Placing a False Bomb in New York

Placing a false bomb or hazardous substance is committed when a person places an object that appears to be a bomb or other destructive or hazardous substance, but which is in fact not a bomb or a hazardous substance, somewhere likely to cause public alarm.

If the object was actually a bomb or hazardous substance, Article 490 of the penal code, which governs acts of terrorism, would apply.

However, even if the object is a fake and does not harm anyone, the act is a serious crime with a felony sentence. In addition, there are several other related crimes that may be charged along with this one, increasing the risk of further criminal penalties.

Examples

The following are examples of situations where charges of placing a false bomb or hazardous substance may be filed.

In an attempt to scare her neighbor, Kate places a fake pipe bomb in her neighbor’s mailbox.
Kate mails envelopes filled with a white powder to a politician whom she does not like. The powder is baby powder.
Kate leaves a container with a warning label on a train. The label states: “warning – contains asbestos. Breathing asbestos dust is dangerous to health.” However, the container does not contain any asbestos.
Kate places a replica bomb inside a crowded theater.

If you believe you may have committed placing a false bomb or hazardous substance, this article provides valuable information regarding the types of criminal diversion, the elements of the crime, the numerous statutory and legal defenses available, as well as how to minimize your criminal liability best.

Statutes Defining Placing a False Bomb or Hazardous Substance in New York

There are three statutes that define placing a false bomb or hazardous substance under New York law.

NY Penal Law § 240.61

Placing a false bomb or hazardous substance in the second degree.

This occurs when a person places something that appears like a bomb or other dangerous substance, and which the person knows, intends, or reasonably believes to appear like a bomb or other dangerous substance, in a way that is likely to cause public alarm or nuisance. This is a Class E felony.

NY Penal Law § 240.62

Placing a false bomb or hazardous substance in the first degree.

This occurs when a person places something that appears like a bomb or other dangerous substance, and which the person knows, intends, or reasonably believes to appear as a bomb or other dangerous substance, at a school or public place. This is a Class D felony.

NY Penal Law § 240.63

Placing a false bomb or hazardous substance in a sports stadium or arena, mass transportation facility, or enclosed shopping mall.

The Elements of Placing a False Bomb or Hazardous Substance in New York

The “elements” of an offense are the things that the prosecutor must prove in order for you to be found guilty of the offense. For example, for a defendant to be convicted of placing a false bomb or hazardous substance in the second degree, all of the following must be proven at trial:

You must place an object that appears to be a bomb, destructive device, explosive, or other hazardous substance but is, in fact, an inoperative imitation or facsimile; AND
You must know, intend, or reasonably believe that the object appears to be a bomb, explosive, or other hazardous substance; AND
You must place the object in the circumstances likely to cause public alarm or nuisance.

The two other statutes, which impose harsher penalties, add an additional element:

For placing a false bomb or hazardous substance in the first degree, you must place the object at a school or public place;
For placing a false bomb or hazardous substance in a sports stadium or arena, mass transportation facility or enclosed shopping mall, you must place the object in a sports stadium, mass transportation facility or enclosed shopping mall where people are likely to present.

Each element is discussed briefly below. As will be discussed, the statute for this offense contains highly ambiguous terms that have not been fully defined by the statute or case law. Therefore, obtaining a highly skilled criminal defense attorney is crucial to mounting a successful defense in your case, since there is a lot of room for legal argument that your conduct does not satisfy the elements of this offense.

Element #1:

Place (somewhere) an object that appears to be a bomb, destructive device, explosive, or other hazardous substance but is, in fact, an inoperative imitation or facsimile.

This element is satisfied if the object that you place (somewhere) appears to be, but is in fact not, a bomb, explosive, or other hazardous substance. There are a few important things to note about this element:

First, there is no intent or knowledge required for this element. In other words, you do not have to intend to place this object anywhere; even if the object is unintentionally placed, you can satisfy this element.

Of course, this crime does require intent, knowledge, or reasonable belief that the object appears to be a bomb or hazardous substance, but the element of placing the object itself has no mental culpability requirement.

Second, it is not entirely clear what the terms “destructive device” or “hazardous substance” mean. Most criminal statutes provide definitions for the terms used. Here, there are no definitions available, and case law explaining this element is sparse. Clearly, a fake bomb satisfies this element, but what about a replica machine gun?

