DECISION AND ORDER Defendant, Sean Murray (“Murray”) moves for an order:1. Dismissing the second count of the accusatory instrument because it is facially insufficient under CPL §100.40;2. Granting such other relief as this Court may deem proper.I. BACKGROUNDOn January 17, 2019, the defendant was arraigned and charged with one count each of theft of services, Penal Law §165.15, and menacing in the third degree, PL §120.15. The People served and filed Police Officer Roman Abinader’s supporting deposition on January 19, 2019, thereby converting the complaint to an information. The defendant moves to dismiss the second count. He argues that the information does not sufficiently allege the “physical menace” element of menacing in the third degree.Factual AllegationsThe information alleges that on or about January 16, 2019 at 5:50PM, at the northeast corner of 8th Avenue and West 42nd Street in the County and State of New York, the defendant advanced towards Police Officer Roman Abinader while raising his fists and stating in substance, “I’m going to shoot you.”II. DISCUSSIONAn information in a misdemeanor prosecution serves the same role as an indictment serves in a felony prosecution. It ensures that a legally sufficient case can be brought against the defendant. An information is facially sufficient if it sets forth “nonhearsay allegations which, if true, establish every element of the offense charged and the defendant’s commission thereof.” (People v. Kalin, 12 NY 3d 225, 228-29 [2009]; People v. Henderson, 92 NY2d 677, 679[1999]). In order to be deemed sufficient, an information does not need to allege facts that would prove a defendant’s guilt beyond a reasonable doubt (see People v. Jennings, 69 NY2d 103, 115 [1986]). Rather, it need 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 an information for facial insufficiency must assume that the factual allegations are true and must consider all reasonable inferences that may be drawn from them (see People v. Jackson, 18 NY3d 738, 741 [2012]). A court should not subject the allegations in the information to an overly restrictive or technical reading (id. at 747).The defendant argues that the factual allegations against him do not sufficiently constitute the charge of Menacing in the Third Degree. A person is guilty of Menacing in the Third Degree when, by physical menace, he or she intentionally places or attempts to place another person in fear of death, imminent serious physical injury or physical injury (PL §120.15).1 Mere offensive or hostile statements or verbal threats are insufficient (see Matter of Jacob S., 77 AD3d 523, 524 [1st Dept 2010] [defendant's crude remark that the complaint should "swim back to [his] country” was insufficient to establish physical menace]; People v. Woods, 54 Misc3d 453, 456-57 [Crim Court Bronx County 2016]; People v. Nwogu, 22 Misc3d 201 [Crim. Ct. Queens County 2008]). The statute requires a showing of a physical menace, i.e., the accusatory instrument must allege that the defendant committed a physical act or acts, which placed a person in fear of imminent injury (see Matter of Monay W., 33 AD3d 809, 810 [2d Dept 2006] [evidence that the defendant waived a knife in the air while standing four feet away from the complaint and asking if she wanted to fight establishes that the defendant intentionally placed another in fear of imminent injury by physical menace]).A physical action that falls short of a display of a weapon or a dangerous object can still be deemed sufficient to establish a “physical menace”, depending on the context and circumstances of the physical act (see Woods, 54 Misc3d at 459-60; see also People v. Green, 21 Misc3d 130(A) [App Term 1st Dept 2008]). Additionally, while mere offensive words or verbal threats are insufficient to establish physical menace, that does not mean that the words themselves are irrelevant or should be disregarded by the court when considering facial sufficiency. The Court should consider the combined effect of the physical act or actions of the defendant, along with any accompanying verbal statements, and the overall context and circumstances surrounding the encounter (see People v. Britt, 62 Misc3d 320, 325 [Crim. Ct. New York County 2018]). The actions of a defendant who raises his fist and curses at someone across a crowded room can readily be distinguished from a defendant who raises his fist and issues threats when he is located only a few feet away from the complaining witness (see Matter of Ramon M., 109 AD2d 882, 883 [2d Dept 1985] [finding that complainant had reason to fear imminent physical injury when the defendant, after having waved a hand in her face and stating "don't disrespect me", then leaped down the stairs and extended one leg towards her in a karate kick position]).Here, as noted above, the information alleges that the defendant threatened to shoot the complaint while advancing towards him and raising his fists. In moving to dismiss, the defendant argues that this case is analogous to the decision in People v. Nwogu. In Nwogu, the information alleged that the defendant Nwogu stood up from a seat while stating, “I am going to blow you up.” The complaining witness observed a knife handle in the back of the defendant’s waistband. The information did not specify that Nwogu directed this verbal threat at the complaining witness or any other particular person. It also did not allege any physical proximity of the defendant to the complaining witness at any time during the incident. The court concluded that Nwogu’s alleged actions did not reasonably demonstrate his intent to place another person in fear of death, imminent serious physical injury or physical injury; it dismissed the charge of Menacing in the Third Degree on the basis of facial insufficiency (see Nwogu, 22 Misc3d at 204).The present case is readily distinguishable from Nwogu. Firstly, although Nwogu allegedly made a verbal threat, the information in that case did not allege any facts which suggested that the threat was directed at either the complaining witness or any particular subject. In the present case; however, the defendant allegedly stated “I’m going to shoot you” while advancing towards Officer Abinader — denoting a more direct and therefore more alarming menace. More importantly, Nwogu’s only alleged physical action was standing up from his seat — in and of itself a non-violent physical action — whereas here the defendant is alleged to have raised his fists towards the officer, “a universally understood expression of the actor’s willingness to resort to violence” (see People v. Gonzalez, 29 Misc3d 928 [Crim Ct, New York County 2010]).The defendant emphasizes that his alleged physical actions in advancing towards the officer with a raised fist do not directly relate to his verbal threat to shoot the officer. While true, this does not mean that the statement is irrelevant and should not be considered as the defendant suggests. The lack of a direct correlation between the defendant’s statement and his physical actions does not mean that his actions, taken in their overall context, did not constitute a physical menace. The words were directed at the officer and he was advancing towards the officer with a raised fist as he was uttering them. Indeed, given that the officer was presumably armed with a firearm, it would not have been unreasonable for the officer to fear that the defendant would attempt to take his weapon from him and use it to carry out his verbal threat. The combination of the defendant’s physical advancement, the words he used, and the circumstances and surrounding context of the alleged encounter are sufficient to allege a physical menace (see Britt, 62 Misc3d at 325).Accordingly, the Court finds that the second count of the accusatory instrument is facially sufficient, and the defendant’s motion to dismiss that count is denied.The parties are directed to be ready for trial on August 5, 2019, when this case is next on the Part B calendar.CONCLUSIONAccordingly, it is herebyORDERED that Defendant’s motion to dismiss the information for facial insufficiency is DENIED.This constitutes the decision and order of the court.Dated: July 16, 2019New York, New York
