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Court Reduced Defendant’s Conviction of Tampering with Physical Evidence to Attempted Tampering – People v Zachary 2020 NY Slip Op 00165


In a case involving marijuana possession, the Appellate Division reviewed what actions amount to the crime of tampering of physical evidence.

On May 9, 2013, in the City of Newburgh, the defendant was stopped as it was suspected that he was violating the City’s open-container law. After the officer identified himself, the defendant fled.  While chasing the defendant, the officer noticed the defendant discard a plastic bag which, it was later determined, contained marijuana. The defendant was apprehended, arrested, and charged with a number of offenses, including tampering with physical evidence. Prior to trial, the defendant filed an omnibus motion to suppress the physical evidence.  The motion was denied.

At trial the defendant testified that he did not discard any marijuana and that nothing was found on him when he was searched.  Nonetheless, the jury convicted him of several charges including unlawful possession of marijuana and tampering with physical evidence.

On appeal, the defendant argued that the evidence was not legally sufficient to support his conviction of tampering with physical evidence.  While that argument was not preserved for  appellate review, in the interest of justice the Appellate Division decided to review the issue.

After viewing the evidence in the light most favorable to the prosecution, the Appellate Division agreed with the defendant and found that the evidence was legally insufficient to support a conviction of tampering with physical evidence.  According to New York Penal Law § 215.40(2), 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 any act of concealment, alteration or destruction, or by employing force, intimidation or deception against any person.”  Necessary to a finding of tampering, there must be an act of concealment with the intent to suppress the evidence.

Here, despite the defendant’s testimony to the contrary, there is evidence that the defendant discarded a bag containing marijuana. Merely discarding evidence is not the same as concealment within the meaning of the tampering with physical evidence statute.  However, the defendants actions did come dangerously close to the act of concealment intended to suppress the evidence. The court concluded that although the defendant’s actions did not arise to tampering with physical evidence, they did amount to attempted tampering with physical evidence under Penal Law §§ 110.00, 215.40(2).

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