People v. Lewis, 2009 NY Slip Op 32277(U) (N.Y. Crim. Ct. 9/30/2009)
| Decision Date | 30 September 2009 |
| Docket Number | 2009NY043414 |
| Citation | 2009 NY Slip Op 32277 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK v. JERRELL LEWIS, Defendant. |
| Court | New York Criminal Court |
The defendant is charged with Resisting Arrest (P.L. § 205.30) and Attempted Tampering with Physical Evidence (P.L. §§ 110.00/215.40(2)).
In an omnibus motion, the defendant seeks: (1) dismissal of the information as facially insufficient; (2) suppression of testimony regarding any noticed statements allegedly made by defendant; (3) to preclude the People from introducing evidence of any statement or identification testimony at trial for which proper notice has not been given; and (4) to preclude the People's use at trial of the defendant's prior criminal history or prior uncharged criminal, vicious, or immoral conduct. The defendant also reserves the right to make additional motions as necessary.
The motions are decided as follows:
FACIAL INSUFFICIENCY MOTION
As stated above, the defendant has moved to dismiss the accusatory instrument as it pertains to the attempted tampering charge on facial insufficiency grounds for its failure to allege all the elements of that offense.
The factual part of the information in this case, which is signed by a police officer of the Housing PSA 6 Precinct, of the New York City Police Department, states as follows:
Deponent states that deponent is informed by [a police officer] . . . of the Housing PSA 6 Precinct, that informant observed defendant smoking a marijuana cigar at the above referenced location [on May 30, 2009, at about 00:15 hours]. Deponent is further informed that when informant thereafter approached defendant, defendant did run away from informant and defendant did throw said marijuana cigar to the ground, thereby preventing informant from lawfully recovering said marijuana cigar.
Deponent is further informed by informant . . . that while informant was placing defendant under arrest for the above described offenses, defendant did (I) refuse to place defendant's hands behind defendant's back; (ii) defendant did flail defendant's arms; and (iii) defendant did strike informant about informant's legs with defendant's feet. Deponent is further informed that after informant place handcuffs on defendant, defendant did refuse to walk to or enter the police vehicle, thereby requiring informant and other police officers to carry defendant to said police vehicle.
A supporting deposition signed by the informant police officer was filed by the People in this case.
In order for an accusatory instrument to be sufficient on its face, it must allege "facts of an evidentiary character supporting or tending to support the charges" (C.P.L. § 100.15(3)), provide "reasonable cause to believe that the defendant committed the offense charged" (C.P.L. § 100.40(1)(b)), and contain non-hearsay allegations which "establish, if true, every element of the offense charged and defendant's commission thereof" (C.P.L. § 100.40(1)(c); see also People v. Alejandro, 70 N.Y.2d 133 [1987]). "`Reasonable cause to believe that a person has committed an offense' exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it." (C.P.L. § 70.10(2).) The failure of an accusatory instrument to allege an element of the charged offense is a non-waivable jurisdictional defect. (See People v. Kalin, 12 N.Y.3d 225 [2009]; People v. Jones, 9 N.Y.3d 259, 262 [2008].) In reviewing allegations in an accusatory instrument for facial sufficiency, the court should give such allegations "a fair and not overly restrictive or technical reading," so long as they provide the accused with notice sufficient to prepare a defense and "are adequately detailed to prevent a defendant from being tried twice for the same offense[.]" (People v. Casey, 95 N.Y.2d 354, 360 [2000].)
Pursuant to C.P.L. § 170.30(1)(a), the Court may, upon motion of the defendant, dismiss an information or any count contained therein if it is defective within the meaning of § 170.35(1)(a); that statute in turn provides that an accusatory instrument is defective if it does not meet the requirements for facial sufficiency as set forth in C.P.L. § 100.40.
