NYC Strangulation Defense Attorney

Strangulation and criminal obstruction of breathing are often charged in domestic violence cases. A conviction can mean prison time, fines, and a record.

Attorney Mehdi Essmidi prosecuted cases before he defended them, so he knows the process from both sides and can build a strong defense. Contact The Law Offices of Mehdi Essmidi for a free consultation.

Strangulation Under New York Penal Law

New York charges strangulation and criminal obstruction of breathing or blood circulation as one act that depends on how badly the other person was hurt. For each degree, the prosecution has to prove every element beyond a reasonable doubt.

Criminal Obstruction of Breathing or Blood Circulation (New York Penal Law § 121.11)

Criminal obstruction is defined as pressing on someone’s throat or neck, or covering their nose or mouth, with the intent to interfere with their normal breathing or blood circulation. It is a class A misdemeanor. A conviction carries up to 364 days in jail and a fine of up to $1,000.

Strangulation in the Second Degree (New York Penal Law § 121.12)

Strangulation in the second degree is defined as a class D felony. The charge has the added result that the other person was left in a stupor, blacked out for any length of time, or suffered any other physical injury or impairment, and the prosecution has to prove that result. A state prison sentence for a conviction runs from two to seven years, and the court may add a fine of up to $5,000.

Strangulation in the First Degree (New York Penal Law § 121.13)

Strangulation in the first degree is a class C felony, charged when the act causes an injury that creates a substantial risk of death, or that causes death, serious and protracted disfigurement, protracted impairment of health, or protracted loss or impairment of how any organ works. The prison sentence for a conviction runs from three and a half to 15 years, and the court may add a fine of up to $5,000.

Aggravated Strangulation (New York Penal Law § 121.13-a)

Aggravated strangulation is a class C felony that applies only to police officers and peace officers. The charge covers an officer who commits criminal obstruction under § 121.11, or uses a chokehold or similar restraint described in § 837-t of the Executive Law, and causes serious physical injury or death. An officer convicted of aggravated strangulation faces three and a half to 15 years in prison and a fine of up to $5,000.

Defenses for Strangulation-Related Charges

The defense to a New York strangulation or criminal obstruction charge is built from the evidence in each case and may include:

• Challenging the Sufficiency of Evidence: If the prosecution’s evidence fails to prove the elements of the crime, the charges may be dismissed or reduced.
• Mistaken Identity: An alibi or other proof shows the wrong person was accused.
• Constitutional Violations: If law enforcement violated your rights during the investigation or arrest, evidence obtained through the violation may be inadmissible.
• Self-Defense: Under Penal Law § 35.15, you may use physical force to the extent you reasonably believe it is necessary to defend yourself or someone else from another person’s use or imminent use of unlawful physical force. When self-defense is raised at trial, the prosecution has to disprove it beyond a reasonable doubt.
• Medical or Dental Purpose: Under § 121.14, it is an affirmative defense to criminal obstruction and every degree of strangulation that the conduct was performed for a valid medical or dental purpose.

Contact Us for a Free Consultation

As a former prosecutor turned defense lawyer, attorney Mehdi Essmidi knows how both sides build defense strategies in strangulation and domestic violence cases around what the prosecution will do next.

If you are facing strangulation or criminal obstruction charges in New York City, do not wait to get a lawyer. Contact us today for your free consultation.

Frequently Asked Questions

Will the case be dropped if the other person doesn’t want to press charges?

The District Attorney’s office decides whether a strangulation or criminal obstruction case goes forward, and the prosecutor may continue after the supposed victim asks to drop it. Prosecutors build the case on the 911 call, photographs, medical records, and the officers’ testimony, and they may subpoena the other person to testify. A witness who stops cooperating may weaken the case, and how much depends on what else the prosecution has collected.

Can I be convicted when it is one person’s word against mine?

Yes. A New York jury may convict on the testimony of one witness, without photographs, medical records, or a second witness, when it believes that testimony beyond a reasonable doubt. In a one-witness case, the defense tests the accuser’s credibility by comparing what was told to the 911 operator, the responding officers, and hospital staff, and by showing any motive to make the accusation.

Can a felony strangulation charge be reduced to a misdemeanor?

A prosecutor may offer a plea to a class A misdemeanor in place of strangulation in the second degree. The felony requires proof that the other person was left in a stupor, lost consciousness, or suffered any other physical injury or impairment. When the medical records show no injury or impairment, and no one reports a loss of consciousness, the defense may press for the misdemeanor or for dismissal of the felony count.  

What happens if we both want contact while the order of protection is in place?

Under Criminal Procedure Law § 530.12, an order of protection stays in force until the court modifies or ends it, even when the protected person calls, texts, or invites you home. The protected person cannot be arrested for violating the order, so the legal risk of any contact falls on you. Only the court can change a stay-away order into one that permits contact, and the request goes through your attorney.

Can other charges be added to a strangulation charge?

Yes. Prosecutors often file assault in the third degree alongside strangulation or criminal obstruction when they claim a physical injury. Attempted murder requires proof that you intended to cause the other person’s death, a higher bar than the intent to impede breathing or blood circulation that the strangulation statutes require. Prosecutors look at what was said during the incident and how severe the injury was when deciding whether to add the heavier charge.

Can a strangulation case cost me my gun license?

A conviction for strangulation in either felony degree bars a New York firearm license. Before any conviction, a judge who issues a temporary order of protection may suspend your license and order your firearms surrendered under Criminal Procedure Law § 530.14. The licensing officer also has to find good moral character, and an arrest that ended without a conviction may still come up in that review.