What is Strangulation and Criminal Obstruction of Breathing in NYC?
In New York, there are 3 specific crimes related to allegations of Strangulation, which is also commonly called choking. First, Criminal Obstruction of Breathing and Circulation, which is categorized as a misdemeanor. Two higher degrees are called Strangulation in the Second Degree and Strangulation in the First Degree, which are punished as a violent felony.
Criminal Obstruction of Breathing and Circulation and Strangulation is one of the most specific and narrow crimes in New York. All 3 Strangulation crimes involve allegations of an intent to interfere with another person’s breathing by only 2 specific acts. First, by allegedly applying pressure to another person’s neck or throat. Second, by allegedly blocking the nose or mouth of another person.
Due to the nature of the allegations, Strangulation and Criminal Obstruction of Breathing and Circulation are prosecuted aggressively throughout New York. The charges require an aggressive and experienced Strangulation and Criminal Obstruction of Breathing and Circulation criminal defense lawyer.
New York Strangulation Charges
- Criminal Obstruction of Breathing or Blood Circulation
- Strangulation in the Second Degree
- Strangulation in the First Degree
Domestic Violence and Criminal Obstruction of Breathing and Strangulation Charges in New York
Criminal Obstruction of Breathing or Blood Circulation charges and Strangulation charges often involve allegations of Domestic Violence. In New York, Domestic Violence charges are prosecuted aggressively. Typically there will be a full Order of Protection in effect during the pendency of a prosecution.
The Order bars contact on any kind between the person charged and the complaining witness, such as by telephone or cellphone, text message, email and even via social media. The Order also directs the person charged from going near the home, school or place of business of the complaining witness. Failure to comply with the Order of Protection can result in arrest and prosecution on Criminal Contempt charges. The violation of the Order and a Criminal Contempt charge can result from a single innocently sounding text message or email to a complaining witness who is the subject of an Order of Protection.
Short of the dismissal of a Criminal Obstruction of Breathing charge or a Strangulation Charge, the Order of protection will be part of any disposition or outcome. If a defense lawyer can obtain a Family Adjournment in Contemplation of Dismissal of Family ACD, then the Order will be in effect for 1 year. If there is a plea bargain to a violation liked Disorderly Conduct or Harassment in the Second Degree, the Order will be in effect for 2 years.
An Order of Protection will be in effect for 5 years for a conviction to Criminal Obstruction of Breathing and Strangulation Charges in New York. Finally, an Order of Protection will be in effect for 8 years for a conviction of either Strangulation in the Second Degree or Strangulation in the First Degree.
Evidence in New York Strangulation Charges and the Complaining Witness
The types of evidence with Criminal Obstruction of Breathing charges and Strangulation charges can vary from case to case. At a minimum, a complaining witness would allege that the person charged put their hand or hands around the neck of the complaining witness and applied pressure by squeezing it. In some cases, the police arrive after a 911 call made by the complaining witness.
Additional evidence in Criminal Obstruction of Breathing charges and Strangulation charges may include:
- Photographs
- Statements made to police immediately following a 911 call
- Reports of medical treatment by EMTs or doctors
- Other eyewitnesses; and
- Admissions by a person who is charged
Following an arrest related to Domestic Violence, a complaining witness may not wish to go forward with charges. Each of the 62 District Attorneys in New York has different policies about how to proceed in such cases. Some prosecutors end the prosecution, but others go forward with the charges.
It is possible to prosecute a person for Domestic Violence on Criminal Obstruction of Breathing charges or Strangulation charges after a complaining witness declines to cooperate. However, absent a complaining witness, there must be evidence available to a prosecutor that would prove the allegations beyond a reasonable doubt, which is a high standard. In addition to the testimony of a complaining witness at trial, some of the evidence listed above may be used without the cooperation of a complaining witness.
First, the 911 call, if made close in time to the alleged Criminal Obstruction of Breathing and Strangulation allegations may be used as evidence at a trial. During a 911 call, the complaining witness may state the Criminal Obstruction of Breathing and Strangulation allegations. Although it is hearsay, the recording of the statements of a complaining witness are typically admissible through the Excited Utterance exception to hearsay. However, the 911 call is typically not admissible if there is a delay between the alleged Criminal Obstruction of Breathing or Strangulation, such as the next day or the days following.
Second, any statements made by the complaining witness to police who respond to a complaint of Criminal Obstruction of Breathing or Strangulation can also be admitted into evidence during a trial. Although such statements are considered hearsay, they are also admissible under the Excited Utterance exception to the hearsay rule.
Third, any photographs that were taken by a witness or a person witnessed taking the photographs who can testify at trial can be used in the absence of the complaining witness.
Finally, if complaining witness is treated by medical personnel, such as an EMT, nurse or doctor, any statements made for the purpose of treatment are not considered hearsay. So, any statements made by the complaining witness during medical treatment to a medical professional about a Criminal Obstruction of Breathing charge or Strangulation charge may be admitted at trial through the testimony of the medical professional.
