Westchester County Domestic Violence and Menacing

N.Y. Pen. Law §§ 120.13, 120.14 & 120.15

Everyone knows that relationships can be complicated. Simple arguments can turn into blow ups. In some cases one or both of the people involved in the argument go too far and resort to physical violence or threats. When this happens the dispute may be more than a private matter, but a domestic violence related crime. Domestic violence is a general term that refers to certain types of criminal actions that occur between people who are married, dating, or who share children. While many acts of domestic violence leave the victim injured or even dead, domestic violence can also involve acts that while scary, do not involve physical injury. One such type of domestic violence-related crime is menacing. New York Penal Law defines menacing as an act that puts another person in fear of immediate physical injury, but no such injury occurs. While menacing is one of the less serious criminal offenses, if you are convicted you could still end up spending time behind bars and facing other serious consequences. Thus, if you have been charged with menacing stemming from a domestic disturbance it is important that you immediately contact an experienced Westchester County Domestic Violence and Menacing Lawyer who understands the law related to menacing and who will work closely with you to defend you against the charge.

Types of menacing charges

There are 3 menacing offenses in New York, 2 of which are misdemeanors, while 1 is a felony. Each involves the perpetrator in some way making the victim fearful for his or her safety.

Menacing in the third degree. You will face this charge if you intentionally place another person in fear of death or immediate serious physical injury or physical injury. It is a Class B misdemeanor. N.Y. Pen. Law § 120.15. While an incident that results in physical injury can result in a charge of menacing, physical injury is not required. For example in People v. Betko, 907 N.Y.S.2d 102 (2010), defendant Czeslaw Betko was convicted of menacing in the third degree after holding a knife and saying threatening words to his wife. In this case the defendant did not cause the victim physical harm. On the other hand, in People v. Smith, 963 N.Y.S.2d 813 (2013), in domestic incident defendant Terrence Smith punched his wife in the head. Not only was Smith charged with menacing in the third degree, he was also convicted of attempted assault in the third degree and harassment in the second degree. Thus, it is important to keep in mind that if you are charged with menacing the prosecutor may decide to charge you with additional crimes as well.

Menacing in the second degree. Menacing in the second degree is similar to menacing in the third degree, except that it also involves:

  • Branding a deadly weapon, dangerous instrument or what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm
  • Repeatedly following another person or engages in a course of conduct that pouts another person in reasonable fear of physical injury or death.
  • Committing menacing in the third degree and in doing so violate an Order of Protection

Menacing in the second degree is a Class A misdemeanor. N.Y. Pen. Law § 120.14

Menacing in the first degree. Menacing in the first degree is the most serious menacing offense. Menacing in the first degree is the same as menacing in the second degree except that you have previously been convicted of menacing in the second degree in the prior 10 years. It is a Class E felony. N.Y. Pen. Law § 120.13

Arrest and Arraignment

If the police suspect that you have committed the crime of menacing you will be arrested and taken to the local police precinct. At the local precinct your personal information will be taken and you will be fingerprinted. Because the crime of menacing is classified as either a misdemeanor or a Class E felony, you may be given a Desk Appearance Ticket (DAT) and permitted to go home. The DAT will have details as to when and where you must appear for your arraignment. If for some reason the police do not give you a DAT, then you will be taken to Central Booking where you will remain until your arraignment. Within approximately 24 hours of your arrest you will be arraigned.

Consequences of a Menacing Conviction

Because menacing is classified as either a misdemeanor or a low level felony, if you are convicted there is a good possibility that you will not have to spend much if any time in jail or prison. Instead, you may be sentenced to just a probation.

