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People v. Figueroa

New York City Court, City of Rye

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.


Page 1011

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

Page 1012

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.[1] 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 [1991]. 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" ,[2] albeit of a different nature, until 2010 there was no specific law prohibiting strangulation.

Page 1013

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. [3] 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 ...

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