People v. Palmer

• Decision Date: 07 April 1998
• Citation: 176 Misc.2d 813,674 N.Y.S.2d 566
• Parties: , 1998 N.Y. Slip Op. 98,295 The PEOPLE of the State of New York, Plaintiff, v. Steve PALMER, Defendant.
• Court: New York City Court

Page 566

674 N.Y.S.2d 566

176 Misc.2d 813, 1998 N.Y. Slip Op. 98,295

The PEOPLE of the State of New York, Plaintiff, v. Steve PALMER, Defendant.

Criminal Court of the City of New York,

New York County.

April 7, 1998.

Pariser & Vogelman, New York City (Donald H. Vogelman, of counsel), for defendant.

Robert M. Morgenthau, District Attorney of New York County (Judith Weinstock, of counsel), for plaintiff.

PAUL G. FEINMAN, Judge.

At the April 2, 1998 calendar call, this court decided defendant's omnibus motion. The court issued an order which, inter alia, denied defendant's motion to dismiss the charge of attempted tampering with physical evidence and granted his motion to dismiss the charge of disorderly conduct. This constitutes the court's written decision explaining its reasoning for its prior order.

Motion to Dismiss for Facial Insufficiency

A misdemeanor information is sufficient on its face when it has both an accusatory part designating each and every offense charged and a factual part containing a statement of the complainant that alleges facts of an evidentiary nature that tend to support the charges (CPL § 100.15[2], [3] ). The non-hearsay allegations must provide reasonable cause to believe that the defendant committed the offense(s) charged, and must establish, if true, every element of the offense charged (CPL § 100.40[1] ). An accusatory instrument is facially insufficient if it fails to allege non-hearsay facts of an evidentiary nature that support or tend to support each and every element of the offenses charged and the defendant's commission thereof. (CPL §§ 100.15[3], 100.40[1][c]; People v. Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d 927, 511 N.E.2d 71 [1987] ).

1. Attempted Tampering with Physical Evidence (PL § 110/215/40[2] )

A facially sufficient accusatory instrument charging a defendant with tampering with physical evidence must allege that defendant, with intent to commit a crime, engaged in conduct that tended to effect the commission of that crime (PL § 110.00) and, specifically, defendant "[b]elieving that certain physical evidence [was] about to be produced or used in an official proceeding or a prospective official proceeding," "intend[ed] to prevent such production or use" by "concealment, alteration or destruction." (PL § 215.40[2] ). "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." (PL § 215.35[1] ). "Official proceeding" means "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." (PL § 215.35[2] ). Here, the accusatory instrument alleges that defendant fled from Police Officer Sandra Martinez, and when she ordered him to stop, he placed in his mouth "a clear plastic bag containing a substance resembling marijuana." Officer Martinez then "ordered" him to spit it out, but "[d]efendant refused, continued chewing said substance, and swallowed said substance." Defendant contends that the accusatory instrument lacks sufficient non-hearsay factual allegations to establish reasonable cause to believe that defendant attempted to tamper with physical evidence.

An examination of the published case law shows an evolution in the court's interpretation of this statute. In People v. Traynham, 95 Misc.2d 145, 407 N.Y.S.2d 408 (N.Y.City Crim.Ct.1978), defendant allegedly purchased a glassine envelope containing white powder, but when approached by three police officers, put the envelope in his mouth, and it was never recovered. The court dismissed the charge of criminal tampering with physical evidence, holding that the language of PL § 215.40(2) requiring that there be an "official proceeding or a prospective official proceeding" at which the evidence would be presented, did not include "inquiry, investigation or arrest by the police" (95 Misc.2d at 147, 407 N.Y.S.2d 408). Subsequently, in People v. Nicholas, 70 A.D.2d 804, 417 N.Y.S.2d 495 (1st Dept.1979), the court focused on the "official proceeding" and determined that a proceeding need not exist at the time of the crime, holding that although defendant's act in moving a dead body was done prior to an official proceeding, "a prospective official proceeding could readily be contemplated" (70 A.D. at 805, 75 N.Y.S. 1124). A number of cases involving murder victims whose bodies were concealed or moved have followed the same reasoning. (See, e.g., People v. DeRosa, 165 A.D.2d 831, 560 N.Y.S.2d 215 [2d Dept.], app. denied, 76 N.Y.2d 985, 563 N.Y.S.2d 773, 565 N.E.2d 522 [1990] [burial of murder victim]; People v. Hayes, 179 A.D.2d 438, 578 N.Y.S.2d 558 [1st Dept.], app. denied, 79 N.Y.2d 858, 580 N.Y.S.2d 730, 588 N.E.2d 765 [1992] [murder, dismemberment, and dumping of body]; People v. Cosby, 200 A.D.2d 682, 606 N.Y.S.2d 753 [2d Dept.], app denied, 83 N.Y.2d 851, 612 N.Y.S.2d 382, 634 N.E.2d 983 [1994] [murder, removal of body, cleaning of scene of death].) In all these cases, it can be assumed that "due to the condition of the bodies and the manner of death and disposal," there was reason to "conclude that a prospective official proceeding could be contemplated" (People v. Pappas, 163 Misc.2d 1029, 1036, 623 N.Y.S.2d 83 [Kings Co.Crim.Ct.1994] ). In contrast, where two bodies were discovered in the trunk of an abandoned car, and it was determined that they died of drug overdoses, but it could not be determined when they died or that defendant had anything to do with their deaths, the accusatory instrument was dismissed as there could have been no contemplation of an official proceeding, and the accusations that defendant had removed human remains from their place of death and had attempted to tamper with physical evidence lacked prima facie evidence of their commission. (People v. Pappas, supra, 163 Misc.2d 1029, 623 N.Y.S.2d 83).

