Cascino v. Judges of Albany Cnty. Court

• Decision Date: 10 May 2012
• Parties: In the Matter of Salvatore CASCINO et al., Petitioners, v. JUDGES OF the ALBANY COUNTY COURT et al., Respondents, and Eric T. Schneiderman, Respondent.
• Court: New York Supreme Court — Appellate Division

95 A.D.3d 1458
944 N.Y.S.2d 351
2012 N.Y. Slip Op. 03690

In the Matter of Salvatore CASCINO et al., Petitioners,
v.
JUDGES OF the ALBANY COUNTY COURT et al., Respondents,
and
Eric T. Schneiderman, Respondent.

Supreme Court, Appellate Division, Third Department, New York.

May 10, 2012.

[944 N.Y.S.2d 352]

Sullivan Gardner, P.C., New York City (Brian Gardner of counsel), for petitioners.

Eric T. Schneiderman, Attorney General, Albany (Marlene O. Tuczinski of counsel), respondent pro se.

Before: MERCURE, J.P., LAHTINEN, SPAIN, McCARTHY and GARRY, JJ.

MERCURE, J.P.

[95 A.D.3d 1458]Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to CPLR 506[b][1] ) to prohibit respondents from trying petitioners in the County Court of Albany County on an indictment charging them with offering a false instrument for filing in the first degree (three counts).

Petitioner Salvatore Cascino owns petitioner Bronx County Recycling, LLC, a solid waste management facility located in Bronx County ( seeECL 27–0701 [2] ). Although the Bronx facility is licensed to handle only uncontaminated construction refuse ( see6 NYCRR 360–16.1[a]; 360–16.2[c] ), waste that was contaminated with petroleum and that allegedly 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 with commencing operation of a solid waste facility without a permit and endangering public health, safety or the environment in the fourth degree ( seeECL 27–0707[1]; 71–2703[2]; 71–2711[3] ). Petitioners were separately charged in an Albany County indictment with three counts of offering a false instrument for filing in the first degree based upon their alleged failure to disclose the receipt of the contaminated

[944 N.Y.S.2d 353]

debris at the Bronx 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.) dismissed the first count on the ground that petitioners were not “operators” of the Clermont site as a matter of 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 double jeopardy and collateral estoppel. County Court (Breslin, J.) denied the motion, prompting the present CPLR article 78 proceeding seeking to prohibit respondents from taking any further action in the Albany County prosecution.

Petitioners argue that the charges contained in the Albany County indictment arise out of the same criminal transaction for which they were tried in Columbia County and are thus barred by the...