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The Spodek Law Group understands how delicate high-profile cases can be, and has a strong track record of getting positive outcomes. Our lawyers service a clientele that is nationwide. With offices in both LA and NYC, and cases all across the country - Spodek Law Group is a top tier law firm.

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New York Penal Law 145 40 Tampering Consumer Product Second Degree

By Spodek Law Group | July 17, 2023
(Last Updated On: October 17, 2023)

Last Updated on: 17th October 2023, 10:57 pm

Understanding New York Penal Law 145.40: Tampering with a Consumer Product in the Second Degree

New York Penal Law 145.40 makes it illegal to tamper with consumer products with the intent to cause physical injury or instill fear of injury in others. This law was enacted to protect the public from dangerous tampering that could harm unsuspecting consumers. Let’s take a closer look at what constitutes tampering under this law, potential penalties, and possible defenses.

Intent Requirements

To be guilty of tampering in the second degree, the tampering must be done with specific intent[2]. This means it must be more than just reckless behavior – there must be a deliberate purpose to:

  • Cause physical injury to another person
  • Instill fear in others that they may be injured

If the tampering is done without either of these intents, it does not qualify as a second-degree offense. However, it could potentially be charged under a different law.

The prosecution has the burden of proving intent beyond a reasonable doubt. If there is insufficient evidence that the defendant purposely meant to harm others, the tampering charge may be defeated.

Potential Defenses

There are a few potential defenses that may apply in tampering cases[1]:

No intent to harm: If there is no evidence you intended to injure anyone, you can fight the charges by demonstrating innocent intent. For example, if you mistakenly believed you had permission to modify products or did so as a prank without malice.

No access to products: You may have a defense if you had no actual access to consumer goods to tamper with them. Evidence showing you could not have physically done the tampering could defeat the charges.

False accusations: If someone else tampered with the products and falsely accused you, that may provide a defense against the charges. Your attorney can investigate if others had opportunity and motive.

Mental incapacity: In some cases, mental disease or defect could be a mitigating factor negating the ability to form intent. Medical records could help substantiate such a defense.

There are other similar charges for tampering with consumer goods[4]:

  • Tampering in the first degree (Class E Felony) – Tampering that results in serious injury or substantial property damage. Punishable by up to 4 years in prison.
  • Tampering in the third degree (Class B Misdemeanor) – Tampering that causes inconvenience but no physical harm. Up to 3 months jail.
  • Tampering with food (Class A Misdemeanor) – Adding any substance to food, drink, or medicine with intent to cause injury.

These related charges have different elements and penalties based on the severity of the offense. Prosecutors may initially charge you with a more serious tampering offense and later negotiate it down to second-degree.


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