In State v. Ravi, decided on September 9, 2016, the Appellate Division addressed three principle issues. This was a case that garnered national attention in the wake of Ravi’s college roommate committing suicide after allegedly discovering that Ravi had recorded and broadcast him having a sexual encounter with a man in their dorm room.
The first issue was whether a defendant could be charged with both witness tampering under N.J.S.A. 2C:28-5 and hindering apprehension under N.J.S.A. 2C:29-3 based on a single discrete act. The answer is “no.”
The Court held in relevant part that “Though both the tampering statute, N.J.S.A. 2C:28-5, and the hindering statute, N.J.S.A. 2C:29-3, broadly proscribe the suppression of evidence, there is a fundamental difference between them. Hindering prohibits such suppression at any point prior to a defendant forming a belief that an official action has been or is about to be instituted. Unlike witness tampering, the hindering statute is phrased in terms of avoiding discovery, apprehension, or the lodging of a charge. For that reason, it is also associated in the Code with escape, eluding, resisting, flight, and physical interference, all of which constitute efforts by a defendant to stay out of the official cross-hairs of law enforcement, without necessarily believing that official action exists or is contemplated. On the contrary, witness tampering addresses action taken after one is already the focus of, or believes he may be the focus of, an official proceeding.
The conduct that hindering addresses is the wrongful avoidance of an official action by attempting to prevent a witness from reporting a crime to the police; the conduct that is the focus of tampering is the wrongful interference with an official action that defendant believes has begun or is about to begin. While it is possible for a defendant to be charged with violation of both statutes, the two violations cannot be based on a single, temporally discrete act. A defendant can be charged with hindering apprehension for intimidating a witness before any investigation is underway, and thereafter charged with witness tampering based on conduct committed after the investigation is pending, inducing a witness to testify falsely
In order to establish the requisite state of mind to transform the suppression of evidence from hindering to tampering, the State must prove that “defendant was aware of facts that would lead a reasonable person to believe that an official action was pending or about to be instituted.” Here, there was ample evidence showing that defendant was aware of pending official action when he contacted M.W. on September 23, 2010. Grover informed defendant on September 22, 2010, that an incident report had been filed concerning allegations made by T.C. and that defendant would be hearing from senior management about the matter. Later that evening, a police officer came to defendant’s dorm room inquiring as to T.C.’s whereabouts. The next morning, counselors and administrators informed defendant that T.C. had committed suicide and directed him to go home. That evening, A.C. phoned defendant to tell him that M.W. had been picked up by the police. When defendant called M.W. on her cellphone, she told him that she could not speak to him because she was at the University Police Headquarters. Thus, at the time defendant sent his text to M.W., he was well aware that an official investigation was underway. Under the Court’s reasoning in D.A., defendant should have been charged only with witness tampering. Based on the facts we have described, there is no legal basis to charge defendant of hindering apprehension.”