July 9, 2013
The PEOPLE of the State of New York, Plaintiff,
Joseph FIGUEROA, Defendant.
[968 N.Y.S.2d 868] Janet DiFiore, District Attorney (Diana Hedayati, Assistant District Attorney), for the People.
Russell B. Smith, Esq., White Plains, for Defendant.
JOSEPH L. LATWIN, J.
The defendant is charged by a misdemeanor information with violating Penal Law § 121.11 (" Criminal Obstruction of Breathing" ) and Penal Law § 240.26(1) (Harassment 2nd).
At the trial, Seasonal Park Ranger (" SPR" ) McAuliffe testified he was working the 1400 to 2000 shift at Playland Park in the City of Rye on August 23, 2012. At about 1930 hours, he was stationed at the post at the traffic circle near the main entrance. He saw two individuals in what he described as a domestic dispute about 100 feet from him. He saw a man, identified as the defendant, choking a woman by placing his left hand on the woman's throat and his right hand on the back of her neck. The SPR said he saw the woman's color " turned white", her eyes " bugged out" and saw the woman struggle for air and " locked up" by extending her stiffened legs. The SPR yelled at the couple and separated them. After they were separated, SPR McAuliffe saw that the woman appeared to be in shock. On cross examination, SPR McAuliffe acknowledged he did not mention seeing the victim's eyes bulging, nor that he saw a full force choke hold, nor anything about a change in the woman's coloring in his written statement. He also said the choking lasted two seconds and resulted in no observable injuries nor required any medical attention.
Police Officer Percopo also testified. She was on duty at Playland when she received a call of a domestic incident. She saw SPR McAuliffe separating the defendant from the woman and went to the woman. She did not see any choking but heard yelling
after the parties were separated. She testified the woman was visibly upset and " frantic" and had put her hands to her neck, in what first responders called the universal signal for choking. P.O. Percopo also observed red marks on the woman's neck. On cross examination, P.O. Percopo said there were no other people in the area at the time she arrived. She acknowledged she did not note observing any red marks on the victim's neck in her reports. P.O. Percopo also confirmed that the victim denied any injury and refused [968 N.Y.S.2d 869] to cooperate. She also checked off " victim not fearful" on her report.
Neither the victim, the defendant nor anyone else testified. No reason was proffered for the victims failure to testify.
The Surgeon General's Workshop on Violence and Public Health Report of October 1985 listed attempted strangulation in the top ten on its physical abuse ranking scale. Before 2010, there was no specific New York law prohibiting strangulation— it was prosecutable only when accompanied by a serious physical injury such that it became an assault. Studies show that most strangulation cases leave little or no visible physical signs to corroborate a " choking" case. Fifty percent had no visible injury and another 35% had injuries too minor to photograph. See Strack & McClane, supra at 10. In some cases, death might result a week later or by further violent acts. See Strack & McClane, supra at 9.
Strangulation was also a precursor of further domestic violence. 55 Western Journal of Medicine, 133-136 . The Minnesota Coalition for Battered Women stated that 43% of domestic homicide victims had been strangled by their perpetrator within the last 12 months.
Although New Yorkers are too familiar with " choking" , albeit of a different nature, until 2010 there was no specific law prohibiting strangulation.
Penal Law article 121 was added in 2010. L. 2010, c. 405. Penal Law § 121.11(a), Criminal obstruction of breathing or blood circulation, is a fairly new law. It says " [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: a. applies pressure on the throat or neck of such person...."
The law's purpose was to increase penalties for intentional impeding or impairing of another person's breathing ... including but not limited to circumstances where such conduct leads of unconsciousness for any period or any other physical injury or impairment. Senate Memorandum of Sponsor, S. 6987A.  In his Sponsor's Memorandum, then-Senator Schneiderman noted that " [u]nder [then] current law, there [was] no specific crime aimed at conduct involving intentional blocking of a victim's breathing or circulation ...." Where no physical injury is present, even the misdemeanor crime of assault in the third degree is not applicable. Senator Schneiderman justified the bill saying,
Strangulation has been identified in recent years as one of the most lethal forms of domestic abuse. When perpetrators use strangulation to silence their victims, this is a form of power and control. This form of power and control [968 N.Y.S.2d 870] has a devastating psychological effect on victims and a potentially fatal outcome. Just 11 pounds of pressure applied for 10 seconds can choke someone unconscious. with greater pressure, death can occur within minutes. Yet a study of strangulation cases found that in 62% of cases there were no visible injuries. Though strangulation is incredibly dangerous, representing 10% of
violent deaths in the U.S. each year (six females to every male), it may be impossible to prove physical injury in many cases, because few or no visible marks are left, and the victim's suffering is the torment of near asphyxiation rather than " pain" per se. Historically, " choking" was minimized and often not prosecuted as a serious offense usually due to the lack of physical evidence resulting from the strangulation. By substantially increasing penalties for this conduct, these offenses once thought to be unprosecutable may now be submitted for either class A misdemeanor or violent felony prosecution.
