New York Penal Law § 120.13 – Menacing in the First Degree

Menacing in the First Degree is a New York criminal offense that imposes harsh penalties on those who commit the crime of Menacing in the Second Degree and have a prior qualifying Menacing conviction within the past ten years. Menacing in the First Degree is a Class E felony.

Before a judge or jury can convict anyone of Menacing in the First Degree, the government must prove each element of the offense beyond a reasonable doubt. However, Menacing in the First Degree is unique in that most of the elements are identical to Menacing in the Second Degree; the only difference is that Menacing in the First Degree requires proof of a prior Menacing conviction within the past ten years. Thus, the elements of Menacing in the First Degree are:

• The defendant committed the crime of Menacing in the Second Degree; for example, by:
  1. Menacing Involving a Deadly Weapon;
  2. Menacing Involving Stalking; and
  3. Menacing Involving the Violation of a Protective Order.

• The defendant had a prior conviction for one of the following:
  1. Menacing in the Second Degree
  2. Menacing a Police Officer or Peace Officer

Menacing in the First Degree only comes up when a defendant has a prior conviction for Menacing in the Second Degree or Menacing a Police Officer or Peace Officer. Therefore, anyone with a qualifying Menacing conviction commits Menacing in the First Degree if they:

• Use a weapon to threaten another person;
• Use an object that looks like a firearm, rifle or shotgun to put another person in fear for their safety;
• Stalking another person such that the alleged victim fears for their safety; or
• Physically intimidating someone who has taken a protective order out against the defendant.

Often, prosecutors bring Menacing in the First Degree charges along with one or more of the following:

• Menacing in the Second Degree – N.Y. Penal Law § 120.14
• Menacing in the Third Degree – N.Y. Penal Law § 120.15
• Menacing of a Police Officer or Peace Officer – N.Y. Penal Law § 120.15
• Assault in the First Degree – N.Y. Penal Law § 120.10
• Assault in the Second Degree – N.Y. Penal Law § 120.05
• Assault in the Third Degree – N.Y. Penal Law § 120.00
• Aggravated Family Offense – N.Y. Penal Law § 240.75
• Harassment in the First Degree – N.Y. Penal Law § 240.25
• Harassment in the Second Degree – N.Y. Penal Law § 240.26

Due to the fact that Menacing in the First Degree has essentially the same elements as Menacing in the Second Degree, the defenses to both crimes are identical and may include the following:

• You did not know an order or protection had been taken out against you;
• The alleged victim’s fear of death or injury was unreasonable, given your actions;
• You did not intend to cause the victim to fear for their safety; or
• You acted in self-defense or in defense of another person.

However, because Menacing in the 1st Degree requires a prior Menacing conviction, there are defenses that pertain to the previous conviction, such as:

• Your conviction was more than ten years ago; or
• The prosecution relied on an out-of-state conviction for a similar offense.

Menacing in the First Degree is a Class E felony, which is punishable by a prison term of up to four years. Additionally, a Class E felony conviction carries a maximum fine of up to $5,000. As with all felonies, a conviction for Menacing in the First Degree also brings about a number of other collateral consequences, which may make it harder to attend school or obtain employment.

If you’ve recently been charged with Menacing in the First Degree, it is important that you find an attorney who will take your case as seriously as you do. At Tilem & Associates, P.C., our dedicated team of NY defense attorneys has more than 25 years of experience aggressively defending the rights of individuals facing serious felony charges. Through hard work, detailed knowledge of the law, and first-hand knowledge of how prosecutors think about Menacing crimes, we know what it takes to beat even the toughest cases. We are immediately available to meet with you to get started working on a compelling defense to the charges you face. To learn more, and to schedule a free consultation today, call 877-377-8666. You can also reach us through our online contact form.