A person is guilty of Tampering With Physical Evidence when "[b]elieving 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 an act of concealment, alteration or destruction, or by employing force, intimidation or deception against any person." (P.L. § 215.40(2).) For the charge of attempted tampering to be sufficient, the accusatory instrument must allege that the defendant "with the intent to commit a crime," engaged in conduct that "tend[ed] to effect the commission of such crime." (P.L. § 110.00; see also People v. Palmer, 176 Misc. 2d 813 [Crim. Ct., N.Y. Co. 1998].) For purposes of the tampering charge, "physical evidence" is defined as "any article, object, document, record or other thing of physical substance which is or is about to be produced or used as evidence in an official proceeding" (P.L. § 215.35(1)), and an "official proceeding" is "any action or proceeding conducted by or before a legally constituted judicial, legislative, administrative or other governmental agency or official, in which evidence may properly be received[]" (P.L. § 215.35(2)).
As the statute dictates, "an essential element of the crime of Tampering with Physical Evidence is that the defendant believed that the physical evidence is about to be produced or used in an official or prospective official proceeding and that the defendant intended to prevent such production or use." (People v. Simon, 145 Misc. 2d 518, 523 [Crim. Ct., N.Y. Co. 1989].) Determining whether the allegations in an accusatory instrument are sufficient to maintain such a charge is a factual inquiry for the reviewing court.
The defendant argues that the accusatory instrument is insufficient because it: 1) fails to establish that the defendant believed any physical evidence was about to be used in an official proceeding; 2) fails to establish that the defendant had an intent to prevent the production of such physical evidence; and 3) provides only conclusory allegations as to the defendant's purported possession of a marijuana cigar. The People do not address any of the specific arguments raised by the defendant in their response. For the reasons that follow, and upon a review of the instant accusatory instrument and relevant case law, the Court agrees with the defendant that the information is insufficient, even taken in the light most favorable to the People.
In evaluating the sufficiency of the "prospective official proceeding" element of the Tampering with Physical Evidence statute, the inquiry is focused on whether such a proceeding could "readily be contemplated" by the defendant. In other words, there need not be an actual or prospective proceeding pending. (See People v. Nicholas, 70 A.D.2d 804 [1st Dept. 1979] (); see also People v. Santiago, 273 A.D.2d 488 [2d Dept. 2000]; People v. Mercedes, 194 Misc. 2d 731, 735 [Crim. Ct., N.Y. Co. 2003]; People v. Mitchell, 17 Misc. 3d 1103(A) [Crim. Ct., Kings Co. 2007]; cf. People v. Traynham, 95 Misc. 2d 145, 147 [Crim. Ct., N.Y. Co. 1978] ().)
Facts contemplated in addressing this element include whether the accusatory information alleges that an officer was approaching the defendant and could have been readily identified by the defendant as an officer (see Mercedes, 194 Misc. 2d at 735), such as by being in uniform (see Palmer, 176 Misc. 2d at 817; Mitchell, 17 Misc. 3d 1103(A)) or identifying herself as a police officer (see People v. Roman, 23 Misc. 3d 56, 58 [App. Term, 1st Dept. 2009] (); see also Palmer, 176 Misc. 2d at 817; Mitchell, 17 Misc. 3d 1103(A)); and whether such an officer directs the defendant to stop or otherwise instructs the defendant (see Mitchell, 17 Misc. 3d 1103(A); Palmer, 176 Misc. 2d at 815 ()).
Certainly, allegations that the defendant was placed, or was told he was being placed, under arrest would likely lead to a reasonable inference that the defendant could have readily contemplated a prospective judicial proceeding. (See People v. Bass, 15 A.D.3d 287 [1st Dept. 2005], lv. denied, 4 N.Y.3d 851 [2005]; People v. Green, 54 A.D.3d 603, 603-04 [1st Dept. 2008], lv. denied, 11 N.Y.3d 897 [2008].)
Finally, in certain circumstances, allegations as to a defendant's actions upon approach by an individual identifiable as a police officer may provide a basis for a reasonable inference that the defendant contemplated a prospective official proceeding. (See Mercedes, 194 Misc. 2d at 735 (...
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