Petition — New York v. Warner-Lambert Co.

80-1409

Office-Supreme Court, U.S.

FEB 19 1981

IN THE

EXANDER L. STEVAS,

Supreme Court of the United | States

October Term, 1980

THE PEOPLE OF THE STATE OF NEW YORK,

Petitioner,

against

WARNER-LAMBERT COMPANY Doing Business Un-

der the Name of WARNER-LAMBERT CO., AMERICAN

CHICLE DIVISION, ARTHUR KRAFT, KD HARRIS,

JAMES O’MAHONEY and JOHN O’ROURKKE,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE COURT OF APPEALS OF THE

STATE OF NEW YORK

Joun J. Santucci

District Attorney

Queens County

Attorney for Petitioner

125-01 Queens Boulevard

Kew Gardens, New York 11415

(212) 520-2092

Barry A, Schwartz

Assistant District Attorney

Of Counsel

Questions Presented

(1) Whether the decision of the court below that a trial

in the instant matter would violate the due process rights

of the defendants is correct?

(2) Whether the refusal of the court below to allow the

matter to proceed to trial denied the victims of the explo-

sion equal protection of the law?

II!t

TABLE OF CONTENTS

PAGE

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Appendices:

A—Opinions of the Supreme Court of the State of

REPAIRS soe Sect e toi Bd Ween d nether echoes on hae Say la

B—Majority and Dissenting Opinions of the Ap-

pellate Division, Second Judicial Department 23a

C—Decision of the Court of Appeals 0.000... 44a

PREVIOUS PAGE WAS BLANK

Iv

TABLE OF AUTHORITIES

PAGE

Cases:

Jackson v. Virginia, 443 U.S. 307 (1979) ooo. 4

Constitutional and Statutory Provisions:

United States Constitution

Fourteenth Amendment ...........:.:cccccccccccccsccssssssessesses 6

1958 Opns. Attorney General, January 21 ...................

McKinney’s Consol. Laws, County Law §700 ................ 5

No.

IN THE

Supreme Court of the United States

Ociober Term, 1980

Tur PEopLe oF THE STATE OF NEw York,

Petitioner,

against

Warner-LamMBert Company, Doing Business Under the

Name of Warner-LamsBert Co., AMERICAN CuicLE Division,

Arruur Krart, Ep Harris, James O’Manoney and JoHn

O’Rovurke,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE COURT OF APPEALS OF THE

STATE OF NEW YORK

The District Attorney of Queens County in the City of

New York on behalf of the People of the State of New York

petitions for a writ of certiorari to review the judgment of

the Court of Appeals of the State of New York in this case.

Opinions Below

The opinions of the Supreme Court of the State of New

York are unreported and set forth in Appendix A. The

majority and dissenting opinions of the Appellate Division

of the Supreme Court of the State of New York, Second

Judicial Department, are reported at 69 A.D.2d 265 and

are set forth in Appendix B. The decision of the Court of

Appeals is reported at 51 N.Y.2d 295 and is set forth in

Appendix C.

Jurisdiction

The judgment of the Court of Appeals of the State of

New York was entered on December 2, 1980 by remittitur

of the case to the lower court. The jurisdiction of this

Court is invoked pursuant to Title 28 of the United States

Code, See. 1257 (3).

Constitutional Provisions Involved

1. The Due Process Clause of the Fourteenth Amend-

ment to the United States Constitution, which provides:

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person

of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal

protection of the laws.

Statement of the Case

In 1976 an explosion ripped through the ‘‘Freshen-Up’’

chewing gum section of a plant located in Queens County

and owned by the American Chicle Division of the Warner-

Lambert Company. Six persons were killed as a result of

the explosion and many others were injured.

A Grand Jury investigation was commenced by the

Queens County District Attorney in order to attempt to

ascertain the cause of the explosion and also to determine

whether or not the deaths came about as the result of mal-

feasance and/or non-feasance of a criminal nature. Evi-

dence was presented both from that produced by the cor-

porate entity as well as that which was unearthed by the

District Attorney’s investigation. It was determined that

the explosion was caused by the ignition of a large quantity

of magnesium stearate, a highly explosive dust which was

used as a lubricant during the manufacturing process and,

because of inadequate cleaning and ventilating procedures,

remained suspended in the air in dangerously high propor-

tions. Indeed, the company, despite warnings from their

insurance carrier that the ‘‘ambient’’ magnesium stearate

created a serious explosion hazard, refused to take the

only adequate step to eliminate the immediate danger—by

rejecting a proposal to purchase and install a dust control

system.

Instead, it continued to use the magnesium stearate in

ever increasing quantities while directing its research de-

partment to devise a manufacturing process which would

eliminate the need for the magnesium stearate. Before the

4

research department had found this long-range solution,

the dust exploded, burning six. employees to death.

After an exhaustive investigation, the Grand Jury voted

to indict the Warner-Lambert Company and four indi-

viduals for manslaughter in the second degree and crim-

inally negligent homicide. The indictments were dismissed

for legal insufficiency by a trial court but the Supreme

Court of the State of New York, Appellate Division, Second

Judicial Department, reinstated the indictments and or-

dered a trial on the factual issues. Instead, the defendants

sought a further appeal to the New York State Court of

Appeals. On November 20, 1980, that court reversed the

Appellate Division and dismissed the indictments.

Reasons for Granting the Writ

Whether evidence is sufficient as a matter of law has, at

least from a defendant’s perspective, already achieved the

status of a constitutional issue worthy of review not only at

the state level, but through the vehicle of Federal habeas

corpus relief. In Jackson v. Virginia, 443 U.S. 307, 312-313

(1979), this Court gave every single convicted defendant an

issue of constitutional dimension to litigate where none

existed before, to wit, whether as a matter of due process

‘‘there was sufficient evidence to justify a rational trier of

the facts to find guilt beyond a reasonable doubt.”’

The New York State Court of Appeals substituted its

judgment for that of the Grand Jury as well as that of the

Appellate Division and determined that the evidence ad-

duced before the Grand Jury was ‘‘not legally sufficient

4)

evidence in this case on the premise of which a jury could

permissibly have imposed criminal liability on any of these

defendants.’’

Such a test is tantamount to a determination that a trial

in this matter would violate the defendant’s due process

rights under Jackson, supra. Petitioner disagrees with

that due process determination and respectfully urges that

this Court grant our petition on this basis.

Under the American system of jurisprudence, a person

who is harmed by another is entitled to seek redress and

compensation for the wrong by bringing a civil action

against the wrongdoer. Our Constitution guarantees

that he be afforded due process during the course of his

litigation.

The District Attorney is not the ‘‘government’’ but,

rather, an elected public official; a lawyer whose sole power

and duty is to represent aggrieved citizens in criminal

lawsuits against defendants (County Law §700, McKin-

ney’s Cons. Laws). That the prosecution is initiated by

the filing of an indictment simply strengthens the point,

since the indictment represents the action not of any gov-

ernmental agency, but rather the collective determination

of a group of citizens (a Grand Jury) to commence a crim-

inal suit against a citizen. Indeed, there is authority in

New York which recognizes the traditional right of a com-

plainant to either himself prosecute a case or engage pri-

vate counsel to prosecute on his behalf (1958 Opns. Atty

Gen. January 21).

6

Thus there is ample precedent to support the proposi-

tion that a citizen who is the victim of a crime has a legiti-

mate legal interest in the outcome of the criminal proceed-

ing which arises out of the criminal act. Having a legiti-

mate legal interest in the case thus logically entitles him to

the fundamental constitutional due process rights available

to him, including, but not limited to, ‘‘the equal protection

of the laws’’ (U.S. Cons., Amendment XIV). Petitioner

submits that to permit a perpetrator of a crime to litigate

under the umbrella of the due process clause of the Four-

teenth Amendment, but to deny a similar right to the victim

of the crime is both fundamentally unfair and a denial of

the victim’s right to equal protection of the laws. Thus

we submit that the Court of Appeals has, by its decision,

raised due process questions that bear both upon the con-

stitutional rights of the defendants as well as the victims.

Finally, and perhaps most importantly, petitioner sub-

mits that this case is an appropriate vehicle for this Court

to determine the constitutional issues asserted herein. The

decision of the Queens County Grand Jury to indict these

defendants is a bold new area of criminal prosecution.

This precedent will undoubtedly be followed by other

Grand Juries in New York and indeed throughout the

nation as attention is focused upon the obligation of cor-

porations and corporate officers to safeguard the health

and safety of its employees. This kind of prosecution

raises fundamental questions of jurisprudence which will

have serious social, economic and even philosophical im-

plications. It is entirely appropriate that this Court seize

the opportunity to define the constitutional parameters of

such a prosecution.

Conclusion

For all of the foregoing reasons, this petition for

a writ of certiorari should be granted.

Respectfully submitted,

Joun J. Santucct

District Attorney

Queens County

Attorney for Petitioner

Barry A. ScHWwARTZ

Assistant District Attorney

Of Counsel

February, 1981

Appendices

APPENDIX A

Opinions of the Supreme Court of the

State of New York

SUPREME COURT QUEENS COUNTY

CriminaL Term, Parr VIII

By Joun J. Leany, J.

Datep February 15, 1978

Inv. No. 915/77

8

THe PEOPLE OF THE STATE OF NEw YORK

VS.

Warner-LAMBERT Company, et al.,

Defendants.

The defendants have made an omnibus motion, wherein

they appiy for an order granting several forms of relief;

to wit:

I. To inspect the Grand Jury minutes and dismiss the

indictment for insufficiency of evidence;

II. To dismiss the indictment as to all defendants as

defective on its face for failure to (i) allege acts constitut-

ing the crimes charged; (ii) particularize and apprise

each defendant of his alleged criminal conduct; and (iii)

establish jurisdiction in this Court;

2a

III. To dismiss the indictment as to Warner-Lambert

on the grounds that a corporation cannot be charged with

homicide, or in the alternative, to dismiss counts seven

through twelve of the indictment on the grounds that a

corporation cannot be liable for criminally negligent

conduct ;

IV. To inspect the Grand Jury minutes and to dismiss

the indictment as to all defendants for failure of the Grand

Jury to vote properly upon correct instructions ;

V. To dismiss the indictment as to all defendants on

the grounds that the Grand Jury was illegally constituted ;

and, in the alternative;

VI. For a Bill of Particulars.

In view of the voluminous, technical and complex nature

of the evidence, criminal theory of liability and the rather

rare, if not unique, applicability of same to the defendants

herein, the Court feels constrained to address itself in de-

tail to the various aspects of this motion.

The indictment herein charges the corporate defendants

and four named individual defendants, who are various

officers of said corporation, with the crimes of manslaughter

in the second degree (six counts) and criminally negligent

homicide (six counts).

The defendant Warner-Lambert Company, doing busi-

ness under the name and style of Warner-Lambert Com-

pany, American Chicle Division, maintains a manufactur-

ing plant at 30-30 Thompson Avenue, Long Island City,

Queens County, New York. At this plant defendants

manufacture several products, including Freshen-Up Chew-

ing Gum.

3a

On November 21, 1976, on the fourth floor of said manu-

facturing plant—where ‘‘Freshen-Up’’ gum was being

made—an explosion occurred, resulting in the death of

six employees, and injuries to others.

The Court will address itself to defendants motion

ad seriatim, commencing with item I; i.e., the motion to

inspect the Grand Jury minutes and motion to dismiss the

indictment for insufficiency of evidence.

