a statement to me he had been in trouble in the state of Maine when he was fifteen years of age, and the problem itself was sodomy and assault —" The defendant objected to the answer as unresponsive, the court sustained the objection, and the state explicitly did not claim the answer. The defendant continued his line of questioning. Subsequently, after the conclusion of this cross-examination, the defendant moved for a mistrial based upon the prejudicial nature of the lieutenant's remark. The court denied the motion after argument, but offered to submit a curative charge to the jury. Both parties agreed to this arrangement without objection and curative instructions were given. For the firs.t time on appeal, the defendant seeks to bulwark his claim that a mistrial was warranted by pointing out additional possibly prejudicial remarks which came out later in the trial when the defendant was being questioned on cross-examination. The transcript reveals that the defendant failed to interpose the ground for objection he now asserts. Rather, he claimed that the questions raised by the state were repetitive. "Once counsel states the authority and ground of his objection, any appeal will be limited to the ground asserted." Borucki v. MacKenzie Bros. Co., 125 Conn. 92, 3 A.2d 224 (1938); State v. Rado, 172 Conn. 74, 81, 372 A.2d 159 (1976); State v. Johnson, 166 Conn. 439, 444-45, 352 A.2d 294 (1974); Salvatore v. Hayden, 144 Conn. 437, 443, 133 A.2d 622 (1957). An exception to this rule permits a claim to be raised for the first time on appeal where it involves the defendant's constitutional right to a fair trial. Malley v. Manson, 547 F.2d 25, 28 (2d Cir. 1976), cert. denied, 430 U.S. 918, 97 S. Ct. 1335, 51 L. Ed. 2d 598 (1977); see also State v. Hauck, 172 Conn. 140, 148, 374 A.2d 150 (1976); State v. Evans, 165 Conn. 61, 69-71, 327 A.2d 576 (1974). Given the context in which the state's line of questioning was pursued and the fact that the defendant's answers foreclosed further inquiry, we cannot say that this line of questioning deprived the defendant of a fair trial. Furthermore, this episode came after the defendant's motion for a mistrial was ruled upon. The defendant failed to move again for a mistrial. Consequently, this particular interchange cannot logically provide any grounds for a claim that the court erred in denying the defendant's sole motion for a mistrial. It defies logic to require the court to rule upon a motion on the basis of evidence not yet admitted or questions not yet asked. The question of whether the court erred in denying the defendant's motion for a mistrial must, then, focus solely upon the remark divulged by Lieutenant Howard upon cross-examination by the defendant. As stated in State v. Paluga, 171 Conn. 586, 599, 370 A.2d 1049 (1976), citing State v. Grayton, 163 Conn. 104, 112, 302 A.2d 246 (1972), cert. denied, 409 U.S. 1045, 93 S. Ct. 542, 34 L. Ed. 2d 495 (1972), " 'The general principle is that a mistrial should be granted only as a result of some occurrence on the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial. Izzo v. Crowley, 157 Conn. 561, 565, 254 A.2d 904; Ferino v. Palmer, 133 Conn. 463, 466, 52 A.2d 433.' 'The trial court fias wide discretion in passing on motions for mistrial.' State v. Savage, 161 Conn. 445, 449, 290 A.2d 221." The question becomes, therefore, whether the officer's remark was so prejudicial as to prevent the defendant from obtaining a fair trial. We eannot say that the comments were of such magnitude. Although the answer was clearly unresponsive, and inappropriately suggestive, little of substance was revealed. Within the context of the full trial, the remark pales in significance. Twice the jury were told, in words calculated not to draw attention to the remark, that it was to be disregarded. Under these circumstances, we cannot say that the court abused its discretion in denying the motion for a mistrial. See State v. Rado, 172 Conn. 74, 81, 372 A.2d 159 (1976). There is no error. In this opinion the other judges concurred. "[By Mr. Kelly:] Q. Have you ever asked any minor child — and this is going beyond any members of your family, or where you might be doing diaper changing — to take down his or her pants, or take off his or her clothing? A. I had not. Q. You are sure of that? A. I am positive of that. Q. I have been asking you questions for a period of time. Again, do you recall the name 'Penny' — Mr. Silver: I object to this. This has been asked four or five times. Mr. Kelly: This is the second .time I asked it. By Mr. Kelly: Q. Penny Saunders? The Court: I will allow it. The Witness: I do not. By Mr. Kelly: Q. You do not recall that name? A. I do not. Q. It means absolutely nothing to you? A. Nothing whatsoever. Q. You never heard the name? Mr. Silver: I object, your Honor. He has asked that time and time again. The Court: It's been answered." In charging the jury, the eourt included the following curative instruction: "On occasion, too, certain evidence was offered here, and perhaps as it was offered you could perceive the nature of it, but when it was offered, the eourt entertained an objection to it, and it was excluded or stricken from the evidence. In such instance, you will disregard the question and not speculate as to what the answer might have been or, if the answer was given anyway, and you heard it, you will disregard that answer likewise in your deliberations, as when questions and answers are also expressly stricken from the record. "So, for example, you may recall that Police Officer Howard, having been called as a witness by the state, when under cross-examination by the defendant, at one point in his testimony responded, in part, to a question concerning the defendant's cooperation with the police by relating that the defendant told him, Officer Howard, that the defendant had been in trouble in Maine as a juvenile, on a problem described in terms of a criminal offense, although, as I recall, Officer Howard did not say that the defendant said that he was so charged or convicted. "On the defendant's objection, the court again struek from the record so much of Officer Howard's answer as involved that statement of the defendant to him. I instructed you then that that part of Officer Howard's answer was excluded from evidence and to be disregarded by you, the jury, as not evidence, and so not to be considered in your deliberation upon the evidence properly before you, and that I would repeat and refresh your recollection upon that instruction in these my concluding remarks or instructions to you. That, of course, is just what I am doing, and, so, I repeat that that portion of Officer Howard's answer and testimony was excluded from the evidence available for your consideration and that you must disregard it in your deliberation and determination."

The petition by the defendant Modugno, Modugno and Modugno, LLC, for certification for appeal from the Appellate Court (AC 25829) is denied.

