Enacts the "witness protection and gang violence reduction act of 2014"; repealer

Summary of specific provisions

Section 1 gives the title of the bill.

Section 2 adds a new section 460.23 (Aggravated enterprise corruption) to the Penal Law.

Section 3 adds a new section 120.05-a (Gang assault in the third degree) to the Penal Law.

Section 4 amends section 135.60 of the Penal Law.

Section 5 amends section 135.65 of the Penal Law Section 6 adds a new section 135.67 to the Penal Law.

Section 7 adds a new section 215.09 to the Penal Law.

Section 8 amends section 215.10 of the Penal Law.

Section 9 amends section 215.11 of the Penal Law.

Section 10 amends section 215.12 of the Penal Law.

Section 11 amends section 215.15 of the Penal Law.

Section 12 amends section 215.16 of the Penal Law.

Section 13 adds section 195.03 to the Penal Law.

Section 14 amends section 195.05 of the Penal Law.

Section 15 amends subsection section 195.07 of the Penal Law.

Section 16 amends subdivision 1 of section 50.10 of the Criminal Procedure Law.

Section 17 amends section 190.40 of the Criminal Procedure Law.

Section 18 Repeals section 265.08 of the Penal Law.

Section 19 amends section 265.09 of the Penal Law.

Section 20 amends subdivision 2 of section 60.35 of the Criminal Procedure Law.

Section 21 amends subdivision 8 of section 700.05 of the Criminal Procedure Law.

Section 22 amends subdivision 1 of section 70.02 of the Penal Law.

Section 23 amends subdivision 2 of section 130.91 of the Penal Law.

Section 24 amends section 70.25 of the Penal Law, by adding subdivisions 2-h and 2-i.

Section 25 amends subdivision 6 and 7 of section 710.20 of the Criminal Procedure Law.

Section 26 amends subdivision 3 of section 485.05 of the Penal Law.

Section 27 establishes the effective date.

Justification

Gangs in New York cause a disproportionate amount of harm to communities across the state. Unfortunately, what makes the job of combating gangs and keeping the public safe even more difficult is the proliferation of witness tampering and other forms of obstruction of justice in New York, which have become epidemic and which have no simple solution.

Although we have taken some legislative steps in recent years to attack the problem, we need additional tools to be effective, particularly with respect to witness tampering and intimidation.

Violent criminals in New York are well aware that cases regularly go by the wayside because witnesses are dissuaded from testifying, either through threats of violence or other corrupt persuasion. And witnesses are in regular fear of cooperating for fear of retribution.

Two snapshots from recent cases illustrate the problem.

In the first case, four victims were murdered at a restaurant. One witness came forward to identify the shooter. Within 72 hours of the prosecutor turning over the witness statement to defense counsel, multiple copies of the statement had been posted on the walls of a store two blocks from witness's home and on streetlight poles. In the second case, a defendant was incarcerated awaiting trial on robbery and attempted murder charges. He provided his co-conspirators with the address for a witness that he obtained from medical records provided as part of pretrial discovery. The co-conspirators went to the address and shot and killed the witness's mother and shot and wounded two of the witness's nephews. A search of the defendant's jail cell yielded the discovery materials provided to defense counsel, including the witness's medical records indicating he had been discharged to his mother's care and providing her name and address.

These cases did not happen in New York City. The first case is from Erie County, and the second occurred in Onondaga County. And while there are countless cases from the five boroughs, witness tampering and gang violence clearly impact every county in New York State. Indeed, what was once considered an inner-city epidemic has, in the last decade, included a shift to our upstate communities.

In addition to drugs and weapons, gangs impact society in less obvious, but no less harmful ways. One need only look at the significant negative impact of witness intimidation and witness tampering to see one way that gangs have disenfranchised entire communities.

This bill is designed to reduce gang violence and restore fundamental rights to all of our neighborhoods using a multipronged approach:

Enterprise Corruption

The crime of Enterprise Corruption, does not currently recognize the seriousness of the narcotics trafficking and violent gang activity that underlies the activity to which this bill is directed. If the crime involves drug dealing or violence, Enterprise Corruption, involving patterns of criminal activity by criminal enterprises, is currently only a class B non-violent felony. If the crimes that comprise the pattern are themselves class A or B felonies, the crime should be elevated to a class A-I felony, which this bill would accomplish.

