Testimony from victims and witnesses are an integral part of criminal proceedings.  In order to discourage efforts to keep these individuals from testifying, it is a crime to intimidate a victim or witness in New York.

It is a crime to try to prevent, through some sort of force or fear tactic, a victim or witness from coming forward to an appropriate authority to report the crime or during the process of charging or prosecuting the crime.

Intimidating a victim or witness focuses on the period of time after the crime has been committed, not during the criminal behavior or its immediate aftermath.

Examples

The following examples could lead to possible witness intimidation charges:

• After assaulting his girlfriend, Joe finds out that the neighbor heard the whole incident.  Joe talks to his neighbor and bribes him with a vacation if he pretends he was not around when the incident happened.

When that does not work, Joe implies that the neighbor’s family will get hurt if he testifies.  Joe could face charges of intimidating a witness in the third degree.

• During a mugging, a man tells his victim “he better not say anything.”  This would not subject him to victim intimidation charges.  However, the victim reports the crime.  A week later, the mugger sees his victim on the street.

He takes a crowbar to the victim’s car and accidentally also injures the victim.  The mugger risks also being charged with victim intimidation.

The Legal Definition of Intimidating a Victim or Witness in New York 

New York Penal Law defines what it means to intimidate a victim or witness. There are two general elements:

1.     Intent
2.     Intimidating behavior

The intent element of the crime generally addresses:

1.     Purpose going into the intimidating behavior
2.     The manner in which the person took the action that was the intimidating behavior

The intimidating behavior element is:

1.     Instilling fear,
2.     Damaging property, and/or
3.     Injuring the victim or witness.

The Three Degrees of Witness or Victim Intimidation Charges

There are three degrees of a witness or a victim intimidation charges.  All degrees of the crime excludes conduct that occurs in the course of the criminal transaction or immediate flight afterward.

Beyond that, the specifics of the elements of the crime depend on a degree.  To better understand each intent in the context of the degree of the charge, let’s take a closer look at each degree of this crime.

• Intimidation in the Third Degree

For intimidating a victim or witness in the third degree, the intent going into the behavior includes knowledge of a person having information about a crime.  After that, there are pairs of intent and intimidating behavior:

1. If the intimidating behavior is instilling fear in the witness, the intent must be to keep that person from relaying that information to an officer, prosecutor, grand jury, or court.
2. If the intimidating behavior is damage to the property of the witness or some other person, the intent can be to prevent communicating information or due to the person already having relayed that incriminating information.

In People v. Diaz, a verbal threat alone may not be sufficient to meet the elements of the crime.  In making the verbal threat to instill fear, there still needs to be a showing that it was for the purpose of compelling that person not to provide the incriminating information to the relevant authorities.

• Intimidation in the Second Degree

For intimidating a victim or witness in the second degree, there is no requirement of knowledge about what a person knows about crime.  As with the third-degree charges, there are pairs of intent and intimidating behavior as follows:

1. If the intimidating behavior is personal injury, the intent must be to keep a person from relaying incriminating information; to get a person to swear to false information; or as a result of a person already having communicated the information to authorities.
2. If the intimidating behavior is intentional damage to property that recklessly caused physical injury, the intent must be to keep someone from communicating information or due to the person already having relayed the incriminating information.

• Intimidation in the First Degree

For intimidating a victim or witness in the first degree, the only intimidating behavior is intentional physical injury to another person.  The intent for injuring someone is to keep a victim or witness from communicating information or due to the person already having relayed the incriminating information.

Related Offenses 

New York Penal Law sets out a number of offenses related to the treatment of witnesses in criminal proceedings. These related offenses all concern how people attempt to influence witnesses.  With respect to an underlying criminal proceeding, a person may be charged with one or more of these offenses related to witnesses depending on his or her alleged actions.

• Tampering With a Witness

The crime of witness tampering seeks to prevent a person from testifying in a court action or proceeding, or alternatively, to cause another person to give false sworn testimony.  For witness tampering in the fourth degree, the tampering action is through wrongful inducements, fraud, or deceit.

• Bribing a Witness

The crime of bribing a witness focuses again on actions taken to prevent or falsely alter sworn testimony that is to be given in a court action or proceeding.  In this crime, the witness influence is executed by providing, offering, or agreeing to provide some sort of benefit to the witness. There is a corresponding criminal charge for a witness that accepts, agrees to accept, or solicits such a bribe.

Essential and Impactful Cases on Witness Intimidation in New York 

The court cases addressing witness intimidation help clarify the prosecution of these charges in New York.  Some cases provide additional details on the evidentiary burden related to a specific element of the crime.  Other cases help distinguish this crime from related offenses.  A few of the impactful cases are discussed here.

• Several court cases have considered the timing for when witness intimidation can occur.  In People v. Henderson, the defendant unsuccessfully argued that a person is only protected until have attained the status of “witness” in a proceeding before the statute would allow for another person to be charged with intimidating the witness.

However, the court ruled that intimidation after that still comes under the purview of this statute.  The case of People v. Buchanon considered similar arguments.  Once a witness has already provided their statement, attempts to intimidate can still be charged under this law.

• In proving a threat, the court said in People v. Diaz that a threatening statement alone is insufficient.  However, witness testimony about verbal threats can provide sufficient evidence to show that such threats fulfilled the statutory requirement of instilling fear.

In the cases of People v. Gamble and People v. Tuff, the court confirmed there was sufficient evidence when there was only testimony of threats or profane statements without any attempts at the physical injury.  In addition, the case of People v. Henderson also held that the person does not have to actually instill fear, only show an intent to do so with the actions.

• Accomplices in the underlying crime related to witness intimidation are also an important area of relevant cases.  First, alleged accomplices or co-conspirators can also be witnesses.  People v. Buchanon considered the case of two men arrested for cocaine possession.  One of the men testified against the other.

The court found that the accomplice could also be a witness, and he could also be the victim of witness intimidation.  In addition, accomplices and co-conspirators in a crime are not automatically joined for any future witness intimidation charges.  If one of the people being charged intimidates a witness, it is a separate criminal proceeding from the underlying crime.

• For degrees of the crime that require the intimidating behavior to involve injury, courts have considered how much injury is necessary.  In People v. Marzano, the court concluded that two small cuts and a small bruise were an insufficient injury.

There needs to be proof of substantial pain or physical impairment, and in this case, the witness only testified as unspecified pain.  In People v. Boler, several facial lacerations and removing the glass from an eye met the threshold.

• With similar purposes for their statutes, the courts have also considered the difference between tampering and intimidating.  People v. Hasan considered charges of witness tampering and the court clarified that tampering could only occur after the official charges have been filed.

Tampering can only occur with testimony, while intimidation addresses all witness communication.

Detection, Investigation, and Prosecution 

Witness and victim intimidation charges are generally a matter for local law enforcement.  There should be an investigation or prosecution that has occurred or is currently underway for the crime for which the victim or witness had information.

The process of Investigation

During the course of that investigation or prosecution, A law enforcement officer, prosecutor, judge, or other court officials may become aware of possible intimidation. There are some types of criminal cases that may involve a special team or task force depending on the nature of the crime.

In that case, someone from that group may be the one that becomes aware of the possible intimidation.  Local law enforcement may then get involved in investigating the intimidation complaint if they are not currently part of the underlying case.

Prosecuting charges of intimidating a witness

In prosecuting charges of intimidating a witness, it may become part of the same proceedings as the underlying crime.  For example, in People v. Rosario-Boria, the defendant faced charges of kidnapping and intimidating a victim or witness and was convicted of both.

In addition, if the intimidating action was a separate crime in itself, that conviction may be used in support of the prosecuting the intimidation charge.  For example, People v. Webster involved a conviction for arson of the home of a witness.

The conviction for arson was sufficient evidence to prosecute the defendant for witness intimidation.  The related charges and proceedings can bring in other investigators and prosecutors to share relevant information across the related cases.

Statutory Penalties for Intimidating a Victim or Witness 

The statutory penalties in New York for intimidating a witness include fines and imprisonment.  As all charges are felonies, regardless of the degree of the charge, they carry a fine of $5000. The specific term of imprisonment varies by the degree of the charge.  The possible imprisonment is:

• Intimidating a victim or witness in the third degree is a class E felony, which carries a prison sentence of up to four years.
• Intimidating a victim or witness in the second degree is a class D felony, which carries a prison sentence of up to seven years.
• Intimidating a victim or witness in the first degree is a class B felony, which carries a prison sentence of up to 25 years.

These statutory penalties are what you face with an intimidation charge.  There may also be additional fines and imprisonment for the underlying crime and for any criminal charges for the actions allegedly undertaken for intimidating the witness. 

Additional Consequences of Conviction for Witness Intimidation 

Intimidating a victim or witness, like any conviction, is stressful and fraught with consequences.  The impacts go beyond the immediate ramifications of incarceration and fines.  In defending yourself against the charges, you will first face a lot of stress, loss of time, and costs.  Even for anyone that has been charged without merit, you will still have to deal with the process.

If you are convicted and imprisoned, there will be additional financial and intangible costs.  You will lose time away from your loved ones.  You will also lose income from the time that you are unable to work as you are going through the pre-conviction process and then for the time that you are away.  The intangible costs such as emotional duress and the impact on your family are harder to measure, but will certainly be felt.

A conviction, or even charges that do not lead to a conviction, tarnish your reputation.  In a connected world, the internet will always have proof of any official charges, records, or media coverage.  Unfortunately, this means that your name may forever be linked with this crime, more so with a conviction.

Legal Defenses to Intimidating a Victim or Witness

There are no statutorily specified affirmative defenses to intimidating a victim or witness.  However, an experienced criminal defense attorney can work to shed doubt on the prosecution’s presentation of any of the elements of the crime.  Some of those possible defenses and arguments that would need to be made are described here.

• The element of intent has the most room for presenting defenses. The intent is difficult to prove objectively.  Rather, the prosecution will attempt to show intent by presenting circumstances from which intent can be inferred.

A defense attorney would need to raise doubts about the prosecution’s interpretation, and offer alternative conclusions to be drawn from the same circumstances.

• Also, as part of the intent element, for a third-degree charge, there needs to be knowledge of the witness having information about the criminal act.  If the charge is only intimidation in the third degree, it would be important to try and show that you would not have known about the witness and his knowledge.

For example, if there was a bystander that was a witness to a purported crime, and if that bystander was otherwise a stranger to you, there would be an argument to be made that you did not know of any information he had.

• The other component of intent is in executing the actions that are intimidating behavior.  For example, the first and second-degree charges require intentionally injuring a person or intentionally damaging property.

A defense attorney could present evidence to show that the injury or damage was the result of unintentional or negligent behavior and the elements of the crime would not be satisfied.

• As demonstrated by cases, there needs to be some further showing or impact from the purportedly intimidating behavior.  Some mild or unspecified pain is insufficient, according to People v. Marzano.  In addition, People v. Diaz noted that a verbal threat alone might not be sufficient.

It would be important for a defense to show that any of the behaviors do not rise to a level to satisfy the requirements for intimidating behavior under the criminal statute.  For example, if you angrily shout at someone but do not threaten to injure anyone, a defense attorney could argue that there is no fear being instilled.

• Finally, any behaviors that would otherwise be considered intimidating do not count if they were done in the course of the criminal event or when attempting to flee immediately afterward.

The timing of a criminal event is not defined, and an attorney can use that to help demonstrate that any actions were actually part of the criminal incident and are not subject to the witness intimidation statute.  However, that would not prevent you with being charged for any harm or damage caused, which would be separate from any intimidation crime.

Let Us Help You 

No matter how you look at it, fighting criminal charges is stressful.  An attorney can help you through the process.  From the beginning, a lawyer can help you evaluate how to interact with law enforcement and help you mitigate potential charges at an early stage.

If you are offered a plea deal, that means there is room to negotiate, and a skilled criminal attorney can help you advocate for a better offer.  In addition, it may mean that there is not a completely solid case against you.  Your legal team can help you determine whether or not a deal is in your favor.

Finally, if you have to go to court to defend yourself, we will be there to fight for you.  Contact one of our local criminal law offices today and find out what we can do for you