“Touching” vs. “Holding”: The Minimum Threshold for Violating New York Penal Law 121.11 Obstruction of Breathing and Blood Circulation

Criminal Obstruction of Breathing and Blood Circulation is a serious charge. As criminal lawyers who have handled these cases, we can say without hesitation that here is simply no other way to view the offense. In the State of New York, a defendant commits the crime of Criminal Obstruction of Breathing and Blood Circulation when, as defined in New York Penal Law 121.11(a), he/she, with intent to impeded the normal breathing or circulation of the blood of another person, he/she applies pressure on the throat or neck of such person. Yes, that is it. Nothing more. The definition of this crime leads to an interesting issue. That is, how long must a defendant hold pressure on the victim’s throat to commit a Criminal Obstruction of Breathing and Blood Circulation offense (Penal Law 121.11) and how much evidence must the People (Assistant District Attorneys) provide for their case to survive a motion to dismiss on facial sufficiency grounds. In the case of People v. Reyes, 2014 NY Slip Op 50789 (2014), a New York City Court examined these issues.

In People v. Reyes, 2014 NY Slip Op 50789 (2014) the Criminal Court of New York examined the legislative intent behind Penal Law 121.11(a) to determine whether the defendant in this case was guilty of Criminal Obstruction of Breathing and Blood Circulation (NY PL 121.11). The facts of this case are rather straight forward. Police Officers responded to a radio run in Manhattan. When the officer’s arrived the complainant allowed the officer inside and told the officer “be careful. He is in the room. He has a knife. He was holding me like this with his hands. He pulled a knife from under the mattress [and]; said that he was going to kill me.” While stating this, the complainant gestured with her hands around her throat. The complainant then pointed out the room where the defendant was sitting and another police officer confirmed that he had recovered a knife from that room.

Prior to a trial the defendant made several motions; one of the motions argued that the count of Criminal Obstruction of Breathing and Blood Circulation (Penal Law 121.11) should be dismissed from the accusatory instrument because it was facially insufficient. In order for a charge on an accusatory instrument to be facially sufficient the accusatory instrument must contain non-hearsay allegations that provide reasonable cause to believe that the people can prove every element of the crime charged. Reasonable cause to believe that a person has committed an offense exists when evidence or information which appears to be reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence that it is reasonably likely that such offense was committed and that such a person committed it.

The Defendant’s attorney challenged the facial sufficiency of the Criminally Obstruction of Breathing and Blood Circulation charge, but the court found it to be facially. The court came to this conclusion after examining the description of the Defendant’s conduct in the accusatory instrument and deemed that the complainant’s description of the defendant’s actions gave reasonable cause to believe that the offense occurred. As drafted in the decision:

In New York, Penal statutes are not strictly construed; they are construed “according to the fair import of their terms to promote justice and effect the objects of the law.” Penal Law [] 5.00. Construing the statute under this standard, it is apparent that the Legislature intended for the offense made out by § 121.11(a) to be relatively easy for the People to plead and prove. The offense does not require the application of physical force, only the application of “pressure,” however slight or short in duration. Indeed, courts have regularly held that “no minimum period of contact is required.” People v. Figueroa, 40 Misc 3d 1010, 1018, 968 N.Y.S.2d 866, 872-73 (Rye City Ct 2013) (three seconds); People v. White, 100 AD3d 1397, 953 NYS2d 423 (4th Dept 2012) (two seconds) . And, as noted above, the statute does not require that the victim suffer pain or injury, and does not require the intent the intent to cause pain or injury. Figueroa, 40 Misc 3d at 1018, 968 NYS2d at 872. Rather, the offense requires only the intent that would naturally accompany the proscribed act; an intent that the pressure applied to the neck would impede breathing or the natural circulation of blood. Id. at 1019, 873 (testimony that defendant placed his hands around complainant’s neck during an argument permitted trier of fact to “infer that defendant’s actions were done with the conscious purpose of ending the argument with the victim by forcing her submission due to the inability to breath or loss of consciousness by the lack of flow of blood to the brain”).

Under these standards, while the case is close, the description of the defendant’s conduct in the Information is sufficient. First, the Information sufficiently alleges that the defendant applied pressure to the complainant’s throat. Ms. De Leon reported that defendant “was holding” her “like this,” then demonstrated by “gestur[ing]; with her hands around her throat.” These two allegations together create a reasonable inference that the defendant applied pressure to Ms. De Leon’s throat, the first of the two elements of the offense. The use of the verb “to hold” reasonably implies some degree of pressure. If Ms. De Leon had been trying to describe physical contact with no pressure, she would have used the verb “to touch.” And by gesturing to her throat, Ms. De Leon clearly conveyed that her throat was the part of the body that defendant held.

A serious offense? No doubt. Relatively easy to establish or prove? Again, the answer is in the affirmative.

To educate yourself about felony and misdemeanor New York Strangulation crimes, including Strangulation in the Second Degree and Criminal Obstruction of Breathing and Blood Circulation, examine the NewYorkCriminalLawyerBlog.Com as well as the Saland Law PC website listed below. Further information can be found through the links.

Saland Law PC is a New York criminal defense firm representing clients in all criminal investigations, arrests, indictments and trials throughout the New York City region. Saland Law was  founded by former Manhattan prosecutors.


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