NY Penal Law § 210.40: Making an apparently sworn false statement in the first degree

Perjury is a crime that involves lying under oath. There are several different perjury offenses in the New York criminal code. Some are called "perjury," while others use the term "making a false statement." If you are suspected of lying under oath the specific perjury charge that you will face will depend on the circumstances under which the false statement was made. Under New York Penal Law § 210.40 you could be charged with making an apparently sworn false statement in the first degree if:

1. You commit the crime of making an apparently sworn false statement in the second degree,
2. The written instrument involved is one for which an oath is required by law,
3. You made the false statement with intent to mislead a public servant in the performance of his or her official functions, and
4. The false statement was material to the action, proceeding or matter involved.

Robert Young was convicted of grand larceny based on overbilling Medicaid. In appealing his conviction, Young signed an affidavit in support of a pro se application for poor person status. In the affidavit Young stated that his unencumbered assets totaled $45,200. In reality his assets exceeded that amount. Based on the false statements made in the affidavit, Young was convicted of making an apparently sworn false statement in the first degree. People v. Young, 220 A.D.2d 872 (N.Y.A.D. 3 Dept., 1995)

In another case, John Ormsby was convicted of making an apparently sworn false statement in the first degree after submitting a false affidavit in support of a motion he made seeking reversal of a prior conviction. People v. John Ormsby, 774 N.Y.S.2d 191 (N.Y. App. Div., 2004)

1. Perjury in the first degree: New York Penal Law § 210.15
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 lied while making a witness statement at the scene of a crime, prior to any formal criminal proceeding has been commenced, that statement would not have been a "sworn statement" as required by the statute. See People v. Taylor, 44 A.D.3d 1159 (N.Y. App. Div., 2007)

Another defense to a charge of making a punishable false written statement is that the statement was actually true. The prosecutor must prove that the statement you made was in fact a lie, otherwise you will not be convicted of making an apparently sworn false statement in the first degree. 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 the convinced that the statement that Rosano was made was false.

Making an apparently sworn false statement in the first degree is a class E felony. This means that if you are convicted your sentence could include a prison term of up to 4 years, a probation term of 5 years, and payment of a fine.

A person is guilty of making an apparently sworn false statement in the first degree when he commits the crime of making an apparently sworn false statement in the second degree, and when (a) the written instrument involved is one for which an oath is required by law, and (b) the false statement contained therein is made with intent to mislead a public servant in the performance of his official functions, and (c) such false statement is material to the action, proceeding or matter involved.

Making an apparently false sworn statement in the first degree is a serious crime. The penalty for committing this crime is that you could be sent to prison for up to 4 years. 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.