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Criminal Obstruction of Breathing or Blood Circulation
Under New York Penal Code Section 121.11(a) or (b), the charge of "Criminal Obstruction of Breathing or Blood Circulation" became effective on November 11, 2010 as a Class A Misdemeanor. Many of these allegations occur in domestic relationships between a husband and wife or boyfriend and girlfriend.
Prior to the passage of this new criminal offense, allegations of strangulation or choking were often charged as felony-level assault charges which required proof of "serious physical injury." When proof of "serious physical injury" was not readily present, critics complained that allegations of strangulation were often charged as less serious offenses such as reckless endangerment, harassment or menacing.
Since the passage of this new statute, the criminal charges are particularly serious because anyone convicted of either misdemeanor or felony charges must submit a DNA sample to law enforcement which is usually not required in misdemeanor cases. The offense is considered a conviction involving "domestic violence" or "spousal abuse" for certain purposes.
Criminal Obstruction of Breathing or Blood Circulation Lawyer Queens, NY
If you were charged with the Class A Misdemeanor offense of Obstruction of Blood Circulation or Breathing, then contact an experienced criminal defense attorney. The Law Office of Rochelle S. Berliner is conveniently located in Queens, NY. She represents clients throughout the boroughs of New York City including Queens, Manhattan, Brooklyn, and The Bronx.
Elements of Obstruction of Breathing or Blood Circulation
The criminal charge of Criminal Obstruction of Breathing or Blood Circulation under New York Law alleges that the person accused acted with intent to impede the normal breathing or circulation of the blood of another person by:
- blocking the nose or mouth of such person; or
- applying pressure on the throat or neck of such person.
In this context, the term "intent" is defined to mean that the person acted with a "conscious objective or purpose" to impede the normal breathing or circulation of the blood of another person.
Defenses to Obstruction of Breathing or Blood Circulation
In most cases, the person accused is fighting the charges by arguing that the offense did not occur. It is often important for the criminal defense attorney to locate any medical records, 911 calls, and information on past difficulties between the parties. The criminal defense attorney must also investigate any reasons that might cause the alleged victim to make false or exaggerated allegations.
The statute also provides for certain affirmative defenses. Under the laws of New York, it is an affirmative defense to a prosecution for Criminal Obstruction of Breathing or Blood Circulation if the person accused performed such conduct for a valid medical or dental purpose under New York Penal Law § 121.14.
Additionally, a defense may apply for a duly licensed physician, or a person acting under a physician’s direction, as set forth in PL § 35.10(5).
Other Types of Strangulation Crimes
New York's statutory scheme also provides for two versions of a felony for strangulation depending on whether a physical injury occurred and whether the physical injury was serious.
- Strangulation in the Second Degree, New York Penal Code §121.12 — A person commits strangulation in the second degree when he or she commits the crime of criminal obstruction of breathing or blood circulation as defined in section 121.11, and causes loss of consciousness for any period of time, stupor, or any other physical injury or impairment.
- Strangulation in the First Degree, New York Penal Code §121.13 — A person commits strangulation in the first degree when he or she commits the crime of criminal obstruction of breathing or blood circulation, as defined in section 121.11 of this article, and thereby causes "serious physical injury" to such other person.
In addition to the Class A Misdemeanor offense of Obstruction of Breathing or Blood Circulation, other related charges include:
- Harassment - 1st degree, class B misdemeanor under New York Penal §240.25
- Harassment - 2nd degree, violation under New York Penal Law §240.26
- Menacing - 2nd degree, class A misdemeanor under New York Penal Law §120.14
- Menacing - 3rd degree, class B misdemeanor under New York Penal Law §120.15
- Reckless Endangerment
- Reckless Endangerment - 1st degree, class D felony under New York Penal Law §120.25
- Reckless Endangerment - 2nd degree, class A misdemeanor under New York Penal Law §120.20
- Aggravated Harassment - 2nd degree, class A misdemeanor under New York Penal Law §240.30
- Assault - 2nd degree, class D felony under New York Penal Law §120.05
- Assault - 3rd degree, class A misdemeanor under New York Penal Law §120.00
- Attempted Assault under Penal Law §110.00/120.00 or §110/120.05 (the “attempt” drops the class D felony to an class E felony, and drops the class A misdemeanor to a class B misdemeanor)
- Forcible Touching - class A misdemeanor under New York Penal Law §130.52
Finding Qualified Representation in Strangulation or Choking Cases
If you have been charged with committing an act of domestic violence that allegedly included criminal obstruction of breathing or blood circulation, you will want to be sure that you have highly skilled legal counsel. Law Office of Rochelle S. Berliner defends clients facing these charges all over New York City, including Manhattan, Brooklyn, and the Bronx.
Queens criminal defense lawyer Rochelle S. Berliner's legal experience includes 14 years as a prosecutor. She can review your case and discuss your legal options with you as soon as you call 718-261-5600 or send an online message to schedule a free, confidential consultation.
Rochelle Berliner grew up in Queens, NY. She started New York Law School in January 1989 and graduated in June 1991. Immediately after law school, she started working at the New York County District Attorney’s Office, where she stayed for approximately 14 years...
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