People v. Robinson
| Decision Date | 23 October 1986 |
| Citation | 133 Misc.2d 618,507 N.Y.S.2d 807 |
| Parties | The PEOPLE of the State of New York v. Keith ROBINSON, Defendant. |
| Court | New York County Court |
Mario Merola, Dist. Atty., Bronx County by Brian Wilson, Asst. Dist. Atty., for the People.
Joel Peister, New York City, for defendant.
The defendant herein seeks to dismiss the Fifth Count of the Indictment which charges the defendant with the crime of Tampering with a Witness in the 3rd Degree (P.L. 215.11). He claims that the Count is defective because there was no criminal proceeding in effect at the time of the alleged threat and therefore the statutory prohibition does not apply to him.
The statute under which the defendant was indicted at the time of the occurrence reads as follows:
"A person is guilty of tampering with a witness in the Third degree when knowing that a person is about to be called as a witness in a criminal proceeding:
1--He wrongfully compels or attempts to compel such person to absent himself from, or otherwise to avoid or seek to avoid appearing or testifying at such proceeding by means of instilling in him a fear that the action will cause physical injury to such person or another person.
The complainant, Benjamin Thomason testified in the Grand Jury to the following: on October 28, 1985, in the vicinity of Soundview and Lafayette Avenues in the Bronx, he had just cashed a check for approximately $314.00 at a check cashing store. He was then approached from behind, and felt a gun to his neck. The perpetrator grabbed him around the shoulders and ordered him twice to "Give it up". Toward the end of the encounter, he was facing the defendant. After Thomason gave him the currency, the defendant stepped back, put the gun in his belt, and turned and ran.
Thomason testified further that a friend of his, Jason Barber, was in the vicinity when the incident occurred.
Barber was called and testified that he was standing across the street and saw the defendant approach Thomason from behind. He says he walked over to them and then he saw the defendant run away. He had seen him before--knowing his first name to be Keith.
Barber then testified as follows:
"Q--Following this incident on October 28, 1985, on October 30, 1985, did there come a time when you saw him again?
Q--What were those circumstances?
A--He came up--he approached me with my boss. I was working. He pulled out a gun, and he said, I got to put a bullet in you 'cause you told where I live and that was it.
Q--What happened when he did that?
A--I ran.
Q--When he said that, did he have anything in his hands?
A--The gun.
Q--And what was he doing, please explain.
A--He was pointing toward me like if he was to shoot me, but he didn't, and I ran."
The People concede that the defendant had not yet been apprehended at the time of the alleged intimidation.
This Court has found no specific New York case reference on the stated issue, but it has been addressed in other jurisdictions. The import of those cases suggest that such statutes, similar to New York's P.L. 215.11 have as their goal the prevention of corrupt interference with the administration of Justice. It is not the imminence of the witness' testimony, but the intent of and the...
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People v. Delgado
...criminal offense. Thus, the defendant's actions simply do not rise to the level of tampering with a witness (but see, People v. Robinson, 133 Misc.2d 618, 507 N.Y.S.2d 807). Indeed, the more recently enacted section of the Penal Law declaring a criminal act the intimidation of a victim or w......