Opinion
2009NY043414.
Decided September 30, 2009.
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 NY2d 133). "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 NY3d 225 ; People v. Jones , 9 NY3d 259 , 262.) 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 NY2d 354, 360.)
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.
Attempted Tampering With Physical Evidence
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., NY 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., NY 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.
1. Prospective Official Proceeding
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 AD2d 804 [1st Dept. 1979] (a prospective official proceeding related to the circumstances surrounding a person's untimely death could "readily be contemplated" such that moving the body constituted tampering); see also People v. Santiago, 273 AD2d 488 [2d Dept. 2000]; People v. Mercedes, 194 Misc 2d 731, 735 [Crim. Ct., NY 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., NY Co. 1978] (examining the predecessor statute of P.L. §§ 215.35 and 215.40 and finding that police surveillance or arrest does not fall within the current definition of "official proceeding").)
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] (accusatory instrument offered no allegations "from which it could reasonably be inferred that defendant was aware of the police surveillance or presence at the scene at any time before allegedly inhaling the vaguely described object"); 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 (uniformed police officer ordered defendant to spit out bag of what appeared to be marijuana)).
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 AD3d 287 [1st Dept. 2005], lv. denied, 4 NY3d 851; People v. Green , 54 AD3d 603 , 603-04 [1st Dept. 2008], lv. denied, 11 NY3d 897.)
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 (defendant's conduct in concealing purported marijuana cigar behind his back, tearing it up, and dropping the pieces in mulch "allows for no other reasonable inference" than contemplation of prospective official proceeding); see also Green, 54 AD3d at 603-04 (aware that he was about to be arrested, defendant's conduct of putting an unknown object into his mouth supports an inference that the object was contraband or evidence that the defendant intended to prevent the police from discovering); People v. Urtado , 21 AD3d 854 [1st Dept. 2005], lv. denied, 6 NY3d 760 (defendant's repairs to car damaged by gunfire in shooting incident warranted the conclusion that defendant intended to prevent the use of his car in an official proceeding); Bass, 15 AD3d 287 (where defendant, during strip search at police precinct, removed from his sock a plastic bag containing cocaine and swallowed it before the police could stop him, the court reasonably found defendant guilty of tampering); People v. Bula, 22 Misc 3d 1121 (A) (when uniformed officers approached, the defendant threw the marijuana into the river).)
Furthermore, mere unqualified "approach" by an officer is generally insufficient to find that the defendant contemplated a prospective official proceeding if the accusatory instrument fails to allege facts upon which it can reasonably be inferred that the defendant was engaged in conduct and in possession of physical evidence that might lead him or her to conclude that an official proceeding may result. ( Roman, 23 Misc 3d at 58 (insufficient allegations from which it could be inferred that the defendant was aware of the police surveillance or presence at the scene); Mitchell, 17 Misc 3d 1103 (A) (running is not dispositive evidence of knowledge of prospective official proceeding as "mistrust is not an unreasonable response to the sudden approach of an unidentified individual").) ( See infra sections 2 3.)
Here, the accusatory instrument fails to indicate whether the officer informant was in uniform at the time he observed the defendant; nor does it allege the distance between the defendant and the informant at the time the defendant ran away from the informant, who was allegedly approaching him — which would be a fact supporting an inference as to the defendant's contemplation of a prospective official proceeding. Additionally, the accusatory instrument does not allege any facts that the defendant might have known that it was an officer who was approaching him, or from which the Court or the defendant might reasonably conclude that the officer's approach was to recover, or because of, the marijuana cigar the defendant was allegedly smoking. Moreover, there are no allegations that the officer told the defendant to stop, otherwise identified himself, or instructed the defendant to do anything. Thus, the totality of the accusatory instrument and all reasonable inferences lead the Court to find these allegations insufficient with respect to the defendant's belief of prospective official proceeding related to or resulting from his conduct contained in the information.