At the outset, the Court notes that the Grand Jury

minutes, numbering approximately one-thousand pages,

included testimony of fifty-eight witnesses, comprised of

numerous experts—produced by the people and the de-

fendants—employees of the defendant corporation, police

and fire department officials, and contractors. Also ad-

mitted into evidence were some seventy-one exhibits, con-

sisting of inter-office memorandums of defendants, various

insurance company reports, technical data concerning the

chemical composition and various properties of the chemi-

cals used at the plant, photographs, autopsy reports, blue-

prints, floor plans and brochures on the machinery in use

at the time.

The chronology of events leading up to the date of the

explosion were as follows:

In late 1974 a pilot project to produce ‘‘Freshen-Up”’

gum was commenced by the defendant corporation at the

aforementioned Long Island City plant. Originally, only

one machine was used and this was located on the first floor

of the plant.

In August, 1975 this project was moved to the fourth

floor of the plant and at least one machine was set up.

Subsequently, and until the date of the accident, there

4a

were six machines in operation and they were utilized on

three eight-hour shifts, six days a week.

These machines were designated A, B, C, D, E and F.

The only ‘‘down time’’ (not in operation) for the machines

was when there was a machine or material breakdown, or

to clean the machines. At the time of the explosion at

least two of the machines, ‘‘C’’ and ‘‘D”’ were in operation.

The product that these so-called ‘‘Uniplast Tabletting

Machines’’ make is known as ‘‘Freshen-Up”’ gum.

The gum is cut from a slab out of the gum mixing

machine and then placed in a hopper. This then forms a

hollow center in a two-inch diameter ‘‘rope’’ which is auto-

matically filled with jelly to fill the center of the rope.

The rope is then reduced in size through a series of four

or five sizing rollers to a diameter of one-half inch. The

rope is then fed across a transition or lubrication plate.

The gum rope is pulled through by the serrated rollers on

this bed filled with ‘‘magnesium stearate’’ and the rope

goes through a final roller. In some cases it is cooled

with an air stream and carried into a round die of approxi-

mately twelve inches in diameter with thirty-six and a half

punches. These punches are actuated by caws. The front

portion of both dies, front and rear sets, are square shaped

to produce a square tablet, encasing the jam in the center

of the gum. Liquid Nitrogen (‘‘LN2’’) was used as a eryo-

genic agent (i.e., cooling agent) to prevent the gum from

adhering to the punches in the Uniplast. In addition,

magnesium stearate powder (‘‘MS’’), a dry lubricant, was

applied to the gum prior to its entry into the Uniplast to

prevent the finished pieces from sticking together, or stick-

ing to the machine,

5a

The evidence presented the Grand Jury shows that the

utilization of magnesium stearate in the Freshen-Up proc-

ess created a dust condition, both inert and ambient. Vari-

ous witnesses testified that the ‘‘MS’’ powder accumulates

on the machinery, the floor, the pipes and described it as

looking like a ‘‘fog’’, a ‘‘mist’’ or ‘‘white haze’’. The dust

necessitated the wearing of face masks by the employees in

the ‘‘Freshen-Up’’ department.

Testimony showed that a supply of magnesium stearate,

in fifty pound bags, was retained on the premises for daily

use, and that a large tank on the roof was used to store the

liquid nitrogen on the roof of the plant. However, there

was no evidence before the Grand Jury to indicate that the

circumstances of retaining this material, in bulk, on the

premises, was in anywise proximately related to the

explosion.

The entire factual crux upon which the prosecution

bases its theory of criminal liability turns on the utilization

by the defendants of the chemical compounds liquid nitro-

gen (LNe) and magnesium stearate (MS); ergo, the ex-

plosive and flammable qualities of these substances lies at

the root of the question concerning defendants’ eulpabality

under our criminal statutes.

The testimony of several expert witnesses and exhibits

before the Grand Jury unequivocally indicate that the

chemical compound, liquid nitrogen, basically is non-toxic,

non-combustible and vaporizes quickly and without danger-

ous effects when exposed to room temperatures; further-

more, because of its inherent stability, it is often used in

fire extinguishers. This was used in the instant case as a

cryogenic agent to prevent the gum from adhering to the

machinery.

6a

Magnesium stearate, in bulk, inert or settled form does

not create an explosive risk. If ignition is applied to it in

such form it would burn or smolder. However, if mag-

nesium stearate dust is dispensed into the air at or above

the lower explosive level (LEL), it creates a serious risk

of explosion, but another factor—ignition—must present

itself, in order to cause an explosion. The lower explosion

level is determined by measuring the ratio of a given

amount of dust to a specific amount of air. It was shown

that the minimum combustible densities of various dusts

(e.g., cornstarch, cork dust, peanut hulls, potato starch,

etc.) in ounces per cubic foot, are much more explosive than

magnesium stearate. In fact, testimony was given that

powdered sugar dust creates a much greater danger of

explosion than magnesium stearate dust.

There is also a ‘‘nuisance’’ level of dust; i.e., the level

set by the Office of Safety and Health Administration at

which exposure to dust will cause irritation and difficulty

in breathing. This ‘‘nuisance’’ level for magnesium

stearate is one three-thousandths of the lower explosion

level.

The source of ignition for something providing a

thermal energy to initiate the start of combustion may be

produced by a spark, are, a cigarette or match, or impact.

What is alleged as the probable or possible source of deto-

nation in the present case, is ‘‘liquefaction’’—which is a

cryogenic phenomenon by which volatile liquid oxygen is

formed as a result of the condensation of the atmosphere

due to exposure to extremely cold liquid nitrogen (LN2)—

and which then comes in intimate contact with some con-

ventional lubricant in the machinery, or solvents such as

kerosene or magnesium stearate and then same is ignited

by some source.

7a

The indictment herein, comprised of thirty-seven pages,

charges the defendants in the first six counts with the crime

of Manslaughter in the second degree (P.L. §125.15[1]),

committed as follows:

‘The said Warner-LAMBERT CoMPANyY, a corporation,

doing business in Queens County under the name and style

of Warner-Lampert Co., American Cuicie Division, ARr-

tHuR Krart, its vice-president, Ep Harris, its corporate

safety director, James O’Manoney, its plant manager, and

Joun O’Rovurkg, its plant engineer, and divers other offi-

cers and high managerial agents, individually and collec-

tively, on or about November 21, 1976, did recklessly cause

the death of Samurt K. Acyexum under the following cir-

custances :

That on or about the month of September, 1974, the said

Warner-Lampert Co., American Cuicie Drviston, and the

above named individual defendants commenced manufac-

turing a certain product known as freshen-up gum; that

the manufacturing process, due to modifications made to

the gum producing machinery, included the application of

magnesium stearate powder as a lubricant and the use of

liquid nitrogen as a coolant; that said magnesium stearate

powder had explosive and combustible qualities; that said

magnesium stearate powder was applied to the gum man-

ufacturing process, up to and including November 21, 1976,

in such quantities and in such manner which caused the

magnesium stearate powder to accumulate on the floor and

on all surfaces including overhead fixtures and beams, as

well as being suspended in air, which, in turn, caused a

condition that was intrinsically and inherently dangerous

to the life and safety of the employees in the Freshen-Up

Department, and in the immediate vicinity thereof, and was

at all times herein mentioned of such nature and character

8a

as to constitute a serious explosion hazard, thereby creating

a substantial and unjustifiable risk of death to Samven K.

AGYEKUM.

That at all times hereinbefore mentioned, the said de-

fendants, and each of them, were aware of the substantial

and unjustifiable risk of death to Samugen K. Acyexum, by

reason of their having received memorandums, reports and

complaints from supervisory employees and processing

employees that a serious dust condition did exist in the

Freshen-Up Department; and by reason of their having

received notice, both oral and in writing on or about Feb-

ruary 24, 1976 and thereafter up to and including Novem-

ber 21, 1976, that the method and manner, as aforesaid, in

applying the magnesium stearate powder to the manu-

facturing process resulted in a condition in the Freshen-Up

Department that constituted a serious explosion hazard.

That at all times hereinbefore mentioned, the said de-

fendants, and each of them, did consciously disregard the

substantial and unjustifiable risk of death to Samvurn K.

Acyrexum, for despite their awareness of the dust condi-

tions as hereinbefore mentioned, and despite the notice

and warning received on or about February 24, 1976 and

thereafter, the said defendants, and each of them, continued

to use the magnesium stearate powder in the Freshen-Up

Department, up to and including November 21, 1976,

twenty-four hours per day, six days a week, in such quan-

tities and by such methods which resulted in a condition

that constituted a serious explosion hazard.

That at all times hereinbefore mentioned, the said de-

fendants, and each of them, did feloniously and wilfully

fail, neglect and omit to take any steps or precautionary

measures to prevent, guard against or minimize the risk

9a

of a dust explosion, in that they failed to install dust col-

lecting equipment to control or eliminate the accumulation

of magnesium stearate powder in the Freshen-Up Depart-

ment; in that they failed to conform the electrical equip-

ment and wiring in the Freshen-Up Department to either

the New York City or National Electrical Code; in that

they failed to adequately monitor and control the use of

liquid nitrogen, and failed to eliminate all sources of

ignition in tue areas where dust accumulated; in that they

failed to follow all standard texts which set forth all pre-

cautions and practices to be taken in areas where hazardous

and combustible dust is used; in that they failed to instruct

all employees as to the potential fire and explosion hazard

inherent where combustible dust is present; all of which

acts, or omissions to act, constituted a conscious disregard

of a substantial and unjustifiable risk, and which also

constituted a gross deviation from the standard of conduct

that a reasonable person would have observed under the

circumstances.

That due wholly to the acts of said defendants, and

each of them, as aforesaid, and as a direct and natural

consequence of the dangerous conditions, as aforesaid,

which the defendants, and each of them were aware of

and recklessly and consciously disregarded, and by their

failure to take or provide all or any of the necessary safe-

guards or precautionary measures as aforesaid, did create

or cause to be created, or permitted to exist this inherently

dangerous condition of magnesium stearate dust acecumula-

tion as aforesaid, which on or about November 21, 1976

ultimately ignited causing a dust explosion with ensuing

flame and heat inflicting serious burns on Samueu K.

AGYEKUM causing his death.’’

10a

A person is guilty of Manslaughter in the second

degree when he ‘‘recklessly causes the death of another

person’’,

‘*Recklessly’’ is further defined (P.L. §15.05[3]) in the

following way:

‘*A person acts recklessly with respect to a result

or to a circumstance described by a statute defining

an offense when he is aware of and consciously dis-

regards a substantial and unjustifiable risk that such

results will occur or that such circumstance exists.

The risk must be of such a nature and degree that

disregard thereof constitutes a gross deviation from

the standard of conduct that a reasonable person would

observe in the situation.’’

Basically, the crime of Manslaughter in the second de-

gree requires proof beyond a reasonable doubt of the

following elements:

(1) That the defendants by their action created a sub-

stantial risk of death;

(2) And were aware of this risk;

(3) That the defendants consciously disregarded this

substantial and unjustifiable risk; and

(4) The risk itself must be of such a nature and degree

that disregard thereof would constitute (a) a gross devia-

tion, (b) from the standard of conduct, (c) that a reason-

able person would observe in the situation.

Now, the term ‘‘recklessly’’ means to act with a culpable

mental state and when such term appears in a statute de-

lla

fining an offense, ‘‘. . . it is presumed to apply to every

element of the offense ...’’. (Underscoring supplied;

P.L. §15.00[6] ; §15.15[2]).

