Another story I read said he fired two "warning shots". It is my understanding that no state in the US recognizes the concept of a warning shot. You might get a lenient judge, but that is luck of the draw. I've always been told if it's time to aim the gun. It's time to fire it. You can likely pull your weapon and point it at the ground, but as soon as it's no longer pointed at the ground you're facing felony charges regardless. I've always wondered what the law would think if the first round in the mag was a blank. I'm not sure if that makes any difference for a charge like menacing. Best bet is to use something like mace if you don't want to escalate to lethal force immediately. Given the current politics of NYC, I think he'd still be facing charged and high bail if he used mace. I also noticed there is no mention of bail or charges to the actual criminal in this case.