People v. Kase

In People v Kase (144 Misc 2d 174 [Sup Ct, Monroe County 1989]) the defendant was charged with intimidating a witness in the third degree, in violation of Penal Law 215.15 (1). The defendant had been arrested for criminal contempt and harassment because he violated a Family Court order of protection by slapping his estranged wife across the face. While in jail, the defendant telephoned his wife and asked her to withdraw the charges. When she refused, he threatened to kill her and her parents. (Supra, at 175.) The court dismissed the charge of intimidating a witness, reasoning that Penal Law 215.15 (1) does not apply because "[t]his section was not designed to deter a defendant from threatening a victim or witness after such individual had already reported a crime to the appropriate authorities." (Supra, at 176.) In a footnote, the Kase court stated that Penal Law 215.11 (1), tampering with a witness in the third degree, "is equally inapplicable, since the defendant's wife was not about to be called as a witness in a criminal proceeding, as none was pending." (Supra, at 176, n 3.) The court concluded that the circumstances in question fell into a gap in the law, not being covered by either the prohibition against tampering with a witness or intimidation of a witness. Thus, the comment about witness tampering is mere dictum. Supreme Court, Monroe County (Mark, J.), observed that the crime of intimidating a victim or witness "contemplates the intimidation of a person who may wish to give information or has given information, not necessarily in the form of testimony, about a criminal transaction" and is "directed toward conduct calculated to suppress a witness' testimony or information."