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The People of the State of New York v. Nathaniel Herbert

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


April 1, 2011

THE PEOPLE OF THE STATE OF NEW YORK,
RESPONDENT,
v.
NATHANIEL HERBERT,
APPELLANT.

Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Robert Kalish, J.), rendered August 13, 2009.

People v Herbert (Nathaniel)

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 1, 2011

PRESENT: PESCE, P.J., WESTON and STEINHARDT, JJ

The judgment convicted defendant, upon his plea of guilty, of menacing in the second degree.

ORDERED that the judgment of conviction is affirmed.

Defendant was convicted, upon his plea of guilty, of menacing in the second degree (Penal Law § 120.14 [1]). The sole issue raised on appeal concerns the sufficiency of the accusatory instrument, which was denominated neither a misdemeanor complaint nor an information. As defendant does not dispute that he validly waived prosecution by information, the accusatory instrument is evaluated as a misdemeanor complaint for the purpose of analyzing its jurisdictional sufficiency (cf. People v Kalin, 12 NY3d 225, 228 [2009]; People v Casey, 95 NY2d 354, 359 [2000]; People v Elman, 21 Misc 3d 135[A], 2008 NY Slip Op 52199[U] [App Term, 9th & 10th Jud Dists 2008]).

Contrary to defendant's contention, the allegation in the complaint that he placed scissors to the victim's neck, without describing the scissors with particularity, was sufficient to establish menacing in the second degree (see Matter of Jonathan M., 4 AD3d 154, 155 [2004]). The manner in which defendant used the scissors qualified them as a dangerous instrument (see id., citing People v Carter, 53 NY2d 113 [1981]). Whether defendant placed the scissors' blades or "rounded" handles to the victim's neck is irrelevant because "menacing does not require any form of physical contact, actual, attempted or threatened. Menacing simply requires an intent to place another person in reasonable fear of physical injury by displaying a weapon or dangerous instrument" (People v Bartkow, 96 NY2d 770, 772 [2001] [internal quotation marks and citation omitted]; see People v Cruci, 14 Misc 3d 128[A], 2006 NY Slip Op 52495[U] *2 [App Term, 9th & 10th Jud Dists 2006]).

Thus, we find that the accusatory instrument satisfies the statutory requirements for a misdemeanor complaint since, among other things, its factual allegations provide reasonable cause to believe that defendant committed the offense charged in the accusatory part of the instrument (see CPL 100.40 [4] [b]; Penal Law § 120.14 [1]). Additionally, the instrument substantially complied with CPL 100.15 in that its factual part contained, as required by said provision, "a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charge[]" (see CPL 100.40 [4] [a]; People v Taher, 23 Misc 3d 138[A], 2009 NY Slip Op 50922[U] *3 [App Term, 9th & 10th Jud Dists 2009]), and the factual allegations were permissibly based upon the deponent's information and belief (CPL 100.15 [3]).

Accordingly, the judgment of conviction is affirmed.

Pesce, P.J., Weston and Steinhardt, JJ., concur.

Decision Date: April 01, 2011

20110401

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