The conduct proscribed by these provisions involves a

conscious disregard of a known substantial and justifiable

risk of death to others (Peo. v. Montanez, 41 NY 2d 53, 390

NYS 2d 861, 359 N.E. 2d 371 [1976]). ‘‘ ‘Recklessness’ is

a higher or more culpable form of negligence, and a long

‘.,. distance separates the negligence which renders one

criminally liable from that which establishes civil liabil-

ity.’’’. (Peo. v. Montanez; supra, citing Peo. v. Rosen-

heimer, 209 NY 115, 123).

Before a person can be held criminally liable for negli-

gently or recklessly causing the death of another, it must

be proven that such person engaged in conduct (by acts of

omission or commission) which involved a substantial and

unjustifiable risk of death and such conduct constituted a

gross deviation from the standard of conduct or care that

a reasonable person would observe in the situation.

P.L. §15.05[3], [4]; see also Hechtman, Practice Com-

mentaries, McKinney’s Consolidated Laws of New

York, Book 39 P.L. §15.05)

‘‘Significant element in the concept of acting ‘reck-

lessly’, within subd. 3 of this section [P.L. §15.05] pro-

hibiting manslaughter in the second degree, is scienter,

ie., a showing that the defendant was aware of and

consciously disregarded a substantial and unjustifiable

risk. People v. Cruciani, 1975, 36 NY 2d 304, 367 NYS

2d 758, 327 N.E. 2d 803.’’ (Underscoring supplied. )

The issue of ‘‘rvecklessness’’ is resolved by answer to

the queries: (1) Did there exist a substantial and unjusti-

fiable risk of explosion (that may result in death) that (2)

lla

all defendants were aware of and that (3) all defendants

consciously disregarded.

First—the Court finds that the evidence before the

Grand Jury on the issue of ‘‘substantial and unjustifiable

risk of death’’ is equivocal and does not meet that burden

of proof, as being proved beyond a reasonable doubt. The

presence and utilization of the chemicals liquid nitrogen

and magnesium stearate was shown to be quite common

and in general use in industry. The chemical composition

of both substances did not lend itself to danger of explo-

sion. There were no violations filed by the fire department,

health department, police department or any other govern-

ment agency against any of the defendants. The suppliers

of both substances did not deem it necessary to alert any

of the defendants as to any explosive qualities of the liquid

nitrogen or magnesium stearate. When defendants were

alerted by their insurance carrier that intervening factors

—that is, the liberation of magnesium stearate dust into the

air of the Freshen-Up area ‘‘.. . could present an explosion

hazard ...’’ and that ‘‘... there is a possibility that dust

concentrations could be in the explosive range .. .’’ (un-

derscoring supplied) the defendants enacted many imme-

diate measures to eliminate the one primary possible

danger—ambient magnesium stearate dust—that, if pres-

ent in the air in sufficient quantities could possibly, if

given a source of ignition, result in an explosion. How-

ever, the insurance company apparently did not feel that

there was an imminent danger of explosion as the records

indicate that they did not forward the defendants the

written report as aforesaid until more than two months

after their inspection.

The results of defendants’ efforts manifests itself in

documentary evidence. The same insurance carrier, after

13a

an inspection and just two months prior to the explosion,

gave a written report to the defendant, that their inspec-

tion showed that the magnesium stearate powder concen-

tration had been reduced by seventy-five percent (75%) of

the original concentration and ‘‘.. . thus the present con-

centration is well below the lower explosive limit.’’ The

inspector also testified before the Grand Jury and stated

she found the plant to be fairly dust free and in answer to

the question ‘‘In any event your examination did not show

a condition that was above the lower explosive limit?’’, she

answered, ‘‘That’s right. I—we never know for sure...’’.

Finally, on this point it is noted that the consensus of

expert opinion given before the Grand Jury as to what

caused the explosion was the cryogenic phenomenon called

‘‘liquefaction’’—and the ignition source therein appears to

be left to pure conjecture.

As to the second element as to the ‘‘awareness”’ of all

defendants (of a substantial and unjustifiable risk—if

there be any) the Court initially notes that the word

‘‘aware’’ is defined on Page 152 in Webster’s Third New

International Dictionary as ‘‘. . . marked by realization,

perception of knowledge.’’ The evidence before the Grand

Jury is unequivocal and uncontradicted in showing that

defendants, as early as the latter part of 1975 and until

February, 1976, were conducting tests concerning the

amount of ambient magnesium stearate dust in the air, to

determine its hygienic effect on its employees. In any

event, when alerted by their insurance carriers—two

months delayed—report of a possible danger of explosion

they effectuated various measures (that the Court will

fully set forth hereafter) that resulted in their being sub-

sequently advised in September of 1976 that the level of

ambient magnesium stearate dust was below any explosive

l4a

level. This opinion and reassurance coupled with the fact

that the insurance carrier’s original inspection and report

warning of danger preceded the explosion by some six to

nine months, creates a very strong reasonable doubt that

on or about the date of the explosion the defendants were

“‘aware’’ of the danger of the explosion.

In reference to the third crucial element of the term

‘frecklessness’’, that all defendants ‘consciously disre-

garded’’ the risk—the court finds that the evidence before

the Grand Jury is overwhelming in proving that all de-

fendants, in their various capacities, made numerous in-

novations in the Freshen-Up process to eliminate, not only

the ambient magnesium stearate dust, but were also at-

tempting to totally eliminate the use of magnesium stearate

entirely.

The statutes do not define the term ‘consciously dis-

regards’’ but the dictionary defines the word ‘conscious’?

as aware or knowing, and further defines the word ‘‘dis-

regard’’ as ‘‘to pay no heed to... neglect... .’’.. The

Grand Jury record is replete with evidence of inter-office

memorandums among the defendants and numerous others

recommending the purchase of dust collectors and vacuum

cleaning equipment, and obtaining quotations on same;

recommendations for the replacement of the Uniplast ma-

chines that would eliminate the need for using magnesium

stearate; particularly strong memorandums and recom-

mendations by the defendant, James O’Mahoney, pertain-

ing to obtaining equipment to remove the ambient dust and

methods of cleaning up the area. These were proposals

and suggestions within the defendant corporation, which

are necessary procedures in modern day corporate opera-

tions and industry.

15a

In addition, however, corrective steps and actual

changes that were effected, included: (1) conversion of one

of the six lines to a system which totally eliminated the use

of magnesium stearate on that line; (2) reducing the num-

ber of stages during the production process at which mag-

nesium stearate was used [from three to one]; (3) restric-

tions on the use of magnesium stearate by the employees

[which effectuated a 75% to 90% reduction in the use of

magnesium stearate]; (4) restrictions on the use of air

hoses for cleaning machinery; (5) the employment of a

coarser magnesium stearate which greatly eliminated flota-

tion dust; (6) the closing down of the entire Freshen-Up

department during two weeks in August for a thorough

cleaning; and (7) daily and weekly removal of magnesium

stearate dust that involved many man-hours.

The effectiveness of these various actions on the part of

the defendants was evidenced by the inspection and report

of the Factory Mutual Insurance Company in September,

1976, and as testified to by a representative from same

before the Grand Jury, that showed the use of magnesium

stearate was reduced from between 75% to 90% which re-

sulted in a safe level of ambient dust—and which concluded

that the danger of a dust explosion had abated.

This evidence of the actions taken by the defendants

flies in the face of the charges in the indictment that the

defendants ‘‘. . . did feloniously and wilfully fail, neglect

and omit to take any steps or precautionary measures to

prevent, guard against or minimize the risk of a dust

explosion ...’’.

The people’s position in averring in the indictment that

defendants showed a conscious disregard of the risk by

failing to eliminate all sources of ignition; by failing to

l6a

instruct all employees as to... . fire and explosion haz-

ard... .; and in failing to follow all standard texts is

untenable.

These are not the criteria evincing the necessary culpa-

ble mental state of recklessness on the part of the defend-

ants,

The Grand Jury Minutes are replete with evidence

showing the defendants’ numerous plans, recommendations,

studies and actual change of all major operations in the

Freshen-Up Department with a view to minimizing the

ambient magnesium stearate dust to a level far below any

danger point and, more important, to totally eliminating

the necessity of using magnesium stearate. Elimination

of the ambient dust would have eliminated all risk and the

use of liquid nitrogen, or the electrical wiring question, or

the use of dust collecting equipment would have all become

academic.

The Court will now proceed to the counts of the indict-

ment numbered seven through twelve; wherein the defend-

ants are accused of having committed the crime of Crim-

inally Negligent Homicide.

First, the Court notes that one of defendants’ otherwise

excellent and thorough memorandums of law, is inaccurate

in suggesting that in a case of Criminally Negligent Hom-

icide defendants’ failure to perceive a substantial and un-

justifiable risk of death must not only have been unreason-

able, ‘‘. .. but depraved, wanton and gross.’’. Defendants

cited the cases of People v. Haney, 30 NY 2d 328, 334, 333

NYS 2d 403, 408 [1972], and People v. Taylor, 31 AD 2d

852, 297 NYS 2d 192 [38d Dept] 1969, in support thereof.

A reading of those cases shows that the courts therein did

not use the word ‘‘depraved”’ and, in fact, termed the use

of the words ‘‘wilfuil, wanton negligence’’ as the ‘‘apex

of ambiguity’’.

17a

Criminally negligent homicide is defined as follows:

‘*A person is guilty of criminally negligent homicide when,

with criminal negligence, he causes the death of another

person.’’

‘*Criminal negligence’’ as defined by Penal Law, section

15.10, subdivisions 4 and 5, states:

‘*A person acts with criminal negligence with re-

spect to a result or to a circumstance described by a

statute defining an offense when he fails to perceive a

substantial and unjustifiable risk that such result will

oceur or that such circumstance exists. The risk must

be of such nature and degree that the failure to per-

ceive it constitutes a gross deviation from the standard

of care that a reasonable person would observe in the

situation.”’

The distinction between this and Manslaughter, Second

Degree, in [sic] provided in section 15.05, subdivisions 3 and

4, of the Penal Law which specifically describes the mental

state requisite for each. The reckless offender (man-

slaughter, second degree) is aware of the prescribed risk

and consciously disregards it while the criminally negligent

offender is not aware of the risk created and, hence, cannot

be guilty of consciously disregarding it. (People v. Haney,

supra, citing Comm. Staff Notes, Gilbert Criminal Code

and Penal Law [1971] p. 2-248.) ‘‘Since the criminally

negligent offender’s liability arises only from a culpable

failure to perceive the risk, his culpability is obviously less

than that of the reckless offender who consciously disre-

gards the risk.’’ (People v. Haney, supra, citing Model

Penal Code, Tent. Draft No. 9 [May 8, 1959] §201.4 at p.

53). The eulpability of a person charged with criminal

negligence, however, is appreciably greater than that re-

quired for ordinary civil negligence by reason of the sub-

stantial and unjustifiable character of the risk involved

18a

and the factor of gross deviation required from the or-

dinary standard of care. (Comm. Staff Notes, Gilbert

Criminal Code and Penal Law, supra.)

‘‘Criminally negligent homicide, in essence, involves

the failure to perceive the risk in a situation where the

offender has a legal duty of awareness. It, thus, serves

to provide an offense applicable to conduct which is

obviously socially unjustifiable. It proscribes conduct

which is inadvertant as to risk only because the actor

is insensitive to the interest and claims of other per-

sons in society.’’ (People v. Haney, supra)

Succincetly stated, the intrinsic nature of the crime of

criminally negligent homicide is comprised of a tri-faceted

consideration:

(1) Culpable failure to perceive

a

(2) substantial and unjustifiable risk

and

(3) the failure to perceive the risk is so flagrant as to

be deemed a gross deviation from the standard of

care that a reasonable person would observe.

