With respect to the forged materials receipt, i.e., a receipt for building materials purportedly purchased from a certain company, an employee from that company testified that the materials receipt was necessary to show it was purchased from the company and to return the materials for a refund. We therefore conclude that the materials receipt "evidence[s] ... or otherwise affect[s] a legal right, interest, obligation or status" ( Penal Law ยง 170.10[1] ; see generallyPeople v. Watts, 32 N.Y.3d 358, 364โ365, 91 N.Y.S.3d 769, 116 N.E.3d 60 [2018] ; People v. DeRue, 179 A.D.2d 1027, 1029, 579 N.Y.S.2d 799 [4th Dept. 1992] ). With respect to the forged certificate of insurance, an insurance expert testified for the People that the falsified certificate of insurance was necessary for defendant to conduct business as a contractor, and that it evidenced a contract of insurance between defendant and the insurance company and thus evidenced defendant's status as an insured.
In any event, viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt of tampering with physical evidence beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the conviction of tampering with physical evidence was not against the weight of the evidence (see, CPL 470.15). Contrary to the defendant's contention, it could readily be contemplated under the circumstances of this case that the evidence he removed would be received as evidence at a prospective official proceeding (see, People v. Cardenas, 239 A.D.2d 594; People v. Porpiglia, 215 A.D.2d 784; People v. DeRue, 179 A.D.2d 1027). The defendant's remaining contentions are unpreserved for appellate review, without merit, or do not require reversal.
We conclude that under the circumstances of this case the medical record was sufficiently legible that the trial court did not improvidently exercise its discretion in admitting that record into evidence ( see, 4 Wigmore, Evidence ยง 1229 [Chadbourn rev 1972]; cf., People v. Morgan, 175 A.D.2d 930, 932). The relative degree of legibility of portions of the medical record affected the weight to be accorded it by the jury ( see, People v. DeRue, 179 A.D.2d 1027, 1028). Santucci, J. P., Joy, Friedmann and McGinity, JJ., concur.
Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt of tampering with physical evidence beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the conviction of tampering with physical evidence was not against the weight of the evidence (see, CPL 470.15). Contrary to the defendant's contention, it could readily be contemplated under the circumstances of this case that the evidence he removed would be received as evidence at a prospective official proceeding (see, People v. Porpiglia, 215 A.D.2d 784; People v. DeRue, 179 A.D.2d 1027; People v. Nicholas, 70 A.D.2d 804). Moreover, the verdict sheet that was submitted to the jury was proper.
Judgment unanimously affirmed. Memorandum: There is no merit to the contention of defendant that County Court erred in failing to dismiss the charge of tampering with physical evidence (see, Penal Law ยง 215.40). Contrary to defendant's contention, evidence of an actual or prospective official proceeding was not necessary because such an official proceeding "`could readily [have been] contemplated'" under the circumstances (People v DeRue, 179 A.D.2d 1027, 1029). Additionally, there is no requirement that an official proceeding have commenced by the time of trial (see, Penal Law ยง 215.40). Upon our review of the record, we conclude that the conviction of tampering with physical evidence is supported by legally sufficient evidence and is not against the weight of the evidence (see, People v Bleakley, 69 N.Y.2d 490, 495). Finally, the prosecutor's comments on summation did not mischaracterize the proof and in any event were fair response to defense counsel's summation (see, People v Kyler, 191 A.D.2d 1029, lv denied 81 N.Y.2d 1015; People v Price, 144 A.D.2d 1013, lv denied 73 N.Y.2d 895).
Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 N.Y.2d 620), we find that it is legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Contrary to the defendant's contention, it could readily be contemplated under the circumstances of this case that the prescription would be received as evidence at a prospective official proceeding (see, Penal Law ยง 215.35; see also, People v DeRue, 179 A.D.2d 1027, 1029; People v Nicholas, 70 A.D.2d 804, 805). The record indicates that the doctor was acting solely in a medical management capacity when she demanded that the defendant bring back the prescription.
Nor have defendants shown any possibility of prejudice resulting from off the record conversations between the prosecutor and the Grand Jury (see, People v Lancaster, 69 N.Y.2d 20, 26, cert denied 480 U.S. 922). The People produced affirmations establishing that the off the record conversations did not concern substantive matters, only scheduling and related problems, and we find no possibility of prejudice to defendants (see, People v DeRue, 179 A.D.2d 1027; People v Collins, 154 A.D.2d 901, lv denied 75 N.Y.2d 769; People v Erceg, 82 A.D.2d 947). The People also did not improperly allow a witness to charge the jurors on the law.
However, it is settled law that there need not be an actual or prospective official proceeding pending so long as an official proceeding "could readily have been contemplated" under the circumstances of the case. See People v. Santiago, 273 A.D.2d 488 (2nd Dept. 2000); People v. Johnson, 219 A.D.2d 865 (4th Dept. 1995); People v. DeRue, 179 A.D.2d 1027 (2nd Dept. 1992); People v. Nicholas, 70 A.D.2d 804 (1st Dept. 1979). In the instant case, it could readily have been contemplated by the defendant, upon seeing the officer approach, that an official proceeding, i.e. an arrest and criminal prosecution for drug possession, was about to be commenced and that the marijuana cigar he was holding would be used as evidence.
However, it is settled law that there need not be an actual or prospective official proceeding pending so long as an official proceeding "could readily have been contemplated" under the circumstances of the case. (See People v Santiago, 273 AD2d 488 [2d Dept 2000]; People v Johnson, 219 AD2d 865 [4th Dept 1995]; People v DeRue, 179 AD2d 1027 [2d Dept 1992]; People v Nicholas, 70 AD2d 804 [1st Dept 1979].) In the instant case, it could readily have been contemplated by the defendant, upon seeing the officer approach, that an official proceeding, i.e., an arrest and criminal prosecution for drug possession, was about to be commenced and that the marijuana cigar he was holding would be used as evidence.
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 [2d Dept], lv denied 86 N.Y.2d 800). 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 [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."