Manhattan Domestic Violence and Strangulation

N.Y. Pen. Law § 121.11, 121.12 & 121.13

Domestic violence is a form of mistreatment of a spouse, partner, co-parent, or other family member involving the use of physical aggression or threats. While there is no one specific crime in the New York criminal code that is called "domestic violence," there are several crimes that when they involve people who are in domestic or intimate relationships are classified as domestic violence. One such crime is strangulation. Strangulation involves obstructing another person's breathing or blood flow such that that person loses consciousness or becomes physically impaired. Because strangulation can result in a serious physical injury or death strangulation is classified as a felony. This means that if you are convicted there is a good chance that you will be sent to prison. Thus, if you have been charged with strangulation stemming from a domestic violence incident it is important that you immediately contact an experienced Manhattan Domestic Violence and Strangulation Lawyer who will review the facts of your case and aggressively defend you until your case is resolved.

Types of strangulation charges

There are two strangulation offenses in New York: strangulation in the second degree and strangulation in the first degree. Both involve obstructing the breathing or blood circulation of the victim by applying pressure on the throat or neck or by blocking the nose or mouth. As a result of such obstruction the victim loses conscious, falls into a stupor, or experiences some other physical injury or impairment.

You will face the more serious charge of strangulation in the first degree if as a result of your actions the victim suffers a serious physical injury. N.Y. Pen. Law § 121.13. The criminal statute defines "serious physical injury" as an injury that presents a substantial risk of death or permanent disfigurement. Strangulation in the first degree is a Class C felony, while strangulation in the second degree is a Class D felony. N.Y. Pen. Law §§ 121.13 and 121.12

An example of a domestic violence case that involved strangulation is People v. Carte, 976 N.Y.S.2d 594 (2013). Defendant Bryan Carte choked his girlfriend and shoved a piece of pizza into her face. The victim suffered cuts, scratches, abrasions, and marks on her neck. Not only was the defendant charged with strangulation in second degree, he was also charged with assault in the third degree. The court found that the victim's neck injuries and significant pain as a result of the strangulation was sufficient to support a conviction of strangulation in the second degree.

There is a misdemeanor offense that is similar to strangulation called criminal obstruction of breathing or blood circulation. You will face this charge if you obstruct the breathing or blood flow of someone else, but that person does not lose consciousness, does not fall into a stupor, and does not suffer an injury or impairment. N.Y. Pen. Law §§ 121.11

Arrest and Arraignment

If you are accused of strangulation, the first thing that will happen after your arrest is that you will be taken by the arresting officer to the local police precinct. At the local precinct your personal information will be taken and you will be fingerprinted. Then you will be taken to Central Booking where you will remain until your arraignment.

Within approximately 24 hours of your arrest you will be arraigned. At your arraignment you will learn the exact charges against you. You will also learn whether or not bail will be required. The judge will consider the charge as well as information about your criminal background and personal life to decide what to do about bail. The judge can set a dollar amount for bail. The judge can choose to remand you, meaning that you will have to remain in jail while you await trial. Or the judge can release you on your own recognizance, meaning that you will not be required to post bail.

At some point your case may be resolved through plea-bargaining. You and the prosecutor may arrive at a mutually satisfactory compromise that would require you to plead guilty to a lesser crime that would result in a lighter than if you were found guilty of the original assault charge after a trial. Any agreement that you come to with the prosecutor is subject to the approval of the judge.

Order of Protection

If you are charged with strangulation the prosecutor is likely to request that the judge issue an Order of Protection in favor of the victim. The Order of Protection may be a full order or a limited order. If the Order of Protection is a full Order, it will require you to stay away from the victim. This means that you are not permitted to go to the person's home or job, that you are not permitted to communicate with that person in any way including via mail, email, text, phone, or fax, that you are not permitted to communicate with that person through a third party, and that you are not send that person flowers or gifts.

If there is a full Order of Protection, then you are prohibited from doing specified acts such as harassing, intimidating, or threatening the victim. While a criminal court Order of Protection that is issued at the beginning of a criminal case is generally temporary, depending on the outcome of the case, a temporary Order of Protection may become final-- meaning that it will remain in effect for up to 8 years. It the court concludes that there is no basis for the Order of Protection, it will be dismissed. If you believe that there is no basis for the order, you can fight it.

However, if an Order of Protection is in place and you violate it, there will be serious consequences. For example, with a criminal court Order, if you are out on bail and you violate the Order of Protection, your bail may be revoked and you may be sent to jail. If you are on probation, violating an Order of Protection will be a violation of the terms of your probation. You will likely be sent to prison.

For example, in People v. Dixon, 061914 NYAPP3, 2014-04530 (June 19, 2014), defendant Jason Dixon violated an Order of Protection and was subsequently convicted of criminal contempt in the first degree. Since he had a prior felony conviction the court sentenced him to 2 to 4 years in prison.