In other types of cases, the courts have closely examined the circumstances of the alleged crime and quality of the evidence to determine whether the charge of tampering was sufficient. For instance, in People v. Barreiro, 149 A.D.2d 600, 540 N.Y.S.2d 278 (2d Dept. 1989), defendant's actions in taking the gun used in a shooting, wiping it clean of fingerprints, and concealing it in her sister's apartment was held to be tampering. Similarly, in People v. Patterson, 169 Misc.2d 787, 646 N.Y.S.2d 762 (Sup.Ct.Kings Co.1996), following a shooting, a probation officer was convicted of tampering with physical evidence after she failed to report the discharge of her firearm and, when it was taken from her at her arrest, it appeared to have been cleaned, showed no evidence of discharge, and was fully loaded. In a case involving altered prescriptions, the defendant was found guilty of tampering with physical evidence after her doctor, who had been notified of possible alterations, asked her to return intact a prescription, and the defendant returned the form torn into pieces with the section missing that indicated the prescription could not be refilled; the court reasoned that an official proceeding could be contemplated in which the prescription would be received as evidence. (People v. Porpiglia, 215 A.D.2d 784, 627 N.Y.S.2d 720 [2d Dept.], app. denied, 86 N.Y.2d 800, 632 N.Y.S.2d 514, 656 N.E.2d 613 [1995]). Similarly, where a defendant was asked to supply business records during an audit, it could be contemplated that a prosecution for tax evasion could be held. (People v. DeRue, 179 A.D.2d 1027, 1029, 579 N.Y.S.2d 799 [4th Dept. 1992] ).

In the case at bar, it is alleged that defendant fled from Police Officer Sandra Martinez, and when she ordered him to stop, he placed in his mouth "a clear plastic bag containing a substance resembling marijuana." Officer Martinez then "ordered" him to spit it out, but "[d]efendant refused, continued chewing said substance, and swallowed said substance." The People argue that the allegations establish circumstantially that defendant believed the physical evidence, if retrieved, would be produced at an official proceeding. The basis of their argument for his belief is that Officer Martinez was in uniform at the time she ordered defendant to stop, and then ordered him to spit out the alleged marijuana (Response, pp. 2-3, para. 3). Defendant asserts that the case is similar to People v. Simon, 145 Misc.2d 518, 547 N.Y.S.2d 199 (N.Y.City Crim.Ct.1989), in which defendant threw down a glass pipe allegedly containing cocaine which he had been smoking, thus breaking the pipe. In Simon, the charge of tampering with physical evidence was dismissed because there was no allegation in the accusatory instrument that defendant either believed the physical evidence was about to be produced at an official or prospective official proceeding or that he "intend[ed] to prevent" its production at such a proceeding. (145 Misc.2d at 523, 547 N.Y.S.2d 199). However, the People note that in contrast to the alleged facts in the case at bar, the Simon decision specifically held there were no evidentiary facts as to the nature of the arresting officer's "official function," i.e., in what capacity the officer was functioning at the time he or she spotted and then approached Mr. Simon as he was smoking (145 Misc.2d at 521, 547 N.Y.S.2d 199).

The court agrees with the People that the alleged circumstances in the case at bar are significantly distinguishable from those in Simon. Here, Officer Martinez received a radio communication...