Under New York Law, tampering with physical evidence is a criminal charge that applies to knowing and intentional destruction of physical property that will be used in a legal proceeding. Destruction doesn’t just mean physical ruination of the evidence, but also applies to concealment, alteration or destruction, employment of force force, or use of intimidation or deception against any person to avoid the production of evidence.

NY Tampering With Physical Evidence

New York Tampering with Physical Evidence charges under New York Penal Law Section have special legal definitions, which are included in New York Penal Law Section 215.35.

What is Physical Evidence?

Under New York Law, physical evidence means any article, object, document or record, or other thing of physical substance which is or is about to be produced or used as evidence in an official proceeding. Examples of physical evidence include:

  • a marijuana cigarette an individual was observed smoking, which was the basis for the stop;
  • bank records showing fraudulent financial transactions;
  • a glass with the suspect’s fingerprints;
  • a corpse of the victim in a homicide investigation.

What is an Official Proceeding?

Under New York Penal Law Section 215.35, an official proceeding means any action or proceeding conduced by or before a legally constituted judicial, legislative, administrative, or other governmental agency of official in which evidence may properly be received. Examples of official proceedings include:

  • Criminal Court;
  • Family Court;
  • Immigration Court;
  • Bankruptcy Court; AND
  • Any administrative agency with quasi-judicial function.

What is Intent?

Under New York Penal Law 15.05(1), intent means a conscious objective or purpose. Thus, a person is intending to prevent the production or use of physical evidence in an official proceeding or a prospective official proceeding when his or her conscious objective or purpose is to do so.

Tampering with Physical Evidence Charge Explained

New York Tampering with Physical Evidence Charge is codified in New York Penal Law Section 215.40. Under New York Penal Law Section 215.40, a person is guilty of Tampering with Physical Evidence when:

  1. With intent that it be used or introduced in an official proceeding or a prospective official proceeding, he:
    1. Knowingly makes, devises or prepares false physical evidence, OR
    2. Produces or offers such evidence at such a proceeding knowing it to be false; OR
  2. Believing 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 suppresses it by any act of concealment, alteration or destruction, or by employing force, intimidation or deception against any person.

Sentencing and Penalties for Tampering with Physical Evidence

New York Tampering with Physical Evidence is a Class “E” Non-violent Felony. As such, this charge can be punishable by:

  • An indeterminate sentence up to 1 1/3 to 4 years in prison;
  • A determinate sentence up to 1 year;
  • A split sentence (up to 6 months in jail, rest of the time on probation);
  • Conditional discharge (with the sentencing court imposing the conditions of the sentence – such as community service or completion of a program);
  • Unconditional discharge (no conditions imposed by the sentencing court as part of the sentence)
  • Probation.

Federal Tampering with Evidence Charge

In addition to New York State Tampering with Physical Evidence, there is a federal criminal charge that applies to the destruction of evidence.

Under 18 U.S.C. 1519, it is a crime to destroy, conceal or falsify evidence in order to interfere with a federal criminal investigation. Specifically, the statute states:

“Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.”

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