New York Perjury “Primer” Part II: Potential Criminal Defense Codified in Perjury Statute

I previously drafted an entry addressing the elements of the crime of Perjury in New York pursuant to NY Penal Law Sections 210.05 (Perjury in the Third Degree), 210.10 (Perjury in the Second Degree) and 210.15 (Perjury in the First Degree). This entry will address the affirmative defense set forth in the New York Penal Law pursuant to New York Penal Law section 210.25. Although just a brief discussion, if you are charged with Perjury in New York, you should discuss this affirmative defense with your NY criminal defense attorney.

210.25 Perjury; defense

In any prosecution for Perjury, it is an affirmative defense that the defendant retracted his false statement in the course of the proceeding in which it was made before such false statement substantially affected the proceeding and before it became manifest that its falsity was or would be exposed.

In People v. Ezaugi, 2 N.Y.2d 439 (1957), New York’s highest court, the Court of Appeals, addressed the defense of retraction and recantation and held that:

“…recantation as a defense is primarily designed to correct knowingly false testimony only if and when it is done promptly before the body conducting the inquiry has been deceived or misled to the harm and prejudice of its investigation, and when no reasonable likelihood exists that the witness has learned that his perjury is known or may become known to the authorities. Thus, as a practical matter, the use of recantation as a defense should always depend on the circumstances of the given case.”

Although the above holding pre-dated the affirmative defense established by the statute, it is a good guide to the foundation of the rule. However, a closer reading of NY Penal Law 210.25 reveals that one must not merely act “promptly” as set forth in Ezaugi, but retract the false statement during the course of the proceeding, before it substantially affects the proceeding and before the false statement was or would be found out. Again, as noted above, if this defense is viable in your particular case, discuss the facts of your case with your criminal defense lawyer to ascertain whether or not, for example, you retracted your statement before it “substantially affected” the proceeding.

Crotty Saland PC, a New York white collar criminal defense firm founded by two former Manhattan prosecutors, represents clients in all stages of their criminal cases throughout the New York City region.

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