Relates to criminal obstruction of breathing or blood circulation and strangulation

Summary of provisions

Section 1: Amends PL §70.02 (b) - Adds Strangulation in the First Degree to the PL definition of class C violent felony. Adds Strangulation in the Second Degree to the PL definition of class D violent felony.

§ 2: Adds a new Article 121.00 ("Strangulation and Related Offenses") to the Penal Law:

* New PL 121.11 ("Criminal obstruction of breathing or blood circu- lation") - Creates a new class A misdemeanor where a person, with intent to impede normal breathing or circulation of the blood, applies pressure to the throat or neck or blocks the nose or mouth of another person.

* New PL 121.12 ("Strangulation in the second degree") - Creates a new class D violent felony where a person commits the class A misdemeanor of Criminal Obstruction of Breathing or Blood Circulation and thereby caus- es stupor, loss of consciousness for any period of time, or any other physical injury or impairment.

* New PL 121.13 ("Strangulation in the first degree") - Creates a new class C violent felony where a person commits the class A misdemeanor of Criminal Obstruction of Breathing or Blood Circulation and thereby caus- es serious physical injury to another person.

* New PL 121.14 ("Medical or dental purpose") - Establishes an affirma- tive defense that the defendant performed such conduct for a valid medical or dental purpose.

§ 3: CPL 190.25(3) (h) Adds the three new crimes from the Strangulation Article (PL Article 121) to the list of offenses where certain profes- sionals (child psychologist, rape crisis counselor, social worker) may be present in the grand jury.

§ 4: CPL 700.05(8) (b) - Adds Strangulation in the First Degree and Strangulation in the Second Degree to the list of "designated offenses" for purposes of obtaining eavesdropping and video surveillance warrants.

§ 5: Domestic Relations Law 115-d (3-a) (c) - Adds Strangulation in the First Degree and Strangulation in the Second Degree to the definition of "spousal abuse."

§ 6: Executive Law 995(7) (f) - Adds Criminal Obstruction of Breathing or Blood Circulation to the list of "designated offender" misdemeanors that require submission of a DNA sample upon conviction. (NOTE: The "designated offender" list already includes all Penal Law felony offenses.)

§ 7: Penal Law 460.10(1) (a) - Adds Strangulation in the First Degree and Strangulation in the Second Degree to the list of offenses consti- tuting a "criminal act" for purposes of the enterprise corruption arti- cle.

§ 8: Social Services Law 378-a (2)(j) - Adds Strangulation in the First Degree and Strangulation in the Second Degree to the definition of "spousal abuse" for the purpose of obtaining access to the records of conviction of a prospective foster parent.

§ 9: Family Court Act 812(1) - Adds all three PL Article 121.00 (Stran- gulation) offenses to the list of offenses where, if committed between spouses, former spouses, parent and child, or members of the same family or household, the Family Court and criminal courts shall have concurrent jurisdiction thereof.

§ 10: Mental Hygiene Law 10.03 - Adds Strangulation in the First Degree and Strangulation in the Second Degree to the list of "designated" felo- ny offenses that, if "sexually motivated," may be eligible for sex offender civil commitment.

§ 11: CPL 530.11 - Adds all three PL Article 121.00 (Strangulation) offenses to the list of offenses where, if committed between spouses, former spouses, parent and child, or members of the same family or household, the Family Court and criminal courts shall have concurrent jurisdiction thereof.

§ 12: PL 60.05 - Adds Strangulation in the Second Degree to the Penal Law sentencing provision (which currently includes Assault in the 2nd Degree and attempted Promoting Prostitution in the 200 Degree) that mandates sentencing pursuant to PL section 70.00 ("Sentence of imprison- ment") or 85.00 ("Sentence of intermittent imprisonment").

§ 13: PL 485.05 - Adds Strangulation in the First Degree and Strangula- tion in the Second Degree to the list of "specified" offenses that may be prosecuted as Hate Crimes.

§ 14: PL 130.91 - Adds Strangulation in the First Degree and Strangula- tion in the Second Degree to the list of "specified" felony offenses that may be prosecuted as a "sexually motivated felony."

§ 15: VTL 509-cc - Adds strangulation in the First Degree and Strangula- tion in the Second Degree to the list of conviction offenses that can disqualify a person from driving a school bus.

§ 16: Establishes effective date of "90 days after (the ACT) shall have become a law."

Existing law

Under current law, there is no specific crime aimed at conduct involving the intentional blocking of a victim's breathing or circulation. Under current law, where no physical injury is present, even the misdemeanor crime of assault in the third degree is not applicable. This may leave only the noncriminal offense of harassment in the second degree, a violation, as the only viable charge in these cases.

Justification

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 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, repres- enting 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.

Legislative history

New Legislation.

Fiscal implications

None.

Effective date

The act shall take effect on the ninetieth day after it shall become law.