People v Rising Tide Fuel, LLC

[*1] People v Rising Tide Fuel, LLC 2016 NY Slip Op 51389(U) Decided on September 14, 2016 District Court Of Nassau County, First District Kluewer, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 14, 2016
District Court of Nassau County, First District

The People of the State of New York, Plaintiff(s)

against

Rising Tide Fuel, LLC, Defendant(s)



2015NA023178



For the People:

Honorable Madeline Singas, District Attorney

240 Old Country Road

Mineola, NY 11501

For Defentant:

Gerald V. Dandeneau

425 Broadhollow Road, Suite 418

Melville, NY 11747
Susan T. Kluewer, J.

Defendant's motion for an order dismissing the accusatory instrument as facially defective is granted (see CPL 170.30[1][a]).

Defendant is accused, by superseding information, of fueling a marine vehicle at other than an approved facility, ostensibly in violation of New York State Fire Code 2210.4, designated count 3; of what is described as "Failure to Comply," ostensibly in violation of Nassau County Fire Prevention Ordinance Article II, § 2.5(g), designated count 4; and of what is described, similarly, as "Failing to Comply," ostensibly in violation of Nassau County Fire Prevention Ordinance Article XVI, § 16.1, designated count 5, all on account of an incident that is alleged to have occurred on September 3, 2015 at 3:40 p.m. at 1944 Bayberry Avenue, Merrick, New York. By the factual part (see CPL 100.15[3]), the complainant (see CPL 100.15[1]), Fire Marshal Joseph Battagila, attests that :

"[a]t the aforementioned date, time, and location, the defendant Rising Tide Fuel LLC did fuel a vessel floating on the water from a tanker truck located at an unauthorized point after receiving notice that such activity was illegal. Prior to August 6, your deponent received notice that the defendant was fueling floating vessels from a tanker truck located at an unauthorized point. On August 6, 2015 the defendant received notice that fueling vessels floating on the water from a tanker truck located at an unauthorized point is illegal. Following the receipt of this notice, your deponent went to the above referenced location on September 3, 2015, after receiving an anonymous tip that the same illegal activity was occurring, and your deponent observed the defendant fueling floating vessels in the same manner. Particularly, your deponent observed the defendant fuel a vessel [*2]floating on the water from a tanker truck located at an unauthorized point. The substance with which that vehicle was fueled is gasoline, a Class I fuel pursuant to 19 NYCRR Part 1225. The defendant conducted this activity without the consent, authority, or approval of the Code Official."The above is based upon PERSONAL KNOWLEDGE [emphasis in original] of the deponent herein particularly as to the personal observations of your deponent while conducting inspections on the premises. The above is also based upon INFORMATION AND BELIEF [emphasis in original], the source and basis of said information and belief being the laboratory report, which is annexed hereto and made a part hereof, which shows that the substance used to fuel the vessel was gasoline as well as the supporting deposition of Bohdan J. Pilczak who served notice and observed the principal owner of the defendant Corporation acknowledge such notice."

By a supporting deposition annexed to the accusatory instrument, Nassau County Fire Marshall Division Supervisor Bohdan J. Pilczak attests that: "[o]n August 6, 2015, I delivered a letter to Gene Monahan, the principal of Rising Tide Fuel LLC (the defendant herein). I know that Gene Monahan is the principal of Rising Tide Fuel LLC because he represented that he was the principal to me. I advised that Rising Tide Fuel was acting in violation of New York State Fire Code Section 2210.4 in that the defendant was providing gasoline, a Class I fuel, into floating marine craft. I also provided a notice to the defendant of the dangers inherently associated with such activity. The defendant was ordered to cease and desist any such activity as it is prohibited. I witnessed Gene Monahan, the principal and an authorized agent of Rising Tide Fuel LLC sign a copy of that notice on August 6, 2015 thereby acknowledging his receipt of the cease and desist letter on behalf of Rising Tide Fuel LLC."Assistant District Attorney Matthew Perry has written this statement for me. I have read this statement and it is the truth."

