Relates to criminal obstruction of breathing or blood circulation and strangulation

Summary of specific provisions

Section one of the bill amends section 70.02 of the Penal Law to add the new crime of Strangulation in the. First Degree (PL 121.13) to the list of class C violent felony offenses and add the new crime of Strangulation in the Second Degree (PL 121.12) to the list of class D violent felony offenses.

Section two adds a new Article 121 to the Penal Law on "Strangulation and Related Offenses" and creates the new crimes of Criminal Obstruction of Breathing or Blood Circulation (PL 121.11), a class A misdemeanor, Strangulation in the Second Degree (121.12), a class P violent felony, and Strangulation in the First Degree (121.13), a class C violent felo- ny. The new article also establishes an affirmative defense applicable only when such conduct is for a valid medical or dental purpose (PL 121.14).

Section three amends section 190.25 of the Criminal Procedure Law to provide that a social worker, rape crisis counselor, psychologist or other professional may be present in the grand jury room to support a young witness who is called to give evidence in a grand jury proceeding concerning the new Article 121 crimes.

Section four amends section 700.05 of the Criminal Procedure Law to authorize law enforcement authorities to use wiretaps and similar eaves- dropping devices when investigating the possible commission of felonies including the new crimes of Strangulation in the Second Degree and Strangulation in the First Degree.

Section five amends section 115-d of the Domestic Relations Law to add the new crimes of Strangulation in the Second Degree and Strangulation in the First Degree to the list of crimes that constitute a Conviction involving "spousal abuse" as it relates to an application for certif- ication as a qualified adoptive parent.

Section six amends section 995 of the Executive Law to add the new crime of Criminal Obstruction of Breathing or Blood Circulation to the list of misdemeanor crimes for which a defendant, upon conviction, is required to submit a DNA sample for the State DNA Identification Index.

Section seven adds the new crimes of Strangulation in the Second Degree and Strangulation in the First Degree to the list of crimes that may be subject to prosecution and enhanced penalties under the state's Organ- ized Crime Control Act (PL Article 460).

Section eight amends section 378-a of the Social Services Law to include the new crimes of Strangulation in the Second Degree and Strangulation in the First Degree to the list of crimes that constitute a conviction involving "spousal abuse" as it relates to an application for certif- ication or approval as a prospective foster parent or adoptive parent.

Section nine adds the new Article 121 crimes to the list of offenses that are subject to the concurrent enforcement jurisdiction of family court and criminal court pursuant to Section 812 of the Family Court Act.

Section ten amends section 10.03 of the mental Hygiene law to include the new crimes of Strangulation in the Second Degree and Strangulation in the First Degree to the list of designated felony offenses as it relates to the possible civil commitment of sex offenders where such conviction was sexually motivated.

Section eleven adds the new Article 121 crimes to the list of offenses that are subject to concurrent jurisdiction of family court and criminal court pursuant to section 530.11 of the Criminal Procedure Law.

Section twelve amends section 60.05 of the Penal Law to include the new crime of Strangulation in the Second Degree to authorized dispositions for certain class D felonies pursuant to section 70.00 or 85.00 of the penal law.

Section thirteen amends section 485.05 of the Penal Law to include the new crimes of Strangulation in the Second Degree and Strangulation in the First Degree to the list of felony offenses subject to potential prosecution as hate crimes.

Section fourteen amends section 130.91 of the Penal Law to include the new crimes of Strangulation in the Second Degree and Strangulation in the First Degree to the qualifying list of sexually motivated felony offenses.

Section fifteen amends section 509-cc of the Vehicle and Traffic Law to include the new crimes of Strangulation in the Second Degree and Stran- gulation in the First Degree to the list of offenses, a conviction of which results in the disqualification from operating a school bus.

Section sixteen provides that the bill shall take effect ninety days after it shall have become a law.

Existing law

There is no crime in the Penal Law that expressly addresses the intentional obstruction of a victim's circulation or breathing by applying pressure to a victim's throat or neck or by cover-

ing the mouth or nose of the victim or any stupor, loss of conscious- ness, physical injury or impairment, or even serious physical injury that results from such conduct. Under some circumstances, New York courts have found this conduct to meet the statutory definition of assault while in other circumstances, the courts have not. SEE E.G. PEOPLE V. CANNONOPF, 300 A.D.2D 407, 408 (2ND DEPT. 2002); PEOPLE V. BONNEY, 69 A.D.3d 1116 (3d Dept. 2010)(attempted murder); Compare PEOPLE V. LEWIS, 294 A.D.2d 847 (4th Dept. 2002).

In cases where courts determined that such conduct did not meet the definition of assault, perpetrators have been convicted only of lesser crimes, such as attempted assault, menacing and harassment. SEE, E.G., PEOPLE V. LEWIS, supra.

Justification

The intentional obstruction of a person's breathing or circulation is among the most potentially lethal forms of abuse. When perpetrators of domestic violence use these acts to silence their victims, it is a form of power and control that has devastating psycho- logical effects and can cause an irreversible and fatal outcome.

Strangulation and these related offenses epitomize the power dynamic in most domestic violence cases. This is because 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.

Eleven pounds or more of pressure applied to a person's neck for just ten seconds can cause unconsciousness. Death can occur in minutes. While these acts are incredibly dangerous, one study found that strangu- lation represents ten percent of violent deaths in the U.S. each year (involving six female victims to every male) and that non-homicidal strangulation may be difficult to prove because, often, these crimes leave no visible bruise or mark. One recent California study, for exam- ple, found that in a majority of misdemeanor cases involving pressure on the neck, police reported no visible sign of injury.

In addition, these crimes can be extremely painful. 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.

Effectively prosecuting crimes involving the intentional obstruction of a victim's breathing or circulation is challenging under current law. By expressly addressing this conduct in the new Article 121, Strangulation and Related Offenses," and creating new crimes of Criminal Obstruction of Breathing or Blood Circulation and Strangulation, this bill will assure that perpetrators of these reprehensible crimes are successfully prosecuted and punished.

Prior legislative history

New bill.

Fiscal implications

There are no direct fiscal implications.

Effective date

The bill takes effect on the ninetieth day after it shall have become a law.