People v. Macellaro
| Decision Date | 04 March 1986 |
| Citation | 500 N.Y.S.2d 595,131 Misc.2d 383 |
| Parties | The PEOPLE of the State of New York v. Joseph MACELLARO, Defendant. |
| Court | New York County Court |
Robert Abrams, Atty. Gen., New York City, (Ronald Turbin, of counsel), for people.
Whiteman, Osterman & Hanna, Albany, for defendant.
DECISION AND ORDER ON DEFENDANT'S MOTION TO DISMISS
Defendant stands charged under Indictment # 85-00856 with a single count of unlawful dealing in hazardous wastes first degree under Environmental Conservation Law § 71-2717(2) (a felony), three counts of disposing of hazardous waste without authorization under E.C.L. § 71-2705(2), and three counts of transporting hazardous wastes without a permit under E.C.L. § 71-2705(2), the latter six counts all being misdemeanors. Defendant also stands charged under Indictment # 85-0923, with one count of reckless endangerment second degree (an A misdemeanor). The People's earlier motion to consolidate these two indictments, both of which relate to the same conduct, wherein defendant, on April 11, 1985, allegedly deposited two drums containing hazardous waste in the area of Old Kensico Road and Old Tarrytown Road in the County of Westchester, was granted on September 19, 1985 (Colabella, J.). 1
Defendant now brings on an omnibus motion insofar as the consolidated indictments # 85-00856 and # 85-0923 are concerned wherein, inter alia, defendant moves to dismiss on a number of grounds. The Court here will discuss in depth but one of the various issues raised by defendant in support of his motion to dismiss, an issue of apparent first impression, i.e., that the regulations listing and identifying hazardous wastes had not been validly enacted and were not actually in effect on April 11, 1985, the date the charged crimes allegedly occurred. 2 Specifically, defendant argues that the Department of Environmental Conservation regulations identifying hazardous waste, 6 NYCRR § 371.3, were not validly promulgated because on April 11, 1985, the day the alleged crimes occurred, neither these regulations contained at 6 NYCRR § 371.3, nor in its predecessor statute, 6 NYCRR § 366, had been submitted to the State Environmental Board for review and approval. In support of his position, defendant relies on two sections of the Environmental Conservation Law, namely, E.C.L. § 3-0301(2) and E.C.L. § 5-0107(2).
In pertinent part, E.C.L. § 3-0301(2)(a) reads as follows:
E.C.L. § 5-0107(2) further provides:
"2. Each environmental standard, criterion and rule and regulation having the effect thereof, and change thereto prepared and proposed by the commissioner pursuant to subdivision 2 of section 3-0301 shall be submitted to the board for approval. Unless otherwise provided in this subdivision, approval shall be effected by the affirmative vote of a majority of the members of the board. Written votes executed by members absent from a board meeting shall be allowed if received by the executive secretary within ten days after the board meeting. The board shall tender in writing such approval or a denial of approval sixty days after receipt of a full statement of such submitted matter. Failure of the board to so act within such sixty day period shall be deemed approval by it of such environmental standard, criterion, rule or regulation or change thereto. If the board refuses to approve the submitted matter, the commissioner shall not act contrary to such denial. The board shall support such denial by filing with the commissioner its reasons therefor.
The Attorney General, at pages 25 and 26 of an opposing memorandum of law, concedes that the D.E.C. chose not to submit the original regulations to the State Environmental Board and that it was not until April 29, 1985, eighteen days after the crimes charged, that the regulations, in amended form, were submitted to the State Environmental Board and approved. However, the Attorney General takes the position, relying on E.C.L. § 27-0903(3), that in fact only amendments to regulations need be submitted to the State Environmental Board for approval. E.C.L. § 27-0903(3) reads as follows:
The People, without the benefit of any supporting case law, nonetheless urge this Court to find that the language of E.C.L. § 27-0903(3) controls here, for several reasons. First, the People point out that E.C.L. § 27-0903, enacted in 1978, is both more recent than E.C.L. § 5-0107(2), which was enacted in 1972, and more specifically applicable to hazardous waste. Thus, the People advance an argument under the rule of statutory construction and interpretation contained at McKinney's Consolidated Laws of New York, Book I, Statutes, at § 238, that a more specific statement in a later statute may control the more general language contained in an earlier statute and that the more general of two statutes is deemed controlling only where the more specific statute is inapplicable. However, McKinney's Statutes, at § 238, goes on to provide that "the particular provision, in other words, is considered in the nature of an exception to the general where the two are incompatible ..." (Emphasis added.) This very axiom of statutory construction was found to be controlling in the recent case of People v. Lawrence, 64 N.Y.2d 200, 485 N.Y.S.2d 233, 474 N.E.2d 593, where a more specific statute, CPL § 210.20(2), was found to control the more generally worded provision contained at CPL § 255.20(3). However, in Lawrence, supra, a 5-2 majority attached more than a passing significance to the fact that CPL § 210.20(2) carved out from the general motion timetable contained at CPL § 255.20 a specific exception for the time in which to bring on a speedy trial motion. See People v. Lawrence, supra, at page 204, 485 N.Y.S.2d 233, 474 N.E.2d 593. Here, on the other hand, there is nothing on the face of E.C.L. § 27-0903 to suggest that it be read as an exception to the more generally worded E.C.L. § 3-0301 and § 5-0107(2). No language, such as "notwithstanding the provisions of ...," or "notwithstanding any language to the contrary contained elsewhere herein," from which such an exclusionary inference could be drawn, is contained therein.
