DECISION and ORDER ISSUE: What act or acts constitute “concealment” and to what extent must the Defendant exhibit the requisite “mens rea” for “concealment” pursuant to PL §215.40(2) Tampering with Physical Evidence. Does the act of throwing packets of narcotics from a moving vehicle before a Vehicle and Traffic stop constitute the act of concealment and exhibit a “mens rea” for the crime of Tampering with physical evidence. FACTS: On January 3rd, 2019, at approximately 7:43pm, on State Route 17 in Sullivan County, NY, the Defendant John Irby was arrested by the New York State Police and ultimately charged with the Crime of Tampering with Physical Evidence [Penal Law §215.40(2), Criminal Possession of a Controlled Substance in the Seventh Degree [Penal Law §220.02], Criminal Impersonation in the Second Degree [190.25(1)], Criminal Possession of a Hypodermic Instrument [Penal Law §220.45], Aggravated Unlicensed Operation of a Motor Vehicle in the Second Degree [Penal Law §511(2)(a)(iv) and Operating a Motor Vehicle while the Registration or privilege is suspended or revoked [V&TL §512]. On that cold winter’s night, a New York State Trooper observed the Defendant driving a white Suzuki at approximately 7:43 pm in the Town of Liberty on State Route 17 without a valid registration1. The Trooper first activated his emergency lights on his marked police vehicle to initiate the vehicle and traffic stop, and then observed the operator of the vehicle throw a small white object out of the driver side window of the moving vehicle2. The operator then pulled the vehicle to the shoulder of the highway and identified himself with a false name. The Trooper placed the Defendant under arrest for a Vehicle and Traffic violation and then searched the vicinity in which he had observed the defendant throw something and found a small white bundle of heroin and a hypodermic needle on the shoulder of the highway. After the narcotics were found, and the Defendant was taken to the station, the Defendant admitted he had given a false name during the stop because he knew his driver’s license was suspended but did not admit to possession of the narcotics. Procedural Status: This matter comes before the Court by way of the Defendant’s Order to Show Cause requesting an Order of Dismissal to Count One of the Indictment for facial insufficiency, or in the alternative, an Order reducing Count One of the Indictment from Tampering with Physical Evidence to an Attempt. The Defense argues that the charge of Tampering with Physical Evidence pursuant to PL 215.40(2), a Class E Felony, requires the prosecution to allege and prove that the Defendant “suppressed the evidence by any act of concealment, alteration, or destruction…” [emphasis added]. The Defense argues that since the Prosecution alleges in the Indictment only that the Defendant “did throw multiple glassine envelopes containing heroin that were packaged together from the vehicle he was operating…” and omitted the element of “concealment, alteration or destruction” in the Indictment it is facially insufficient and must be dismissed. It is the Defendant’s contention that the act of throwing the narcotics from the vehicle was not an act of “concealment”, and does not demonstrate “mens rea”. Therefore he cannot be charged under CPL §215.40(2), but at worst may be an Attempt which would be a Class A Misdemeanor. Defendant cites People v. Parker, 148 AD3d 1583 [Appellate Div. 4th Dept. 2017] in which the Appellate Court reduced Parker’s jury conviction of Tampering with Physical Evidence, to Attempted Tampering with Physical Evidence. In reducing the Defendant’s charge to an Attempt the Appellate Division held that the Prosecution had failed to prove the act of “concealment.” The Court stated that the evidence at trial established that the Officer observed the Defendant throw bags of suspected crack cocaine onto the floor as he passed through the front entrance of the store. Since the act occurred in plain view of the arresting officers, the court concluded that the evidence was legally insufficient to establish the act of “concealment”, ie, the bags were not being concealed because the Officers could see them. Defense also relies on People v. Lewis, 25 Misc. 3d 1209 [Crim. Ct. City of NY, 2009] in which the Trial court held that the Prosecution had failed to establish the “concealed” element of the crime charged when they failed to set forth facts to establish that the defendant had concealed the evidence. In Lewis the Defendant was approached by a Police Officer who had observed the Defendant smoking a marijuana cigar. Upon being approached the Defendant dropped the marijuana cigar to the ground and ran. The Court held that the act of dropping the cigar to the ground was not proof of the act of “concealment” which is an element of the crime of Tampering. In so holding, the Court stated that to support the crime of Tampering there must be “allegations tending to show the defendant’s intent to prevent production in connection with an official proceeding.” In evaluating whether the Defendant exhibited an intent to prevent production of the evidence in an official proceeding the Court must consider whether the defendant’s alleged conduct constitutes “concealment, alteration or destruction.” In dismissing the Lewis Tampering charge as legally insufficient, the Court stated that an act which