Witness Tampering (Part 4)

by | Feb 29, 2024 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

The unanimous New Jersey Supreme Court concluded with the following in relevant part: Defendant urges us to dismiss the witness tampering charge with prejudice because “the evidence is insufficient” to allow a reasonable jury to conclude “that Hill knew that it was practically certain that his polite, facially innocuous letter would cause the victim to engage in one of the actions specified by the witness-tampering statue.” This gets both the law and the facts wrong. First, there is no requirement that a defendant be “practically certain” that their speech “would” cause a victim to withhold testimony. Speech integral to criminal conduct is speech that is “intended to bring about a particular unlawful act.” Hansen, 599 U.S. at 783. There is no requirement that the speech succeed. Second, although the letter did not expressly threaten A.Z. or ask her to testify falsely, a reasonable jury could conclude that defendant sent it to pressure A.Z. to refrain from testifying against him at trial — i.e., intending to tamper with a witness. We therefore decline to dismiss the witness tampering charge. We also do not disturb defendant’s conviction for carjacking under N.J.S.A. 2C:15-2(a)(1).

Although we agree with the Appellate Division’s determination that N.J.S.A. 2C:28-5(a) is not facially overbroad, we find that defendant’s conviction under that statute must be vacated to ensure that the statute is constitutionally applied to him. We therefore reverse as to count two of his conviction and remand to the trial court for further proceedings consistent with this opinion.

A carjacking conviction carries a much stiffer sentence than a third-degree witness tampering conviction. Carjacking is a first-degree enhanced penalty offense subject to the No Early Release Act and a sentencing range between ten and thirty years in prison. The No Early Release Act (N.E.R.A.) requires an 85% parole ineligibility term and five years of parole supervision upon release from prison. A third-degree witness tampering conviction carries a sentencing range from probation to five years in prison. There is no mandatory period of parole ineligibility for witness tampering.