The legal definition of tampering with a consumer product is laid out in:

• New York Penal Law § 145.35 – Definitions
• New York Penal Law § 145.40 – Second Degree
• New York Penal Law § 145.45 – First Degree

Section 145.35 – Tampering with a Consumer Product Defined

What is a “Consumer Product”?

For the purposes of sections 145.40 and 145.45 of this article, “consumer product” means any drug, food, beverage or thing which is displayed or offered for sale to the public, for administration into or ingestion by a human being or for application to an external surface

of a human being.

This definition clarifies what may be considered a consumer product under the laws discussed below. Under this section, consumer products include any drug, food, drink, or other items that are offered to the public for use internally or externally. This is a quite broad definition and encompasses many products. 

Section 145.40 Tampering with a Consumer Product in the Second Degree

Section 145.40 defines tampering with a consumer product in the second degree, a class A misdemeanor, as a person with no authority or good reason to think they have such authority to change a product and does so with the goal of causing harm or fear.

Taking a closer look at Section 145.40 details the elements of the defined crime that must be proven in order for prosecutors to secure a conviction. Let’s consider the text of the law, its precise language, and what it means. A person is guilty of tampering with a consumer product in the second degree when:

1. having no right to do so nor any reasonable ground to believe that he has such right, and
2. with intent to cause physical injury to another or
3.  with intent to instill in another a fear that he will cause such physical injury,
4. he alters, adulterates or otherwise contaminates a consumer product.

Tampering with a consumer product in the second degree is a class A misdemeanor.

• The elements to tampering with a consumer product in the second degree essentially mirror the elements required for proving to tamper with a consumer product in the first degree. The primary difference lies in the extent of harm that may be intended.
• Note that 145.45 requires creating “a substantial risk of serious physical injury to one or more persons,” while 145.40 requires “intent to cause physical injury to another.”
• Given the difference in the level of harm to others, this is likely the reason why the former is an offense in the first degree and is considered a felony while the latter is an offense in the second degree and is categorized as a misdemeanor.
• This means that the second-degree charge would likely carry a lighter sentence as the harm caused would be expected to be less than that of the harm caused by the first-degree charge.

Section 145.45 – Tampering with a Consumer Product in the First Degree 

Under New York State law, Article 145 of the Penal Code defines tampering with a consumer product and related offenses. Section 145.45 defines tampering with a consumer product in the first degree, a class E felony, as a person with no authority to alter a product changing a product in such a way that is meant to cause harm and results in danger to those using the product.

Taking a closer look at Section 145.15 details the elements of the defined crime that must be proven in order for prosecutors to secure a conviction. Let’s consider the text of the law, its precise language, and what it means. A person is guilty of tampering with a consumer product in the first degree when:

1. having no right to do so nor any reasonable ground to believe that he has such right
2. and with intent to cause physical injury to another, or
3. with intent to instill in another a fear that he will cause such physical injury,
4. he alters, adulterates or otherwise contaminates a consumer product,
5. and thereby creates a substantial risk of serious physical injury to one or more persons.

Tampering with a consumer product in the first degree is a class E felony.

The Five Distinct Elements of the Crime 

The definition essentially provides five distinct elements of the crime.

• The first element specifies that the tampering must be done by someone who has no authority or solid reason to think they have such authority. The distinction here is that, if the change to the product is made by, for example, an employee of the manufacturer of the product empowered to change the product, this may not constitute illegal tampering.
• The second element requires that the person doing the tampering do so with the goal of creating injury to the product’s user. Here, the distinction lies in intent. If the products are changed in good faith, and without the goal of causing harm, this may not constitute illegal tampering.
• Another intent aspect is addressed by the third element. This element lays out that the person tampering with a product does so with the intent to cause fear of injury may be guilty of tampering. Note the word “or” between the second element and the third element. This means that either form of intent if proven, may be sufficient for satisfying the element; both are not required.
• Next, the fourth element more clearly defines what may be considered “tampering.” Altering, adulterating, or contaminating a product may qualify as tampering. You can get out your handy thesaurus and find other similar terms that may also be used to prove this element. The key here is that the product must be changed in some fashion.
• Finally, the last element requires that the tampering must cause a significant risk of harm to one or more persons who use the product. The distinction in this last element is that, while there may have been tampering, it may not satisfy this element if the tampering does not cause a risk of harm to others.

What are some related crimes?

