For the second time, a state Supreme Court judge Tuesday denied a defense motion to dismiss several criminal counts against a father and son accused of illegally dumping tons of contaminated debris in and around Islip.
Defense attorney Kevin Kearon of Garden City, representing Thomas Datre Jr. and three of his corporations, filed the motion Jan. 27, reiterating a similar request filed May 20 and denied in September by Judge Fernando Camacho. Andrew Campanelli, counsel to Thomas Datre Sr. and his corporation, joined in the motion during a pretrial hearing Tuesday in Central Islip.
The Datres are among six individuals indicted in December 2014 for their roles in the alleged scheme to dump the contaminated fill across four Islip-area sites including Roberto Clemente Park in Brentwood; sensitive wetlands in Deer Park; a private, 1-acre lot on Islip Avenue in Central Islip; and a six-home subdivision at Veterans Way in Islandia, where Iraq and Afghanistan war veterans live with their families. Two of the other defendants, Christopher Grabe, of Islandia Recycling, and Ronald Cianculli, of Atlas Asphalt, are expected to each be tried separately. Attorneys for defendants Joseph J. Montuori, a former Islip Town parks commissioner, and Brett A. Robinson, Montuori’s former secretary, have not said whether they will be tried together.
Kearon sought dismissal of 18 of the 32 counts spelled out in an indictment that alleges the father and son violated environmental conservation laws, acted recklessly and caused the release of hazardous or acutely hazardous materials, according to the defense motion. In his written motion, Kearon pointed to “new facts . . . not offered on the prior motion that would change the prior determination.”
Assistant District Attorney Michelle Pitman submitted a letter at the court’s request Nov. 18 setting forth the prosecution’s theory of recklessness on the part of the Datres when they dumped the debris. The defense argued Tuesday that prosecutors have yet to provide evidence to back up the charges laid out in the indictment, including whether the father and son acted recklessly.
“Clearly, the defense is in an awkward position of having to guess at the People’s theory of criminality before rebutting it,” Kearon wrote. “Nevertheless, it appears that in addition to its other flaws, the People’s theory makes the fundamental mistake of assuming a regulatory precondition — knowledge of contamination — that does not exist and is not alleged.”
In a response, Pitman called the motion “baseless” and “untimely,” because it came weeks before jury selection was set to begin.
“There has been no such change in the People’s theory,” Pitman wrote in a Feb. 8 letter to the court. “Instead, the defendants purposely continue to misinterpret and misconstrue the People’s theory in their ceaseless arguments to the Court in an attempt to convince the Court to change its decision on this issue.”
In denying the latest motion, Camacho said Tuesday the prosecution had presented enough evidence to support the indictment.
“It is not intended to be a discovery device,” Camacho said of Pitman’s Nov. 18 letter. “It is merely intended to clarify the indictment.”
Jury selection in the case is set to begin Wednesday morning in Camacho’s courtroom. Six pools of 60 prospective jurors have been lined up to fill the panel, along with six slots for alternate jurors, the most allowed by law, Camacho said.
Camacho estimated the length of trial to be anywhere from three to five months due to the complexity of this case.
“There are some really serious issues of fact in this case that will be resolved at trial,” Camacho said.