Appeals from judgments of the Justice Court of the Town of Wappinger, Dutchess County (Carl Wolfson, J.), rendered April 3, 2003. The judgments convicted defendants, upon jury verdicts, of menacing in the third degree.

On the court's own motion, appeals consolidated for purposes of disposition.

Judgments of conviction affirmed.

The accusatory instrument charged defendants with menacing in the third degree (Penal [*2]Law § 120.15), alleging that they intentionally placed or attempted to place Richard Fox and Thelite Fox in fear of death, imminent serious physical injury or physical injury. The accusatory instrument further alleged that defendants were each operating a vehicle and that one of the vehicles approached the Foxes' vehicle "at a high rate of speed with its high beams on." Defendants then parked their vehicles, one in front of the Foxes' vehicle and the other behind, each facing the Foxes' vehicle, thereby pinning the Foxes' vehicle in between theirs. It was further alleged that the defendants exited their respective vehicles, approached the Foxes' vehicle, pulled on its door handle, and demanded that the Foxes exit their vehicle. After a jury trial, the defendants were found guilty as charged.

On appeal, defendants argue for the first time that the information was jurisdictionally defective. Defendants contend that all of the elements of menacing in the third degree were not pleaded, as the allegations were insufficient to support the crime. Specifically, defendants contend that the allegation that they pulled on the door handle of the Foxes' vehicle and demanded that the Foxes exit their vehicle failed to contain the required element of placing the Foxes in imminent fear of physical injury by physical menace (see Penal Law § 120.15).

Section 100.40 (1) of the Criminal Procedure Law provides that an information is sufficient on its face when it substantially conforms to the requirements of CPL 100.15, the factual allegations (together with any supporting depositions which may accompany it) provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part, and the nonhearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and defendant's commission thereof. The failure to comply with this requirement is a nonwaivable jurisdictional defect (see People v Alejandro, 70 NY2d 133 [1987]), with the exception of the nonhearsay requirement, which is deemed waived absent a pre-trial motion (see People v Casey, 95 NY2d 354 [2000]) or upon a plea of guilty (see People v Pittman, 100 NY2d 114, 122 [2003]).

"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" (Penal Law § 120.15). Since the statute requires "physical menace," a defendant must do more than make verbal threats (see Matter of Tanasia Elaine E., 49 AD3d 642 [2008]; Matter of Akheem B., 308 AD2d 402 [2003]; People v Sylla, 7 Misc 3d 8 [App Term, 2d & 11th Jud Dists 2005]; People v Stephens, 100 Misc 2d 267 [1979]; Donnino, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law § 120.15 at 314-315). The various acts of defendants as alleged in the accusatory instrument were sufficient to set forth a physical menace. Accordingly, we find that the accusatory instrument was not jurisdictionally defective.

We reject defendants' contention that they were denied their statutory right to a speedy trial (CPL 30.30 [1] [c]). The adjournments included an adjournment for a period of time when defendants were without counsel through no fault of the court (see CPL 30.30 [4] [f]), an adjournment following a pre-trial motion made by defendants (see CPL 30.30 [4] [a]), adjournments which were made at the request of, or with the consent of, defendants (see CPL 30.30 [4] [b]), and an adjournment following court closure due to inclement weather (see People v Fagan, 260 AD2d 219 [1999]). None of these adjournments were chargeable to the People. Consequently, the Justice Court properly denied defendants' motion to dismiss the information [*3]pursuant to CPL 30.30 (1) (c).

Viewing the evidence in a light most favorable to the People (see People v Contes, 60 NY2d 620 [1983], we find that it was legally sufficient to establish defendants' guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power (see CPL 470.15 [5]), we are satisfied that the verdicts of guilt were not against the weight of the evidence (see People v Danielson, 9 NY3d 342 [2007]; People v Romero, 7 NY3d 633 [2006]).

Defendants' remaining contention, that the charge was void as duplicative, is unpreserved for appellate review (see People v Iannone, 45 NY2d 589 [1978]; People v Lopez, 175 AD2d 267 [1991]), and we decline to review it in the interest of justice.

Tanenbaum, J.P., Molia and LaCava, JJ., concur.
Decision Date: February 27, 2009