New York Tampering with a Witness charges are brought by state prosecutors when an individual wrongfully induces or attempts to induce a witness from appearing or testifying at trial. Under New York Law, there are four different criminal charges relating to witness tampering. Specifically, they are:

  • Tampering with a Witness in the First Degree,
  • Tampering with a Witness in the Second Degree,
  • Tampering with a Witness in the Third Degree, AND
  • Tampering with a Witness in the Fourth Degree.

Tampering with a Witness in the First Degree is the most serious of these charges, while Tampering with a Witness in the Fourth Degree is the least serious. Nonetheless, all of these charges can subject you to jail time, and perhaps a felony conviction. More importantly, New York Tampering with a Witness charges can have an adverse effect on your underlying criminal case.

New York Tampering with a Witness in the Fourth Degree

New York Tampering with a Witness in the Fourth Degree is codified in New York Penal Law Section 215.10. In order to convict someone of Witness Tampering in the Fourth Degree, under Section 215.10, the prosecutor must prove two elements:

  1. Knowledge that a person is or is about to be called as a witness in an action or proceeding, AND
  2. Wrongful inducement or attempted inducement that such person absent himself from or otherwise to avoid or seek to avoid appearing or testifying at, such action or proceeding, OR knowingly making any false statement or practices any fraud or deceit with intent to affect the testimony of such person.

Importantly, it does not matter whether the witness is scheduled to testify on your case or on someone else’s case, so long as those two elements are met. So you can be charged with witness tampering, relating to someone else’s criminal case (not yours), so long as those two element are met.

Sentencing and Penalties for Tampering with a Witness in the Fourth Degree

Under New York Law, Tampering with a Witness in the Fourth Degree is a Class “A” Misdemeanor. As such, this charge is punishable by:

  • Up to 1 year in jail,
  • Probation,
  • Split Sentence (up to 6 months in jail, rest of the time on probation),
  • Conditional Discharge (such as abiding by the terms of the order of protection),
  • Unconditional Discharge (no sentencing conditions set by the court),
  • Time served (even if the time served is just the time spent in arrest processing).

New York Tampering with a Witness in the Third Degree

The charge of Tampering with a Witness in the Third Degree is codified in New York Penal Law Section 215.11. This charge is similar to Tampering with a Witness in the Fourth Degree, however it has one additional element, that is compelling the witness to absent himself or testify falsely by means of instilling fear that the actor will cause physical injury to such person or another person.

The elements of New York Witness Tampering in the Third Degree are:

  1. Knowledge that a person is or is about to be called as a witness in an action or proceeding, AND
  2. Wrongful inducement or attempted inducement that such person absent himself from or otherwise to avoid or seek to avoid appearing or testifying at, such action or proceeding, OR knowingly making any false statement or practices any fraud or deceit with intent to affect the testimony of such person, AND
  3. Instilling the fear that the actor will cause physical injury to such person or another person.

Sentencing and Penalties for Tampering with a Witness in the Third Degree

New York Tampering with a Witness in the Third Degree is a Class “E” Non-Violent Felony. As such, this charge is punishable by:

  • Indeterminate sentence up to 1 1/3 to 4 years in prison,
  • Determinate sentence of 1 year in jail,
  • Split sentence (up to 6 months jail, rest of the time on probation),
  • Conditional Discharge (with conditions set by the court such as community service or abiding by the terms of the order of protection),
  • Unconditional Discharge (no conditions imposed by the court).
  • Time served, even if it is minimal.

New York Tampering with a Witness in the Second Degree

New York Tampering with a Witness in the Second Degree charge is codified in New York Penal Law Section 215.12. It is similar to New York Witness Tampering in the Fourth Degree charge. However, it contains an additional element of intentionally causing physical injury to a person for the purpose of (1) preventing them from testifying or compelling them to testify falsely or causing such injury because the person testified in a judicial proceeding.

The elements of New York Tampering with a Witness are:

  1. Knowledge that a person is, is about to be called as a witness in an action or proceeding, or has testified in a criminal proceeding, AND
  2. Wrongful inducement or attempted inducement that such person absent himself from or otherwise to avoid or seek to avoid appearing or testifying at, such action or proceeding, OR knowingly making any false statement or practices any fraud or deceit with intent to affect the testimony of such person, OR on account of such person testifying in a criminal proceeding, AND
  3. Causing physical injury to a person.

Sentencing and Penalties for Tampering with a Witness in the Second Degree

New York Witness Tampering in the Second Degree is a Class “D” Non-violent felony. As such, this particular charge is punishable by:

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

New York Tampering with a Witness in the First Degree

The most serious of witness tampering charges is New York Tampering with a Witness in the First Degree. This charge is codified in New York Penal Law Section 215.13. Similarly to the other charges, this particular charge also starts with the two elements of Witness Tampering in the Fourth Degree. However, there is an additional element of causing serious physical injury to a person.

Specifically, the elements of New York Tampering with a Witness in the First Degree are:

  1. Knowledge that a person is, is about to be called as a witness in an action or proceeding, or has testified in a criminal proceeding, AND
  2. Wrongful inducement or attempted inducement that such person absent himself from or otherwise to avoid or seek to avoid appearing or testifying at, such action or proceeding, OR knowingly making any false statement or practices any fraud or deceit with intent to affect the testimony of such person, OR on account of such person testifying in a criminal proceeding, AND
  3. Causing serious physical injury to a person.

Sentencing and Penalties for Tampering with a Witness in the First Degree

New York Witness Tampering in the First Degree is a Class “B” Non-violent Felony. As such, this particular charge is punishable by:

  • An indeterminate sentence up to 8 1/3 to 25 years in prison.

Frequently Asked Questions Regarding New York Witness Tampering

1. What is the Statute of Limitations on New York Witness Tampering charges?

The statute of limitations for New York Witness Tampering charges depends on the degree of the crime. For Witness Tampering in the Fourth Degree, the statute of limitations is three years. For Witness Tampering in the First, Second, or Third Degree, the statute of limitations is five years. Importantly, the statutes of limitations can be tolled, or suspended for certain reasons. Therefore, it is absolutely essential that you contact an attorney for a consultation regarding your case to go over your specific situation.

2. What Happens to My Underlying Case if I am Accused or Witness Tampering?

If the prosecutor can establish that you have intentionally engaged in conduct that made the witness unavailable for trial, they will ask for what’s called a Sirois hearing. This hearing is named after a famous New York case called People v. Sirois. A Sirois hearing is an evidentiary hearing in court that allows the prosecutor to present evidence that the accused (commonly called “the Defendant”) engaged in conduct which made the complainant or another witness unavailable.

If the prosecutor is able to prove by a preponderance of evidence that the Defendant engaged in conduct that made the complainant or another eyewitness unavailable, then the court will order an exceptional remedy. This remedy is to admit the Grand Jury testimony of the witness. Importantly, the testimony, when admitted at trial will not be subject to any cross examination. A stenographer will read the Grand Jury transcript to the trial jury and the defense attorney will not be able to ask any questions. Although cross-examination is the corner stone of our criminal justice system, witness tampering (if proven to the court by a preponderance of evidence) results in a forfeiture of that right.

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