First Defendants Charged Under New York’s Strangulation Act

Stephanie Sciandra, Albany Government Law Review Editor

I.                   Introduction        

On December 4, 2010, Gregory Chinnery of Albany was accused of assaulting his girlfriend, pushing her against a wall, and choking her until she lost consciousness.[1]  Had Chinnery been accused prior to the enactment of the Strangulation Prevention Act of 2010[2] (hereinafter the “Act”), he would have been charged with a harassment violation, or assault in the third degree at best.[3]  Instead, Chinnery was charged under a new New York State law that makes strangulation leading to injury or unconsciousness a violent felony.[4]

Previously, victims of domestic violence who were strangled into unconsciousness had little recourse under the law. [5]  When the Act went into effect on November 11, 2010, it escalated penalties for strangulation, making it a felony to choke someone resulting in injury or unconsciousness (even if no other injury is present), and a misdemeanor to choke someone without resulting injury or unconsciousness.[6]   Previously, even a misdemeanor assault charge was not applicable against a potential defendant who strangled his victim into unconsciousness if no serious injury or pain resulted; the only applicable charge was harassment in the second degree, a noncriminal violation. [7]  The Act, which defines strangulation in the first, second and third degrees, [8] is already providing additional recourse for prosecutors of domestic violence, who frequently see strangulation used as a batterer’s weapon.

II.                Strangulation as a Batterer’s Weapon

 

Strangulation has been identified as “one of the most lethal forms of domestic abuse,” often more dangerous than other forms of physical violence.[9]  After a victim is strangled by her abuser, in addition to physical injury and pain she may experience,[10] strangulation often increases an abuser’s “power and control” over a victim.[11]  Strangulation is rampant in domestic violence situations, with the U.S. Department of Justice’s Institute of Justice finding that up to 68 percent of domestic violence victims reporting incidents of strangulation at least once by their abusers.[12]  Furthermore, of all violent deaths in the U.S. each year, ten percent are the result of strangulation, with a ratio of six female deaths to every male death. [13]

Strangulation is “one of the many violent tactics used regularly by abusers;[14] over the course of a lifetime, between 23 and 68 percent female domestic violence victims experience at least one incident of strangulation from an abusive male partner.[15]  However, in another study of all victims who reported incidents of strangulation, 62 percent had no visible injuries following incidents of strangulation.[16]  Strangulation is a “power and control tactic” that is “tremendously effective for abusers.”[17]  “Victims may believe they are being killed and, as a result, feel deeply and justifiably terrified both during the incident and for a long time afterwards.”[18]  Thereafter, victims often present no physical injury as proof that the incident occurred.[19]  As previously discussed, New York law provided little recourse for victims, in terms of both long-term victim protection and criminal penalties for offenders. [20]  The Act emerged as a result of numerous reports of strangulation frequently being used to silence domestic violence victims, without abusers fearing prosecution. [21]

Emboldened by impunity, batterers repeatedly use suffocation over other forms of violence, knowing they could escape criminal charges. [22]  In the context of domestic violence, strangulation is also seen as a prelude to murder, with statistics showing 43 percent of females who were murdered by intimate partners “experienced at least one episode of choking before being killed.”[23]

III.             The Tragedy of Pre-Felony Strangulation

 

Strangulation, often a lethal form of domestic violence, is experienced by at least 43 percent of victims of intimate partner homicide prior to the homicide.[24]  Often seen as a prelude to murder, victims were poorly protected prior to the enactment of state felony strangulation laws, as there were no available charges to hold an abuser on.  One such incident prompted a similar change in law in New Hampshire, where Jonathon Charbonneau shot and killed his wife in October 2009. [25]  Charbonneau was arrested and charged with throwing Melissa Cantin Charbonneau down a flight of stairs and trying to strangle her. [26]  He was charged with a misdemeanor and released on $30 bail.  Charbonneau’s wife had applied for a restraining order, claiming that he had “picked her up off the floor and ‘threw me into a lamp and climbed on top of me and continued to choke me.’”[27]   When the victim returned home to secure her belongings, Charbonneau, armed with a rifle, shot and killed his wife, shot his father in law, and then committed suicide, according to the New Hampshire Attorney General’s report. [28]  John Cantin, the victim’s father, noted that he believed that the more stringent charges under the New Hampshire law would ensure that defendants are behind bars, rather than free to return to further assault – and potentially murder – their victims.[29]

