Criminal Obstruction of Breathing or Blood Circulation: New York Penal Law: § 121.11
The elements of this offense are fairly self-explanatory, if a person applies pressure to another's neck, or blocks the person's mouth or nose, they can be convicted under this statute. This charge usually arises in the context of domestic violence, where one partner claims to have been choked by the other in the heat of an argument.
Both Criminal Obstruction of Breathing or Blood Circulation, and the more serious Strangulation in the Second Degree (NYPL § 121.12), are crimes closely associated with domestic violence. Most often, these charges will result from a domestic incident which turns into a physical altercation. Despite the fact that there is no element of this crime which requires any injury to be sustained, this is a class A misdemeanor, a serious offense punishable by up to a year in jail - and can lead to the end of your career as well as not many companies or industries will tolerate its employee being convicted of this sort of charge.
Getting arrested under this statute will also result in the issuance of a judicial order of protection, which prohibits contact between the defendant and complainant. This applies even if the complainant and defendant live together, and can result in the defendant effectively being kicked out of his or her home until the case is resolved or the order of protection is modified in order to permit the defendant to be in the same place as the complainant. Having an attorney who can communicate with the prosecutor and victim to get the order modified can sometimes be the only thing preventing a person from becoming homeless.
Investigation into the facts and the witnesses are critical in these types of cases. Under this statute, there is no requirement to prove any sort of physical injury, so there is no need for the complainant to show bruising, redness or any physical mark. Very often, these cases come down to whose story a judge or jury believes, as it is just one person's word against the other. If you have been charged with this crime, it is important you retain an attorney who will not just investigate the facts surrounding the incident, but who will also explore any motivation that the complainant may have to fabricate or make up elements of their story. Exposing these biases or reasons to lie may wind up being a decisive factor in the outcome of the case. For these reasons, it is most important to hire an experienced, aggressive and talented cross-examiner.
The New York domestic violence attorneys at the Law Offices of Jeffrey Lichtman have handled countless Obstruction of Breathing and other domestic violence cases, arising from relationship disputes, family arguments, and many other situations. Call us today at (212) 581-1001 for a free case evaluation.