Also attached to the accusatory instrument is a document labeled "Trace Evidence Report" dated October 22, 2015. It contains a reference to "Wolk, Barry — suspect, September 3, 2015" and a notice setting forth that "False Statements made herein are punishable as a class A misdemeanor pursuant to section 210.45 of the Penal Law." It is signed by Forensic Scientist Frank Padula, who thereby attests, in effect, that he is employed by the New York State Police, that he performed an examination of a quart can with "inner glass vial containing (liquid. . .from fuel dispensing nozzle. .)," that the "[a]nalysis [was] for hydrocarbons using pentane dilution followed by Gas Chromatography / Mass Selective Detections," and that the substance analyzed is "[m]ixture of Gasoline and ethanol (Alcohol). Examples of products which contain ethanol include beverages in suitable dilutions, solvents for pharmaceuticals - perfume, octane boosters for gasoline and hybrid fuels." The document is also signed by Barry Brown, Supervisor of Forensic Services.

Defendant now moves for the above noted relief. In support, it submits an affidavit from its president and principal shareholder, Gene Monahan, who attests to matters outside the four corners of the accusatory instrument, e.g., the history of his corporation and its good standing; his opinion that the fueling of floating marine craft is permitted from fuel trucks, provided certain conditions are met and "subject to the approval of the Code Enforcement Official;" and an absence of fuel spills and equipment malfunctions in the eight years his company has been in business. He also notes Defendant has commenced an Article 78 proceeding against the Town of Babylon seeking a declaration that its operations are in compliance with applicable fire codes, including the New York State Fire Code. Counsel for Defendant submits an affirmation urging, it appears, that the Nassau County Fire Prevention Ordinance does not require compliance with the New York State Fire Code, that the Nassau County Fire Code does not prohibit fueling of marine craft so as to support an emergency order to cease and desist the practice, that the accusatory instrument does not demonstrate that Defendant's actions violate "this Fire Ordinance," and that the accusatory instrument "fails to adequately state the offense charged so [*3]that the Defendant can prepare for trial," thus requiring its dismissal.

The People in opposition set forth certain substantive and procedural facts, and by memorandum of law urge that the New York State Fire Code is applicable to Nassau County, that the Nassau County Fire Marshall is the enforcing authority under "this Ordinance," that Defendant's argument that its conduct is permissible fails to appreciate the distinctions between Class I and Class II and III fuels, only the latter two of which are conditionally excepted from the prohibition against fueling at a site other than an approved marine motor fuel-dispensing facility, and that the other exception Defendant invokes requires the approval of the code enforcement official, which was not forthcoming here. The People cite Executive Law § 382 concerning "Remedies" for violations of the New York State Fire Prevention and Building Code Act, Penal Law § 80.10 governing fines for corporations for, among other things, offenses defined outside the Penal Law for which no special corporate fine is specified, and the penalty provisions of the Nassau County Fire Prevention Code. While they in this context articulate what the penalties are for the two counts (designated counts 4 and 5) brought under the Nassau County Fire Prevention Ordinance, they do not articulate what penalty provision they urge is applicable to count 3, the count by which they accuse Defendant of, on September 3, 2015, improperly fueling a marine vessel. They then urge that the accusatory instrument here meets the facial sufficiency requirements set forth in the Criminal Procedure Law, noting that the complainant personally witnessed the acts giving rise to this prosecution and that the maker of the supporting deposition personally gave Defendant's principal what they claim is notice that Defendant's conduct will subject Defendant to criminal liability.

Defendant in reply asserts that there is nothing in the Nassau County Fire Prevention Code that suggests it is intended to supplement or incorporate the New York State Fire Prevention Code, that, in effect, the Nassau County Fire Prevention Code contains no provision prohibiting in-water fueling of marine craft, or fueling from a fueling tank vehicle similar to Defendant's, that Nassau County cannot adopt the state standard by referring to it in the accusatory instrument, that Executive Law § 382 applies only to building structures, that Nassau County Fire Prevention Ordinance § 2.5 governing issuance of emergency orders applies only to buildings, and that Nassau County Fire Prevention Ordinance Article XVI, §16.1 concerns violations of the National Electrical Code, incorporated into the county ordinance, and thus has no application to this case. Defendant further urges that § 2210.4 of the New York State Fire Prevention Code fails to specify what penalties and remedies are available in the event of a breach of its provisions, and it again posits that, in any event, its own conduct comes within the exceptions to the New York State prohibition against fueling an in-water craft from other than an approved facility, subject only to the approval of the code enforcer, which, Defendant urges, cannot be capriciously withheld.