New York similarly has a high threshold for showing “physical injury” of a victim to prove assault, requiring that a victim experience “impairment of physical condition or substantial pain.”[30]  Similarly, felony assault in New York required proof of “serious physical injury,” which often does not accompany strangulation.[31]  To prove a charge of felony assault, there must be “physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.”[32]  This is a very high threshold to meet, especially for victims of domestic violence who have experienced strangulation.[33]  Low charges often amounting to a misdemeanor are often the result of prior incidents of strangulation, with the most common result being a harassment violation.[34] Given the nature of strangulation as a batterer’s weapon, coupled with the propensity for unpunished perpetrators to escalate to homicide, the Act makes a welcome addition to the penal code, providing higher charges and stricter penalties for prosecutors.

IV.              Strangulation As a Felony in Play

 

In addition to charges brought against Chinnery, who was the first person charged under the new law in Albany County,[35] a number of indictments have included felony strangulation charges across New York State.  In Monroe County, Steven Olney pled guilty after “putting his hands around a friend’s neck and trying to strangle her.”[36]  Olney was charged with felony strangulation, and plead down to a misdemeanor; he was sentenced to 60 days in jail with three days probation.[37]  In Plattsburgh, Richard Brundige Jr. was arrested and charged with second-degree strangulation after allegedly choking his girlfriend.[38]

In Kingston, Joshua Thomason was charged with felony strangulation and misdemeanor assault after he allegedly “choked a female victim to unconsciousness, stomped the back of her head and knocked out her teeth.”[39]  Kingston Police Sgt. Cliff Tremper said that the Act is a “new tool we can use for the investigation of domestic incidents.” [40]  Thomason was held in lieu of $50,000 bail; [41] a stark contrast to the $30 bail Jonathon Charbonneau was released on after strangling his wife, whereafter he returned and murdered her. [42]

Though felony charges have only been available to prosecutors since November 2010, prosecutors have not been shy about charging perpetrators with escalated felony charges when victims are injured or strangled into unconsciousness, and with misdemeanors when strangulation is present without injury or unconsciousness.  Now that strangulation can amount to a felony, prosecutors are relieved of jumping the hurdle to prove the defendant caused serious physical injury under New York’s misdemeanor assault statute.  The Act also provides prosecutors with the ability to request higher bail, as well as leverage in charging and plea bargaining with defendants, and will serve as a useful tool in protecting victims of strangulation from further brutalization at the hands of their abusers.


[1] Dennis Yusko, Albany man accused of choking girlfriend, Times Union (Albany), Dec. 7, 2010, available at http://www.timesunion.com/default/article/Albany-man-accused-of-choking-girlfriend-866574.php.

[2] S.B. 6987, 233nd Leg. Sess. (N.Y. 2010).

[3] N.Y. Penal Law § 240.26 (McKinney 2010) (Detailing what constitutes a harassment violation.  The only applicable provision that applied to domestic violence perpetrators who strangled their victims into unconsciousness was harassment in the second degree.  The statute reads that “[a] person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person: 1. He or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same; or 2. He or she follows a person in or about a public place or places; or 3. He or she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose. . . . Harassment in the second degree is a violation.”)

[4] S.B. 6987, 233rd Leg. Sess. (N.Y. 2010); Yusko, supra note 1.

[5] S.B. 6987, 233rd Leg. Sess. (N.Y. 2010).

[6] N.Y. Penal Law § 121.12–13; see Press Release, Long Island Exchange, Domestic Violence Victims, Law Enforcement Officials and Advocates Join Senator Schneiderman to Support Strangulation Prevention Act, (Mar. 16, 2010), available at http://www.longislandexchange.com/press/2010/03/16/support-for-new-bill-strangulation-prevention-act-of-2010/ (The Act provides for amendments to New York Penal Law § 70.02 (“Sentence of imprisonment for a violent offense”), adding strangulation in the first degree to the previously listed class C violent felony offenses)).