An open container of used fireworks? As a point of comparison, in Alhovsky v. Ryan, a federal court held that a battery-powered balloon inflation pump used by a professional clown to quickly inflate balloons could be mistaken for a bomb and thus could satisfy this element of the offense.

Third, the object needs to be an imitation, which is inoperative and harmless. If you leave an actual bomb or dangerous substance, then you will not be liable for this particular crime. However, you will likely be charged with more severe crimes, such as under Article 490, which defines acts of terrorism.

Examples:

Kate leaves a replica bomb on a bench at a public park.
Kate leaves some electrical equipment which could look like a bomb at a coffee shop.
Kate leaves a packet of white powder in her neighbor’s mailbox.

Element #2:

Knowledge, intent, or reasonable belief that the object appears to be a bomb, explosive, or other hazardous substance.

To satisfy this element, you do not actually have to intend or know that the object you are leaving may appear to be dangerous from the perspective of the public. All that is needed to satisfy this element is that you believe, with reasons to support that belief, that the object appears dangerous to the public.

Examples:

Kate knows that a shoebox filled with electrical wiring she left on a bench appears to be a real bomb.
Kate intends that a shoebox she left on a public bench filled with electrical wiring look like a real bomb.
Kate reasonably believes that a shoebox filled with electrical wiring resembles a bomb, even though others do not perceive it as a bomb.

Element #3:

Place the object under the circumstances likely to cause public alarm or nuisance

This element is just as difficult to define as Element #1 because there is very little case law that defines the terms “public alarm or nuisance.” The New York statute for criminal nuisance defines criminal nuisance in part as “a condition which endangers the safety or health of a considerable number of persons,” which is very broad.

How to determine if an object is likely to cause public alarm?

As to “public alarm,” the Second Circuit Court of Appeals opined that officers reasonably could have believed that an abandoned device which looked like a bomb, was left at a coffee shop, and was not claimed over the course of days, was likely to cause public alarm.

Thus, it can be inferred that not only the appearance of the object, but factors such as where the object was placed, how long it was placed there, and whether the owner came to reclaim the object, need to be considered in determining whether an object is likely to cause public alarm.

Another factor that may be relevant is recent events or developments that may cause a certain object to be viewed with suspicion by the public—for example, mailing a suspicious powder to someone probably was not viewed as particularly dangerous or alarming prior to the infamous 2001 anthrax attacks, where letters containing anthrax were mailed to various news outlets and politicians, killing 5.

Examples:

Kate leaves an open container with a biohazard symbol containing a white powder near a school.
Kate places an open cooler filled with dry ice in a shopping mall. The smoke from the dry ice fills the area.

Element #4:

A public place or building

To be convicted of placing a false bomb or hazardous substance in the first degree, the object must be placed at a public place or public building.

In People v. Lettley, the Appellate Division, Third Department held that the term “public building” means all buildings and premises owned by the state or local government.

The Appellate Division also defined “public place” as “a place to which the public or a substantial group of persons has access, and includes, but is not limited to, highways, transportation facilities, schools, places of amusement, parks, playgrounds, and hallways, lobbies and other portions of apartment houses and hotels not constituting rooms or apartments designed for actual residence.”

In People v. Jackson,[5] the New York Court of Appeals also held that the inside of a vehicle owned by the defendant did not constitute a non-public place where the vehicle was placed in a public location.

If it were otherwise, then all the defendant would have to do is to place the object resembling a bomb or hazardous substance on the passenger seat of his car and drive the car to a public location, where public alarm or nuisance would take place, and the defendant could not be found criminally liable for his actions.

Related Federal Offenses to Placing a False Bomb or Hazardous Substance

Although there is no directly analogous federal statute that criminalizes the placement of a bomb or hazardous substance, the following federal charges have been brought against the suspect in high-profile cases involving the mailing of suspicious substances to politicians and other targets:

18 U.S.C. § 1038 – False information and hoaxes:

This is committed when a person conveys false information or commits a hoax indicating that certain crimes, including crimes related to biological and chemical weapons, explosives, and terrorism, are taking place.

18 U.S.C. § 876 – Mailing threatening communications:

This is committed when a person conveys, through the mail, a message containing any threat to kidnap or injure the person of the addressee or of another.

Related New York Offenses to Placing a False Bomb or Hazardous Substance

The following New York crimes may be charged along with placing a false bomb or hazardous substance:

NY Penal Law § 240.45

Criminal nuisance in the second degree: This is committed when a person creates or maintains a condition which poses a threat to the safety or health of a significant number of people.

