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Attempted Tampering with Physical Evidence

New York Penal Law S 215.35 on Tampering with physical evidence, defines the following terms:

1. “Physical evidence” means any article, object, document, record or other thing of physical substance which is or is about to be produced or used as evidence in an official proceeding.
2. “Official proceeding” means any action or proceeding conducted by or before a legally constituted judicial, legislative, administrative or other governmental agency or official, in which evidence may properly be received.

New York Criminal Penal Law S 215.40 on Tampering with physical evidence, states that: A person is guilty of tampering with physical evidence when: 1. With intent that it be used or introduced in an official proceeding or a prospective official proceeding, he (a) knowingly makes, devises or prepares false physical evidence, or (b) produces or offers such evidence at such a proceeding knowing it to be false; or 2. Believing that certain physical evidence is about to be produced or used in an official proceeding or a prospective official proceeding, and intending to prevent such production or use, he suppresses it by any act of concealment, alteration or destruction, or by employing force, intimidation or deception against any person. Tampering with physical evidence is a class E felony.

Some of the terms used in this definition have their own special meaning in our law. I will now give you the meaning of the following terms: “official proceeding,” “physical evidence,” and “intent.”

OFFICIAL PROCEEDING means any action or proceeding conducted by or before a legally constituted judicial, legislative, administrative or other governmental agency or official, in which evidence may properly be received. PHYSICAL EVIDENCE means any article, object, document, record or other thing of physical substance which is or is about to be produced or used as evidence in an official proceeding.

Intent means conscious objective or purpose. Thus, a person is INTENDING to prevent the production or use of physical evidence in an official proceeding or a prospective official proceeding when his or her conscious objective or purpose is to do.

In People v Lewis 2009 decided on September 30, 2009, the defendant is charged with Resisting Arrest (P.L. § 205.30) and Attempted Tampering with Physical Evidence (P.L. §§ 110.00/215.40(2)).

In an omnibus motion, the defendant seeks: (1) dismissal of the information as facially insufficient; (2) suppression of testimony regarding any noticed statements allegedly made by defendant; (3) to preclude the People from introducing evidence of any statement or identification testimony at trial for which proper notice has not been given; and (4) to preclude the People’s use at trial of the defendant’s prior criminal history or prior uncharged criminal, vicious, or immoral conduct. The defendant also reserves the right to make additional motions as necessary.

Deponent states that deponent is informed by a police officer of the Housing PSA 6 Precinct, that informant observed defendant smoking a marijuana cigar at the above referenced location [on May 30, 2009, at about 00:15 hours]. Deponent is further informed that when informant thereafter approached defendant, defendant did run away from informant and defendant did throw said marijuana cigar to the ground, thereby preventing informant from lawfully recovering said marijuana cigar.

Deponent is further informed by informant that while informant was placing criminal defendant under arrest for the above described offenses, defendant did (I) refuse to place defendant’s hands behind defendant’s back; (ii) defendant did flail defendant’s arms; and (iii) defendant did strike informant about informant’s legs with defendant’s feet. Deponent is further informed that after informant place handcuffs on defendant, defendant did refuse to walk to or enter the police vehicle, thereby requiring informant and other police officers to carry defendant to said police vehicle.

In order for an accusatory instrument to be sufficient on its face, it must allege facts of an evidentiary character supporting or tending to support the criminal charges (C.P.L. § 100.15(3)), provide reasonable cause to believe that the defendant committed the offense charged (C.P.L. § 100.40(1)(b)), and contain non-hearsay allegations which establish, if true, every element of the offense charged and defendant’s commission thereof. Reasonable cause to believe that a person has committed an offense’ exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it. (C.P.L. § 70.10(2).) The failure of an accusatory instrument to allege an element of the charged offense is a non-waivable jurisdictional defect. In reviewing allegations in an accusatory instrument for facial sufficiency, the court should give such allegations a fair and not overly restrictive or technical reading, so long as they provide the accused with notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense.
Pursuant to C.P.L. § 170.30(1)(a), the Court may, upon motion of the defendant, dismiss an information or any count contained therein if it is defective within the meaning of § 170.35(1)(a); that statute in turn provides that an accusatory instrument is defective if it does not meet the requirements for facial sufficiency as set forth in C.P.L. § 100.40.

