I respectfully disagree. In my view, defendant’s conduct, as charged in the indictment, does not constitute the crime of tampering with physical evidence as defined by Penal Law § 215.40. Defendant’s alleged criminal conduct arises out of an investigation being conducted by the Attorney-General’s office into the employment practices of defendant’s corporate business. Specifically, it was alleged that employment applications of defendant’s company were coded so as to indicate the race of the applicant. The Attorney-General’s office issued defendant a subpoena directing him to deliver certain corporate records, including the "original” employment applications. Prior to receiving this subpoena, the improper code had been "whited-out” on the original employment applications. In response to the subpoena, defendant on *1110the advice of his attorney, caused photocopies of the employment applications to be delivered, which photocopies effectively hid the "whited-out” alteration on the originals. The original employment applications were later produced upon the renewed demand of the Attorney-General.
The indictment charged defendant with the crime of tampering with physical evidence in violation of Penal Law § 215.40 committed as follows: "the defendant, on or about June 19, 1984, believing that certain physical evidence to wit, original employment application forms of Attentive Care of Rochester Inc., were about to be produced or used in an official proceeding or a prospective proceeding, and intending to prevent such production or use, he suppressed such evidience [sic] by an act of deception: knowing that said employment application forms had been altered so as to obscure information material to the then pending official proceeding, the defendant produced photocopies of said employment application forms intending that, by said production of photocopies, he could avoid production of the originals and discovery that said originals had been so altered.”
I agree with the majority that an indictment which makes specific reference by name and section to the statute allegedly violated and which alleges the commission of all the elements of the crime satisfies the jurisdictional requirements for an indictment (People v Wright, 67 NY2d 749, revg for reasons stated in dissenting mem of Callahan, J, 112 AD2d 38, 39; People v Cohen, 52 NY2d 584). However, we are not concerned here with form, but rather with substance. The Court of Appeals has held that an indictment is jurisdictionally defective if "the acts it accuses defendant of performing simply do not constitute a crime” (People v Iannone, 45 NY2d 589, 600; People v Cohen, supra, at 591; People v Case, 42 NY2d 98). In my view, this indictment is fatally and jurisdictionally defective because the acts it accuses defendant of performing do not constitute a crime.
It is significant to note that the tampering alleged here is not the alteration of the original employment applications by "whiting-out” the code placed on them. The prosecution concedes that such alterations were made on the originals before the subpoena was served. There is no claim that defendant altered any of the originals nor directed that such alterations be made. Rather, the tampering alleged in the indictment relates only to defendant’s actions in furnishing photocopies of the employment applications which allegedly concealed the "whited-out” alteration on the originals. Thus, defendant’s *1111actions in furnishing photocopied records, while not in compliance with the terms of the subpoena which could subject him to appropriate sanctions for contempt, is not an act which constitutes the crime of tampering with physical evidence, viz., the original records.
My disagreement with the majority consists of the fact that defendant, in pleading guilty to the charge as described in this indictment, is accepting punishment for conduct which does not constitute a crime. This is, of course, unacceptable under our system of jurisprudence (People v Cohen, supra, at 592 [Gabrielli, J., concurring]; People v Briggins, 50 NY2d 302, 309; People v Case, supra).
Moreover, I cannot agree with the majority’s conclusion that defendant has waived his right to appellate review of the jurisdictional validity of this indictment. Here, unlike either Cohen or People v Thomas (53 NY2d 338), defendant timely moved to dismiss the indictment on the ground that the factual allegations of the indictment failed to make out the crime of tampering with physical evidence. That motion was denied by the trial court. Thus, his actions in conditioning his plea of guilty were in all respects consistent with his prior timely challenge to the sufficiency of the factual statements in the indictment. Accordingly, I conclude that he properly preserved this issue for appellate review (see, People v Cohen, supra, at 587; People v Iannone, supra, at 600) notwithstanding his plea of guilty. Since I conclude that the acts this indictment accuses defendant of performing do not constitute the crime of tampering with physical evidence, I would reverse and dismiss the indictment. (Appeal from judgment of Supreme Court, Monroe County, Mark, J. — attempted tampering with physical evidence.) Present — Dillon, P. J., Callahan, Pine, Lawton and Davis, JJ.