Gang Assault

The existing gang assault statutes can only be applied when a gang causes "serious physical injury" to another person. Serious physical injury is defined in the penal law 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." The only difference between Gang Assault in the Second Degree and Gang Assault in the First Degree is the degree of injury the perpetrator intended to cause, though the crimes only apply if they actually cause serious physical injury.

Serious physical injury is a surprisingly high legal standard. The Court has found that a gunshot wound did not constitute serious physical injury People v. Nimmons, 95 AD3d 1360 (2nd Dept. 2012); a broken nose requiring reconstructive surgery did not constitute serious physical injury People v. Brown, 952 NYS 2d 828 (3rd Dept. 2012); and even a knife slashing which caused a 12-inch-long, 2 to 3-inch-deep wound across the abdomen, did not constitute serious physical injury People v. Rosado, 88 AD3d 454 (1st Dept. 2011).

Given the fact that serious physical injury is such a high standard, it is clear that gang assaults that most people would consider quite serious would not be judged by legal standards as meeting that threshold. The reality is that assaults committed by gangs - in connection with gang initiation activities or day-to-day intimidation and enforcement may well result in what is merely classified as "physical injury" to the victim, defined as "impairment of physical condition or substantial pain." Yet even if committed by a gang, current law only defines this crime as a misdemeanor. It is nonsensical that a gang shooting, in which the victim is, in fact, shot, should be a misdemeanor. This proposal creates a class D felony of Gang Assault in the Third Degree, to close the current hole in the law when a gang intentionally causes physical injury to another person.

Coercion.

This bill will create a degree of coercion that specifies greater penalties for those who threaten or coerce individuals who are less than 16 years old or do so while on school grounds. Gang recruitment and witness intimidation and coercion not only involves young people, but often occurs on school grounds. The increased penalties proposed by this legislation will provided added support and protection for the youth of our state.

Tampering with a Witness and Intimidating a Victim or Witness

Under current law, it is necessary for an "action or proceeding" to be pending before the offense of Witness Tampering can be charged. If an individual who witnessed a crime is coerced to withhold information or give false information to law enforcement authorities at the early stages of an investigation, no avenue currently exists to prosecute those who attempt such corrupt persuasion. Under current law, someone could effectively prevent the prosecution of a crime without being held responsible for this interference. The requirement that an action or proceeding must have already commenced in order for witness tampering to have occurred is inconsistent with the penal sanctions regarding evidence tampering, which prohibit tampering with physical evidence in either a current or prospective investigation. This anomaly in the statutory scheme fails to provide a sufficient deterrent to interference with individuals cooperating with law enforcement authorities and, therefore, jeopardizes the integrity of

prosecutors' cases and general safety. It should, therefore, be illegal to interfere with a witness in a prospective investigation.

Additionally, Tampering with a Witness in the Second and Third Degrees, as well as Intimidating a Victim or Witness in the Second and Third Degrees, are each elevated one level in order to appropriately penalize these serious crimes.

Obstructing Governmental Administration

Existing law fails to address a prevalent problem in the administration of justice - cases where individuals or groups intentionally endeavor to halt the progression of a governmental action or investigation. Under the current crime of Obstructing Governmental Administration, such intentional behavior is simply not a crime. Instead, an individual may be prosecuted under that statute (a class A misdemeanor) only if such an attempt is accompanied by the use of intimidation, physical force, or physical interference.

Moreover, the scope of the available felony, Obstructing Governmental Administration in the First Degree, is far too narrow; it solely applies to "interfering with a telecommunications system thereby causing serious physical injury to another person." In short, if an individual interferes in a government investigation, but does not cause serious physical injury by interfering with a telecommunications system, the most that individual could be charged with is a misdemeanor. Creating a class A misdemeanor base crime of intentionally impairing or perverting the administration of law or another government function, and elevating the existing laws to class E and D felonies, would appropriately promote the administration of justice while also creating a sufficient deterrent to those who would engage in such conduct in the future.

Immunity

When witnesses testify in front of a grand jury, unless they are willing to sign a waiver, New York State law (CPL § 190.40) provides them with immunity from criminal prosecution for any crime about which they testify. This is a fay too broad approach to the right against self-incrimination guaranteed by the federal and state constitutions.