A person is guilty of Tampering With Physical Evidence when believing that certain physical evidence is about to be produced or used in an official proceeding or a prospective official proceeding, and intending to prevent such production or use, he [or she] suppresses it by an act of concealment, alteration or destruction, or by employing force, intimidation or deception against any person. (P.L. § 215.40(2).) For the charge of attempted tampering to be sufficient, the accusatory instrument must allege that the defendant with the intent to commit a crime, engaged in conduct that tended to effect the commission of such crime. For purposes of the tampering charge, physical evidence is defined as any article, object, document, record or other thing of physical substance which is or is about to be produced or used as evidence in an official proceeding (P.L. § 215.35(1)), and an “official proceeding” is any action or proceeding conducted by or before a legally constituted judicial, legislative, administrative or other governmental agency or official, in which evidence may properly be received.

As the statute dictates, an essential element of the crime of Tampering with Physical Evidence is that the defendant believed that the physical evidence is about to be produced or used in an official or prospective official proceeding and that the criminal defendant intended to prevent such production or use. Determining whether the allegations in an accusatory instrument are sufficient to maintain such a charge is a factual inquiry for the reviewing court.

The defendant argues that the accusatory instrument is insufficient because it: 1) fails to establish that the defendant believed any physical evidence was about to be used in an official proceeding; 2) fails to establish that the defendant had an intent to prevent the production of such physical evidence; and 3) provides only conclusory allegations as to the defendant’s purported possession of a marijuana cigar. The People do not address any of the specific arguments raised by the defendant in their response. For the reasons that follow, and upon a review of the instant accusatory instrument and relevant case law, the Court agrees with the defendant that the information is insufficient, even taken in the light most favorable to the People.

In evaluating the sufficiency of the “prospective official proceeding” element of the Tampering with Physical Evidence statute, the inquiry is focused on whether such a proceeding could readily be contemplated by the defendant. In other words, there need not be an actual or prospective proceeding pending

Facts contemplated in addressing this element include whether the accusatory information alleges that an officer was approaching the defendant and could have been readily identified by the criminal defendant as an officer.

Certainly, allegations that the defendant was placed, or was told he was being placed, under arrest would likely lead to a reasonable inference that the defendant could have readily contemplated a prospective judicial proceeding.

Finally, in certain circumstances, allegations as to a defendant’s actions upon approach by an individual identifiable as a police officer may provide a basis for a reasonable inference that the defendant contemplated a prospective official proceeding.

Furthermore, mere unqualified “approach” by an officer is generally insufficient to find that the defendant contemplated a prospective official proceeding if the accusatory instrument fails to allege facts upon which it can reasonably be inferred that the defendant was engaged in conduct and in possession of physical evidence that might lead him or her to conclude that an official proceeding may result.

Here, the accusatory instrument fails to indicate whether the officer informant was in uniform at the time he observed the defendant; nor does it allege the distance between the defendant and the informant at the time the defendant ran away from the informant, who was allegedly approaching him which would be a fact supporting an inference as to the defendant’s contemplation of a prospective official proceeding. Additionally, the accusatory instrument does not allege any facts that the defendant might have known that it was an officer who was approaching him, or from which the Court or the defendant might reasonably conclude that the officer’s approach was to recover, or because of, the marijuana cigar the defendant was allegedly smoking. Moreover, there are no allegations that the officer told the defendant to stop, otherwise identified himself, or instructed the defendant to do anything. Thus, the totality of the accusatory instrument and all reasonable inferences lead the Court to find these allegations insufficient with respect to the defendant’s belief of prospective official proceeding related to or resulting from his conduct contained in the information.

The absence of satisfactory allegations as to knowledge or belief of a prospective official proceeding, as the Court finds to be the case here, deems the accusatory instrument insufficient to form the intent to suppress its evidence and arguably leaves an element of the prima facie claim unmet. Upon consideration of the defendant’s remaining arguments, the Court finds further support for granting his motion to dismiss.

The second element of a prima facie case of Tampering with Physical Evidence relevant to the instant bribery case requires allegations tending to show the defendant’s intent to prevent production in connection with an official proceeding. As stated above, this intent may be inferred from a finding that the defendant contemplated a prospective official proceeding, and from a review of the factual circumstances and defendant’s alleged conduct. The facts that courts have considered in evaluating this element relate to the substance of the physical evidence at issue and what the defendant’s alleged conduct was that the People argue constitutes concealment, alteration or destruction. Conduct constituting a common use or action with the item at issue does not favor an inference of intent to prevent production.

