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Columbia's illegal dumping case ends in a not guilty verdict for Cascino

Dec 16, 2010 11:23 am
After a week's trial, Salvatore Cascino and his Bronx-based waste hauling company were found not guilty yesterday, December 15, of endangering public health, safety, or the environment after being indicted for hauling waste to a Route 9G property in Clermont. This decision, according to Andrew Amelinckx of The Register Star, came on the heels of another charge against the defendants being thrown out by Judge Jonathan Nichols on Tuesday after the judge determined the prosecution had not proved that Cascino or his company were operators of the facility, as was charged.

Cascino, 70, of Larchmont, Westchester County, and Bronx County Recycling were indicted by the state Attorney General’s Office in April on charges of operating an unpermitted landfill and fourth-degree endangering public health, safety, or the environment. The AG’s Office accused both parties of illegally dumping more than 70 cubic yards of solid waste and releasing petroleum into the environment at an unpermitted facility off Route 9G, just south of Firehouse Road, in Clermont between Dec. 31, 2007 and July, 2009.

Dennis Schlenker, representing Cascino, told the jury there was “one essential question” they needed to answer— “whether Salvatore Cascino recklessly released petroleum (at the Clermont site).” Earlier, he raised questions surrounding the site inquestion's long-term informal use as a local dumping ground.

Cascino is still facing two other sets of charges — a 209 civil case in Dutchess County that alleges he Cascino and a locally-based company caused destruction of a protected wetland and dumped construction debris without obtaining the required state license, and a criminal case in Albany County filed this past summer for allegedly filing false documents with the state to hide illegal disposal of solid waste.

Cascino, 70, has also been in conflict with local and state authorities for years for dumping on his Copake Valley Farm property in eastern Columbia County.

The attorney said that his client, who “absolutely denies the charges,” was “cloaked in the presumption of innocence.”

“The prosecution carries the burden of proof,” he told the jury, “and there are many, many reasonable doubts in this case.”

According to Schlenker, the problems with the case included the way in which the Department of Environmental Conservation collected evidence at the Clermont site as well as the amount of petroleum they found there.

The DEC executed a search warrant at the Clermont site, owned by William Cole, Sept. 29, 2009. “They dug 10 holes to determine what was going on at this property,” he told the jury, adding that the selection of the holes was arbitrary.

At several of the holes they took samples, one of which later tested at .0065 parts per million of petroleum.

“That’s all they could come up with,” said the attorney.

This minuscule amount, said Schlenker, played directly to the idea of recklessness, a necessary element of the crime that had to be proved in the case, intimating that the small amount of petroleum released didn’t add up to reckless behavior.

“Did Salvatore Cascino know or act recklessly in dumping oil on that property?” he asked. “There’s no evidence of that.”

Another issue in the case, according to Schlenker, was the history of the Clermont site. Before Cole bought the property in 2005 it had belonged to Carl LaMunyan who operated a landfill on the southern portion of the property. Before that, said the attorney, the land was owned by the Pulver Gas and Oil Corporation.

He brought up several witnesses’ testimony describing the landfill in the late 1980s and early 1990s.

The attorney said that 21 years ago there were old vehicles, some buses and a vehicle junk yard that appeared to be growing on top of the landfill, as well as a number of other materials there, basing his statement on a letter written in 1989 by Ward Stone, a DEC wildlife pathologist, to another DEC employee.

“The site had been a junkyard since the 1940s” said Schlenker.

According to Schlenker, the northern parcel, where his client had dumped fill, had problems as well.

“They want you to believe it was pristine … an 18-hole golf course where they played the US Open on it,” said the attorney. “It was not.”

He discussed how leachate — earlier described by Richard Forgea, the region 4 solid waste engineer for the state DEC, as any liquid that is contaminated by waste and flows either under or above ground — could have contaminated the north parcel due to migration, or the movement of toxic chemicals.

The LaMunyan site, said Schlenker, had never been remediated, the property was not enclosed and Cole had brought in fill from at least two other sources before Cascino began transporting material there.

“It was an open site. We don’t know who was dumping there,” he said. “It was never remediated and now they want to make Mr. Cascino the scapegoat.”

The attorney also found fault with the testimony of one of Cascino’s drivers, Charles Spadaccini, who was a prosecution witness and testified, along with trucker Arthur Wilcox, that he had transported “dirty dirt” that smelled like petroleum from the Bronx to Clermont at Cascino’s behest.

