Menacing Charges Under PL Article 120

Menacing is the crime of putting another person in fear of physical harm without touching them. It sits in Penal Law Article 120 alongside assault, but it does not require an injury. A raised fist, a knife pulled from a pocket, or a pattern of following someone home can each support a charge. Because no injury is needed, menacing is one of the most frequently charged offenses in New York City criminal courts, and it appears constantly in domestic disputes, bar arguments, and traffic confrontations.

The consequences run from a class B misdemeanor to a class D felony. A conviction at any level can produce a permanent record, a full order of protection, loss of a firearm license, and immigration exposure. This page explains each degree of menacing, what the prosecution must prove, and how these cases actually move through court.

The Four Menacing Offenses in Article 120

Menacing in the Third Degree, PL 120.15

A person commits third-degree menacing when, by physical menace, he or she intentionally places or attempts to place another person in fear of death, imminent serious physical injury, or physical injury. It is a class B misdemeanor. Under PL 70.15(2), the maximum jail sentence is three months, and a court may instead impose up to one year of probation.

The phrase "physical menace" matters. Words alone are not enough. In People v. Bartkow, 96 N.Y.2d 770 (2001), the Court of Appeals held that threats made over the telephone, with no physical conduct, could not support a menacing charge. The defendant must do something with the body: advance on the complainant, cock a fist, brandish an object, or block a doorway while threatening. Pure verbal threats belong under harassment or aggravated harassment, not menacing.

Menacing in the Second Degree, PL 120.14

Second-degree menacing is a class A misdemeanor. Under PL 70.15(1), the maximum sentence is 364 days in jail, or up to three years of probation. The statute has three subdivisions, and the accusatory instrument should specify which one applies:

• Subdivision 1 (weapon display): Intentionally placing or attempting to place another person in reasonable fear of physical injury, serious physical injury, or death by displaying a deadly weapon, a dangerous instrument, or what appears to be a pistol, revolver, rifle, shotgun, machine gun, or other firearm. A toy gun, a BB gun, or an unloaded pistol all qualify because the statute reaches what "appears to be" a firearm.
• Subdivision 2 (course of conduct): Repeatedly following a person, or engaging in a course of conduct or repeatedly committing acts over a period of time, intentionally placing or attempting to place that person in reasonable fear of physical injury, serious physical injury, or death. This is the stalking-type variant, and it often travels with charges under PL 120.45 through 120.60.
• Subdivision 3 (order of protection): Committing third-degree menacing in violation of the stay-away portion of a duly served order of protection, or one the defendant knows about because he or she was present in court when it was issued. A shove-free argument that would otherwise be a B misdemeanor becomes an A misdemeanor if an order was in place.

Note the word "reasonable" in the second-degree statute. The fear must be objectively reasonable under the circumstances. The complainant's subjective nervousness is not the test.

Menacing in the First Degree, PL 120.13

First-degree menacing is a class E felony. It is a recidivist statute: a person commits it by committing second-degree menacing after having been convicted of second-degree menacing or menacing a police or peace officer within the preceding ten years. The prior conviction is an element the People must plead and prove, ordinarily through a certificate of conviction. A non-predicate felony offender faces an indeterminate sentence of up to four years, though probation and definite jail sentences of one year or less remain available under PL 70.00(4).

Menacing a Police Officer or Peace Officer, PL 120.18

This is a class D felony carrying up to seven years. The People must prove that the defendant displayed a deadly weapon, knife, pistol, revolver, rifle, shotgun, machine gun, or other firearm, "whether operable or not," that the officer was performing official duties, and that the defendant knew or reasonably should have known the person was an officer. Plainclothes encounters and unmarked vehicles frequently make that last element contestable.

Key Definitions the Prosecution Must Satisfy

Several terms in these statutes are defined in PL 10.00, and the definitions drive the charging decision:

• Deadly weapon, PL 10.00(12): A loaded operable firearm, a switchblade, gravity knife, pilum ballistic knife, metal knuckle knife, dagger, billy, blackjack, plastic or metal knuckles. A kitchen knife is not a deadly weapon under this definition.
• Dangerous instrument, PL 10.00(13): Any instrument, article, or substance, including a vehicle, which under the circumstances in which it is used or threatened to be used is readily capable of causing death or serious physical injury. A kitchen knife, a bat, a bottle, or a car can each be a dangerous instrument depending on how it was used.
• Physical injury, PL 10.00(9): Impairment of physical condition or substantial pain.
• Serious physical injury, PL 10.00(10): Injury creating a substantial risk of death, or causing death, protracted disfigurement, protracted impairment of health, or protracted loss of a bodily organ.

