What Is Criminal Contempt for Violating an Order of Protection in the Bronx?

Violating an order of protection (OOP) in the Bronx can lead to criminal contempt charges when the conduct violates a court order. Depending on the facts, prosecutors may charge second-degree criminal contempt under PL § 215.50, first-degree criminal contempt under PL § 215.51, or aggravated criminal contempt under PL § 215.52. When the same incident also supports a separate assault allegation, prosecutors may also consider third-degree assault under PL § 120.00.

David Mejia Colgan, Esq. helps people facing Bronx criminal contempt charges understand what the order prohibits, what the prosecution must prove, and how an alleged violation may affect their case. Our Bronx criminal defense lawyer focuses on the specific facts, court order terms, evidence, and related domestic violence or assault allegations involved.

This guide explains the difference between second-degree, first-degree, and aggravated criminal contempt, how these charges connect to domestic violence cases in the Bronx, what penalties you face, and what steps to take if you have been charged. Call (718) 484-8820 to speak with attorney David Mejia Colgan.

What Does It Mean to Violate an Order of Protection in New York?

An order of protection is a court order that restricts one person’s behavior toward another. An OOP can prohibit someone from contacting, threatening, or coming near the protected party, their home, their workplace, or their children.

A violation occurs when the person subject to the order does anything the order prohibits. This includes direct contact like phone calls, text messages, and in-person visits, as well as indirect contact, such as having a friend or family member deliver a message on your behalf.

What catches many people off guard is that the protected party’s wishes do not change the order’s terms. Even if the person who obtained the OOP invites contact, the order remains enforceable. Only a judge can modify or vacate an order of protection, so responding to the protected party’s outreach can still result in arrest and criminal contempt charges.

Key Takeaway: An OOP remains enforceable unless a judge changes it. Direct or indirect contact that violates the order can lead to criminal contempt charges.

Call (718) 484-8820 to discuss your case. Our criminal defense attorney is available to answer questions about your situation and explain your options.

What Is Second-Degree Criminal Contempt Under PL § 215.50?

PL § 215.50 is the baseline criminal contempt charge for violating a court order in New York, including an OOP. A person commits second-degree criminal contempt by intentionally disobeying a lawful mandate of a court. The charge is classified as a Class A misdemeanor, carrying a maximum jail sentence of 364 days.

In domestic violence cases, this charge typically applies when the accused makes prohibited contact without any physical confrontation. Common examples include:

• sending a text message
• showing up at the protected party’s home
• calling from a blocked number
• asking someone else to relay a message

The prosecution does not need to prove the contact was threatening, only that it violated the specific terms of the order and was done intentionally.

In Bronx domestic violence cases, a second-degree contempt charge may also affect how the case is assigned and managed in court, especially when related family or criminal matters are pending.

What Is First-Degree Criminal Contempt Under PL § 215.51?

PL § 215.51 elevates criminal contempt to a Class E felony. The distinction between second-degree and first-degree contempt can affect sentencing exposure, court handling, and case strategy.

What Conduct Triggers a Felony Contempt Charge?

Under PL § 215.51, an OOP violation can become first-degree criminal contempt when the alleged conduct includes certain aggravating facts. These can include repeatedly following the protected person, engaging in a course of conduct, repeated acts over time, threatening electronic or written communication, repeated harassing calls, physical menace, qualifying property damage over $250, qualifying physical contact, or a qualifying prior contempt conviction involving an order of protection within the prior five years. For several of these grounds, the prosecution must prove that the conduct intentionally placed or attempted to place the protected person in reasonable fear of physical injury, serious physical injury, or death.

When the allegations involve intentionally or recklessly causing physical injury or serious physical injury to the protected person, or qualifying repeat-contempt circumstances, prosecutors may also evaluate aggravated criminal contempt under PL § 215.52. That charge is separate from first-degree contempt and can increase the defendant’s sentencing exposure.

For first-degree criminal contempt under PL § 215.51(b)(v), serious physical injury is not required. The statute covers striking, shoving, kicking, other physical contact, or an attempt or threat to do the same, when done with the required intent and in violation of a qualifying order of protection.

How Does PL § 215.51 Connect to Third-Degree Assault Charges?

A single domestic incident can lead to both contempt and assault charges when the facts support each offense. Alleged physical contact in violation of a qualifying OOP may support first-degree criminal contempt under PL § 215.51(b)(v), while proof of physical injury and the required mental state may support a separate third-degree assault charge under PL § 120.00. 

If the facts involve intentionally or recklessly causing physical injury or serious physical injury to the protected person, or qualifying repeated contempt circumstances, prosecutors may also evaluate aggravated criminal contempt under PL § 215.52. Sentencing exposure depends on the charges, the facts, and the defendant’s record. Consecutive sentences are not automatic; New York law limits consecutive sentencing when the same act creates both offenses or when one act is a material element of another offense.

Key Takeaway: First-degree criminal contempt under PL § 215.51 is a felony-level contempt charge. Alleged threats, repeated conduct, prohibited communications, qualifying property damage, prior contempt history, or physical contact with the required intent can move an OOP violation beyond misdemeanor treatment.

