982 N.Y.S.2d 733
N.Y. City Crim. Ct.2014Background
- Defendant charged with menacing in the second degree (Penal Law § 120.14[1]) and other offenses; motion to dismiss count one granted.
- Alleged text messages and photos to ex-girlfriend Rosemary Ruiz from May–July 2013, including a masked figure with a knife and the defendant’s photo.
- Information converted from misdemeanor complaint after deposition; case includes a family offense designation and temporary protection order.
- Court ordered a Dunaway/Huntley hearing for suppression and directed voluntary disclosure form disclosure 14 days before trial.
- Court finds count one facially insufficient for the “display” element but acknowledges sufficient allegations for “reasonable fear.”
- Concludes count one is dismissed; other counts remain; case sub judice for remaining issues and discovery motions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is count one facially sufficient to support menacing in the second degree? | People contend the information alleges threats and a possible display. | Nwogu argues insufficiency; information does not allege a valid display. | Facially insufficient as to the display element; overall sufficiency limited to other counts. |
| Did the information adequately allege that the defendant placed Ruiz in reasonable fear? | Facts show conduct causing reasonable fear given intimate access and repeated contact. | Fear is not adequately alleged from text messages alone. | Sufficient to allege reasonable fear when viewed in total context. |
| Did the information properly plead the “display” element? | Photograph of knife accompanied by text constitutes display. | Photograph alone does not constitute a display of a dangerous instrument. | Facial insufficiency; photograph via text not a display under statute. |
Key Cases Cited
- People v. Lopez, 73 N.Y.2d 214 (N.Y. 1989) (definition of “display” requires object perceived by victim)
- People v. Baskerville, 60 N.Y.2d 374 (N.Y. 1983) (display element requires perceivable object)
- People v. Norville, 198 A.D.2d 103 (1st Dept 1993) (issues with display and threats in robbery context)
- People v. Jenkins, 118 Misc 2d 530 (Sup. Ct. N.Y. County 1983) (display concept in context of weapon threat)
- People v. Iftikhar, 185 Misc 2d 565 (Crim Ct, Queens 2000) (discusses sufficiency considerations for information)
- People v. Nwogu, 22 Misc 3d 201 (Crim Ct, Queens 2008) (family offense context and facial sufficiency)
- People v. Dumas, 68 N.Y.2d 729 (N.Y. 1986) (facial sufficiency standard CPL 100.40)
- People v. Alejandro, 70 N.Y.2d 133 (N.Y. 1987) (facial sufficiency standard for charging documents)
- People v. McDermott, 69 N.Y.2d 889 (N.Y. 1987) (facial sufficiency standard; notice to defense)
- People v. Case, 95 N.Y.2d 354 (N.Y. 2000) (notice to prepare a defense; double jeopardy safeguards)