Schlenker referred to Spadaccini as “the gentleman who didn’t know the difference between Monday and Tuesday,” because the witness couldn’t remember what day he had last spoken to the prosecution.

“Would you make any important decision in your life based on the testimony of Charles Spadaccini?” he asked the jury.

Bronx County Recycling attorney closes

Donald Kinsella, the attorney representing Bronx County Recycling, also had problems with the way the DEC collected evidence in the case.

Kinsella took exception with the prosecution’s first witness, Richard Dana, a DEC employee in the agency’s crime scene investigation unit, saying that he took a number of small samples from the site and commingled them.

“At least on CSI on TV they would have tested each sample,” he said. “It’s elementary.”

The attorney went on to say that the DEC never tested loads of dirt going out of Bronx County Recycling; that the prosecution didn’t shown how the petroleum got to the Clermont site; and provided no proof that Bronx County Recycling put it there.

Prosecution defends its evidence

Assistant Attorney General James Woods, who prosecuted the case along with co-counsel Catherine Leahy-Scott, said that there was more than enough evidence to convict in the case.

He said besides the soil taken from one of the holes that tested positive for petroleum, there was testimony that two drivers, Wilcox and Spadaccini, brought up at least “22 loads of dirty dirt” on Cascino’s orders. Later saying that “the drivers made it clear that the dirt was contaminated.”

“We wouldn’t be here if it was a small spill or minute amount,” he told the jury, also reminding them that there was “no threshold” on the release of hazardous waste.

Woods said that hole number seven dug by the DEC smelled like petroleum and tested positive for the substance.

“This is not CSI. This is not TV and this technique is an accepted procedure,” he said.

Cascino’s actions were reckless, Woods said, since he knew that dumping the waste could lead to petroleum being released into the environment at Cole’s property.

As for the idea that leachate from the old landfill could have found its way onto the northern parcel, the prosecutor said that it “was without merit.”

Forgea testified that any migration of leachate would have gone from east to west and not south to north.

The theory that someone else put the petroleum there, he said, was likewise without merit.

“There wasn’t one shred of evidence,” he told the jury.

Woods ended his argument as he began his opening summations on Dec. 8, by saying the case was about “greed and convenience”

He said that Cascino had told Cole that he would provide fill for Cole’s property, which the owner was trying to level, because “he had an overcapacity problem” at Bronx County Recycling. Cascino, said Woods, dumped at Cole’s site instead of having to take it to a permitted landfill.

Jury deliberates

The jury was out for a little more than eight hours before delivering its not guilty verdict.

One of the jurors, Charles NeJaime, of Valatie, told the Register-Star after the trial ended that he and the other jurors didn’t believe the prosecution presented enough evidence to convict Cascino.

He said among the problems was the site’s history, saying that had it been a “pristine, virgin piece of land” instead of an old landfill, it might have made a difference.

NeJaime said that he and the other jurors wouldn’t have let someone get off for littering, but that in the end there just “wasn’t enough evidence.”

Schlenker, after hugging his client, said that he was “very, very happy for Cascino.

“It’s been a long, tough road,” he said. “He’s a gentleman and he has always been a gentleman.”

Schlenker went on to say that he had the utmost respect for the two prosecutors, who he has known for a long time.

Woods and Leahy-Scott refrained from commenting, referring all inquiries to the AG’s press office.

Even with Cascino’s victory Wednesday, he is still facing two other cases — a civil case in Dutchess County and a criminal case in Albany County.

A lawsuit was filed against Cascino by the AGs office in July 2009 alleging that Cascino and his town of Dover-based company, Ten Mile River LLC, caused destruction of a protected wetland and that the company dumped construction debris from Bronx County Recycling on its 18-acre property in 2003 without obtaining the required state license.

In June Cascino and Bronx County Recycling LLC were indicted on felony charges for allegedly filing false documents with the state to hide illegal disposal of solid waste.

The indictment filed by the AG’s Office includes three counts of first-degree offering a false instrument for filing for the years 2008, 2009 and 2010. According to the indictment, Cascino failed to list that unauthorized waste was received at Bronx County Recycling on three annual filings with the state Department of Environmental Conservation.

First-degree offering a false instrument for filing is a class E felony and is punishable by up to four years in prison.

That case is being handled in Albany County Supreme Court before Judge Thomas Breslin.
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