Opinion
2009NY005091.
Decided on July 8, 2009.
ROBERT M. MORGENTHAU, ESQ., DISTRICT ATTORNEY, ONE HOGAN PLACE, NEW YORK, NEW YORK, BY: ADA FAITH JENKINS, ESQ., FOR THE PEOPLE.
STEVEN GORDON, ESQ., 400 MADISON AVENUE, NEW YORK, NEW YORK, FOR THE DEFENDANT.
The defendant is charged with one count of Attempted Tampering with Physical Evidence (Penal Law § 110.00/215.40 (2)) and one count of Resisting Arrest (Penal Law § 205.30). The defendant has brought a motion seeking dismissal of the proceeding for facial insufficiency pursuant to Criminal Procedure Law (CPL) § 100.40 and § 170.30, in addition to other relief sought. Although scheduled, a response was not filed by the People. For the foregoing reasons, the defendant's motion to dismiss is granted.
To be sufficient on its face, an information, together with any supporting depositions, must contain evidence of an evidentiary character which provides reasonable cause to believe that the defendant committed the offense, and the non-hearsay allegations must establish, if true, every element of the offense charged ( People v. Alejandro, 70 NY2d 133, 136-137; People v. McNamara, 78 NY2d 626, 629, citing CPL § 100.40 (1) (b), (c); People v. Casey, 95 NY2d 354, 360). The allegations must give the defendant sufficient notice to prepare a defense and prevent him from being tried twice for the same offense ( People v Casey, supra at 360). Further, conclusory allegations alone are insufficient ( People v. Dumas, 68 NY2d 729). The proceeding is fatally defective if the accusatory instrument fails to meet these requirements ( People v. Casey, supra).
New York Penal Law § 215.40 (2) provides that a person is guilty of Tampering with Physical Evidence when "[b]elieving that certain 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 suppresses it by an act of concealment, alteration or destruction, or by employing force, intimidation or deception against any person." For the charge to be sufficient, it must be alleged that the defendant, "with the intent to commit a crime, engaged in conduct that tended to effect the commission of that crime" ( People v. Palmer, 176 Misc 2d 813, 674 N.Y.S.2d 566 [Crim. Ct., NY Co. 1998]; see also, Penal Law § 110.00).
The accusatory instrument upon which the defendant is charged states the following:
Deponent states that deponent is informed by Detective Rudy Lahens, shield No. 2065 of the Narcotics Boro Manhattan South, that informant observed separately-charged defendant Marcini Powell (M09605537) hand the defendant what appeared to be loose marijuana leaves.
Deponent further states that deponent is informed by Detective Shawn Gordon, Shield #6155 of the Narcotics Boro Manhattan South, that when Detective Gordon stopped the defendant and attempted to place the defendant under arrest, the defendant threw said marijuana leaves into the air and attempted to strike Detective Gordon by swinging the defendant's closed fist at Detective Gordon's face. Deponent is further informed by Detective Gordon that said actions of the defendant prevented deponent from lawfully recovering said marijuana leaves, and temporarily prevented Detective Gordon from handcuffing the defendant.
The accusatory instrument is signed and dated by the deponent and a supporting deposition from the informant is included.
In People v. Beam , 22 Misc 3d 306 , 866 N.Y.S.2d 564 [Crim. Ct., NY Co. 2008], the court held that allegations that a defendant threw a cigarette in traffic while running away from a police officer, where insufficient because the allegations failed to establish that the substance was illicit and the intent required for the charge. Similarly in this case, the allegations fail to establish both that the defendant possessed an illegal substance and that he acted with the requisite intent. The allegations also do not establish the defendant's knowledge of an official or prospective official proceeding (Penal Law § 215.40 (2)). In Beam, supra, the complaint did not demonstrate that the officer had actually observed the substance and failed to establish that it was marihuana. In the same vein, the allegations in this case do not sufficiently establish that the substance was marihuana. Concomitantly, the allegations do not demonstrate that the defendant intended to tamper with physical evidence as he is alleged to have thrown the alleged marihuana into the air after he was accosted by detectives. Additionally, the allegations do not establish that the defendant believed that the substance alleged was about to be produced or used in an official proceeding or a prospective official proceeding (Penal Law § 215.40 (2)). Consequently, the allegations are insufficient for at least three reasons.
First, the allegations give no indication that the defendant had knowledge of an official proceeding ( see People v. Berdini , 18 Misc 3d 221 , 225 [Crim. Ct., NY Co. 2007]; see also, People v. Little, 18 Misc 3d 1126A [Crim. Ct., Kings Co. 2008]). The charge requires a showing that the defendant believed that the substance was about to be produced or used in an official proceeding or a prospective official proceeding and that the defendant intended to prevent the production of such evidence or its use ( People v. Mitchell, 17 Misc 3d 1103A [Crim. Ct., Kings Co. 2007], citing Penal Law § 215.40 (2)). The allegations in this case do not establish this essential element of the charge. The allegations do not show that the defendant knew he was being placed under arrest or had been advised of such to establish his knowledge of a prospective official proceeding ( see e.g., People v. Little, supra, attempted tampering charge dismissed because allegations failed to show a police officer was approaching the defendant prior to his swallowing alleged contraband). The allegations are that the defendant was stopped by a detective and do not demonstrate that the defendant knew that he was being observed or approached by a police officer. The allegations do not demonstrate that the defendant tampered with evidence after seeing an officer or that prior to the alleged tampering the defendant was aware of the officer's presence ( see People v. Mercedes, 194 Misc 2d 731 [Crim. Ct., NY Co. 2003]). The allegations give no indication that the defendant knew that the deponent was a police officer or that the deponent was in police attire ( People v. Berdini, supra). The allegations do not provide facts from which it could be reasonably inferred that the defendant was aware that he was being observed by the police or that the police were present at the scene before an illicit substance was allegedly tampered with ( People v. Roman, 2009 WL 997122 [App. Tm., 1st Dept. 2009]). Consequently, this element of the charge is not established.
