People v Britt

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[*1] People v Britt 2018 NY Slip Op 28377 Decided on December 4, 2018 Criminal Court Of The City Of New York, New York County Statsinger, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on December 4, 2018
Criminal Court of the City of New York, New York County

The People of the State of New York, Plaintiff,

against

Spinosor Britt, Defendant.



2018NY018027



For the Defendant: Laura Waters, Esq., The Legal Aid Society

For the People: Cyrus R. Vance, Jr., New York County District Attorney, by A.D.A. Hannah M. Farhan.
Steven M. Statsinger, J.

Defendant, charged with one count each of menacing in the second degree, Penal Law § 120.14(1), menacing in the third degree, Penal Law § 120.15, and harassment in the second degree, Penal Law § 240.26(1), moves to dismiss the first two counts. He argues that the information does not sufficiently allege either the "display" element of § 120.14(1) or the "physical menace" element of § 120.15. For the following reasons, the motion to dismiss is DENIED.



I. FACTUAL BACKGROUND

A. The Allegations

The accusatory instrument alleges that, on February 9, 2018, defendant approached the complainant's vehicle while holding a bicycle and said to her, "I'll hit you too bitch."



B. Legal Proceedings

Defendant was arraigned on April 15, 2018, on a misdemeanor complainant charging him with menacing in the second degree and harassment in the second degree. The Court released the defendant and adjourned the case for conversion. On May 8, the People filed the complainant's Supporting Deposition and the Court deemed the misdemeanor complaint converted to an information.

Defendant filed a motion to dismiss the menacing count on June 26, 2018. Subsequently, however, on September 17, the Court granted the People's oral motion to add one count of menacing in the third degree, then set a new motion schedule. The defense moved to dismiss the added count on October 16, and the matter has been sub judice then.



II. DISCUSSION

The allegation that the defendant, while holding a bicycle, approached the complainant's vehicle and threatened to "hit" her sufficiently pleads both the "display" element of Penal Law § 120.14(1) and the "physical menace" element of Penal Law § 120.15.



[*2]A. Facial Sufficiency in General

An information serves the same role in a misdemeanor prosecution that an indictment serves in a felony prosecution: It ensures that a legally sufficient case can be made against the defendant. People v. Dumay, 23 NY3d 518 (2014); People v Alejandro, 70 NY2d 133, 138-39 (1987) . Accordingly, an information must set forth "nonhearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof." People v. Kalin, 12 NY3d 225, 228-29 (citing People v Henderson, 92 NY2d 677, 679 (1999) and CPL 100.40 (1)(c)). This is known as "the prima facie case requirement." Kalin, 12 NY3d at 229.

The prima facie case requirement does not necessitate that an information allege facts that would prove a defendant's guilt beyond a reasonable doubt. People v. Jennings, 69 NY2d 103, 115 (1986). Rather, it sneed only contain allegations of fact that "give an accused sufficient notice to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense." People v Casey, 95 NY2d 354, 360 (2000). A court reviewing for facial insufficiency must subject the allegations in the information to a "fair and not overly restrictive or technical reading," id., assume that those allegations are true, and consider all reasonable inferences that may be drawn from them. CPL §§ 100.40, 100.15; People v Jackson, 18 NY3d 738, 747 (2012). See also Casey, 95 NY2d at 360.

Under these standards, the information is facially sufficient.



B. The Information Sufficiently Pleads a "Display"

Penal Law § 120.14(1), in relevant part, makes it an offense to "intentionally place[] or attempt to place[] another person in reasonable fear of" injury "by displaying a dangerous instrument." The term "display" generally requires a conscious exhibition, even if only a gesture, that could reasonably convey to the victim the presence of an object. People v. Stone, 43 Misc 3d 705, 712 (Crim Ct NY County 2014); People v. Lopez, 73 NY2d 214, 222 (1989). While words alone do not constitute a display, other evidence of the immediate presence of a physical object, even if the object itself remains unseen, will suffice. Id. at 221-22; Stone, 43 Misc 3d at 712-13.

Here, defendant argues that the information fails to sufficiently allege a "display" because it does not allege that the display was concurrent with a "conscious manifestation" to place the complainant in fear of injury. Waters Aff. ¶ 16. The Court disagrees. The information alleges that the defendant advanced toward the complainant's vehicle while holding a bicycle and threatened that he would "hit you too, bitch." The words and actions ascribed to the defendant, together, result in a reasonable inference that he intended to wield the bicycle in a manner that would place the complainant in fear of injury. Each aspect of the incident enhanced its fear-inducing quality. The words made the gesture more frightening, while the gesture added substance to the words. And the fact that both occurred while defendant was advancing on the complainant's vehicle made them both more frightening.