Call (718) 484-8820 if you are facing felony contempt charges. David Mejia Colgan can review the specifics of your case and explain what to expect.

What Are the Penalties for Criminal Contempt in New York?

The penalties for criminal contempt depend on the degree of the charge and whether it is combined with other offenses. The table below compares the main contempt-related charges that may come up in an OOP violation case.

Charge	Classification	Maximum Incarceration	Where the Case Is Usually Handled
PL § 215.50, Second-Degree Criminal Contempt	Class A misdemeanor	Up to 364 days in jail	Bronx Criminal Court
PL § 215.51, First-Degree Criminal Contempt	Class E felony	Up to 4 years in state prison	Felony case begins in Criminal Court and may proceed in Bronx Supreme Court, Criminal Term
PL § 215.52, Aggravated Criminal Contempt	Class D felony	Up to 7 years in state prison	Felony case begins in Criminal Court and may proceed in Bronx Supreme Court, Criminal Term
PL § 120.00, Third-Degree Assault, when separately charged	Class A misdemeanor	Up to 364 days in jail	Bronx Criminal Court, unless handled with felony-level charges

Beyond incarceration, a conviction can also bring probation, fines, mandatory surcharges, and collateral consequences. For a Class A misdemeanor that is not a sexual assault offense, the statutory probation term is two or three years, though probation may be terminated sooner in some cases. A felony sentence depends on the charge, the defendant’s record, and the sentencing statute. A defendant with a qualifying prior felony may face enhanced sentencing as a second felony offender.

Key Takeaway: The charge level matters because it affects sentencing exposure, court handling, and case strategy. Misdemeanor contempt generally remains in Criminal Court, while felony contempt charges may proceed in Bronx Supreme Court, Criminal Term.

How Do Bronx Courts Handle Criminal Contempt Cases?

After an arrest, a defendant who is not released on an appearance ticket is brought to Bronx Criminal Court for arraignment without unnecessary delay. At arraignment, the judge decides release conditions, bail where legally available, remand, and whether to issue or continue a temporary order of protection.

The Bronx District Attorney’s Office has a Domestic Violence Bureau. After arraignment, misdemeanor contempt charges are handled in Criminal Court. Felony cases begin in Criminal Court for arraignment or preliminary proceedings and generally proceed in the Supreme Court, Criminal Term, if the case moves forward as a felony.

Criminal Defense Attorney in the Bronx, David Mejia Colgan, Esq.

David Mejía Colgan, Esq.

David Mejia Colgan is a Bronx criminal defense attorney with more than 25 years of criminal law experience. He earned his J.D. from New York University School of Law in 1998 and was admitted to practice in New York in 1999. Before entering private defense practice, Attorney Colgan served as an Assistant District Attorney in the Bronx County District Attorney’s Office, where he worked in the domestic violence and sex crimes bureaus and handled both misdemeanor and felony matters.

Attorney Colgan brings that prosecution background to his defense practice, helping clients understand the court process and the choices in front of them at each stage of a case. He is admitted to the U.S. District Courts for the Southern, Eastern, Northern, and Western Districts of New York, and he is fluent in Spanish, allowing him to serve clients across New York’s English- and Spanish-speaking communities with clear, direct guidance.

Can the Protected Party Drop a Criminal Contempt Charge in New York?

In a criminal case, the DA controls whether the charges move forward. The protected party may speak with prosecutors, but that person does not control dismissal. The DA may continue the case if other evidence exists, such as messages, call records, video, or witness testimony. A protected party’s recantation does not automatically end the case.

Contacting the protected party to discuss dropping the case is itself a potential OOP violation that can lead to additional contempt charges.

What Defenses Apply to Criminal Contempt Charges in the Bronx?

Several defenses may apply depending on the specific facts of the case. An experienced defense attorney will evaluate which of the following arguments are supported by the evidence:

• Lack of knowledge of the order’s terms. If the defendant was never properly served with the OOP or was not present when the judge issued it, the defense may argue the defendant did not know the order existed or what it required.
• Ambiguous order language. If the order’s terms are vague about what conduct is prohibited, the defense can argue that the defendant could not have intentionally violated a provision they did not understand.
• Lack of intent. PL § 215.50 requires intentional disobedience. Accidental or unknowing contact, such as an unplanned encounter at a public location, may not satisfy this element.
• Mistaken identity. If the alleged contact came from someone other than the defendant, establishing that the defendant was not the person who made contact is a viable defense.
• Constitutional and procedural challenges. These include challenges to the legality of the underlying order, improper service, or violations of the defendant’s rights during the arrest.

What If the Protected Party Contacted Me First?

The protected party contacting the defendant first is not an automatic defense, but it may matter when evaluating intent, the strength of the evidence, and possible plea negotiations. Save texts, voicemails, call logs, and screenshots, and do not respond unless the order allows it or a judge changes the order.

How Does a Criminal Contempt Conviction Affect You Long-Term?

A misdemeanor or felony conviction can appear on a criminal record and affect background checks, employment, housing, and licensing. New York’s Clean Slate Act took effect in 2024, but the court system has until November 16, 2027, to set up automatic sealing for eligible convictions. Sealing is not the same as erasing a record, and some agencies may still be able to see sealed records. In addition to a criminal record, a conviction can bring the following consequences.

