People v Cruz (Alex)

[*1] People v Cruz (Alex) 2017 NY Slip Op 50024(U) Decided on January 13, 2017 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 13, 2017
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Gonzalez, J.
570523/11

The People of the State of New York, Respondent,

against

Alex Cruz, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Neil E. Ross, J.), rendered May 16, 2011, convicting him, after a jury trial, of attempted tampering with physical evidence, and imposing sentence.

Per Curiam.

Judgment of conviction (Neil E. Ross, J.), rendered May 16, 2011, affirmed.

The accusatory instrument was not jurisdictionally defective. Giving the misdemeanor information "a fair and not overly restrictive or technical reading" (People v Casey, 95 NY2d 354, 360 [2000]), we find "as a matter of common sense and reasonable pleading" (People v Davis, 13 NY3d 17, 31 [2009]) that it was legally sufficient to charge defendant with attempted tampering with physical evidence (see Penal Law §§ 110/215.40). The arresting officer alleged that defendant exchanged currency for a clear plastic bag of marijuana, that when he approached defendant and identified himself as a police officer, defendant "swallowed" the bag of marijuana in order to prevent its recovery, and that the officer believed that the substance was marijuana based upon his "professional training as a police officer in the identification of drugs, [his] prior experience as a police officer in drug arrests and the odor emanating from the substance" (see People v Eaglesgrave, 108 AD3d 434 [2013], lv denied 21 NY3d 1073 [2013]; People v Darboe, 45 Misc 3d 126[A], 2014 NY Slip Op 51434[U] [App Term, 1st Dept 2014], lv denied 24 NY3d 1083 [2014]). Based upon these allegations, the factfinder could infer that the object defendant swallowed was "contraband or evidence that defendant intended to prevent the police from discovering," even though the police were unable to recover the item (see People v Wilkins, 111 AD3d 451 [2013], lv denied 21 NY3d 1044 [2014], citing People v Green, 54 AD3d 603, 603-604 [2008], lv denied 11 NY3d 897 [2008]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur

Decision Date: January 13, 2017