Opinion
570537/08.
Decided December 30, 2010.
Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Rita Mella, J.), rendered August 5, 2008, convicting him, upon a plea of guilty, of menacing in the third degree, and imposing sentence.
Judgment of conviction (Rita Mella, J.), rendered.
PRESENT: McKeon, P.J., Shulman, Hunter, Jr., JJ.
The misdemeanor information sufficiently set forth the factual basis of the underlying menacing charge by alleging, inter alia, that, shortly after midnight on a specified date, defendant "approached" a Manhattan restaurant while the complainant was standing directly behind the restaurant's front window; that defendant "took out a knife from [his] pocket, looked at [the complainant], and . . . tap[ped] said knife on the window"; and that police eventually recovered a gravity knife from defendant's right front pants pocket. These allegations, "given a fair and not overly restrictive or technical reading" ( People v Casey, 95 NY2d 354, 360), were sufficient for pleading purposes to establish reasonable cause and a prima facie case that defendant committed menacing in the third degree by displaying the knife so as to "intentionally place[] or attempt[] to place" the complainant in fear of imminent physical injury (see Penal Law § 120.15; People v Brown, 307 AD2d 973, lv denied 100 NY2d 641; People v Roberts, 19 Misc 3d 140[A], 2007 NY Slip Op 50348[U], lv denied 8 NY3d 990; cf. People v Nwogu , 22 Misc 3d 201 . That defendant and the complainant are alleged to have stood on opposite sides of a glass window during the incident is not fatal to the prosecution's case, at least upon a threshold, pleading-stage inquiry, where the sworn allegations of the information were otherwise sufficient to support a finding that defendant acted with the requisite intent and that the complainant had a well-founded fear of physical injury.
Reargument granted and, upon reargument, the decision and order of this court entered on June 21, 2010, recalled and vacated and a new decision and order substituted therefor.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur
The misdemeanor information sufficiently set forth the factual basis of the underlying menacing charge by alleging, inter alia, that, shortly after midnight on a specified date, defendant "approached" a Manhattan restaurant while the complainant was standing directly behind the restaurant's front window; that defendant "took out a knife from [his] pocket, looked at [the complainant], and . . . tap[ped] said knife on the window"; and that police eventually recovered a gravity knife from defendant's right front pants pocket. These allegations, "given a fair and not overly restrictive or technical reading" ( People v Casey, 95 NY2d 354, 360), were sufficient for pleading purposes to establish reasonable cause and a prima facie case that defendant committed menacing in the third degree by displaying the knife so as to "intentionally place[] or attempt[] to place" the complainant in fear of imminent physical injury (see Penal Law § 120.15; People v Brown, 307 AD2d 973, lv denied 100 NY2d 641; People v Roberts, 19 Misc 3d 140[A], 2007 NY Slip Op 50348[U], lv denied 8 NY3d 990; cf. People v Nwogu , 22 Misc 3d 201 . That defendant and the complainant are alleged to have stood on opposite sides of a glass window during the incident is not fatal to the prosecution's case, at least upon a threshold, pleading-stage inquiry, where the sworn allegations of the information were otherwise sufficient to support a finding that defendant acted with the requisite intent and that the complainant had a well-founded fear of physical injury.
Reargument granted and, upon reargument, the decision and order of this court entered on June 21, 2010, recalled and vacated and a new decision and order substituted therefor.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.