People v. Saving , 749 N.Y.S.2d 191 ( 2002 )

Appeal from a judgment of Monroe County Court (Connell, J.), entered October 17, 2001, convicting defendant after a jury trial of tampering with a consumer product in the first degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified on the law and as a matter of discretion in the interest of justice by reducing the conviction of tampering with a consumer product in the first degree to tampering with a consumer product in the second degree and vacating the sentence imposed thereon and as modified the judgment is affirmed and the matter is remitted to Monroe County Court for sentencing on that conviction.

Memorandum: Defendant appeals from a judgment convicting him following a jury trial of tampering with a consumer product in the first degree (Penal Law § 145.45). Although defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction (see People v Gray, 86 NY2d 10,19), we exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). We conclude that thp evidence is legally insufficient to establish that defendant created “a substantial risk of serious physical injury to one or more persons” (Penal Law § 145.45; see § 10.00 [10]). We therefore modify the judgment by reducing the conviction of tampering with a consumer product in the first degree to tampering with a consumer product in the second degree (§ 145.40) and vacating the sentence imposed thereon, and we remit the matter to Monroe County Court for sentencing on that conviction. We have reviewed defendant’s remaining contentions and conclude that they are without merit. Present — Wisner, J.P., Hurlbutt, Scudder and Kehoe, JJ.