Getting charged with criminal obstruction of breathing might sound like legal jargon, but trust me, it’s a serious matter that can turn your life upside down faster than you can say “I can’t breathe.” As someone who’s defended countless clients facing these charges in New York, I’ve seen how quickly a heated argument or domestic dispute can escalate into criminal charges that carry real jail time.
The experienced New York criminal defense team at Lebedin Kofman LLP stands ready to assist you through the intricate legal challenges of criminal obstruction of breathing accusations. Our attorneys bring both compassion and expertise to your case, recognizing the anxiety and uncertainty these charges often create. We strive to provide robust legal representation tailored to your specific circumstances. Reach out to us at (646) 663-4430 to schedule your free consultation and discover how we can help protect your rights and future.
What Exactly Is Criminal Obstruction of Breathing?
Under New York Penal Law § 121.11, criminal obstruction of breathing or blood circulation occurs when someone intentionally impedes another person’s ability to breathe or restricts their blood circulation. This typically happens by:
- Applying pressure to someone’s throat or neck
- Blocking their nose or mouth
- Any combination of these actions
The key word here is “intentionally.” This isn’t about accidentally bumping into someone or a playful wrestling match that goes too far. The prosecution needs to prove you meant to restrict someone’s breathing.
The Legal Elements: What Prosecutors Must Prove
To secure a conviction, the District Attorney’s office must establish two critical elements beyond a reasonable doubt:
Intent to Impede: The defendant specifically intended to interfere with normal breathing or blood circulation. This separates accidental contact from criminal behavior.
Physical Act: The defendant either applied pressure to the victim’s throat/neck or blocked their nose/mouth.
Here’s what might surprise you: the law doesn’t require actual injury or complete impairment of breathing. Even a brief choking incident that doesn’t leave visible marks can result in criminal charges. I’ve represented clients where the alleged victim had no physical injuries, yet they still faced serious criminal prosecution.
Classification and Penalties
Criminal obstruction of breathing is classified as a Class A misdemeanor in New York, which means it’s the most serious type of misdemeanor you can face. The potential consequences include:
- Jail Time: Up to one year in county jail
- Probation: Up to three years of supervised probation
- Fines: Up to $1,000
- Criminal Record: A permanent criminal record that can affect employment, housing, and other opportunities
How This Differs from More Serious Charges
New York has a tiered system for these types of offenses. Criminal obstruction of breathing is actually the least severe, but the charges can escalate quickly:
Strangulation in the Second Degree (NY Penal Law § 121.12)
- Classification: Class D Felony
- Additional Elements: Causes stupor, loss of consciousness, or physical injury
- Penalties: Up to 7 years in prison
Strangulation in the First Degree (NY Penal Law § 121.13)
- Classification: Class C Felony
- Additional Elements: Causes serious physical injury
- Penalties: Up to 15 years in prison
The difference between a misdemeanor and a felony often comes down to the extent of injury or impairment caused. This is why having experienced legal representation from the start is crucial.
Real-World Examples
In People v. Figueroa (2013), the defendant was convicted after witnesses observed him applying pressure to his girlfriend’s neck, causing her to struggle for air. The case demonstrated that even brief acts of choking can result in criminal charges, especially when there are witnesses.
I’ve handled cases where clients were charged based on:
- 911 calls reporting domestic disputes
- Visible marks on the alleged victim’s neck
- Witness testimony from neighbors or family members
- The alleged victim’s statements to police
Common Defenses
Every case is unique, but there are several defense strategies that can be effective:
Lack of Intent
If the contact was accidental or unintentional, this can serve as a complete defense. Maybe you were trying to restrain someone who was attacking you, or perhaps the contact occurred during a struggle where you were defending yourself.
Medical or Dental Purpose
The statute specifically exempts actions performed for valid medical or dental reasons. This defense rarely applies in typical criminal cases but can be relevant in certain circumstances.
Self-Defense
If you were protecting yourself from imminent harm, self-defense might justify your actions. The key is that your response must be proportionate to the threat you faced.
False Accusations
Unfortunately, I’ve seen cases where angry partners or family members make false accusations during heated disputes. These situations require careful investigation an d thorough examination of all evidence, including text messages, witness statements, and inconsistencies in the accuser’s story.
