Public Awareness
OPDV Bulletin:
Tip for Prosecutors Re: Strangulation
(Courtesy of former Clinton County District Attorney Penny Clute)
New York has a form of felony assault where "serious physical injury" is committed recklessly, not intentionally. After learning about the life-threatening nature of strangulation, it appears that many such incidents could be charged as Assault 1st Degree under New York Penal Law 120.10, subdivision 3.
In August 2000, in Clinton County Court, a conviction was obtained after jury trial for "reckless depraved" Assault 1st degree, a violent felony, in the case of People v Scott Miller, using the expert medical testimony and legal theory discussed here. The defendant was sentenced to five years in state prison. Without using Assault 1st Degree, it is likely he would have been charged with only a violation or a misdemeanor.
The pertinent statutes are Assault 1st - Penal Law 120.10, subd. 3; Serious Physical Injury - Penal Law 10.00, subd. 10; and Physical Injury - Penal Law 10.00, subd. 9.
Many strangulation cases create grave risk of death because the pressure from the hands closes off the veins in the front of the neck. This prevents the return of blood from the head, where it was pumped by the arteries, causing death to brain cells. This is much more life-threatening than closing off the airway. A medical expert can testify at Grand Jury and trial regarding the anatomy and functioning of these structures and explain how easily and quickly a person can be killed this way.
The testimony from the victim will describe what she was going through as she was being strangled. Likely, this will include that she couldn't breathe; she also may state that there were changes in her vision, such as seeing stars, or everything starting to go gray. Isn't this "impairment of condition," amounting to "physical injury" under the Penal Law?
The expert witness will be able to testify about the effect of the blood supply being cut off to her brain, explaining these symptoms, and how quickly she would have died if he had not stopped. Isn't this a grave and substantial risk of death?
To see a Memorandum of Law describing the case-law interpretation of "reckless depraved indifference" and relevant decisions on Assault 1st Degree that may help you answer the defense challenges, go to the following site and scroll down the page: http://www.correctionhistory.org/northcountry/html/knowlaw/recklessdepravedassault3.htm.
