Menacing in New York

What puts a person or entity at risk of prosecution?

Menacing under New York Law is taking physical action to place another person in fear of death or imminent bodily injury. There are many different types or degrees of Menacing in New York which range from misdemeanor crimes to felony crimes.

A simple example of Menacing in New York would be striking the outside of someone’s vehicle, attempting to gain entry, while shouting that you intend to do them physical harm.

In this example, it is likely that the person would be placed in fear of imminent physical harm, and you would have taken physical action, and therefore would likely be found guilty of Menacing under New York law.

The Legal Definition of Menacing

N.Y. Penal Law § 120.13, N.Y. Penal Law § 120.14, N.Y. Penal Law § 120.15, and N.Y. Penal Law § 120.18, set out the legal definitions of Menacing in New York.

Menacing is either a misdemeanor or a felony) under state criminal laws depending upon the specifics of the crime and with which degree of Menacing you are charged.

Elements Required to be Proven by Prosecutors:

The “elements” of Menacing are the things that the prosecutor must prove in order for you to be found guilty of this offense. Basically, for a defendant to be convicted in a criminal trial for Menacing under N.Y. Penal Law, all the following must be true:

You must have taken physical action.
That action must have placed the victim in fear for their life or in fear of imminent bodily injury.

Let’s delve a bit more deeply into these elements of the crime of assault to understand their meaning better.

Element #1: Physical Action

The definition of physical activity is performing an intentional physical action. In People v. Gayle, it was held that a person who reached into their bookbag and who exclaimed that they had a gun and they were going to shoot up everyone on a train unless they got their missing cellphone back had committed a physical activity for the purposes of Menacing.

This goes to show that even though the individual did not actually pull a gun on anyone, or physically come in to contact with anyone, he was still found to have taken physical action.

This means that the scope of action that satisfies this element can be incredibly wide.

Richard gets angry at his boss while in the office kitchen. After a heated exchange, he reaches for the knife block. This action would likely be determined to satisfy the physical action element even though he did not physically grab a knife or stab anyone.

Element #2: Placing the victim in imminent fear of injury or death.

The definition of placing the victim in imminent fear of injury or deathis causing someone to reasonably fear for their life or believe that they may be subject to injury. It is important to note that the fear must be of imminent consequences.

In People v. Vazquez, a person who moved his jacket to expose a holstered gun while saying he would use the weapon “next time” was found not to have placed the victim in imminent fear of injury or death. Because the person brandishing the firearm said “next time” and it was clear he had no intention to use it immediately it was found that there was no imminent violence for the victim to fear.

In the above example, if Richard had said “next time, I’m going to stab you” he would not likely be found guilty meeting the imminent fear element of Menacing. If he had just said “I’m going to stab you” without indicating that the action would take place later then, he would likely be found to have met this element of Menacing.

Related Offenses

Charges of Menacing may be brought in addition to, or in place of, charges for certain other related offenses, including:

Related Offense #1: Assault

The definition of Assault is intentionally or recklessly causing injury to another person. Assault can be a misdemeanor or felony depending upon the degree.

People on the information of Fanelli v. Doe, it was held that an individual who shoved a bouncer had not committed assault because the action and injury were so minimal.

Returning to the above example, if Richard had instead reached for the plastic straws and thrown one at his boss, he would likely not be found guilty of assault as the straws were unlikely to inflict serious injury.

Related Offense #2: Stalking

initiating communication with someone in a way that makes them reasonably fear for their safety.

Stalking is the act of following someone and maintaining efforts to communicate with them after they have expressed that they do not wish to communicate and that your actions make them uncomfortable.

In Kimberly O. v. Jahed M., it was held that an ex-boyfriend who regularly waited outside his ex-girlfriend’s apartment was guilty of stalking. For example, if Richard from the above example, were to follow his boss home from work and lurk outside of his window several nights in a row he would likely be found guilty of stalking.

Related Offense #3: Reckless Endangerment

The definition of Reckless Endangerment is recklessly engaging in conduct that is likely to injure another person seriously. Someone who engages in conduct that is reckless, and which places another person in danger of injury will likely be found guilty of reckless endangerment.

In People v. Brinson, a person who led police on a high-speed chase and after encountering slow traffic who continually beeped his horn and tried to force his way through had recklessly endangered those around him.

For example, if Richard from the above example, were to take the knives from the block and start juggling them while his co-workers were having lunch in the office kitchen, he would likely be found guilty of reckless endangerment as they could easily be injured by a falling knife.

What are some of the essential and impactful cases?

There are several cases that have better refined the law surrounding Menacing in New York.

In Holley v. Cty. of Orange, NY, it was held that the crime of menacing does not require injury or even an intent to cause injury. Menacing only requires the intent is to frighten the victim with a fear of imminent serious injury.

This is important because it goes to show that even if Richard from the above example never intended to stab his boss, if he had intended to frighten him with his actions, then he could be found guilty of Menacing.

Another noteworthy case is People v. Stephens, in which a person who was being arrested exclaimed that he had a gun and that he would commit suicide. The person was charged with Menacing but found not guilty because he had not threatened any of the officers or other people around him. He had threatened harm to his own life.

