Opinion
No. 570201/12.
2014-10-1
The PEOPLE of the State of New York, Respondent, v. Momodou DARBOE, Defendant–Appellant.
Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Jennifer G. Schecter, J.), rendered November 30, 2011, convicting him, upon a plea of guilty, of attempted tampering with physical evidence, and imposing sentence.
Present: SHULMAN, J.P., HUNTER, JR., LING–COHAN, JJ. PER CURIAM.
Judgment of conviction (Jennifer G. Schecter, J.), rendered November 30, 2011, affirmed.
In view of the defendant's knowing waiver of his right to prosecution by information, the facial sufficiency of the accusatory instrument must be assessed under the standard required of a misdemeanor complaint ( see People v. Dumay, ––– NY3d ––––, 2014 N.Y. Slip Op 04038 [2014] ). So viewed, the complaint—alleging, inter alia, that defendant, upon the approach of a uniformed police officer in a drug-prone location, “discard[ed] one bag of marijuana in order to prevent recovery of said item”—was sufficiently evidentiary in character to establish reasonable cause to believe that defendant was guilty of the charged offense of attempted tampering with physical evidence (Penal Law §§ 110.00/215.40). For purposes of our threshold, pleading-stage inquiry, the accusatory instrument provided sufficient facts to support a finding that when defendant discarded the bag of marijuana, he engaged in conduct that tended to effect, and came dangerously near to accomplishing, an act of concealment intended to suppress the physical evidence, even though he was ultimately unsuccessful in concealing the evidence because the police saw where he dropped the bag and promptly recovered it ( see People v. Wilkins, 111 AD3d 451 [2013], lv denied, ––– NY3d ––––, 2014 N.Y. Slip Op 98315[U] [2014]; People v.. Eaglesgrave, 108 AD3d 434 [2013], lv denied 21 NY3d 1073 [2013] ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur.