Strangulation in New York
What does New York law say about strangulation?
New York law adopted strangulation as a separate offense in 2010. These statutory additions were meant to address those incidents where strangulation could not be prosecuted under a different law.
New York Penal Laws Related to Strangulation
There are three separate strangulation laws which address the severity of the incidence of strangulation:
- New York Penal Law § 121.11 – Criminal Obstruction of Breathing or Blood Circulation
- New York Penal Law § 121.12 – Strangulation in the Second Degree
- New York Penal Law § 121.13 – Strangulation in the First Degree
Each of these statutes is described in detail below.
Facts and Examples of Strangulation
- Strangulations have been exhibited in intimate encounters, either with a partner or by the individual alone. It is known as erotic asphyxiation. In essence, it is where strangulation is used to achieve a sexual effect. This has also caused many fatalities.
- A form of strangulation has been used by school-age children in what has been called the “Choking Game.” This game has resulted in many deaths.
- Nearly 10 percent of all homicide deaths involving females are from strangulation.
What is “Garrote?”
Many times, strangulation will be done with hands, but at other times, a device like a metal wire will be employed; this device is known as a “garrote.”
These are not all of the ways that strangulation can occur. If you have any questions, please contact one of our attorneys.
How is “Strangulation” Classified?
The term “strangulation” means to have pressure applied to a region of the neck that results in the restriction of blood flow and or breathing. It is often used as a ploy over a victim to exert dominance.
If you or a loved one has been charged with the crime of strangulation, please call one of our offices today. Our team of attorneys can help you or your loved one throughout the entire process. They seek to provide the best possible defense to protect your best interests.
Criminal Obstruction of Breathing or Blood Circulation
This law has two components. And individual places pressure on the neck or throat of another with the intent to interfere with that person’s breathing or blood circulation. The courts have determined that a victim does not need to have a physical injury or a physical sign of strangulation.
- For example, Tamara has been in an arduous dispute with her boyfriend, Cameron. The dispute escalates, and Tamara throws a curling iron at Cameron. Cameron is infuriated with Tamara and puts her in a chokehold to help “settle her down.” Tamara struggles and gasps for air for a few moments before Cameron lets her go.
There are no marks on Tamara’s neck, and she does not have any lasting physical injury from the chokehold. However, Cameron still has violated the law of criminal obstruction of breathing or blood circulation. This is a class A misdemeanor. The penalties associated with this are a maximum fine of 1,000 dollars and up to a year in jail.
Strangulation in the second degree
This law has the same elements as criminal obstruction of breathing or blood circulation; however, it becomes strangulation in the second degree if the victim loses consciousness, goes into a stupor or has another physical injury or impairment. This law can also be considered a hate crime if it is meant to target a specific protected class of individuals.
- For example, Derrick enjoys playing the “Choking Game.” He convinces Mary to play the game which is reluctant to play but gives into Derrick’s cajoling. Derrick places his hands on Mary’s neck and applies pressure.
After a few moments, Mary asks Derrick to stop, but he continues to keep a hold on her neck. She struggles against Derrick but eventually passes out. After Mary wakes up, her neck is a little sore, and she feels lightheaded. Derrick has committed strangulation in the second degree.
This is considered a class D violent felony. The maximum penalties associated with this are a fine of 5,000 dollars and seven years in prison.
Strangulation in the first degree
This law is very similar to strangulation in the second degree. The difference with this law is that strangulation in the first degree requires the victim to suffer a serious physical injury rather than any physical injury. This law also can be considered a hate crime under specific circumstances.
- For example, Edward is in a property dispute with his neighbor Killian. One day, a heated exchange arises between the two, and Killian shouts various profanities and insults towards Edward. Edward grabs a nearby hose and wraps it around Killian’s neck.
Killian collapses and passes out, and Edward lets him go. Killian is later taken to a hospital where it is discovered his hyoid bone has been broken and his windpipe has partially collapsed. Edward has committed strangulation in the first degree.
This is considered a class C violent felony. This means that a person being charged with this crime could face a maximum fine of 5,000 dollars and up to 15 years in prison.
There are a variety of defenses available to individuals who have been charged with a crime of strangulation.
Medical or Dental Purpose – New York Penal Law § 121.14
The New York legislature, various organizations, and the courts have identified that this law will not apply to every situation where restrictive airflow might result.