Under certain circumstances, various charges similar or related to tampering with a consumer product may be brought in addition to the tampering charge, or instead of it, depending on the situation. Let’s consider a few examples.

Section 145.20 Criminal Tampering in the First Degree

• Section 145.20 lays out the legal definition, and elements required for conviction, of criminal tampering in the first degree. This charge is similar to tampering with consumer products, but it deals primarily instead with damaging public facilities and services.

A person is guilty of criminal tampering in the first degree when:

1. with intent to cause a substantial interruption or impairment of a service rendered to the  public,
2. and have no right to do so nor any reasonable ground to believe that he or she has such right,
3. he or she damages or tampers with a property of a gas, electric, sewer, steam or water-works corporation, telephone  or  telegraph  corporation,  common carrier, nuclear powered electric generating facility, or public utility operated  by  a  municipality  or  district, and
4. thereby causes such substantial interruption or impairment of service.

Criminal tampering in the first degree is a class D felony.

The Elements:

• The first element that must be proved to be convicted of this charge involves intent. The tampering must be done with the goal of disrupting a public service; The distinction here is that you may, for example, accidentally damage a telephone pole, but without meaning to disrupt public telephone service. This would likely not constitute the required intent.
• The second element means that the disruption of public service must be brought about by an individual who has no authority or reason to think they have such authority, to disrupt the public service.

A utility worker who is authorized to work on public utilities and inadvertently causes damage does so with reasonable cause to believe he or she has a right to work on public works and likely would not be convicted of this charge.

• The third element provides us with examples of public works and facilities that, if tampered with, would likely make that tampering a crime. The element lists several specific examples: property of a gas, electric, sewer, steam or water-works corporation, telephone or telegraph corporation, common carrier, and nuclear-powered electric generating facility.

It’s easy to see why society would not want any of these services or facilities tampered with as the consequences could easily be grave. The element also includes a sort of catch-all that leaves room for many other types of public utilities to be included in this element, so even if a facility has been tampered with but is not specifically named on this list, the tampering may still qualify as criminal tampering.

Section 145.15 Criminal Tampering in the Second Degree

• Section 145.15 addresses the offense of criminal tampering in the second degree. Note that there are two significant differences between the elements required for a conviction of criminal tampering in the first degree and criminal tampering in the second degree. First, there is no mention of intent in Section 145.15.
• Second, the section below provides an affirmative defense. An affirmative defense acts as a sort of get-out-of-trouble-free card.
• If the affirmative defense is found to apply, this negates criminal or civil liability for the defendant, even if prosecutors are able to prove that the law was broken by the defendant. To understand these differences better, let’s take a detailed look at the text of the law. A person is guilty of criminal tampering in the second degree when:

1. having no right to do so nor any reasonable ground to believe that he has such right,
2. he or she tampers or makes a connection with property of a gas, electric, sewer, steam or water-works corporation, telephone or telegraph corporation, common  carrier,   nuclear   powered   electric generating  facility,  or  public  utility operated by a municipality or district;
3. except that in any prosecution under this section, it is an affirmative defense that the defendant did not engage in such conduct for a larcenous or otherwise unlawful or wrongful purpose.

Criminal tampering in the second degree is a class A misdemeanor.

The Elements: 

• The first two elements essentially mirror the corresponding elements in the other crimes discussed above. The lack of any defined intent in this section tells us that the action, itself is sufficient to establish wrongdoing and the intent involved, whatever it may be, does not change the outcome of the charge.
• The affirmative defense provided in this section allows for an exception to prosecution for this charge. If the defendant did not engage in tampering for a larcenous, unlawful, or wrongful purpose, they could not be found guilty of the charge.

While the section does not include a specific intent provision as the others do, this affirmative defense does provide a form of intent as it excuses prosecution for the crime if the purpose of the tampering was not wrongful. Purpose and intent are not the same things, but they are related.

For example:

• Imagine you read in the news that a man was found tampering with a fire hydrant spraying water. In addition, he was tampering with the hydrant in order to, or with the intent to stop the hydrant from spraying water.

Ostensibly, this meets the requirement of intent to impair water service. In this instance, the tampering, at first glance, seems like nefarious content. But, provided the full context of the situation, it becomes clear that the affirmative defense may be successful here as the purpose of the tampering was not wrongful, but was in fact well-meaning.

What are the statutory penalties if you are convicted of this crime? 

