While the law is clear and known to criminal lawyers practicing throughout the New York City region, when one thinks of menacing behavior one often thinks of threats with words, body, weapons or some combination of the three. Despite what those outside the legal profession may think, the Penal Law and court decisions that define the crime of Menacing is clear. Words alone are insufficient. More is needed. In a recent decision addressing the sufficiency of Third Degree Menacing, New York Penal Law 120.15, a trial court once again examined the statute providing further clarity to an often litigated section of the Penal Law.
Before addressing the issue presented in People v. Murray, you are guilty of PL 120.15 if, by physical menace, you intentionally place or attempt to place another person in fear of death, imminent serious physical injury or physical. Relevant to the law, but not necessarily this discussion, “physical injury” is of the type that results in “substantial pain” but is fairly nominal while “serious physical injury” requires disfigurement or a real impairment of your health. The lowest of all of these crimes, a conviction for the Third Degree offense is punishable as a class “B” misdemeanor and up to 90 days in jail.
With the language behind us, the question raised in Murray was whether the defendant’s raising of his fists and coming towards a police officer while threatening to shoot him constituted this misdemeanor. After all, the accused didn’t have a weapon and words alone are insufficient. Doesn’t it seem somewhat reasonable that this conduct, as bad as it was, did not meet the legal threshold? In finding that the accusatory instrument was legally sufficient, the Court stated that advancing towards the officer, fists raised, and threatening the use of a weapon did establish a violation of PL 120.15. Why? Despite the defendant’s argument that approaching the officer with fists up and ready to fight had no nexus nor connection to shooting the officer as threatened, the Court reasoned that there need not be a direct correlation between the statements and the actions. In the context of everything more holistically, the accused was in a menacing posture and was also so in his actions. Further, fists raised and clenched is “a universally understood expression of the actor’s willingness to resort to violence” (see People v. Gonzalez, 29 Misc3d 928 [Crim Ct, New York County 2010]). Simply, “[t]he combination of the defendant’s physical advancement, the words he used, and the circumstances and surrounding context of the alleged encounter are sufficient to allege [this crime].”
While it is likely that the above allegations were also sufficient to prove the charge beyond a reasonable doubt assuming the evidence was presented properly, remember that an unsuccessful challenge to the legal sufficiency of an accusatory instrument does not preclude the defense from success at trial where the People have this far greater burden.
To learn more about offenses involving crimes of harassment, fear and violence, such as the varying degrees of Menacing, Stalking, Aggravated Harassment and Harassment, follow the highlighted links provided herein.
Crotty Saland PC is a New York based criminal defense firm founded by two former Manhattan prosecutors. The advocates at Crotty Saland PC represent both victims and accusers in Criminal Courts, Justice Courts and Family Courts throughout the City, Hudson Valley and State.