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ATTEMPTED MENACING OF A POLICE OFFICER IS NOT A COGNIZABLE CRIME; CHARGING ATTEMPTED MENACING OF A POLICE OFFICER IS A MODE OF PROCEEDINGS ERROR THAT NEED NOT BE PRESERVED (FOURTH DEPT).

The Fourth Department determined that attempted menacing of a police officer is not a cognizable crime because “attempt” is included in the offense. This was a mode of proceedings error that did not have to be preserved:

We agree with defendant … that his conviction of attempted menacing a police officer or peace officer must be reversed because that offense is not a legally cognizable crime. As relevant here, Penal Law § 120.18 provides that “[a] person is guilty of menacing a police officer or peace officer when he or she intentionally places or attempts to place a police officer . . . in reasonable fear of physical injury, serious physical injury or death by displaying a deadly weapon, . . . pistol, . . . or other firearm, whether operable or not, where such officer was in the course of performing his or her official duties and the defendant knew or reasonably should have known that such victim was a police officer.” Thus, according to the definition of menacing a police officer or peace officer set forth in the Penal Law, the attempt to commit the crime is already an element of the offense, and “there cannot be an attempt to commit a crime which is itself a mere attempt to do an act or accomplish a result” … . Although defendant failed to raise this issue at trial, preservation is not required inasmuch as this issue constitutes a mode of proceedings error … . People v Dibble, 2019 NY Slip Op 07165, Fourth Dept 10-4-19

 

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