New York State has three separate criminal statutes relating to Intimidating a Victim or Witness. Specifically, these charges are:

Intimidating a Victim or Witness in the First Degree is the most serous of these charges, while Intimidating a Victim or Witness in the Third Degree is the least serious. The difference between these charges is discussed in greater detail below. However, it is important to note that all three of these New York Intimidating a Victim or Witness charges can result in a felony record, as well as significant jail time. Additionally, while these charges are frequently brought in conjunction with Criminal Contempt and Witness Tampering charges, these charges are separate and distinct from New York witness tampering and criminal contempt charges.

Intimidating a Victim or Witness in the Third Degree

The least serious of New York Intimidating a Victim or Witness charge is Intimidating a Victim or Witness in the Third Degree. This charge is codified in New York Penal Law Section 215.15. Under New York Penal Law Section 215.15, a person is guilty of Intimidating a Victim or Witness in the Third Degree when:

  1. Knowing that another person possesses information relating to a criminal transaction and other than in the course of that criminal transaction or immediate flight therefrom,
  2. S/he wrongfully compels or attempts to compel such other person to refrain from communicating such information to any court, grand jury, prosecutor, police officer or peace officer by means of instilling in him a fear that the actor will cause physical injury to such other person or another person; OR
  3. S/he Intentionally damages the property of such other person or another person for the purpose of compelling such other person or another person to refrain from communicating, or on account of such other person or another person having communicated, information relating to that criminal transaction to any court, grand jury, prosecutor, police officer or peace officer.

To simplify, the elements of New York Intimidating a Victim or Witness in the Third Degree are:

  1. Knowledge that the person has information relating to a criminal case, AND
  2. Wrongfully preventing or attempting to prevent such person from communicating such information to the Court by means of threatening physical injury, OR
  3. Damaging the property of the person with intent to prevent them from communicating such information to the Court.

Example of Intimidating a Victim or Witness in the Third Degree

An example of conduct that can be charged as Intimidating a Victim or Witness in the Third Degree is threatening to hurt someone if they go to court to testify against you. Importantly, there is no requirement that any physical injury be caused, only that physical injury be threatened.

Sentencing and Penalties for Intimidating a Victim or Witness in the Third Degree

Under New York Law, Intimidating a Victim or Witness in the Third Degree is a Class “E” Non-violent Felony. As such, this charge is punishable by:

  • An indeterminate term of imprisonment up to 1 1/3 to 4 years,
  • A determinate sentence up to 1 year imprisonment,
  • A split sentence (up to 6 months jail, rest of the time on probation),
  • Probation,
  • A conditional discharge (with conditions imposed by the court, such as obeying by the terms of an order of protection, or completing community service).

Intimidating a Victim or Witness in the Second Degree

New York Intimidating a Victim or Witness in the Second Degree charge is codified in Penal Law Section 215.16. This charge is very similar to New York’s Intimidating a Victim or a Witness charge, however rather than instilling the fear of physical harm, this particular charge requires that a physical injury actually be caused.

Under Penal Law Section 215.16, a person is guilty of Intimidating a Victim or Witness in the Second Degree, when:

  1. Other than in the course of that criminal transaction of immediate flight therefrom,
  2. S/he intentionally causes physical injury to another person for the purpose of obstructing, delaying, preventing or impeding the communication by such other person or another person of information relating to a criminal transaction to any court, grand jury, prosecutor, police officer or peace officer or for the purpose of compelling such other person or another person to swear falsely; OR
  3. Intentionally causes physical injury to another person on account of such other person or another person having communicated information relating to a criminal transaction to any court, grand jury, prosecutor, police officer or peace officer; OR
  4. Recklessly causes physical injury to another person by intentionally damaging the property of such other person or another person, for the purpose of obstructing, delaying, preventing or impeding such other person or another person from communicating, or on account of such other person or another person having communicated, information relating to a criminal transaction to any court, grand jury, prosecutor, police officer or peace officer.

Simply put, under New York Law a person is guilty of Intimidating a Victim or Witness in the Second Degree when s/he intentionally or recklessly causes physical injury to another person either (1) to prevent them from communicating information about a crime to the Court, the prosecutor or the police, OR (2) because they reported such information to the Court, the prosecutor, or the police. Importantly, this crime cannot be charged by the prosecutor if the physical injury happened during the commission of the crime or during immediate flight therefrom.

What is the Legal Definition of Physical Injury?

The legal definition of “Physical Injury” comes from Article 10 of the New York Penal Code. Under Article 10, physical injury is defined as means impairment of physical condition or substantial pain.

Example of Intimidating a Victim or Witness in the Second Degree

An example of Intimidating a Victim in the Second Degree charge is punching someone and giving them a black eye and causing substantial pain because they testified against you in the Grand Jury. This example meets all elements of this charge, specifically – causing a physical injury because they testified about a criminal transaction before the Grand Jury against you.

Sentencing and Penalties for Intimidating a Victim or Witness in the Second Degree

Under New York Law, Intimidating a Victim or Witness in the Second Degree is a Class “D” Non-violent Felony. As such, this charge is punishable by:

  • An indeterminate sentence up to 2 1/3 to 7 years in prison,
  • A determinate sentence of 1 year jail or less,
  • A split sentence (up to 6 months jail, rest of the time on probation),
  • Probation (only if there are mitigating circumstances).

Intimidating a Victim or Witness in the First Degree

The most serious of New York Intimidating a Victim or a Witness charges is Intimidating a Victim or Witness in the First Degree. This criminal charge is codified in New York Penal Law Section 215.17.

S 215.17 A person is guilty of intimidating a victim or witness in the first degree when, other than in the course of that criminal transaction or immediate flight therefrom, he: 1. Intentionally causes serious physical injury to another person for the purpose of obstructing, delaying, preventing or impeding the communication by such other person or another person of information relating to a criminal transaction to any court, grand jury, prosecutor, police officer or peace officer or for the purpose of compelling such other person or another person to swear falsely; or 2. Intentionally causes serious physical injury to another person on account of such other person or another person having communicated information relating to a criminal transaction to any court, grand jury, prosecutor, police officer or peace officer.

What is the Legal Definition of Serious Physical Injury?

The legal definition of “serious physical injury” comes from New York Penal Law Article 10. In that article, “serious physical injury” is defined as physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.

Example of Intimidating a Victim or Witness in the First Degree

An example of conduct which would constitute Intimidating a Victim or a Witness in the First Degree is stabbing someone and puncturing their lung because they testified against you at trial. Although this is a very extreme example, serious physical injury requires either creation of a substantial risk of death, protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.

Sentencing and Penalties for Intimidating a Victim or Witness in the First Degree

Intimidating a Victim or Witness in the First Degree is a Class “B” Non-violent felony. As such, this charge is punishable by:

  • A minimum indeterminate sentence of 1 to 3 years in prison,
  • A maximum indeterminate sentence of 8 1/3 to 25 years in prison.

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