Is Third Degree Assault (NY PL 120.00) a “Lesser Offense” of Second Degree Strangulation (NY PL 121.12)

Third Degree Assault, New York Penal Law 120.00, is a relatively straight forward offense. Although the application and interpretation of the law always has its wrinkles, one is guilty of Assault in the Third Degree when one intentionally, or recklessly, causes physical injury to another. Physically injury is generally identified as some form of substantial pain. A class “A” misdemeanor with a sentence of up to one year in jail, PL 120.00 is the lowest of the violent New York Assault type crimes. A much more serious offense handled by prosecutors and criminal attorneys that is punishable by as many as seven years in prison, Second Degree Strangulation, New York Penal Law 121.12, occurs when a person commits the crime of Criminal Obstruction of Breathing or Blood Circulation, New York Penal Law 121.11, and thereby causes stupor, loss of consciousness or any physical injury.

Defined further, in order to be found guilty of violating PL 121.12, you must have the intent to and actually impede another person’s normal breathing or blood circulation by (a) applying pressure on that person’s throat or neck or block that person’s nose or mouth.

To the untrained eye of an individual who does not regularly practice in the criminal court of New York, it may appear that the similarities between Third Degree Assault and Second Degree Strangulation are similar. If they are similar, is PL 120.00 really just a lesser version or part of a lesser crime of PL 121.12? The short answer is no.

In People v. Peterson, 118 AD3d 1151, (3rd Dept. 2014), the complainant testified that the “defendant came through the front door of her apartment…with a ‘red angry face’ and, with ‘force and quickness,’ put his hands around her throat, told her to ‘get in that F’ing bedroom’ and pushed her into her apartment.” The complainant further testified that “when defendant’s hands were around her neck, she felt ‘out of sorts’ and at a loss for air, and last recalled seeing stars before she ‘came to’ and found herself on the floor.” The testimony made it very clear that ultimately the complainant lost consciousness.

When requesting instructions and charges to be provided to the jury, Peterson’s attorney asked that Third Degree Assault be included as a lesser offense to Second Degree Strangulation. The purpose of such a request would be to potentially persuade the jury to find the defendant guilty of the lesser crime, but not the more serious strangulation. Again potentially, the difference in a finding of guilt could be the difference between one year in jail and seven years in prison. However, despite the defendant’s request the court denied the application and on appeal the defendant challenged this ruling.

From the decision:

“Comparing the statutory definitions of the two crimes in the abstract (see People v Davis, 14 NY3d 20, 23 [2009]; People v Glover, 57 NY2d 61, 63-64 [1982]), it is theoretically possible to commit second degree strangulation without also, by the same conduct, committing third degree assault. As relevant here, a person commits the crime of assault in the third degree when, with the intent to cause physical injury to another, he or she causes such physical injury (see Penal Law 120.00 [1]). To commit strangulation in the second degree, however, there need not be an intent to cause physical injury, nor any physical injury caused (see Penal Law 121.11, 121.12). A person can intend to impede another’s normal breathing only as a method of asserting power and control over that person, without intending to cause physical injury (see William C. Donnino, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law  121.11, 2014 Pocket Part at 41-42). Furthermore, application of pressure to another’s neck could cause stupor or loss of consciousness, but not physical injury. Thus, assault in the third degree under Penal Law 120.00 (1) is not a lesser included offense of strangulation in the second degree.”

It is clear from the court’s ruling that these two crimes – Second Degree Strangulation and Third Degree Assault – may share some elements, but one is not necessary to or a part of the other. They are distinct crimes. Is it possible that one can assault and strangle a complainant in the same “transaction?” Absolutely. However, it is equally possible that each of these crimes can, and often do, transpire without the other.

To read further about the crime of Second Degree Strangulation, Third Degree Assault or Criminal Obstruction of Breathing or Blood Circulation (or any New York Assault crime or New York Strangulation crime), follow the highlighted links or read the content of this blog and the websites below.

A criminal defense firm representing the accused in both violent and white collar crimes throughout New York City and the metropolitan area, the New York criminal lawyers and partners at Saland Law PC collectively served as Manhattan Assistant District Attorneys and Federal prosecutors prior to establishing the defense practice.



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