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The Law of Strangulation in New York — Is Attempted Strangulation in the Second Degree a Non-Existent Crime?

Posted By Galluzzo and Johnson LLP || 29-Mar-2012

We have previously covered the basics of the recently (2010) enacted set of crimes involving strangulation.  As noted, Penal Law section 121.11 states that “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; or b. blocks the nose or mouth of such person.  Criminal obstruction of breathing or blood circulation is a class A misdemeanor.”

Strangulation in the Second Degree under Penal Law 121.12 states that “A person is guilty of strangulation in the second degree when he or she commits the crime of criminal obstruction of breathing or blood circulation, as defined in section 121.11 of this article, and thereby causes stupor, loss of consciousness for any period of time, or any other physical injury or impairment.  Strangulation in the Second Degree is a class D felony.”

Some lawyers have questioned, however, whether it would be possible to be convicted of an Attempt to Commit the Crime of Strangulation in the Second Degree, or whether such attempt would be completely encapsulated by the misdemeanor charge.  For example, suppose the facts were that a man intended to impede the normal breathing or circulation of the blood of another person by applying pressure to the neck of another person and that person did NOT suffer stupor, loss of consciousness for any period of time, or any other physical injury or impairment.  That would clearly be a prima facie case of the misdemeanor charge.

However, suppose that the People’s theory of the case were that the man intended to cause stupor, loss of consciousness, etc., by applying pressure to the throat, but failed to achieve that result.  Would this be a case of the “E” felony of attempted strangulation in the second degree?  Perhaps not.

In the area of manslaughter, courts have held certain “attempt-based” crimes to be non-existent.  For example, in People v. McDavis, 97 A.D. 2d 302 (3d Dep’t 1983), the Appellate Division, Third Department held that there was no such crime as attempted manslaughter in the first degree: “A person is guilty of an attempt to commit a crime only when he intends to commit that crime.  There must be a specific intent to commit a specific crime.  Hence, there can be no attempt to commit a crime that does not involve a specific intent, such as manslaughter in the second degree, a crime predicated on a reckless act.  Likewise, there can be no attempt to commit a crime where one of the elements is a specific intent but another, an unintended result.  Thus, there are no such crimes as attempt to commit felony murder, attempt to commit felony assault, and by parity of reasoning, attempt to commit manslaughter in the first degree.  In each of those crimes, one of the elements is an unintended result – physical injury in the case of felony assault, and death in the cases of felony murder and manslaughter in the first degree.  Since one cannot intend an unintended result, there can be no attempt to commit those crimes.”  Id. at 303-304.

Here, it appears that the intent to commit the crime of strangulation in the second degree would be completely subsumed by the misdemeanor charge.  After all, if the victim does not suffer stupor or any of the other consequences noted in the statute, than the person has merely done what needed to be done to satisfy all of the elements of the misdemeanor charge.

The intent element of the strangulation in the second degree charge, however, is the intent to commit the misdemeanor charge, that is: the intent to impede the normal breathing or circulation of the blood of another person.  PL 121.11.  Strangulation in the second degree does NOT require a specific intent to cause stupor, loss of consciousness for any period of time, or any other physical injury or impairment.  Thus, those occurrences may be said to be mere “unintended results” of the misdemeanor intent, but not required to prove the charge itself.  Had the legislature wanted the intent to achieve those results to be an element of the offense, it could have inserted language that would have made that clear, i.e. “A person is guilty of strangulation in the second degree when, with the intent to cause stupor, loss of consciousness for any period of time, or any other physical injury or impairment, he or she commits the crime of criminal obstruction .  .  .  .”

The absence of that intent language strongly suggests that the E felony of Attempted Strangulation in the Second Degree is a “non-existent” crime and may not be charged as a lesser-included offense of the D at the jury instruction phase of a trial.

If you have been charged with any strangulation offense, but particularly an attempted strangulation charge, you need to seek the advice of experienced New York strangulation attorneys.

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