Also, note that you may also be charged with attempt or conspiracy to commit any of the above crimes.

Case Law that Further Explains the Elements of Placing a False Bomb or Hazardous Substance

In Alhovsky v. Paul, 406 F. App’x 535, 537 (2d Cir. 2011), the Second Circuit Court of Appeals held that, even though the battery-powered balloon pump left in a coffee shop, in that case, was not inoperative in the sense that it had a legitimate use (pumping air into balloons).

It could still satisfy the requirement for this offense that the object is an inoperative imitation of a bomb or hazardous substance.

Penalties

Placing a false bomb or hazardous substance in the second degree is a class E felony, with a maximum sentence of 4 years, and a maximum fine of $5,000.
Placing a false bomb or hazardous substance in the first degree is a class D felony, with a maximum sentence of 7 years and a maximum fine of $5,000.
Placing a false bomb or hazardous substance in a sports stadium or arena, mass transportation facility or enclosed shopping mall is a class D felony, with a maximum sentence of 7 years and a maximum fine of $5,000.

Sentencing Enhancements

Your sentence can significantly increase if you have a prior felony conviction. For example, if you are found guilty of second degree placing a false bomb or hazardous substance, a class E felony, someone with no prior felony offense could receive no jail time. However, a second felony offender will receive at least an 18-month sentence.

Under New York’s three-strikes law, someone with two prior felony convictions will face at least a 15-year sentence for the same offense. A felony conviction also has various other collateral consequences. They include:

Reputational harm and loss of job
Time and money spent defending yourself in court
Loss of gun ownership rights
Potential deportation if you are an immigrant
Inability to obtain job-related licenses and certifications.
The increased sentence for future convictions

Navigating the relevant sentencing rules is extremely consequential. You should retain and consult with an attorney as soon as possible to understand your sentencing risk should you be found guilty of an offense.

Legal Defenses to Placing a False Bomb or Hazardous Substance

As discussed above, due to the significant ambiguities in the meaning of terms in the statutes defining this offense and the lack of relevant case law, there is a lot of leeways for a skilled criminal defense attorney to argue that your conduct may not satisfy the elements of placing a false bomb or hazardous substance.

The following powerful legal defenses may be utilized by a skilled attorney to minimize your sentencing risk and win an acquittal.

Defense #1:

The object does not resemble a bomb or hazardous substance

If the object placed does not resemble a bomb or hazardous substance, you obviously cannot be found guilty of this crime. The important question is whether the substance resembled is hazardous (if the object resembles a bomb, then obviously it is hazardous).

If, for example, the government argues that the object placed resembles some radioactive substance, you may be able to argue that (1) the object does not actually resemble that radioactive substance, and (2) even if it did resemble the radioactive substance, that substance is not hazardous within the meaning of the statute.

Defense #2:

No intent, knowledge, or reasonable belief that the object appears to be a bomb or hazardous substance.

Even if the prosecution successfully argues that the object placed resembles a bomb or hazardous substance, you may be able to avoid criminal liability by showing that you did not intend, know, or reasonably believe that the object placed resembled a bomb or hazardous substance.

This may be the case if you genuinely and honestly had no idea that the object resembled anything dangerous. However, because the mental culpability aspect of a crime can be proven with circumstantial evidence, you must have convincing evidence that you lacked the necessary criminal mental state.

Defense #3:

No public alarm or nuisance.

Another possible defense is to argue that the object placed could not have caused public alarm or nuisance although the definition of nuisance is extremely broad and covers anything that affects the health or safety of a “considerable” number of people.

But what if your object only affected a few? Then the prosecution could not show that your object is likely to cause a public nuisance, and must instead rely on the “public alarm” prong.

As discussed above, there is some ambiguity as to what is likely to create “public alarm,” and the courts apply a totality-of-the-circumstances test to determine if that element is satisfied.

Therefore, a skilled criminal defense attorney can make the case that, if your conduct affected only a few individuals, it also could not have caused public alarm, perhaps because they would not have perceived the object as dangerous.

Defense #4:

Not a public place or public building.

This is a rather simple defense if you are being charged with first-degree placing a false bomb or hazardous substance. As discussed above, a public building is one owned by the state or local government, and a public place is a place that a significant group of people has access to.

Thus, if you placed the object in a location that is neither owned by the state or local government, nor a place that can be accessed by a significant number of people, then you cannot be found guilty of the first-degree offense.

Call Us For Help.

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