What is Menacing in NYC?
Menacing charges in New York involve alleged acts that cause a fear of physical injury by a physical act. There are 3 degrees of Menacing charges in New York: Menacing in the Third Degree, Menacing in the Second Degree and Menacing in the First Degree. In addition, there is a specific crime called Menacing a Police Officer or Peace Officer. Third Degree and Second Degree Menacing Charges are penalized as a misdemeanor. While Menacing in the First Degree and Menacing a Police Officer or Peace Officer are penalized as a felony.
Degrees of Menacing Charges in New York
- Menacing in the Third Degree
- Menacing in the Second Degree
- Menacing in the First Degree
- Menacing a Police Officer or Peace Officer
What are Menacing Charges?
Menacing charges in New York typically involve a combination of 3 allegations. First, a physical menace. Second, placing or attempting the place another person in fear of a physical injury or worse. Third, the act of placing fear or attempting to place the fear is done intentionally. All 3 elements are questions of fact that depend on specific allegations in each case. For example, there is no single rule of what acts do or do not constitute a physical menace.
First, a physical menace requests act. The classic example is pointing a firearm at another person if the other person does not know that the firearm is unloaded. Courts generally require, as the element states, an allegation of a physical act. Words alone are probably not enough to constitute a Menacing charge, though that could be the basis of a different criminal charge such as Harassment in the Second Degree or Criminal Possession of a Firearm.
Second, the physical menace must place or attempt to place another person in fear of a physical injury or worse. Most Menacing charges state a physical injury, serious physical injury or death. Physical injury encompasses serious physical injury and death. Some Menacing charges require the fear to be reasonable, which is judged by an objective standard. New York defines physical injury under Penal Law Section 10.00(9) as “impairment of physical condition or substantial pain.” Under that definition conditions that cause substantial pain include such minor conditions as a laceration, bruise or swelling.
Third, the alleged act of placing or attempting to place another person in fear of physical injury or worse, must be done intentionally. Under Penal Law Section 15.05(1) New York defines intentionally as a conscious objective to cause a result or to engage in the conduct. Therefore, where Menacing charges require an act to be done intentionally it is a defense if it was not in fact done so.
Menacing and Other Charges in New York
Due to the nature of Menacing charges, often other charges are often brought at the same time. The most commonly charged crimes with Menacing include: Harassment, Stalking, Assault and Weapons Possession. For example:
- Harassment in the Second Degree, Penal Law Section 240.26(1) is charged when a person allegedly, with intent to harass, annoy or alarm another person, he or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same.
- Aggravated Harassment in the Second Degree, Penal Law Section 240.30(3) is charged when a person allegedly, with the intent to harass, annoy, threaten or alarm another person, he or she strikes, shoves, kicks, or otherwise subjects another person to physical contact, or attempts or threatens to do the same because of a belief or perception regarding such person’s race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation, regardless of whether the belief or perception is correct.
- Stalking in the Third Degree, Penal Law Section, 120.50, is charged when a person allegedly, with intent to harass, annoy or alarm a specific person, intentionally engages in a course of conduct directed at such person which is likely to cause such person to reasonably fear physical injury or serious physical injury, the commission of a sex offense against, or the kidnapping, unlawful imprisonment or death of such person or a member of such person’s immediate family.
- Assault in the Third Degree, Penal Law Section 120.00(1), is charged when a person allegedly, with intent to cause physical injury to another person, he causes such injury to such person or to a third person.
- Criminal Possession of a Weapon in the Fourth Degree, Penal Law Section 265.01(2), is charged when a person allegedly possesses any dangerous or deadly instrument or weapon with intent to use the same unlawfully against another.
- Criminal Possession of a Weapon in the Second Degree, Penal Law Section 265.03(3), is charged when a person allegedly possesses any loaded firearm outside of one’s home or place of business.
Sentences in NYC Menacing Cases
The range of punishments for the 4 different degrees of Menacing in New York range from a class A or B misdemeanor to a class D or E felony. Based on the nature of the alleged acts, an aggressive and experienced defense lawyer is often able to obtain a dismissal of the charges or a favorable plea bargain. However, every case is different.
Short of a complete dismissal, an important factor in determining the outcome of Menacing charges involves the relationship between the person charged and the complaining witness and any history between the two parties. In addition, as part of any disposition, an Order of Protection may be required. The Order of Protection, which is typically issued during the pendency of the charges, may be extended for a period of years following disposition of Menacing Charges.
New York Menacing in the Third Degree
In New York, Menacing in the Third Degree, Penal Law Section 120.15, is a class B misdemeanor.
Menacing in the Third Degree is charged when a person allegedly “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.”
As a class B misdemeanor, the maximum sentence for Menacing in the Third Degree is 90 days in jail. However, barring extraordinary circumstances, misdemeanor Menacing charges often lead to a complete dismissal or a favorable plea bargain to a non-criminal offense.
