# Petition — New York v. Warner-Lambert Co.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1981
- **Citation:** 450 U.S. 1031

## Text

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
Questions Presented .....00.00.00.000.0.... Pe Eee nG too ORR: EN * I
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EE, Frat ee ear een ee ere 2
Constitutional Provisions Involved oo... 2
RPINONING GE CTD COO ans occs ccc scccssneesesseccsscesescosecssevssvoncs 3
Reasons for Granting the Writ .............0.000 ccc 4
th oe ens ate Sar tr Baan tad iti URS RII Be 7
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1360%3A1. Public record. Not legal advice.