Senate Bill S2850

                                 BILL NUMBER:  S2850

 TITLE OF BILL :  An act to amend the penal law, in relation to
tampering with the judicial process


This measure is being introduced at the request of the Chief Judge of
the State and the Chief Administrative Judge.

This measure would amend the Penal Law to establish a new offense,
"Tampering with the Judicial Process," for the purpose of according
judges and other court system employees protections similar to those
already given witnesses, crime victims and law enforcement officials
for crimes committed against them with intent to impede or retaliate
for their participation in 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)