As I often note, NY criminal defense attorneys must always be aware of decisions by courts where they routinely practice. Without definitive guidance by a higher court, decisions on similar matters can be inconsistent within the same courthouse. This is appears to be the case, in part, in the recent case of People v. David Bula, 2008NY052218. On January 20, 2009, I drafted an entry on People v. Edward Beam. In that case, a New York County Criminal Court Judge agreed with a a criminal defense attorney that the charges against his client for Attempted Tampering with Physical Evidence, Obstruction of Governmental Administration, and other charges were not sufficiently established in the criminal court complaint.
In Bula, the defendant was also charged with Attempted Tampering of Physical Evidence and Obstruction of Governmental Administration. He was also charged with Criminal Possession of Marijuana. Like the Beam case, the police observed the defendant smoking what the believed to be a marijuana cigarette (the “legal” term for a joint or blunt). The defendant passed the alleged marijuana cigarette back and forth with another individual. When the police approached, the defendant was alleged to have thrown the marijuana cigarette into the river. The police recovered a bag of alleged marijuana from the ground near the other individual.
POSSESSION OF MARIJUANA
In finding the complaint against the defendant to be sufficient, the court noted that even though the bag of marijuana was not held or on the defendant’s person, the totality of the facts made it clear that he “constructively” possessed the marijuana. Specifically, the court found that “[u]nder the particular circumstances of this case, where the defendant and separately charged individual are alleged to have been smoking what was identified by the deponent officer, based upon his training and experience, as a marihuana cigarette, it is reasonable to infer that the marihuana cigarette was connected to the plastic ziplock bag containing marihuana residue which was recovered from the ground near the separately charged individual’s foot. Accordingly, it is further reasonable to infer that the defendant, who was alleged to have physically possessed the marihuana cigarette, exercised dominion and control over the plastic ziplock bag which was the likely source of the marihuana in the cigarette.”
OBSTRUCTION OF GOVERNMENTAL ADMINISTRATION
Pursuant to Penal Law 195.05, “[a] person is guilty of obstructing governmental administration when he intentionally obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference, or by means of any independently unlawful act . . . “
The court found that the complaint was sufficient as to this charge because “the concept of physical interference ‘has been construed to require neither the use by a defendant of direct physical force against the officer, nor even any direct physical contact between the two’ ” (People v. Vargas, 179 Misc 2d 236, 239 [Crim Ct, NY County 1998][quoting People v. Ravizee, 146 Misc 2d 679, 682 [Crim Ct, NY County 1990]). Accordingly, allegations that a defendant hid a burning marihuana cigar behind his back, broke it into pieces, and then threw it away as a police officer approached to arrest him have been found to provide reasonable cause to believe that the defendant committed the offense of obstructing governmental administration (see People v. Mercedes, 194 Misc 2d 731 [Crim Ct, NY County 2003]). Here, the acto of throwing the marijuana cigarette into the river was sufficient “physical interference.”
ATTEMPTED TAMPERING WITH PHYSICAL EVIDENCE
Pursuant to 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 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.” According to the court, “the factual allegations and the reasonable inferences to be drawn from them provide probable cause to believe that the defendant possessed, and discarded as police approached, a burning marihuana cigarette. The act of discarding a physical object, possession of which is illegal, while being approached by uniformed police officers (see People v. Mitchell, 17 Misc 3d 1103A [Crim Ct, Kings County 2007], citing People v. Mercedes, 194 Misc 2d 731 [Crim Ct, NY County 2003] and People v. Palmer, 176 Misc 2d 813 [Crim Ct, NY County 1998]) tends to demonstrate the defendant’s belief that the object discarded would have been used in a prospective proceeding, as well his intent to prevent such production or use.”
As clearly demonstrated by the legal updates to our blog, the criminal defense attorneys at Crotty Saland PC are always trying to review recent cases, examine the law, and apply our research and findings to our clients’ benefit. While no honest attorney can guarantee a particular outcome on any case, we will take the steps to address your concerns, ascertain the strongest defense and implement a plan to set that defense into motion.