Relates to tampering with the judicial process

Over the last decade, court system personnel - including judges and nonjudicial employees - have reported more than 1,300 incidents of stalking, assault, harassment, menacing, criminal mischief or other threats against them by persons acting with the apparent intent to influence the performance of their official duties or retaliate for official judicial proceedings. New York is not alone in reporting this disturbing trend. Recent years have witnessed a nationwide spike of high-profile crimes against judiciaries in other states with the intent to impede or otherwise tamper with the judicial process. For example, in 2004 a convicted Chicago counterfeiter threatened to bomb a courthouse in retaliation for his conviction. Likewise, a Jacksonville litigant begrudged by a Florida juvenile court ruling took nonjudicial personnel as hostages and threatened to kill them unless the presiding judge resigned - prompting the judge to stage her resignation on live television to save the hostages' lives.

These disturbing developments jeopardize the integrity and independence of the judicial process. Worse, these developments expose a startling gap in New York law, under which almost no crime committed against court system personnel with specific intent to impede the judicial process is punishable as such, even though these crimes constitute particularly egregious threats to the administration of justice. Paradoxically, current law accords heightened protections to witnesses, jurors, crime victims, law enforcement officers and even courthouses to deter and specially punish crimes intended to impede the judicial process, but provides no similar protection to court system personnel themselves.

A brief survey of existing law amply demonstrates this deficiency and its apparent defiance of the statutory intent. The Legislature has properly recognized that law enforcement processes must be strictly safeguarded against improper influence. To that end, it has specially penalized a broad category of "Offenses Relating to Judicial and Other Proceedings" (Penal Law article 215). In addition to proscriptions against bribing and intimidating jurors (see §§ 215.19 (Bribing a Juror), 215.20 (Bribe Receiving by a Juror), 215.23-215.25 (Tampering with a Juror)), and inducing by nonviolent means witnesses not to testify or cooperate with law enforcement officials (see § 215.10 (Tampering with a Witness)), Article 215 specially proscribes threats and violent acts aimed at the judicial process. For example, it criminalizes certain acts committed against witnesses with intent to impede (or retaliate for) their testimony or other cooperation in judicial proceedings (see §§ 215.11-215.13 (Tampering with a Witness); 215.15-215.17 (Intimidating a Victim or Witness)). Article 215 also seeks to provide enhanced penalties for terrorist acts intended to interfere with the conduct of the judicial branch of government, such as bombing or threatening to bomb a courthouse (see §§ 490.20(1) (Making a Terroristic Threat); 490.25(1) (Terrorism)).

This existing statutory scheme generally defines crimes against the judicial process in terms of lesser-included offenses (e.g. Assault, Menacing, Criminal Mischief), with penalties increased by up to two grades for the added criminal intent to disrupt the judicial process. For example, under Article 215, the A misdemeanor of Assault in the Third Degree, which requires the intentional causing of physical injury (see § 120.00(1)), becomes the D felony of Intimidating a Victim or Witness in the Second Degree when committed with the purpose "of obstructing delaying, preventing or impeding the * * * communication of information relating to a criminal transaction" (§ 215.16(1)) or "on account of" such information having been communicated in a criminal investigation (§ 215.16(2)) - a violent felony for sentencing purposes (see § 70.02(1)(c)). In the context of giving testimony in a criminal proceeding, Assault in the Third Degree becomes the D felony of Tampering with a Witness in the Second Degree (see § 215.12(1))-(2)). Likewise, the D felony of Assault in the Second Degree, which requires the intentional causing of serious physical injury (see § 120.05(1)), becomes the B violent felony of Intimidating a Victim or Witness in the First Degree (see §§ 70.02(1)(a); 215.17(1)-(2)) or the B felony of Tampering with a Witness in the First Degree (see § 215.13(1)-(2)). Turning from actual physical injury to mere threat, the B misdemeanor of Menacing in the Third Degree, which requires intentional threat of physical injury (see § 120.15), becomes the E felony of Tampering with a Witness in the Third Degree (see § 215.11(1)-(2)). So too with property crimes: the A misdemeanor of Criminal Mischief in the Fourth Degree, which requires intentional damage to another's property (see § 145.00(1)), becomes the E felony of Intimidating a Victim or Witness in the Third Degree (see § 215.15(2)).

Hence a critical gap in the Penal Law that this measure seeks to fill: the Legislature specially established crimes committed against witnesses, crime victims and even courthouses with intent to tamper with judicial proceedings, but it is still not an aggravated offense in New York to commit crimes against judges and other court system personnel with specific intent to influence or retaliate for official judicial proceedings. This omission is particularly inexplicable given that court system personnel serve on the front lines and are routinely targeted precisely because they do their duty to uphold the law. Especially given each year's hundred or more reports of offenses targeting court system personnel in New York, committed with intent to disrupt a judicial system that must be insulated from inappropriate influence to preserve public confidence in the courts, this gap in the Penal Law seriously undermines the integrity of the justice system and must be filled.

Accordingly, this measure proposes the creation of a new crime, Tampering with the Judicial Process, defined and penalized consistent with the existing structure and intent of Article 215 of the Penal Law. This new crime would not proscribe any conduct not already prohibited by the Penal Law. rather, it would merely increase by one or two grades the penalties for certain existing offenses where the defendant -

(1) commits such an offense with intent to "interfere" with (i.e. "obstruct, delay, prevent, impede, influence or retaliate" for) judicial action or what the defendant believes to be judicial action (i.e. "the conduct or outcome of one or more judicial proceedings, the issuance of one or more judicial orders or mandates, or the making or implementation of one or more determinations in relation to administration of the courts"): and

(2) knows the intended victim is an "officer of the judiciary" (i.e. federal or state judge, nonjudicial employee, judicial hearing officer or county clerk or employee thereof).

LESSER-INCLUDED OFFENSES The offenses designated as lesser-included crimes of Tampering with the Judicial Process reflect the Judiciary's experience with conduct most commonly reported against court system personnel with the proscribed intent to influence, disrupt or retaliate for judicial proceedings. The majority of these reports involve misdemeanor Harassment, Menacing and Criminal Mischief, though the courts have received reports of more serious Stalking, Aggravated Harassment and Assault incidents. Thus, these are the crimes proposed as lesser-included offenses hereunder.

REQUIRED MENS REA AND OTHER ELEMENTS The proposed elements follow Article 215 so as properly to calibrate the several offenses of that Article. For example, the proposed definition of "interfere" stems directly from Intimidating a Victim or Witness (see Penal Law §§ 215.16,215.17 (requiring intent to obstruct, delay, prevent or impede, or action "on account of") testimony in a criminal proceeding). The proposed Tampering crime alters this definition only by substituting "retaliate" for acting "on account of," and by adding intent to "influence" judicial action - an appropriate addition because here the intended victim's duty is to determine judicial disputes or otherwise assist directly in the administration of justice in ways inapposite to victims and witnesses.

As to what "judicial action" a defendant must intend to "interfere" with, as no satisfactory definition exists in the Penal Law, this measure proposes one. It defines "judicial action" as the "conduct or outcome of one or more judicial proceedings, the issuance of one or more judicial orders or mandates, or the making or implementation of one or more determinations in relation to administration of the courts" - precisely the types of judicial matters, and the several stages of judicial proceedings, for which attempts at improper influence and retaliation have been reported.

Experience with the crimes specially penalized hereunder directs that the definition of "officer of the judiciary" be expansive, and include nonjudicial employees of the courts and county clerks (who receive and otherwise handle official judicial process (see NY Const, art VI, § 6(e))) as well as judges. Over the last decade, nonjudicial personnel have been targeted precisely because they play key roles in the determination of judicial disputes, execution of judicial orders and administration of the courts. Moreover, many persons serving in quasi-judicial positions (e.g. judicial hearing officers, Family Court support magistrates and New York City housing court judges) are not "judges" under applicable penal statutes (Penal Law § 125.27(1)(a)(xii); CPL 1.20(23)) yet have comparable adjudicative duties and are essentially indistinguishable from constitutionally-recognized "judges."

LIMITING THE STATUTORY SCOPE . This measure is narrowly tailored and self-limiting in two key respects, designed only to fill gaps in the existing Article 215. First, by requiring both specific intent to "interfere" with judicial action and knowledge that the intended victim serves in an official capacity relating to the courts, this measure narrowly defines the proscribed mens rea (and thus protects the judicial process against undue influence) without providing blanket protection or creating a boundless protected class. Second, this measure penalizes only intentional conduct knowingly directed at court system personnel. Thus, where one or more subdivisions defining lesser-included offenses (e.g. Article 100 (Menacing, Assault, etc.)) penalize mental states less culpable than knowledge or purpose (e.g. recklessness or criminal negligence), those variants are generally excluded as predicate crimes for Tampering with the Judicial Process. Likewise, this measure excludes lesser-included offenses whose elements require a specified victim, a victim of specified age, the commission of a prior crime, or a specified purpose other than to tamper with the judicial process. Accordingly, of the 11 subdivisions defining Assault in the Second Degree, conduct described by only two of them intentionally causing serious physical injury (see § 120.05(1)) and intentionally causing physical injury by means of a deadly weapon or dangerous instrument (see § 120.05(2)) - constitute lesser-included offenses to the proposed crime of Tampering with the Judicial Process (see proposed § 215.90). All other variants of Assault in the Second Degree are excluded hereunder precisely to narrowly target this measure to the goal of protecting the judicial process from purposeful disruption. In the same vein, this measure carefully circumscribes the lesser included offenses of Stalking, Menacing, Criminal Mischief and Aggravated Harassment to exclude variants inapposite to the intentional interference with the judicial process.

PENALTY ENHANCEMENT The proposed penalties likewise parallel the Article 215 enhancements. This measure proposes Tampering with the Judicial Process as a five-grade offense, ranging from A misdemeanor to B felony and varying with the grade of the lesser-included offense. Under this proposal, all lesser-included crimes are elevated by a single grade when committed with intent to interfere with judicial action and defendant knows the intended victim is an officer of the judiciary. The exception is the First Degree crime of Tampering with the Judicial Process, which elevates to B felonies the lesser-included D felonies of Stalking in the First Degree (see § 120.60) and Assault in the Second Degree (see § 120.05). This two-grade increase is the identical increase the Legislature enacted for Intimidating a Victim or Witness in the First Degree (see § 215.17), a B felony whose lesser-included offense is also Assault in the Second Degree, and is proposed hereunder so as to treat witnesses, victims and court system personnel identically when targeted with like criminal intent to tamper with judicial proceedings by means of the same underlying conduct. Also for that reason, inasmuch as the Legislature has designated Intimidating a Victim or Witness in the First Degree as a B violent felony (see § 70.02(1)(0)), this measure also designates Tampering with the Judicial Process in the First Degree as a B violent felony.

This measure, which would have no fiscal impact on the State or its political subdivisions, would rectify longstanding gaps and inequalities in the Penal Law, and thereby deter crimes committed with the dangerous and especially culpable intent to tamper with official judicial proceedings by means of physical violence and other criminal conduct. It would take effect on the first day of November next succeeding the date of enactment.

2005-06 LEGISLATIVE HISTORY : Senate 4170-B (Sen. DeFrancisco, et al) (Passed) Assembly 8289-B (M. of A. Lentol, et a) (Codes)

2007-08 LEGISLATIVE HISTORY : OCA 2007-77 Assembly 5856 (Sen. DeFrancisco) (Codes)