Although not exclusive to drug and marijuana crimes, otherwise fairly simple offenses such as Seventh Degree Criminal Possession of a Controlled Substance, New York Penal Law 220.03, and Fifth Degree Criminal Possession of Marihuana, New York Penal Law 221.10, are often complicated when the police not only arrest a person for possessing heroin, molly, MDMA, adderall, oxy, cocaine, ecstasy, marijuana or any other drug, but also charge that person with an additional crime when he or she attempts to hide or dispose it before the police can get their respective hands on controlled substance. In these circumstances the NYPD or other local police department often charges the accused not only with the PL 220.03 or PL 221.10, for example, but also with either Tampering with Physical Evidence or Attempted Tampering with Physical Evidence, a class “E” felony and class “A” misdemeanor respectively. While the latter offense, New York Penal Law 215.40, is punishable by as much as four years in prison, an attempt to commit the same crime is “only” punishable by up to one year in jail.
Because both the police and prosecutors often charge a variation of PL 215.40 whether by Desk Appearance Ticket or Central Booking processing, a charge of Tampering with Physical Evidence is far from atypical. However, an arrest and charge does not automatically equate to proof beyond a reasonable doubt if at all. This blog entry will address the fairly common scenario where an accused merely throws to the ground, drops or discards the physical evidence in question and whether that rises to the level of either a completed or attempted Tampering with Physical Evidence crime.
Tampering with Physical Evidence, New York Penal Law 215.40, occurs in two distinct manners. For the purpose of this New York criminal lawyer blog entry we will solely address the second subsection of this felony. A person is guilty of PL 215.40(2) when that person believes that certain physical evidence is about to be used in an official proceeding or prospective one and with the intent to prevent its production or use that person suppresses it by concealing, altering or destroying the evidence or by intimidating or deceiving any other person to prevent its production or use.
In People v. Parker, 2017 NY Slip Op 02208, (4th Dept. 2017), a jury convicted the defendant of Attempted Tampering with Physical Evidence after the evidence established the defendant threw bags of cocaine to the floor in the store where he was arrested. After deciding in favor of the defendant and modifying the conviction from the completed crime of PL 215.40(2) to the attempted offense, the Appellate Division Fourth Department held that dropping the bags with cocaine in plain view of the arresting officers was not the same as actually concealing those bags. While the crime of Tampering with Physical Evidence does not mandate that the evidence in question ultimately be suppressed, there must be an actual act of concealment.
While every set of facts and accompanying evidence must be examined in the context of a particular criminal case, where a person drops marijuana to the ground or a bag of some other narcotic, there may not be a felony crime, but a lesser misdemeanor. Certainly, the police might charge the more serious offense, but that does not mean it is the legal or proper one. If the accused throws the same contraband into a drain, waterway or elsewhere thereby preventing its recovery or apprehension then it is more likely the completed felony will have a solid foundation for prosecution.
Irrespective of the underlying offense you face and the associated crime of Tampering with Physical Evidence, it is incumbent upon you and your attorney to determine whether or not the particular charge is a “reach” to merely enhance the level or magnitude of crime that is the actual basis for your arrest or one that has a legitimate legal foundation. If a motion to dismiss is the means by which you challenge the offense or you and your criminal lawyer pursue a different route, having a basic understanding of PL 215.40 is critical irrespective of your defense.
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Crotty Saland PC is a New York criminal defense firm established by two former Manhattan prosecutors. The New York criminal defense attorneys at Crotty Saland PC represent clients in misdemeanor and felony arrests throughout the New York City region.