Opinion SULLIVAN, C. J. The defendant, John J. Commins, was convicted, after a jury trial, of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a (a) (l). Thereafter, he pleaded nolo contendere to the charge of being a third offender under § 14-227a (g). The trial court sentenced the defendant to a term of three years imprisonment, suspended after one year, with three years probation. The court also imposed a $3000 fine, ordered the defendant to perform 200 hours of community service, and permanently revoked the defendant's license pursuant to § 14-227a (g) (3) (C). The defendant then appealed from the judgment of conviction to the Appellate Court, claiming, inter alia, that the trial court improperly had determined that the elements of § 14-227a (a) (1) were substantially similar to the elements of a New York offense for which he had been convicted twice previously. The Appellate Court concluded that the defendant had waived his right to appeal from the judgment of conviction under § 14-227a (g) when he pleaded nolo contendere to the charge of being a third offender, and affirmed the judgment of the trial court. State v. Commins, 83 Conn. App. 496, 498, 512-14, 850 A.2d 1074 (2004). We granted the defendant's petition for certification to appeal limited to the following issue: "Did the Appellate Court properly conclude that the defendant had waived his right to challenge the trial court's determination that he was a third offender pursuant to General Statutes § 14-227a (g)?" State v. Commins, 271 Conn. 905, 859 A.2d 564 (2004). We affirm the judgment of the Appellate Court. The Appellate Court's opinion sets forth the following facts and procedural history. The jury reasonably could have found that "[e]arly in the morning of August 16, 2002, Officer Steven Santucci of the Newtown police department was on patrol on Route 34 in Newtown and observed the defendant, who was driving a truck, approach an intersection, enter a left turn only lane and activate the truck's left turn signal. Instead of turning left at the intersection, however, the defendant continued through the intersection, and drove along the median line and into the oncoming traffic lane. On the basis of those observations, Santucci initiated a traffic stop. "During the traffic stop, the defendant informed Santucci both that he was on his way home and that he was coming from his home. While speaking with the defendant, Santucci detected the odor of alcohol on his breath. In view of the defendant's erratic driving and the odor of alcohol, Santucci proceeded to administer three field sobriety tests to the defendant. "The first test administered was the horizontal gaze nystagmus test. Nystagmus is the inability of the eyes to maintain visual fixation on a stimulus when the eyes are turned to the side, often resulting in a lateral jerking of the eyeball. . . . The premise of the horizontal gaze nystagmus test is that as alcohol consumption increases, the closer to the midline of the nose the onset of nystagmus occurs. To administer the test, the officer positions a stimulus approximately twelve to eighteen inches away from and slightly above the subject's eyes. The stimulus, usually a pen or the officer's finger, is then moved slowly from the midline of the nose to maximum deviation, the farthest lateral point to which the eyes can move to either side. The officer observes the subject's eyes as he tracks the stimulus and looks for six clues, three for each eye, to determine whether the subject passes or fails the test. . A finding of four clues indicates failure of the test and is a sign of intoxication. Santucci testified that the defendant possessed all six clues and that those results indicated that the defendant was under the influence of alcohol. "Santucci also administered the walk and turn test and the one-leg stand test. Santucci testified that the defendant's performance on both tests indicated that he was under the influence of alcohol. "On the basis of the defendant's performance on the three tests, his erratic driving and the odor of alcohol on his breath, Santucci placed the defendant under arrest and transported him to the police station, where the defendant refused to submit to a breath test. The defendant subsequently was charged by information with driving while under the influence of intoxicating liquor in violation of § 14-227a (a) (1)." (Citations omitted.) State v. Commins, supra, 83 Conn. App. 498-500. "[T]he state [also] charged the defendant under apart B information as a third offender on the basis of his two prior convictions in New York, one in 1984 and the other in 1993, for operating a motor vehicle while under the influence of alcohol or drugs in violation of N.Y. Vehicle & Traffic Law § 1192 (McKinney 1996). Following the jury's verdict finding the defendant guilty of operating a motor vehicle while under the influence of intoxicating liquor, the court addressed the part B information. After hearing argument on whether the New York convictions occurred within the ten year period set forth in § 14-227a (g) (3), the court concluded that the convictions qualified for consideration. At that time, the defendant indicated his intention to enter a plea of nolo contendere to the part B information. On the plea form, signed by the defendant on November 8, 2002, the defendant did not check the box indicating that the plea was conditional. Also, the court fully canvassed the defendant with regard to the plea and advised him of all relevant rights. The court found that the defendant had entered his plea knowingly, intelligently and voluntarily with the assistance of competent counsel, but the court did not accept the plea at that time. "On January 10,2003, following a presentence investigation hearing at which the court again heard argument on the issue of whether the defendant's New York convictions qualified as 'prior convictions' for purposes of § 14-227a (g), the court determined that the essential elements of the New York statute were substantially the same as § 14-227a (a) (1). The court then accepted the defendant's nolo contendere plea and sentenced the defendant as a third offender." State v. Commins, supra, 83 Conn. App. 512-13. The defendant appealed from the judgment to the Appellate Court, which affirmed the trial court's judgment. This certified appeal followed. The defendant claims on appeal that when he entered the plea of nolo contendere, he intended to admit only that he had two prior convictions in New York. He did not intend to admit that the elements of the New York offenses were substantially similar to the elements of § 14-227a (g), and, in fact, argued that the elements of the New York and Connecticut offenses were not substantially the same. He claims that, under these circumstances, he is entitled to appellate review of the trial court's ruling that the essential elements of the offenses were substantially similar. The defendant makes four arguments in support of this claim. First, he argues that the trial court lacked subject matter jurisdiction to accept his nolo contendere plea because: (1) he was deprived of his constitutional right to have a jury determine whether the state had proven beyond a reasonable doubt an essential element of § 14-227a (g); and (2) part B of the information failed to inform him that the state needed to prove that the elements of the New York and Connecticut offenses were substantially similar. Second, he argues that the plea was not knowing, voluntary, and intelligent because: (1) he was not informed that he was waiving his right to contest the "substantially similar" issue when he entered his plea; (2) part B of the information did not allege that the elements of the New York and Connecticut offenses were substantially the same; and (3) he was not informed that, as a third offender, he would be exposed to additional punishment after pleading nolo contendere. Third, he argues that the plea was conditional. Fourth, he argues that, even if we conclude that the foregoing arguments are without merit, there is good cause for this court to review the trial court's ruling. We disagree. At the outset we address the standard of review. Whether the Appellate Court properly concluded that the defendant had waived his right to challenge the trial court's determination that he was a third offender is a question of law. Our review, therefore, is plenary. Duperry v. Solnit, 261 Conn. 309, 318, 803 A.2d 287 (2002). Before addressing the substance of the defendant's claims, we provide a brief overview of Connecticut's law pertaining to nolo contendere pleas. A nolo contendere plea has the same effect as a guilty plea, but a nolo contendere plea cannot be used against the defendant as an admission in a subsequent criminal or civil case. State v. Madera, 198 Conn. 92, 97 n.5, 503 A.2d 136 (1985). "As a general rule, an unconditional plea of guilty or nolo contendere, intelligently and voluntarily made, operates as a waiver of all nonjurisdictional defects and bars the later assertion of constitutional challenges to pretrial proceedings." (Emphasis in original.) Id., 97. There are three circumstances, however, under which a defendant who pleads nolo contendere will not lose his or her right to appeal. First, if the defendant enters a conditional nolo contendere plea pursuant to General Statutes § 54-94a, he or she may preserve certain claims arising from the trial court's denial of a motion to suppress or amotion to dismiss. "In enacting § 54-94a, the legislature created a new, expedited route to the appellate courts . Section 54-94a is intended to promote judicial economy by allowing the parties to litigate a suppression or dismissal issue fully in the trial court, and thereafter allowing the defendant to obtain review of an adverse ruling without the parties' or the court's expending additional resources." (Internal quotation marks omitted.) State v. Piorkowski, 236 Conn. 388, 402, 672 A.2d 921 (1996). Second, this court has reviewed claims outside the scope of § 54-94a by exercising our "inherent supervisory authority over the administration of justice." State v. Revelo, 256 Conn. 494, 502, 775 A.2d 260, cert. denied, 534 U.S. 1052, 122 S. Ct. 639, 151 L. Ed. 2d 558 (2001). Our use of this exception, which we invoke only when there is good cause, is rare. Id., 503. Third, if the trial court lacked subject matter jurisdiction to take the plea or if the plea was not knowing, voluntary, and intelligent, the defendant may appeal issues that are "fully disclosed in the record that relate either to the exercise of jurisdiction by the court or to the voluntary and intelligent nature of the plea . . . ." (Internal quotation marks omitted.) State v. Lasaga, 269 Conn. 454, 479, 848 A.2d 1149 (2004). With these principles in mind, we address in turn each of the defendant's four arguments on appeal. I First, we must address the defendant's arguments pertaining to the trial court's subject matter jurisdiction. See Castro v. Viera, 207 Conn. 420, 429, 541 A. 2d 1216 (1988) ("once the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case" [citations omitted; internal quotation marks omitted]). Although the defendant raised these claims for the first time before this court, we reach the merits of his arguments because it is well established that subject matter jurisdiction "may be raised by a party, or by the court sua sponte, at any stage of the proceedings, including on appeal." Peters v. Dept. of Social Services, 273 Conn. 434, 441, 870 A.2d 448 (2005). A Relying on our dictum in State v. Madera, supra, 198 Conn. 98 n.6, the defendant first argues that a court lacks subject matter jurisdiction to accept a nolo contendere plea "if the statute under which the defendant is charged is unconstitutional." He claims that § 14-227a (g) is unconstitutional because it requires the court to determine whether another state's drunk driving statute is substantially similar to Connecticut's statute. This, the defendant asserts, is a question of fact that a jury must find beyond a reasonable doubt. See Apprendi v. New Jersey, 530 U.S. 466, 476, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) (constitutional guarantees of due process and right to jury trial require that jury be presented with all questions of fact that increase maximum penalty for crime); see also Blakely v. Washington, 542 U.S. 296, 303-304, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) (same). We assume without deciding that a court lacks jurisdiction to accept a nolo contendere plea if the statute under which the defendant is charged is unconstitutional. We conclude, however, that the defendant's argument fails. Apprendi and its progeny are inapposite because those cases mandate that a jury must decide every question of fact that increases the penalty for a crime. Apprendi v. New Jersey, supra, 530 U.S. 490-92 (constitution requires jury to determine whether defendant acted with purpose to intimidate individual because of race); see also United States v. Booker, 543 U.S. 220, 227, 233-44, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005) (invalidating federal sentencing guidelines that required judges to impose higher sentences after determining, by preponderance of evidence, that defendants possessed certain quantities of illegal drugs); Blakely v. Washington, supra, 542 U.S. 303 Qury must decide whether defendant acted with " 'deliberate cruelty' "). The issue of whether the elements of the New York and Connecticut statutes under which the defendant was convicted were substantially the same calls for the comparison and interpretation of those statutes, which is a question of law. See State v. Vickers, 260 Conn. 219, 223, 796 A.2d 502 (2002) (statutory interpretation is question of law). Thus, § 14-227a (g) properly directs the trial court to make that determination. Practice Book § 42-20 ("The judicial authority shall decide all issues of law and all questions of law arising in the trial of criminal cases. . . . [T]he judicial authority shall submit the facts to the jury . . . ."). Because we conclude that § 14-227a (g) is constitutional, the defendant's argument fails. B The defendant next argues that part B of the information was defective because it did not describe the offense with particularity, as required by the sixth amendment to the United States constitution and by article first, § 8, of the constitution of Connecticut. State v. Vumback, 263 Conn. 215, 221, 819 A.2d 250 (2003). He asserts that this deficiency deprived the trial court of subject matter jurisdiction to take his plea, thereby rendering his plea invalid. We conclude that the defendant's claim fails because "it is sufficient for the state to set out in the information the statutory name of the crime with which the defendant is charged . . . ." (Internal quotation marks omitted.) State v. Spigarolo, 210 Conn. 359, 382, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989); see also State v. Walton, 34 Conn. App. 223, 227, 641 A.2d 391 (short form information that sets forth crimes charged by name and statutory reference is sufficient to invoke court's jurisdiction), cert. denied, 230 Conn. 902, 644 A.2d 916 (1994). Because part B of the information set forth the statutory name of the crime, it was constitutionally sufficient. II We next address the defendant's argument that his plea was not knowing, voluntary and intelligent because: (1) he was not informed that he was waiving his right to contest the substantially similar issue when he entered his plea; (2) part B of the information did not allege that the elements of the New York and Connecticut offenses were substantially the same; and (3) he was not informed that, as a third offender, he would be exposed to additional punishment after pleading nolo contendere. See Boykin v. Alabama, 395 U.S. 238, 242-44, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969) (guilty plea is not constitutionally valid unless record affirmatively discloses that defendant entered plea voluntarily and intelligently). It is well established that in order to obtain appellate review of a claim that a plea was not knowing, voluntary, or intelligent, the defendant must raise the claim before the trial court. State v. Childree, 189 Conn. 114, 119, 454 A.2d 1274 (1983). The defendant may do this by moving to withdraw the plea in accordance with Practice Book § 39-26 and 39-27. The defendant in the present case did not move to withdraw his plea. Therefore, his claim has not been preserved for appellate review. We recognize that this court previously has reviewed unpreserved claims of this nature. See State v. Childree, supra, 189 Conn. 119 (reviewing defective plea claim under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 [1973]). It is well established, however, that parties must affirmatively seek to prevail under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine and bear the burden of establishing that they are entitled to appellate review of their unpreserved constitutional claims. State v. Ramos, 261 Conn. 156, 171, 801 A.2d 788 (2002). The defendant understandably has not sought to prevail under Golding with regard to this claim. Accordingly, we do not consider the merits of this argument. Ill We next address the defendant's claim that, although he did not enter an explicitly conditional plea, the circumstances surrounding his plea rendered it conditional and preserved his right to appeal pursuant to § 54-94a. Specifically, he suggests that the trial court's refusal to accept the plea until after it had held a hearing on the issue of whether the elements of the New York and Connecticut offenses were substantially the same and defense counsel's vigorous argument that the elements of the offenses were not substantially similar, rendered the plea conditional and left all participants with the impression that he would be able to appeal from the trial court's decision on that issue. We disagree. As we stated previously in this opinion, an unconditional plea of nolo contendere, intelligently and voluntarily made, waives all nonjurisdictionai defects. State v. Madera, supra, 198 Conn. 97. Upon pleading nolo contendere, a defendant relinquishes his right to appeal because the plea, "like a demurrer, impliedly admit[s], for the purposes of the case, all the facts in the indictment or information which are well pleaded; and it also admits the elements of the offense charged." 