There are many violent crimes in the New York Penal Law that may not be considered felonies, but are extremely serious crimes nonetheless. Menacing in the Second Degree, New York Penal Law 120.14(1), is one such crime. Right or wrong, better or worse, the NYPD or other local law enforcement and police departments will err on the side of caution and make an arrest even if you later have a viable defense to challenge the accusation. Punishable by a sentence of up to one year in jail and exacerbated by many additional collateral issues that you and your criminal lawyer will discuss, the law requires that to be guilty of Second Degree Menacing, you must “intentionally place or attempt to place another person in reasonable fear of physical injury, serious physical injury or death by displaying a… dangerous instrument…” Well, it seems fairly clear. If you threaten someone in this manner, you are guilty of this crime. But an interesting question is as follows. What if you do not behave in this manner in front of the intended or alleged victim, but instead share or provide a photograph depicting this menacing behavior? Can that photograph constitute a violation of PL 120.14? Fortunately, a recent court decision addressed this issue. In People v. Stone, 43 Misc. 3d 705 (2014) a court addressed whether a picture of the defendant, in a ski mask and holding a knife, was sufficient to satisfy the display requirement of Menacing in the Second Degree.
The facts of People v. Stone are fairly straight forward. The defendant in this case allegedly sent the victim, his former girlfriend, a number of text messages. Initially, the victim received a text message from the defendant saying “I annihilate people who try to hurt me, I will be good if you give me another chance.” Two days later, the victim received two text messages from the defendant’s number: the first included a photo of a masked man holding a knife, while the second included a photo of the defendant holding up his middle finger. On May 18, 2013, the victim received a text message from the defendant asking her to delete the photos the defendant had sent and another text message 10 minutes later saying “I never exactly loved you,” and a third later that same morning that said, “Bitch.”
The defendant texted the victim 5 times and tried to call her 3 times between May 18, 2013 and May 23, 2014. On July 10, 2013 the defendant sent the victim the photo of the man in a mask holding a knife. This time the picture was accompanied by the words “take that.” When the defendant was arrested on August 21, 2013, he asked the arresting officer whether anyone in court was going to see the photo of him in the mask holding the knife. Prior to trial the defendant made a motion challenging the facial sufficiency of the misdemeanor information specifically alleging that the defendant did not place the victim in “reasonable fear” and that the defendant did not “display” a dangerous instrument. To succeed on a motion challenging facial sufficiency the defendant must show that the misdemeanor information does not contain sufficient allegations that provide reasonable cause to believe that the State (the prosecution, District Attorney or “People”) can prove every element of the crime charged. The court found for the State on the “reasonable fear” challenge. The display element? Well, that is another story.
The Court ruled that the prosecution did not satisfy the display element of NY PL 120.14. The Court reasoned that sending a picture is more than just words but still short of an actual display. As such, the Court found the entire crime of Second Degree Menacing to be insufficient as drafted and alleged in the complaint.
To get a better grasp and understanding of New York violent crimes including New York Penal law 120.14, review any of the links found in this entry or read this blog or CrottSaland.Com. Further information regarding misdemeanor crimes involving harassment and threats is available at NYDeskAppearanceTicket.Com.
A New York City and greater New York criminal defense firm, the New York criminal lawyers and criminal defense attorneys at Saland Law PC served and trained as prosecutors in the Manhattan District Attorney’s Office.