State v. Cote

• Decision Date: 22 April 2008
• Docket Number: No. 18014.,18014.
• Citation: 945 A.2d 412,286 Conn. 603
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Brian COTE.

945 A.2d 412

286 Conn. 603

STATE of Connecticut v. Brian COTE.

No. 18014.

Supreme Court of Connecticut.

Argued January 3, 2008.

Decided April 22, 2008.

James A. Wade, with whom were Brett J. Boskiewicz, Richard M. Fil and, on the brief, Jeffrey J. White and Ndidi N. Moses, Hartford, for the appellant (defendant).

Timothy J. Sugrue, senior assistant state's attorney, with whom were John M. Massameno and Tamberlyn E.C. Conopask, senior assistant state's attorneys, and, on the brief, Kevin T. Kane, chief state's attorney, for the appellee (state).

KATZ, PALMER, VERTEFEUILLE, ZARELLA and SCHALLER, Js.

KATZ, J.

The defendant, Brian Cote, appeals from the judgment of conviction, rendered after a jury trial, of one count each of storage of hazardous waste without a permit in violation of General Statutes (Rev. to 1999) § 22a-131a (b),¹ disposal of hazardous waste without a permit in violation of § 22a-131a (b), and conspiracy to store and dispose of hazardous waste without a permit in violation of General Statutes §§ 53a-48 (a) and 22a-131a (b). The defendant's dispositive claim on appeal is that the trial court improperly charged the jury as to the elements of "disposal" and "storage" by using the definitions of those terms provided in the federal Resource Conservation and Recovery Act of 1976 (federal act), 42 U.S.C. § 6901 et seq., rather than those provided in chapter 445 of the General Statutes, which includes § 22a-131a, governing hazardous waste. We agree and, accordingly, we reverse the trial court's judgment.

The record reveals the following undisputed facts and procedural history. In October, 1996, the defendant and his business partner, Ken Oliver, purchased a 100 year old mill, the former Ponemah Mill Number 3, located at 539 Norwich Avenue in Norwich, for the relocation and expansion of their precision sheet metal manufacturing business, Sound Manufacturing, Inc. (Sound Manufacturing). In addition to the portion of the property to be used for that business, the property also had commercial rental space, some of which was already leased. The defendant and Oliver determined that renovations to the mill were necessary. Those renovations included the removal of paint from interior brick walls on the first and second floors and the replacement of the timber floor on the first level with a concrete pad to accommodate Sound Manufacturing's laser calibrated sheet metal fabrication machines. The defendant and Oliver hired a contractor, Charles Lavallee, to perform this work. One of Lavallee's workers, Gerry Pepka, began removal of the interior paint by sandblasting the walls, but stopped shortly thereafter because he was concerned that the paint might contain lead. Pepka purchased a testing kit, which detected lead in the paint. Pepka informed Lavallee of the results, who in turn informed the defendant.

The defendant thereafter hired a state certified lead abatement contractor, A. Gamache Painting and Sandblasting Company (Gamache). Gamache commenced sandblasting at the mill in December, 1996. The sandblasting, which utilized thousands of pounds of sand, resulted in the accumulation of sand mixed with particles of lead paint (sandblast grit). As Gamache finished sandblasting a particular area, Lavallee's workers would remove the sandblast grit and spread it on the ground below where the timber floor had been removed from the first floor of the mill.² In multiple phases from March through June of 1997, an eight to ten inch concrete floor was poured over the sandblast grit. In July, 1997, Sound Manufacturing moved onto the property.

In August, 1997, David Stokes, an inspector for the state department of environmental protection (department), came to the mill to investigate a complaint against John Bogdanski, one of the commercial tenants at the mill. During the investigation, Stokes received information that contaminated sandblast grit possibly was buried beneath the concrete floor. The following day, Stokes returned to the mill and asked the defendant whether sandblast grit in fact was buried under the concrete floor. The defendant confirmed that it was.

In October, 1997, a sample of paint was taken from a portion of the mill walls that had not been sandblasted, and samples of the sandblast grit were taken from various locations beneath the concrete floor. These samples registered lead concentration levels well in excess of that deemed hazardous under state law. No one had obtained hazardous waste permits in connection with the handling of the lead contaminated sandblast grit.

