New York Strangulation and Criminal Obstruction of Breathing Charges Explained

New York Strangulation charges became a part of the Penal Law in November of 2010. Prior to November 2010, choking or applying pressure to someone’s neck without causing injury was a Harassment violation, and not a crime. That is because even the least serious assault charge – Assault 3 (a Class “A” Misdemeanor) requires injury. New York Strangulation and Criminal Obstruction of breathing charges criminalize the application of pressure to someone’s throat or neck with intent to impede normal breathing or circulation of blood.

New York has three different Criminal Obstruction of Breathing and Strangulation charges. They are:

  • Criminal Obstruction of Breathing or Blood Circulation (PL 121.11)
  • Strangulation in the First Degree (PL 121.13)
  • Strangulation in the Second Degree (PL 121.12)

Although Strangulation in the Second Degree is a lesser included offense of Strangulation in the First Degree, Criminal Obstruction of Breathing or Blood Circulation is not a lesser included offense of Strangulation in the Second Degree. People v. Pietoso 168 A.D.3d 1276 (2019).

Criminal Obstruction of Breathing or Blood Circulation (PL 121.11)

A person is guilty of Criminal Obstruction of Breathing or Blood Circulation when, with intent to impede the normal breathing or circulation of the blood of another person, he or she:

  1. Applies pressure on the throat or neck of such person; OR
  2. Blocks the nose or mouth of such person.

Penalties and Sentencing for Criminal Obstruction of Breathing or Blood Circulation

Criminal Obstruction of Breathing or Blood Circulation is a Class A misdemeanor. As such, this charge is punishable by up to 1 year in prison, or up to 3 years probation. However, practically speaking, Criminal Obstruction of Breathing may be resolved with a plea to time served, conditional discharge or unconditional discharge. The district attorney may also require that you complete a batterers intervention program as part of your plea to New York Criminal Obstruction of Breathing or Blood Circulation charge.

Strangulation in the Second Degree (PL 121.12)

A person is guilty of Strangulation in the Second Degree when he or she:

  1. Commits the crime of Criminal Obstruction of Breathing or Blood Circulation, as defined in section 121.11 of this article, AND
  2. Thereby causes stupor, loss of consciousness for any period of time, OR any other physical injury or impairment.

Penalties and Sentencing for Strangulation in the Second Degree

New York Strangulation in the Second Degree is a Class D Violent Felony. As such, this charge is punishable by 2 – 7 years in prison. If there are mitigating circumstances, Strangulation in the Second Degree can be punishable by probation, or a determinate sentence of 1 year or less.

Strangulation in the Second Degree as a Hate Crime

New York Strangulation in the Second Degree is a Hate Crime Specified Offense, as that term is defined in New York Penal Law Section 485. So if New York Strangulation in the Second Degree is charged as a Hate Crime, it is a Class C Violent Felony. Under New York Law, Class C Violent Felony is punishable by 3.5 to 15 years in prison. If Strangulation in the Second Degree is charged as a Hate Crime, neither probation nor a determinate sentence of less than 1 year are possible sentences.

Strangulation in the First Degree (PL 121.13)

A person is guilty of Strangulation in the First Degree when he or she:

  1. Commits the crime of criminal obstruction of breathing or blood circulation, as defined in section 121.11 of this article, AND
  2. Thereby causes serious physical injury to such other person.

Penalties and Sentencing for Strangulation in the First Degree

Strangulation in the First Degree is a Class C Violent Felony. As such, this charge is punishable by 3.5 to 15 years in prison. Probation or a determinate sentence of a year or less are not permitted sentences on this New York Strangulation charge.

Strangulation in the First Degree as a Hate Crime

Strangulation in the First Degree can also be charged as a hate crime under Section 485 of the New York Penal Law. When New York Strangulation in the First Degree is charged as a Hate Crime, it is a Class B Violent Felony. In that case, this charge is punishable by 5 to 25 years in prison.

Defenses to New York Strangulation Charges

Medical or Dental Purpose (PL 121.14)

It is an affirmative defense to Strangulation and Criminal Obstruction of Breathing or Circulation charges (Penal Law Sections 121.11, 121.12 and 121.13) that the conduct was performed for a valid medical or dental purpose.

Charges Relating to New York Strangulation or Criminal Obstruction of Breathing

Frequently New York Strangulation or Criminal Obstruction of Breathing charges are charged with:

Contact Top Rated Criminal Defense Attorneys for your New York Strangulation Case

If you or a loved one have been charged with New York Strangulation or Criminal Obstruction of Breathing, you need experienced criminal defense counsel. We are former prosecutors with experience handling these types of charges on both sides of the Courtroom. Contact us today to schedule your consultation.