Nassau County Domestic Violence and Strangulation

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

Domestic violence is general term used to describe an act of violence between people who are in some type of domestic relationship. For example they may be married, dating, or roommates, or they may share children. While there is specific crime in the New York criminal code that is called "domestic violence," there are several crimes that commonly involve people in domestic relationships. 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, strangulation is classified as a felony. This means that if you are convicted your sentence will likely include incarceration. Thus, if you have been charged with strangulation stemming from a domestic violence incident it is important that you immediately contact an experienced Nassau County 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 strangling, 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 was 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. For example, in People v. Figueroa, 968 N.Y.S.2d 866 (2013), the defendant was convicted of criminal obstruction of breathing or blood circulation based on applying pressure to his girlfriend's neck causing her to struggle for air.

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

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. It is also possible for the judge to sentence you to no jail time. Instead, your sentence may be a probation term of 3 years. While probation is preferable to incarceration, probation has many restrictions. There will be several rules that you will be required to follow such as:

  • You must not commit new crimes
  • You must not associate with people who you know to have criminal records
  • You must not go to unlawful or disreputable places
  • You must not use or possess controlled substances or drug paraphernalia
  • You must submit to drug testing
  • You must consent to warrantless searches
  • You must submit to home visits by your Probation Officer
  • You must regularly report to your Probation Officer
  • You must not leave the State of New York without permission
  • You must not purchase, own, or possess a gun
  • You must not consume alcohol excessively
  • You must follow a curfew
  • You must have a job or be enrolled in school

If you violate any of the terms of your probation you will have to appear before a judge at a revocation hearing. If after hearing evidence the judge concludes that you are in violation the judge could send you to prison. Whether or not the judge sends you to prison will largely depend on whether the violation was major or minor.

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.

Orders of Protection

If a criminal case involves strangulation, a the beginning of the criminal process the prosecutor will likely request that the judge issue an Order of Protection in favor of the victim. The court will likely issue a temporary Order of Protection that may be a "stay away" Order of Protection, "refrain from" Order of Protection or a combination of both. If an Order of Protection is a stay away order, then you must not have any type of contact with that person. This means that you must:

  • Not have any physical contact with the victim, even if the victim is your spouse, girlfriend, or parent of your child
  • Stay away from the person's home, school or place of business
  • Not call the person
  • Not email or fax that person
  • Not send that person letters
  • Not send the person messages through other people
  • Not send the person gifts or flowers

If there is a refrain from Order of Protection, then you are prohibited from harassing, intimidating, threatening or otherwise interfering with that person. 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 or permanent-- meaning that it will remain in effect for several 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, you risk being charged with criminal contempt, a misdemeanor. As punishment you could be sentenced to jail or probation. For example, in People v. Dixon, 061914 NYAPP3, 2014-04530 (June 19, 2014), defendant Jason Dixon was 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.

Additional criminal charges

Beware that if you are arrested for strangulation you may face additional criminal charges. Charges which commonly accompany strangulation charges include assault in the first second or third degree, criminal possession of a weapon, and child endangerment. Any additional charges could result in convictions for additional crimes. This would greatly impact the severity of your sentence.

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

Being arrested for domestic violence based on strangulation is very serious. Not only are you likely to send up in prison for a number of years, after you serve your prison term you will have a criminal record. As a result, many aspects of your life will be much more difficult. 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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