The issue presented is whether the crimes of Tampering with a Witness and Intimidating a Witness in the Third Degrees require that the actor intend to instill fear in the potential witness, or if it is sufficient that fear is instilled in the witness, regardless of the actor's intent.

Defendant was indicted for, inter alia, one count each of Tampering with a Witness in the Third Degree ^[FN1] and Intimidating a Witness in the Third Degree.^[FN2] These charges are based on [*2]testimony by the complainant that on April 2, 2007, defendant left three voice mail messages asking her to drop charges related to an alleged assault and rape occurring two days prior. Complainant testified further that defendant apologized in these messages and asked her to say she was lying about the charges. The complainant said that these calls made her feel scared and unprotected. Notably missing from the complainant's testimony was any indication that defendant threatened to harm her if she did not drop the charges.

Both Tampering with a Witness and Intimidating a Witness in the Third Degree require proof that the individual wrongfully compels another person from communicating information "by means of instilling in him a fear that the actor will cause physical injury."^[FN3] It is not clear from the face of the statutes if the actor's intent to instill fear in the other person is an element of the offense, or if proof that the other person was fearful as a result of the individual's actions is sufficient, regardless of the intent of the actor.

Although the case law on this issue is sparse, from the available Appellate Division decisions it seems there is a split between the First, Second and Third Departments on whether or not the defendant must intend to instill fear in the other person in order for a conviction to stand for either of these offenses. In People v. Soper, 209 AD2d 829 (1994), the Third Department affirmed a conviction for Intimidating a Witness in the Third Degree. It rejected defendant's argument that the trial court impermissibly allowed proof of prior assaults by defendant against complainant, reasoning that this prior violent conduct was "materially relevant to her state of mind, i.e., whether defendant instilled in her a fear that he would cause physical injury." In so holding, the court implied that the "fear" element of Intimidating a Witness in the Third Degree is a subjective standard, measured by the effect of defendant's actions on the potential witness.

On the other hand, in People v. Coursey, 250 AD2d 351 (1998), the First Department held that a defendant's conviction for Tampering with a Witness in the Third Degree was not against the weight of evidence because "[i]n assessing whether the statement constituted an attempt to instill fear, the jury was entitled to draw inferences based on the surrounding events, including subsequent threats made by defendant." This holding suggests that in order to complete the crime of Tampering with a Witness in the Third Degree, one must intend to instill fear in another. Similarly, in People v. Henderson, 265 AD2d 573 (1999), the Second Department held that the crimes of Tampering with a Witness and Intimidating a Witness in the Third Degree may be established upon proof of a defendant's "attempt to instill fear in a victim or witness," regardless of whether he or she was successful in the attempt. [*3]

This Court is bound to follow the Second Department approach, but also feels that this approach more closely matches the legislative intent behind the bill. Tampering with a Witness was originally a single-degree crime, but was amended in 1982 to create three additional degrees, including the offense with which defendant is charged (see Donnino, 1998 Practice Commentaries, McKinney's Cons. Laws of NY PL 215.10). The purpose of adding three degrees to the statute was to "provide criminal sanctions at every stage of the criminal justice system for those persons who intimidate and cause physical injury to victims and witnesses." (Sponsor's Mem, Bill Jacket, L 1982 ch. 664). Similarly, Intimidation of a Witness was created to "specifically criminalize intimidation of victims and witnesses." (Sponsor's Mem, Bill Jacket, L 1985 ch. 667).^[FN4] The use of the word "intimidate" signifies that the bills' creators sought to penalize those who intended to cause the absence of witnesses by intentionally invoking in them a sense of fear. A Memorandum included in the Bill Jacket to Intimidation of a Witness supports this interpretation: "Intimidation is a felony offense when the intimidation or attempt is procured through the use of force or violence or threats of such violence..." (Mem of Counsel to Crime Victims Board, Bill Jacket, L 1985, ch.667) (emphasis added).

The standard for legal sufficiency of an indictment is whether the proven facts and inferences that flow logically from them, when viewed in the light most favorable to the People and when unexplained and uncontradicted, support every element of the crime charged and would be sufficient to warrant a conviction by a jury (People v. Manini, 79 NY2d 561, 568-569 [1992]). At the Grand Jury stage of the proceeding the People need not establish defendant's guilt beyond a reasonable doubt, but only the inference that he committed the crime(s) with which he is charged (People v. Deegan, 69 NY2d 976, 979 [1987]; see also Jennings, 69 NY2d 103, 115). "As long as the Grand Jury could rationally have drawn the guilty inference," the evidence is sufficient (Deegan, 69 NY2d at 979).

Here, the Court finds that the evidence before the Grand Jury was sufficient to support the inference that defendant intended to instill fear in the complainant, despite lack of testimony that he explicitly threatened her. The complainant testified that she received the phone messages in which defendant asked her to drop the charges only two days after he allegedly physically and sexually assaulted her. A reasonable juror could infer from these circumstances that by making these calls defendant intended to instill fear in complainant of future physical injury if she failed to comply with his request.

Accordingly, the Court finds that the evidence adduced before the Grand Jury was legally sufficient to support the charges of Tampering with a Witness in the Third Degree and Intimidating a Witness in the Third Degree.

This shall constitute the decision of the Court. [*4]

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J.S. C.