Thus, even if a complaining witness declines to cooperate with a Criminal Obstruction of Breathing charge or Strangulation, it may not be the end of the case. Whether or not the prosecution ends depends on the availability of other evidence.
Criminal Obstruction of Breathing, Strangulation and Other Charges in New York
Charges of Criminal Obstruction of Breathing charge and Strangulation are often brought with additional charges. The most common charges brought in association with Strangulation include Assault, Criminal Possession of a Weapon and Endangering the Welfare of a Child.
- Assault charges are brought when a person allegedly has the intent to cause a physical injury to another person and causes a physical injury
- Criminal Possession of a Weapon charges are brought if a person allegedly possesses a weapon with an intent to use the weapon unlawfully against another person
- Endangering the Welfare of a Child charges are brought if a person allegedly commits a crime in the presence of a person who is less than 17 years old
While Assault charges Criminal Obstruction of Breathing charge and Strangulation charges are different, they are sometimes charged together. The crux of an Assault charge is intentionally causing a physical injury to another person. However, Criminal Obstruction of Breathing charge and Strangulation charges address intentionally impeding another person’s breathing by pressure, which may not always result in a visible injury.
Assault, Criminal Obstruction of Breathing and Strangulation are most often charged together when there is an allegation of a bruise or contusion on a person’s neck. Attempted Assault is often charged with Criminal Obstruction of Breathing charge and Strangulation when there is not a visible injury on the complaining witness.
What is Criminal Obstruction of Breathing or Blood Circulation according to New York Law?
In New York, Criminal Obstruction of Breathing or Blood Circulation, Penal Law Section 121.11, is a class A misdemeanor. The crime is a class A misdemeanor, with a maximum sentence of up to 1 year in jail.
Criminal Obstruction of Breathing (for short) is charged when, “with intent to impede the normal breathing or circulation of the blood of another person, he or she”:
- Applies pressure on the throat or neck of such person; or
- Blocks the nose or mouth of such person
Defenses to Criminal Obstruction of Breathing or Blood Circulation in New York
The most common defense to Criminal Obstruction of Breathing or Blood Circulation charges is that the charges are false. Every person charged with a crime is innocent until the prosecution proves the crime beyond a reasonable doubt. Whether or not a prosecutor can prove such Criminal Obstruction of Breathing or Blood Circulation charges depends on the allegations and evidence in the case. Every case is different.
There is one affirmative defense built into the charge. In New York, under Penal Law Section 121.14, it is an affirmative defense to a Criminal Obstruction of Breathing or Blood Circulation in New York charge that pressure was applied to the throat or neck of a person or blocked his or her mouth with an intent to impede a person’s normal breathing or circulation if it was done for a valid medical or dental purpose.
As an affirmative defense, the burden to prove the defense is on the defendant. But, unlike a prosecutor’s high burden to prove a charge and all of its elements beyond a reasonable doubt, the burden to prove an affirmative defense is only by a preponderance of the evidence. That means more likely than not likely or only 51%.
Sentencing for Criminal Obstruction of Breathing or Blood Circulation in New York
As a class A misdemeanor, Criminal Obstruction of Breathing or Blood Circulation is punished by up to 1 year in prison. Although prosecutors tend to take a more aggressive approach to Domestic Violence allegations involving Criminal Obstruction of Breathing, a plea bargain to a non-criminal outcome or a complete dismissal is not out of the question. Each case depends on the specific allegations and the relative strength or weakness of the evidence in support of the Criminal Obstruction of Breathing charges.
In many cases, to obtain a favorable plea bargain or dismissal of the charges, a person will be required to obey an Order of Protection or attend treatment in the form of talk therapy. If a person is convicted of Criminal Obstruction of Breathing or Blood Circulation, then in addition to any sentence, the Order of Protection will be in effect for 5 years and the Court may order treatment.
Strangulation in the Second Degree in NYC
Strangulation in the Second Degree, Penal Law Section 121.12, is a class D violent felony in New York. The maximum prison sentence is 2/13 to 7 years if a person does not have a prior felony conviction.
Strangulation in the Second Degree is charged when a person commits the crime of Criminal Obstruction of Breathing or Blood Circulation and causes:
- Stupor or loss of consciousness for any period of time, or
- Any other physical injury or impairment
Thus to be charged with Strangulation in the Second Degree a person must allegedly commit the crime of Criminal Obstruction of Breathing or Blood Circulation with 1 of 2 categories of aggravating factors. Criminal Obstruction of Breathing or Blood Circulation is charged when “with intent to impede the normal breathing or circulation of the blood of another person, he or she (a) applies pressure on the throat or neck of such person; or (b) blocks the nose or mouth of such person.”
