I agree that the appeal from the order dated February 15, 1978 should be dismissed. However, I would uphold the dismisal of the indictment on the basis of the well-reasoned opinion of *278Mr. Justice Leahy 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 occurred on November 21, 1976 on the fourth floor of the corporate defendant’s Long Island City plant where gum was being manufactured. As a result of that explosion, six employees of the corporate defendant died and numerous others were injured.
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 unjustifiable 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 substantial 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 reflected in the indictment was in accord with expert testimony and scientific evidence adduced before the Grand Jury which indicated 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 opinion 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 disregarded the risk of explosion by allowing ambient MS to accumulate in a concentration over the LEL and that this pre-existing ambient MS dust cloud was ignited, causing the explosion.
*279However, 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 concentration 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 consensus 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 (LN2) used by the corporate defendant as a cooling agent in its manufacturing 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 initial 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 apart * * * Machine D, dispersed the magnesium stearate dust and either directly ignited the dispersed dust or caused an electrical arc 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 atmosphere 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 explosion 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 subsequent dispersal of MS into the atmosphere) was totally unforeseen. These same witnesses emphasized that liquid nitrogen is one of the most widely used cryogenic materials due to the fact, as Criminal Term acknowledged, that liquid nitrogen is "non-toxic, non*280combustible and vaporizes quickly and without dangerous effects when exposed to room temperatures; furthermore, because of its inherent stability, 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 cryogenics 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 LN2 and its machines, nor any governmental 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.
Lazek, Gulotta and Shapiro, JJ., concur in Per Curiam opinion; Suozzi, J. P., concurs as to the dismissal of the appeal from the order dated February 15, 1978, but otherwise 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 February 15, 1978, dismissed as academic. That order was superseded by the order dated July 25, 1978, made upon reargument.