People v. Dairylea Co-op., Inc.

• Decision Date: 28 December 1978
• Citation: 66 A.D.2d 974,412 N.Y.S.2d 52
• Parties: The PEOPLE of the State of New York, Appellant, v. DAIRYLEA COOPERATIVE, INC., et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 52

412 N.Y.S.2d 52

66 A.D.2d 974

The PEOPLE of the State of New York, Appellant, v. DAIRYLEA COOPERATIVE, INC., et al., Respondents.

Supreme Court, Appellate Division, Third Department.

Dec. 28, 1978.

Louis J. Lefkowitz, Atty. Gen. (Timothy F. O'Brien, Albany, of counsel), for appellant.

Bond, Schoeneck & King, Syracuse (John M. Freyer, Syracuse, of counsel), for respondent Dairylea Co-op., Inc.

Ali, Gerber, Pappas & Cox, Syracuse (Edward F. Gerber, Syracuse, of counsel), for respondent Harry Carter.

McDermott & Cheeseman, Albany (Paul E. Cheeseman, Albany, of counsel), for respondent Robert Silva.

Before SWEENEY, J. P., and KANE, STALEY, MAIN and MIKOLL, JJ.

MEMORANDUM DECISION.

Appeals (1) from an order of the Supreme Court at Trial Term, entered January 20, 1978 in Albany County, which dismissed Indictment No. 39 against Dairylea Cooperative, Inc.; (2) an order, entered January 20, 1978 in Albany County, which dismissed Indictment No. 39 against Harry Carter; and (3) an order entered February 15, 1978 in Albany County, which dismissed Indictment No. 39 against Robert Silva.

On November 5, 1975, the Albany County Grand Jury indicted the defendants herein for "attempted Grand Larceny in the Second Degree" in violation of sections 110.00 and 155.35 of the Penal Law. Defendant Henry Weinblatt pleaded guilty to "Petit Larceny" in satisfaction of the indictment and, therefore, has not appealed.

The indictment stated as follows:

The defendants, Dairylea Cooperative, Inc., Henry Weinblatt, Harry Carter and Robert Silva, individually and aiding and abetting each other, in the County of Albany, State of New York, from on or about July 1, 1969 to on or about June 30, 1973, continuously, systematically and as part of a common plan and scheme, with the intent to deprive the State of New York of certain of its property, to wit: lawful money of the United States, and to appropriate the same to the defendant, Dairylea Cooperative, Inc., did attempt to steal and wrongfully take from the State of New York, the owner thereof, a sum of money in excess of $1,500.

In 1973, the Department of Agriculture and Markets conducted an investigation and held hearings on the allegation that Dairylea Cooperative, Inc. (hereinafter called "Dairylea") had engaged in unlawful standardization of milk by adding skim milk powder to whole milk. The State of New York had adopted a minimum standard of 3.4% Butterfat in whole milk. The State dictated minimum butterfat content has become the maximum butterfat content by practice within the dairy industry.

The butterfat content of whole milk is standardized by removing or adding skimmed milk. Under regulation section 35.2 promulgated by the Commissioner of Agriculture and Markets, skimmed milk added to whole milk must be fresh and not reconstituted skim milk (1 NYCRR 35.2). Whole milk standardized by the addition of reconstituted milk which is used in most states is equal to whole milk standardized by the required method in New York State, nutritionally and in all other respects.

After completion of the hearings, the Commissioner found that Dairylea had illegally standardized its whole milk by adding reconstituted rather than fresh milk, and levied fines in the sum of $150,000 against Dairylea. Those employees who were chiefly responsible for the illegal standardizing practices were discharged by Dairylea. The individual defendants herein were among those dismissed.

The matter was referred to the Attorney General for further action (Matter of Dairylea Coop. v. Lefkowitz, 47 A.D.2d 690, 364 N.Y.S.2d 576, mot. for lv. to app. den. 40 N.Y.2d 848, 387 N.Y.S.2d 1039, 356 N.E.2d 486). Indictments for the crimes of "offering a False Instrument for Filing in the First Degree" and "Criminal Possession of a Forged Instrument in the Second Degree" against Dairylea and "Conspiring in the Third Degree" against Dairylea and its employees were dismissed (People v. Dairylea Coop., 52 A.D.2d 1004, 383 N.Y.S.2d 877, mot. for lv. to app. den. 40 N.Y.2d 848, 387 N.Y.S.2d 1039, 356 N.E.2d 486).

The trial court held that the present indictments did not sufficiently apprise the defendants of the conduct for which they were charged. In order to be guilty of an attempt to commit a crime, the accused must, with the intent to commit a crime, engage in conduct which tends to effect the commission of such crime (Penal Law, § 110.00). The defendants contend that the indictment did not allege facts supporting the two elements of attempted grand larceny in the second degree: (1) intent to commit that crime; and (2) conduct tending to effect the commission of the crime. The court found that the indictment failed to satisfy the requirements of ...