22 C.J.S., Criminal Law § 399 (1989). Section 54-94a, however, "abrogat[es], in certain circumstances, the waiver of constitutional rights that is implicit in a . . . nolo contendere plea." (Internal quotation marks omitted.) State v. Piorkowski, supra, 236 Conn. 401. Section 54-94a provides the defendant with a procedure that preserves the right to appeal the trial court's judgment of conviction as long as his or her appeal is limited to the issue of "whether it was proper for the court to have denied [a] motion to suppress or [a] motion to dismiss." Because this right to appeal is statutory, we have refused to expand the statute beyond the issues explicitly enumerated in § 54-94a. State v. Lasaga, supra, 269 Conn. 479 ("[t]his court has been reluctant to invoke its authority to review an issue raised in connection with a conditional plea of nolo contendere when . . . that issue does not fall within the narrow scope of § 54-94a" [internal quotation marks omitted]); State v. Madera, supra, 198 Conn. 102 (declining to review issue outside ambit of § 54-94a and cautioning that "trial courts should not employ this procedural innovation except in situations plainly within the provisions of § 54-94a"); see also State v. Kelley, 206 Conn. 323, 334-35, 537 A.2d 483 (1988) (same). In this case, the defendant did not file a motion to dismiss part B of the information. Because the trial court never denied a motion to dismiss or a motion to suppress, there is no appealable issue under § 54-94a. Therefore, the Appellate Court correctly refused to apply § 54-94a in order to review the merits of the defendant's claim. The defendant implicitly argues, however, that the trial court acted as if the defendant had filed a motion to dismiss when it held a hearing and rendered a decision on the substantially similar issue, and that, under these circumstances, we should review the claim as if the defendant had filed the motion. We disagree. Even if we were to regard the trial court's sua sponte request for oral argument as a hearing on a motion to dismiss, the defendant still never indicated that his plea was conditional. We have refused to apply § 54-94a in a situation in which the defendant had not clearly indicated that her plea was conditional. State v. Gilnite, 202 Conn. 369, 371-72, 521 A.2d 547 (1987). In Gilnite, the defendant was charged with larceny and with being a persistent larceny offender in violation of General Statutes § 53a-40 (c). Id., 371. Ultimately, a jury returned a verdict of guilty on the larceny charge. Id., 372. Thereafter, the defendant pleaded not guilty to the charge of being a persistent larceny offender and filed a motion to dismiss part B of the information. The court denied the motion. Id. The defendant then withdrew her plea of not guilty and entered a plea of nolo contendere without stating on the record that the plea was conditional. Id. On appeal to this court, the defendant claimed that, during a discussion in chambers, the court had indicated that it understood that her plea was conditional. She asked this court to examine all the circumstances surrounding her plea and find that it was, in effect, conditional. Id., 377-78. We declined to reach the merits of her appeal because "[t]here [was] simply no indication on the record that the plea was entered pursuant to . § 54-94a." Id., 379. This court concluded that "[b]ecause this right to appeal the denial of a motion to dismiss is statutory, it is accorded only if the conditions fixed by the statute are met. . . . General Statutes § 54-94a requires that the defendant enter a plea of nolo contendere conditional upon the right to take an appeal from the court's denial of the defendant's motion to dismiss. Thus, in order for a defendant to preserve the right to appeal the court's decision denying a motion to dismiss, there must be some indication on the record that the plea of nolo contendere was entered conditional upon this right." (Citations omitted; emphasis in original.) Id., 375-76. Like the defendant in State v. Gilnite, supra, 202 Conn. 378, the defendant in this case did not state that his plea was conditional when he entered it or during the plea canvass, nor did he indicate that it was conditional on the written plea form. In addition, the defendant never indicated, during either the November plea canvass or the January hearing, that he was dissatisfied with his decision to enter an unconditional plea of nolo contendere, even though he had had months to reconsider his decision before the trial court accepted the plea. We recognize that the circumstances of this case ar guably distinguish it from Gilnite. Although the defendant in the present case entered his plea and was canvassed on November 8, 2002, the court sua sponte declined to accept his plea until after it had heard oral argument on the substantially similar issue on January 10, 2003. Thus, it is not unreasonable to argue that the trial court understood the plea to be conditioned on its ruling on the substantially similar issue. If the trial court had found that the essential elements of the offenses were not substantially the same, it clearly would not have accepted the plea. Nevertheless, we are not persuaded. The defendant had no due process right to a hearing on the substantially similar issue in light of his nolo contendere plea, and he did not invoke his statutory right under § 54-94a to enter a plea conditional on the right to appeal. Moreover, as we stated previously, he did not file a motion to dismiss the third offender charge. Thus, by ordering arguments on this issue sua sponte, the trial court went beyond the requirements of the law. The fact that the trial court provided procedures that went above and beyond the requirements of due process and the governing statutes does not require this court to follow suit by reviewing those procedures. Accordingly, we conclude that the Appellate Court properly concluded that the defendant waived his right to challenge the trial court's determination that he was a third offender pursuant to § 14-227a (g). IV We next address the defendant's final argument that we should use our inherent supervisoiy authority to review his claim despite his failure to enter a conditional plea because good cause exists. This court previously has recognized that it may review claims outside the scope of § 54-94a under its "inherent supervisory authority over the administration of justice." State v. Madera, supra, 198 Conn. 99-100; id., 99-102 (considering whether to exercise supervisory authority and declining to do so); see also State v. Revelo, supra, 256 Conn. 502-503 (invoking supervisory authority and considering merits of claim because there was good cause to review it). We have observed, however, that " [o]ur supervisory powers are not a last bastion of hope for every untenable appeal. They are an extraordinary remedy to be invoked only when circumstances are such that the issue at hand, while not rising to the level of a constitutional violation, is nonetheless of utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole." (Emphasis in original; internal quotation marks omitted.) State v. Hines, 243 Conn. 796, 815, 709 A.2d 522 (1998). Consistent with this general principle, we have concluded that good cause to review an issue that has not been raised pursuant to § 54-94a "is likely to be established only infrequently." State v. Revelo, supra, 503. In Revelo, the defendant filed a motion to suppress certain evidence and asked the trial court for a hearing on that motion. Id., 497. At that time, the state had offered the defendant a plea agreement of eight years in prison. The trial court warned the defendant that he would receive nine years in prison if he pleaded guilty after requiring the court to render a decision on the motion to suppress. Id., 497-98. The defendant pursued the motion unsuccessfully. He then entered a conditional plea of nolo contendere pursuant to § 54-94a and was given a nine year sentence. Id., 498-99. The Appellate Court declined to review the propriety of the trial court's actions because due process claims are not explicitly enumerated in § 54-94a. Id., 500. On appeal to this court, we reversed the Appellate Court's decision because there was good cause to review the defendant's claim. Id., 503-504. We have recognized that "[t]hree factors informed our decision to review [the defendant's claim in Revelo]. . . . First, the defendant's due process claim [gave] rise to an important issue, namely, the proper role of our trial judges in the plea bargaining process . Second, the undisputed facts of the case [bore] out the defendant's claim of a constitutional violation. . . . Third, we were compelled, in order to prevent trial courts from employing a practice that violated due process principles, to rectify Appellate Court dictum permitting the practice that the defendant challenged." (Citations omitted; internal quotation marks omitted.) State v. Lasaga, supra, 269 Conn. 480; see also State v. Chung, 202 Conn. 39, 43-45, 519 A.2d 1175 (1987) (reviewing defendant's claim although he entered conditional plea seeking to contest issue outside narrow scope of § 54-94a because record was adequate for appellate review, trial court's use of conditional plea statute obviated need for full trial, and both sides urged this court to reach merits). Applying the three part test for good cause set forth in Revelo, we conclude that review of the defendant's claim is unwarranted because, unlike the claim in Revelo, there is no constitutional violation that is borne out by the undisputed facts of this case. As we have indicated, the defendant, having entered an uncondi tional plea, had no due process right to contest the substantially similar issue. Accordingly, we decline to review the merits of the defendant's claim under our inherent supervisory authority over the administration of justice. The judgment of the Appellate Court is affirmed. In this opinion the other justices concurred. General Statutes § 14-227a (a) provides in relevant part: "No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if such person operates a motor vehicle on a public highway of this state . (1) while under the influence of intoxicating liquor or any drug or both . . . ." General Statutes § 14-227a (g) provides in relevant part: "Any person who violates any provision of subsection (a) of this section shall . (3) for conviction of a third and subsequent violation within ten years after a prior conviction for the same offense, (A) be fined not less than two thousand dollars or more than eight thousand dollars, (B) be imprisoned not more than three years, one year of which may not be suspended or reduced in any manner . . . and (C) have such person's motor vehicle operator's license or nonresident operating privilege permanently revoked upon such third offense. For purposes of the imposition of penalties for a second or third and subsequent offense pursuant to this subsection, a conviction under the provisions of subsection (a) of this section . a conviction under the provisions of either subdivision (1) or (2) of subsection (a) of this section, a conviction under the provisions of section 53a-56b or 53a-60d or a conviction in any other state of any offense the essential elements of which are determined by the court to be subsl antially the same as subdivision (1) or (2) of subsection (a) of this section or section 53a-56b or 53a-60d, shall constitute a prior conviction for the same offense." A defendant qualifies as a third offender as long as the second and third convictions occurred within ten years of each other. State v. Kratzert, 70 Conn. App. 565, 569-71, 799 A.2d 1096 (2002). We note that on November 8, 2002, the trial court, sua sponte, ordered argument on the issue of whether the convictions were substantially similar. The defendant did not contest the issue prior to the January 10,2003 hearing. General Statutes § 54-94a provides: "When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court's denial of the defendant's motion to suppress or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law provided a trial court has determined that a ruling on such motion to suppress or motion to dismiss would be dispositive of the case. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution." See also Practice Book § 61-6 (a) (2) (implementing § 54-94a). Specifically, the defendant claims that part B of the information did not inform him that the state was required to prove that the elements of the offenses were substantially the same. Practice Book § 39-26 provides in relevant part: "A defendant may withdraw his or her plea of guilty or nolo contendere as a matter of right until the plea has been accepted. After acceptance, the judicial authority shall allow the defendant to withdraw his or her plea upon proof of one of the grounds in Section 39-27. . . ." Practice Book § 39-27 provides in relevant part: "The grounds for allowing the defendant to withdraw his or her plea of guilty after acceptance are as follows . . . "(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 . . . It is not unreasonable to conclude that the defendant declined to make a Golding claim because he was well aware that the record is inadequate for review. See State v. Golding, supra, 213 Conn. 239-40. The defendant did provide a Golding analysis with respect to his Apprendi claim. The defective plea issue also was never raised before the Appellate Court. "[0]n a certified appeal, our focus is on the judgment of the Appellate Court . . . and we ordinarily do not review claims not raised therein." (Citation omitted.) State v. Nunes, 260 Conn. 649, 658, 800 A.2d 1160 (2002). In his brief, the defendant writes: "Clearly, all the parties knew and understood that there was an open issue . It is completely contrary to the record to assert that the defendant abandoned this issue for appellate purposes." During a conversation pertaining to the defendant's motion to dismiss, the trial court indicated that if the motion were denied, the defendant's next step would be to enter a conditional plea of nolo contendere pursuant to § 54-94a State v. Gilnite, supra, 202 Conn. 377. We note that a defendant does not need to invoke § 54-94a by name in order to render his plea conditional and preserve his right to appeal. There must be a clear indication on the record that the defendant sought to enter a conditional nolo contendere plea. See State v. Kelley, supra, 206 Conn. 333. We have concluded that the defendant was on notice that the charge under § 14-227a (g) required the state to prove that the elements of the offenses were substantially similar. See part IB of this opinion. By pleading nolo contendere to the charges, the defendant waived his right to contend that they were not substantially similar.

The petition by the state of Connecticut for certification for appeal from the Appellate Court, 91 Conn. App. 650 (AC 25192), is denied.

The plaintiffs' petition for certification for appeal from the Appellate Court, 90 Conn. App. 27 (AC 25150), is denied. Decided October 17, 2005 Davidson D. Williams, pro se, in support of the petition. Carolyn R. Linsey, in opposition.

The defendant's petition for certification for appeal from the Appellate Court, 91 Conn. App. 788 (AC 25250), is denied. SULLIVAN, C. J., did not participate in the consideration or decision of this petition.

The plaintiffs' petition for certification for appeal from the Appellate Court, 91 Conn. App. 289 (AC 24941), is denied.

The plaintiffs petition for certification for appeal from the Appellate Court, 91 Conn. App. 492 (AC 25754), is granted, limited to the following issue: "Having determined that the trial court improperly had invoked the rule of Dale's Appeal from Probate, 57 Conn. 127, 17 A. 757 (1888), to exclude evidence in the present case, did the Appellate Court improperly affirm the trial court's evidentiary rulings?" The Supreme Court docket number is SC 17536. Decided November 3, 2005 Richard L. Albrecht, Courtney A. George and Barbara M. Schellenberg, in support of the petition. W. I. Haslun II and Joyce H. Young, in opposition.

The defendant's petition for certification for appeal from the Appellate Court, 91 Conn. App. 169 (AC 25451), is denied. NORCOTT, J., did not participate in the consideration or decision of this petition.

The defendant's petition for certification for appeal from the Appellate Court, 91 Conn. App. 735 (AC 26288), is denied.

The defendant's petition for certification for appeal from the Appellate Court, 91 Conn. App. 1 (AC 25212), is denied.

The defendant's petition for certification for appeal from the Appellate Court (AC 26812) is denied.

The defendant's petition for certification for appeal from the Appellate Court, 90 Conn. App. 548 (AC 24964), is denied.