The allegations also do not establish that the defendant intended to tamper with evidence. To establish intent it must be shown that the defendant intended to prevent the production or use of the evidence by concealing, altering or destroying it ((Penal Law § 215.40 (2)). The allegations are that the defendant was stopped by a detective and that in the process of trying to arrest him alleged marihuana leaves in the defendant's possession were thrown to the air. These allegations do not demonstrate that the defendant acted with the intent to discard or tamper with evidence. These facts do not establish that the defendant acted with the intent to prevent the production of evidence, as the act of throwing the alleged marihuana in this instance would not conceal, alter or destroy it. As in Beam, supra at 311, the act of dropping an object in the course of a physical altercation or arrest does not fall under the statute as one of the ways evidence is tampered with. Consequently, the requisite intent is not shown.
Additionally, the charge is not sufficient because it does not reasonably establish that the defendant possessed marihuana. In People v. Beam, supra, the charge of Attempted Tampering with Physical Evidence was also found insufficient because the information alleged that the defendant was observed with "what appeared to be a marihuana cigarette." The court in Beam, supra, held that the facts did not support that charge since the allegations failed to state what, if anything, the officer was able to smell or observe that made him believe that the item was marihuana. Similarly, in this case it is alleged that the defendant possessed "what appeared to be" loose marijuana leaves. All that is provided to establish that the substance was illicit is that it appeared to be marihuana leaves. No evidence concerning the officer's training and experience in identifying this substance is provided ( see People v. Bula , 2009 NY Slip Op 50210U [Crim. Ct., NY Co.] allegations found sufficient where defendant threw cigarette into river after being approached by officer who was able to identify the cigarette as marihuana based on his professional training and experience).
In Bula, supra, it was alleged that the defendant was observed holding a burning marihuana that he smoked and passed back and forth to separately charged defendants and that the defendant threw the marihuana cigarette when he was approached by uniformed officers. In Bula, supra, the defendant was also charged with Criminal Possession of Marihuana and a ziplock bag containing marihuana residue was recovered from the ground next to the foot of one of the separately charged defendants. No such facts are contained in the instant case.
In People v. Beam, supra at 310, the court stated that "in the absence of any allegation concerning what, if anything, the officer was able to smell or observe that made him believe that the item was marijuana, the court cannot engage in speculation and conjecture as to the nature of the item discarded by the defendant." Just as in Beam, supra, this court cannot engage in conjecture or speculate that the defendant possessed marihuana. No illicit substance was recovered in this case as in People v. Beam, supra. It does not appear reasonable that the leaves in this case were not recovered since they were allegedly thrown in the air and there are no allegations that they were concealed, altered or destroyed. Therefore, given the foregoing, the charge is not sufficiently alleged.
The allegations herein do not sufficiently establish that the defendant possessed marihuana ( see People v. Kalin, 2009 NY Slip Op 2446, 12 NY3d 225 holding that an information charging possession of an illicit drug has to adequately identify a drug, allege the defendant possessed it, state the officer's training in identifying the drug, provide information to support the officer's conclusion, and supply sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy). Contrary to the facts in People v. Kalin, supra, the allegations in this case do not provide adequate information to support the officer's conclusion that the defendant possessed marihuana.
Since the allegations do not adequately establish that the defendant possessed an illicit substance, that he acted with the requisite intent, or that he knew the substance alleged would be used in a prospective official proceeding a sufficient showing for the charge is absent ( People v. Berdini, supra; see also People v. Roman, supra). Even viewing the allegations "in the light most favorable to the People" ( People v. Gonzalez, 184 Misc 2d 262 [App. Tm., 1st Dept. 2000]) the offense is not sufficiently established. Consequently, the defendant's motion to dismiss the charge on facial sufficiency grounds is granted.
Finally, the information fails to show that the defendant was lawfully arrested. Penal Law § 205.30 requires that the arrest be authorized ( People v. Alejandro, 70 NY2d 133, 135; People v. Peacock, 68 NY2d 675, 678). Since the defendant's commission of Attempted Tampering with Physical Evidence is not established by the allegations of the information, there is no basis to hold that her arrest was authorized, and the Resisting Arrest charge must be dismissed. Therefore, the defendant's motion to dismiss this charge is also granted.
Accordingly, the case is dismissed in its entirety.
The Court directs that sealing be stayed for thirty (30) days from the date of this decision.
This constitutes the decision, opinion and order of the Court.