The Court does not have the aid or guidance of a defini-

tion in our statutes of the word ‘‘eulpable’’ and a perusal

of the dictionary only thickens the fog of ambiguity in

showing that the word is derived from the latin ‘*eulpa’”’

meaning ‘‘negligence or fault’’; and which was found to

have been distinguished in three grades under the Roman

Law; to wit, gross negligence, ordinary negligence and

negligence of a careful person.

The Court does not feel constrained to probe further

into the meaning of the term ‘‘substantial and unjustifiable

19a

risk’’ as under the facts and circumstances of the case at

hand the Court finds that the risk to be perceived herein

was a risk of explosion and further that such is clearly one

that is substantial and unjustifiable.

To paraphrase the dictionary, the term ‘‘gross devi-

ation’’ is defined as a variation from an established stand-

ard; that is out of all measure; beyond allowance; flagrant.

It is patently clear that the first element, ‘‘culpable

failure to perceive the risk’’, is the cornerstone that must

first be laid or found upon which there must then follow a

finding as to the second and third elements. If the evidence

does not show a failure to perceive a risk—culpable or

otherwise—there is no need to pursue a finding as to ‘‘sub-

stantial and unjustifiable’’ or ‘‘gross deviation’’.

It is axiomatic that there must be sufficient evidence pre-

sented to the Grand Jury to sustain each and every element

required for the commission of an offense.

As stated in detail heretofore, the totality of the evi-

dence presented to the Grand Jury, both in testimony and

documentary evidence, can lead to but one inescapable con-

clusion—that the defendants were, for many months, ex-

ercising their various corporate responsibilities, in seeking

solutions to the ‘‘ambient dust’’ problem that created the

primary risk of explosion. The evidence, again, is crystal

clear and voluminous (detailed heretofore) in showing the

actual changes in procedure enacted by the defendants in

their various corporate capacities to eliminate any danger

of explosion.

Our Court of Appeals, in addressing itself to this very

complex problem concerning the area of culpability and

liability (mens rea) in criminal negligence very cogently

stated (citing People v. Eckert, 2 NY 2d 126, 130; People

v. Angelo, 246 NY 451, 457) :

—

2

20a

. 1t would seem sufficiently clear that for proper

determination of these questions, two main consid-

erations should be emphasized. Firstly, criminal li-

ability cannot be predicated upon every careless act

merely because its carelessness results in another’s

death; and, secondly, the elements of the crime ‘‘pre-

clude the proper condemnation of inadvertant risk

creation unless ‘the significance of the circumstances

of fact would be apparent to one who shares the com-

munity’s general sense of right and wrong’ ’’ (Model

Penal Code, Tent. Draft No. 9, supra, at p. 53, citing

Hart, The Aims of the Criminal Law, 23 Law & Con-

temp. Prob. 401, 417.)

The record is replete with the inter-corporate memo-

randums and letters amongst the individual defendants

evincing an awareness of the dust condition (whether for

hygienic or safety reasons) and a strong resolve and de-

termination to minimize the risk to well within safe stand-

ards—which defendants were certainly led to believe they

had accomplished by the independent report of their insur-

ance carrier dated September of 1976 (supra) and the ab-

sence of any violations filed against the defendants by any

governmental authority.

The duty and authority of the Court on this motion and

at this juncture of the case is clearly enunciated in the

statutes and case law. The Criminal Procedure Law re-

quires that there be presented before the Grand Jury ‘‘le-

gally sufficient evidence’’ to sustain each element required

for the commission of an offense and ‘‘reasonable cause”?

to believe that the defendants committed the offense. (CPL

§190.65).

The legally sufficient evidence must establish (if ac-

cepted as true) every element of the offense charged and

the defendants’ commission thereof (CPL §10.10).

21a

In order to sustain the indictment this Court must find

that the evidence presented to the Grand Jury would, if

unexplained and uncontradicted, warrant conviction by a

trial jury; i.e. proof of each essential element beyond a

reasonable doubt.

(People v. Potwora, 44 AD 2d 207, 354 NYS 2d 492,

496 [4th Dept. 1974]; People v. Leary, 280 AD 679, 117

NYS 2d 392, 394 [3d Dept. 1952] revd on other grounds,

305 NY 793, 113 N.E. 2d 303 [1953]; People v. Ward,

37 AD 2d 174, 323 NYS 2d 316, 318 [1st Dept. 1971].)

Upon consideration of the totality of the circumstances

involving all of the defendants’ conduct, the Court concludes

that the evidence presented before this Grand Jury was

insufficient in law and fact to sustain the charges of man-

slaughter in the second degree, criminally negligent homi-

cide, or any lesser included offense.

It behooves the Court to note that the unbelievably

arduous task faced by the prosecution in the presentment

of the voluminous and highly technical evidence in this case

to the Grand Jury, and the laborious and exhaustive efforts

made in reference thereto, were nothing short of heroie,

and in keeping with the finest and highest traditions of

the law.

Accordingly, the motion to dismiss the indictment is

granted to the extent set forth in this decision.

In view of the foregoing ruling, the second, third,

fourth, fifth and sixth divisions of the defendants’ omnibus

motion become moot and the Court need not rule on them.

The bail is exonerated and defendants are discharged.

JoHN J. LEAHY

J.S.C.

22a

SUPREME COURT QUEENS COUNTY

CRIMINAL TERM, Part 8

By Joun J. Leany, J.

Datep March 29, 1978

Inv. No. 915/77

Tt O88

Tue PropLe or THE State or New Yorxk

Vs.

Warner-LamBert Co., doing business under the name and

style of Warner-Lamsert Co., AmMertcan Cuicie Division,

Artuur Krart, Ep Harris, James O’Manoney and Joun

O’Rovurkg,

Defendants.

This is a motion brought by the People for an order

granting reargument of an order of this Court dated Feb-

ruary 15, 1978, wherein the defendants’ motion for a dis-

missal of the indictment was granted and, upon such

reconsideration, seeking a further order denying defend-

ants’ aforesaid motion to dismiss the indictment.

The motion for reargument is granted and, upon re-

consideration, the original decision is adhered to.

JOHN J. LEAHY

J.S.C.

23a

APPENDIX B

Majority and Dissenting Opinions of the

Appellate Division, Second Judicial Department

mel

Tue PEOPLE oF THE State oF New York,

Appellant,

v

Warner-Lampert Company, Doing Business Under the

Name of Warner-LamsBert Co., AMERICAN Cuicte Drvision,

ArtHur Krart, Ep Harris, JamMEs O’Manoney and JoHNn

O’Rovurkg,

Respondents.

Second Department, July 9, 1979

OPINION OF THE COURT

Per Curiam.

This is an appeal by the People (1) from an order of

the Supreme Court, Queens County, dated February Feb-

ruary 15, 1978, which granted the defendants’ omnibus

motion, inter alia, to inspect the Grand Jury minutes and,

upon inspection, dismissed the indictment against them,

and (2) from so much of a further order of the same court,

dated July 26, 1978, as upon reargument, adhered to its

original determination.

24a

The question presented on this appeal is whether the

evidence before the Grand Jury was legally sufficient to

warrant the indictment of each of the defendants on six

counts of manslaughter in the second degree and six counts

of criminally negligent homicide.

Criminal Term held that the evidence was not sufficient

and dismissed the indictment. Because we conclude that

the evidence is sufficient, we reverse and direct that the

indictment be reinstated.

FACTUAL BACKGROUND

The corporate defendant, Warner-Lambert Company

(Warner-Lamber), maintains a plant at 30-30 Thompson

Avenue in Long Island City, Queens. At that facility sev-

eral products, including Freshen-Up chewing gum (Fresh-

en-Up), are manufactured. The defendant Arthur Kraft

(Kraft) is Warner-Lambert’s vice-president in charge of

manufacturing. Defendant Ed Harris (Harris) is the di-

rector of corporate safety and security for Warner-Lam-

bert. Both Kraft and Harris have their offices at Warner-

Lambert’s corporate headquarters in Morris Plains, New

Jersey. James O’Mahoney (O’Mahoney) is the plant man-

ager of the manufacturing facility in Long Island City, and

John O’Rourke (O’Rourke) is its plant engineer.

On November 21, 1976 Freshen-Up was being manufac-

tured on the fourth floor of the Long Island City plant. On

that date an explosion occurred which resulted in the death

of six employees and injury to numerous others. The in-

dictment stems from these six deaths.

In 1974 a pilot project for the manufacture of Freshen-

Up was begun by the corporate defendant using machines

known as uniplast tabletting machines. At first a single

25a

machine, located on the first floor of the plant, was used.

Eventually six machines (designated A, B, C, D, E and F)

were put into operation on the fourth floor of the Long

Island City plant. The machines were operated 24 hours

a day (in three eight-hour shifts), six days a week. The

only time during the work week that a particular machine

would not be in operation was when it was being cleaned or

if it had broken down.

In the actual manufacturing process, a slab of gum is

produced by a ‘‘gum-mixing’’ machine, after which a sec-

tion of the slab is passed along to a ‘‘hopper’’ which forms

a hollow center in the ‘‘rope’’ of gum. The hollow center

is then filled with a jelly-like substance. The rope is next

fed into a bed filled with magnesium stearate (MS), a dry

lubricant, which is applied by hand to prevent the finished

pieces of gum from adhering either to themselves or the

machinery. The uniplast machines have die-cut punches

which form the gum into square tablets, enecasing the jelly

center. Liquid nitrogen is used as a eryogenie or cooling

agent to prevent the gum from sticking to the punches of

the uniplast machines.

It is undisputed that the use of magnesium stearate

created a ‘‘dust condition’’ on the fourth floor of the cor-

porate defendant’s plant. Some of the MS tended to ac-

cumulate at the base of the machines and on the overhead

b

pipes (thus becoming inert), but the remainder of the dust

remained ambient, that is, dispensed throughout the at-

mosphere in the area. In bulk or settled form, MS does

not create a risk of explosion, and if ignited, will either

smolder or burn. If MS is airborne at or above a certain

concentration, however, it creates a serious risk of explo-

sion if ignited. The point at which an explosion can occur

is known as the ‘‘lower explosion level’? (LEL).

26a

Liquid nitrogen, which was also used in the manufactur-

ing process, is nontoxic, noncombustible, and vaporizes

quickly at room temperature. Normally, its usage is not

considered hazardous.

It appears without contradiction that ambient MS dust

will not explode unless an external source of ignition (e.g.,

a spark or a lighted match) is supplied. However, it also

appears that a dust-type explosion can be precipitated by

a cryogenic phenomenon known as ‘‘liquefaction’’, which

occurs when highly volatile liquid oxygen is formed as a

result of the condensation of air due to its exposure to a

source of intense cold, for example, liquid nitrogen. The

liquid oxygen can then collect, and if subjected to ignition,

will explode. Moreover, because of its own volatile prop-

erties, the liquid oxygen will detonate easily, e.g., as the

result of sharp impact. This primary explosion could, in

turn, supply the ignition which could set off a secondary ex-

plosion of sufficiently concentrated MS dust.

THE EVIDENCE BEFORE THE GRAND JURY

The uniplast machines used by Warner-Lambert at its

Long Island City plant were sold to it by the Robert Bosch

Packaging Corporation, which designed the machines for

the manufacture of hard candy rather than gum. The

seller’s representative testified before the Grand Jury that

the machines were not suitable for operation at very low

temperatures and that when put to normal use they would

operate at between 150 degrees and 160 degrees Fahren-

heit. Other testimony indicated that the temperature of

the liquid nitrogen inside the ‘‘D’’ machine (the situs of

the explosion) was minus 320 degrees Fahrenheit, cold

enough, incidentally, for liquefaction to oceur. In addition,

27a

the Bosch representative stated that the machines were not

designed for use in conjunction with either liquid nitrogen

or magnesium stearate, and that the manufacturer had not

modified the machines to accommodate those substances.

