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New York Strangulation

New York criminalizes strangulation with three separate crimes, all codified in New York Penal Law Article 121, criminal obstruction of breathing or blood circulation, and strangulation in the first and second degrees. The most serious crime, strangulation in the first degree, is punishable as a class C felony with a maximum penalty of up to 10 years in prison and a $10,000.00 fine. Why is strangulation specifically criminalized when that type of conduct is already prohibited by the crimes of attempted murder and assault? The legislature felt the need to specifically prohibit strangulation because choking someone always can cause death and because the crime has such a terrible impact on the victim’s mental health.

If you have been accused of strangulation call our New York criminal defense lawyers today. We may be able to help with your case. Call us today for a free consultation.

Strangulation and criminal obstruction of breathing are often charged in connection with domestic violence incidents. New York State attempted to tip the scales in their own favor using legal technicalities when they passed the laws criminalizing strangulation. The strangulation crimes are all easier to prove than assault. Crimes of assault require the prosecutor to prove injury beyond a reasonable doubt. Proponents of the strangulation crimes argue that strangulation does not include the element of injury because it is possible to choke someone without leaving marks on their neck, one such example may be smothering someone with a pillow or holding their head under the water in a bathtub.

Strangulation is a crime that is often intertwined with family law and domestic violence because of the lack of evidence that may be left behind. It leaves the gate wide open for unfounded accusations of abuse that can be used by a jilted or vengeful former significant other to try and harm their ex-counterpart.

The least serious of the strangulation crimes, the crime of criminal obstruction of breathing or circulation occurs when 1) the defendant intentionally prevents normal breathing or the pumping of blood of another person and 2) the defendant presses on the wind pipe and jugular veins or prevents air from entering the nasal or oral passages. As one can see, this crime does not require the prosecutor to prove injury, just to prove obstructed breathing. Criminal obstruction of breathing is a class A misdemeanor with a maximum penalty of one year in jail and a $1000.00 fine.

If the victim suffers dizziness, vertigo, goes unconscious, or is harmed in some other way from being choked the crime is aggravated to strangulation in the second degree. Strangulation in the second degree is a class D felony with a maximum penalty of 7 years in prison and a fine of up to $5000.00. The intent element of strangulation in the second degree does not require the defendant to intend to hurt the victim or render the victim unconscious, only the intent to prevent air from entering the victim’s nose or mouth or blood from circulating. This specific intent can be proven from things said by the defendant, from the defendant’s behavior, and by circumstantial evidence. If the victim claims they fell unconscious the prosecution can also establish that by the circumstances, or the victim can actually testify to the fact that they fell unconscious; although such testimony begs the question of how someone can testify that they know that they lost consciousness, since they were unconscious. Strangulation in the second degree requires that the harm to the victim is not quick, but rather long-lasting injury that may require medical treatment over time. A savvy victim can malinger just about anything into a severe and long-lasting injury if it serves their interest to cause maximum pain to the defendant. Our firm’s attorneys are skilled cross examiners and can expose malingering victims, protect your reputation, and may be able to keep you from serving jail time.

A malingering victim can aggravate the seriousness of strangulation charges to their highest level, strangulation in the first degree, a class C felony. Strangulation in the first degree is distinguishable from the other less serious charges because it requires proof of severe bodily harm to the victim. New York law defines the type of severe harm at New York Penal Law 10.00(10), where the harm would cause a high risk of death, maiming, or cause the loss of use of a body part. The defendant does not need to possess the intent to severely harm the victim, only to stop them from inhaling or stop their blood from reaching the brain, just as in other strangulation crimes. Here, testimony from the victim and medical experts becomes critical to establishing how severe the injury was. If the prosecution is overly confident and brings charges that are more severe than the facts can establish beyond a reasonable doubt, our skilled trial attorneys may be able to cross examine and discredit a malingering victim, witnesses, or any experts put forth by the prosecution. This strategy may help prove that you are not guilty by casting doubt on the prosecution’s case.

If you have been accused of strangulation call our New York criminal defense lawyers today. We may be able to help with your case. Call us today for a free consultation.

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