Opinion
2011-1052 RICR 2011-1053 RICR
02-18-2015
The People of the State of New York, Respondent, v. Robert Vega, Appellant.
PRESENT: : , PESCE and SOLOMON, JJ.
Appeals from two judgments of the Criminal Court of the City of New York, Richmond County (Mario F. Mattei, J.), rendered January 28, 2011. The judgments convicted defendant, upon his guilty pleas, of menacing in the third degree and attempted criminal contempt in the second degree, respectively.
ORDERED that, on the court's own motion, the appeals are consolidated for purposes of disposition; and it is further,
ORDERED that the judgment convicting defendant of menacing in the third degree is reversed, on the law, and the accusatory instrument charging that offense is dismissed; and it is further,
ORDERED that the judgment convicting defendant of attempted criminal contempt in the second degree is affirmed.
On January 11, 2011, the People charged defendant, in a misdemeanor complaint, with menacing in the third degree (Penal Law § 120.15 [3]) and harassment in the second degree (Penal Law § 240.26 [1]). On January 22, 2011, the People charged defendant, in a second misdemeanor complaint, with criminal contempt in the second degree (Penal Law § 215.50 [3]). The complaint alleging menacing in the third degree and harassment in the second degree alleged that defendant committed the offense when he "approached [complainant], put his face directly in front of [complainant's] face and repeatedly yelled at [complainant] in sum and substance, Where's my thirty dollars,' causing [complainant] to fear for her physical safety." The second misdemeanor complaint alleged that, on January 22, 2011, defendant violated a stay-away order of protection by appearing at the complainant's home and knocking on her door.
On January 28, 2011, pursuant to a comprehensive plea and sentencing agreement, defendant waived the right to be prosecuted by informations and pleaded guilty to menacing in the third degree in satisfaction of the first misdemeanor complaint, and to attempted criminal contempt in the second degree (Penal Law §§ 110.00, 215.50 [3]) in satisfaction of the second misdemeanor complaint. Defendant was immediately sentenced to two concurrent terms of 10 days' incarceration. Defendant has served his sentences. He now appeals from each of the judgments, arguing that the misdemeanor complaint charging menacing in the third degree is facially insufficient in the absence of facts sufficient to allege that by "physical menace" defendant placed the complainant in fear of "physical injury" (Penal Law § 120.15). Defendant further argues that if the judgment convicting him of menacing in the third degree is reversed and the accusatory instrument charging that offense is dismissed, the legal basis for the charge of criminal contempt in the second degree falls and, thus, the judgment convicting defendant of that charge should also be reversed and the accusatory instrument charging that offense dismissed.
We agree that the charge of menacing in the third degree is not supported by sufficient allegations of fact. Verbal threats do not establish the offense; rather, some physical act is required ( Matter of Akheem B., 308 AD2d 402, 403 [2003]; e.g. People v Martucci, 22 Misc 3d 137[A], 2009 NY Slip Op 50336[U], *1 [App Term, 9th & 10th Jud Dists 2009]; People v Sylla, 7 Misc 3d 8, 10 [App Term, 2d & 11th Jud Dists 2005]; see also People v Stephens, 100 Misc 2d 267 [Suffolk Dist Ct 1979]). A demand for money is not a physical act within the statute's contemplation, even if expressed in an aggressive manner by stating the demand "directly in front of [someone's] face." Moreover, the facts do not establish reasonable cause to believe that defendant intended to threaten the complainant with physical injury ( compare Matter of Orenzo H., 33 AD3d 492, 493 [2006], and Yvette H. v Michael G., 270 AD2d 123 [2000], with Matter of O'Herron v O'Harron, 300 AD2d 491, 492 [2002]), or that the complainant reasonably feared the "imminent" infliction of physical injury ( People v Payton, 161 Misc 2d 170, 174 [Crim Ct, NY County 1994]; see 35 NY Jur 2d, Criminal Law: Substantive Principles and Offenses § 447). Consequently, the judgment convicting defendant of menacing in the third degree must be reversed and the accusatory instrument charging that offense dismissed.
However, we do not agree that defendant's conviction of attempted criminal contempt in the second degree must also be reversed. That charge was based on an incident occurring 11 days after the events upon which the charge of menacing in the third degree was based, and defendant does not otherwise challenge the facial sufficiency of that accusatory instrument. As the remedy with respect to that offense would be to afford defendant the opportunity to withdraw his guilty plea to attempted criminal contempt in the second degree, but not to dismiss the accusatory instrument (see People v Griffin, 119 AD3d 605, 606 [2014]), and as defendant has expressly stated in his brief that, in such a case, he does not wish his plea thereto to be vacated, we affirm that conviction.
Accordingly, the judgment convicting defendant of menacing in the third degree is reversed and the accusatory instrument charging that offense is dismissed. The judgment convicting defendant of attempted criminal contempt in the second degree is affirmed.
Aliotta, J.P., Pesce and Solomon, JJ., concur.
Decision Date: February 18, 2015