The motors of the uniplast machines were described as not

being ‘‘dust proof’’, but were capable of such modification

had the user so desired.

The plant’s chief electrician testified that he had

observed the use of MS in the pilot Freshen-Up project,

and had specifically asked defendant O’Rourke if the ma-

chines and the wiring in the Freshen-Up department should

be dust-proofed. O’Rourke allegedly answered in the

negative.’

On the day before the explosion one of the employees

who worked in the area noticed that the ‘‘D’’ machine was

smoking or burning, but was told by his foreman not to

worry about its condition. Other evidence indicating that

the ‘‘D’’ machine was not operating normally included the

following: the floor on which that machine was resting was

some 12 inches thick, and yet the paint on the ceiling below

that spot was peeling. This peeling was attributed to the

fact that the ‘‘D’’ machine was operating at a colder tem-

perature than the others.

Immediately prior to the explosion only the ‘‘D’’ ma-

chine was operating and certain of defendants’ employees

were involved in clearing away the settled MS dust by the

use of push brooms and airhoses. The use of airhoses to

clear away the magnesium stearate had the effect of blow-

1. There was also testimony by an employee of the United States

Occupational Safety and Health Administration that the electrical

equipment and wiring in the Freshen-Up department were in viola-

tion of the requirements of the national electrical code for areas

employing magnesium stearate.

28a

ing tue settled dust back into the air, thus increasing the

ambient concentration.

An expert in cryogenics confirmed the fact that the

‘*peeling paint’’ was due to the ‘‘D’’ machine having got-

ten excessively cold from the use of liquid nitrogen, and

stated that his postexplosion examination of that machine

revealed that its cast iron base had become fractured, pos-

sibly as a result of the extreme cold. Once liquefaction has

occurred, it was his opinion that a breakage of metal in the

area of the base could provide a sufficient impact to cause

an explosion.

As for the quantity of ambient MS dust, there was evi-

dence that the foregoing was at or above the lower explo-

sion level during normal operating conditions, and that an

inspection by Warner-Lambert’s insurer in February of

1976 (during which the inspector met with O’Rourke and

representatives of Harris’ office) resulted in written ree-

ommendation designed to reduce the ambient MS hazard.

Among the recommendations were the following: (1) in-

stallation of a central vacuuming system for continuous

dust collection; (2) a ‘‘housekeeping’’ program to try to

reduce the level of ambient dust; (3) upgrading the elec-

trical equipment so that it would be suitable for use in a

dustry atmosphere; and (4) some form of ‘fexplosion vent-

ing’’ to relieve pressure in the event of an explosion. A

formal report prepared on the basis of this inspection was

mailed to Harris in May of 1976 and a letter accompanying

that report specifically stated that there was a hazard of

an explosion due to the level of MS dust. A second letter

sent to Harris in June of 1976 reiterated the risk of an ex-

plosion, but in a corporate memorandum forwarded to

O’Rourke and O’Mahoney after receipt of this report, it is

29a

stated that O’Rourke had outlined revisions which would

negate the need for the recommended improvements. The

propriety of this conclusion is open to serious question.

Also in June of 1976, the plant’s operations manager

sent a memorandum to O’Mahoney discussing the problem

of dust control and concluding that the use of magnesium

stearate should be eliminated.” Warner-Lambert did not

act upon this memorandum, although a ‘‘coarser’’ form of

magnesium stearate was apparently substituted in an at-

tempt to alleviate the situation.

Subsequently, in July of 1976, a meeting was held to

discuss the need for an exhaust system to eliminate the

problem of ambient MS dust, and Kraft and O’Mahoney

were in attendance. As a result of this meeting the idea

was rejected. Kraft, it was established, had observed the

Freshen-Up operation and was aware of the problem with

MS dust, as was codefendant O’Mahoney. In addition, the

projection engineer for the Freshen-Up department had

worked out a dust collection system and submitted his

recommendations and cost estimates to Kraft for approval.

This proposal was also rejected.

During August of 1976, it appears that the quantity of

MS in use at the plant was reduced, and that the plant itself

was closed for a period of thorough cleaning. Employees

testified, however, that within two to three weeks after the

cleanup the condition had worsened and that the ambient

MS dust was often as thick as a fog.

2. Other testimony indicated that the use of magnesium stearate

had been eliminated at one of the uniplast machines (the “A” ma-

chine) at a cost of $40,000, but that the remaining machines had not

been converted. It also appears that MS is not employed in the

manutacture of Freshen-Up gum at another of the corporate de-

fendant’s plants.

30a

In September of 1976 an engineering consultant for

Warner-Lambert’s insurer was sent to the plant, and she

reported that the use of magnesium stearate had been

‘feut back’’ by 75%. However, her report was based upon

an employee’s representation that usage had been reduced

by 90%, a figure which she, herself, considered an exag-

geration.

On November 15, 1976 a memo was sent to O’Mahoney

describing how the air-conditioning system in the plant was

malfunctioning due to the presence of MS dust, but again

no action was taken. There had been a similar air-condi-

tioning malfunction in April of 1976. There was also

testimony that the ventilation system in the Freshen-Up

production area was neither adequate nor designed for the

removal of airborne dust. In fact, the system, which em-

ployed recirculation, tended to increase the concentration

of airborne dust.

On the defendants’ case, various Warner-Lambert em-

ployees involved in fire protection and industrial hygiene

testified that there was no danger of an explosion from MS

dust at the plant and that their surveys made in November

of 1975 and June of 1976, showed that the concentration of

MS dust was many times smaller than the LEL. It was

also stated that the insurer’s report prepared after its

February, 1976 inspection was inaccurate, and that no

measurements of dust concentration had been made at that

time. In addition, they stated that their research had re-

vealed no reported case in which liquefaction had led to a

detonation.

3la

ADDITIONAL EVIDENCE—-THE POSTEXPLOSION INVESTIGATIONS

In addition to the foregoing, representatives of the New

York City Fire Department, the United States Occupa-

tional Safety and Health Administration (OSHA), and

other experts investigated the explosion and testified before

the Grand Jury with respect to their observations and

conclusions.

A New York City Fire Marshal who had arrived at the

scene just minutes after the explosion described the ex-

plosive properties of MS dust, and stated, in effect, that

the interreaction of liquid nitrogen and the oxygen in the

air created a greater risk of an explosion. He determined

that the source of the primary explosion was the ‘‘D’’

machine, and opined that such an explosion would have

propelled additional magnesium stearate into the atmos-

phere, thus causing a second explosion of ambient MS dust.

He observed that there was no exhaust system in the

Freshen-Up department and concluded that the presence

of such a large quantity of MS dust without such a system

created a substantial risk of an explosion. He further

concluded that despite the presence of a source of ignition,

there would have been no explosion but for the quantity of

MS present.

An OSHA investigator confirmed the fire marshal’s

view that there had been a smaller, primary explosion at

the ‘‘D’’ machine which propelled additional MS dust into

the air and triggered a second, more massive explosion.

Another OSHA investigator learned that the uniplast

machines had experienced ‘‘freeze-up’’ problems in the

past and that airhoses were being employed for purposes

of ‘‘de-icing’’. He also observed that the ‘‘die’’ portion

32a

of the ‘‘D’’ machine (that portion which ‘‘punched out’?

the individual piece of gum) was still heavily iced, although

none of the other uniplast machines were similarly afflicted.

A metallurgical engineer for the plant’s insurer ex-

amined and tested pieces of the machinery after the ex-

plosion, and determined that all of them had been exposed

to extreme cold, thus causing them to become brittle and

fracture. The parts, he noted, were made of low-carbon

steel, although a high alloy steel is necessary for resistence

to extreme cold.’

The Grand Jury also heard testimony from a chemical

engineer (a qualified expert who had investigated many of

the nation’s worst explosion disasters during the past 40

years) who opined that the explosion had occurred as fol-

lows: Liquid oxygen had formed and mixed with the

settled MS. In addition, the interior of the ‘‘D’’ machine

had become brittle from the cold. When some form of

ignition was supplied an explosion occurred at the ‘‘D”’

machine, which immediately resulted in a second, more

massive explosion. This view was confirmed by another

expert witness attached to the United States Mining En-

forcement and Safety Administration, who added that the

type of electric motor used in the uniplast machines, when

operating under normal conditions, would produce sparks

of sufficient intensity to ignite magnesium stearate dust.

A chemical engineer who worked as a private consultant

investigating chemical plant accidents testified that, in his

opinion, there had not been a sufficient concentration of

ambient MS dust to cause the initial explosion. He stated,

however, that liquid oxygen (the product of liquefaction),

3. Note that prior testimony had indicated that the uniplast ma-

chines were never designed to operate in the extreme cold.

33a

when combined with MS, would form a compound highly

sensitive to a spark or an impact of any kind and that, in

his view, the explosion had occurred when an initial detona-

tion at the ‘‘D’’ machine had dispersed approximately 50

pounds of MS dust which had accumulated near the base

of that machine, which in turn exploded. He also testified

that ambient dust and dust on the surrounding surfaces

were not involved in the explosion, and that if the second

explosion had resulted from dust which had been ‘‘jarred

loose’’ from the overhead fixtures, etc., there would have

been a gap of several minutes between the explosions, as

it would have taken that long for the dust to explode. He

further stated that before ambient MS dust could become

explosive, it would have to be so concentrated that em-

ployees would not be able to ‘‘see [their] hands in front of

[their] face[s]’’ and concluded that a dust collection sys-

tem would not have prevented the explosion and that im-

proper wiring in no way contributed to its occurrence.

Another witness, called in by the corporate defendant’s

counsel to investigate the explosion, confirmed the prior

witnesses’ view with respect to the time gap between ex-

plosions and concluded that ambient dust could not possibly

have been sufficiently concentrated to create the risk of an

explosion. He characterized as ‘‘negligible’’ the contribu-

tion of ambient MS dust to the disaster. From his investi-

gation, the witness concluded that this particular explosion

was so unusual that neither the corporate defendant nor

its managerial and technical personnel could have antici-

pated its occurrence.

A New York City Deputy Chief Fire Marshal con-

eluded from his investigation that the concentration of MS

dust was high enough to create a substantial risk of explo-

34a

sion and that the use of airhoses by the corporate defendant

increased that risk. He believed that the installation of a

dust collection system would have prevented the explosion,

and concluded from his examination of the ‘‘D’’ machine

that a particular gear mechanism therein had ‘‘snapped”’

prior to the initial detonation. This snapping, he opined,

could have resulted in a mechanical spark. The fire mar-

shal disagreed with the other testimony that there would

have been a ‘‘time lag’’ between explosions and that visi-

bility in the plant would have had to be minimal before the

dust would become explosive. The physical damage at

the site indicated to him that there had been a dust explo-

sion along the ceiling in that area, which he attributed to

the fact that there had been an initial detonation, followed

almost instantaneously by a second explosion which ‘‘mush-

roomed’’ upwards. This conclusion was based on the

following factors: (1) the ceiling and contiguous duct

work were destroyed and scorched, while fixtures hanging

down from the ceiling were not disturbed; (2) cinder block

walls and windows were pushed out near their tops but

not at their bottoms; and (3) the areas around the uniplast

machines were hardly disturbed, while there was heavy

damage to the areas above them. Thus, dust suspended

near the ceiling or propelled there must have exploded

before it could have settled at a lower level.