Here, the allegations in the accusatory instrument state that the criminal defendant “threw down” the cigar to the ground. This allegation alone does not lend to the reasonable conclusion that defendant intended to conceal, alter, or destroy the cigar. Indeed, it is quite reasonable that the defendant merely intended to abandon the cigar or was through smoking it. Actions that frequently result in inference of intent to conceal, alter, or destroy include swallowing, while throwing is often found insufficient.

The act of throwing to the ground extends beyond the enumerated conduct that evinces tampering under the statute. Here, the defendant’s alleged conduct, throwing down the cigar after turning to run as the informant approached him, is inconclusive at best. First, because the People have failed to sufficiently allege facts indicating that the defendant reasonably contemplated, or did contemplate, a forthcoming official proceeding, defendant’s act of running can be viewed as indicative of concern other than fear of arrest or a proceeding resulting from illicit conduct. Second, as will be discussed below, because the People fail to adequately allege that defendant was smoking a marijuana cigar, his running and subsequent throwing down of the cigar are not reasonably construed as intent to conceal, alter, or destroy physical evidence that he believes is likely to be used in any official proceeding. Finally, the act of throwing something to the ground itself is not of a type, given the factual allegations provided, that leads to a reasonable inference of tampering. Simply, throwing a cigarette to the ground does not normally alter or destroy it, and it certainly does not conceal it. The officer’s inability to recover the cigar is not the measure for establishing this element. Therefore, the accusatory instrument does not adequately allege facts from which can be inferred the criminal defendant’s intent to prevent the recovery of physical evidence.

Courts have also addressed the sufficiency of allegations as to the nature of the physical evidence allegedly tampered with. Logically, such allegations inform whether the Court could reasonably infer the defendant’s intent to tamper or contemplation that his or her use or possession could lead to a prospective official proceeding, and is particularly applicable where the charge is one of attempted tampering.

Courts have, in fact, relied on allegations that the officer’s personal experience and training led him or her to conclude that the defendant was in possession of a particular controlled substance or marijuana in concluding that the defendant tampered with physical evidence.

Absent adequate, or even minimal, allegations as to what the informant was able to smell or observe that made him believe that the cigar was marijuana and the experiential or other basis for his conclusion, the Court cannot speculate or make unsubstantiated conclusions as to the nature of the item discarded by the defendant. Here, there is only a vague allegation as to the defendant’s smoking of a marijuana cigar and the informant fails to provide any basis for his conclusion. While this in and of itself is not dispositive, it does inform the Court’s review of the circumstances underlying the charges against the defendant and analysis of the other elements of the prima facie claim of Attempted Tampering.

Upon consideration of the sequence of events alleged by the accusatory instrument, the Court cannot reasonably conclude that the defendant attempted to tamper with physical evidence. The information fails to allege specific and sufficient facts for such a conclusion. Therefore, the Court finds that the information is facially insufficient.

Defendant’s motion to suppress his statements to law enforcement officials is granted to the extent of directing that a Huntley/Dunaway hearing be conducted prior to trial. Defendant’s motion to preclude at trial the use of any statements or identification evidence for which notice has not been given is denied without prejudice to renew should the People intend to introduce evidence of this type for which the People did not serve proper notice on defendant.

Defendant’s motion for pretrial discovery and a Bill of Particulars is granted to the extent provided by the People in their Voluntary Disclosure Form. The People are reminded of their continuing Brady v. Maryland, People v. Rosario,and related responsibilities. Defendant’s motion to preclude the introduction at trial of evidence of defendant’s prior convictions or bad acts pursuant to People v. Sandoval is reserved for the trial court.

For the reasons discussed above, the defendant’s motion to dismiss on facial insufficiency grounds is granted with respect to the count of Attempted Tampering with Physical Evidence. A Huntley/Dunaway hearing is granted. The preclusion at trial of evidence of defendant’s prior convictions or bad acts is reserved for the trial court.

Thus if you or your loved ones has been accused of the above crime, you need an expert counsel to guide you in court. Experts and experienced New York Criminal Defense Attorneys at Stephen Bilkis and Associates can help and assist you during the entire criminal case, visit their offices located around New York Metropolitan for free legal consultation.

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