THE PEOPLE &C., RESPONDENT, v. ALLIED HEALTH CARE PRODUCTS, INC., WILLIAM
DOERING AND RAYMOND RINGER, APPELLANTS.
81 N.Y.2d 27, 611 N.E.2d 752, 595 N.Y.S.2d 713 (1993).
February 23, 1993
3 No. 8 (1993 N.Y, Int. 30)
Decided February 23, 1993
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This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Barry William Levine, for Appellants.
Jo M. Katz, for Respondent.
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BELLACOSA, J.:
An investigation by the Department of Environmental Conservation
("DEC") culminated in a Grand Jury indictment against appellant Allied
Health Care Products, Inc. ("Allied") and two of its employees. It
charged five counts: (1) endangering public health, safety or the
environment in the second degree (ECL 71- 2713(5)); (2) endangering
public health, safety or the environment in the third degree (ECL
71-2712(2)); (3) endangering public health, safety or the environment
in the third degree (ECL 71- 2712(4)); (4) air pollution (ECL 71-2105;
6 NYCRR 211.2); and (5) operating an air contamination source without
a certificate (ECL 71-2105; 6 NYCRR 201.2(b)). The crimes were
allegedly committed between March and October 1988, and the indictment
was handed up in January 1990.
On defendants' motion, County Court granted dismissal of all counts on
the ground that the conduct alleged as prohibited under the indictment
was, in fact, authorized under 6 NYCRR 201.2(c). The Appellate
Division, on the People's appeal, reinstated counts 1 through 4 and
affirmed the dismissal of count 5 (People v Allied Health Care Prods.,
174 AD2d 246). A Judge of this Court granted leave to appeal to the
defendants, and we now reverse and reinstate the County Court order
dismissing the entire indictment.
Defendant-appellant Allied operates a small plant in Stuyvesant Falls,
New York, which produces "Baralyme", a carbon dioxide absorbent
composed of barium and lime. In the course of production, a mixture of
chemicals, including barium hydroxide, was vented outside the plant.
SNIPPETS:
Barry William Levine, for Appellants.
Jo M. Katz, for Respondent.
An investigation by the Department of Environmental Conservation culminated in a Grand Jury
endangering public health, safety or the environment in the second degree (ECL 71- 2713(5));
On defendants' motion, County Court granted dismissal of all counts on the ground that the
The Appellate Division, on the People's appeal, reinstated counts 1 through 4 and affirmed
Defendant-appellant Allied operates a small plant in Stuyvesant Falls, New York, which
Allied had never applied for any air pollution control permits and DEC had never inspected
In March 1988, a DEC air pollution inspector conducted an inspection and, one week later,
The inspector advised that, as an owner of an "air contamination source ", Allied must obtain
The inspector enclosed a copy of the portion of the DEC regulations pertaining to air
In the context of a criminal prosecution, it is unreasonable to insist that an operator,
The People acknowledge on appeal that the Commissioner, consistent with the plain language of
The People urge that the provisions of ECL article 71, title 27, which concerns the
The Appellate Division correctly held that defendants could be criminally prosecuted for
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