Prison and Fines

  • Class B misdemeanor. The maximum possible sentence is 90 days in jail.
  • Class A misdemeanor. The maximum possible sentence is 1 year in jail.
  • Class E felony. The maximum possible sentence is 4 years in prison.
Probation

Part or all of your sentence may also include probation. For Class B misdemeanor menacing the probation term will be 1 year, for Class A misdemeanor menacing the probation term will be 3 years, while for felony menacing the probation term will be 5 years. While probation is preferable to incarceration, probation has many restrictions. There will be several rules that you will be required to follow such as:

  • You must not commit new crimes
  • You must not associate with people who you know to have criminal records
  • You must not go to unlawful or disreputable places
  • You must not use or possess controlled substances or drug paraphernalia
  • You must submit to drug testing
  • You must submit to home visits by your Probation Officer
  • You must regularly report to your Probation Officer
  • You must not leave the State of New York without permission
  • You must not purchase, own, or possess a gun
  • You must not consume alcohol excessively
  • You must abide by an Order of Protection
  • You must pay any fines, fees, or restitution
  • You must have a job or be enrolled in school

Violating any of the terms attached to your probation can result in additional criminal charges, revocation of your probation, and being sent to prison.

Financial Consequences

As part of your sentence the judge may order you to pay fines, fees, and restitution. For felony menacing the fine would be up to $5,000, while for a misdemeanor offense the fine would be up to $1,000. Fees include a "mandatory surcharge" of $300 for a felony and $175 for a misdemeanor, as well as a victim assistance fee of $25. N.Y. Pen. Law § 60.35. If your sentence includes probation you will be required to pay a monthly probation supervision fee of $30. The amount of restitution you may be ordered to pay will be based on the losses suffered by the victim such as medical bills. Generally, the maximum amount of restitution is $15,000 for a felony and $10,000 for a misdemeanor, plus a 5% surcharge. If a judge orders you to pay a fine or restitution, payment is part of your sentence. If you fail to pay you may be charged with yet another crime that could mean up to a year in prison.

Order of Protection

Domestic violence menacing cases almost always involve the criminal court judge issuing an Order of Protection in favor of the victim. The Order of Protection may be a "stay away" Order of Protection, an "exclusionary" Order of Protection or a "refrain from" Order of Protection. If an Order of Protection is a stay away order, then you must not have any type of contact with that person. This means that you must:

  • Not have any physical contact with the victim, even if the victim is your spouse, girlfriend, or parent of your child
  • Stay away from the person's home, school or place of business
  • Not attempt to communicate with the victim via phone, email, text or fax
  • Not attempt to send messages to the victim through a third party

If the Order of Protection is exclusionary you will have to move from the residence that you share with the victim, even if your name is on the lease. If the judge issues a refrain from Order of Protection, then you will be ordered to stop certain activities directed toward the victim such as harassing, intimidating, threatening or otherwise interfering with that person.

If you are convicted the judge may make the Order of Protection permanent. Even though such an order is called "permanent" the maximum duration of a permanent Criminal Court Order of Protection is 8 years for a felony conviction, 5 years for a Class A misdemeanor conviction or 2 years for a Class B misdemeanor conviction.

If an Order of Protection is in place and you violate it, you risk being charged with criminal contempt, a misdemeanor. As punishment you could be sentenced to jail or probation. Keep in mind that if your are placed on probation and an Order of Protection is in place, one of the conditions of your probation is abiding by the restrictions of the Order of Protection.

Long-Term Consequences

Being convicted of felony menacing will result in you having a criminal record. While your prison sentence, probation term will all end, and you will be able to pay off your financial obligations, a criminal record will remain with you for the rest of your life. Here are a few ways that having a criminal record will impact your life:

  • Difficulty in finding a job, as many employers will resist hiring someone with a violent criminal past
  • Barred from certain professions such as teaching and practicing law
  • Ineligible for certain government benefits such as welfare and federally-funded housing
  • If you are not a citizen you may be subject to deportation under federal law
  • Barred from serving on a jury
  • Barred from owning a gun

Furthermore, being convicted of domestic violence menacing may permanently disrupt your family relationships if you are married to the victim or share children with the victim. For example, such a conviction may result in you losing custody of your children.

While menacing is not as serious a crime as other crimes related to domestic violence, you should still take it seriously if you are charged with menacing. If you are convicted not only is it possible that you will go to prison, you end up with a criminal record regardless of whether or not your sentence includes prison. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully defending clients in New York criminal courts who have been charged with domestic violence, menacing, as well as other criminal offenses such as assault, reckless endangerment, strangulation, stalking, and child endangerment. Contact us at 1.800.NY.NY.LAW (1.800.696.9529) to schedule a free, no obligation consultation regarding your case. We serve those accused of domestic violence in the following locations:

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