According to New York Penal Law § 121.14, it is an affirmative defense that a defendant performed the conduct described in New York Penal Law §§ 121.11, 121.12, and 121.13 for a valiv medical or dental purpose.
Consent by a Willing Participant
If the strangulation was coming from a willing participant who could give consent (not a minor, competent, etc.), then this could be used as a defense even though strangulation technically did occur.
If you have any questions about possible defenses, please call our offices. One of our attorneys would be happy to discuss your situation and help you understand the law.
New York law breaks up strangulation into three separate laws based on severity. The penalties range from a class A misdemeanor to a class C violent felony. Violators can face substantial fines and lengthy incarceration times. Since the strangulation laws were not meant to apply to all situations, a person charged with strangulation may have some defenses.
What are other crimes that are related to strangulation?
In many instances, a single set of circumstances can give rise to many different criminal charges. The laws surrounding strangulation are not different. A single instance of strangulation could also lead to charges of assault and possibly murder.
The federal government also identifies strangulation as a crime of domestic violence. It becomes a federal crime when this takes place on federal lands or territories. Individuals who violate these laws could be facing a fine of 250,000 dollars and up to 10 years in prison.
It is important to note that many of the states also have similar laws to New York concerning strangulation. Also, many of the tribal codes have similar laws as well. In some instances, the crime of strangulation can automatically be considered a family offense and could result in protective orders or other penalties associated with family offenses.
A single instance of strangulation could lead to other criminal charges with severe penalties depending on the situation.
What have the courts said about strangulation?
The New York laws surrounding strangulation have not been around for very long. It was the goal of the New York legislature to capture instances of strangulation or choking that would not be able to prosecute under the current assault statutes. However, the courts have tried to determine the scope of these laws and how they work with other laws.
Here are a few court cases that have addressed a few of the issues associated with the laws of strangulation.
- In Matter of Rosa N. v. Luis F., a New York appeals court determined that if someone is alleged to have committed strangulation and it is reasonable, it can be considered a family offense and a protective order can be issued against the offender without a hearing.
The defendant, Luis F., had been charged with strangulation and a protective order was issued against him after the victim recounted the encounter which matched all the elements of the strangulation law. The defendant only made a simple denial of the claims.
He was also charged with violating the protective order by continuing to send texts to the victim, and blatantly acknowledged that he refused to read the protective order. After he was charged with violating the protective order, the defendant appealed and stated that the law of strangulation could notautomatically result in a protective order unless a hearing is conducted. The court disagreed.
The court stated that since the victim’s testimony about the alleged strangulation was credible and the defendant did not attack the credibility of the claims, only used a simple denial, it can be considered a family offense.
The law does not require a formal hearing for a protective order, and the protective order was only served after being a court determined the credibility of the victim’s statements and how it matched the law of strangulation. And not reading the protective order does not mean that the defendant did not have notice of the protective order. Therefore, the defendant can be charged with violating the protective order.
To read the court opinion in full, please click here. Or copy and paste the following.
- In People v. Mata, a New York appeals court determined that criminal obstruction of blood or breathing is its own separate offense and can be attempted.
The defendant, Raymond Mata, was charged and convicted of assault and strangulation. During the course of investigation and prosecution, certain charges were lessened to attempts, including criminal obstruction of blood circulation or breathing.
Mata claimed that this law was, in essence, attempted strangulation in the second degree, and an “attempted attempt” is a fictitious law and should be dismissed. The court disagreed.
The court stated that the law of criminal obstruction of blood or breathing is not to be considered attempted second-degree strangulation. It is a criminal offense that stands on its own and can be committed without being on the path to strangulation in the second-degree. Therefore, it is possible to have attempted criminal obstruction of blood circulation or breathing.
The court affirmed the conviction of Mata.
To read this court opinion in full, please click here. Or copy and paste the following.
- In People v. Figueroa, a New York City court determined that the law surrounding strangulation was meant to be applicable to instances of choking that did not involve a lasting “physical injury.”
The defendant, Joseph Figueroa, was charged with criminal obstruction of blood circulation and breathing. A park ranger noticed that Figueroa was in a domestic dispute with a woman and proceeded to place his hands on the woman’s neck. It was in response to a facial slap to Figueroa’s face.
The park ranger noticed that the woman turned pale and stiffened her legs during the time Figueroa had his hands on the woman’s neck. However, the woman did not exhibit any lasting signs of the choking or exhibitable physical injury.
