Preventing Witness Testimony in New York City


The criminal justice system is predicated on the idea that people who have been wronged, or people who saw or heard other people be victimized, will swear an oath to provide an honest accounting and tell either a judge or jury exactly what they know in an effort to ensure that a hearing or trial results in a just outcome.  Often, without witness testimony, there is little to no evidence that any crime has ever actually been committed.  It should come as no surprise, then, that the legislature has enacted laws to try to ensure that the court system is given the greatest access to witness information by making it a crime to prevent, or attempt to prevent, witnesses from  coming forward and testifying.

Preventing witness testimony is taken especially seriously in New York City.  Many judges take it very personally when allegations are made that some individual is trying to circumvent a fair trial in their courtroom. Accordingly, prosecutors know they will have judicial support in negotiating tough deals and judges will routinely sentence a defendant harshly if convicted of any of the subsections of this charge.  There are four varying degrees of witness tampering that a person can be charged with.  Depending on the severity of the acts that the person does to try to prevent testimony from taking place, or acting against someone who has already testified, the gravity of the charges ranges from misdemeanor to serious felony. One of our aggressive defense attorneys could fight against any allegations of this nature.

Tampering with a Witness in the Fourth Degree, PL § 215.10

At its most basic level, Tampering with a Witness occurs when a person, knowing that another individual is going to called as a witness, attempts to cause that person to refrain from testifying or makes a false statement or commits fraud to affect the testimony of that person.  To be convicted of this charge, the prosecutor is not required to prove, or even allege, any threat of violence or fear of bodily injury as a result of the defendant’s actions.  All the prosecutor needs to establish is that the accused took some action in an attempt to either keep someone from testifying, or to change their testimony.

Frequently, in New York City cases, an individual may try to prevent a witness from testifying by bribing them to leave town or to change their story to the defendant’s benefit. Tampering with a Witness in the Fourth Degree is a class A misdemeanor, punishable by up to one year in jail.

Tampering with a Witness in the Third Degree, PL § 215.11

Similar to Tampering with a Witness in the Fourth Degree, a person can be convicted under this subsection when they either attempt to cause a person to be absent from a court proceeding where they are scheduled to testify, or they induce another person to testify falsely.  However, in order to charge Tampering with a Witness in the Third Degree, the prosecutor is required to produce some evidence that, in order to exert this influence, the defendant put the witness in fear of physical injury.

Under the Penal Law, physical injury is defined as a physical action which results in “substantial pain.” Minor bruising and swelling have been determined to rise to the level of substantial pain and constitute physical injury.  There are limits to what courts will accept as physical injury.  The prosecutor cannot show that a witness was threatened with a papercut, or stubbed toe, and sustain the charge.  However, a punch, slap, or choke have all been determined to cause substantial pain and would support charging Tampering with a Witness in the Third Degree if the witness claims that they were threatened with any of the these.

It must also be noted that the statute does not indicate that the individual must be placed in “reasonable” fear that physical injury will result from their testimony.  It just says that the defendant must instill fear in the defendant that physical injury will occur.  A prosecutor can capitalize on that and make an argument to a judge or jury that they are not required to prove that the fear is rational, or that the average person would have been afraid in that situation, but rather merely that the fear existed.

Tampering with a Witness in the Third Degree is a class E felony, punishable by up to four years in prison.  The fact that the potential punishment for this charge is so severe is an indicator for just how seriously the legislature and courts take attempts to improperly influence or prevent sworn witness testimony in New York City trials.  The mere statement of “if you testify, I will punch you in the face,” can theoretically result in an individual being convicted and sentenced to four years in an upstate New York prison.

Tampering with a Witness in the Second Degree, PL § 215.12

Once a person has moved from threats to actually injuring the witness, they have committed, at a minimum, Tampering with a Witness in the Second Degree.  In order to be convicted of this charge in New York City, the prosecutor is required to show that the defendant intentionally caused physical injury to another person either for the purpose of preventing their testimony, or as a result of their having testified as a witness.

The key section of this statute to note is that the physical injury inflicted must be directly related to the witness’ testimony itself.  It is not enough that the defendant and witness do not like each other and got into a bar fight the day before the witness is scheduled to testify in a case which the defendant has an interest in.  The prosecutor must affirmatively produce evidence that physical injury resulted either from the defendant’s attempt to prevent the witness from testifying, or as some punitive measure taken against the witness because he or she did testify.

Tampering with a Witness in the Second Degree is a class D felony, punishable by up to seven years in prison.

Tampering with a Witness in the First Degree, PL § 215.13

Tampering with a Witness in the First Degree contains the exact same language as the Second Degree with one distinction.  Rather than simply causing physical injury, to be convicted of the First Degree offense, the defendant has to inflict serious physical injury.  This is a much higher threshold.  Serious physical injury must cause some sort of serious impairment, disfigurement, or loss of a bodily or organ function.  A broken arm will not constitute serious physical injury, while the loss of the use of an arm for a significantly extended period of time will.  Extensive scarring in visible areas will also make out serious physical injury.

Again, the serious physical injury can be from an attempt to prevent witness testimony in a New York City case, or as retribution for testimony which has already been given, but that connection still needs to be made.  The prosecutor must produce some evidence which links the purported actions of the defendant in causing the injuries to the witness’ testimony. Tampering with a Witness in the First Degree is a class B felony, punishable by up to 25 years in prison.

Mitigation for These Charges in New York City

Once an individual is convicted of any charge resulting in a criminal record, if they have an additional case, it becomes far more difficult to resolve it in a favorable fashion.  When prosecutors see a criminal record, they are instinctively more skeptical of negotiating down to what a defendant asks for.  This mindset is significantly enhanced when that criminal conviction is for Tampering with a Witness.  Many prosecutors can understand, and even sometimes sympathize, with a person convicted of some crimes.

Addiction can lead to drug crimes, emotional outbursts can lead to assaults, and while prosecutors will never admit that reactions which result in criminal charges are acceptable, they may take mitigating circumstances into account when deciding both that case, and future cases that come up.  But when the underlying criminal case is Tampering with a Witness, a prosecutor is extremely unlikely to accept any mitigation, and will claim that someone who attempts to illegally influence court proceedings is unworthy of any special consideration.  This is where hiring a top attorney becomes a necessity.

Avoiding a conviction for Tampering with a Witness is important both to avoid being marked with a criminal record, and also to ensure that you are not dealt with more harshly in the future for any situation which arises.  This is an example of a charge which, even though the underlying actions which constitute the crime may be relatively minor, the implications are severe.

Contact a New York City Attorney to Discuss Charges Preventing Witness Testimony

If you, or someone you know, has been charged with Tampering with a Witness, call the top attorneys at the Law Offices of Jeffrey Lichtman immediately.  Not only do our experienced lawyers intimately know the law and charges associated with this crime, but we also understand that any conviction under this statute has lifelong implications that must be avoided at all costs.  We can thoroughly investigate the circumstances surrounding the crime, and can find cracks in the prosecution’s case that we can exploit to your benefit.  Call us today for a case evaluation.

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