Thereafter, in a five count substitute information, the state charged the defendant with: one count of storage of hazardous waste without a permit in violation of § 22a-131a (b); one count of disposal of hazardous waste without a permit in violation of § 22a-131a (b); one count of conspiracy to store and dispose of hazardous waste without a permit in violation of §§ 22a-131a (b) and 53a-48 (a); and two counts of placing another in imminent danger of death or serious bodily injury in violation of § 22a-131a (c).³ Prior to trial, the state filed a motion in limine to preclude the defendant from presenting evidence in support of a defense of mistake of law and evidence relating to environmental harm. Specifically, the state sought to preclude evidence that state or local officials had told the defendant that it was lawful to dispose of the sandblast grit under the floor of the mill. The state also sought to exclude evidence that the disposal of the hazardous waste had not caused environmental harm because it contended that such harm was not relevant to "disposal" or "storage" as defined under the federal act. The defendant opposed the motion, contending that whether he had received an official misstatement of the law was a question of fact for the jury. At hearings regarding the environmental harm evidence, the defendant claimed that such evidence was relevant and that the pertinent terms of § 22a-131a (b) were defined by state, not federal, law. The trial court initially denied the motion in limine as to the mistake of law evidence but ultimately granted the motion as to both that evidence and the evidence regarding the absence of environmental harm. As part of its ruling regarding environmental harm, the court concluded that the federal act defined the elements of the offenses.

The defendant testified in his own defense. He acknowledged that Sound Manufacturing had been cited previously by the department for a hazardous waste violation involving paint waste,⁴ but stated that he had no recollection to confirm or dispute testimony by Stokes and Diane Duva, another department employee, that the defendant had been given a booklet regarding proper handling of hazardous waste and permit requirements and that the department agents had informed him that paint does not lose its hazardous properties when it is cured or dried. The defendant admitted that he had authorized the burial of the sandblast grit below the floor, that he knew that the sandblast grit contained lead, that he knew that lead had the potential to be dangerous to people or the environment and that he did not have a permit to bury the sandblast grit under the concrete floor. He contended that he had been led to believe that it was legal to do so. Specifically, he stated that he had been told by Paul Cote, the building inspector for the city of Norwich, who was not related to the defendant, and Gene Gamache, the owner of the state certified lead abatement company that had performed the sandblasting, that disposal of the sandblast grit below the concrete floor was legal.⁵ In light of its earlier ruling on the state's motion in limine, however, the trial court instructed the jury that this evidence was not a defense, but was admitted only to explain the defendant's state of mind when he had told Stokes that the burial of the sandblast grit was "no big deal." The defendant also testified that the sandblast grit had been buried on top of an asphalt-like substance that completely covered the ground. In accordance with its ruling precluding evidence of environmental harm, the trial court instructed the jury that this testimony was relevant only to impeach other witnesses' observations of the site where the sandblast grit had been buried.

The jury subsequently rendered a verdict of guilty on three counts of violations of § 22a-131a (b): the storage count; the disposal count; and the conspiracy count. The trial court sentenced the defendant to a term of two years imprisonment, execution suspended after one year, for each of the three counts, with the terms to run consecutively. The court also ordered five years of probation for each count. One of the conditions of probation proposed by the state, which the court adopted, required the defendant to pay $1,038,000 into a trust to fund the removal of the contaminated grit and the remediation of the property. The defendant appealed from the judgment of conviction to the Appellate Court, and we then transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.

On appeal, the defendant claims that the trial court improperly: (1) instructed the jury using the definitions of "storage" and "disposal" as provided under the federal act, rather than state law; (2) precluded evidence regarding a mistake of law defense; (3) precluded evidence demonstrating that no lead had entered the environment; (4) failed to instruct the jury that it could not convict the defendant for both disposal and storage of hazardous waste, as those activities are mutually exclusive under federal law; and (5) ordered remediation as a condition of probation. The defendant further contends that prosecutorial improprieties deprived him of a fair trial. We agree with the defendant's first claim and, accordingly, we reverse the trial court's judgment.

I

The first issue we must determine is whether state or federal law...