An attorney for a man who was indicted after planting tools inside a mailbox in the Bronx to fish out items argued before the state's highest court in New York on Wednesday that the criminal charges against him should be less severe because he didn't know exactly how much he'd be stealing.

The Court of Appeals will consider whether an appellate court erred in reinstating a more severe felony charge against the defendant after the trial court had reduced it to a misdemeanor.

The appeal was brought by Omar Deleon, who was indicted three years ago on charges of attempted grand larceny in the third and four degrees after allegedly engaging in a so-called "mailbox fishing" theft.

A joint task force of the U.S. Postal Service and the New York City Police Department had organized a sting operation on a mailbox in the Bronx after it was the site of prior "mailbox fishing" thefts. They placed $3,050 in money orders in the mailbox and waited.

To be charged with attempted grand larceny in the third degree, an individual has to have attempted to steal more than $3,000 of someone's property.

According to prosecutors, Deleon placed a plastic water bottle coated with a sticky substance in the mailbox. The bottle was tied to a string, which could be used to pull it out of the mailbox with items stuck to it.

When he returned to the mailbox, he started to pull the bottle out when he was arrested. Members of law enforcement, after the fact, removed the bottle and found four items attached to it. They didn't record whether those were the money orders or other pieces of mail.

Deleon admitted to a postal inspector that he was promised $100 from someone else for every mailbox he fished, according to the record.

He was indicted on attempted grand larceny in the third degree because the value of the money orders inside the mailbox exceeded $3,000. That's a class D felony, which carries a maximum sentence of seven years in state prison.

Andrea Yacka-Bible, an attorney with the Criminal Appeals Bureau of the Legal Aid Society, represented Deleon before the Court of Appeals on Wednesday.

She argued that Deleon shouldn't have been indicted on attempted grand larceny in the third degree because there was no evidence he intended to steal more than $3,000, and there was no indication whether the items stuck to the water bottle were the money orders or other items.

"There are gaps in the prosecution's proof here. There's a lack of evidence and it's far too speculative on the record," Yacka-Bible said. "We have no information about how many envelopes were in the mailbox overall, how many envelopes contained money orders."

Those four envelopes could have been anything from the money orders, to a birthday card, one judge on the high court suggested.

Yacka-Bible conceded that Deleon had committed a crime in this instance, but that the facts supported a charge of attempted petit larceny instead. That's a class B misdemeanor, which would carry up to three months in jail—a much lighter penalty than the felony charge.

"We have no reasonable inferences to suggest that Mr. Deleon was going to continue to fish from the box so he could get every possible piece of mail," Yacka-Bible said. "He only caught four envelopes."

A similar position was taken at the trial court level, where a judge partially granted a motion to dismiss the indictment by Deleon. The judge, Bronx Supreme Court Justice Denis Boyle, dismissed the attempted third-degree larceny count and reduced the fourth-degree count to attempted petit larceny.

In his decision, Boyle wrote that there was insufficient evidence to show that Deleon acted with specific intent to steal any specific dollar amount of mail, which would be needed to decide which level of attempted grand larceny on which to charge him.

The Appellate Division, First Department reversed that decision and reinstated the higher charges. The panel wrote in its decision that proof of intent wasn't required, and that strict liability should have been imposed in this instance.

Assistant District Attorney David Slott from the Bronx District Attorney's Office argued before the Court of Appeals on Wednesday that Deleon's goal in the scheme was to fish out the highest value of property possible, which in the case could have exceeded $3,000.

He had an incentive to do so, Slott said, because he was getting paid by someone to fish the mailboxes for items. He would be unlikely to show up to whoever was paying him with something worthless, like a birthday card, Slott said.

"He's so dangerously close that there's nothing he can do to further the attempt of this crime without completing this crime," Slott said.

Associate Judge Rowan Wilson, who granted the case leave to appeal, said he was hesitant about prosecutors determining the level of charge against Deleon when they had planted the material inside the mailbox, and that Deleon had no way of knowing how much property he was attempting to steal.

"The thing that concerns me is that the severity of the crime isn't having anything to do with his actions, but what the government decides to put in the mailbox," Wilson said.

Slott replied that what the government planted in the mailbox was irrelevant to Deleon's gamble of stealing the most valuable contents of the mailbox, or leaving with something worthless. The fact that he could have stolen enough to justify the charge supported the indictment, he said.

"The defendant is fishing with the hope, but also with the risk that he's going to get a big payout here," Slott said.

The Court of Appeals will likely hand down a decision in the case next month.

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