It is well settled that, in order to be sufficient, a long form information must both provide reasonable cause to believe that the party, here a corporation, named in it committed the offense charged, and contain sworn, non-hearsay allegations supporting every element of that offense, and that party's commission thereof (see CPL 100.15, 100.40[1]). Concrete, non-hearsay factual allegations are sufficiently supportive of an element of the offense charged if they give rise to a reasonable inference that the named defendant committed that particular element or acted with the requisite mental culpability (see People v. Henderson, 92 NY2d 677, 685 NYS2d 409 [1999]; People v. McGee, 204 AD2d 353,611 NYS2d 261 [2d Dept. 1994]; People v. Li, 192 Misc 2d 380, 745 NYS2d 683 [Nassau Dist Ct, 2002]; People v. Coyle, 186 Misc 2d 772; 719 NYS2d 818 [Nassau Dist Ct 2000]), but conclusory statements, unsupported by facts, are inadequate (cf. People v. Dumas, 68 NY2d 729, 506 NYS2d 319 [1986]). The information thus must demonstrate the existence of a prima facie case (People v Henderson, supra), but the prima facie case requirement is not the same as the burden of proof beyond a reasonable doubt (id. at 680, 685 NYS2d at 411). When ruling on the sufficiency of an information, a court must accept the factual allegations as true (People v. Casey, 95 NY2d 354, 717 NYS2d 88 [2000]; People v Henderson, supra), but it is limited to reviewing the facts as they are set forth in the four corners [*4]of the accusatory document (see People v. Grabinski, 189 Misc 2d 307, 731 NYS2d 583 [App Term 2d Dept 2001]; People v. Voelker, 172 Misc 2d 564, 658 NYS2d 180 [Crim Ct, New York County, 1997, Morgenstern, J.]; cf. CPL 100.40[1]).

Notwithstanding considerable effort by me and by my support staff, I was unable to locate hard copies of the pertinent sections, including § 2210.4, of what I can only infer are part of a set of regulations promulgated pursuant to Executive Law Article 18, entitled the "New York State Uniform Fire Prevention and Building Code Act," and what the parties, employees of the New York State Department of State in exhibits submitted therewith, and the courts in official decisions, variously refer to as the "New York State Fire Code," the "Fire Code of the State of New York," the "Uniform Code," and "19 NYCRR Part 1225," as well as the "New York State Uniform Fire Prevention and Building Code." I do note that 19 NYCRR governing the "State Fire Prevention & Building Code Council" appears to incorporate by reference "[c]ertain published standards" (see 19 NYCRR 1225[1][b]) of the " Fire Code of New York State' (Publication Date: August 2010);" that 19 NYCRR 1225(1)(a) specifies "2010 FCNYS" as being published by the "International Code Council, Inc." located in Washington, D.C.; and that 19 NYCRR 1225(1)(a) also specifies that "2010 FCNYS is available for public inspection and copying" at the New York Department of State located in Albany, New York. Moreover, "Chapter 22" entitled "Motor Fuel-Dispensing Facilities and Repair Garages," which, at the bottom of each page as it is reproduced on my computer screen, bears the notation "2010 fire code of new york state," is available on the internet. Also as reproduced on my computer screen, subdivision 4 of § 2210 does, as the parties almost agree, provide that "[f]ueling of floating marine craft with Class I fuels at other than a marine motor-fueling facility is prohibited," and that "[f]ueling of floating marine craft with Class II and III fuels at other than a marine motor-fueling facility shall be in accordance with [certain enumerated requirements]." These provisions cannot, however, be printed into hard copy. Nor could I retrieve the entirety of this "Fire Code of New York State." After making inquiry of the attorneys, defense counsel was able to provide me with at least part of "Fire Code New York State" dated August 2007, and the People ultimately submitted the entirety of "2010 fire code of new york state," which I am "borrowing," because the People are, in turn, "borrowing" this lengthy document. In my view, it is just short of outrageous, and possibly violative of due process, that access to written rules the People are using to make criminal accusations is so difficult to come by. But because I could "borrow" a copy of "2010 fire code of new york state," I can comfortably rule that § 2210.4 thereof does unconditionally prohibit the fueling of floating marine craft with Class I fuels at other than approved marine motor-fueling dispensing facilities, and that, as the People contend, the "exceptions" in § 2210.4 to which Defendant points concern only Class II and III fuels. But even if this prohibition is among the "[c]ertain published standards" that are incorporated by reference into an official state regulatory scheme, and putting aside that there is nothing to connect Defendant to the attestation that a substance tested on a particular date is gasoline, Count 3 is patently defective.