As we’ve seen, these offenses encompass a range of various felony and misdemeanor classes, each of which carries its own potential sentence. New York’s felony classes and sentences spell out these sentences, which range from no time in prison to life sentences.

When considering sentencing ranges, keep in mind that certain factors may come into play, including prior convictions, persistent offender status, and youthful offender status. Your comportment in court, as well as your attorney, also plays a significant role. There is no substitute for professional and courteous conduct that shows respect and deference to the court and any jury. These folks are regular people in their “real lives” too and as subject to the occasional bad morning, lousy commute or difficult news as anyone. So, it’s to you and your team’s benefit to ensure you make the best possible impression you can.

• A Class A misdemeanor is an offense other than a traffic violation, that carries a sentence of a prison term anywhere from 15 days to one year.
• The sentence for a Class D non-violent felony can range from no prison time, the imposition of probation, or a prison term of one to seven years.
• Lastly, a Class E violent or non-violent felony carries a sentence that can range from no prison time to four years in prison.
• Note that sentences also depend on the particular judge assigned to your case. Attorneys who frequently work in the courthouse may need to appear in, and work with the judges you may need to appear before, have specialized knowledge of the unique leanings, preferences, dislikes, and personalities of those judges. This specialized knowledge is critical and helps you avoid pitfalls.

What are some of the additional consequences of being convicted?

Bear in mind that, regardless of the sentence given by a court, a conviction may cost additional consequences. Consider that professional consequences can include loss of licenses, reputational damage, and financial costs to associated companies. The conviction may also make finding a job or housing more difficult, and require a fight in court that may be costly, both personally and financially.

Convictions may also appear in all manner of routine background checks for things as innocuous as opening a bank account or credit card. It’s essential to take all possible action to avoid a conviction to protect your future opportunities, as well as your family’s.

If you think about how many times you fill out forms that ask whether you’ve ever – ever  – been convicted of a felony, the import of doing all you can to avoid such a conviction becomes clear; In addition, felony convictions can have disruptive effects on your voting rights.

What are some defenses to Tampering with Consumer Products in New York?

There are ways to fight these charges in court. An affirmative defense is one that is specifically laid out by statute, and the burden is on the defendant to prove that the defense is available to them, by a preponderance of the evidence.

Defenses that are not affirmative defenses are offered, the prosecution has the burden to prove that the defendant does not have the defense available to them, beyond a reasonable doubt.

Note the different burdens of proof above. An affirmative defense has a burden of proof on the defendant to show a “preponderance of the evidence.” Other defenses have a burden of proof on the prosecution to show proof “beyond a reasonable doubt.”

Which burden of proof is higher? 

Bear in mind that “preponderance of the evidence” generally means that more evidence than not proves your argument. In rough numeric terms, this means at least 51% of the evidence is on your side.

“Beyond a reasonable doubt” generally means that enough evidence must be shown so that no other explanation would seem reasonable than the one advanced by the prosecution. This is a much higher bar. In rough numeric terms, this means that at least 90% or so of the evidence must be on the prosecution’s side.

The prosecution usually has to meet a higher burden of proof than a defendant given the government’s ability to take away one’s freedom via imprisonment or financial security via monetary penalties.

Available Defenses to Charges of Tampering

Defenses that may be available to charges of tampering with consumer products include justification, meaning that the tampering was necessary as an immediate emergency measure to prevent imminent public or private injury, which injury would happen in short order and through no fault of the defendant.

Infancy may be another available defense, generally shielding those under 18 years of age from criminal liability for their actions. In addition, duress may be an effective defense. If the tampering is done due to the defendant being coerced by threat or use of violence which the defendant would not be able to defend themselves against.

This essentially means that criminal liability for tampering is negated if the defendant had little choice due to the threats of another. For example, imagine a child riding in the child’s seat of a grocery cart with their parent pushing the cart. If that child decides to push a small toy into the center of fruit while their parent shops in the produce aisle, it’s unlikely that child would be held criminally responsible for tampering with consumer products.

Help is Available

Rest assured that help is available if you find yourself faced with any of these issues. It’s crucial to contact a quality criminal defense attorney as soon as possible to advocate on your behalf.

An effective attorney will work hard for you to eliminate or minimize any potential charges or consequences that you may be concerned with. Be sure to contact an attorney at the first sign of any issue so you can take comfort knowing you’ve got someone on your team to set you on the right course and peace of mind.