In this regard, the case is analogous to Lopez. There, the physical gesture by itself - defendant placed his hand in his vest - would in all likelihood not have constituted a "display." 73 NY2d at 221. But that same gesture combined with the defendant's words - he announced a "stickup" and demanded the complainant's radio - sufficed. Id. at 221-22. The accusatory instrument here similarly involves an allegation of a physical action and threatening words, both reasonably viewed as directed at the complainant. It accordingly sufficiently alleges a "display."

In support of dismissal, defendant relies on People v. Nwogu, 22 Misc 3d 201 (Crim Ct Queens County 2008). There, the information alleged that the defendant "stood up from his seat [*3]and stated 'I am going to blow up.'" Id. at 203. As he did so, the complainant could see the handle of a knife in the back of the defendant's waistband. Id. This did not sufficiently allege a "display" because there were "no factual allegations that defendant consciously displayed the knife or used it in any way so as to intentionally put the complainant witness in reasonable fear of" injury. Id. at 205. The court there in particular noted the lack of a connection between defendant's words and his standing up, along with the lack of any allegation as to the relative positions of the defendant and the complainant. Id. The instant case presents a considerably different scenario. Here, the information alleges a clear connection between the defendant's threats eand the complainant, since the words were directed at her and defendant was advancing toward her vehicle at the time.

It accordingly sufficiently pleads the "display" element of menacing in the second degree under Penal Law § 120.14(1).



C. The Information Sufficiently Pleads a "Physical Menace"

Defendant makes a similar claim with respect to the added charge of menacing in the third degree under Penal Law § 120.15; specifically, that the information does not sufficiently allege the "physical menace" element. Defendant's argument is similarly unavailing.

Section 120.15 requires proof that the defendant "by physical menace" placed or attempted to place another person in fear of injury. The "physical menace" element requires a physical act of some sort, whether accompanied by words or not; however, words alone will not suffice. People v. Woods, 54 Misc 3d 453, 456-57 (Crim Ct Bronx County 2016). A physical action that falls short of an actual "display" of an object can be enough to establish a "physical menace." People v. Gayle, 58 Misc 3d 677, 697-80 (Crim Ct NY County 2017); Woods, 54 Misc 3d at 459-60. It follows that, while a display of a dangerous instrument is not critical to the formation of a "physical menace," in most cases where a "display" is sufficiently pled, a "physical menace" will be, as well. This is such a case.

Here, as noted above, the information alleges that defendant approached the complainant's vehicle while holding a bicycle and threatening to "hit [her] too." Just as these facts reasonably allege a "display" of the bicycle, they also reasonably allege a that his defendant's wielding the bicycle constituted a "physical menace." Defendant does an admirable job of marshaling the cases on this issue, arguing that facts at bar are "closer to the conduct" pled in those cases where no "physical menace" was found than they are to those where one was. Waters Aff. at ¶ 28.

But defendant's analysis, in very large part, strains to liken this case to those where the allegation involved only the use of words. See In re Jacob S., 77 AD3d 523, 524 (1st Dept. 2010) ("Appellant's offensive comment, by itself, was insufficient to support the charge, which requires 'physical menace'"); People v. Sylla, 7 Misc 3d 8, 10 (App. Term 2d & 11th Dists. 2005) ("The factual allegations in the information relating to the charge of menacing in the third degree consisted solely of verbal threats."). Those cases are inapposite here, as the requirement of a "physical" menace of course contemplates that the menace involved was indeed "physical."

To be sure, one case relied on by the defendant, People v. Stephens, 100 Misc 2d 267, 268 (Dist Ct Suffolk County 1979), did indeed involve both words and conduct, as here, since the accusatory instrument there alleged that the defendant threatened to shoot the complainant and then reached into his pocket. But in concluding that this combination of words and conduct did not allege a "physical menace," Stephens used an analysis that this Court disagrees with. Stephens held that because the statute requires a "physical menace," a court considering facial [*4]sufficiency should consider only the physical act alleged and disregard any statements. Id. at 268 ("Statements should not be considered since they are not within the contemplation of the statute.") In this Court's view, the correct approach is to consider the combined effect of the physical act along with any statements that accompanied it, which is clearly the majority approach in such cases. See, e.g., Woods, 54 Misc 3d at 459; People v. Martucci, 22 Misc 3d 137(A) (App Term 9th and 10th Dists 2009) (information alleging that defendants pulled on door handle of complainants' vehicle and demanded that they exit it was facially sufficient).

Accordingly, information is facially sufficient as to the count charging menacing in the third degree.



C. Conclusion

Defendant's motion to dismiss is denied.



IV. CONCLUSION

For the foregoing reasons, defendant's motion to denied

This constitutes the Decision and Order of the Court.



Dated: December 4, 2018

New York County, New York

_______________________

Steven M. Statsinger

Judge of the Criminal Court