| People v Eaglesgrave |
| 2013 NY Slip Op 05001 [108 AD3d 434] |
| July 2, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Nicolas Eaglesgrave, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Brian R. Pouliot of counsel), forrespondent.
Judgment, Supreme Court, New York County (Robert M. Stolz, J.), renderedDecember 15, 2009, convicting defendant, after a jury trial, of criminal possession of acontrolled substance in the seventh degree and attempted tampering with physicalevidence, and sentencing him to concurrent terms of six months, unanimously affirmed.
The verdict was based on legally sufficient evidence and was not against the weightof the evidence (see People vDanielson, 9 NY3d 342, 348-349 [2007]). Defendant only challenges hisconviction of attempted tampering with physical evidence. As relevant here, a person isguilty of the completed crime of tampering with physical evidence when, "[b]elievingthat certain physical evidence is about to be produced or used in an official proceeding ora prospective official proceeding, and intending to prevent such production or use, hesuppresses it by any act of concealment" (Penal Law § 215.40 [2]).
The offense of tampering does not require the actual suppression of physicalevidence, but only that a defendant perform an act of concealment while intending tosuppress the evidence (see People v Sandy, 236 AD2d 104, 112-113 [1st Dept1997], lv denied 91 NY2d 977 [1998]). Regardless of whether the defendant issuccessful in suppressing the evidence, once an act of concealment is completed with therequisite mens rea, the offense of tampering has been committed. Accordingly, theattempted crime requires only that the defendant engage in conduct that tends to effect,and comes dangerously near to accomplishing, an act of concealment intended tosuppress the physical evidence. Here, the evidence supports the conclusion that whendefendant discarded bags of heroin he engaged in conduct that satisfied thoserequirements, even though he was ultimately unsuccessful in concealing the evidencebecause the police saw where he threw the drugs and promptly recovered them.[*2]
Defendant's remaining sufficiency arguments,and his challenge to the court's response to a jury note, are unpreserved, and we declineto review them in the interest of justice. As an alternative holding, we reject them on themerits. Concur—Mazzarelli, J.P., Acosta, Saxe, Freedman and Clark, JJ.