A judge denied a defense motion Wednesday to dismiss the charges against a businessman accused of aiding a felon in dumping contaminated materials in Deer Park, saying prosecutors’ evidence is “legally sufficient” to uphold the indictment.
The motion by defense attorney John Carman came after prosecutors questioned two representatives from an environmental consulting firm before resting their case against Ronald Cianciulli in his bench trial.
Carman detailed to State Supreme Court Justice Fernando Camacho how he believed prosecutors’ evidence fell short to support the six criminal counts against Cianciulli, the owner of Atlas Asphalt in Deer Park.
Regarding a criminal mischief charge, a felony, Carman called the evidence “legally unsupportable.”
“There is no evidence of an Atlas truck, there is no evidence of an Atlas employee,” Carman said.
Cianciulli “made an introduction to a friend, a neighbor, so that they could in theory make their own arrangements with somebody else,” Carman said, referring to his client’s interactions with Thomas Datre Jr.
In March, Datre Jr. pleaded guilty to four felonies, admitting responsibility for dumping in Deer Park and three other Suffolk sites. Carman told Camacho that Cianciulli “did not act in concert. He did not aid. He did not abet.”
Assistant District Attorney Michelle Pitman told the judge Wednesday that prosecutors “have met our burden.”
Camacho took no time to deny the application.
“The evidence submitted in this case is legally sufficient to establish each and every offense in each and every count,” he said.
The trial entered its fifth day Wednesday. Prosecutors have presented 12 witnesses and several pieces of evidence they believe prove Cianciulli helped Datre Jr. find a place to dump.
Cianciulli faces three felony charges for his alleged actions at the Masie property on Brook Avenue, including the second-degree criminal mischief charge as well as two counts of third-degree endangering public health, safety or the environment and fourth-degree endangering public health, safety or the environment, both E felonies. He is also charged with operating a solid-waste management facility without a permit, a misdemeanor, and a violation of engaging in regulated activities within mapped freshwater wetlands without a permit.
Carman pointed to machine operator Leonard King’s testimony last week where he said Datre Jr. was his “boss” at the dirt-screening operation and took it upon himself to use the material to build up a berm and dump over a fence into the state-protected wetlands area. King testified both Cianciulli and Datre Jr. told him not to dump in the wetlands, but he said neither showed him the boundary.
April Masie last week testified that while an agreement between Cianciulli and her father, who died in 2011, allowed Cianciulli to park equipment on their property in exchange for snow plowing and pothole repair, dumping was not part of the deal.
Prosecutors have offered Cianciulli multiple plea deals — the latest after Datre Jr. pleaded guilty. That offer included tossing Cianciulli’s felony charges in exchange for a misdemeanor conviction. Cianciulli refused, Camacho has said, not willing to agree to a criminal disposition.
Two witnesses, both from Enviroscience Consultants Inc., of Ronkonkoma, who took samples to be tested for contaminants from different piles of dumped materials at the site in June 2014 at the request of the Suffolk County district attorney’s office, rounded out the prosecution’s case Wednesday.
Carman did not call any witnesses but he introduced an exhibit into evidence Wednesday that included certified business records showing Cianciulli was in the Bahamas from April 15-22, 2014, dates within the time prosecutors said the dumping took place in March and April that year.
Semivolatile organic compounds, pesticides, metals and asbestos were found at the Masie property. About 2,200 cubic yards of material was dumped in or near the wetlands as well as another 1,100 cubic yards in the parking lot, according to Tuesday testimony of an official with the state Department of Environmental Conservation. The debris remains in the sensitive wetland nearly two years after it was first discovered.
The attorneys are due back in court Thursday for summations. Camacho is serving as the fact finder in this case, as Cianciulli waved his right to a jury trial two weeks ago before the trial began.