Choking and strangling are mostly seen in New York’s domestic violence courtrooms. New York recognizes three different choking or strangling offenses. First degree strangulation is the most serious of the three offenses. The New York Penal Code section 121.13 involves strangulation in the first degree. It states that “A person is guilty of strangulation in the first degree when he or she commits the crime of criminal obstruction of breathing or blood circulation, as defined in section 121.11 of this article, and thereby causes serious physical injury to such other person.” Section 121.11 states that “A person is guilty of criminal obstruction of breathing or blood circulation 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.”
Intent
Police and prosecutors take choking and strangling very seriously. Severe brain injuries or death can result. By combining section 121.11 with section 121.13, it follows that a person can be charged with strangulation in the first degree if he or she applies pressure on a on the throat or neck of somebody else with an intent to interfere with that person’s breathing or blood circulation. A serious injury must result. Without a serious injury, a person would be charged with a misdemeanor under section 121.11. If a serious injury did result, the person who committed that choking or strangulation would be charged with a class C felony.
Defenses
Whether the victim suffered a serious physical injury is often at issue in choking and strangulation cases. New York law requires something more than a minor cut, bruise or a patch of red skin. As per New York Penal Code section 10.10(10), a serious physical injury “means 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 of impairment of the function of any bodily organ.” If the prosecution has difficulty showing a serious physical injury, that would likely be cause for a charge pursuant to section 121.11. As per sections 121.11 and 121.13, a statutory defense exists if the defendant’s actions were for a valid medical or dental reason.
Sentencing
The sentence for conviction of a violent class C felony in New York ranges from 42 months to 15 years in prison. Probation is not a sentencing alternative. A fine of $5,000 plus restitution of up to $15,000 can be ordered. When the appropriate facts present themselves, choking or strangulation can be determined to be a domestic violence offense. Other sentencing conditions could also apply.
Always keep in mind that you are presumed innocent until proven guilty. From a criminal defense standpoint, the State of New York has the burden of proving you guilty beyond a reasonable doubt. You have the right to remain silent and the right to have an attorney present during any questioning. Invoke and exercise those rights. It is also legal for police to use deceptive tactics in efforts to obtain a confession, and if you give one, it can be extremely difficult to take back and will likely be used against you. If you are out on bail and have been ordered to stay away from the alleged victim or others, do not have any direct or indirect contact with them, even if they initiated it, as that can result in being taken back into custody. If you are facing choking or strangulation charges, contact our offices as soon as possible to arrange a consultation. We will listen carefully, answer your questions, and fully advise you of your legal options.
