People v. Long Island Lighting Co.

Appellate Terms of the Supreme Court of New York

People v. Long Island Lighting Co.

88 Misc. 2d 123, 387 N.Y.S.2d 36, 1976 N.Y. Misc. LEXIS 2595

Appellate Terms of the Supreme Court of New York·Decided June 7, 1976·Published·Cited by 5 cases

Opinion

Memorandum. Order dismissing information is affirmed.

Defendant has been prosecuted by the District Attorney for violating 6 NYCRR 227.4, 227.6. The court below properly dismissed the information, holding that prosecution under ECL 71-2105 was exclusively within the purview of the Attorney-General. Since ECL 71-1711 (subd 2) is general in nature, and is applicable only if punishment is not otherwise prescribed by another section of law, it must succumb to the more specific section, which relates only to article 19 (ECL 71-2101; 71-2105). Moreover, use of the word "provisions” in section 71-2105 was intended to include "rules and regulations” passed by the department pursuant to article 19 (ECL 19-0301). To hold otherwise would prevent the Attorney-General from commencing any criminal prosecutions under article 19, since said article contains only enabling legislation. All criminal prosecutions under article 19 must be based upon violations of the rules and regulations (6 NYCRR 200.1 et seq.).

Our opinion today does not render the District Attorney or other local prosecutors impotent in the area of air pollution. The Environmental Conservation Law recognizes the right of these local prosecutors to deal with air polluters pursuant to local ordinances such as article X of the Suffolk County Sanitary Code (see ECL 19.0703).

We find no merit to the remaining contentions raised on appeal by the People.

Concur: Glickman, P. J., Pittoni and Silberman, JJ.

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Memorandum. Order dismissing information is affirmed.

Defendant has been prosecuted by the District Attorney for violating 6 NYCRR 227.4, 227.6. The court below properly dismissed the information, holding that prosecution under ECL 71-2105 was exclusively within the purview of the Attorney-General. Since ECL 71-1711 (subd 2) is general in nature, and is applicable only if punishment is not otherwise prescribed by another section of law, it must succumb to the more specific section, which relates only to article 19 (ECL 71-2101; 71-2105). Moreover, use of the word "provisions” in section 71-2105 was intended to include "rules and regulations” passed by the department pursuant to article 19 (ECL 19-0301). To hold otherwise would prevent the Attorney-General from commencing any criminal prosecutions under article 19, since said article contains only enabling legislation. All criminal prosecutions under article 19 must be based upon violations of the rules and regulations (6 NYCRR 200.1 et seq.).

Our opinion today does not render the District Attorney or other local prosecutors impotent in the area of air pollution. The Environmental Conservation Law recognizes the right of these local prosecutors to deal with air polluters pursuant to local ordinances such as article X of the Suffolk County Sanitary Code (see ECL 19.0703).

We find no merit to the remaining contentions raised on appeal by the People.

Concur: Glickman, P. J., Pittoni and Silberman, JJ.

People v. Long Island Lighting Co., 88 Misc. 2d 123, 387 N.Y.S.2d 36, 1976 N.Y. Misc. LEXIS 2595 (N.Y. Ct. App. 1976).

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Opinion

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