Opinion SULLIVAN, C. J. The sole issue in this certified appeal is whether the trial court properly instructed the jury that no attorney-client relationship existed between the named defendant, Joseph E. Milardo, Jr., a partner in the law firm of Jozus, Milardo and Thomasson (law firm), and the plaintiffs son, Lawrence J. DiStefano, when it instructed the jury on the allegation of breach of fiduciary duty. The plaintiff, Olga J. DiStefano, appeals, following our grant of certification from the judgment of the Appellate Court affirming the trial court's judgment in favor of the defendants. DiStefano v. Milardo, 82 Conn. App. 838, 848, 847 A.2d 1034 (2004). The trial court directed a verdict in favor of the defendants on the malpractice and breach of contract counts, and the jury returned a verdict in favor of the defendants on the remaining counts of breach of fiduciary duty and negligent infliction of emotional distress. The Appellate Court affirmed the trial court's judgment. We affirm the judgment of the Appellate Court. The opinion of the Appellate Court sets forth the following facts and procedural history. "The plaintiff and her husband, Sebastian DiStefano, had three children: Steven DiStefano, Lawrence DiStefano and Luann Filer. The defendants represented both Sebastian DiStefano and the plaintiff on various legal matters from 1991 through 1995. "In February, 1992, Milardo prepared a will for the plaintiff naming Sebastian DiStefano and Lawrence DiStefano as the beneficiaries. In March, 1995, Sebastian DiStefano died. Shortly thereafter, the plaintiff opened a joint checking account with Lawrence DiStefano. From May 5 through 8, 1995, she was hospitalized for alcoholism and related symptoms. On May 10,1995, Milardo drafted a power of attorney, including a provision granting Lawrence DiStefano the right to make gifts to himself from her property or accounts. On the same day, Milardo drafted a living will and a document naming Lawrence DiStefano as conservator in the event of her future incapacity. The plaintiff executed all of those documents. "The plaintiff was again hospitalized for alcoholism and related symptoms from September 22 through 28, 1995. During her hospitalization, Lawrence DiStefano warned her that his two siblings were attempting to take control of her financial affairs. While in the hospital, she requested that Milardo draft a trust agreement for her, naming Lawrence DiStefano as the trustee. She signed the trust agreement in the hospital. "The agreement listed certain real property, located in Middletown and Rockfall, owned by the plaintiff. The plaintiff also created a trust account, not listed in the trust agreement, of which Lawrence DiStefano was named the trustee. At the time she signed the trust agreement, the plaintiff also signed two quitclaim deeds, prepared by Milardo, transferring the Middletown and Rockfail properties into Lawrence DiStefano's name. Milardo handled the subsequent sale of these properties. "After her release from the hospital, she requested that Milardo remove Lawrence DiStefano's authority from her financial affairs. She also spoke to Milardo about revoking the trust. Milardo reminded her that the trust was crafted to protect her assets from her other two children and to manage her real property. "The plaintiff was hospitalized twice more for alcoholism and related symptoms in October, 1995, and was admitted for inpatient treatment for alcoholism and depression on June 21, 1996. On August 6, 1996, she revoked the trust agreement and closed the joint checking account. "On July 6, 1998, the plaintiff filed the four count complaint in this action alleging (1) legal malpractice, (2) breach of contract, (3) breach of fiduciary duty and (4) negligent infliction of emotional distress." Id., 840-41. In support of the breach of fiduciary duty claim, the plaintiff argued that there was an attorney-client relationship between Milardo and Lawrence DiStefano that created a conflict of interest. "The case proceeded to trial before the jury. The court directed a verdict in favor of the defendants on the counts of legal malpractice and breach of contract on the ground that the plaintiff had failed to present expert testimony on the issue of proximate cause. The jury returned a verdict in favor of the defendants on the breach of fiduciary duty and negligent infliction of emotional distress counts." Id., 841. On appeal to the Appellate Court, the plaintiff claimed that the trial court had "improperly (1) directed a verdict in favor of the defendants on the malpractice count, (2) instructed the jury that no attorney-client relationship existed between the defendants and the plaintiffs son, Lawrence J. DiStefano [when charging the jury on the breach of fiduciary count], and (3) refused to allow the jury to consider evidence of the standard of care for an attorney for breach of a fiduciary duty." Id., 839. The Appellate Court rejected the plaintiffs first and third claims, which are not at issue in this appeal. Id., 844, 848. With regard to the second claim, the Appellate Court concluded that the trial court properly had charged the jury that no attorney-client relationship existed between Milardo and Lawrence DiStefano. Id., 845-47. We granted the plaintiffs petition for certification to appeal limited to the following issue: "Did the Appellate Court properly determine that the trial court properly had instructed the jury that no attorney-client relationship existed between the named defendant, Joseph E. Milardo, Jr., and Lawrence J. DiStefano?" DiStefano v. Milardo, 270 Conn. 908, 853 A.2d 524 (2004). "Our analysis begins with a well established standard of review. When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court's charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the juiy . we will not view the instructions as improper." (Internal quotation marks omitted.) Jacobs v. General Electric Co., 275 Conn. 395, 400, 850 A.2d 151 (2005). "The court has a duty to submit to the jury no issue upon which the evidence would not reasonably support a finding." (Internal quotation marks omitted.) Wrinn v. State, 234 Conn. 401, 407-408, 661 A.2d 1034 (1995). "Although it is the jury's right to draw logical deductions and make reasonable inferences from the facts proven . it may not resort to mere conjecture and speculation." (Internal quotation marks omitted.) Janusauskas v. Fichman, 264 Conn. 796, 803, 826 A.2d 1066 (2003). The court should, however, submit to the jury "the issues as outlined by the pleadings and as reasonably supported by the evidence." 1 D. Wright, Connecticut Jury Instructions (2d Ed. 1970) § 2, p. 3; see Goodmaster v. Houser, 225 Conn. 637, 648, 625 A.2d 1366 (1993). When reviewing a trial court's decision that the evidence was not sufficient to support the submission of an issue to the jury, we must consider the evidence produced by the plaintiff in the light most favorable to him. See Godwin v. Danbury Eye Physicians & Surgeons, P.C., 254 Conn. 131, 135-36, 757 A.2d 516 (2000). Whether the plaintiff has established a prima facie case entitling the plaintiff to submit a claim to a trier of fact is a question of law over which our review is plenary. See Falker v. Samperi, 190 Conn. 412, 419, 461 A.2d 681 (1983). "An attorney-client relationship is established when the advice and assistance of the attorney is sought and received in matters pertinent to his profession." Somma v. Gracey, 15 Conn. App. 371, 379, 544 A.2d 668 (1988). The burden of establishing an attorney-client relationship is on the party claiming the existence of such a relationship. See Solomon v. Aberman, 196 Conn. 359, 384, 493 A.2d 193 (1985). Evidence of either a retainer agreement or a contract between the parties is relevant to the determination of its existence. See, e.g., Dubreuil v. Witt, 65 Conn. App. 35, 43-44, 781 A.2d 503 (2001). In her brief, the plaintiff cites the following facts as evidence that Milardo had an attorney-client relationship with Lawrence DiStefano during the period in which Lawrence DiStefano withdrew funds from her account: (1) Milardo prepared a power of attorney for the plaintiff giving Lawrence DiStefano unlimited gift giving authority; (2) Milardo drafted the plaintiffs will naming Lawrence DiStefano as the sole beneficiary; (3) Milardo prepared a living will for the plaintiff naming Lawrence DiStefano as conservator in the event that the plaintiff became incapacitated; (4) Milardo prepared a trust agreement for the plaintiff naming Lawrence DiStefano as the trustee; (5) Milardo prepared two quitclaim deeds transferring real property from the plaintiff to a trust with Lawrence DiStefano as trustee; (6) Milardo was involved in the sale of the trust properties to third persons, resulting in the transfer of sale proceeds to Lawrence DiStefano as trustee; (7) Milardo provided Lawrence DiStefano with fatherly advice about his mother's alcoholism; and (8) Milardo prepared a draft of an involuntary conservatorship application without having been requested to do so by the plaintiff. With respect to the first six items, we agree with the Appellate Court that "the evidence taken as a whole fails to reasonably support a finding of an attorney-client relationship" between Lawrence DiStefano and Milardo. DiStefano v. Milardo, supra, 82 Conn. App. 847. The plaintiff implicitly argues that the mere fact that Lawrence DiStefano indirectly benefited from the estate planning instruments prepared by Milardo on the plaintiffs behalf gave rise to an attorney-client relationship. Even if we assume, however, that Milardo had some motive or intent to benefit Lawrence DiStefano at the plaintiff's expense, it would be purely speculative to conclude that such a motive arose from an attorney-client relationship with Lawrence DiStefano. With regard to the seventh item, we further agree with the Appellate Court that "giving advice of a fatherly nature about a family member's drinking problem falls well short of establishing an attorney-client relationship." Id., 846-47. The eighth item relating to the involuntary conservatorship, which the Appellate Court did not address, requires some additional discussion. The record reflects the following additional facts relevant to this claim. Milardo testified that in April, 1996, Lawrence DiStefano came to his office and requested that he complete a voluntary conservatorship form for Lawrence DiStefano to be designated conservator, because the plaintiffs alcoholism had become worse. Milardo advised Lawrence DiStefano that he could not do so until he had spoken with the plaintiff. He immediately called the plaintiff, who made it clear that she did not want a voluntary conservatorship. Milardo then told Lawrence DiStefano that he could not help him because he represented the plaintiffs interests. Milardo referred Lawrence DiStefano to another attorney, Stephen Gionfriddo, who filed an application for involuntary conservatorship on Lawrence DiStefano's behalf in July, 1996. The plaintiffs file in Milardo's office contained a draft of an application for involuntary conservatorship. Milardo testified that he had asked his staff to prepare a voluntary conservatorship application, but his staff had prepared an application for involuntary conservatorship "inaccurately" and "incorrectly." That application was not dated and Milardo was never asked when it was prepared or why he made the request. In other words, there was no evidence of the circumstances surrounding its creation. We conclude that this set of facts, when viewed in the light most favorable to the plaintiff, also fails to provide sufficient evidence to reasonably support her claim that Milardo and Lawrence DiStefano had an attorney-client relationship. The uncontroverted evidence reveals that Milardo immediately called the plaintiff to inquire whether he should comply with Lawrence DiStefano's request to prepare a voluntary conservator-ship application. When the plaintiff told Milardo not to prepare the application, he informed Lawrence DiStefano and told him that he needed to find another attorney. The plaintiff presented no evidence that Milardo asked his staff to draft the application in response to, or even subsequent to, Lawrence DiStefano's request, or that Lawrence DiStefano was aware that such a draft had been prepared. In short, the link between Lawrence DiStefano and the draft of the involuntary conservatorship application in the plaintiffs file in Milardo's office is attenuated and speculative. Accordingly, we conclude that the Appellate Court properly affirmed the trial court's instruction that no attorney-client relationship existed between Lawrence DiStefano and Milardo because the plaintiff presented no evidence from which the jury could make a reasonable inference that Lawrence DiStefano had both sought and received Milardo's advice and assistance and that an attorney-client relationship existed between them. The judgment of the Appellate Court is affirmed. In this opinion the other justices concurred. The law firm is also named as a defendant in this lawsuit under the theory of respondeat superior. The plaintiff employed new counsel, Mark Sciota, to help her revoke the agreement and to close her account. The defendants were not involved in those transactions. The court instructed the jury: "In this case the plaintiff claims and must prove that the defendants had a conflict of interest or a conflict of loyalties between the plaintiff and her son, Lawrence DiStefano, and that their actions in advising the plaintiff concerning the trust were influenced by this loyalty to [Lawrence] DiStefano which conflicted, the plaintiff claims, with their loyalty to her. You may not find that the defendants had any loyalty to [Lawrence] DiStefano arising out of an attorney-client relationship between them, that is between . . . Lawrence DiStefano and [Milardo], because there is no evidence that any such relationship existed at the time of any of the events at issue here. Therefore, you may only find that the defendants had feelings of loyalty toward [Lawrence] DiStefano based on some personal relationship the plaintiff has proven existed between the defendants and Lawrence DiStefano. It is not improper for the defendants simply to have had a personal relationship with Lawrence DiStefano; it is only improper and a breach of their fiduciary duty if they allowed that personal relationship to detract from their undivided loyalty to the plaintiff." For example, Milardo advised Lawrence DiStefano that the plaintiff should become more socially involved so that she would spend less time at home alone. We note that Milardo represented Lawrence DiStefano at the plaintiffs request in a breach of the peace incident in 1992. This representation was limited: Milardo spoke with either the plaintiff or Lawrence DiStefano on the telephone one day and represented Lawrence DiStefano in court the next day. Moreover, the plaintiff does not argue that Milardo continuously represented Lawrence DiStefano as a result of that criminal representation. At trial, the following colloquy took place between the plaintiffs counsel and Milardo: "[The Plaintiffs Counsel]: Did there come a time when you drafted a voluntary conservatorship at the behest of Lawrence DiStefano to have . . . Lawrence appointed [as the plaintiffs] conservator? "[Milardo]: No. "[The Plaintiffs Counsel]: You never drafted that document? "[Milardo]: I did not. "[The Plaintiffs Counsel]: Did your office? "[Milardo]: I don't believe any voluntary conservatorship was ever drafted, because [the plaintiff] told me she didn't want one. "[The Plaintiffs Counsel]: Did your office draft an involuntary conservatorship? "[Milardo]: I believe someone in my office typed up an involuntary conservatorship application form. It was typed up inaccurately, incorrectly, and it still sits in my file today unsigned and unissued. "[The Plaintiffs Counsel]: But was there an involuntary conservatorship application drafted by your office at the behest of Lawrence DiStefano? "[Milardo]: I instructed my staff to prepare a voluntary conservatorship application. They prepared the wrong application, and that sits in my file today. It was not signed. And we did not do a nonvoluntary conservatorship because [the plaintiff] said she wouldn't cooperate in doing one. "[The Plaintiffs Counsel]: At that time what did you advise Lawrence DiStefano? "[Milardo]: I said to take it—you're talking about the time that they requested . a voluntary application? "[The Plaintiffs Counsel]: Yes. "[Milardo]: [Lawrence] DiStefano came to my office, asked me that it was time, the doctors had told him that [the plaintiff] had to go possibly into a convalescent home, her bouts with alcoholism had gotten worse and worse. This was in April of 1996. . . . [H]e said, 'It's now time. I've been designated the conservator, we've planned for this, she planned for this in case she ever got to this point.' "I advised [Lawrence] DiStefano at that time that I could not in any way cooperate in any such endeavor until I spoke with [the plaintiff]. I believe he was in my office. I called [the plaintiff] on the phone and said, 'Olga, your son says that the doctors are indicating that it's time for you to perhaps have to go into a convalescent home. You need longer time for recuperation and rehabilitation with your problem.' I never referred to it as alcoholism. I tried to be gentle with her and say it was a problem. And she indicated, 'No, I do not want that. Do not do it.' "I turned to [Lawrence DiStefano] at that point after I hung up. It was a very brief conversation. I said, 'Your mother just informed me very explicitly, I don't believe she's under the influence now, that she does not want a voluntary conservatorship and she does not want me to prepare any such document.' I said, 'You're going to have to go to someone else if you want to do this because I'm going to have to represent your mother and your mother's interest, and she may in fact—there may be a potential here that we're going to have a dispute over this.' That was in approximately April of 1996." While we recognize that Milardo drafted an involuntary conservatorship that the plaintiff had not requested, the plaintiff failed to reasonably establish through testimony or other evidence at trial that Milardo had asked his staff to draft the application in response to Lawrence DiStefano's request, or even subsequent to Lawrence DiStefano's request.