Defense to a strangulation charge

In order to be convicted of felony strangulation the victim must have lost consciousness, fallen into a stupor or suffered some other type of physical injury or impairment. If you can show that the victim suffered none of these conditions then you may have a valid defense to a felony strangulation charge. New York law defines a "physical injury" as an impairment of physical condition or substantial pain. While substantial pain does not necessarily mean that the injury was severe, the pain must be more than a little. The court will look at medical evidence and examine the victim's description of the amount of pain he or she was in. If you can show that the victim did not complain of must pain and did not seek medical assistance, then you may have a defense to a felony strangulation charge. However, you may still face a misdemeanor criminal obstruction of breathing charge.

Consequences of a strangulation conviction

Prison. If you are convicted of felony strangulation you may be sentenced to prison, sentenced to probation, or receive a suspended sentence. As a Class D felony strangulation in the second degree the maximum possible sentence is 7 years in prison. On the other hand strangulation in the first degree is a Class C felony with the maximum possible sentence of up to 15 years in prison. Because each of these crimes is also classified as a violent felony, your sentence will include some prison. The amount of prison time you receive depends largely on whether or not you have been convicted of any felonies within the last 10 years. For example, if you are convicted of first degree strangulation and you have no prior felony convictions, the minimum sentence that you will receive is 3.5 years in prison. If you have a non-violent felony conviction, you will be sentenced to at least 5 years, while if you have a prior violent felony conviction, you will be sentenced to at least 7 years in prison.

If you are convicted of misdemeanor criminal obstruction of breathing or blood circulation charge the maximum sentence that you could receive is 1 year in jail.

Probation. Part of your sentence may include probation. As a type of community supervision probation comes with a number of rules and restriction that you will be required to follow or risk being sent to prison. N.Y. Pen. Law § 65.10. The rules are that you must:

  • Avoid injurious or vicious habits
  • Refrain from frequenting unlawful or disreputable places
  • Refrain from consorting with disreputable persons
  • Have a job or be enrolled in school
  • Undergoing available medical or psychiatric treatment and remaining in a specified institution, when required for that purpose
  • Complete an alcohol or substance abuse program, if ordered by the court
  • Support your family
  • Pay restitution
  • Perform community service
  • Post bond or other security for the performance of any or all conditions imposed;
  • Install an ignition interlock device on any vehicle that you use
  • Refrain from consuming alcohol
  • Regularly report to your Probation Officer
  • Obtain permission before traveling or moving outside of New York
  • Notify your Probation Officer if you move or change employment
  • Submit to electronic monitoring

N.Y. Pen. Law § 65.10.

If you violate any of the terms of your probation, your Probation Officer may file a Violation of Probation with the court. You will then be required to appear before the judge who originally sentenced you to probation. That judge will listen to evidence and determine if you did indeed violate the terms of your probation. If the violation is minor such as failing to report to your Probation Officer of report a new address, then the judge may choose not to violate you. On the other hand if the violation is significant such as you committing another crime, the judge could revoke your probation and resentence you to jail.

Financial consequences. In addition to being sent to prison, as part of your sentence the judge may order you to pay fines, fees, and restitution. For felony strangulation the fine would be up to $5,000, while for a misdemeanor offense the fine would be up to $1,000. Fees include a "mandatory surcharge" of $175-$300 as well as a victim assistance fee of $25. N.Y. Pen. Law § 60.35. If your sentence includes probation or post-release supervision you will be required to pay a monthly supervision fee of $30. The amount of restitution you may be ordered to pay will be based on the losses suffered by the victim such as medical bills. Generally, the maximum amount of restitution is $10,000 for a misdemeanor and $15,000 for a felony. Furthermore, you will also have to pay a fee to the company charged with collecting the restitution from you.

Failure to pay a fine, fee or restitution may result in you being charged with yet another crime that could mean a year in prison. However, the court may lower the amount of restitution or modify payment terms if you show the court an inability to pay.

After serving your prison time you may have to serve a period of post-release supervision as part of your sentence. Post-release supervision is similar to probation. You will be required to follow rules that are similar to probation rules. You will be supervised by the Division of Parole. If you violate the terms of your post-release supervision, you may have to go back to prison.

Long-Term Consequences. Being convicted of a felony strangulation will result in you having a criminal record. While your prison sentence, probation term and post-release supervision term will all end, and you will be able to pay off your financial obligations, a criminal record will remain with you for the rest of your life. Here are a few ways that having a criminal record will impact your life:

  • Difficulty in finding a job, as many employers will resist hiring someone with a violent criminal past
  • Barred from certain professions such as teaching and practicing law
  • Ineligible for certain government benefits such as welfare and federally-funded housing
  • If you are not a citizen you may be subject to deportation under federal law
  • Barred from serving on a jury
  • Barred from owning a gun

Finding a charge of strangulation presents many challenges, particularly if the charge is based a domestic violence incident. There may be complex emotional and family issues along with the legal issues. The consequences of conviction are severe. Not only are you likely to spend several years in prison, after you serve your prison term you will have a criminal record. As a result, you will lose numerous personal and professional opportunities. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully defending clients in New York criminal courts who have been charged with domestic violence, strangulation, as well as other criminal offenses such as assault, reckless endangerment, stalking, menacing, and child endangerment. Contact us at 1.800.NY.NY.LAW (1.800.696.9529) to schedule a free, no obligation consultation regarding your case. We serve those accused of domestic violence in the following locations:

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