[7] See S.B. 6987, 233rd Leg. Sess. (N.Y. 2010).

[8] Id.

[9] Id.

[10] Amy Schwartz, Strangulation and Domestic Violence Important Changes in New York Criminal and Domestic Violence Law, Empire Justice Center (Nov. 19, 2010), http://www.empirejustice.org/issue-areas/domestic-violence/case-laws-statues/criminal/strangulation-and-domestic.html; S.B. 6987, 233rd Leg. Sess. (N.Y. 2010), (explaining that from a medical standpoint, when a victim is strangled, he or she first experiences severe pain, which is then followed by unconsciousness, followed by brain death thereafter).

[11] S.B. 6987, 233rd Leg. Sess. (N.Y. 2010).

[12] Press Release, Domestic Violence Victims, supra note 6.

[13] S.B. 6987, 233rd Leg. Sess. (N.Y. 2010)

[14] Id.

[15] Schwartz, supra note 10.

[16] Gael B. Strack et al., How to Improve Your Investigation and Prosecution of Strangulation Cases (May 1999), http://www.ncdsv.org/images/strangulation_article.pdf.

[17] Schwartz, supra note 10.

[18] Id.

[19] See Press Release, Domestic Violence Victims, supra note 6.

[20] Id.

[21] Schwartz, supra note 10.

[22] Press Release, Domestic Violence Victims, supra note 6.

[23] Statement by Marcia A. Pappas, NYS Urges passage of strangulation prevention act of 2010, (March 16, 2010), http://readme.readmedia.com/National-Organization-for-Women-NYS-Urges-Passage-of-Strangulation-Prevention-Act-2010/1195132.

[24] Id.

[25] Marisol Bello, Choking Seen as Prelude to Murder, USA Today, June 24, 2010, http://www.usatoday.com/news/nation/2010-06-24-choking_N.htm.).

[26] Id.

[27] Woman Shot In Murder-Suicide Had Obtained Restraining Order (Oct. 24 2009, 11:25 AM), http://www.wmur.com/r/21403635/detail.html.

[28] Bello, supra note 25 (explaining that the victim’s father, John Cantin, survived the shooting).

[29] Id.

[30] N.Y. Penal Law § 10.00(9) (McKinney 2010).

[31] N.Y. Penal Law § 10.00(10) (McKinney 2010).

[32] Id.

[33] Schwartz, supra note 10 (Explaining that despite there being some precedent where courts have held that strangulation-related injuries met the evidence threshold for physical injury and serious physical injury, such precedent is inconsistent (citing People v. Felipe, 66 A.D.3d 919 (2002); see also People v. Cannon, 300 A.D.2d 407 (2002); People v. Pettine, 50 A.D.3d 1517 (2008); People v. Bruno, 47 A.D.3d 1064 (2008); People v. Delph, 269 A.D.2d 218 (2000); People v. Lewis, 294 A.D.2d 847 (2002)).

[34] Schwartz, supra note 10.

[35] Yusko, supra note 1.

[36] Alysa Stryker, Chris Olney of Greece charged under new state strangulation law, Fairport-East Rochester Post, Nov. 24, 2010, (available at http://www.fairport-erpost.com/feature/x1384138673/Greece-man-charged-under-new-state-strangulation-law).

[37] Id.

[38] Lois Clermont, Man charged with felony strangulation, Press Republican, Nov. 30, 2010, available at  http://pressrepublican.com/0100_news/x675533220/Man-charged-with-felony-strangulation.

[39] Paula Ann Mitchell, Kingston man charged with strangulation, Daily Freeman, Jan. 24, 2011, available at http://www.dailyfreeman.com/articles/2011/01/24/blotter/doc4d3e05666b21c106362234.txt.

[40] Id.

[41] Id.

[42] Id.

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