NY Penal Law § 210.35: Making an apparently sworn false statement in the second degree

If you lie under oath, you would have committed the crime of perjury. While perjury often occurs during a criminal or civil trial when a witness lies while on the witness stand under oath, the witness stand is not the only place where someone could commit perjury. For example, lying in a signed affidavit or in a signed criminal complaint would also be perjury. Furthermore, perjury can be committed by private citizens as well as by government officials such as a police officer. If you are suspected of making a false statement under oath, the specific perjury charge that you will face depends on circumstances under which the false statement was made. Under New York Penal Law § 210.35 you could be prosecuted for making an apparently sworn false statement in the second degree if you:

1. Subscribe a written instrument knowing that it contains a statement which you know is false,
2. You believe that such instrument will be uttered or delivered with a jurat affixed to it, and
3. The instrument is in fact uttered or delivered with a jurat affixed thereto.

Tyrell Mead was convicted of making an apparently sworn false statement in the second degree based on a statement he made under oath in court during a criminal proceeding. Two witnesses testified that they heard gunshots and then saw Mead holding a gun standing near the victim. However, Mead had signed a statement that he was not present when the victim was shot. Based on this false written statement, Mead was convicted of making an apparently sworn false statement in the second degree. People v. Mead, 41 AD3d 1306 (N.Y. App. Div., 2007)

1. Making an apparently sworn false statement in the first degree: New York Penal Law § 210.40
2. Making a punishable written false statement: New York Penal Law § 210.45

If you make a false statement but you did not make it under oath, then you did not commit making an apparently sworn false statement. For example, if you were a witness to a crime and at the scene you gave a statement to a police officer that was not true. You would not have committed making an apparently sworn false statement because you did not make such statement under oath and no formal criminal proceeding has been commenced. See People v. Taylor, 44 A.D.3d 1159 (N.Y. App. Div., 2007)

If you make a false statement because you made a mistake or because you remembered the facts inaccurately, you would not have made the false statement "knowingly." In such a scenario the prosecutor would not be able to prove that you have committed the crime of making a punishable false written statement.

Another defense to a charge of making a punishable false written statement is that the statement was actually true. For example, in the case of People v. Rosano, 409 N.E.2d 1357 (N.Y., 1980), defendant Lawrence Rosano's conviction for making a punishable false written statement was overturned as the court was not convinced that the statement that Rosano made was false.

Making an apparently sworn false statement in the second degree is a class A misdemeanor. If you are convicted your sentence could include up to a year in jail, a probation term of 3 years, and payment of a fine.

A person is guilty of making an apparently sworn false statement in the second degree when (a) he subscribes a written instrument knowing that it contains a statement which is in fact false and which he does not believe to be true, and (b) he intends or believes that such instrument will be uttered or delivered with a jurat affixed thereto, and (c) such instrument is uttered or delivered with a jurat affixed thereto.

Even though making an apparently sworn false statement in the second degree is a misdemeanor and not a felony, it is still serious. If you are convicted you could end up in jail. If you are under investigation for committing this crime, it is important that you are represented by someone with experience to ensure that your rights are protected. The staff at the Law Offices of Stephen Bilkis & Associates has years of experience successfully defending clients in New York criminal courts who have been charged with felonies and misdemeanors in violation of New York state law and federal law. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: the Bronx, Brooklyn, Long Island, Manhattan, Nassau County, Queens, Staten Island, Suffolk County and Westchester County.