Understanding New York Arrests for Assault in the Third Degree and Criminal Obstruction of Breathing
Domestic violence arrests are among the most common criminal cases prosecuted in New York. In many situations involving spouses, dating partners, family members, or individuals who share a child, police respond to a 911 call and make an arrest based on the allegations, physical evidence, witness statements, and the circumstances they observe at the scene. Unfortunately, once an allegation is made to members of the NYPD about an act of domestic violence, an arrest is virtually guaranteed.
Two of the most frequently charged offenses in these cases are Assault in the Third Degree and Criminal Obstruction of Breathing or Blood Circulation. While both charges are classified as misdemeanors, a conviction can have significant consequences, including jail, probation, orders of protection, and a permanent criminal record.
Assault in the Third Degree (New York Penal Law § 120.00)
Assault in the Third Degree is generally charged when a person is accused of intentionally or recklessly causing physical injury to another person.
A person may be guilty of Assault in the Third Degree if the prosecution proves one of the following beyond a reasonable doubt:
- The defendant intentionally caused physical injury to another person; or
- The defendant recklessly caused physical injury to another person.
Typically, both intentional assault and reckless assault are charged simultaneously.
What Is “Physical Injury”?
Under New York law, “physical injury” means an impairment of physical condition or substantial pain. This is a legal standard that is more significant than mere discomfort but does not require a serious or permanent injury.
Examples that prosecutors may argue constitute physical injury include:
- Bruising
- Swelling
- Cuts or abrasions
- Significant pain lasting beyond the incident
- Medical treatment for injuries
Whether an injury rises to the level of “physical injury” often becomes a contested issue during the prosecution.
Criminal Obstruction of Breathing or Blood Circulation (New York Penal Law § 121.11)
Criminal Obstruction of Breathing or Blood Circulation is commonly referred to as a strangulation-related offense, although the statute covers more than traditional choking.
To obtain a conviction, the prosecution must prove that the defendant intentionally:
- Obstructed the normal breathing or circulation of another person by applying pressure to the throat or neck; or
- Blocked the nose or mouth of another person.
Importantly, the statute does not require proof that the complainant lost consciousness, suffered visible injuries, or experienced permanent harm (there is a separate felony charge for Strangulation in those cases). Testimony regarding difficulty breathing, pressure on the neck, or restricted airflow may be sufficient if believed by the jury.
Because allegations involving strangulation are often viewed as presenting an increased risk of future violence, prosecutors frequently treat these cases aggressively.
Domestic Violence Does Not Create a Separate Criminal Charge
Many people believe there is a crime called “domestic violence” in New York. There is not.
Instead, domestic violence refers to the relationship between the parties involved. The underlying criminal charges may include assault, obstruction of breathing, harassment, menacing, criminal contempt, or other offenses.
However, when an alleged victim qualifies as a family or household member under New York law, the case is typically handled in a specialized domestic violence part of the criminal court. Judges often issue temporary orders of protection at arraignment, which may prohibit contact with the complainant or require the defendant to stay away from the home.
Potential Penalties
Both Assault in the Third Degree and Criminal Obstruction of Breathing or Blood Circulation are classified as Class A misdemeanors.
A conviction may result in:
- Up to one year in county jail;
- Up to three years of probation;
- Conditional discharge;
- Court-ordered counseling or treatment programs, such as the 26-week Domestic Violence Accountability Program;
- Fines and mandatory surcharges;
- Orders of protection restricting contact with the alleged victim;
- A permanent criminal record; and
- Immigration consequences for non-citizens.
The sentence imposed depends on numerous factors, including the defendant’s criminal history, the facts of the case, the extent of any injuries, and whether the matter is resolved by plea agreement or after trial.
Orders of Protection
In nearly every domestic violence prosecution, the court will consider issuing an order of protection. These orders may:
- Prohibit all contact with the complainant;
- Require the defendant to stay away from the complainant’s home, workplace, or school;
- Restrict communication by phone, text, email, or social media; or
- Permit limited peaceful contact under specified conditions.
Violating an order of protection can result in additional criminal charges, including Criminal Contempt. A person protected by an order of protection does not have the right to unilaterally withdraw it or decline to enforce it; only a judge can permit contact between parties that have been separated by his/her order of protection.
Defending Domestic Violence Charges
Every domestic violence case presents unique factual and legal issues. Common areas of dispute may include:
- Whether the alleged injuries satisfy the legal definition of physical injury;
- Whether the prosecution can establish intent;
- Whether witness testimony is consistent and credible;
- Whether statements made to police are admissible;
- Whether self-defense applies; and Whether the prosecution can prove each element of the charged offense beyond a reasonable doubt.
Because these cases often involve emotionally charged allegations and evolving witness testimony, a careful review of police reports, medical records, photographs, body-worn camera footage, and other evidence is essential.
Conclusion
An arrest for Assault in the Third Degree or Criminal Obstruction of Breathing should never be taken lightly. Even misdemeanor charges can carry serious legal, professional, and personal consequences. Understanding the elements the prosecution must prove—and the potential penalties involved—is an important first step in protecting your rights and preparing an effective defense.
If you have been arrested or are under investigation for a domestic violence offense in New York, you should strongly consider contacting Matthew Galluzzo. Mr. Galluzzo is a former supervisor in the domestic violence unit of the Manhattan District Attorney’s Office, where he trained young prosecutors and oversaw the prosecution of hundreds of domestic violence cases. He has been a criminal defense attorney for almost twenty years and has helped dozens of individuals charged with domestic violence crimes throughout the city.