exhibits a common use of the item in question, does not favor an inference of intent to prevent production at an official proceeding. Therefore, the Court held that the fact that the Lewis defendant simply dropped the “cigar” at his feet was not indicative of his attempt to conceal the “cigar” from the police because it was equally likely that he could have simply dropped the cigar at his feet in an act intended to extinguish the cigar as a common use of cigar smoking. The Prosecution argues that according to 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.” In Indictment #76-2019, the Defendant was charged in Count 1 as follows in violation of Penal Law §215.40(2): “The Defendant, JOHN IRBY, 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, to wit,….JOHN IRBY did throw multiple glassine envelopes containing heroin that were packaged together from the vehicle he was operating on State Route 17, believing said physical evidence was about to be secured and then used in a prospective proceeding by a uniformed New York State Police Officer who was attempting to pull over defendant, IRBY, as he was in violation of the Vehicle and Traffic Law. The Prosecution argues that the Indictment clearly sets forth “facts of an evidentiary character supporting or tending to support the charges, provides “reasonable cause to believe that the defendant committed the offense charged” and contains non hearsay allegations which “establish, if true, every element of the offense charged and defendant’s commission thereof,” and is therefore legally sufficient. The Prosecution cites People v. Eaglesgrave, 108 A.D.3d 434 [Appellate Division First Dept, 2013]. In Eaglesgrave, the Appellate Division held that the offense of Tampering does not require the actual suppression of physical evidence, but only that a defendant perform an act of concealment while intending to suppress the evidence. The court upheld the trial court’s ruling and found that the verdict was based on legally sufficient evidence and was not against the weight of the evidence. In so upholding the trial court, the Eaglesgrave Appellate Court concluded: “Regardless of whether the defendant is successful in suppressing the evidence, once an act of concealment is completed with the requisite “mens rea”, the offense of Tampering has been committed.” The Prosecution also relies upon Frayer v. People, 684 P.2d 927 [Supreme Ct Colorado, Appellate Division 1984], which granted certiorari to review the decision of the Court of Appeals (Appellate Div) in People v. Frayer, 661 P.2d 1189, affirming the defendant Frayer’s conviction for Tampering with Physical Evidence. In Frayer, the defendant was arrested for “investigation of forged prescription” after she purchased a bottle of hycodan, a narcotic cough syrup. It is important to note here that in Colorado the mere possession of hycodan is a crime. When arrested the Defendant struggled with police and threw the bottle toward a waiting vehicle. The bottle broke as a result of Frayer’s efforts to distance herself from the cough syrup. In affirming the Trial court’s decision, the Appellate Division agreed that the offense of Tampering with physical evidence depends on the defendant’s conduct and intent. In finding that the Defendant Frayer had committed the act of Tampering with Physical Evidence, the court found that Frayer did possess the requisite belief that an official proceeding was “about to be instituted” when she threw the illegal bottle of hycodan at the waiting vehicle during her arrest and that her act of discarding the hycodan bottle “evidenced an intent to impair the verity or availability [of the hycodan] in the prospective official proceeding. OPINION To determine the legal sufficiency of an Indictment the Court may rely on CPL §200.50. CPL §200.50(7) states that a properly formed Indictment must contain: 7. A plain and concise factual statement in each count which, without allegations of an evidentiary nature, (a) asserts facts supporting every element of the offense charged and the defendant’s or defendants’ commission thereof with sufficient precision to clearly apprise the defendant or defendants of the conduct which is the subject of the accusation. Based on this analysis, the Court finds that this Indictment is sufficient on its face and therefore Defendant’s Motion to dismiss for facial insufficiency is denied. The Court now turns it attention to the sufficiency of the charge of Tampering with Physical Evidence pursuant to PL§215.40(2) which provides: 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. In the case at bar, the Court is being asked to determine if there is a sufficient act of “concealment”, and if the Defendant had the requisite “mens rea” to “conceal” the evidence so as to prevent its use at a prospective official proceeding, when he threw the heroin from the window of his moving vehicle. The first step in the court’s analysis is determining whether this defendant committed an act of “concealment”. Prior to the vehicle and traffic stop of this Defendant, the arresting officer employed his emergency lights on his marked vehicle to initiate the stop of the Defendant’s vehicle. The Defendant stopped his car pursuant to the Police action and knew that he was being pulled over by the police. In this regard, the Appellate Court in People v. Eaglesgrave supra held “The offense of