People v. J. R. Cooperage Co.

OPINION OF THE COURT

The issue on this appeal is whether defendants may be convicted under ECL 71-2715 (1) of attempting to cause another to unlawfully possess or dispose of hazardous wastes in the absence of any evidence of solicitation or attempted solicitation. For the reasons that follow, we conclude that it is not necessary that there be evidence of solicitation or attempted solicitation to establish a violation of this statute.

I

As indicated by the Appellate Division, the facts are essentially uncontroverted. Defendant J. R. Cooperage Co., Inc. is a corporation engaged in the business of recycling used steel drums for resale and defendant Gustave Rosenberg is its president. On December 13, 1983, a team comprised of representatives from the New York City Department of Environmental Protection and the New York City Fire, Police, and Sanitation Departments raided the defendants’ plant and seized 16 drums filled with a sludgy and viscous waste material. The drums were located both in and next to a refuse dumpster inscribed with the initials of the defendants’ commercial trash hauler, Red Ball Sanitation Service Corp. (Red Ball). Defendants’ business operation required the use of an oil separator located next to a pit which collected waste water and separated from it a thick, oily sludge. On the day of the raid, a damp shovel, a funnel and large and small drums were found near this pit. Defendant Rosenberg admitted to the

The statute, which prohibits any "attempt to cause” another to unlawfully possess or dispose of hazardous waste, imposes no requirement that the attempt be effected by means of an actual or attempted communication. Although, as defendants argue, application of the doctrine of ejusdem generis might suggest that the Legislature intended to limit the general phrase "otherwise attempt to cause” by the preceding specific terms of "solicit, request, command [or] importune”, the legislative history does not support this conclusion and we decline to adopt such a narrow construction when it so clearly conflicts with the obvious legislative purpose of the statute (see, Mark v Colgate Univ., 53 AD2d 884 ). To limit the phrase "otherwise attempt to cause” to attempts effected by means of an actual or attempted communication would create an intolerable loophole in a statutory scheme intended to comprehensively regulate hazardous wastes. This statutory scheme prohibits unlawful possession and disposal of hazardous wastes and, in ECL 71-2715, also prohibits unlawful dealing in the form of solicitation. To construe the statute’s added prohibition of "attempts] to cause” unlawful disposal or possession as prohibiting only actual or attempted solicitations would reduce the "attempt to cause” language of ECL 71-2715 (1) to a redundancy while effectively eliminating any other basis within this statutory scheme upon which to prosecute an

Nor is a more narrow construction of "otherwise attempt to cause” required because ECL 71-2715 (1) tracks the language of the criminal solicitation statutes (see, Penal Law §§ 100.00, 100.05, 100.10). Contrary to defendants’ argument, People v Lubow ( 29 NY2d 58 ) did not construe that phrase in the criminal solicitation statutes as prohibiting only attempted solicitations. Rather, we explained that the statutes, entitled "Criminal Solicitation”, prohibited solicitation, which consisted of a communication coupled with an intent that the other person engage in unlawful conduct (People v Lubow, 29 NY2d 58 , 62, supra). We noted that, under the circumstances of that case, a failed attempt at communication also fell within the statutory proscription of "otherwise attempts to cause such other person to engage in such conduct” (id.). Our decision there does not foreclose a broader reading of "otherwise attempts to cause”. Moreover, even if a more narrow reading of "otherwise attempts to cause” might be appropriate when interpreting statutes aimed solely at criminal solicitation, it is not appropriate when the phrase is used in a public health statute such as ECL 71-2715 (1) intended to criminalize a broader range of conduct.

We conclude therefore that ECL 71-2715 (1) prohibits any attempt to cause another to possess or dispose of hazardous waste, whether or not the attempt was effected by means of an actual or attempted communication.

The only remaining issue is whether the evidence, when viewed in the light most favorable to the People (People v Montanez, 41 NY2d 53 , 57), is legally sufficient to establish defendants’ guilt beyond a reasonable doubt. While Supreme Court purportedly applied this standard, it erred in its view that an actual or attempted communication is an essential element of unlawful dealing in hazardous wastes in the second degree. Having concluded that it is not, we agree with the Appellate Division that the defendants’ convictions are supported by legally sufficient evidence.

Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed.