N.Y. Penal Law § 210.20: Perjury; pleading and proof where inconsistent statements involved

§ 210.20 Perjury; pleading and proof where inconsistent statements

involved.

Where a person has made two statements under oath which are

inconsistent to the degree that one of them is necessarily false, where

the circumstances are such that each statement, if false, is

perjuriously so, and where each statement was made within the

jurisdiction of this state and within the period of the statute of

limitations for the crime charged, the inability of the people to

establish specifically which of the two statements is the false one does

not preclude a prosecution for perjury, and such prosecution may be

conducted as follows:

1. The indictment or information may set forth the two statements and,

without designating either, charge that one of them is false and

perjuriously made.

2. The falsity of one or the other of the two statements may be

established by proof or a showing of their irreconcilable inconsistency.

3. The highest degree of perjury of which the defendant may be

convicted is determined by hypothetically assuming each statement to be

false and perjurious. If under such circumstances perjury of the same

degree would be established by the making of each statement, the

defendant may be convicted of that degree at most. If perjury of

different degrees would be established by the making of the two

statements, the defendant may be convicted of the lesser degree at most.