New York Penal Law § 121.12 - Strangulation in the Second Degree

Under New York Penal Law § 121.12, Strangulation in the Second Degree is an aggravated form of Criminal Obstruction of Breathing or Blood Circulation that causes the alleged victim to either lose consciousness or experience physical injury or impairment.

The offense of Strangulation in the Second Degree under Penal Law § 121.12 requires the government to prove each of the elements of Criminal Obstruction of Breathing or Blood Circulation. The elements of Criminal Obstruction of Breathing or Blood Circulation (Penal Law § 121.11) are:

1. Blocking the nose or mouth of another person, or
2. Applying pressure to another’s neck or throat, and
3. Intending to impede the other person’s normal breathing or blood circulation.

In addition, the government must prove that the alleged victim lost consciousness or suffered physical injuries or impairment as a result of the obstruction.

Charges of Strangulation in the Second Degree can come up in a variety of circumstances most commonly in Domestic Violence cases. For example, choking someone to the point where they lose consciousness would likely result in these charges. However, even if the alleged victim does not lose consciousness, the government may still pursue strangulation charges if they suffered other injuries. For example, if an alleged victim experienced significant bruising to their neck, the district attorney would likely argue that the bruising constitutes a “physical injury” under the language of the strangulation statute.

Often, prosecutors bring Strangulation in the Second Degree charges along with one or more of the following:

• Criminal Obstruction of Breathing or Blood Circulation (NY Penal Law § 121.11)
• Strangulation in the First Degree (NY Penal Law § 121.13)
• Assault in the Third Degree (NY Penal Law § 120.00)
• Assault in the Second Degree (NY Penal Law § 120.05)
• Aggravated Strangulation (NY Penal Law § 121.13-A)

Notably, Criminal Obstruction of Breathing or Blood Circulation is a lesser-included offense of Strangulation in the Second Degree. Thus, you cannot be convicted of both offenses. Similarly, Strangulation in the Second Degree is a lesser included offense of both Strangulation in the First Degree and Aggravated Strangulation.

Because Strangulation in the Second Degree is essentially a more serious form of Criminal Obstruction of Breathing or Blood Circulation, all of the criminal obstruction offenses apply, which include:

• A lack of intent to interfere with another’s normal breathing or blood circulation;
• Fabrication; and
• The defendant’s actions were carried out pursuant to a valid medical or dental purpose.

Additionally, challenging the “physical injury or impairment” element of the offense could result in avoiding liability for the strangulation offense, although this not be a defense to Criminal Obstruction of Breathing or Blood Circulation. However, because the punishment for obstructing another’s breathing or circulation is significantly less than for strangulation, this is a good option in some cases.

Strangulation in the Second Degree is a class D felony. In New York, class D felonies are punishable by up to seven years in prison. However, if the offense resulted in the alleged victim suffering “serious physical injury,” the crime becomes strangulation in the first degree, which is a class C felony, punishable by a maximum of 15 years in prison.

If you were recently arrested and charged with a strangulation offense, reach out to the New York criminal defense attorneys at Tilem & Associates, P.C. At Tilem & Associates, P.C., we’ve assembled a dedicated team of lawyers who proudly stand up for the rights of good people charged with serious crimes. We are immediately available to meet with you to get started working on a compelling defense to the charges you face. To learn more, and to schedule a free consultation today, call 877-377-8666. You can also reach us through our online contact form.