I switched seats with the driver after a crash in New York: the exposure that creates, and why a defense lawyer comes first

Attorney Answer

Talk to a criminal defense lawyer before you say anything more to the police, an insurer or the other driver, and before you try to correct anything. What you face depends on what has already been said, in what form and to whom. A false account volunteered to the police can be a crime; a false written statement on a form that warns false statements are punishable can be another; and a false written statement in support of an insurance claim can be insurance fraud. A lawyer can tell you which of these is in play, and whether and how anything should be corrected.

Statements to the police. Penal Law § 240.50:

A person is guilty of falsely reporting an incident in the third degree when, knowing the information reported, conveyed or circulated to be false or baseless, he or she:

Subdivision 3 covers a person who “gratuitously” reports false information relating to an actual offense or incident to a law enforcement officer, and the offense is a class A misdemeanor. Whether a statement was gratuitous matters: in People v. Barto, 144 A.D.3d 1641 (4th Dep't 2016), the Appellate Division held that a person who started the contact with the police, and then gave false answers to their questions, had reported gratuitously.

Written statements. Penal Law § 210.45:

A person is guilty of making a punishable false written statement when he knowingly makes a false statement, which he does not believe to be true, in a written instrument bearing a legally authorized form notice to the effect that false statements made therein are punishable. Making a punishable false written statement is a class A misdemeanor.

Insurance claims. Under Penal Law § 176.05(1), a fraudulent insurance act requires knowingly and with intent to defraud presenting a written statement in support of a claim that contains materially false information. Penal Law § 176.10:

A person is guilty of insurance fraud in the fifth degree when he commits a fraudulent insurance act. Insurance fraud in the fifth degree is a class A misdemeanor.

Higher degrees depend on the amount involved. Separately, Insurance Law § 403(c) lets the superintendent impose a civil penalty of up to five thousand dollars plus the amount of the claim for each violation.

What you can do

1. Talk to a New York criminal defense lawyer before you speak to the police, an insurer or anyone else about this, and do not write out your account of what happened for anyone in the meantime. What you say can be used as evidence.

2. Do not sign any statement, accident report or claim form about the crash until you have spoken to that lawyer.

3. Keep copies of anything you have already signed or sent.

4. Do not discuss with the other person what either of you will say.

⏱ Time limits apply. If the police, an insurer or the Department of Motor Vehicles contacts you, or you receive a form with a deadline, the date controls — but speak to a lawyer before you respond.

A New York attorney can look at the specifics quickly, and most offer a short first conversation at no cost. A few minutes on your actual facts is worth more than any general guidance, this page included.