The defendant's petition for certification for appeal from the Appellate Court, 92 Conn. App. 206 (AC 25721), is denied.

The plaintiffs' petition for certification for appeal from the Appellate Court, 89 Conn. App. 658 (AC 25527), is denied.

The plaintiffs petition for certification for appeal from the Appellate Court, 92 Conn. App. 232 (AC 25816), is denied. NORCOTT and PALMER, Js., did not participate in the consideration or decision of this petition.

The defendant's petition for certification for appeal from the Appellate Court, 91 Conn. App. 801 (AC 25322), is denied.

The defendant's petition for certification for appeal from the Appellate Court, 91 Conn. App. 133 (AC 25202), is denied.

The cross petition by the defendant state of Connecticut, fleet operations, for certification for appeal from the Appellate Court, 91 Conn. App. 864 (AC 25783), is denied.

The defendant's petition for certification for appeal from the Appellate Court, 92 Conn. App. 271 (AC 25014), is denied.

The petition by the state of Connecticut for certification for appeal from the Appellate Court, 92 Conn. App. 112 (AC 24282), is granted, limited to the following issue: The Supreme Court docket number is SC 17584. Decided December 22, 2005 Frederick W. Fawcett, supervisory assistant state's attorney, in support of the petition. Pamela S. Nagy, special public defender, in opposition. "Whether the Appellate Court properly held that the trial court's charge on conspiracy was deficient because it did not set forth an essential element, the object of the conspiracy?"