Under current law, a problem arises when prosecutors bring witnesses in front of the grand jury, as typically happens, without full knowledge of who all of the involved parties are, or in what manner they are involved. If prosecutors mistakenly think someone is not involved or is minimally involved in a crime and call them into the grand jury without a waiver of immunity, and that individual goes on to testify about a litany of crimes that they actually committed, prosecutors are completely barred from pursuing, criminal sanctions for that individual as relates to those crimes. In some cases, prosecutors have been completely taken by surprise and have unintentionally given immunity to murderers or other violent criminals.

Notably, in gang prosecutions, the transactional immunity rule acts as a deterrent to grand juries' fully investigating crimes, for fear of inadvertently causing a miscarriage of justice. Thus, prosecutors

often refrain from presenting the testimony of individuals present at the scene of gang shootings or who might otherwise have knowledge of the participants in the crime for fear of inadvertently granting a "free pass" to someone who ought to otherwise be charged with a crime, even if there is evidence completely independent of that witness's grand jury testimony. The result is that the grand jury, which by law and tradition has the "right to every person's evidence," in reality, falls short of that ideal.

The Constitution does not require that the dilemma be resolved the way New York has resolved it. In some other states, if a person testifies about a crime in the grand jury, the prosecutor is barred from using any testimony that the person gives against them or any fruit of that testimony. But if a prosecutor can independently prove the crime without using any evidence derived from the grand jury testimony, the prosecutor can bring the criminal to justice. This is the difference between New York's law, which gives transactional immunity and the laws of the federal government and most other states, which grant. only use immunity.

Gun Crimes

When firearms enter into a criminal scenario, it increases the potential for a lethal outcome. Federal law recognizes that, and, under 18 USC § 924(c), it penalizes the possession, display, or use of a firearm during and in relation to crimes of violence or drug trafficking, and provide for significant mandatory consecutive jail time. At the state level, we must acknowledge that firearms substantially change the nature of violent crimes, which are so often associated with drug trafficking crimes. While existing law attempts to address this issue through FL §§ 265.08 and 265.09 (Criminal Use of a Firearm in the First Degree and Criminal Use of a Firearm in the Second Degree), because these laws only apply to class B and C Violent Felonies, respectively, most crimes simply do not fall under the statutes, making their utility extremely limited. The reality is that any crime, but particularly a Violent Felony Offense or a Drug Trafficking Felony, becomes immeasurably more volatile when firearms are present. In recognition of this fact, this proposal seeks to leverage and simplify the existing Criminal Use of a Firearm statutes to cover all Violent Felony Offenses and Drug Trafficking Felonies, providing a mandatory consecutive five-- year sentence when a perpetrator commits a qualifying offense while in possession of a firearm. A sentencing judge, under limited circumstances, would have the discretion to impose less than the mandatory minimum consecutive sentence.

Conspiracy

Conspiracy is an agreement among two or more people to commit a crime, as long as an overt act in furtherance is also committed by one of the participants. With respect to Violent Felony Offenses, an incongruity arises in that the law treats conspiracy to commit such crimes only as a non-violent felony. For example, conspiracy to commit Rape in the First Degree or Murder in the First or Second Degrees is currently a class B (non-violent) felony, not subject to the sentencing requirements of a Violent Felony Offense. The result is that a plot to kill another could result in an indeterminate prison term of as little

as one to three years, when the societal harm from such violent agreements is much worse. The bill corrects this incongruity by makes conspiracy to commit a Violent Felony Offense itself a Violent Felony Offense.

Inconsistent Sworn Testimony

Under current law, when a witness testifies at trial in a manner that is inconsistent with a prior sworn statement made by him, the prior inconsistent statement is admissible only to impeach the witness. Even though the prior statement was sworn, and the witness is present and subject to cross-examination, the prior statement may not be used as substantive evidence. The unfortunate result is that defendants may intimidate witnesses into changing their prior sworn statements without consequence to the case to which the statement relates, because the prior statement may not serve as affirmative evidence of guilt. This bill changes CPL § 60.35 to make clear that prior inconsistent statements, as long as they are made under oath and the witness is testifying, constitute evidence in chief. Importantly, this rule is not limited to the prosecution, but applies to witnesses called by either side. This provision would not only immeasurably improve gang prosecutions, but would also address a similar, and equally pervasive, problem in domestic violence cases.

Fiscal implications

None to the State

Effective date

This act shall take effect on the first of November next succeeding the date on which it shall have become a law.