The People also argue that E.C.L. § 27-0903 should be construed as superseding E.C.L. § 3-0301 by virtue of the principle of statutory construction known as "expressio unius est exclusio alterius," contained at McKinney's Statutes § 240. Such axiom particularly applies to situations where a statute, by virtue of creating a proviso or exception on a given subject may, by the same token, be deemed to deny the applicability of the exception beyond that to which it expressly provides. However, such axiom is not "an ironbound rule of law." See McKinney's Statutes at § 240. It is, rather, "merely an aid to be utilized in ascertaining the meaning of a statute when its language is ambiguous ..." See McKinney's, Statutes, supra.
Here, however, the Court does not perceive such evident ambiguity in the statutes in question as would necessitate invoking any such rule of construction. Quite to the contrary, defendant points to a separate rule of statutory construction which, in this Court's view, is the more persuasive. That is, defendant argues, under McKinney's Statutes § 391, that E.C.L. § 3-0301 and § 27-0903 are not to be construed as being in conflict, but rather, are to be construed, if at all possible, in a compatible manner. As the Court held in People v. Mann, 113 Misc.2d 980, at pg. 981, 450 N.Y.S.2d 275, Dist. Ct. of Suffolk Co., 1982 (Sherman, J.), citing McKinney's Consolidated Laws of N.Y., Book I, Statutes, § 391, "statutes should be given such construction that enables them to be reconciled, and if the court, without violating the established canons of interpretation, can construe two statutes so that they will be in harmony, such construction should be adopted." Moreover, the Court finds quite compelling the rule relied on by the First Department in People v. Marrero, 71 A.D.2d 346, at pg. 348, 422 N.Y.S.2d 384, (1979), citing in turn McKinney's Cons. Laws of N.Y., Book I, Statutes, § 98, subd. b, that " 'conflicting intentions in the same statute are never to be supposed or so regarded, unless forced on the court by unambiguous language.' " And, as defendant also...
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Al Tech Specialty Steel Corp. v. New York State Dept. of Taxation and Finance
...dictates of regulation promulgati which require a hearing (ECL 3-0301[2] ) did not have to be complied with (see, People v. Macellaro, 131 Misc.2d 383, 500 N.Y.S.2d 595). Next, we reject respondents' contention that the petition was untimely. Respondents' determination did not become final ......
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People v. Macellaro
...which was to dismiss Indictment No. 85-00923 charging him with reckless endangerment in the second degree (see, People v. Macellaro, 131 Misc.2d 383, 500 N.Y.S.2d 595), and (2) so much of an order of the same court, entered March 27, 1986, as granted that branch of the defendant's omnibus m......
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People v. J.R. Cooperage Co., Inc.
...for affirmance, the defendants urge that the regulations under which they were indicted were declared invalid in People v. Macellaro, 131 Misc.2d 383, 500 N.Y.S.2d 595. The defendants did not raise this argument at Criminal Term and, in any event, it is not properly before this court on the......
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People v. J.R. Cooperage Co., Inc.
...in all other respects. When the appeal in this case was decided in May 1987, we noted that, unlike the defendant in People v. Macellaro, 131 Misc.2d 383, 500 N.Y.S.2d 595, the defendants here had failed to raise a contention before the Supreme Court that the regulations under which they wer......