The defendant's cross petition for certification for appeal from the Appellate Court, 92 Conn. App. 112 (AC 24282), is denied.

Opinion ZARELLA, J. The plaintiff, Kristine Cogan, appeals, following our grant of certification, from the judgment of the Appellate Court affirming the trial court's judgment rendered in favor of the defendant, Chase Manhattan Auto Financial Corporation. On appeal, the plaintiff claims that the Appellate Court improperly concluded that her action was barred by the applicable statute of limitations and could not be saved under General Statutes § 52-593, which permits a new action to be filed beyond the applicable statute of limitations period when a plaintiff has failed to obtain judgment in a prior action for failure to name the "right person" as defendant. We affirm the judgment of the Appellate Court. The following facts and procedural histoiy are relevant to our resolution of this appeal. In June, 1999, the plaintiff commenced an action against Shannon L. McKeman and McKeman's stepfather, Richard Plasky, for personal injuries that she allegedly had sustained in an automobile accident on September 12, 1997. The plaintiff alleged that the vehicle in which she was a passenger was struck by a vehicle operated by McKernan as Plasky's "agent, servant and/or employee under the family car doctrine with full authority to drive said vehicle." On February 3, 2000, the plaintiff released McKeman and Plasky from all claims arising from the accident in consideration of $100,000, the upper limit of liability coverage available under Plasky's automobile insurance policy. On February, 14, 2000, the plaintiff withdrew her complaint because the dispute had been "resolved" by a "[d]iscussion of [the] [pjarties on [t]heir [o]wn." In a letter dated April 19, 2000, Plasky's attorney advised the plaintiff of his recent discovery that Plasky, who never had been asked about ownership of the vehicle prior to the withdrawal of the plaintiffs complaint, was not the owner of the vehicle that McKeman was driving at the time of the accident. Rather, Plasky had leased the vehicle from the defendant. The plaintiff thereafter commenced this action against the defendant on December 4, 2000, pursuant to General Statutes (Rev. to 1997) § 14-154a, which provides in relevant part that the owner of a leased motor vehicle "shall be liable for any damage to any person or property caused by the operation of such motor vehicle while so . . . leased . . . ." On October 26, 2002, the defendant filed a motion for summary judgment, claiming that the plaintiffs action was barred by General Statutes § 52-584 because it was brought more than two years after the date of the accident. The defendant also claimed that § 52-593 did not save the action because the prior action had not been "terminated as a result of a judgment against the plaintiff for failure to name the correct defendant, but instead the plaintiff voluntarily withdrew the prior claim and collected the full amount of insurance available to the [parties] who she . . . [had] sued." In its memorandum of decision on the motion, the trial court noted the plaintiffs concession that if the complaint could not be saved by § 52-593, her action against the defendant would be time barred by § 52-584. The court then concluded that the prior action against McKeman and Plasky "did not result in a judg ment of any sort. Rather, that action was withdrawn on February 14, 2000. Under these circumstances, [the plaintiff] cannot be said to have 'failed to obtain judgment' in [the prior action]." The court further explained that the plaintiffs failure to obtain judgment had resulted not from naming the wrong defendant but from her settlement with McKeman and Plasky. The court finally concluded that the plaintiff had named the proper defendant for the legal theory alleged in her complaint. The court thus granted the defendant's motion for summary judgment and rendered judgment thereon in favor of the defendant. On appeal, the Appellate Court affirmed the trial court's judgment on the ground that the plaintiff had not obtained judgment in the original action because she withdrew her complaint in favor of settlement. See Cogan v. Chase Manhattan Auto Financial Corp., 83 Conn. App. 843, 847, 851 A.2d 407 (2004). The Appellate Court concluded that voluntary withdrawal "is not equivalent to a judgment." Id., citing Billerback v. Cerminara, 72 Conn. App. 302, 308, 805 A.2d 757 (2002). The Appellate Court also determined that the plaintiff had not named the wrong defendant in the original action because of a reasonable and honest mistake of fact regarding the identity of the responsible party. See Cogan v. Chase Manhattan Auto Financial Corp., supra, 847, citing Isidro v. State, 62 Conn. App. 545, 549-50, 771 A.2d 257 (2001). This appeal followed. The plaintiff claims that the present action is saved by § 52-593 because the withdrawal of her original complaint qualifies as a failure to obtain judgment. She notes that the statute does not expressly require judgment in favor of the defendant but merely requires failure by the plaintiff to obtain judgment in her favor. According to the plaintiff, a judgment need not be rendered in the first action prior to application of the savings statute. She also contends that she was forced to settle and to withdraw the original action because the only available insurance was that afforded under Plasky's policy, and the $100,000 coverage under that policy was the maximum that she could obtain in that action. She therefore asserts that, to the extent that she was unable to recover more than $100,000, which, she claims, was less than the "full value of the case," the original action was unsuccessful on the basis of her failure to name the right defendant. The defendant responds that withdrawal following settlement is not the same as failure to obtain judgment, even if the potential exists for a greater recovery, because the plaintiffs recovery in the first action represents a partially successful judgment. According to the defendant, failure to obtain judgment under § 52-593 means "a complete failure to obtain any recovery by way of judgment or settlement." The defendant also argues that a plaintiff has not failed to name the right defendant when the named defendant "pays money to avoid the risk of litigation, whether judgment enters or not. The existence of some other entity for whom theoretical liability also may attach is immaterial." We agree with the defendant that the plaintiffs claim must fail. As a preliminary matter, we set forth the applicable standard of review. "Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Internal quotation marks omitted.) Rocco v. Garrison, 268 Conn. 541, 548, 848 A.2d 352 (2004). "On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court." (Internal quotation marks omitted.) Greenwich Hospital v. Gavin, 265 Conn. 511, 519, 829 A.2d 810 (2003). "Our review of the trial court's decision to grant the defendant's motion for summary judgment is plenary." (Internal quotation marks omitted.) Rocco v. Garrison, supra, 548-49. The issue before this court involves a question of statutory interpretation that also requires our plenary review. See, e.g., Parrot v. Guardian Life Ins. Co. of America, 273 Conn. 12, 18, 866 A.2d 1273 (2005). "When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." (Citations omitted; internal quotation marks omitted.) Id., 18-19. When a statute is not plain and unambiguous, we also look for interpretive guidance to "the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . ." (Internal quotation marks omitted.) State v. Lutters, 270 Conn. 198, 205-206, 853 A.2d 434 (2004). We begin our analysis by examining the language of the statute. General Statutes § 52-593 provides in relevant part: "When a plaintiff in any civil action has failed to obtain judgment by reason of failure to name the right person as defendant therein, the plaintiff may bring a new action and the statute of limitations shall not be a bar thereto if service of process in the new action is made within one year after the termination of the original action. ." The savings provision therefore applies if the plaintiff has "failed to obtain judgment" in the original action on the basis of her "failure to name the right person as defendant . . . ." General Statutes § 52-593. Our examination of the language of the statute and its relationship to other statutes does not reveal a meaning that is plain and unambiguous. We therefore look for interpretive guidance beyond the statutory scheme. The plaintiff first argues that Plasky was not the "right" defendant because he was not the owner of the vehicle that McKeman was driving at the time of the accident. We disagree. Under Connecticut law, a "right person," as that term is used in § 52-593, is one who, as a matter of fact, is a "proper defendant for the legal theory alleged." Kronberg v. Peacock, 67 Conn. App. 668, 673, 789 A.2d 510, cert. denied, 260 Conn. 902, 793 A.2d 1089 (2002); see, e.g., Whipple v. Fardig, 109 Conn. 460, 465, 146 A. 847 (1929) (defendant named as "principal or master" of person driving vehicle under theory of agency deemed "wrong defendant" for purposes of savings statute after evidence adduced at trial revealed that defendant did not own vehicle and thus could not be sued under theory alleged). In the action against McKernan and Plasky, the plaintiff did not allege that Plasky was the owner of the vehicle that McKernan was driving, but, rather, that McKernan "was operating the vehicle of . . . Plasky . as his agent, servant and/or employee under the family car doctrine with full authority to drive said vehicle." The family car doctrine is a common-law rule providing that, "when a motor-car is maintained by the paterfamilias for the general use and convenience of his family, he is liable for the negligence of a member of the family having general authority to drive it, while the car is being used as a family car . . . ." Stickney v. Epstein, 100 Conn. 170, 178-79, 123 A. 1 (1923). As we explained in the seminal case of Wolf v. Sulik, 93 Conn. 431, 106 A. 443 (1919), the family car doctrine is grounded in the principle that "every man who prefers to manage his affairs through others . . . remains bound to so manage them that third persons are not injured by any breach of legal duty on the part of such others while they are engaged upon his business and within the scope of their authority." Id., 436-37. At the time of the accident, Plasky was McKeman's stepfather, occupied the same household as McKeman and furnished a car for his family's general use through a lease with the defendant. In addition, there is no suggestion that McKeman did not have permission to use the car on the date of the accident. For these reasons, Plasky met the essential factual prerequisites for a properly named defendant under the family car doctrine as the plaintiff alleged in her complaint. If Plasky had not been a proper defendant, it is highly unlikely that the plaintiff would have obtained the maximum potential recovery of $100,000 available under Plasky's insurance policy. Thus, Plasky was the "right" defendant within the meaning of § 52-593. The plaintiff also argues that Plasky was not the "right" defendant because she could not recover the "full value of the case" under his insurance policy, and, therefore, that § 52-593 saves her present action against the defendant. We disagree. The fact that the complaint in the plaintiffs original action failed to name all potentially liable defendants is immaterial. On this point, we find the Appellate Court's decision in Isidro instructive. In that case, the plaintiff, Miriam Isidro, named the proper defendant, a police officer, as a matter of fact, but the trial court subsequently concluded that he was immune from liability. See Isidro v. State, supra, 62 Conn. App. 547, 550. Thereafter, the plaintiff brought a second action against the state. Id., 547. The state filed a motion for summary judgment, claiming that the plaintiffs action was time barred. Id., 547-48. The plaintiff argued that § 52-593 should be interpreted broadly to encompass situations in which the plaintiff in an original action names the wrong defendant by virtue of a legal mistake as to the identity of the defendant rather than merely by virtue of a factual mistake. Id., 549. The Appellate Court declared, however, that "following the plaintiffs logic would undermine the statute of limitations because a plaintiff could unilaterally extend the limitation period simply by filing an action against a defendant who could not be liable based on [the] legal theory [alleged]." Id., 550-51. Similarly, to allow a plaintiff to file successive complaints under § 52-593 naming different defendants, all of whom were proper, thereby permitting the plaintiff to take the proverbial second, third or even fourth bite of the apple, could lead to unrestrained filings in cases with multiple defendants and open the door to endless litigation. "To allow [such an] action . . . would defeat the basic purpose of the public policy that is inherent in statutes of limitation[s], i.e., to promote finality in the litigation process." (Internal quotation marks omitted.) Id., 551. Accordingly, we conclude that the plaintiffs failure to name all of the defendants from whom she could have recovered in her original action does not constitute a "failure to name the right person as defendant" within the meaning of General Statutes § 52-593. Furthermore, the record makes clear that the plaintiffs original action was terminated because she settled with McKernan and Plasky. The document by which the plaintiff released McKernan and Plasky from her claims against them explicitly provides that the release was effectuated "for and in consideration of the sum of . . . [$100,000] . [to the plaintiff] in hand paid by . . . McKernan and . . . Plasky . . . ." Moreover, the plaintiff acknowledges that the reason that she with drew the complaint in her original action was that she settled with McKeman and Plasky. Indeed, the plaintiffs withdrawal of her complaint could not have been premised on the fact that Plasky was not the owner of the vehicle because she did not know at that time that Plasky was not the owner. Accordingly, we cannot conclude that the plaintiff "failed to obtain judgment by reason of failing] to name the right person as defendant . . . ." (Emphasis added.) General Statutes § 52-593; cf. Perzanowski v. New Britain, 183 Conn. 504, 505, 507, 440 A.2d 763 (1981) (declining to apply § 52-593 to save time barred action where plaintiff failed to obtain judgment in his original action because one defendant was immune from liability and jury returned verdict in favor of other defendants); Isidro v. State, supra, 62 Conn. App. 550 (declining to apply § 52-593 to save time barred action where plaintiffs original action "was dismissed because . . . the defendant was immune from liability"). We conclude that the Appellate Court properly determined that § 52-593 did not save the plaintiffs action. The judgment of the Appellate Court is affirmed. In this opinion the other justices concurred. We granted the plaintiffs petition for certification to appeal limited to the following question: "Did the Appellate Court properly determine that General Statutes § 52-593 did not apply to save the plaintiffs cause of action?" Cogan v. Chase Manhattan Auto Financial Corp., 271 Conn. 913, 859 A.2d 568 (2004). General Statutes § 52-593 provides in relevant part: "When a plaintiff in any civil action has failed 1o obtain judgment by reason of failure to name the right person as defendant therein, the plaintiff may bring a new action and the statute of limitations shall not be a bar thereto if service of process in the new action is made within one year' after the termination of the original action. . . ." The police report noted, however, that Plasky was the owner of the vehicle. General Statutes (Rev. to 1997) § 14-154a provides: "Any person renting or leasing to another any motor vehicle owned by him shall be liable for any damage to any person or property caused by the operation of such motor vehicle while so rented or leased, to the same extent as the operator would have been liable if he had also been the owner." General Statutes § 52-584 provides in relevant part: "No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct . . . shall be brought but within two years from the date when the iryury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act . . . complained of . . . Specifically, the statute is not clear as to whether the term "right person" means any right person or dll right persons from whom the plaintiff can recover. We note that the legislative history of the statute is limited and fails to illuminate our inquiry. In deciding Wolf, which was this court's first encounter with the family car doctrine, we relied in part on a statute that made "all bailors of . . . vehicles which are . . . operated on the highways, liable for the negligence of their bailees, to the same extent that a master is liable for the negligence of his servant." Wolf v. Sulik, supra, 93 Conn. 434; see General Statutes (1918 Rev.) § 1572. While § 1572 was repealed shoxtly after we decided Wolf, we adopted much of Wolfs logic and conclusions verbatim four years later in Stickney v. Epstein, supra, 100 Conn. 176-79. As we decided Wolf in partial reliance on § 1572, Stickney represents our first articulation of the common-law family car doctxine. Stickney's substantial adoption of Wolf, however, leaves no doubt that Wolf remains an authoritative source of the family car doctrine under the common law. For purposes of the family car doctrine, a "family group is not necessarily confined to those of [the vehicle owner's] own kindred; it includes all those members of the collective body of persons living in [the owner's] household for whose convenience the car is actually maintained and who have general authority to use it." Smart v. Bissonette, 106 Conn. 447, 452, 138 A. 365 (1927). The plaintiff indeed acknowledges that Plasky "may be a correct defendant as someone who maintains the [McKeman] car and has control over it . . . ." The plaintiff, however, characterizes it not as a settlement but as a partial failure to obtain judgment for the full value of her claims.

