Understanding the Law: Tampering With Physical Evidence NY PC 215.40

We’ve seen it happen on TV countless times: The police kick down the door to a drug-dealing operation and the culprits immediately start flushing the drugs down the toilet. Or the perpetrators of a white-collar crime desperately shred documents before the FBI shows up. Destroying evidence that may be used to incriminate you might seem like your best option at the moment, but the act of destruction itself could be used against you. In fact, destroying the evidence may itself be a more serious crime than whatever the evidence might have shown. Read on to learn about New York’s law against evidence tampering, and call a New York criminal defense lawyer after an arrest in the Hudson Valley.

The Elements of Penal Code 215.40: Tampering With Physical Evidence

New York Penal Code § 215.40 criminalizes tampering with physical evidence. Pursuant to the law, a defendant can be convicted for evidence tampering in either of the following circumstances:

• With the intent to be used in an official proceeding, the defendant knowingly makes or prepares false physical evidence, or knowingly introduces false physical evidence into an official proceeding; or
• Believing that physical evidence is going to be used or produced in a current or prospective official proceeding, and in order to suppress that production or use, the defendant suppresses the evidence by way of concealment, alteration, or destruction, or by using force, intimidation, or deception against any person.

Tampering with evidence covers both the creation or introduction of false evidence and the destruction or alteration of physical evidence that could be used in a criminal proceeding. It also covers witness tampering with regard to physical evidence. Other sections of the Penal Code specifically address witness tampering using various means.

Penalties for Tampering With Physical Evidence

Tampering with physical evidence is a Class E felony, punishable by one and a half to four years in prison. That means that a defendant who might have been arrested for possession of a small quantity of narcotics, an infraction or misdemeanor, might find themselves instead charged with a felony should they attempt to destroy those drugs or other evidence.

Breaking Down the Elements of Evidence Tampering

Defending against charges of evidence tampering requires undermining one or more of the elements of the crime. The prosecution must prove beyond a reasonable doubt that the defendant is guilty of all elements of the crime.

• Physical evidence. Section 215.40 specifically applies to physical evidence. That means things like documents, narcotics, items with the defendant’s fingerprints, or other physical things.
• Official proceeding. An official proceeding is a proceeding before a legal administrative agency, a judicial body, a government agency, or a legislative body. An official proceeding is one at which evidence will be received. If the evidence relates to some other type of proceeding, then the defendant is not guilty under this section.
• Intent and Knowledge. Intent and state of mind are often the most difficult elements for the prosecution to demonstrate. The prosecution must show that the defendant actually intended to destroy or conceal the evidence at issue, and did so to prevent the evidence from being used against them or someone else. If the evidence was destroyed accidentally, or if the defendant did not know they were under suspicion of a crime, then they cannot be guilty of evidence tampering. The same applies to producing false or fake evidence–the defendant must have known it was false.
• Tampering. The prosecution must be able to prove that the evidence tampering–alteration, destruction, concealment, or other action–actually occurred. It’s not enough to simply allege that there was evidence and that evidence cannot be found.

Any other error by the police or weakness in the prosecution’s case may be used to defend against evidence tampering charges. Talk to an experienced criminal defense lawyer about your case if you have been charged with tampering with physical evidence.

Get Help Fighting Hudson Valley Tampering With Evidence Charges

If you have been arrested for tampering with evidence or other criminal offenses in New York, call Dupée & Monroe, P.C., to get help from an accomplished criminal defense lawyer. From our offices in Goshen, we represent clients charged with all manner of criminal offenses in Orange County and throughout the Hudson Valley.