The first factor is either stupor or loss of consciousness for any period of time. Stupor is the state of near unconsciousness. The evidence of either stupor or loss of consciousness would most likely come from the complaining witness or an eyewitness. It is unlikely, though not impossible, that a person could be convicted of Strangulation in the Second Degree without such testimony.
The second factor is either any physical injury or impairment. That category is quite broad. Physical injury is defined in New York under Penal Law Section 10.00(9) as “impairment of physical condition or substantial pain.” In the context of Strangulation in the Second Degree charges, any physical injury or impairment is likely to take the form of visible bruising or contusion to the neck or an internal injury to the throat.
Like, the first aggravating factor category, evidence of a physical injury or impairment would most likely come from the complaining witness or an eyewitness. The alternative to such testimony would be photographs of the alleged injury or testimony from a medical professional such as a doctor, nurse or EMT about an alleged injury.
Strangulation in the Second Degree Sentencing in New York
Strangulation in the Second Degree is a class D felony in New York. In addition, it is categorized as a violent felony. A conviction of a Strangulation in the Second Degree charge has a maximum prison sentence of 7 years and a minimum of 2 years if a person does not have a prior felony conviction. In addition, there is a post-release period of supervision of between 1 1/2 and 3 years. But, the period of post-release supervision is between 3 and 10 years if the allegations involve a sexually motived offense.
If Strangulation in the Second Degree charge is related to Domestic Violence, a Judge may impose a term with a minimum of 1 to 3 years and a maximum of 3 1/2 to 7 years if a person does not have a prior felony conviction.
However, a prison term of more than 1 year is not mandatory for a Strangulation in the Second Degree conviction. An alternative sentencing option is a split sentence of up to 6 months in jail followed by a period of 3, 4 or 5 years probation. An Order of Protection will be in effect for 8 years beyond any incarceration.
New York Strangulation in the First Degree
Strangulation in the First Degree, Penal Law Section 121.13, is a class C violent felony in New York. Prison is mandatory for a conviction of a Strangulation in the Second Degree charge. The minimum prison sentence is 3 1/2 years if a person does not have a prior felony conviction.
Strangulation in the First Degree is charged when a person commits the crime of Criminal Obstruction of Breathing or Blood Circulation and “and thereby causes serious physical injury to such other person.”
Thus, one difference between Strangulation in the First Degree and Strangulation in the Second Degree is the difference between a physical injury and a serious physical injury.
In New York, serious physical injury is defined under Penal Law Section 10.00(10) as a “physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.” Whereas physical injury, which is defined as “impairment of physical condition or substantial pain.”
There is a vast difference between a physical injury and a serious physical injury. Due to the allegations associated with Criminal Obstruction of Breathing or Blood Circulation, Strangulation in the First Degree is rarely charged. In New York, Criminal Obstruction of Breathing or Blood Circulation is defined under Penal Law Section 121.11 as “with intent to impede the normal breathing or circulation of the blood of another person, he or she (a) applies pressure on the throat or neck of such person; or (b) blocks the nose or mouth of such person.”
Thus, to charge Strangulation in the First Degree the allegation would most likely include damage to a person’s organ or protracted impairment of health such as a coma.
New York Sentencing for Strangulation in the First Degree
Strangulation in the First Degree is a class C violent felony in New York. A mandatory minimum prison sentence of 3 1/2 years is required for a conviction of Strangulation in the First Degree if a person does not have a prior felony conviction. The maximum prison term if 15 years. A conviction of the charge also requires a between 2 1/2 and 5 years post-release supervision, unless the allegations were sexually motivated.
In that event, post-release supervision is required from 5 to 15 years. However, if the Strangulation in the First Degree charge is related to Domestic Violence, then a Judge may impose a sentence of a minimum of 1 1/4 to 4 1/2 years in prison and a maximum of 7 1/2 to 15 years. No matter the sentence, an Order of Protection will be in effect for 8 years after release from incarceration.
Hiring a New York City Strangulation Charges Lawyer
The criminal justice system is complex and can be intimidating and confusing, especially in New York. Hiring the right New York Strangulation charges attorney is crucial in achieving the best possible outcome when one is charged with a Strangulation crime in NYC.
The best New York City lawyer for Strangulation charges is experienced, aggressive and knowledgeable in both Domestic Violence allegations and Strangulation charges. As a former prosecutor in New York City, I have the experience and knowledge from both prosecuting Strangulation charges, and aggressively defending people against Strangulation charges in NYC.
Speak With a NYC Strangulation Charges Attorney Today
If you or a loved one is charged with Strangulation in New York City, we’re here to help. Contacting a Strangulation charges lawyer early in your case is important to preserve evidence that might be destroyed. A knowledgeable and aggressive Strangulation lawyer may be able to have the charges completely dismissed based on the facts that are different in every case. In the alternative, a Strangulation lawyer may be able to negotiate a favorable bargain to a non-criminal outcome or a lesser charge.
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