See also, Assembly Sponsor's Memorandum, Bill A 10161A.
The rationale for the legislation, as explained in the Legislative Memorandum, was that: " The intentional obstruction of a person's breathing or circulation is among the most potentially lethal forms of [domestic] abuse ... these acts send a message to the victim that the batterer holds the power to take the victim's life, with little effort, in a short period of time, and in a manner that may leave little evidence of an altercation.... The suffering endured by these victims often includes torment caused by the blocking of blood flow and/or near asphyxiation; it is not necessarily limited to pain' alone."
Thus, " criminal obstruction of breathing or blood circulation" makes it a misdemeanor to apply pressure on the throat or neck of a person, or to block the nose or mouth of person, with the intent " to impede the normal breathing or circulation of the blood" of that person [Penal Law § 121.11]. Notably, there is no requirement that the offender cause pain, trauma, or injury.... People v. Bonney, 69 A.D.3d 1116, 894 N.Y.S.2d 192 [3rd Dept. 2010] ) (where expert testimony introduced at trial established that such a degree of force, when applied to a person's neck, may interrupt the blood supply to the brain and, if applied for a continuous period of about ten seconds,' can cause unconsciousness and, if persistent force is applied, can result in death" ).
William C. Donnino,
Office for the Prevention of Domestic Violence Counsel's Memo on S. 6987A noted,
Under New York Penal Law, one must prove that the defendant caused physical injury to the victim. Physical injury has been defined as: " impairment of physical condition or substantial pain" (P.L. § 10.00(9)). Courts have dismissed charges or reduced charges involving strangulation when this " physical injury" requirement was not met. However, a victim who may have no visible injuries at the time of the incident could die, up to days or weeks after the incident, due to the progressive and irreversible effects of the strangulation. A Review of 300 Attempted Strangulation Cases Part III: Injuries in Fatal Cases, Journal of Emergency Medicine, Vol. 21, No. 3 pp. 317-322 (2001). A San Diego study of 300 strangulation incidents involving victims of domestic violence found no evidence of physical injury in fifty percent of the incidents, and only minor levels of injury in another thirty [968 N.Y.S.2d 871] five percent of the incidents. A Review of 300 Attempted Strangulation Cases Part II: Clinical Evaluation of the Surviving Victim, Journal of Emergency Medicine, Vol. 21, No. 3 pp. 311-3l5 (2001).
Counsel's Office Memorandum noted the bill creates three levels of crimes. The misdemeanor charge of Criminal Obstruction of Breathing or Blood Circulation makes it a crime to impede the normal breathing or blood circulation of another. This provision does not require proof of physical injury, thus it addresses the current gap in our penal law and provides law enforcement with the tools they need to appropriately charge this horrible act.
The New York State Coalition Against Domestic Violence also supported the law, noting " Injury can occur, but not be visible, and the victim may not realize the impact of that injury until hours or days later. Strangulation does not always result in death, however research shows that ten percent of the violent deaths in the United States are attributable to strangulation." Gael B. Strack, JD, George E. McClane, MD, Dean Hawley, MD. A Review Of 300
Attempted Strangulation Cases, Part 1: Criminal Legal Issues, The Journal of Emergency Medicine, Vol. 21, No. 3, pp. 303-309 . Studies show that strangulation is a significant risk factor for attempted or completed homicide. For example, a study of women killed by a male partner in Chicago concluded that 53% of the victims had experienced strangulation in the preceding year and 18% of the victims had been killed by strangulation. Block, C. R., Devitt, C.0., Fonda, D., Fugate, M., Martin, C., McFarlane, J., et al., The Chicago Women's Health Study: Risk of serious injury or death in intimate violence: A collaborative research project. Washington, DC: U.S. Department of Justice, National Institute of Justice .