Tampering does not require the actual suppression of physical evidence, but only that a defendant perform an act of concealment while intending to suppress the evidence.” And further, “Regardless of whether the defendant is successful in suppressing the evidence, once an act of concealment is completed with the requisite “mens rea”, the offense of Tampering has been committed.” Here the Defendant was not successful in suppressing the narcotics but completed the act of throwing the narcotic out of his vehicle to prevent the police from finding it in his vehicle. The second step in the Court’s analysis is to determine if the Defendant had the requisite “mens rea” to constitute the act of concealment. At the time of the stop, the Defendant first gave a false name and then later admitted his true identity. Since the defendant was fully cognizant of his illegal driving enough to give a false name to the officer at the stop, it is obvious that the Defendant knew that he was about to be arrested for, at the very least, driving with a suspended driver’s license. And certainly if the Defendant feared arrest on the basis of a suspended driver’s license or possession of drugs, he knew that a prospective official proceeding was imminent. And if a prospective official proceeding was imminent on his driving with a suspended driver’s license, it would likely follow that the possession of an illegal narcotics would only add to his legal woes. Therefore the Defendant intended to and did in fact dispose of the heroin packet so it could not be produced at said impending prospective proceeding. Taking the facts of this case in a light most favorable to the Prosecution (See People v. Contes, 60 N.Y.2d 620), the Court finds that the Defendant knew an official proceeding was imminent when he saw the approaching flashing lights of the Police Vehicle. The Defendant thereafter gave a false name to the officer, further indicating that he was well aware of his criminal conduct and that had he used his real name an official proceeding was imminent due to his unlicensed operation of a motor vehicle. The Defendant’s intent or “mens rea” is evident from the Defendant’s act of throwing the illegal narcotics in the dark of night from his darkened vehicle on the shoulder of the highway just prior to the stop. Such an act of concealment, under cover of darkness3, is an act which gives every indication that the Defendant knew, that an official proceeding was about to be instituted, and is an act which evidences the Defendant’s intent to impair the ability of the arresting officer to seize the illegal narcotics for his arrest proceeding and prosecution. Defendant’s act of “concealment” just prior to being stopped on a State highway is an act evidencing the requisite “mens rea” of “concealment” which constitutes a necessary element of the charge of Tampering. The Court does not agree with the Defense that People v. Parker and People v. Lewis are on point with the case at bar. The cases offered by the Defense can be distinguished from the case at bar. The Defendant herein knew that an official proceeding was imminent as a result of his vehicle being pulled over by a clearly marked Police vehicle with its flashing emergency lights. Not only did the Defendant know that an official proceeding would be imminent given his suspended driver’s license but he further had in his possession an illegal narcotic which he quickly jettison from the vehicle knowing that being caught in possession of such evidence would lead to further Criminal charges. Unlike the Defendant in Parker, who dropped the marijuana cigar at his feet in plain view of the arresting Police Officers, this Defendant jettisoned the narcotics from a moving vehicle in the dark of night. An act which could easily have been overlooked by a less observant Police Officer. In addition, the act of throwing the narcotic from the vehicle window in the dark of night is not an act which could conceivably be considered an act which exhibits a common use of the item in question. Unlike the Defendant in Lewis who could equally have been attempting to extinguish his “marijuana cigar” as opposed to concealing it, there is no other common inference that can be drawn from the Defendant’s act of throwing an illegal narcotic and paraphernalia from a darkened window in the dead of night. Also, this Defendant knew he was being pursued by a Police Vehicle as distinguished from the defendant in Lewis who could have just as easily been running simply because he was being approached by a stranger. The act here is not capable of an innocent or common usage such as dropping a cigar or cigarette to the ground. Also the act here at bar was designed to prevent the Police from recovering the contraband. It is the finding of this Court that the Indictment is legally sufficient to support the charge of Tampering with Physical Evidence in violation of PL §215.40 and is not an Attempt to conceal/Tamper with Evidence. Based on the foregoing, it is ORDERED that Defendant’s motion for an Order dismissing Count one of the Indictment as facially insufficient is denied; and it is further ORDERED, that Defendant’s motion for an Order reducing Count One of the Indictment to Attempted Tampering with Physical Evidence is denied. This shall constitute the Decision and Order of this Court. Dated: December 20th, 2019 Monticello, NY
