There are three separate menacing statutes in New York, each specifying
a different gravity of offense. Menacing is often paired with Stalking
(Penal Law section 120.45) and Aggravated Harrassment (Penal Law section
240.30) charges, but can be charged as a standalone offense.
The basic charge is Menacing in the third degree (Penal Law section 120.15)
is defined as follows:
A person is guilty of menacing in the third degree when, by physical menace,
he or she intentionally places or attempts to place another person in
fear of death, imminent serious physical injury or physical injury. Menacing
in the third degree is a class B misdemeanor.
Menacing in the Second Degree (Penal Law section 120.14) is an example
of a bump-up type charge. There are three distinct aggravating factors
which serve to elevate the charge to a class A misdemeanor, punishable
by up to one year in jail. These are (i) committing a third-degree menacing charge
by displaying a deadly weapon, dangerous instrument or what appears to
be a pistol, revolver, rifle, shotgun, machine gun or other firearm (PL 120.14(1); (ii) by
following a person or engaging in a course of conduct or repeatedly committing
acts over a period of time which constitute a third-degree menacing charge (PL 120.14(2); and (iii)
committing a third-degree menacing charge in violation of a
duly served order of protection or stay-away order from a judge (PL 120.14(3).
Finally, there is a felony charge which bumps up a second-degree menacing
charge where the person has been convicted of another second-degree menacing
charge or the crime of menacing a police officer (PL 120.18) within two
years of the commission of the present alleged offense.
Interestingly, the law was passed in 1994 and put into effect in 1995,
to close what the legislature perceived to be a loophole in the anti-domestic
violence laws and was passed as part of the “family protection and
domestic violence intervention act of 1994.” The law has been applied,
however, to a variety of situations, not just those involving domestic
violence or incidents between people who have had intimate access in the
past, i.e. the ex-boyfriend/ex-girlfriend scenario. For example, in
Matter of Jason R.
G., 23 A.D.3d 656 (2d Dep’t 2005), a person was prosecuted for chasing
and threatening another person on the street with a knife. In
People v. Silva, 178 Misc.2d 538 (Bx. Co. Ct. 1998), a Bronx conviction was upheld where
the defendant had threatened a police officer while touching his waistband
after a drug-related conversation.
However, not all allegedly threatening conduct will constitute a violation. In
People v. Nwogu, 22 Misc.3d 201 (Qns. Co. Ct. 2008), Judge Lopresto held that a misdemeanor
information was facially insufficient where it merely alleged that the
defendant stood up and stated “I am going to blow up,” and
that after he did so, a complainant observed the handle of a knife protruding
from the defendant’s waistband. The judge held that the defendant’s
words were not directed at anyone in particular (which was required under
the statute) and that nobody could have been placed in fear of death,
imminent serious physical injury, or physical injury by merely observing
the knife handle. Moreover, the court held, there were insufficient allegations
that the defendant intended to display the weapon, as any display as alleged
in the complaint was inadvertent. Moreover, proof of an injury alone will
not suffice to validate a Menacing charge.
See Matter of Anisha McG., 27 A.D.3d 749 (2d Dep’t 2006).
If you have been arrested for this offense, you should speak with a
menacing, stalking or aggravated harrassment lawyer in New York City.
adjournment in contemplation of dismissal,
criminal defense attorney,
Galluzzo & Arnone LLP,
Manhattan Criminal Court,
Penal Law 120.13,
Penal Law 120.14,
Penal Law 120.15,
Penal Law 120.45,
Penal Law 240.30,