New York Penal Law 120.14: Understanding the “Physical Menace” Element of a New York Menacing Arrest

Menacing in the Third Degree, New York Penal Law 120.15, is a B misdemeanor in New York punishable by up to 90 days in jail. “Menacing” refers to a crime in which a person intentionally places another person in fear for their physical safety by “physical menace.” The question then follows, “What is physical menace and how do New York courts interpret the Penal Law with regard to menacing?” The answer seems simple enough (but as your criminal lawyer can attest to, nothing in the New York Penal Law is so simple) – some physical act that is menacing. As generic and easy as that sounds, this leaves a good deal of room for interpretation. If a person calmly reaches into their pocket, it’s certainly a physical act, but is it menacing? The answer will almost always depend on the particular facts and circumstances of a given case.

In a recent case in New York City’s Manhattan Criminal Court, People v. Gayle, the defendant was accused of Menacing in the Third Degree pursuant to PL 120.15, and attempted to have the Court dismiss that charge based on the argument that the allegations, even if they were true, did not establish that his actions constituted “physical menace.” In Gayle, the defendant was allegedly observed threatening train passengers while he was claiming to have a gun and saying that he would shoot up the train if he didn’t get his phone back. This apparently caused passengers to run out of the train, and a particular victim stated that that person feared that they might suffer serious physical injury based on the defendant’s actions. It’s clear that “physical menace” does not necessarily require that a person wields a weapon, but it’s also fair to say that words alone will typically not be enough to constitute “physical menace.” In Gayle, the Court concluded that the defendant’s statements that he had a gun and would shoot people, combined with the physical act of reaching into his bag, was enough to satisfy the requirement that the defendant’s actions constituted “physical menace.” In addition, the fact that at least one person alleged that they were in fear of serious physical injury as a result of the defendant’s alleged actions satisfied the second requirement of the statute.

Terms of art such as “physical menace” can leave a lot of room for interpretation. While the defendant in Gayle was not successful in having this charge dismissed, there are many similar borderline cases in which the allegations may not be enough to constitute this particular crime. Having a criminal attorney who can identify this kind of issue and protect your rights is critical.

Crotty Saland PC is a New York criminal defense firm founded by two former Manhattan prosecutors. The New York criminal lawyers at Crotty Saland PC represent clients in Menacing crimes and cases throughout the New York City and Hudson Valley region. Further information about New York Menacing offenses, such as Second Degree Menacing, New York Penal Law 120.14, as well as various degrees of Stalking and Harassment, is available on Crotty Saland PC’s New York Crimes of Harassment and Fear Information Page.

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