Boyfriend Acquitted of Second-Degree Strangulation in New York

Feb. 26, 2013 - PRLog -- New York – On Saturday, February 16, 2013, The New York Times ran a story on a woman who had accused her boyfriend of punching and choking her. The 26-year-old victim testified that her boyfriend slammed her head against the bathtub, and from there proceeded to punch her all over her body in the bedroom of her Upper East Side apartment.

While on the witness stand in the Manhattan courtroom in September, the woman said that after being punched and spat on, her boyfriend choked her for approximately 15 seconds until “it go dark.” She said that he then threw her on the floor, kicked her, and lay downed on the bed.

According to The New York Times article, approximately 15,000 people are charged with misdemeanor assault annually in New York City. However, the boyfriend and M.B.A. student was charged with a new crime called second-degree strangulation, which was created in 2010 to help prosecutors combat domestic violence by enhancing the penalties for a form of assault that is frequently favored by abusers.

New York’s choking law has become increasingly popular amongst law enforcement officials and prosecutors; in 2011, New York City had 1,458 domestic violence assaults that would have been prosecuted as misdemeanors under the old law; however, over 9 percent of those assaults were charged as felony strangulation.

Under New York Penal Law Section 121.12 (effective November 11, 2010) Strangulation Second Degree (D Felony), a person is guilty of strangulation in the second degree when he or she applies pressure on the throat or neck, or when they block the nose or mouth of a person with the intention of impeding normal breathing or circulation of the blood of another person, and they cause stupor, loss of consciousness for any period of time, or any other physical injury or impairment.

The article also said that experts say that medical professionals and law enforcement across the country have not been properly trained in how to execute these strangulation statutes. According to experts, choking is one of the most common forms of domestic violence, and it’s one of the best predictors for escalating violence. In the past, unless the choking resulted in serious physical injury like brain damage, choking was classified as misdemeanor assault, which carries a maximum sentence of one year, but abusers rarely go to jail for more than a few months.

The article pointed out how in recent years choking assaults have drawn national attention from lawmakers, and New York is one of the 30 states to have criminalized strangulation assaults. In New York, second-degree strangulation is a Class D felony, punishable by a minimum of two years in prison, which is the same as second-degree assault. In the case against the boyfriend, proving strangulation was difficult due to a lack of corroborating evidence.  In this case, there wasn’t enough evidence to prove the elements of second-degree strangulation. The alleged victim, a college graduate who works in interior design, said that she and her boyfriend were together for a year. She claimed he had abused her on other occasions, but no other incidents of abuse had ever been reported in the past.  The victim testified that she loved him and ‘saw the good in him.’

The morning of the incident, her boyfriend burst into the bathroom accusing her of receiving texts from another man. She said that after he slammed her head against the tub she saw stars, and when he choked her, she thought she was going to die. The police photos of her injuries were projected on a screen in the courtroom, and a close-up of her neck showed a rash of red dots. The officer that responded to her 911 call was never told by the victim that she had been strangled, nor did the victim make any mention of being strangled to the emergency room team that treated her.

The prosecutor called a forensic pathologist to testify that the rash on the victim’s neck were petechiae – broken blood vessels suggestive of chocking. However, the defense’s expert, emergency room doctor Ronald Paynter, dismissed the dots, stating that if the boyfriend had choked her, her eyes would have been the first area to exhibit signs of petechiae.

In an interview after trial, Ms. Strack said that collecting visual evidence of choking was not simple. ‘Petechiae can be under the eyelid,’she said. ‘This type of crime needs very specific training on how you photograph it. Bruising and swelling can turn up 24 to 36 hours later.’ While the victim testified that her bruising and swelling worsened over time, no photos were taken to verify her account.

The boyfriend was represented by H. Benjamin Perez, a New York City criminal defense lawyer. In a telephone interview with Mr. Perez, he said his client had no comment. Mr. Perez also said that the strangulation charge was being overused. ‘It seems like it’s been tested to see where it can stick,’ he said.

The jury consisted of eight women and four men; it was a mix of gay and straight jurors, Hispanics and whites, athletic and sedentary people, all of who were educated beyond high school. The jury quickly came to the conclusion that the boyfriend committed misdemeanor assault; however, on the strangulation charge the jurors contended that the first responding officer on the scene and the emergency room team would never have overlooked something as major as choking.

After deliberations, the jury found the boyfriend guilty of misdemeanor assault and not guilty on the second degree strangulation charge. According to the judge, this was the first jury in Manhattan he personally knew to try a second-degree strangulation case. It turned out that the verdict fit a pattern: out of the 19 defendants charged for second-degree strangulation in New York City, none of them had been convicted of it according to New York City.

During sentencing, attorney Perez argued that his client had been “overcharged” and if he had been properly charged with a misdemeanor, he probably would have received anger management classes and a violation. The boyfriend prepared a statement for which he apologized to his former girlfriend.

The Honorable Judge Bruce Allen sentenced the defendant to 60 days in jail, 3 years’ probation, anger management counseling, and a 5 year protection order. The defendant was released from Riders after 38 days – his sentence was reduced for good behavior.

H. Benjamin Perez practices criminal defense in New York City at Perez & Cedeño, P.C. The firm handles all types of state and federal crimes ranging from domestic violence, to DWI, sex crimes, to white collar crimes and violent crimes. For 24 hour emergency attorney assistance, call (212) 226-8444 or you can visit the firm’s website online at www.perezandcedeno.com.