Bullying has become a serious epidemic in our society, which is why New York takes this kind of situation seriously. New York Penal Code § 120.13, commonly known as menacing in the first degree, is one law that addresses these types of situations. Specifically, this law makes it illegal to cause another individual to fear for his or her physical safety.
The Definition of Menacing in the First Degree
Under this law, it’s illegal to cause an individual to fear for their safety, whether or not harm actually does come to them. It only needs to be proven that it was reasonable for the victim of the crime to fear physical harm. Under the state’s penal law, this is just one of four menacing crimes that may be charged against an individual. In addition to menacing in the first degree, there is also second degree and third degree menacing. The fourth related crime is menacing a police or peace officer.
Menacing in the first degree may be charged against an individual who has previously been convicted of menacing in the second degree (New York Penal Code § 120.14) and where there was a period of fewer than 10 years between the two convictions. Similarly, first degree menacing may be charged if the individual was previously convicted of menacing a police officer or a peace officer as outlined in New York Penal Code § 120.18. Again, the previous conviction must have been recorded within 10 years of the new crime.
Defending Against a Charge of Menacing in the First Degree
It may be helpful to use a practical example to better understand how a New York Penal Code § 120.13 may be applied to a situation. Suppose John and Mary are divorcing and, during a heated argument, John holds a knife to Mary’s throat. While the knife never actually made contact with Mary’s skin and no harm came to her, she still feared for her physical safety. In this case, John is guilty of committing menacing in the second degree.
Now, suppose John and Mary are having a custody dispute five years later and John again threatens Mary with a knife. Since John has a previous second degree menacing conviction, he can now be charged with menacing in the first degree. However, if the second incident occurred 11 years later, John would again be facing the second degree menacing charge.
In order to obtain a conviction of first degree menacing, the prosecuting attorney must be able to show that you used a deadly or dangerous weapon. It’s unlikely that one individual can instill fear of bodily harm without the use of a weapon, so this factor must be present. It must be shown that the weapon was presumed to be deadly or dangerous, as well. For instance, using a butter knife or a toy cap gun to threaten someone would not carry the same fear of harm as using a sharp hunting knife or a real handgun.
Menacing in the first degree is defined as a class E felony under New York law. The standard penalty for a class E felony in New York is five years of probation up to four years in prison. The law also allows for a fine of up to $5,000, which the court may assign in conjunction with a sentence of probation.
A number of circumstances will influence the judge’s decision in applying the sentence. Depending on the facts of the case and other previous convictions, the judge may opt for a sentence of probation. However, a long history of violence, particularly toward the victim of the current crime, will more likely result in imprisonment of up to four years. Since a charge of menacing in the first degree requires a previous menacing conviction, it’s unlikely that the judge will be lenient in sentencing. The very nature of this crime indicates a pattern of violent or threatening behavior. Consulting a criminal defense attorney to assist in the defense of a New York Penal Code § 120.13 charge is the wisest course of action.