The absence of satisfactory allegations as to knowledge or belief of a prospective official proceeding, as the Court finds to be the case here, deems the accusatory instrument insufficient to form the intent to suppress its evidence ( see Mitchell, 17 Misc 3d 1103 (A)), and arguably leaves an element of the prima facie claim unmet. Upon consideration of the defendant's remaining arguments, the Court finds further support for granting his motion to dismiss.
2. Intent to Tamper
The second element of a prima facie case of Tampering with Physical Evidence relevant to the instant case requires allegations tending to show the defendant's intent to prevent production in connection with an official proceeding. ( People v. Sandy, 236 AD2d 104, 113 [1st Dept. 1997], lv. denied, 91 NY2d 977.) As stated above, this intent may be inferred from a finding that the defendant contemplated a prospective official proceeding, and from a review of the factual circumstances and defendant's alleged conduct. The facts that courts have considered in evaluating this element relate to the substance of the physical evidence at issue and what the defendant's alleged conduct was that the People argue constitutes "concealment, alteration or destruction." Conduct constituting a common use or action with the item at issue does not favor an inference of intent to prevent production. ( See, e.g., Roman, 23 Misc 3d at 58 (insufficient facts alleged to support a finding that defendant's alleged snorting of unidentified white substance was intended to prevent use of evidence); Mercedes, 194 Misc 2d at 732 (information facially sufficient where defendant hid alleged marijuana cigar behind his back, tore it into small pieces, and threw the pieces into a patch of mulch).)
Here, the allegations in the accusatory instrument state that the defendant "threw down" the cigar "to the ground." This allegation alone does not lend to the reasonable conclusion that defendant intended to conceal, alter, or destroy the cigar. Indeed, it is quite reasonable that the defendant merely intended to abandon the cigar or was through smoking it. Actions that frequently result in inference of intent to conceal, alter, or destroy include swallowing ( Palmer, 176 Misc 2d at 817 (defendant ate a clear plastic bag allegedly containing marijuana); Bass, 15 AD3d at 287; Green, 54 AD3d at 603-04), while throwing is often found insufficient ( People v. Vargas, 179 Misc 2d 236, 239-40 [Crim. Ct., NY Co. 1998] (while disposing of marijuana in sewer was a physical act for purposes of the obstruction of governmental administration charge, allegations are insufficient to indicate that the defendant acted with an intent to obstruct the officer); Simon, 145 Misc 2d 518 (allegations as to defendant's throwing down of glass pipe, allegedly a crack pipe, and its subsequent breaking upon officer approaching him was insufficient to charge attempted tampering absent allegations as to defendant's belief that evidence was about to be produced or used in an official prospective proceeding and that he intended to prevent its use); but see Bula, 22 Misc 3d 1121 (A) (where defendant threw the alleged burning marijuana cigarette into the river, the court found that "[t]he act of discarding a physical object, possession of which is illegal, while being approached by uniformed police officers . . . tends to demonstrate the defendant's belief that the object discarded would have been used in a prospective proceeding, as well his intent to prevent such production or use." (internal citations omitted))). Where the defendant's alleged conduct is "comprehensible as rational conduct only if he feared the confiscation of the bag and its contents and the subsequent [official proceeding,]" it is reasonable to infer defendant's conduct was tampering. ( See Palmer, 176 Misc 2d at 817 (emphasis in original).)
The act of throwing to the ground extends beyond the enumerated conduct that evinces tampering under the statute. Here, the defendant's alleged conduct, throwing down the cigar after turning to run as the informant approached him, is inconclusive at best. First, because the People have failed to sufficiently allege facts indicating that the defendant reasonably contemplated, or did contemplate, a forthcoming official proceeding, defendant's act of running can be viewed as indicative of concern other than fear of arrest or a proceeding resulting from illicit conduct. Second, as will be discussed below, because the People fail to adequately allege that defendant was smoking a marijuana cigar, his running and subsequent "throwing down" of the cigar are not reasonably construed as intent to conceal, alter, or destroy physical evidence that he believes is likely to be used in any official proceeding. Finally, the act of throwing something to the ground itself is not of a type, given the factual allegations provided, that leads to a reasonable inference of tampering. Simply, throwing a cigarette to the ground does not normally alter or destroy it, and it certainly does not conceal it. The officer's inability to recover the cigar is not the measure for establishing this element. Therefore, the accusatory instrument does not adequately allege facts from which can be inferred the defendant's intent to prevent the recovery of physical evidence.
