Strangulation in the Second Degree: NY Penal Law 121.12

It may be a lesson that you learned from your parents or teachers in school. Never put your hands on another person’s neck and certainly never intentionally choke someone regardless of your anger, frustration or rage. Whether or not these deliberate and violent acts necessitate a Domestic Violence lawyer, you will find yourself arrested for and charged with the felony of Second Degree Strangulation, New York Penal Law 121.12, if you lose yourself and make this grave mistake. Although you need not be a family member nor intimate partner, irrespective of the party’s relationships, the crime is both straight forward and serious. In fact, upon conviction, the criminal code allows for penalties that can devastate and cripple families, careers and relationships while leaving you, the accused, incarcerated “upstate” for an extended period of time.

Definition and Elements

Incorporating the lesser offense of Criminal Obstruction of Breathing or Blood Circulation into Second Degree Strangulation, New York Criminal Code defines Penal Law 121.12 is violated when you commit this former offense with other factors or elements of which only one need occur. If the person you grabbed around the neck also loses consciousness, aka, passes out, no matter for how long or brief, and then he or she falls into a stupor as a result of your actions, then you violated the law. In lieu of losing consciousness, if your alleged victim suffers a legally defined “physical injury” involving substantial pain or any similar level of impairment, then you have violated the letter of law allowing prosecutors to pursue a criminal case and potentially an indictment from a Grand Jury.

Penalties and Punishment

Not merely a class “D” felony that allows for no incarceration, this lawfully defined “violent felony” is punishable by up to seven years in state prison with a presumptive and otherwise mandatory two year minimum. Should your defense attorney convince prosecutors or the court to deviate from this presumption, alternative sentences can include five years probation, a split jail and probation punishment, or even a conditional discharge requiring treatment or counseling.

Example and Hypothetical Scenario

It may seem to the untrained eye and non-criminal lawyer that this felony offense would require a crushing blow to the neck, throat, mouth or nasal passage of a victim, but by no means is that necessary to either establish probable cause or proof beyond a reasonable doubt. As noted, “physical injury” is defined in the Penal Law as substantial pain. Would a deep bruise on the complainant’s neck constitute a physical injury? It is certainly possible, but while case law explains when an injury rises to this level, do not forget that impairment may be an issue even if there are no visible injuries supporting the physical injury element of the charge. Very simply, you run the risk of violating the law if and when you grab your girlfriend’s, brother’s or drunk bar patron’s neck with the intent to block his or her breathing and cause them to lose even the slightest degree of consciousness or suffer some relatively nominal injury.

Collateral Issues and Concerns

Other than the obvious, such as the issuance of Orders of Protection and possibility a judge will set significant bail, when a case involves Domestic Violence prosecutors pay closer attention to and vigorously pursue the alleged offenders. Moreover, even potentially without a conviction, there are consequences to careers in the medical profession, implications to those working in local, city, state and federal government, and ramifications to immigration and legal statuses.

Your Case, Your Defense, Your Future

It should be lost on no one that no matter the nature of an investigation, arrest or indictment involving one of the three New York Strangulation crimes, failing to protect yourself is not an option. When so much is at stake and the potential for a life altering felony looms, you need experienced and capable counsel to implement the best defense. No matter the circumstances, one thing will remain certain. You can count on the experience, knowledge and advocacy of the criminal defense attorneys and former Manhattan prosecutors at Saland Law.

Call the New York defense team and former Manhattan prosecutors at (212) 312–7129 or contact us online today.