Where the alleged weapon was a knife, the menacing count is often paired with a possession count under PL 265.01. Our page on knife possession charges in New York explains how the two charges interact and why the possession count frequently falls before the menacing count does.

How a Menacing Case Moves Through Court

Arrest, Desk Appearance Ticket, and Arraignment

For a second- or third-degree menacing charge with no domestic relationship, the police will usually issue a desk appearance ticket under CPL 150.20, and you will be given a return date for arraignment. If the complainant is a family or household member as defined in CPL 530.11, the case is a family offense, the DAT exception applies, and you will be held for arraignment, typically within 24 hours.

At arraignment the judge will almost always issue a temporary order of protection under CPL 530.12 or 530.13. A full stay-away order in a domestic case can bar you from your own home. Neither misdemeanor menacing nor first-degree menacing is a qualifying offense under CPL 510.10(4), so the court cannot set monetary bail on those charges alone and must release you on your own recognizance or under non-monetary conditions.

Discovery and Speedy Trial Deadlines

The People must turn over all automatic discovery under CPL 245.20 and file a certificate of compliance before they can announce readiness. In a menacing case this includes body-worn camera footage, 911 recordings, the complainant's statements, and any surveillance video. The speedy-trial clock under CPL 30.30 is 90 days for a class A misdemeanor, 60 days for a class B misdemeanor, and six months for a felony. A worked example: if you are arraigned on a PL 120.14 charge on March 1, the People must be ready for trial, with a valid certificate of compliance, by May 30. Excludable time for defense adjournments and motion practice extends that date, so tracking the calendar is a central defense task. See our guide to CPL Article 245 discovery for what the People owe and when.

Dispositions Short of Trial

Many first-arrest menacing cases resolve with an adjournment in contemplation of dismissal under CPL 170.55. The case is dismissed and sealed after six months, or after one year if it is a family offense. A reduction to harassment in the second degree under PL 240.26, a violation rather than a crime, is another common outcome. A violation conviction is sealed under CPL 160.55 and does not create a criminal record. Under the Clean Slate Act, CPL 160.57, a misdemeanor menacing conviction is automatically sealed three years after sentence or release, and a felony conviction after eight years, provided you have no intervening convictions.

If your case is being heard in Kings County, our guide to Brooklyn Criminal Court at 120 Schermerhorn Street explains the arraignment parts, the domestic violence parts, and what to expect on each appearance.

Collateral Consequences

Both PL 120.14 and PL 120.15 are listed as "serious offenses" under PL 265.00(17). A conviction for either bars you from holding a pistol license under PL 400.00(1)(c) and requires surrender of any licensed firearm. If the case is a family offense, CPL 530.14 requires the court to order surrender of firearms upon conviction, and often at arraignment. Menacing is also a "specified offense" under PL 485.05, so if the People allege bias motivation, the charge is elevated one grade as a hate crime. For non-citizens, a menacing conviction involving a domestic relationship may be treated as a crime of domestic violence under federal immigration law, with removal consequences.

Common Defenses

• No physical menace: If the allegation is limited to words, texts, or calls, the conduct does not fit PL 120.15 under Bartkow.
• No display: Under PL 120.14(1), the weapon must be displayed. An object that stayed in a bag or waistband was not displayed.
• Fear not reasonable: A complainant who continued the argument, followed the defendant, or delayed calling police undermines the reasonableness element.
• Justification, PL 35.15: Threatening force to stop an imminent unlawful assault is lawful. Many menacing complainants were the initial aggressor.
• Facial insufficiency: A misdemeanor complaint that does not allege what object was displayed, or how the defendant's body conveyed a threat, is subject to dismissal under CPL 170.30 and 170.35.

You can contact the Law Offices of Albert Goodwin by phone at 212-233-1233 or by email at [email protected].