"2010 Fire Code of New York State " contains no provision for any penal or other sanction, and it designates nothing as an "offense," a "violation" or a "crime" (cf. Penal Law Article 55). Indeed, it appears that any such provisions would constitute an unlawful delegation of legislative authority (see McKinney's Const. Art. 3, § 1; McKinney's Statutes §§ 2, 3; see also Yanofsky v. Blanchard, 288 NY 145 [1942]; People v. Brongofsky, 181 Misc 782, 50 NYS2d 32 [City Magistrate's Court, Bronx, 1943, Levis, J.]). But although Defendant suggests otherwise, it further appears that the "uniform fire prevention and building code," which the "council" that is specified in Executive Law Article 18 (see Executive Law § 374) is required to have formulated (see Executive Law § 377) is applicable to Nassau County (see Executive Law § 373), regardless of the Nassau County's lack of adoption or incorporation of its provisions into the Nassau County Fire Prevention Ordinance (see Executive Law § 381). And it appears that, unless it "opts out," Nassau County is charged with the duty of here enforcing the state "code" (see Executive Law §§ 381[2], 382[1]). But the only penal provision in Executive Law Article [*5]18 is § 382(2). It provides that:

"[a]ny person, having been served, either personally or by registered or certified mail, with an order to remedy any condition found to exist in, on, or about any building in violation of the uniform fire prevention and building code, who shall fail to comply with such order within the time fixed by the regulations promulgated by the secretary pursuant to subdivision one of section three hundred eighty-one of this article, such time period to be stated in the order, and any owner, builder, architect, tenant, contractor, subcontractor, construction superintendent, or their agents or any other person taking part or assisting in the construction of any building who shall knowingly violate any of the applicable provisions of the uniform code or any lawful order of a local government, a county or the secretary made thereunder regarding the standards for construction, maintenance, or fire protection equipment and systems shall be punishable by a fine of not more than one thousand dollars per day of violation, or imprisonment not exceeding one year, or both."

Putting aside that what the People claim Fire Marshall Division Supervisor Pilczak served on Defendant is not an "order to remedy" but a "letter" only inferentially containing a "cease and desist" directive, and putting aside Defendant's related argument that Executive Law § 382(2) applies only to failures to remedy conditions existing in buildings (cf. People v. Plateau Associates, LLC, 46 Misc 3d 1, 997 NYS2d 590 AppTerm 2d Dept, 2014]), what the People accuse Defendant of doing under count 3 is not failing to comply with an order to remedy issued under the New York State Fire Prevention and Building Code, but rather affirmatively fueling a floating motor craft with a Class I fuel from an unauthorized location, conduct that, as noted above, has not been designated an offense by any legislative body (see Penal Law § 10.00[1]; see also Penal Law § 10.00[3], [4][5], [6]). Since what the People allege under count 3 does not constitute an offense, count 3 must be dismissed.

Counts 4 and 5 have the reverse defect: penal sanctions, but no applicable offense. By count 4, the People purport to accuse Defendant of "Failure to Comply" in violation of Nassau County Fire Prevention Ordinance Article II, §2.5 (g). Article II of this ordinance governs "Inspections, Investigations, Orders and Reports" and provides for, among other things, the Nassau County Fire Marshal's inspection of "Certain Hazards and Appliances" — none of which concerns the fueling of boats — the issuance of "such orders with respect thereto as may be necessary for the enforcement of laws and ordinances governing the safeguarding of life and property" (see Nassau County Fire Prevention Ordinance Article II, § 2.0), the inspection of "Buildings," and the issuance of orders to remove or remedy "dangerous conditions" discovered in such buildings (see Nassau County Fire Prevention Ordinance Article II, §§ 2.1, 2.2). Any "order hereunder" shall be complied with, "[p]rovided, however, that any owner or occupant of such premises [served with any such order] may within five days appeal to the Fire Commissioner" and may ultimately seek review under CPLR Article 78 (see Nassau County Fire Prevention Ordinance Article II, § 2.3[a],[b],[c]). Section 2.5 governs "Emergency Order," and provides in pertinent part that if an inspection conducted by the Fire Marshal pursuant to Article II "and this Ordinance" reveals a condition imminently perilous to safety, life or property, or that an order to correct a condition issued by the Office of the Fire Marshal "has not been complied with, in relation to a building or premises covered by this Ordinance," the Fire Marshal "shall certify in writing" that, among other things, an emergency exists, and shall "issue an order that the building or premises be immediately vacated" (see Nassau County Fire Prevention Ordinance Article II, § 2.5[a]). Any such order shall contain notice of the opportunity for a hearing before the Nassau County Fire Commission to determine if the order was properly issued (see Nassau County Fire Prevention Ordinance Article II, § 2.5[d]). Section 2.5(g) provides in pertinent part that:

"a corporation violating any provision of this section, or failing to comply therewith, or violating or failing to comply with any order or regulation made thereunder, shall upon conviction be guilty of a misdemeanor punishable by a fine not exceeding Five Thousand Dollars ($5,000.00) for each and every offense."

Not only is there no allegation of fact demonstrating prima facie that Defendant violated or failed to comply with any provision contained anywhere in § 2.5, it appears that this inartfully drafted section sets forth no conduct that is either proscribed or required, except failing to comply with an order "made thereunder." While it otherwise appears that the Nassau County Fire Marshal was acting under the authority granted by the Executive Law to enforce "2010 Fire Code of New York State, " to the extent that the People's opposition can be construed as including an argument that the "letter" it is alleged Fire Marshall Division Supervisor Pilczak delivered to Defendant constitutes an "order" within the meaning of some part of Nassau County Fire Prevention Ordinance Article II, that argument must fail. There is no attestation demonstrating that this letter is an order relating to "Certain Hazards and Appliances," no attestation demonstrating that this letter is an order to remedy "dangerous conditions" discovered in "Buildings," and no attestation demonstrating that this letter is an "Emergency Order" directing the vacating of premises. In short, and assuming without deciding that the crime specified in Nassau County Fire Prevention Ordinance §2.5(g) which Defendant is accused of committing encompasses orders described anywhere in Article II, rather than being limited, as its language suggests, to an "Emergency Order" issued under §2.5, there is no prima facie demonstration that the Nassau County Fire Marshall was exercising authority conferred by Nassau County Fire Prevention Ordinance Article II, rendering count 4 defective, and requiring its dismissal.

By count 5, the People purport to accuse Defendant of "Failing to Comply" in violation of Nassau County Fire Prevention Ordinance §16.1, which provides that "[n]o person, business entity or corporation shall fail to comply with any order or regulation made under this Ordinance." Article XVI of the Nassau County Fire Prevention Ordinance concerns "Effect of Ordinance," and §16.2 governing "Penalties" provides that:

"[a]ny person, firm or corporation violating any provision of this Ordinance, or failing to comply with any order or regulation made thereunder, shall upon conviction be guilty of an offense punishable by a fine not exceeding one thousand dollars ($1,000), or by imprisonment for not more than fifteen days (15) or both for each and every such violation. The imposition of the penalty for any violation of this Ordinance shall not excuse the violation or permit it to continue, and each fifteen days that the prohibited conditions are maintained shall constitute a separate offense."

Nassau County Fire Prevention Ordinance Article XVI, §16.0 does, as Defendant notes, address "Application of National Electrical Code." Inasmuch, however, as this section merely provides that where reference is made in the Ordinance to the National Electrical Code, that term shall be construed in a certain way, I cannot agree with Defendant that Article XVI concerns only electrical code violations. What Article XVI does concern are, as noted, orders "made under this Ordinance." But the Nassau County Fire Prevention Ordinance as a whole and as the People seek to use it appears to improperly designate the same conduct, identically described, as both a violation and a misdemeanor (see Penal Law §10.00[3],[4]; see also Penal Law § 55.10[2],[3]; and cf. Nassau County Fire Prevention Ordinance Article II, §2.5[g] and Nassau County Fire Prevention Ordinance Article XVI, § 16.2), thereby failing to give fair warning of the nature of the conduct proscribed and the sentences authorized upon conviction (see Penal Law § 1.05[2]). Moreover, as noted above, there is no attestation demonstrating that any order with which Defendant failed to comply was "made under this Ordinance." Count 5 is thus also defective and must also be dismissed.

So Ordered.

Dated: September 14, 2016

Hon. Susan T. Kluewer