On the basis of this evidence, the Grand Jury returned

the indictment which is the subject of this appeal.

THE LEGAL STANDARD

Section 125.10 of the Penal Law (‘‘Criminally negligent

homicide’’) provides that ‘‘[a] person is guilty of erim-

inally negligent homicide when, with criminal negligence,

35a

he causes the death of another person.’’ Section 125.15

of the Penal Law (‘‘Manslaughter in the second degree’’)

provides, inter alia, that ‘‘[a] person is guilty of man-

slaughter in the second degree when: 1. He recklessly

causes the death of another person”’.

‘‘Recklessly’’ and ‘‘criminal negligence’’ are defined in

section 15.05 of the Penal Law as follows:

‘3, *Recklessly.’ A person acts recklessly with respect

to a result or to a circumstance described by a statute

defining an offense when he is aware of and consciously

disregards a substantial and unjustifiable risk that such

result will oceur or that such circumstance exists. The

risk must be of such nature and degree that disregard

thereof constitutes a gross deviation from the standard

of conduct that a reasonable person would observe in the

situation.

‘4. ‘Criminal negligence.’ A person acts with criminal

negligence with respect to a result or to a circumstance

described by a statute defining an offense when he fails to

perceive a substantial and unjustifiable risk that such result

will occur or that such circumstance exists. The risk must

be of such nature and degree that the failure to perceive it

constitutes a gross deviation from the standard of care that

a reasonable person would observe in the situation.”’

Thus, both culpable mental states require the existence

of (1) a ‘‘substantial and unjustifiable risk’’ that a result

or a circumstance proscribed by the statute (here, death)

will occur or exists, and (2) ‘‘a gross deviation’? from a

reasonable person’s standard of care. The distinction is

that the ‘‘reckless’’ actor is aware of such risk and con-

sciously disregards it, while the ‘‘criminally negligent’’

36a

actor, who is not aware of such risk, culpably fails to per-

ceive it (see People v Montanez, 41 NY2d 53, 56).

In People v Leichtweiss (59 AD2d 383, 387), this court

held that ‘‘on a motion to * * * dismiss an indictment, the

court may dismiss only if there is insufficient evidence to

sustain the crime charged or any lesser included offense’’.

Since the evidence in this case reveals that the crime of erim-

inally negligent homicide would also be a lesser included

offense to the counts charging manslaughter in the second

degree (see People v Stanfield, 36 NY2d 467; see, also, Peo-

ple v Perez, 45 NY2d 204), it follows ex necessitate that the

entire indictment will have to be reinstated if ‘‘sufficient

evidence’’ of even the lesser charge exists. As for the test

to be employed in evaluating the sufficiency of the evidence

before the Grand Jury, it is well established that an indict-

ment will be sustained if based upon prima facie proof that

the crime charged has been committed (People v Haney,

30 NY2d 328, 335-336; People v Peetz, 7 NY2d 147) and

that a motion to dismiss will not be granted in the absence

of a ‘‘clear showing’’ that the evidence adduced, if unex-

plained and uncontradicted, would not warrant a conviction

by a trial jury (People v Dunleavy, 41 AD2d 717, affd 33

NY2d 573).

In our opinion, there has been no such ‘‘clear showing”?

that the evidence here is insufficient. To the contrary, it is

our belief that the evidence before the Grand Jury was suf-

ficient to establish prima facie that the defendants, at a

minimum, failed to perceive a substantial and unjustifiable

risk of a deadly explosion, and that such failure constituted

a gross deviation from a reasonable person’s standard of

care.

From the inception of Freshen-Up production in 1974,

there were growing indications of problems with MS dust

37a

which the defendants, collectively and individually, failed to

address. Although the use of magnesium stearate and

liquid nitrogen might not per se have generated a ‘‘sub-

stantial and unjustifiable’’ risk of an explosion, their con-

scious employment in conjunction with machinery which

was neither designed nor appropriately modified for their

use (or for use in the production of gum) evinces a gross

lack of perception. A hazardous condition regarding the

ambient MS dust was perceived by a third party (Warner-

Lambert’s insurer) as early as February, 1976, and the

level of that perceptible risk was only increased, rather

than diminished, by the use of airhoses and a ventilation

system which recirculated the air, thus raising the level of

ambient MS dust. In May and June.of 1976, there were

specific and emphatic warnings that the level of dust was

sufficient to result in an explosion, and yet in June and July

separate proposals for a dust collection system and an ex-

haust system to eliminate ambient MS dust were both re-

jected. Moreover, despite the August, 1976 cleanup, there

was evidence that the situation deteriorated dramatically

within the next few weeks and that the concentration of MS

dust was often as thick as a fog in the period preceding the

November 21 explosion. It further appears that on the day

immediately preceding the explosion, the ‘‘D’’ machine,

which was established to be the site of the detonation, was

seen to be smoking and/or burning.

Additional objective evidence tended to show that the

‘*T)’? machine had been operating at a temperature well

below its intended operating range and perceptibly colder

than the other uniplast machines, and that the foregoing

rendered the advent of liquefaction all the more probable.

The evidence that liquefaction could not, or should not have

38a

resulted in detonation is negated by the fact that it was

occurring in a piece of machinery which was ill-suited and

never designed for operation at such cold teinperatures and

whose parts, it was testified, might become brittle and frac-

ture as a result. Such breakage was stated to be sufficient

to detonate the liquid oxygen or to produce a mechanical

spark which could do so. In addition, there was other evi-

dence that the non-dust-proofed motor and related wiring

could also have supplied a sufficient spark. Finally, while

it could conceivably be argued that the occurrence of lique-

faction was itself unforeseeable, the fact remains that there

yas ample evidence before the Grand Jury from which it

could conclude that the explosion per se would not have

occurred had an adequate program of MS management

been installed at the plant and, at the minimum, that the

apparent failure of each of the defendants to perceive and/

or initiate (to the greatest extent possible within his par-

ticular sphere of authority) an adequate response to the

grave risk of death presented by the absence of such a pro-

gram constituted ‘‘a gross deviation from the standard

of care that a reasonable person would observe in the

situation.’’

We therefore conclude that when all of the evidence

before the Grand Jury is examined together, there is suffi-

cient evidence to make out a prima facie case against each

of the defendants for criminally negligent homicide. Thus,

all of the counts of the indictment should be reinstated. We

hasten to add, however, that the foregoing is predicated on

the underlying assumption that questions of credibility

and the weight to be aceorded the evidence were resolved

most favorably to the People (see People v Leichtweis, 59

AD2d 3838, 389, supra), and that a contrary conclusion could

39a

be drawn by the trial jury. As the Court of Appeals noted

in People v Haney (30 NY2d 328, 336, n 10, supra): ‘‘[I]t

must be observed that it is the Grand Jury which is the

arbiter of the credibility and the weight to be given to the

evidence [before it]. As we wrote in People v Eckert (2

N Y 2d 126, 129): ‘That a trial jury might not convict on

this evidence is not our concern. The Legislature has spe-

cifically relegated the question of whether a trial jury would

return a conviction on this evidence to the judgment of the

Grand Jury’.’’

Accordingly, the order dated July 26, 1978 and entered

upon reargument should be reversed insofar as appealed

from on the law, and the indictment reinstated as to each

of the defendants.

The appeal from the order dated February 15, 1978

should be dismissed, as that order was superseded by the

order entered upon reargument.

Svozzi, J. P. (coneurring in part and dissenting in part).

I agree that the appeal from the order dated February 15,

1978 should be dismissed. However, I would uphold the

dismissal of the indictment on the basis of the well-reasoned

opinion of Mr. Justice Leany at Criminal Term, with the

following additional comments.

The instant indictment, which charged the corporate

defendant and several of its officers and employees with the

crimes of manslaughter in the second degree and criminally

negligent homicide, arose out of an explosion which oc-

eurred on November 21, 1976 on the fourth floor of the

corporate defendant’s Long Island City plant where gum

was being manufactured. Asa result of that explosion, six

employees of the corporate defendant died and numerous

others were injured.

40a

The crux of the counts in the indictment charging second

degree manslaughter was that defendants recklessly caused

death by applying magnesium stearate (MS) powder to the

gum manufacturing process ‘‘in such quantities and in such

manner which caused the magnesium powder to accumulate

* * * as well as being suspended in air, which, in turn,

caused a condition that was intrinsically and inherently

dangerous to * * * life and safety * * * and was * * * of

such nature and character * * * to constitute a serious

explosion hazard * * * creating a substantial and unjus-

tifiable risk of death’’ and by consciously disregarding the

substantial and unjustifiable risk of death of which they

had notice ‘‘which also constituted a gross deviation from

the standard of conduct that a reasonable person would

have observed under the circumstances.’’

The crux of the counts charging criminally negligent

homicide was that defendants ‘‘failed to perceive the sub-

stantial and unjustifiable risk of death’’ caused by the

afore-noted use of the magnesium stearate powder.

The theory of the cause of the fatal explosion as re-

flected in the indictment was in accord with expert testi-

mony and scientifie evidence adduced before the Grand

Jury which indicted that when MS is dispersed into the air

at or above a minimum density, often referred to as the

lower explosion level (LEL), a serious risk of explosion

exists upon ignition.

On the other hand, this same expert testimony and opin-

ion also indicated that MS in bulk, inert or settled form,

does not create a risk of explosion and, if ignited in this

form, it will only burn or smolder.

It was the prosecution’s argument at the Grand Jury

and on this appeal that the defendants had consciously dis-

4la

regarded the risk of explosion by allowing ambient MS to

accumulate in a concetration over the LEL and that this

pre-existing ambient MS dust cloud was ignited, causing

the explosion.

However, the evidence before the Grand Jury was

equally consistent, if not more so, with a finding that the

fatal explosion was not caused by a pre-existing concen-

tration of MS over the LEL, but rather was caused by a

totally unforeseen initial, smaller explosion which occurred

a few minutes earlier at the base of one of the production

machines.

Criminal Term, in its decision, stated that ‘‘the con-

sensus of expert opinion given before the Grand Jury’’

was that this initial explosion was the result of a cryogenic

phenomenon called ‘‘liquefaction’’. Liquefaction involves

the concentration into volatile liquid form of the oxygen

in the atmosphere which has come into contact with an

extremely cold substance, which in this case was the

otherwise harmless liquid nitrogen (LNz) used by the

corporate defendant as a cooling agent in its manufactur-

ing process. This theory of the initial explosion was best

expressed by a representative of the Bureau of Mines of

the Mining Enforcement and Safety Administration, who

was asked by OSHA to investigate the accident and who

testified that: ‘‘it was most likely that the liquid explosive-

type reaction came from an oxygen enriched liquid air

reaction with the magnesium stearate.’’

In his report to OSHA, this expert stated that: ‘‘The

dust explosion was preceded by an initial explosive-type

reaction. The most likely initial explosive reaction was

oxygen—enriched liquid air and undispersed magnesium

stearate * * *. The initial explosive-type reaction blew

42a

apart * * * Machine D, dispersed the magnesium stearate

dust and either directly ignited the dispersed dust or

caused an electrical are which ignited the dust’’ (emphasis

supplied).

Implicit in this theory advanced by the experts was the

proposition that the initial explosion caused the settled

and harmless MS dust to become dispersed into the atmos-

phere in a heavy enough concentration to produce the

second explosion which was an MS dust explosion.

