People v. Botshon , 523 N.Y.S.2d 293 ( 1987 )

— Judgment affirmed. Memorandum: Defendant entered a plea of guilty to the crime of attempted tampering with physical evidence in satisfaction of an indictment charging him with the crime of tampering with physical evidence. As a part of the plea agreement, the prosecutor consented to, and the court approved, a further agreement "that the defendant will have the right to appeal the question of whether the offense charged in the indictment constitutes the crime of tampering with physical evidence under the Penal Law Section 215.40.” It is defendant’s claim that the acts alleged in the indictment do not constitute the crime charged and the indictment is, therefore, jurisdiction-ally defective. We disagree.

Penal Law § 215.40 (2) provides that

"A person is guilty of tampering with physical evidence when * * *

"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.”

The indictment alleges a violation of that statute, and further alleges that "the defendant, on or about June 19, 1984, believing that certain physical evidence to wit, original employment application forms of Attentive Care of Rochester Inc., were about to be produced or used in an official proceeding or a prospective official proceeding, and intending to prevent such production or use, he suppressed such evidience [sic] by an act of deception: knowing that said employment application forms had been altered so as to obscure information material to the then pending official proceeding, the defendant produced photocopies of said employment application forms intending that, by said production of photocopies, he could avoid production of the originals and discovery that said originals had been so altered.”

The indictment thus makes specific reference by name and section to the statute allegedly violated, and alleges the commission of each of the elements of the crime. The inclusion of those allegations satisfies the jurisdictional requirements for indictments (People v Motley 69 NY2d 870; People v Cohen, 52 NY2d 584; People v Iannone, 45 NY2d 589), and distinguishes this case from those where an essential element is not specified in the accusatory instrument (see, People v Hall, 48 NY2d 927, rearg denied 49 NY2d 918; People v Case, 42 NY2d 98; People v Harper, 37 NY2d 96, 99; People v McGuire, 5 NY2d 523, 525; People v Colloca, 57 AD2d 1039).

At defendant’s plea allocution the following statements were recorded:

"the defendant: Around June 19th, 1984, in answer to a subpoena from the Attorney General’s Office for my original employment application forms or records, I produced photocopies of these forms. I knew that the originals had previously been altered to white out some improper racial coding. I produced photocopies on my lawyer’s advice which did not show, because of the Xerox process, the whited out portions on the originals. When the Attorney General’s Office later demanded, the originals were produced.

"me. steinman: Did you know when you sent in the photocopies that the originals had been altered; is that correct?

"the defendant: Yes.

"me. steinman: Okay. And, did you know that the fact of such alteration would not appear from merely looking at the photocopies?

"the defendant: Yes.

"me. steinman”: Okay. And was it your intent at that time that the fact of such alteration would not be known to anyone who looked at the photocopies rather than the originals?

"the defendant: Yes.

"me. steinman: Okay. And, were you aware, as I said, that the Attorney General’s Office was commencing an investigation proceeding relative to the employment practices of the Attentive Care?

"the defendant: Yes.”

This case falls within the rule enunciated in People v Thomas (53 NY2d 338, 340) as follows: "The legal sufficiency of a conceded set of facts to support a judgment of conviction entered upon a guilty plea may not be saved for appellate review by conditioning the plea on defendant’s right to appeal that issue, even though the prosecutor consents to, and the Trial Judge approves, the entry of such a conditional plea.”

Accordingly, no effect may be given to the agreement to condition defendant’s plea on a right to appeal (People v Thomas, supra; see also, People v O’Brien, 56 NY2d 1009). We note, however, that defendant’s argument addressed to the constitutionality of Penal Law § 215.40 is without merit.

The dissenter would conclude that defendant’s deceptive conduct, which was designed to conceal the true nature of the original records and thus, as admitted by his plea of guilty, to prevent the production or use of those original records, was merely "not in compliance with the terms of the subpoena”. The critical issue on this appeal, however, is whether the indictment fails to allege an essential element of the crime charged. One searches the dissent in vain for a response to that issue. Instead, the dissenter suggests that the crime was not committed unless the defendant "altered any of the originals [or] directed that such alterations be made” after the subpoena was served. That suggestion ignores the clear mandate of the statute and adds elements to the crime which are not found in the statutory language.

All concur, except Callahan, J., who dissents and votes to reverse and dismiss the indictment, in the following memorandum.