[178 NJSuper Page 304] Defendants are charged under a 65 count indictment with various crimes involving the disposal of chemical wastes at the Elizabeth plant of defendant, Iron Oxide Corporation. The State claims that defendant trucking companies and their drivers transported the liquid waste to the Iron Oxide plant after receiving the same from various customers who paid defendants for its disposal. In disposing of the material, it is charged that
the defendant caused the same to be emptied into the waters of the Arthur Kill on which the property of the defendant Iron Oxide borders.
Among the charges are counts alleging a conspiracy to maintain a nuisance in violation of N.J.S.A. 2A:85-1. Defendants move to dismiss these counts, claiming that under the New Jersey Code of Criminal Justice the actions of defendants as alleged in these counts are no longer crimes.
The Code became effective September 1, 1979. The alleged conspiracies which are the subject of the indictment took place between April 1, 1973 and April 10, 1979. The overt acts alleged to have occurred after July 24, 1977, are governed by the New Jersey Water Pollution Control Act (N.J.S.A. 58:10A-1 et seq.) which became effective that date. Those occurring prior to that date, and the subject of this motion, are governed by N.J.S.A. 2A:85-1, which lists nuisances among the indictable common law offenses punishable as misdemeanors. This statute was repealed by the Code, N.J.S.A. 2C:98-2, and all common law crimes have been abolished unless specifically defined under the Code or some other statute. N.J.S.A. 2C:1-5(a).
The Code further provides that if the offense is no longer an offense under the provisions of the Code the prosecution of the charges shall be dismissed. N.J.S.A. 2C:1-1(c)(3). Defendants argue that under the Code, N.J.S.A. 2A:85-1 has been downgraded to a disorderly persons offense, pointing to N.J.S.A. 2C:33-12 as the statute correlative to N.J.S.A. 2A:85-1. 2C:33-12 provides:
A person is guilty of a disorderly persons offense when: (a) By conduct either unlawful in itself or unreasonable under all the circumstances, he knowingly or recklessly creates or maintains a condition which endangers the safety or health of a considerable number of persons; * * *
Under the Code conspiracy is defined as follows:
A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he: (1) Agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or (2) Agrees to aid such other person or persons in the
planning or commission of such crime or of an attempt or solicitation to commit such crime. N.J.S.A. 2C:5-2.
A crime is an offense for which a sentence of imprisonment in excess of six months is authorized. N.J.S.A. 2C:1-4(a). Any other offense is either a disorderly persons offense or a petty disorderly persons offense and therefore not a crime. N.J.S.A. 2C:1-4(b). Thus, defendants argue, since a violation of N.J.S.A. 2C:33-12 constitutes only a disorderly persons offense, a conspiracy to violate that statute is not a crime.
In opposing defendants' motion the state points to N.J.S.A. 2C:17-2(a) as the correlative statute. As enacted ...