However, in contrast to the substantial risk of an ex-

plosion in the presence of a pre-existing concentration of

ambient MS dust over the LEL, the experts testified that

the risk of an explosion of inert MS dust in the presence

of liquid oxygen created by liquefaction (and the subse-

quent dispersal of MS into the atmosphere) was totally

unforeseen. These same witnesses emphasized that liquid

nitrogen is one of the most widely used eryogenic materials

due to the fact, as Criminal Term acknowledged, that liquid

nitrogen is ‘‘non-toxic, non-combustible and vaporizes

quickly and without dangerous effect when exposed to room

temperatures; furthermore, because of its inherent sta-

bility, it is often used in fire extinguishers.’’ A cryogenic

expert, with the United States Department of Commerce,

called upon by OSHA to investigate the accident, reported

that ‘‘[sJeveral hundred million dollars of liquid nitrogen

are used annually without incident.’’ In discussing the

relatively unfamiliar field of eryogenics another expert

testified: ‘‘there is absolutely no way that the people at

the company, including technical and managerial, could’ve

anticipated this event. It’s completely unforeseen.”’

Criminal Term also correctly noted that neither the

corporate defendant’s insurer, its suppliers of both LNe

43a

and its machines, nor any government agency, all of whom

were familiar with the operations of the plant, ever warned

the defendants of any risk associated with the use of liquid

nitrogen, and settled or inert MS dust.

Under these circumstances, the indictment as against

all of the defendants should be dismissed.

Lazer, Gutorra and Suapiro, JJ., concur in Per Curiam

opinion; Svoza, J. P., concurs as to the dismissal of the

appeal from the order dated February 15, 1978, but other-

wise dissents and votes to affirm the order dated July 26,

1978 insofar as appealed from, with an opinion, in which

O’Connor, J., concurs.

Order of the Supreme Court, Queens County, dated

July 26, 1978, reversed insofar as appealed from, on the

law, and, upon reargument, indictment reinstated.

Appeal from an order of the same court, dated Feb-

ruary 15, 1978, dismissed as academic. That order was

superseded by the order dated July 25, 1978, made upon

reargument.

44a

APPENDIX C

Decision of the Court of Appeals

Strate or New York

COURT OF APPEALS

bo

No. 281

RE

THe Prope &c.,

Respondent,

v.

Warner-Lampert Company, doing business under the name

and style of Warner-LamBert, Co., AMERICAN CHICLE DrvI-

sion, et al.,

Appellants.

(281) Leonard Garment, Judah Gribetz, Douglas M.

Parker, John P. Hederman, & William P. Laino,

NYC, for appellant Warner-Lambert ; Stanley S.

Arkin, Mark S. Arisohn, & Arthur T. Cambouris,

for appellants Kraft & Harris; Andrew M. Lawler,

Jr. & Dennis E. Milton, NYC, for appellants

O’Mahoney & O’Rourke.

John J. Santucci, DA, Queens County (Charles N.

Walsh, Barry A. Schwartz, & A. Brent Blackburg

of counsel) for respondent.

45a

OPINION

This opinion is uncorrected and subject to revision be-

fore publication in the New York Reports.

JONES, J.

Although they were aware that there was a broad,

undifferentiated risk of an explosion in consequence of

ambient magnesium stearate dust arising from the proce-

dures employed in its manufacturing operations, the cor-

porate and individual defendants may nonetheless not be

held criminally liable, on the theory of either reckless or

negligent conduct, for the deaths of employees occasioned

when such an explosion occurred where the triggering

cause thereof was neither foreseen nor foreseeable.

This case is before us on appeal from an order of the

Appellate Division which reversed an order of Supreme

Court granting defendants’ motion to dismiss the indict-

ment on the ground that the evidence before the Grand

Jury was not legally sufficient to establish the offenses

charged or any lesser included offenses (CPL § 210.20,

subd 1, par [b]). On such a motion the standard of judi-

cial scrutiny is whether there was ‘‘competent evidence

which, if accepted as true, would establish every element

of an offense charged and the defendant’s commission

thereof * * *’’ (CPL § 70.10, subd 1). In the somewhat

unusual circumstances of this case defendants introduced

extensive evidence before the Grand Jury; for our pur-

poses, however, the evidence must be viewed in the light

most favorable to the People, and it may be legally suffi-

cient ‘‘although it does not even provide ‘reasonable cause’

to believe that the defendant committed the crime charged”’

46a

(Denzer, Practice Commentary, McKinney’s Cons Laws

of NY, Book 11A, CPL 70.10, p 348). We describe the

factual context out of which this indictment arose from

that standpoint, recognizing that in our description no note

is taken of the considerable exculpatory evidence intro-

duced on behalf of defendants.

Defendant Warner-Lambert Co. is a manufacturing

corporation which produces, among other items, Freshen-

Up chewing gum. The individual defendants were officers

or employees of the corporation. Defendant Kraft was

vice-president in charge of manufacturing; defendant

Harris was the director of corporate safety and security ;

defendants O’Mahoney and O’Rourke were, respectively,

plant manager and plant engineer of the Warner-Lambert

facility located at 30-30 Thompson Avenue in Long Island

City, New York, which was the situs of the events out of

which this indictment arose. The indictment charges each

defendant with six counts of manslaughter in the second

degree in violation of Penal Law, § 125.15 and six counts

of criminally negligent homicide in violation of Penal Law,

§ 125.10, in consequence of the deaths of six employees

which resulted from a massive explosion and fire at the

Long Island City Warner-Lambert plant about 2:30 a.m.

on November 21, 1976.

On the day on which the explosion occurred, Freshen-Up

gum, which is retailed in the shepe of a square tablet with

a jelly-like center, was being produced at the Warner-

Lambert plant by a process in which filled ropes of the

gum were passed through a bed of magnesium stearate

(MS), a dry, dust-like lubricant which was applied by hand,

then into a die-cut punch (a Uniplast machine) which was

sprayed with a cooling agent (liquid nitrogen), where the

47a

gum was formed into the square tablets. Both the MS

(normally an inert, organic compound) and the liquid nitro-

gen were employed to prevent the chicle from adhering

to the sizing and cutting machinery, the tendency to adhere

being less if a dry lubricant was used and the punch was

kept at a low temperature. The process produced a dis-

persal of MS dust in the air and an accumulation of it at

the base of the Uniplast machine and on overhead pipes;

some also remained ambient in the atmosphere in the

surrounding area.

Both MS and liquid nitrogen are considered safe and

are widely used in the industry. In bulk, MS will only

burn or smoulder if ignited; however, like many substances,

if suspended in the air in sufficient concentration the dust

poses a substantial risk of explosion if ignited. The mini-

mum concentration at which an explosion can occur is

denominated the ‘‘lower explosion level’? (LEL). Liquid

nitrogen, with a boiling temperature of minus 422 degrees

Fahrenheit, is an effective cryogenic which might play a

part in the process of ‘‘liquefaction’’—here, the production

of liquid oxygen in the course of the condensation of air

on its exposure to a source of intense cold. Liquid oxygen

is highly volatile, is easily ignited and, if ignited, will

explode. Among possible causes of such ignition of either

liquid oxygen or ambient MS are electrical or mechanical

sparks.

On November 21, 1976 defendant Warner-Lambert was

operating six Uniplast machines in the production of

Freshen-Up gum on the fourth floor of its Long Island

City plant. The machines were in almost constant opera-

tion; however, at the time of the catastrophic explosion

near the end of one of the work shifts only one machine

48a

(designated the ‘‘D’’ machine) was in operation and em-

ployees were engaged in removing settled MS dust from

the base of that machine and from overhead pipes by broom

sweeping and by the use of airhoses. Suddenly an ex-

plosion occurred in the area of the operating machine, fol-

lowed almost immediately by a second, much larger ex-

plosion accompanied by flames which caused injuries to

more than 50 workers in the area (six of whom did not

survive) and extensive damage to the building and equip-

ment, which was attributed to burning of ambient dust

and explosion rather than general fire. Thorough post-

catastrophe investigation eliminated intentional or ‘‘man-

caused’’ ignition as the origin of the event. A New York

City Fire Marshal and an investigator for the United

States Occupational Safety and Health Administration,

both of whom examined the scene, testified before the

Grand Jury that a primary explosion had occurred at the

‘‘D’’ machine which dispersed added MS dust into the

atmosphere and could have caused the second, greater ex-

plosion. There was testimony that the ceiling of the floor

below the ‘‘D’’ machine had been covered with peeling

paint, indicating that the temperature of that machine was

colder than the others and that an examination of the

machine itself after the explosion had shown that its base,

made of cast iron, had cracked, perhaps by reason of the

cold. An employee present at the time of the occurrence

testified that he had observed a spark in the area of the

‘‘T)’’? machine immediately prior to the event. Although

there was no direct proof as to what had triggered the

early-morning disaster, the People introduced expert testi-

mony hypothesizing that there might have been a mechani-

cal sparking induced by a break-up of metal parts of the

49a

Uniplast machine. Also presented was testimony by one

of the People’s experts who theorized that liquid oxygen

produced through liquefaction occurring in the Uniplast

machine was ignited by the impact of a moving metal part

and that this touched off the dispersed MS dust present.

With respect to the quantity of ambient MS dust in the

area of the Uniplast machines (the presence of which was

the basis for the People’s submission to the Grand Jury of

evidence against the defendants ultimately indicted), there

was proof that an inspection of the plant by Warner-Lam-

‘bert’s insurance carrier in February, 1976 had resulted in

advice to the insured that the dust condition in the Freshen-

Up gum production area presented an explosion hazard

and that the MS concentration was above the LEL, to-

gether with recommendations for installation of a dust

exhaust system and modification of electrical equipment to

meet standards for dust areas. Although a variety of pro-

posals for altering the dust condition were considered by

the individual defendants in consultations and communica-

tions with each other and some alterations in the MS ap-

plication were made, both ambient and settled MS dust

were still present on November 21, 1976, as the result of

an executive decision to work toward the eventual elimina-

tion of MS entirely by modification of the Freshen-Up

equipment. This modification had been accomplished with

respect to only one Uniplast machine at the date of the

explosion, when approximately 500 pounds of MS a day

were still being used in Freshen-Up production. Em-

ployees were wearing face masks and goggles to protect

their eyes and breathing passages, and just prior to the

tragedy, when sweeping and airhosing of accumulated MS

were in progress, there was rising dust and a ‘‘heavy fog’’

or ‘‘mist’’ all around.

50a

The charges of manslaughter in the second degree and

criminally negligent homicide laid against the corporate

and individual defendants are each dependent on two in-

terrelated provisions of the Penal Law. As to man-

slaughter in the second degree, the following provisions

are pertinent:

‘£125.15 Manslaughter in the second degree

‘‘A person is guilty of manslaughter in the second

degree when:

**1. He recklessly causes the death of another

person; °° °°

**15.05 Culpability; definitions of culpable mental

states

‘‘The following definitions are applicable to this

chapter :

((*# *& *

‘*3. ‘Recklessly.’ A person acts recklessly with

respect to a result or to a circumstance described by a

statute defining an offense when he is aware of and

consciously disregards a substantial and unjustifiable

risk that such result will occur or that such circum-

stance exists. The risk must be of such nature and

degree that disregard thereof constitutes a gross de-

viation from the standard of conduct that a reasonable

person would observe in the situation. A person who

creates such a risk but is unaware thereof solely by

reason of voluntary intoxication also acts recklessly

with respect thereto.’’

As to criminally negligent homicide the following provi-

sions are pertinent:

**$ 125.10 Criminally negligent homicide

‘‘A person is guilty of criminally negligent homicide

when, with criminal negligence, he causes the death of

another person.’’

