There are “ugly” crimes and there are “uglier” crimes in the State of New York. Any offense that involves a threat of or actual violence falls in the latter category. Because of this, when crimes such as Assault, Stalking and Menacing are the foundation of an arrest in New York City or anywhere in the State of New York, it is critical to attack the allegation in any means legally permissible. Whether by challenging the evidence or procedure or mitigating conduct, should you not exercise your rights you may find yourself convicted of a stigmatizing crime. Addressing the offense of Menacing in the Third Degree (information about other Menacing degrees or the crimes of Assault and Stalking is available on the New-York-Lawyers.org website and this blog), one normally thinks of a scary looking man brandishing some sort of weapon or dangerous instrument making threats of physical violence accompanied by some sort of a demand. Because there is no stereotypical criminal case of New York Penal Law 120.15, every criminal defense attorney must be prepared to analyze any allegation, set of facts or evidence to ascertain whether or not the complaint against his or her client is legally sufficient and whether or not proof exists beyond a reasonable doubt.
Before addressing the case of People v. Vega, 2011-1052 RI CR, NYLJ 1202719814177, at *1 (App. Tm., 2nd, Decided February 18, 2015), you must have an understanding of the crime of NY PL 120.15. After all, if you do not have a general concept of Third Degree Menacing’s elements, this blog entry will be of little assistance. According to New York Penal Law 120.15, you are guilty of Menacing in the Third Degree if you physically menace another person and when doing so you also place that person in fear of death, imminent serious physical injury or physical injury. Working backwards, physical injury is anything that causes substantial pain (a bruise to the arm or a black eye would do), serious physical injury is something that can cause protracted health or disfigurement issues and if you don’t know what death means then none of this will make any sense. But what is physical menace and is it really a necessary component to a Third Degree Menacing arrest?
According to the court:
Verbal threats do not establish the offense; rather, some physical act is required (Matter of Akheem B., 308 AD2d 402, 403 ; e.g. People v. Martucci, 22 Misc 3d 137[A], 2009 NY Slip Op 50336[U], *1 [App Term, 9th & 10th Jud Dists 2009]; People v. Sylla, 7 Misc 3d 8, 10 [App Term, 2d & 11th Jud Dists 2005]; see also People v. Stephens, 100 Misc 2d 267 [Suffolk Dist Ct 1979]). A demand for money is not a physical act within the statute’s contemplation, even if expressed in an aggressive manner by stating the demand “directly in front of [someone’s] face.” Moreover, the facts do not establish reasonable cause to believe that defendant intended to threaten the complainant with physical injury (compare Matter of Orenzo H., 33 AD3d 492, 493 , and Yvette H. v. Michael G., 270 AD2d 123 , with Matter
The Vega decision is a very useful case. First, intimidation is not enough. The fear must rise to the level that the actions of the accused would reasonable cause another person to believe they were going to at least sustain a physical injury. Second, even if this reasonable fear existed, the allegation as contained in the complaint (and ultimately at trial with a high level of burden) must be that which is accompanied by some form of physical action. Yelling in someone’s grill like an old school drill sergeant simply wont be enough. Would things be different if a fist was raised or the defendant used his hands in a simulated choking? Most certainly.
A law practice dedicated to criminal defense in New York City as well as many of the surrounding suburban counties, the New York criminal defense attorneys at Saland Law PC previously served as prosecutors in the Manhattan District Attorney’s Office.