Insufficient Evidence
The prosecution must prove their case beyond a reasonable doubt. If there’s insufficient evidence to establish intent or the physical act, the charges may be dismissed or reduced.
The Domestic Violence Connection
Most criminal obstruction of breathing cases arise in domestic violence situations. In New York, this offense is classified as a family offense, which creates additional complications:
- Concurrent Jurisdiction: Both family court and criminal court may have jurisdiction over your case
- Orders of Protection: You may face immediate restrictions on contact with the alleged victim
- Enhanced Penalties: Repeat domestic violence offenses can result in enhanced penalties
- Immigration Consequences: For non-citizens, domestic violence convictions can trigger deportation proceedings
The dual court system means you might be fighting battles on multiple fronts simultaneously. Family court proceedings can impact your criminal case and vice versa.
What Happens After an Arrest
If you’re arrested for criminal obstruction of breathing, here’s what typically unfolds:
Immediate Custody: You’ll likely be held pending arraignment, especially in domestic violence cases.
Arraignment: Within 24-48 hours, you’ll appear before a judge who will inform you of the charges and set bail conditions.
Order of Protection: The court will almost certainly issue a temporary order of protection, restricting your contact with the alleged victim.
Discovery Process: Your attorney will begin gathering evidence, including police reports, witness statements, and any available video footage.
Why You Need Experienced Legal Representation
Criminal obstruction of breathing cases often involve complex factual scenarios and emotional testimony. The stakes are high, and the prosecution takes these cases seriously. Here’s why having skilled legal counsel matters:
Evidence Analysis: We examine all physical evidence, witness statements, and police reports for inconsistencies or procedural violations.
Witness Preparation: If your case goes to trial, proper witness preparation can make the difference between conviction and acquittal.
Plea Negotiations: Sometimes the best outcome involves negotiating a plea to a lesser charge or alternative sentencing arrangements.
Trial Experience: If your case goes to trial, you need an attorney who’s comfortable cross-examining alleged victims and challenging the prosecution’s evidence.
The Investigation Process
A thorough investigation is crucial in these cases. We typically examine:
- Medical Records: Any medical treatment sought by the alleged victim
- Photographs: Pictures of alleged injuries or the absence thereof
- 911 Recordings: The actual emergency calls can reveal important details
- Text Messages and Social Media: Communications between parties before and after the incident
- Witness Interviews: Speaking with anyone who may have observed the incident
Potential Collateral Consequences
Beyond the criminal penalties, a conviction can have lasting effects:
Employment: Many employers conduct background checks, and a violent crime conviction can limit job opportunities.
Professional Licenses: Doctors, lawyers, teachers, and other licensed professionals may face disciplinary action.
Child Custody: Family court judges consider domestic violence convictions when making custody determinations.
Housing: Landlords may refuse to rent to individuals with violent crime convictions.
Immigration Status: Non-citizens face potential deportation for domestic violence-related convictions.
Recent Legal Developments
New York has been strengthening its approach to strangulation and choking offenses. The legislature recognized that non-fatal strangulation is a significant predictor of future domestic violence homicides. Studies show that domestic violence victims who have been strangled are 750% more likely to be killed by their abuser.
This statistical reality has led to:
- Enhanced training for law enforcement
- Specialized prosecution units
- Increased penalties for repeat offenders
- Better victim services and support
Building Your Defense Strategy
Every case requires a tailored approach. When I represent clients facing these charges, we start by examining several key areas:
The Relationship Dynamic: Understanding the relationship between the parties helps contextualize the alleged incident.
Prior History: Any history of domestic violence calls or orders of protection can impact the case.
Physical Evidence: The presence or absence of injuries, their location, and their severity all matter.
Witness Credibility: Evaluating the reliability and motivations of all witnesses, including the alleged victim.
Police Conduct: Ensuring law enforcement followed proper procedures during the investigation and arrest.
What to Do If You’re Facing These Charges
If you’ve been charged with criminal obstruction of breathing, take these steps immediately:
Exercise Your Right to Remain Silent: Nothing good comes from trying to explain your side to the police without an attorney present. Politely invoke your right to remain silent and request an attorney.