5la

‘615.05 Culpability; definitions of culpable mental

states

‘The following definitions are applicable to this

chapter :

66% & *

‘‘4. ‘Criminal negligence.’ A person acts with

criminal negligence with respect to a result or to a

circumstance described by a statute defining an of-

fense when he fails to perceive a substantial and un-

justifiable risk that such result will occur or that such

circumstance exists. The risk must be of such nature

and degree that the failure to perceive it constitutes

a gross deviation from the standard of care that a rea-

sonable person would observe in the situation.”’

For each of these crimes there must be a ‘‘substantial and

unjustifiable risk’’, and ‘‘[t]he risk must be of such nature

and degree that dis.egard thereof [or, the failure to per-

ceive it] constitutes a gross deviation from the standard of

conduct [or, care] that a reasonable person would observe

in the situation’. The essence of manslaughter in the

second degree is awareness accompanied by disregard of

the risk; for criminally negligent homicide the essence is

failure to perceive the risk (People v Stanfield, 36 NY2d

467, 470). With respect to each crime the culpable conduct

of the defendant must have been the cause of the death of

the other person or persons.

There have been relatively few reported cases (other

than those involving vehicular homicide) in which judicial

attention has been focused on the proof required to estab-

lish the commission of the crimes of manslaughter in the

second degree or criminally negligent homicide. None has

been drawn to our attention and our research has dis-

52a

closed none in which the statutory provisions were ap-

plied to deaths occurring in the course of manufacturing

operations.'

1. Inasmuch as we find the causation issue hereafter discussed

to be decisive of this appeal, we assume for purposes of this decision,

without deciding, that Penal Law, Sections 125.10 and 125.15 are

broad enough to cover deaths occurring in the course of manufactur-

ing operations. We note, however, that no case applying these sec-

tions or the predecessor sections to such operations has been found:

that no legislative history which mandates that conclusion has been

found, either by the parties from whom we solicited submissions on

that subject prior to reargument or by our independent research ; and

that tenable arguments for and against it can be made.

The arguments for are that the present sections were enacted as

part of the general revision of the Penal Law effective September 1,

1967, that the Commission Staff Notes on the Proposed Penal Law

(adopted in 1967) stated with respect to the section on criminally

negligent homicide that (p 335) “The proposed crime * * * is one

of general application, and no need or desirability is seen for indi-

vidual, particularized provisions or offenses addressed to fatally negli-

gent conduct in specific areas of activity”, that Section 5.00 of the

Penal Law declares that “The general rule that a penal statute is to

be strictly construed does not apply to this chapter, but the pro-

visions herein must be construed according to the fair import of

their terms to promote justice and effect the objects of the law”, that

the Practice Commentaries prepared by the former Counsel to the

Commission on Revision state that Section 125.10 “applies to a wide

spectrum of fatal conduct of both commission and omission”, that

the sections were fashioned on the Model Penal Code and like that

Code are stated in language which is clearly broad enough to include

manufacturing operations.

The arguments against are that the history of the American Law

Institute’s adoption of the Model Penal Code contains nothing other

than the broad language of the sections to indicate that manufacturing

operations were intended to be covered and that the history of the

predecessor sections of the Penal Law (Sections 1052 and 1053-a to

1053-f) is equivocal. The introductory language of Section 1052

was internally narrowed by the inclusion within the section of par-

agraphs describing particularized conduct—‘Women producing mis-

carriage”, “Negligent use of machinery”, ‘Mischievous animals”,

“Overloading passenger vessel”, ‘‘Persons in charge of steamboats”,

“Persons in charge of steam engines”, “Acts of physicians while

intoxicated”, and “Persons making or keeping gunpowder contrary

to law”. Sections 1053-a and -b dealt explicitly with criminal negli-

(footnote continued on next page)

53a

There can be no doubt that there was competent evi-

dence before the Grand Jury here which, if accepted as

true, would have been sufficient to establish the existence

of a broad, undifferentiated risk of explosion from am-

bient MS dust which had been brought to the attention of

defendants. It may be assumed that, if it be so categorized,

the risk was both substantial and unjustifiable. The issue

before us, however, is whether defendants could be held

criminally liable for what actually occurred, on theories

either of reckless or negligent conduct, based on the evi-

dence submitted to this Grand Jury, viewed in the light

most favorable to the People. The focus of our attention

must be on the issue of culpability, taking into account the

conduct of defendants and the factors both of foreseeability

and of causation, all of which in combination constitute the

gence in the operation of a motor vehicle; Sections 1053-c and -d

covered criminal negligence in the use of a firearm or a long bow

while hunting; and Sections 1053-e and -f addressed criminal negli-

gence in the operation of a vessel. The paragraph in Section 1052

captioned “Negligent use of machinery” (although facially so broad

that if read literally it would have made unnecessary the particular-

ization in coordinate internal paragraphs of that section) was first

incorporated in our criminal law statutes in 1881 (L 1881, ch 676,

§ 194). No legislative history has been found which discloses the

purpose for its introduction. It was not included in the draft pro-

posal of 1865 and first appears in the proposal as amended in 1879.

It may be argued, therefore, that prior to the enactment of the 1967

revision of the Penal Law there was no statutory proscription of

general applicability and none specifically addressed to manufacturing

operations.

The pertinent policy considerations (e.g., the protection of New

York residents against injury or death knowingly or recklessly in-

flicted and of the State against the burden of having to care for and

support persons so injured or killed on the one hand, as opposed to

the possible adverse effect on the State’s economy of extending crim-

inal liability to manufacturing operations on the other) are more

properly for the Legislature than for the courts (cf Fletcher, The

Theory of Criminal Negligence: A Comparative Analysis, 119 U of

Pa L Rev 401). It may be that the Legislature will wish to eliminate

all equivocality.

54a

ultimate amalgam on which criminal liability may or may

not be predicated.

First, we look at the evidence as to the actual event or

chain of events which triggered the explosion—evidence

which may only be characterized as hypothetical and spec-

ulative. There was direct testimony by eyewitnesses, con-

firmed by reconstruction of the physical evidence, that two

explosions occurred. The first was a low-order detonation,

occurring approximately two seconds before the major ex-

plosion, at the base of the ‘‘D’’ Uniplast machine, which

was itself found to be in a substantially fragmented condi-

tion with gears, metal shafts, and other parts broken up

and displaced; the second, occurring in rapid succession,

was a major explosion accompanied by fire which caused

the massive destruction and personal injuries. The prose-

cution hypothesizes that under what it describes as ‘‘the

most plausible of theories’’ the initial detonation was at-

tributable to mechanical sparking resulting from the break-

up of the metal parts of the Uniplast machine, possibly

occasioned by the machine’s having become overheated or

overloaded, by vibration, or by slipping of components.

Testimony supporting this hypothesis included descriptions

of the condition of the machine after the event, expert tes-

timony that the physical evidence suggested mechanical

failure prior to the first explosion and testimony of prior

instances in which the machine had become overheated or

metal parts had broken off. The District Attorney adds

that ‘‘ignition produced by an electrical spark or are emis-

sion from the non-explosion proof, over loaded Uniplast

motor was not ruled out either’’.

Another explanation for the initial explosion was of-

fered by an expert called by the prosecution who hypothe-

55a

sized that liquid oxygen, produced through liquefaction as

air condensed on the liquid nitrogen-cooled parts of the

‘*D”’ machine, dripped onto settled MS dust at the base of

the Uniplast, became trapped there and then, when sub-

jected to the impact caused by a moving metal part, reacted

violently, causing ignition of already dispersed MS.

Viewed most favorably to the People, the proof with

respect to the actual cause of the explosion is speculative

only, and as to at least one of the major hypotheses—that

involving oxygen liquefaction—there was no evidence that

that process was foreseeable or known to any of the de-

fendants. In sum, there is no proof sufficient to support a

finding that defendants foresaw or should have foreseen

the physical cause of the explosion. This being so there

was not legally sufficient evidence to establish the offenses

charged or any lesser included offense.

It has been the position of the People that but-for causa-

tion is all that is required for the imposition of criminal

liability. Thus, it is their submission, reduced to its sim-

plest form, that there was evidence of a foreseeable and

indeed foreseen risk of explosion of MS dust and that in

consequence of defendants’ failure to remove the dust a

fatal explosion occurred. The chain of physical events by

which the explosion was set off, i.e., its particular cause, is

to them a matter of total indifference. On oral argument

the People contended that liability could be imposed if the

cause of the explosion were the lighting of a match by an

uninvited intruder or the striking of a bolt of lightning.

In effect they would hold defendants to the status of guar-

antors until the ambient dust was removed. It thus ap-

pears that the People would invoke an expanded applica-

tion of proximate cause principles lifted from the civil law

of torts.

56a

We have rejected the application of any such sweeping

theory of culpability under our criminal law, however.

We recently considered concepts of criminal culpability

grounded in recklessness or negligence in People v Kibbe

(35 NY2d 407).? In that case the defendants had abandoned

their helplessly intoxicated robbery victim in subfreezing

temperatures, without shoes or eyeglasses, by the side of

an unlighted highway, and he was shortly thereafter struck

and killed by a passing motorist. The critical issue in the ~

case was whether the defendants should be held criminally

liable for murder when the particular cause of death was

vehicular impact rather than freezing. Under the theory

now advanced by the People it would have been irrelevant

that death had been the consequence of one particular chain

of causation rather than another; it would have been

enough that the defendants exposed their victim to the

risk of death and that he died. That, of course, was not

the analysis of culpability that we adopted. Recognizing

that ‘‘[a] distance separates the negligence which renders

one criminally liable from that which establishes civil liabil-

ity’’ (People v Rosenheimer, 209 NY 115, 123)—both as to

quantum and content of proof—we held that ‘‘the defend-

ants should not be found guilty unless their conduct ‘was

a cause of death sufficiently direct as to meet the require-

ments of the criminal, and not the tort, law’ ’’ (35 NY2d

412). ‘*We subscribe to the requirement that the defend-

ants’ actions must be a sufficiently direct cause of the en-

suing death before there can be any imposition of criminal

liability, and recognize, of course, that this standard is

greater than that required to serve as a basis for tort

liability’? (¢d., p. 413). Thus, we were concerned for the

2. For subsequent proceedings see Henderson v Kibbe (431 US

145).

o7a

nature of the chain of particularized events which in fact

led to the victim’s death; it was not enough that death had

occurred as the result of the defendants’ abandonment of

their helpless victim. To analogize the factual situation

in the case now before us to that in Kibbe it might be

hypothesized that the abandoned victim in Kibbe instead

of being either frozen to death or killed when struck by a

passing motor vehicle was killed when struck by an air-

plane making an emergency landing on the highway or

when hit by a stray bullet from a hunter’s rifle—occasions

of death not reasonably to have been foreseen when the

defendants abandoned their victim.

In view of our disposition of this appeal on the ground

that, inasmuch as the evidence before the Grand Jury was

not legally sufficient to establish the foreseeability of the

actual immediate, triggering cause of the explosion, defend-

ants cannot be held criminally culpable, we have no occa-

sion to reach or consider whether the steps that they took

with respect to the general risk of explosion were a gross

deviation from the standard of care or conduct that a rea-

sonable person would have observed in the situation.

For the reasons stated, we conclude that there was not

legally sufficient evidence in this case on the premise of

which any jury could permissibly have imposed criminal

liability on any of these defendants.

Accordingly, the order of the Appellate Division should

be reversed and the indictment dismissed.

Order reversed and the indictment dismissed. Opinion by

Jones, J. Concur: Cooke, Ch. J., Jasen, Gabrielli, Meyer,

Sweeney and Cardamone, JJ.

Decided November 20, 1980