People v. Hasan

Legal Aid Society (Leah Brownlee of counsel), for defendant. Robert M. Morgenthau, District Attorney of New York County (Hope Olds of counsel), for plaintiff.

OPINION OF THE COURT

CAROL R. EDMEAD, J. During the trial of the instant matter, at the conclusion of subsequent to the defendant's efforts to influence the complainant to withdraw her complaint. Thus, no action or proceeding was pending at the time the defendant placed his calls. Therefore, the complainant was not a witness or about to be called as a witness in an action or proceeding at the time the defendant asked her to drop the charges. Accordingly, the charge of witness tampering should have been dismissed. It should be noted that at this early stage of a criminal proceeding, before the accusatory instrument is filed, charges of intimidation of a witness may be brought for attempting to influence a witness to withdraw the complaint. (See, Matter of Phillippa P., 221 AD2d 159, supra.) However, all intimidation charges require that the defendant cause physical injury or property damage, or instill a fear of physical injury. (See, Penal Law §§ 215.15-215.17.) Yet, a witness may be intimidated to withdraw charges in more subtle ways, such as by harassment with frequent telephone calls, as is charged in the instant case, or by being followed about. This is especially true in domestic violence cases, where the defendant may, for example, repeatedly call the complainant at her place of business, causing her to fear loss of her job. Thus, there appears to be a gap in the law, which the passage of additional legislation may fill, e.g., an A misdemeanor charge of intimidating a witness in the fourth degree. [1] The Court explained that Penal Law § 215.15 (1), intimidation of a witness in the third degree, would have been the appropriate charge. [2] In a footnote, the court states, "While the Practice Commentaries use the past tense also, this would seem to be a very liberal, and impermissible, interpretation of these statutes." (144 Misc 2d, supra, at 176, n 1.) [3] Indeed, the complainant signed an "affidavit" on June 28, 1999, stating that "I am unconditionally dropping all charges against Ash[e]r Hasan. I do not intend to pursue any further action against Mr. Hasan as a result of any past incident and do not wish that any proceedings be sought against him."