Queens Domestic Violence and Strangulation

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

Domestic violence crimes are those that occur between people who are members of the same family or who have some other type of intimate relationship. While there are several violent crimes that are associated with domestic violence, strangulation is a common one. 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 even death, 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 Queens Domestic Violence and Strangulation Lawyer who understands the law related to domestic violence crimes and who will work closely with you to defend you against all criminal charges.

What is the crime of strangulation?

Strangulation is exactly what most people imagine it to be: placing your hands, a belt, a rope or some other object around someone's neck and squeezing. In doing so the victim's breathing is obstructed, eventually causing the person to pass out or die. Under New York law, strangulation also includes obstructing the breathing of the victim by blocking the nose or mouth, or obstructing blood circulation. There are two degrees of strangulation: strangulation in the first degree and strangulation in the second degree.

You will face the more serious charge of strangulation in the first degree if the victim suffers a serious physical injury. N.Y. Pen. Law § 121.13. The criminal statute defines "serious physical injury" as one 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

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.

What happens if I am arrested for strangulation?

If you are suspected of strangulation you will be arrested and taken into custody at the local police precinct. Next you will be sent to Central Booking to await arraignment. The arraignment is the first time you appear before a judge. At that time the prosecutor will have the criminal complaint against you which will state the exact charges against you. Beware that if you are arrested for strangulation you may face additional criminal charges. Charges which sometimes accompany strangulation charges include assault in the first second or third degree. Any additional charges could result in convictions for additional crimes. This would greatly impact the severity of your sentence.

Bail is determined at the arraignment. The prosecutor will give the court reasons why bail should be set and recommend an amount. Your defense will argue for low bail or no bail. The judge will consider both arguments. The judge will also consider the report from the Criminal Justice Agency (CJA). While you were waiting to be arraigned, a representative from the CJA interviewed you to determine your ties to the community. Based on this information the judge will determine the level of flight risk you pose and whether or not bail should be ordered. The judge can choose to remand you, meaning that you will have to remain in jail while your case is being resolved. Or the judge can release you on your own recognizance (ROR), meaning that you will not be required to post bail to be released. However, if you are released it is imperative that you show up at court for every hearing and for each day of your trial. If you do not the judge may issue a warrant for your arrest.

At some point during the process you may reach a plea agreement with the prosecutor. You will likely agree to plead guilty to a charge that is less serious than the original charge. The prosecutor may offer you a deal in order to avoid going to trial. Or, the prosecutor may be unsure as to whether or not he or she will be able to win a conviction if the case goes to trial. Whatever the reason, if you accept a plea agreement, the prosecutor will be able to close the case and declare a victory. A plea deal may be attractive to you as you will not face the cost of an expensive trial and you do not risk a more severe sentence. However, the result will be that you will have been convicted of a crime and you will be sentenced.

What is an Order of Protection?

If a criminal case involves strangulation, the prosecutor will likely request that the judge issue an Order of Protection in favor of the victim. The court will 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.

What will happen if I am convicted of strangulation?

If you are convicted of felony strangulation you may be sentenced to prison, sentenced to probation, or receive a suspended sentence.

Prison. 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.

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.

Probation. 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. 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.

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
What should I do if I am charged with strangulation?

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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