The court needed to determine if all of the elements of the law had been satisfied even though no lasting physical injury was present, and no substantial pain was discovered. The court determined that the two elements of the law were to address the instances of choking that did not have a physical injury.
If someone places their hands on the neck of a person for the intent of restricting oxygen or blood flow, it is a violation of the law. The court determined that the state prosecution had met its burden of proof for criminal obstruction of blood circulation or breathing in the criminal proceedings against Figueroa.
To read the court opinion in full, please click here. Or copy and paste the following.
Who investigates charges of strangulation?
The New York Police Department (NYPD) will usually handle the investigations of strangulation allegations. If it involves a specific victim or situation, it may be handled by the Special Victims Unit of the NYPD.
If the crime occurs on federal property or reservations or includes a person protected by the federal government (i.e., witness, officer, etc.), it will be investigated by the Federal Bureau of Investigation (FBI). The FBI will usually work with local law enforcement during investigations of strangulation.
I have been charged with strangulation, what should I do?
Any individual who has been charged with strangulation is facing substantial fines and penalties. Also, as with any criminal charge, that individual also has to deal with defending his or herself against the criminal charge while also meeting professional and personal obligations. This balancing act often causes severe detriments to every person who is being charged with strangulation.
Why hire an attorney?
Also, strangulation is a very violent crime, and no matter the circumstances, a charge of strangulation can permanently tarnish someone’s reputation, careers, relationships, and future professional and personal opportunities. It can lead to loss of professional licenses or qualifications. Even if an individual is acquitted or the charges are dropped, these effects can be long-lasting, especially if covered by local or national media.
This is why it is imperative to have a legal defense team who has the proper knowledge and experience who wish to represent your best interests. Our team of attorneys are skilled and knowledgeable and will help you throughout each step of the way. They know what you are facing and are prepared to provide the best possible defense under the circumstances. You do not have to face this alone.
Please call for a free legal consultation today!
DOJ Press Releases
The Office of Violence Against Women (OVW) conference offers support to victims.
According to the DOJ press release, Katharine Sullivan, the director of OVW, delivered an address at an annual conference dedicated to helping victims, bolstering law enforcement, and deterring and punishing offenders of the Violence Against Women Act (VAWA).
The conference addressed the issue of how stranglers are connected to killers of law enforcement officers and how this process can be prevented. A joint alliance with a strangulation prevention program was announced to help address this issue.
Also, it addressed that in some instances, law enforcement and prosecutors are looking for ways to have a victim be free of testifying against their abusers, if she would choose not to, due to a variety of reasons, but would still allow the abuser to stand trial and face charges.
To read the press release in full, please click here. Or copy and paste the following.
Annual report on violent crimes in Indian country
According to the DOJ press release, an annual report on Indian country statistics about violent crimes and prosecutions was delivered to Congress. Overall, the report was positive and showed an increase of prosecutions for violators of VAWA.
In 2017, federal investigators filed charges against 139 defendants with strangulation and stalking. This was quite an increase over previous years. It also marks a growing trend of federal investigators, local and tribal law enforcement to investigate allegations of strangulation and stalking further. Indian lands have often had issues with domestic violence and various other violent crimes not being reported or failing to be fully investigated.
To read the press release in full, please click here. Or copy and paste the link below.
- Proposed legislation highlights the gap in the jurisdictional system.
According to the DOJ press release, in 2019, a bill was before Congress that would allow tribal law enforcement and prosecutors be able to prosecute domestic violence crimes that occur on tribal lands against individuals who are not members of the tribe.
Tribal law enforcement and prosecutors have limited jurisdiction. They can only enforce tribal laws against tribal members that are on tribal lands. For individuals who are members of the tribe but have a spouse or partner that is not, violent crimes that are committed by the non-tribal member, were forced to be turned over to federal prosecutors, even if the crime involved domestic violence against a child who is a member of the tribe.
These crimes would involve small instances of domestic abuse and were often ignored or had delayed enforcement from their federal counterparts. However, the crimes would often escalate, usually including strangulation, into a major problem within weeks to months. This has caused irreparable harm to many tribal members.
The bill also addressed that this was a priority since tribal women were much more likely to experience violent abuse from their partners than other races. Fifty-six percent of tribal women have suffered domestic violence from an intimate partner, and 90 percent of those abuse cases have come from a non-tribal member.
To read the press release in full, please click here. Or copy and paste the following.