3. Physical Evidence: Marijuana
Courts have also addressed the sufficiency of allegations as to the nature of the physical evidence allegedly tampered with. Logically, such allegations inform whether the Court could reasonably infer the defendant's intent to tamper or contemplation that his or her use or possession could lead to a prospective official proceeding, and is particularly applicable where the charge is one of attempted tampering. ( Roman, 23 Misc 3d at 58 (allegations that defendant inhaled a vaguely described object when approached by an officer found insufficient); People v. Beam , 22 Misc 3d 306 , 311 [Crim. Ct., NY Co. 2008] (allegations that defendant threw an alleged marijuana cigarette in traffic while running away from a police officer were insufficient because the allegations failed to establish that a substance was illicit and the intent required for the charge).)
Courts have, in fact, relied on allegations that the officer's personal experience and training led him or her to conclude that the defendant was in possession of a particular controlled substance or marijuana in concluding that the defendant tampered with physical evidence. ( See Bula, 22 Misc 3d 1121 (A) (evidence concerning the officer's training and experience in identifying the substance is provided); Mercedes, 194 Misc 2d at 732 (police officer substantiated the basis for concluding marijuana cigar: his knowledge and training as an officer, the appearance of the cigar and the odor emanating from it); Palmer, 176 Misc 2d at 818 (accusatory instrument states that the arresting officer believed the substance to be marijuana based on her professional training and her prior experience and her observation of the packaging, characteristic of marijuana).)
Absent adequate, or even minimal, allegations as to what the informant was able to smell or observe that made him believe that the cigar was marijuana and the experiential or other basis for his conclusion, the Court cannot speculate or make unsubstantiated conclusions as to the nature of the item discarded by the defendant. Here, there is only a vague allegation as to the defendant's smoking of a marijuana cigar and the informant fails to provide any basis for his conclusion. While this in and of itself is not dispositive, it does inform the Court's review of the circumstances underlying the charges against the defendant and analysis of the other elements of the prima facie claim of Attempted Tampering.
Upon consideration of the sequence of events alleged by the accusatory instrument, the Court cannot reasonably conclude that the defendant attempted to tamper with physical evidence. The information fails to allege specific and sufficient facts for such a conclusion. Therefore, the Court finds that the information is facially insufficient.
SUPPRESSION OF DEFENDANT'S STATEMENTS
Defendant's motion to suppress his statements to law enforcement officials is granted to the extent of directing that a Huntley/Dunaway hearing be conducted prior to trial.
PRECLUSION OF IDENTIFICATION AND STATEMENT EVIDENCE
Defendant's motion to preclude at trial the use of any statements or identification evidence for which notice has not been given is denied without prejudice to renew should the People intend to introduce evidence of this type for which the People did not serve proper notice on defendant.
DISCOVERY AND BILL OF PARTICULARS
Defendant's motion for pretrial discovery and a Bill of Particulars is granted to the extent provided by the People in their Voluntary Disclosure Form. The People are reminded of their continuing Brady v. Maryland, People v. Rosario, and related responsibilities.
PRECLUSION OF EVIDENCE OF PRIOR CONVICTIONS AND BAD ACTS
Defendant's motion to preclude the introduction at trial of evidence of defendant's prior convictions or bad acts pursuant to People v. Sandoval is reserved for the trial court.
CONCLUSION
For the reasons discussed above, the defendant's motion to dismiss on facial insufficiency grounds is granted with respect to the count of Attempted Tampering with Physical Evidence. A Huntley/Dunaway hearing is granted. The preclusion at trial of evidence of defendant's prior convictions or bad acts is reserved for the trial court.
This constitutes the Decision and Order of the Court.