In New York (NY) crimes of assault are referred to as menacing. Menacing involves a threat or attempt to cause bodily harm assuming the actor has the ability to cause such harm. It requires that the accused has a genuine intention either to frighten the victim or to cause them physical harm.
Both threats and attempts to cause another person harm constitute an act of menacing. An attempt to cause harm is considered menacing in every state (although it may be referred to as >assault= in some states), and in most states a threat is considered menacing. The difference between a threat and an attempt is that a threat never commits to a dangerous action. An attempt can sometimes follow a threat, but often occurs without any threat at all.
Menacing is usually not a felony, however if someone engages in repeated acts of violence or threats, then they may find themselves charged with a class E felony upon their second conviction for menacing. First or second degree menacing is often the result of threatening to injure another person by displaying a deadly weapon such as a gun or knife. The charges can also become more serious if the accused intends to commit a separate felony – such as robbery or rape – that ends with only a threat.
What is considered a Threat?
A threat refers to a physical act that is preformed in order to scare or intimidate another person. Usually a threat is verbal, but it can also by a facial expression, body language, or a written note. In order for it to be menacing, the recipient of the threat must become reasonably worried about receiving harm. The recipient must also be worried that it is an immediate threat. A threat is intended to frighten the victim, but the victim does not necessarily need to be scared in order for the act to be menacing. If the victim is apprehensive of danger, though he may not be afraid, then the threat will still be criminal.
What is considered an Attempt?
An attempt to cause another immediate harm is another form of menacing. If the attempt is successful at causing the other person bodily harm, then the assailant has committed an assault. If the attack fails, then it is only menacing. The purpose of a threat is to scare the victim, but the purpose of an attempt is to cause immediate harm. Therefore, the only difference between attempted menacing and assault is the degree of success of the attacker.
It is common for a threat or intimidation to be taken as an attempt at bodily harm. An experienced criminal defense attorney can make the legal distinction between assault and menacing, and ensure that the prosecution has the necessary evidence to charge a defendant with assault or attempted assault.