| People v Lettley |
| 2009 NY Slip Op 05699 [64 AD3d 901] |
| July 9, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Keith Lettley,Appellant. |
—[*1] Kevin C. Kortright, District Attorney, Fort Edward (Christian P. Morris of counsel), forrespondent.
Peters, J.P. Appeal from a judgment of the County Court of Washington County(McKeighan, J.), rendered August 22, 2008, upon a verdict convicting defendant of nine countsof the crime of placing a false bomb or hazardous substance in the first degree.
Defendant was an inmate at Great Meadow Correctional Facility in Washington Countywhen he committed the crime for which he stands convicted. Believing, among other things, thatvarious prison staff and inmates were conspiring to kill him, that he was being controlled byelectronic transmitters and that he was wrongly being denied medical attention and relief despitethe myriad of grievances he filed, defendant attempted to gain attention to his plight by mailing12 letters to various outside agencies, including the Federal Bureau of Investigation, severalnews outlets, nonprofit organizations and the office of an elected official, each of whichcontained a packet of a white powdery substance that ultimately proved to be foot powder. Thereceipt of such letters caused varying levels of emergency response from authorities.
Defendant, who had placed his name, return address and prisoner number on each letter, wassubsequently interviewed by an inspector for the Department of Correctional Services, duringwhich he freely admitted to sending the letters. Following a jury trial, defendant was convictedof nine counts of placing a false bomb or hazardous substance in the first degree and [*2]sentenced, as a second felony offender, to concurrent prison termsof seven years followed by five years of postrelease supervision on each count, to runconsecutively to the lengthy prison term he was then serving. He now appeals.
Defendant contends that the evidence introduced at trial was legally insufficient to supporthis conviction on all counts of placing a false bomb or hazardous substance in the first degree.We agree and, despite the fact that defendant failed to preserve this particular claim by makingthe appropriate objection during trial, we exercise our interest of justice jurisdiction to modifyCounty Court's judgment (see CPL 470.15 [3] [c]; People v Crowley, 34 AD3d 866, 867 [2006], lv denied 7NY3d 924 [2006]; People vBancroft, 23 AD3d 850, 851 [2005], lv denied 6 NY3d 752 [2005]).
As relevant here, "[a] person is guilty of placing a false bomb or hazardous substance in thefirst degree when he or she places, or causes to be placed, in or upon school grounds, a publicbuilding, or a public place any . . . object that by its design, construction, content orcharacteristics appears to be or to contain, a . . . hazardous substance, but is, in fact,an inoperative facsimile or imitation of . . . a . . . hazardous substanceand which he or she knows, intends or reasonably believes will appear to be a . . .hazardous substance under circumstances in which it is likely to cause public alarm orinconvenience" (Penal Law § 240.62). For the purposes of the statute, the term "[p]ublicbuilding" is further defined by Executive Law § 401 (2), and refers to "all buildingsincluding grounds and premises adjacent or appurtenant thereto or connected thereto belongingto the state, county, town, village, school district or any other political or civil subdivision ofstate or local government." Further, "[p]ublic place" is defined by Penal Law § 240.00 (1)as "a place to which the public or a substantial group of persons has access, and includes, but isnot limited to, highways, transportation facilities, schools, places of amusement, parks,playgrounds, and hallways, lobbies and other portions of apartment houses and hotels notconstituting rooms or apartments designed for actual residence."
Here, the People presented no evidence to show that the locations at which the nine letterswere received fell under the statutory definition of either public building or public place. Thus,the evidence convicting defendant of placing a false bomb or hazardous substance in the firstdegree was legally insufficient. Such evidence, however, was legally sufficient to convictdefendant of a lesser included offense. Penal Law § 240.61, placing a false bomb orhazardous substance in the second degree, mirrors the language of the first degree offense,absent the requirement that the substance be placed "upon school grounds, a public building, or apublic place" (Penal Law § 240.62). Defendant's testimony, along with his admissionsduring the interview and the letters themselves, provided ample evidence to support convictionson this lesser charge.
Defendant testified that he was, indeed, the author of the letters, that he sent them inenvelopes that contained a quantity of foot powder wrapped in tissue, that the letters, themselves,made reference to the fact that the substance appeared to be hazardous, and that he understoodthat the letters were likely to cause alarm. Defendant made similar admissions both during theinterview and in a signed statement. Furthermore, a copy of the letter, a memo with the addressesto which they were sent and a container of foot powder were all found in defendant's cell.Inasmuch as the evidence is legally sufficient to convict defendant of the lesser included offenseof placing a false bomb or hazardous substance in the second degree, we reduce his convictionsaccordingly (see CPL 470.15 [2] [a]; People v Fuller, 50 AD3d 1171, 1175-1176 [2008], lvdenied 11 NY3d 788 [2008]; People v George, 43 AD3d 560, 564 [2007], affd 11 [*3]NY3d 848 [2008]). Further, after independently weighing andconsidering the evidence in a neutral light, we also find such convictions to be amply supportedby the weight of the evidence (seePeople v Hall, 57 AD3d 1229, 1230-1231 [2008], lv denied 12 NY3d 784[2009]; People v Tillman, 57 AD3d1021, 1024 [2008]).
The remainder of defendant's contentions have been rendered academic by our decision orhave been examined and found to be without merit.
Spain, Lahtinen, Kavanagh and McCarthy, JJ., concur. Ordered that the judgment ismodified, as a matter of discretion in the interest of justice, by reducing all of defendant'sconvictions of placing a false bomb or hazardous substance in the first degree to placing a falsebomb or hazardous substance in the second degree; vacate the sentences imposed thereon andmatter remitted to the County Court of Washington County for resentencing; and, as somodified, affirmed.