People v. Palmer

CourtNew York City Court
Writing for the CourtPAUL G. FEINMAN
Citation176 Misc.2d 813,674 N.Y.S.2d 566
Decision Date07 April 1998
Parties, 1998 N.Y. Slip Op. 98,295 The PEOPLE of the State of New York, Plaintiff, v. Steve PALMER, Defendant.

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.

Page 567

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] ).

Page 568

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...

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14 practice notes
  • Timberlake v. US, No. 97-CF-1849.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • September 7, 2000
    ...from the kitchen counter after appellant became aware of the presence of the officers and closed the front door"); People v. Palmer, 176 Misc.2d 813, 674 N.Y.S.2d 566, 569 (N.Y.Crim.Ct.1998) (defendant "disposed of the bag of alleged marijuana . . . prompted by the approach of a uniformed p......
  • Burdell v. Com., No. 98-SC-244-MR
    • United States
    • United States State Supreme Court (Kentucky)
    • April 22, 1999
    ...evidence. E.g., Frayer v. People, 684 P.2d 927 (Colo.1984); State v. Foreshaw, 214 Conn. 540, 572 A.2d 1006 (1990); People v. Palmer, 176 Misc.2d 813, 674 N.Y.S.2d 566 (N.Y.Crim.Ct.1998) and cases cited therein. The compelling logic of these decisions is that one who has committed a crimina......
  • People v. Lewis, 2009 NY Slip Op 32277(U) (N.Y. Crim. Ct. 9/30/2009), 2009NY043414
    • United States
    • New York Criminal Court
    • September 30, 2009
    ...a crime," Page 4 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......
  • People v. Ferguson, No. 2015NY039688.
    • United States
    • New York Criminal Court
    • August 27, 2015
    ...harm element not made out where defendant yelled at police officers in front of passers by, some of whom stopped); People v. Palmer, 176 Misc.2d 813, 674 N.Y.S.2d 566 (Crim Ct N.Y. County 1998) (disorderly conduct count dismissed where defendant yelled obscenities at police officer, in full......
  • Request a trial to view additional results
14 cases
  • Timberlake v. US, No. 97-CF-1849.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • September 7, 2000
    ...from the kitchen counter after appellant became aware of the presence of the officers and closed the front door"); People v. Palmer, 176 Misc.2d 813, 674 N.Y.S.2d 566, 569 (N.Y.Crim.Ct.1998) (defendant "disposed of the bag of alleged marijuana . . . prompted by the approach of a uniformed p......
  • Burdell v. Com., No. 98-SC-244-MR
    • United States
    • United States State Supreme Court (Kentucky)
    • April 22, 1999
    ...evidence. E.g., Frayer v. People, 684 P.2d 927 (Colo.1984); State v. Foreshaw, 214 Conn. 540, 572 A.2d 1006 (1990); People v. Palmer, 176 Misc.2d 813, 674 N.Y.S.2d 566 (N.Y.Crim.Ct.1998) and cases cited therein. The compelling logic of these decisions is that one who has committed a crimina......
  • People v. Lewis, 2009 NY Slip Op 32277(U) (N.Y. Crim. Ct. 9/30/2009), 2009NY043414
    • United States
    • New York Criminal Court
    • September 30, 2009
    ...a crime," Page 4 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......
  • People v. Ferguson, No. 2015NY039688.
    • United States
    • New York Criminal Court
    • August 27, 2015
    ...harm element not made out where defendant yelled at police officers in front of passers by, some of whom stopped); People v. Palmer, 176 Misc.2d 813, 674 N.Y.S.2d 566 (Crim Ct N.Y. County 1998) (disorderly conduct count dismissed where defendant yelled obscenities at police officer, in full......
  • Request a trial to view additional results

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