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NY Penal Law § 215.40: Tampering with Physical Evidence
Tampering with physical evidence, NY Penal Law § 215.40, is hiding, altering or destroying evidence you believe is about to be used in an official proceeding, or making or offering false physical evidence. On Long Island it most often means throwing away or hiding drugs, a weapon or other items when police approach. It is a class E felony, so it can turn a misdemeanor arrest into a felony case. Richard Hochhauser of Hochhauser Criminal & DWI Defense, PLLC is a former Long Island prosecutor who defends these charges in Nassau County and Suffolk County courts.
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NY Penal Law § 215.40 at a glance
| Tampering with physical evidence | |
|---|---|
| Statute | NY Penal Law § 215.40 |
| Charge level | Class E felony (non-violent) |
| Maximum prison term | Up to 4 years |
| Most common on Long Island | Subdivision 2: concealing or destroying evidence |
| Key element | Belief that the evidence was about to be used in an official proceeding |
What NY Penal Law § 215.40 says
A person is guilty of tampering with physical evidence when:
1. With intent that it be used or introduced in an official proceeding or a prospective official proceeding, he (a) knowingly makes, devises or prepares false physical evidence, or (b) produces or offers such evidence at such a proceeding knowing it to be false; or
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.
Tampering with physical evidence is a class E felony.
Source: New York State Senate, official text. Read the full section, including any later amendments, before relying on it.
What the prosecutor has to prove
- For subdivision 2: you believed the evidence was about to be produced or used in an official proceeding (such as a prosecution).
- You intended to prevent that.
- You concealed, altered or destroyed it, or used force, intimidation or deception to suppress it.
Penalties for tampering with physical evidence
| Outcome | What it means |
|---|---|
| Prison | Up to 4 years in state prison (class E felony). |
| Probation | Not a violent felony, so probation or local jail is possible. |
| Effect on the case | It can turn a misdemeanor drug or weapon arrest into a felony case, which affects bail and plea negotiations. |
| Reduced outcome | Often dismissed or reduced as part of resolving the underlying charge. |
Charged with tampering with evidence?
Call before your next court date. Consultations are free, in person at our Hempstead office or by video call or phone call. We answer 24/7.
How tampering with physical evidence charges show up on Long Island
In the cases we’ve seen over the last two years, PL 215.40 charges are almost always brought under subdivision 2, concealing or destroying evidence.
It typically appears with drug possession, weapon possession or resisting arrest charges.
In Nassau County, arrests are arraigned at the Nassau County District Court, 99 Main Street, Hempstead, NY 11550, across the street from our office. Felony cases that are indicted move to Nassau County Court, 262 Old Country Road, Mineola, NY 11501. In Suffolk County, arraignments are held at the Suffolk County District Court, First District, 400 Carleton Avenue, Central Islip, NY 11722. Indicted felony cases go to Suffolk County Court, Arthur M. Cromarty Criminal Court Complex, 210 Center Drive, Riverhead, NY 11901.
An example
As police approach a parked car, the driver swallows a small bag. Police charge drug possession and PL 215.40(2). The defense focuses on what the driver believed at that moment, whether the item was actually evidence of a crime, and whether the facts show intent to prevent its use in a proceeding.
Defenses to a PL 215.40 charge
- No belief in an official proceeding. The prosecutor must prove you believed the item was about to be used in one.
- No suppression. Dropping or discarding an item in plain view may not be concealment or destruction.
- What it was. If the item was not evidence of anything, the case is weak.
- Underlying stop. If the police encounter was unlawful, the evidence may be suppressed.
Related offenses
- Resisting arrest (PL 205.30)
- Obstructing governmental administration (PL 195.05)
- Falsely reporting an incident (PL 240.50)
- Criminal possession of a controlled substance in the seventh degree (PL 220.03)
NY Penal Law § 215.40: frequently asked questions
Is tampering with evidence a felony in New York?
Yes. Tampering with physical evidence under Penal Law 215.40 is a class E felony, punishable by up to 4 years in state prison.
Is throwing away drugs when police approach tampering with evidence?
It can be charged that way, but the prosecutor must prove you believed the item was about to be used in an official proceeding and that you concealed, altered or destroyed it to prevent that.
Can a tampering charge be dismissed?
Often it is dismissed or reduced when the underlying case is resolved, especially when the evidence of intent is weak.
Does tampering make my case a felony?
Yes. Even if the other charges are misdemeanors, a tampering charge makes it a felony case until it is dismissed or reduced.
How much does a lawyer cost for this charge?
Hochhauser Criminal & DWI Defense, PLLC charges a flat fee, quoted after your free consultation, so you know the cost up front.
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This is general information about New York law, not legal advice about your case. Laws change, and the right defense depends on the facts. Prior results do not guarantee a similar outcome.
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