Opinion
September 29, 1995
Appeal from the Jefferson County Court, Clary, J.
Present — Denman, P.J., Green, Fallon, Doerr and Balio, JJ.
Judgment unanimously affirmed. Memorandum: There is no merit to the contention of defendant that County Court erred in failing to dismiss the charge of tampering with physical evidence (see, Penal Law § 215.40). Contrary to defendant's contention, evidence of an actual or prospective official proceeding was not necessary because such an official proceeding "`could readily [have been] contemplated'" under the circumstances (People v DeRue, 179 A.D.2d 1027, 1029). Additionally, there is no requirement that an official proceeding have commenced by the time of trial (see, Penal Law § 215.40). Upon our review of the record, we conclude that the conviction of tampering with physical evidence is supported by legally sufficient evidence and is not against the weight of the evidence (see, People v Bleakley, 69 N.Y.2d 490, 495). Finally, the prosecutor's comments on summation did not mischaracterize the proof and in any event were fair response to defense counsel's summation (see, People v Kyler, 191 A.D.2d 1029, lv denied 81 N.Y.2d 1015; People v Price, 144 A.D.2d 1013, lv denied 73 N.Y.2d 895).