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Court Finds Scheme to Defraud Regarding DEC Permits

A New York Criminal Lawyer said the counts charge the defendants in conjunction with payments made by several corporation/parties. It is the theory of the prosecution that criminal liability attached to the actions of the defendants because the money which the defendants obtained as a result of the transactions involving several corporation / parties was paid as a result of either trick or device, false promise, or some combination of both.

In support of this contention the District Attorney adduced evidence before the grand jury to the effect that the defendants either acting directly or through others, made both oral and written presentations to the effect that their new process made “tremendous steps” toward reducing the impact of underground tank discharges so as to protect “our land, air and water” and to promote their services as “today’s solution to yesterday’s pollution”.

Upon examination of the record the court ruled that these generators only sought a disposition of their P.C.S. which would absolve them from liability both in terms of their obligation to remove the material from their premises pursuant to E.C.L. Article 17 Title 10, (CERCLA) 42 U.S.C. 9601 et seq. and other such similar laws and at the same time avoid the continuing sanctions pursuant to these laws which could follow if the material, having been taken off the sites owned or controlled by the generators, was improperly re-introduced into the waste stream.

A New York Criminal Lawyer said the court further ruled that this is not to say that deceit and misrepresentations by the defendants in connection with the genuine concerns of the generators relating to potential liability on their part for the malfeasance or nonfeasance of the defendants could not, under any circumstances, give rise to criminal liability on a grand larceny theory. It is only to say that on this record, the only viable larceny theories pertaining to these counts would necessarily involve material misrepresentations and false promises which would go directly to the civil, administrative and criminal liability of the generators or, at the very least, substantially mislead them as to the potential parameters of the same.

The mere fact that some or all of the defendants may have operated at afacility in violation of the terms and conditions of their D.E.C. permits and associated consent orders does not, ipso facto, constitute a material misrepresentation or false promise giving rise to criminal responsibility, sounding in grand larceny, no matter that such violations may give rise to civil, criminal or administrative law liability on the part of the defendants in other contexts.

A New York Drug Possession Lawyer said this is so because improprieties by the defendants in the course of their operation with respect to the rules and regulations of the D.E.C. would not necessarily expose the generators to liability of any kind so long as it could not be shown that the P.C.S. produced by them had improperly re-entered the waste stream.

The count of scheme to defraud is applicable to the several named defendants in that they are charged with engaging in a scheme constituting a systematic ongoing course of conduct with intent to defraud ten or more persons by false or fraudulent pretenses, representations or promises, and did so obtain property from one or more persons.

There is insufficient evidence to conclude that these representations attributed to the defendants concerning “the tremendous steps” which the defendants were supposedly making to protect “our land, air and water” were material. These claims were in the nature of public relations rhetoric and this record cannot sustain any other interpretation but that they were extraneous and irrelevant to any decision making process which ultimately led to the inclusion of the facility in the chain of contractors and subcontractors who were associated with the removal and disposition of any P.C.S.
Further, so much of the allegations in this count pertaining to the dumping of 55 gallon cans containing untested liquids by employees of the facility, even if such activities amounted to violations of other laws or regulations, are irrelevant to the legal position of any of the defendants vis-a-vis the supposed victims of the larceny scheme inasmuch as these activities could have no impact on the ultimate liability of the “victims” even under the strict liability imposed by E.C.L. Article 17, Title 10 and (CERCLA) 42 U.S.C. 9601 et seq.

In addition, a New York Sex Crimes Lawyer said there is no competent proof in the record to substantiate the contention of the District Attorney that waste obtained from any particular generator was either used as backfill, or spread out on the ground at the facility at the direction of any of the defendants.

Our New York Grand Larceny Lawyers from Stephen Bilkis and Associates fully understand how difficult it is to be deprived of one’s right without proper basis. It provides professional legal service within New York Metropolitan area including Corona, New York.

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