The Women's Bar Association of the State of New York submitted an insightful Memorandum in Support of the law. It noted the need for this legislation since without any signs of physical injury, it can be difficult to prosecute incidences of choking that often occur during domestic violence incidents. The WBASNY believed that the bills set out the wrong intent noting that it required intent to cut off the breathing of another. The Association feared this would incorporate acts that should not be prosecuted, such as placing a hand on a child's mouth to quiet a child, holding a child by the scruff of the neck for disciplinary purposes, engaging in horseplay, or in consensual sexual practices . It suggested that the intent needed would be to cause intimidation, annoyance, alarm, physical injury or fear for the safety of another.
Several states have laws criminalizing strangulation. Alabama makes strangulation a felony crime of domestic violence if the victim has a close relationship with the perpetrator. Code of Alabama 13A-6-138. Connecticut's strangulation in the 2nd degree is very similar to New York's statutory language. Conn. Gen. Stats. 53A-64bb. It is a felony in Connecticut. See, State v. Miranda, 142 Conn.App. 657, 64 A.3d 1268 . Other
state laws include: Idaho Code 18-923 (requiring no proof of injury to prove attempted strangulation); Michigan Penal Code 750.84 (requiring intent to do great bodily harm); & [968 N.Y.S.2d 872]Rhode Island Gen'l Laws 11-5-2.3(c) (similar to New York).
Penal Law § 121 requires proof beyond a reasonable doubt that both:
(1) the defendant applied pressure on the throat or neck of another; & (2) the defendant did so with the intent to impede the normal breathing or circulation. See, CJI for Penal Law § 121.
There is but one reported case discussing the substance of Penal Law § 121. People v. White, 100 A.D.3d 1397, 953 N.Y.S.2d 423 [4th Dept. 2012]. In White, the defendant was charged with Criminal Obstruction, second degree in violation of Penal Law § 121.12. That charge requires, in addition to the elements of Penal Law § 121.11 that the obstruction " thereby causes stupor, loss of consciousness for any period of time, or any other physical injury or impairment." The trial court found there was no evidence that defendant caused stupor or loss of consciousness, and the issue was whether the evidence " establish[ed] a physical injury or impairment." In White, the victim testified that defendant squeezed his throat for about three seconds, and that it was painful. He further testified that, during the remainder of that night as well as during the next day, his throat was " tingly," but there was no testimony that he needed medical assistance. The Appellate Division found that this did not constitute " physical injury or impairment" and that the trial court had properly found the testimony insufficient to charge violation of Penal Law 121.12 but was properly reduced the charge to Penal Law § 121.11.
" As the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof." Majewski v. Broadalbin-Perth Cent. School Dist., 91 N.Y.2d 577, 583, 673 N.Y.S.2d 966, 696 N.E.2d 978 . " [W]here the language of a statute is clear and unambiguous, courts must give effect to its plain meaning" Pultz v. Economakis, 10 N.Y.3d 542, 547, 860 N.Y.S.2d 765, 890 N.E.2d 880 .
The language of Penal Law § 121.11 is clear. The only action required is " applying pressure on the throat or neck of another." It does not require that the breathing be completely blocked. It completely fails to mention any requirement of physical
injury or impairment. It is clear from the legislative history set forth above and People v. White, supra, that no physical injury or impairment is required to sustain a Penal Law § 121.11 charge. This reading is also bolstered by the inclusion of such a requirement in Penal Law § 121.12.
It is equally clear that no minimum period of contact is required. People v. White, supra (3 seconds was enough). [968 N.Y.S.2d 873] The legislative history is replete with references to the short periods of time in which injury or death can occur. Unconsciousness can occur within seconds. Only eleven pounds of pressure placed on both carotid arteries for ten seconds is needed to cause unconsciousness, See Strack & McClane, supra at 4 & 12, and death within minutes. See Strack & McClane, supra at 14. Within 30 seconds, temporary or permanent brain damage may occur. A gentle squeeze of the neck for a long period may cause injury, but only the other hand, a karate-style chop with but a brief moment of contact could cause the complete collapse of the windpipe and cause death or unconsciousness. The gravamen of the charge is not the time of the obstruction, but that the obstruction occurred. The Courts must be extremely wary, as pointed out by the Women's Bar Association, to read the statute so as to insure it does not to incorporate acts that should not be prosecuted such as placing a hand on a child's mouth to quiet a child, holding a child's by the scruff of the neck for disciplinary purposes, horseplay, or consensual sexual practices. Here, the evidence established the defendant applied pressure to the victim's neck for at least two seconds, causing her to exhibit indicia of choking.
Intent means conscious objective or purpose. See Penal Law § 15.05(1). A person acts with the intent to impede the normal breathing or circulation of the blood of another person when his or her conscious objective or purpose is to do so. The trial testimony was that the defendant placed his hands around the victim's neck and applied pressure. There was no countervailing testimony nor explanation that the placing of the hands around the victim's neck was for any purpose other than to restrict breathing or circulation. The element of intent may be inferred from all the circumstances. People v. Coluccio, 170 A.D.2d 523, 566 N.Y.S.2d 87 [2nd Dept. 1991]. The defendant was observed placing his hands around the victim's neck during the course of an argument and after the victim had slapped the defendant. From these circumstances, the trier of fact may infer that defendant's actions were done with the conscious purpose of ending the argument with the victim by forcing her submission due to the inability to breath or loss of consciousness by the lack of flow of blood to the brain.
The uncontroverted testimony at trial was that after the defendant put his hands on the victim's throat the victim's color " turned white", her eyes " bugged out" and she struggled for air and " locked up" by extending her stiffened legs. This testimony was sufficient to prove the defendant's actions impeded the victim's normal breathing.
Accordingly, the People have proved beyond a reasonable doubt that the defendant violated Penal Law § 121.11.
Harassment in the Second degree
A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person: 1. He or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same .... Penal Law 240.26.
Historically, Harassment in the second degree was charged when strangulation occurred but there was no substantial physical injury. However with the creation of the strangulation law, harassment in the second degree became a lessor included offense  of Penal Law § 121.11
[968 N.Y.S.2d 874] To determine if an offense is a lesser included offense, the
court must consider: (1) in the abstract, the Penal Law definition of the crime charged in relation to the Penal Law definition of the claimed lesser included offense, i.e., is it theoretically impossible to commit the greater crime without at the same time committing the lesser?; & (2) is there a reasonable view of the evidence in the particular case that would permit the jury to conclude that the defendant committed the lesser but not the greater offense. People v. Green, 56 N.Y.2d 427, 430, 452 N.Y.S.2d 389, 437 N.E.2d 1146 . See also, People v. Glover, 57 N.Y.2d 61, 63, 453 N.Y.S.2d 660, 439 N.E.2d 376 , & People v. Butler, 84 N.Y.2d 627, 620 N.Y.S.2d 775, 644 N.E.2d 1331 . Behind the doctrine of lesser included offense stands the basic principle that a defendant should not be convicted and punished more than once for conduct that, although constituting only one prohibited act, may, because of statutory definition, be theorized as constituting separate criminal acts. People v. Perez, 45 N.Y.2d 204, 209, 408 N.Y.S.2d 343, 380 N.E.2d 174 .
If the court finds the defendant guilty of violating Penal Law § 121.11(a) criminal obstruction of breathing it would necessarily have to find the defendant guilty of violating Penal Law § 240.26(1) harassment in the 2nd degree. If one is found to have applied " pressure on the throat or neck" — an element of Penal Law § 121.11(a)— they must have subjected " such other person to physical contact" — as a required element of Penal Law § 240.26.
Here, if the court finds the defendant guilty of criminal obstruction of breathing, it would be impossible to find the strangulation of another person without also finding them guilty of harassment in the 2nd degree. Accordingly, the charge of harassment in the 2nd degree should be dismissed as a lesser included offense of the crime of criminal obstruction of breathing.
Accordingly, the Court finds the defendant guilty of violating Penal Law § 121.11(a) and the charge of Penal Law 240.26 is dismissed.
The Clerk shall order a pre-sentence report and the parties shall appear for sentencing October 8, 2013 at 900.
The foregoing constitutes the opinion, decision and order of this Court.