The petitioner George Ortiz' petition for certification for appeal from the Appellate Court, 92 Conn. App. 242 (AC 25633), is denied.

The cross petition by the respondent for certification for appeal from the Appellate Court, 91 Conn. App. 205 (AC 25583), is denied.

The petition by the state of Connecticut for certification for appeal from the Appellate Court, 90 Conn. App. 820 (AC 25033), is granted, limited to the following issues: "1. Did the Appellate Court properly hold that the issuing judge was not a 'neutral and detached magistrate' under the fourth amendment to the United States constitution when he issued a search warrant for the defendant's home? "2. Did the Appellate Court properly remand this case to the trial court with direction to grant the motion to suppress without first holding a factual hearing?" The Supreme Court docket number is SC 17516. Decided October 6, 2005 Robert J. Scheinblum, senior assistant state's attorney, in support of the petition. HughF. Keefe and Nancy Fitzpatrick Myers, in opposition. NORCOTT, J., did not participate in the consideration or decision of this petition.

The defendant's petition for certification for appeal from the Appellate Court, 91 Conn. App. 149 (AC 24521), is denied.

The defendant's petition for certification for appeal from the Appellate Court, 91 Conn. App. 407 (AC 24138), is granted, limited to the following issue: "Did the Appellate Court improperly affirm the trial court's judgment based on its improper application of the prenuptial contract?"

The petition by the intervening plaintiff, Jane Doe, for certification for appeal from the Appellate Court, 90 Conn. App. 525 (AC 25619), is granted, limited to the following issue: "Did the Appellate Court properly affirm the trial court's summary judgment for the plaintiff with respect to the claim of coverage for child molestation by an employee of Pediatric Day and Night Care, LLC?" The Supreme Court docket number is SC 17517. Decided October 6, 2005 Kevin E. Creed, in support of the petition. VERTEFEUILLE, J., did not participate in the consideration or decision of this petition.

The defendant's petition for certification for appeal from the Appellate Court, 91 Conn. App. 328 (AC 25579), is denied. SULLIVAN, C. J., and VERTEFEUILLE, J., did not participate in the consideration or decision of this petition.

The plaintiffs petition for certification for appeal from the Appellate Court, 92 Conn. App. 903 (AC 26282), is denied.