The Second Department determined that defendant’s discarding a bag of marijuana as he was being pursued by a police officer for violating the city’s open-container law constituted attempted tampering with physical evidence, not tampering with physical evidence:
Here, the charge of tampering with physical evidence was based on the defendant’s act of discarding the plastic bag containing marijuana as he was being pursued by Officer Scuadroni for violating the City’s open-container law. Contrary to the People’s contention, the defendant’s act of discarding the bag did not constitute an act of concealment within the meaning of Penal Law § 215.40(2). Nevertheless, since the defendant “engage[d] in conduct that tends to effect, and comes dangerously near to accomplishing, an act of concealment intended to suppress the physical evidence” … , there is legally sufficient evidence to sustain a conviction of attempted tampering with physical evidence (see Penal Law §§ 110.00, 215.40[2 …). Accordingly, we reduce the defendant’s conviction of tampering with physical evidence to attempted tampering with physical evidence … . People v Zachary, 2020 NY Slip Op 00165, Second Dept 1-8-20