Don’t Contact the Alleged Victim: Even if you believe they’ll recant or help clear things up, any contact may violate an order of protection and lead to additional charges.
Document Everything: Create a timeline of events while your memory is fresh, including who was present and what was said.
Preserve Digital Evidence: Save text messages, emails, social media posts, and any other digital communications that might be relevant to your case.
Follow Court Orders: Comply with all bail conditions and orders of protection, even if you believe they’re unfair or unnecessary.
Consider Counseling: Voluntarily engaging in anger management or domestic violence counseling can sometimes help your case.
Possible Case Outcomes
Criminal obstruction of breathing cases can resolve in several ways:
Dismissal: If the evidence is weak or the alleged victim recants and refuses to cooperate, the prosecution may dismiss the charges. This is more common than you might think.
Adjournment in Contemplation of Dismissal (ACD): This resolution postpones your case for six months to a year. If you stay out of trouble during that period, the charges are dismissed and sealed.
Reduction to a Lesser Offense: Sometimes we can negotiate a plea to a non-criminal violation like disorderly conduct, which avoids a criminal record.
Plea to the Charge: In some cases, pleading guilty to the misdemeanor with a favorable sentence agreement makes sense, especially if the evidence is strong.
Trial: When appropriate, taking your case to trial allows a judge or jury to determine your guilt or innocence.
The Role of the Alleged Victim
In my experience, many criminal obstruction of breathing cases take unexpected turns when the alleged victim decides not to cooperate with prosecution. This can happen for various reasons:
- The incident was exaggerated or misunderstood
- The parties have reconciled
- Financial or family concerns about the consequences of prosecution
- Recognition that the criminal justice system isn’t the best solution
It’s important to understand that in New York, the decision to press or drop charges rests with the District Attorney’s office, not the alleged victim. Prosecutors can and often do proceed with cases even when victims become reluctant witnesses. They may rely on:
- Photographs of injuries
- 911 recordings
- Police officer testimony
- Statements made at the scene (which may be admissible under the “excited utterance” hearsay exception)
Real-World Perspective
The reality of criminal obstruction of breathing cases in New York courts is nuanced. Prosecutors take these cases seriously because they understand the connection between non-fatal strangulation and escalating violence. At the same time, they recognize that not all cases warrant the full weight of criminal punishment.
I’ve seen charges reduced or dismissed when:
- Medical evidence contradicted the allegations
- Witness testimony proved inconsistent
- Video evidence showed a different version of events
- The alleged victim admitted to exaggerating or fabricating claims
I’ve also seen cases proceed to conviction when:
- The evidence of intentional choking was clear
- Multiple witnesses corroborated the account
- The defendant had prior domestic violence incidents
- The injuries were documented and consistent with the allegations
Sealing and Record Clearing
If your case resolves favorably, through dismissal, ACD, or certain non-criminal dispositions, you may be eligible to have records sealed. This process prevents the public, including most employers, from accessing your arrest and case information.
New York has expanded its sealing provisions in recent years, giving people better opportunities to move beyond past mistakes. Working with an attorney who understands these provisions can make a significant difference in your long-term prospects.
The Bottom Line
Criminal obstruction of breathing charges present serious legal jeopardy that can affect your freedom, family relationships, employment, and reputation. These cases demand experienced legal representation focused on protecting your rights and achieving the best possible outcome.
The nuances of domestic violence prosecutions, the emotional dynamics between parties, and the technical elements of the offense create a complex legal landscape that requires skilled navigation. Each case presents unique challenges and opportunities for defense.
Remember that an arrest is not a conviction, and charges don’t always result in a criminal record. With proper legal guidance, many clients facing these allegations can achieve favorable resolutions that allow them to move forward with their lives intact.
If you’re facing criminal obstruction of breathing charges in New York, get experienced legal help immediately. Contact us today at (646) 663-4430 to start building your defense. The early stages of a case often present the best opportunities for successful intervention, and your freedom may depend on having skilled representation from the start.
This article provides general information about obstruction of breathing charges in New York. Every case is unique, and you should consult with a qualified criminal defense attorney about your specific situation.
from Lebedin Kofman LLP https://www.lebedinkofman.com/criminal-obstruction-of-breathing-in-new-york/
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