| Matter of Cascino v Judges of the Albany County Ct. |
| 2012 NY Slip Op 03690 [95 AD3d 1458] |
| May 10, 2012 |
| Appellate Division, Third Department |
| 2—In the Matter of Salvatore Cascino et al., Petitioners, vJudges of the Albany County Court et al., Respondents, and Eric T. Schneiderman,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Marlene O. Tuczinski of counsel),respondent pro se.
Mercure, J.P. Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant toCPLR 506 [b] [1]) to prohibit respondents from trying petitioners in the County Court of AlbanyCounty on an indictment charging them with offering a false instrument for filing in the firstdegree (three counts).
Petitioner Salvatore Cascino owns petitioner Bronx County Recycling, LLC, a solid wastemanagement facility located in Bronx County (see ECL 27-0701 [2]). Although theBronx facility is licensed to handle only uncontaminated construction refuse (see 6NYCRR 360-16.1 [a]; 360-16.2 [c]), waste that was contaminated with petroleum and thatallegedly emanated from the Bronx facility was dumped at a site in the Town of Clermont,Columbia County. As a result, petitioners were charged in a Columbia County indictment withcommencing operation of a solid waste facility without a permit and endangering public health,safety or the environment in the fourth degree (see ECL 27-0707 [1]; 71-2703 [2];71-2711 [3]). Petitioners were separately [*2]charged in anAlbany County indictment with three counts of offering a false instrument for filing in the firstdegree based upon their alleged failure to disclose the receipt of the contaminated debris at theBronx facility in annual reports to the Department of Environmental Conservation (seePenal Law § 175.35; 6 NYCRR 360-1.4 [c]; 360-1.14 [e]; 360-16.4 [i]).
At the jury trial on the Columbia County indictment, County Court (Nichols, J.) dismissedthe first count on the ground that petitioners were not "operators" of the Clermont site as a matterof law, and the jury acquitted them of the charges related to endangering public health.Petitioners thereafter moved to dismiss the Albany County indictment as barred by doublejeopardy and collateral estoppel. County Court (Breslin, J.) denied the motion, prompting thepresent CPLR article 78 proceeding seeking to prohibit respondents from taking any furtheraction in the Albany County prosecution.
Petitioners argue that the charges contained in the Albany County indictment arise out of thesame criminal transaction for which they were tried in Columbia County and are thus barred bythe statutory prohibition against double jeopardy (see CPL 40.10 [2]; 40.20 [2]; Matter of Polito v Walsh, 8 NY3d683, 686-687 [2007]). We disagree and, therefore, dismiss the petition.
The Columbia County trial addressed operation of a facility and the disposal ofcontaminated solid waste at a site far removed from the Bronx facility; as County Court (Nichols,J.) determined, that disposal of refuse in Columbia County was separate and distinct frompetitioners' receipt of the refuse in the Bronx and their failure to report thatreceipt or the final disposal site to the Department of Environmental Conservation in AlbanyCounty. Inasmuch as the two prosecutions involved separate criminal offenses that "were not soclosely related or connected in point of time and circumstance as to constitute a single criminalincident," CPL 40.20 is inapplicable (People v Robinson, 65 AD2d 896 [1978]; see Matter of Kings Point Holdings, LLC vKings Point Vil. Justice Ct., 83 AD3d 714, 715-716 [2011]; People v Dallas, 46 AD3d 489,490 [2007], lv denied 10 NY3d 809 [2008]; People v Crandall, 161 AD2d 890,891-892 [1990]; cf. Matter of Sharpton v Turner, 170 AD2d 43, 45-47 [1991], appealdismissed 78 NY2d 1071 [1991], lv denied 79 NY2d 752 [1991]).[FN*]For the same reason, petitioners' argument that prosecutors were obliged to present all of thecharges against them in one indictment is without merit (see CPL 40.10 [2]; 40.40 [1];People v Batista, 282 AD2d 825, 826 [2001], lv denied 96 NY2d 825 [2001]).
Finally, we reject petitioners' argument that collateral estoppel bars the Albany Countyprosecution in light of their acquittal upon the endangering public health counts in ColumbiaCounty. In order to establish the applicability of the collateral estoppel doctrine, a petitioner[*3]must "show that the jury's verdict in the prior trialnecessarily decided a particular factual issue raised in the second prosecution"(People v Acevedo, 69 NY2d 478, 487 [1987]; see People v Goodman, 69 NY2d32, 40 [1986]). Petitioners asserted in the trial on the Columbia County indictment that there wasinsufficient evidence identifying them as the source of unauthorized debris at the Clermont site,and that the minuscule amount of petroleum found could have come from other sources such asfuel delivery spills and old vehicles left on the site. The jury could have acquitted them on eitherbasis, leaving open the separate question of whether the Bronx facility had received anycontaminated debris—regardless of where it was ultimately deposited. Petitioners have notdemonstrated that the latter issue was necessarily decided in their favor and, thus, collateralestoppel does not apply.
The remaining claims raised in the petition are deemed abandoned due to petitioners' failureto raise them in their briefs (see Matterof Trudeau v Cantwell, 31 AD3d 844, 845 n 1 [2006]; Matter of Bello v TaxAppeals Trib. of State of N.Y., 213 AD2d 754, 755 n 3 [1995]).
Lahtinen, Spain, McCarthy and Garry, JJ., concur. Adjudged that the petition is dismissed,without costs.
Footnote *: Petitioners note that the sameevidence that they possessed contaminated debris and ultimately disposed of it in ColumbiaCounty was used in both prosecutions. That fact alone does not raise double jeopardy concerns,however, given the legal and factual distinctions between petitioners' knowing misrepresentationsas to the receipt and existence of the debris at the Bronx facility and their efforts to ridthemselves of it in Columbia County (see People v DeProspero, 91 AD3d 39, 43-44 [2011], lvgranted 18 NY3d 957 [Mar. 13, 2012]).