In People v. Jackson, it was held that a man who grabbed and threatened a woman in a stairwell with rape was guilty of Menacing. Even though he did not actually rape the woman, the actions of grabbing her coupled with his threat were sufficient to satisfy the element of menacing.

This case along with Holley v. Cty. of Orange, NY go to show that it is not actually committing threatened acts that Menacing hinges upon but rather placing the victim in reasonable fear of injury or death.

What agencies detect, investigate, and prosecute this crime?

Menacing is investigated by a number of agencies. Generally, when someone is accused of menacing their actions will be investigated by a local police department, and they will be arrested by that agency. They will then generally be prosecuted by their local city or county district attorney office.

Since menacing is a crime that accompanies other serious crimes such as assault, murder, or other violent crimes numerous state and federal agencies may also be involved in the investigation.

The New York Office of the Attorney General may assist in the investigation of the crime, as may the Federal Bureau of Investigation, and the United States Office of the Attorney General.

Penalties for Violating (Statute):

Menacing can be either a felony or a misdemeanor depending upon the degree or type of Menacing with which someone is charged. The potential penalties include:

Menacing in the Third Degree:

Menacing in the third degree is a class B misdemeanor. The sentence for Menacing in the Third Degree ranges from probation with no jail time to up to three months imprisonment.

Menacing in the Second Degree:

Menacing in the second degree is a class A misdemeanor. The sentence for Menacing in the Second Degree ranges from probation with no jail time to up to one-year imprisonment. However, if a weapon is involved in the crime, then the sentence must be at least one-year imprisonment.

Menacing in the First Degree:

Menacing in the first degree is a class E felony. The sentence for Menacing in the First Degree ranges from probation with no jail time to up to four years imprisonment.

Menacing a Police or Peace Officer:

Menacing a police officer or peace officer is a class D felony. The sentence for Menacing in the First Degree ranges from probation with no jail time to up to seven years imprisonment.

Sentencing Enhancements

The penalties for Menacing are steeper if you engage in the crime with a person you know or reasonably should have known was a peace officer or police officer. This converts the crime to Menacing a Police or Peace Officer.

Your prior convictions can also be used to elevate the degree of Menacing with which you are charged. These enhancements can be quite severe as even if you have never before been charged with Menacing if you commit the action towards a peace officer you may find yourself facing up to seven years imprisonment.

What are some of the additional consequences of being convicted?

There are severe additional consequences that you must be aware of if you or a loved one have been charged with Menacing. Violent crimes that rise to felony level carry with them restrictions upon your right to own and possess firearms in the state of New York.

If you are not a United States citizen you may also face immigration consequences should you be convicted of Menacing. Even if you have a green card and lawful permanent residence, you may be subject to having your right to live in the United States being revoked and be subject to deportation.

Legal Defenses to Menacing

Nobody wants to go to jail or pay a fine—and nobody wants a conviction for Menacing on their record. People may start to associate you with this crime, even though they do not understand the specifics of your case.

There are several powerful legal defenses you can use to fight these charges. They include:

Defense #1: Lack of Intent

One of the defenses for Menacing is that the defendant must have intended to place the victim in fear for their life or in fear of imminent injury. In People v. Stephens, a man who was being arrested exclaimed that he had a gun and that he would commit suicide.

Despite being charged with Menacing, he was found not guilty because he had not threatened any of the officers or other people around him. He had threatened harm to his own life. This demonstrates that if the defendant does not have any intent to place others in fear for their lives or in fear of injury, then they do not have the intent required for a Menacing conviction.

In our example from above, if Richard had engaged in a heated exchange with his boss before going in the kitchen and then disengaged, gone into the kitchen, and taken a knife out to prepare a sandwich, he would not have demonstrated the intent required for Menacing.

Defense #2: Lack of Imminent Threat

The second defense for Menacing is that the defendant must have taken some form of imminent action and the threat of harm must be imminent. In People v. Vazquez, a person who moved his jacket to expose a holstered gun while saying he would use the weapon “next time” was found not to have placed the victim in imminent fear of injury or death.

Therefore, a strong defense to a Menacing charge is demonstrating that there was no imminent threat.

Defense #3: Lack of Physical Action

The third defense for Menacing is that the defendant must have taken some form of action. In People v. Nwogu, it was found that an individual who stood up and said “I’m going to blow up” while having a knife in his belt was not guilty of Menacing.

In this case, the defendant never threatened anyone directly, and never reached for his knife. He was found to have not taken any physical action that would have satisfied that element of Menacing.

In the above example, if Richard had merely thrown insults at his boss and never made any move to obtain a weapon or cause harm to his boss, then he would likely have not met the action element required for Menacing and therefore not be found guilty of the crime.

Call us for help.

For questions about Menacing, or to discuss your case confidentially with one of our criminal defense attorneys, do not hesitate to contact us. Convictions for Menacing can carry with them serious jail time, and any felony conviction comes with a number of other consequences.

Depending upon your immigration status you may even be subject to deportation. Defending against a Menacing charge in New York requires careful legal strategy. Our attorneys have a deep understanding of New York criminal law and are ready to help you or your loved one if you have been charged with Menacing.

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