People v. Carbone
| Decision Date | 07 July 1967 |
| Citation | 54 Misc.2d 762,283 N.Y.S.2d 468 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Ralph CARBONE and Trans-American Freight Lines, Inc., Defendants. |
| Court | New York City Court |
Lewis Rosenberg, New York City, for the People.
Tell, Cheser, Werner & Breitbart, New York City, (Charles Werner, New York City, of counsel), for defendants.
The Corporate and individual defendants, Trans American Freight Lines, Inc., and Ralph Carbone, are charged with the violation of Section 380, Subdivision 3 of the Vehicle and Traffic Law to wit:
'3. It shall be unlawful to transport by motor vehicle over the highways within this state any dangerous article without conspicuously marking or placarding any motor vehicle engaged in such transportation on each side and on the rear thereof with the word 'dangerous' or the common or generic name of the substance transported or its principal hazard; provided, that the commissioner of motor vehicles may, by regulation issued after a public hearing, prescribe with respect to any specific dangerous article the minimum quantities below which no placard shall be required.'
15 NY C.R.R. 67.6(a)(1) provides that the motor vehicle need not be marked or placarded if it contains less than 2,500 pounds of dangerous articles as set forth in Section 380, Subdivision 3. The defendants are charged with transporting 15 drums of ethylene oxide weighing 10038 pounds.
The vehicle involved herein was a tractor and trailer operated by the individual defendant and bore on it the name of the corporate defendant. It was stopped at the entrance to the Holland Tunnel on the New York side after the toll was paid, by an officer of the Port of New York Authority assigned to check trucks for dangerous commodities at that site.
The evidence consisted of a bill of lading containing the name of the corporate defendant as well as the name of the shipper, a Kentucky company and that of the consignee in New Jersey. It stated that 15 drums of Ethylene Oxide weighing 10038 pounds were being transported. Also introduced were a facsimile of the red labels required for flammable liquids by the I.C.C. and a tag removed from one of the drums stating in part etc., a photograph purporting to show several of the drums in the trailer and three photographs showing the corporate defendant's name on three sides of the trailer.
Testimony by the chief of chemical testing for the Port Authority, Norman Liebsman, was to the effect that Ethylene Oxide was a flammable liquid within the statutory prohibition as set forth in Section 380 'which gives off flammable vapors (as determined by flash point from Tagliabue's open cup tester * * *) at or below a temperature of eighty degrees Fahrenheit.'
The testimony indicated that neither a marking or placarding appeared on each side and the rear of the motor vehicle with the word 'dangerous', nor was the name of the substance transported or its principal hazard marked thereon as required by the statute.
The defendants rested after the motion on the prima facie case was denied. The defendants put at issue, in the main, the following points:
(1) That proof of criminal intent is required for a conviction under Section 380, Subdivision 3.
(2) That if Section 380, Subdivision 3 is interpreted as not to require a criminal intent it should be held unconstitutional as an inconsistent invasion of a sphere preempted by the federal government in which a similar regulation 18 U.S.C.A. 834, Subdivision F states in part: 'Whoever knowingly violates any such regulation shall be fined etc. * * *'
(3) That there was no evidence that any such regulation shall be fined etc. tester was used to determine the flash point as set forth in the statute.
In People v. Hartford Transp. Co., 6 Misc.2d 562, p. 565, 165 N.Y.S.2d 418, p. 420 (1957) Judge Malbin in describing the legislative history of the statute found that the 'legislation was enacted as a direct result of the Holland Tunnel fire in 1949, the express purpose being to prevent the hazard that arises from the undisclosed presence on public highways of dangerous articles.' In commenting on the St. Johnsbury Trucking Co. v. United States, 1 Cir., 220 F.2d 393 relied on by the defendants herein, Judge Malbin quoted from the concurring opinion wherein the intent to violate or willfully fail to take reasonable steps to avoid violation was considered essential for conviction under the I.C.C. regulations. It was pointed out however, at page 398,
Section 380 of the New York State law seemed to follow that recommendation by eliminating the prescribed element of mens rea and created thereby a 'public welfare offense'.
It is argued by the defendants that despite the elimination of the word 'knowingly' in the New York statute it was intended by the Legislature to enact legislation substantially identical with the Federal provisions. The defendants furnished a copy of a letter sent to Governor Dewey recommending the enactment of the new regulation 'generally identical with the Interstate Commerce Commission regulations'. The fact that the elimination of the matter of intent was not alluded to in that correspondence cannot be conclusive as to the intent of the legislature. Certainly much more cogent proof of such intent would be necessary. The fact is that Section 380 was 'generally identical' to the I.C.C. regulations.
We come now to the question of whether or not Section 380 Subdivision 3 is unconstitutional because it is inconsistent...
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