Sentencing for Menacing in the Third Degree in New York
As noted above, as a class B misdemeanor, Menacing in the Third Degree has a maximum sentence of 90 days in jail. However, jail is rarely imposed with Menacing in the Third Degree charges and often an aggressive and experienced defense lawyer can obtain dismissal of the charges are a favorable plea bargain to a non-criminal disposition. Dismissals of Menacing in the Third Degree charges are commonly based on allegations that are insufficiently pleaded that do not make out the required elements of a crime.
Other favorable outcomes include an Adjournment in Contemplation or ACD, which is dismissed and sealed in 6 months or 1 year. The duration of the ACD hinges on if the allegations are categorized as a Family Offense, which involves either a family member of the person charged or if the person charged was once intimate with the complaining witnesses.
If so, the ACD is known as a Family ACD will be dismissed and sealed in 1 year if the person charged obeys the Order and otherwise stays out of trouble. The ACD will be dismissed and sealed in 6 months if it does not involve a Family Offense. In both cases, there will in an Order of Protection in effect during the time period. The Order is vacated at the same time the ACD is dismissed and sealed.
In addition to an ACD, other favorable outcomes include plea bargains to non-criminal charges like Disorderly Conduct and Harassment in the Second Degree. The Order of Protection for both non-criminal charges is in effect for 2 years. At the end of the 2 years, if a person has obeyed the Order and stayed out of trouble, then the case is sealed, but it is not dismissed like an ACD. However, the case is not sealed if the plea bargain was to Harassment in the Second Degree and the allegations involve a Family Offense.
Menacing in the Second Degree in NYC
In New York, Menacing in the Second Degree, Penal Law Section 120.14, is a class A misdemeanor. The crime is punished by up to 1 year in prison.
Menacing in the Second Degree is charged in 3 circumstances:
- He or she intentionally places or attempts to place another person in reasonable fear of physical injury, serious physical injury or death by displaying a deadly weapon, dangerous instrument or what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm;
- He or she repeatedly follows a person or engages in a course of conduct or repeatedly commits acts over a period of time intentionally placing or attempting to place another person in reasonable fear of physical injury, serious physical injury or death; or
- He or she commits the crime of Menacing in the Third Degree in violation of that part of a duly served Order of Protection, or such Order which the defendant has actual knowledge of because he or she was present in Court when such order was issued, or an Order of Protection issued by a court of competent jurisdiction in another state, territorial or tribal jurisdiction, which directed the respondent or defendant to stay away from the person or persons on whose behalf the order was issued
The first type of Menacing in the Second Degree involves the alleged use of a weapon to place a person in reasonable fear of at least a physical injury. The types of weapons under this provision are broad. Both a deadly weapon and dangerous instrument are defined under New York law. Penal Law Section 10.00(12) defines a deadly weapon as any operable firearm as well as the life of many per se weapons.
Dangerous instrument is defined under Penal Law Section 10.00(13) as “any instrument, article or substance [including a vehicle], under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury.”
That includes nearly anything imaginable that could cause a serious physical injury, including ordinary, non-obvious weapons. The provisions also includes causing a reasonable fear to a person with what appears to be a firearm. That means that a Menacing in the Second Degree charges do not necessarily need to involve a firearm. The crime could be charged for what merely appears to be a firearm, such as a replica or a toy that is not obviously an actual firearm.
Notable in this version of Menacing in the Second Degree, is the term reasonable fear. That means that the fear will be judged by an objective standard, whether or not a reasonable person would have a fear of at least a physical injury and not by a person’s subjective belief.
Second, Menacing in the Second Degree is charged is alleged acts that resemble Stalking in the Fourth Degree or Stalking in the Third Degree. The alleged acts must include repeatedly following a person or a course of conduct over a period of time. It is unlikely Menacing in the Second Degree could be charged for an allegation of a single act. However, a single act could lead to Menacing in the Third Degree charges.
Third, Menacing in the Second Degree is charged for the alleged violation of the Order of Protection. The Order may be issued in criminal court or Family Court in New York or a Court in any state. If the Order was issued in New York, then Menacing in the Second Degree charges can be based on either a full or limited Order of Protection.
A full Order requires a person to stay away from the home, school or place of business of a protected person or persons and refrain from communicating from the same party of parties. A limited Order bars a person from committing a crime against a protected party or parties, which is also included in a full Order. However, if the charges are based on an Order issued from another state then the Order must require a person to stay away from the complaining witness.
Menacing in the Second Degree Sentences in New York
Menacing in the Second Degree is a class A misdemeanor and the maximum punishment is up 1 year in prison. However, barring extreme allegations with strong evidence and a prior criminal history, an aggressive and experienced defense attorney is often able to obtain a non-criminal disposition or complete dismissal of the Menacing charge.
