Attempted Tampering with Physical Evidence (New York Penal Law 、110.00/215.40): Does the Complaint Need To Establish the Existence of the Contraband?

According to New York Penal Law 、215.40(2), a person is guilty of Tampering with Physical Evidence when “[b]elieving that certain 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 an act of concealment, alteration or destruction, or by employing force, intimidation or deception against any person.” New York criminal defense attorneys, such as the former Manhattan prosecutors at Crotty Saland PC, can tell you that this crime is often charged as Attempted Tampering with Physical Evidence in an all too common scenario played out on the streets of New York City when a person discards contraband (marijuana, cocaine, heroin or even a weapon such as a knife or gun) after being confronted by the police. The question that exists in these cases is must the complaint charging the individual establish the officer’s knowledge as to what the evidence is as well as the basis of that knowledge?

In a decision rendered on July 8, 2009 in Manhattan Criminal, People v. Anthony Estrada, 2009NY005091, a man was alleged to have thrown marijuana leaves up into the air as the police attempted to arrest him. As a result, the the officer was unable to recover the alleged contraband. In dismissing the complaint, the court found, among other things, that the officer did not establish that the substance in question was marijuana.

A full review of the court’s decision after the jump…
In dismissing the complaint, the judge observed that the prosecution failed to establish that the defendant knew of an official proceeding or impending one. In other words, there was nothing in the complaint indicating the defendant knew he was being watched, was advised he was being arrested or that he was even being approached by the police.

The court further found that the defendant had not attempted to tamper with the evidence by concealing, altering or destroying the alleged marijuana. What the defendant was accused of doing was throwing the substance in the air. As in People v. Beam, merely dropping (or in this case throwing) the alleged contraband is not sufficient.

Lastly, as noted in Beam, the prosecution must establish that the contraband here was marijuana based on something more than mere speculation.

As a result of the prosecution’s failure to establish the defendant’s knowledge, intent and contraband, the court dismissed the charge of Attempted Tampering with Physical Evidence.

If you or a loved one is accused of Attempted Tampering with Physical Evidence or any related charge, contact the New York criminal defense lawyers at Crotty Saland PC so we can begin to protect your rights, liberty and integrity.

Updated: