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210.00 Perjury and related offenses

A person commits the crime of perjury in its most basic form when he or she “swears falsely.” Section 210 of the New York Criminal Penal Code defines the act of swearing falsely as occurring when a person makes a false statement which he or she does not believe to be true while either giving testimony or under oath in a subscribed written instrument (such as an affidavit or deposition). The seriousness of a perjury offense may increase depending on such factors as the materiality of the statement to the action, proceeding or matter involved; the setting where the criminal statement is made; and whether the law required that such statement be made under oath.

210.00 Perjury and related offenses; definitions of terms:

The following definitions are applicable to this article:

1. “Oath” includes an affirmation and every other mode authorized by law of attesting to the truth of that which is stated.

2. “Swear” means to state under oath.

3. “Testimony” means an oral statement made under oath in a proceeding before any court, body, agency, public servant or other person authorized by law to conduct such proceeding and to administer the oath or cause it to be administered.

4. “Oath required by law.” An affidavit, deposition or other subscribed written instrument is one for which an “oath is required by law” when, absent an oath or swearing thereto, it does not or would not, according to statute or appropriate regulatory provisions, have legal efficacy in a court of law or before any public or governmental body, agency or public servant to whom it is or might be submitted.

5. “Swear falsely.” A person “swears falsely” when he intentionally makes a false statement which he does not believe to be true (a) while giving testimony, or (b) under oath in a subscribed written instrument. A false swearing in a subscribed written instrument shall not be deemed complete until the instrument is delivered by its subscriber, or by someone acting in his behalf, to another person with intent that it be uttered or published as true.

6. “Attesting officer” means any notary public or other person authorized by law to administer oaths in connection with affidavits, depositions and other subscribed written instruments, and to certify that the subscriber of such an instrument has appeared before him and has sworn to the truth of the contents thereof.

7. “Jurat” means a clause wherein an attesting officer certifies, among other matters, that the subscriber has appeared before him and sworn to the arson truth of the contents thereof.

Juries and judges often base their verdicts, sentences, or other important decisions on sworn testimony and signed documents. Statements given under oath and certain legal documents are presumed to be truthful, or at least made in good faith. To “perjure” yourself is to knowingly make false or misleading statements under oath or to sign a legal document you know to be false or misleading. This crime is taken very seriously because the foundation of the legal system depends on trust and credibility. After all, just one sworn statement has the power to tip the scales of justice and dramatically alter someone’s life.

Perjury is considered a crime against justice, since lying under oath compromises the authority of courts, grand juries, governing bodies, and public officials. Other crimes against justice include Criminal Contempt of Court, Probation Violation, and tampering with evidence.

Perjury has become a part of everyday vernacular in New York and throughout the United States. Whether you sign something under “Penalty of Perjury” or you watch Law and Order, Perjury pops up everywhere. So, instead of rushing out to a criminal defense attorney after you have been charged, the following is a “primer” on the law of Perjury.

Under the New York Penal Law, a person is guilty of Perjury in the Third Degree when he swears falsely. Perjury in the Third Degree is a class A misdemeanor punishable by up to 1 year in jail.

A person is guilty of Perjury in the Second Degree when he swears falsely and when his criminal false statement is (a) made in a subscribed written instrument for which an oath is required by law, and (b) made with intent to mislead a public servant in the performance of his official functions, and (c) material to the action, proceeding or matter involved.

A person is guilty of Perjury in the First Degree when he swears falsely and when his false statement (a) consists of testimony, and (b) is material to the action, proceeding or matter in which it is made. Perjury in the First Degree is a class D felony punishable by up to 7 years in state prison.

State and federal penalties for perjury include fines and/or prison terms upon conviction. Federal law (18 USC § 1621), for example, states that anyone found guilty of the crime will be fined or imprisoned for up to five years. Most state laws have similar provisions, but judges typically have discretion to use leniency (including probation in lieu of a prison sentence) where appropriate.

And if you are convicted, you may even lose your livelihood. If you work in a profession where truthfulness is valued, such as the legal profession, law enforcement, and some public service jobs, you could lose your professional license.

Perjury offenses run the gamut from class A misdemeanor (third-degree) to class D felony (first-degree) offenses. A person convicted of the least serious level of the offense, third-degree perjury, will be subject to a sentence of up to 1 year in prison, a fine of up to $1,000, or both. Conviction for first-degree perjury will result in a sentence including imprisonment for 3 to 7 years, a fine of up to $5,000, or both.

Defenses to Perjury Charges

• Truthfulness of statement

• Retraction of statement

• Perjury “trap” (prosecutor’s manner and method of questioning the witness evidences attempt to “trap” witness into committing perjury rather than to ascertain relevant facts)

• Mistaken belief of fact

The following are NOT defenses to perjury pursuant to Section 210.30 of the Penal Code:

• Defendant’s lack of competence to make the false statement

• Defendant’s mistaken belief in the fact’s immateriality

• Irregular administration of oath or defective authority or jurisdiction of attesting officer where such defect is excusable under any statute or rule of law

Prosecutors do not take perjury cases lightly, so you should contact an experienced defense attorney as soon as possible. Much like obstruction of justice charges, perjury charges are brought against individuals who have knowingly lied to law enforcement and prosecutors in order to either protect themselves or another individual, or to attempt to change the outcome of a case, which is also known as “perverting the course of justice.” Unlike obstruction of justice, however, perjury is committed while under oath. An individual can be under oath when they are testifying in court, or when they are being interviewed in pre-trial depositions. Because the individual is under oath, they will face much more stringent and serious penalties than the average obstruction of justice charge.

Armed with this information, you should have a basic understanding of Perjury. In the second part of this primer on Perjury I will review some of the statutory defenses set out by the Penal Law. However, keep in mind that a review of these statutes is no substitute for an analysis of applicable case law as well as the assistance of a New York Criminal defense attorney.

Even though perjury is a non-violent, non-drug-related offense, prosecutors take it very seriously and will pursue serious penalties for the accused. Because perjury has the potential to subvert justice and potentially contribute to a wrongful conviction or “miscarriage of justice,” Federal law makes perjury a crime punishable by up to five years in prison. If you are accused of perjury, you need an attorney who can represent you effectively and passionately.

The New York Criminal Attorney and New York Order of Protection Attorney at Stephen Bilkis and Associates has a full service white collar criminal defense firm representing clients throughout New York City and the adjacent suburbs. Call us now for free legal advice.

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