| People v Atkins |
| 2012 NY Slip Op 04094 [95 AD3d 731] |
| May 29, 2012 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v KeithAtkins, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (David E. A. Crowley of counsel), forrespondent.
Judgment, Supreme Court, New York County (Marcy L. Kahn, J.), rendered July 1, 2008,convicting defendant, after a jury trial, of assault in the second degree and tampering withphysical evidence, and sentencing him, as a persistent violent felony offender, to an aggregateterm of 12 years to life, unanimously affirmed.
The verdict was supported by legally sufficient evidence (see People v Danielson, 9 NY3d 342, 349 [2007]). The evidenceshowed that in an attempt to avoid apprehension, defendant knocked over an officer causing herinjury and placed bags of heroin into his mouth while he ran away. Such evidence supported theconclusion that defendant suppressed the bags of heroin by "an act of concealment" because hebelieved they would be used "in an official proceeding or a prospective official proceeding"(Penal Law § 215.40 [2]). There is no requirement that the evidence was permanentlydestroyed, or that it was discarded and never recovered (see People v Hafeez, 100 NY2d253, 259-260 [2003]; People vShoga, 89 AD3d 1225, 1228-1229 [2011], lv denied 18 NY3d 886 [2012]).
Defendant's argument that there was no proof that he understood that the people chasing himwere police officers, lacks merit. The jury could have reasonably inferred that defendant acted toavoid arrest for a drug offense. Here, after the nonuniformed officer displayed his badge,defendant ran around him and fled, and put narcotics into his mouth which he was forced to spitout upon being apprehended. Such conduct is consistent with someone trying to avoid beingarrested and conceal evidence. Furthermore, that the evidence was suppressed only for a shortperiod of time is of no moment, as the statute does not contain a minimum requisite time periodthat the evidence has to be concealed (see also People v Davis-Ivery, 59 AD3d 853, 855 [2009]).
Although the trial court erred in allowing the prosecutor to suggest the possibility thatdefendant may have swallowed narcotics or other unrecovered evidence, such error was harmless(see People v Crimmins, 36 NY2d 230 [1975]). The undisputed evidence that defendantput [*2]some bags of heroin in his mouth while fleeing waslegally sufficient to support the tampering conviction. Furthermore, the court instructed the juryagainst speculation, and it is presumed that the jury followed the court's instructions (seePeople v Davis, 58 NY2d 1102 [1983]). Concur—Friedman J.P., Sweeny, Renwick,Freedman and Abdus-Salaam, JJ.