Some other sentencing options include an Adjournment in Contemplation of Dismissal or ACD or a plea to Harassment in the Second Degree or Disorderly Conduct. Often Menacing in the Second Degree charges that result in a plea bargain also include obeying an Order of Protection, which is in effect during a case, for a period of time that may between 6 months to 2 years following a disposition.
Menacing in the First Degree
In New York, Menacing in the First Degree, Penal Law Section 120.13, is a class E felony. Menacing in the First Degree punishes alleged recidivist Menacing acts and the crime requires a previous conviction to Menacing charges.
Menacing in the First Degree is charged under 2 circumstances:
- He or she commits the crime of Menacing in the Second Degree and has been previously convicted of the crime of Menacing in the Second Degree; or
- He or she commits the crime of Menacing in the Second Degree and has been previously crime of Menacing a Police Officer or Peace Officer within the preceding 10 years
The allegation that a person has a previous conviction of Menacing in the Second Degree has no time limit. However, there is a 10-year time limit on the previous conviction for Menacing a Police Officer or Peace Officer.
Menacing in the First Degree Sentences in New York
Menacing in the First Degree is a class E felony. The maximum prison sentence is 1 1/3 to 4 years and the minimum is 1 to 3 years. Although prison is not mandatory for a Menacing in the First Degree charge.
Due to the nature of the recidivist allegations, it may be challenging to obtain a favorable plea bargain or a non-prison outcome, however, it is not impossible. Other sentencing possibilities include a 3-year conditional discharge, up to 5 years probation and up to 6 months jail followed by a period of probation.
Menacing a Police Officer or Peace Officer in New York City
Menacing a Police Officer or Peace Officer, Penal Law Section 120.18, is a class D felony in New York.
The maximum prison sentence is 2 1/3 to 7 years and the minimum is 1 to 3 years if a person does not have a prior felony conviction. The crime is specific to complaining witnesses who are either a police officer or a peace officer.
Menacing a Police Officer or Peace Officer is charged when “he or she intentionally places or attempts to place a police officer or peace officer in reasonable fear of physical injury, serious physical injury or death by displaying a deadly weapon, knife, pistol, revolver, rifle, shotgun, machine gun or other firearm, whether operable or not, where such officer was in the course of performing his or her official duties and the defendant knew or reasonably should have known that such victim was a police officer or peace officer.”
First, it may be obvious who is a police officer, who falls under peace officer is less so. The definition of peace officers encompasses most law enforcement outside of police. Peace officers include local sheriffs, investigators, inspectors, park rangers, marshals, parole officers and federal law enforcement officers. Not only must the complaining witness be a police officer or peace officer, he or she must also be in the course of performing their duties.
In addition, the person charged must know or reasonably should know that the complaining witness was a police officer or peace officer. If the police officer or peace officer is in uniform then it might be difficult to argue that a person did not have such knowledge. However, law enforcement who are in plainclothes without a visible badge and who does not identify himself or herself cannot likely be identified.
Second, Menacing a Police Officer or Peace Officer charges require a person to display a weapon or a firearm. However, like Criminal Possession of a Firearm, the firearm does not have to be operable. That means a person who is charged with the crime can be convicted even if the firearm cannot fire ammunition.
Sentences of Menacing a Police Officer or Peace Officer in New York
Menacing a Police Officer or Peace Officer is a class D felony. The maximum prison sentence is 2 1/3 to 7 years and the minimum is 1 to 3 years. However, prison is not mandatory for a conviction of a Menacing a Police Officer or Peace Officer charge. There are several other sentencing options.
Whether or not a defense lawyer can obtain a plea bargain to a lesser offense or a non-prison sentence depends on the specific allegations. Other sentencing options include 3. 4 or 5 years probation and up to 6 months jail and up to 5 years probation.
Hiring a New York City Menacing Lawyer
The criminal justice system is complex and can be intimidating and confusing, especially in New York. Hiring the right New York Menacing attorney is crucial in obtaining the ideal outcome when one is charged with a Menacing crime in NYC.
The best New York City Menacing lawyer is experienced, aggressive and knowledgeable. As a former prosecutor in Manhattan, I have the experience and knowledge from both prosecuting Menacing charges, and aggressively defending people against Menacing charges in NYC.
Speak With a NYC Menacing Attorney Today
If you or a loved one is charged with Menacing in New York City, we’re here to help. Contacting a Menacing lawyer early in your case is important. A knowledgeable and aggressive Menacing lawyer may be able to have the charges completely dismissed based on the facts that are different in every case. In the alternative, a Menacing lawyer may be able to negotiate a favorable bargain to a non-criminal outcome or a lesser charge.
Contact The Law Firm of Andrew M. Stengel
Contact us via the live chat below, through our contact form here, or call us at (212) 634-9222. Initial consultations are free and confidential, and you will speak with Andrew M. Stengel directly.
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