Possible Deportation or Immigration Impact

Non-citizens should get immigration-focused legal advice before entering any plea in a contempt or domestic violence case. Federal immigration law can create deportability issues for certain domestic violence crimes, stalking offenses, child abuse offenses, and certain protection-order violations. Whether a contempt or assault conviction is treated as a crime involving moral turpitude, an aggravated felony, or another removable offense depends on the exact statute, the record of conviction, the sentence, and the person’s immigration history.

Custody and Family Court 

A criminal contempt conviction involving a domestic violence OOP can affect custody and visitation when the conduct is relevant to the child’s safety and best interests. Custody and visitation cases are decided under the best-interest standard, and New York courts consider domestic violence when deciding custody or visitation.

Employment and Housing

A felony conviction can create barriers in employment, licensing, and housing, even when New York law limits how employers, licensing agencies, and many NYC housing providers may use criminal history. 

Key Takeaway: A criminal contempt conviction can affect more than sentencing. Immigration status, custody, employment, housing, and future record-sealing issues may all require careful review before a plea or sentencing decision.

Criminal Contempt Defense for Bronx OOP Violations

Facing criminal contempt charges under PL § 215.50, PL § 215.51, or PL § 215.52 can be serious, especially when the same incident also involves an assault charge. A conviction can affect immigration status, custody rights, and employment.

Attorney Colgan can review the order of protection, the alleged violation, the available evidence, and any related assault or domestic violence allegations. Our team can help you understand what you are facing, what defenses may be available, and what steps may help protect your interests as the case moves forward.

Call David Mejia Colgan, Esq. at (718) 484-8820 for a consultation. Our office is located at 910 Grand Concourse, Suite 1F, in the Bronx and serves clients throughout the Bronx and the greater New York City area.

Frequently Asked Questions

Is violating an order of protection a felony in New York?

Not every order of protection violation is a felony. A basic intentional violation may be charged as second-degree criminal contempt under PL § 215.50, a Class A misdemeanor. Felony treatment may apply when the allegations involve aggravating conduct, such as threats, repeated contact, qualifying physical contact, property damage over the statutory threshold, or a qualifying prior contempt conviction. Injury allegations that satisfy PL § 215.52’s required mental state, or certain repeated or contempt-related circumstances, may support aggravated criminal contempt under PL § 215.52.

What happens at arraignment for a contempt charge in the Bronx?

At arraignment, the court reviews the accusatory papers and addresses immediate issues such as release conditions, bail where legally available, remand, and any temporary order of protection. For a Bronx contempt charge, this first appearance can shape the early direction of the case, especially if the charge is felony-level or tied to a domestic violence allegation.

Can I be charged with both assault and criminal contempt?

An alleged OOP violation may support a criminal contempt charge, while proof of physical injury and the required mental state may support a separate third-degree assault charge under PL § 120.00. If the facts involve intentionally or recklessly causing physical injury or serious physical injury to the protected person, or qualifying repeated or contempt-related allegations, prosecutors may also evaluate aggravated criminal contempt under PL § 215.52.

Does a temporary order of protection count the same as a final order?

A temporary order of protection can be enforced while it remains in effect, even though it is not a final order. Violating a temporary or final order can lead to criminal contempt charges, with the charge level depending on the conduct, the order’s terms, and any prior contempt history.

What if I didn’t know the order was still in effect?

Lack of knowledge may be a defense in some cases, but it is highly fact-specific. The issue often depends on whether the defendant was present when the order was issued, properly served, or otherwise had actual knowledge of the order and its terms. Court records, service documents, and the language of the order are important to reviewing this defense.

Will a criminal contempt conviction affect my immigration status?

It can. Non-citizens should seek immigration-focused legal guidance before entering a plea in a contempt or domestic violence case. Immigration consequences depend on the specific conviction, sentence, record of conviction, and the person’s immigration history. Some domestic violence-related offenses and protection-order violations can create serious immigration risks.

How long does a criminal contempt case take in the Bronx?

There is no single timeline for a Bronx criminal contempt case. The length of the case can depend on whether the charge is a misdemeanor or felony, the available evidence, motion practice, plea discussions, court scheduling, and whether the case is resolved or moves toward trial. Felony contempt cases may take longer because they can involve additional proceedings in Bronx Supreme Court, Criminal Term.

Can a criminal contempt charge be reduced or dismissed in the Bronx?

It may be possible, but it depends on the facts, evidence, charge level, prior record, and negotiations with the DA. In some misdemeanor cases, an Adjournment in Contemplation of Dismissal may be considered if the required consent and court approval are obtained. Whether reduction, dismissal, or another resolution is available depends on the specific case.

from David Mejia Colgan, Esq https://dmclawny.com/blog/criminal-contempt-violating-order-of-protection-bronx/

How Does Strangulation in the Second Degree Under PL § 121.12 Differ From Criminal Obstruction of Breathing?

New York treats Criminal Obstruction of Breathing and Strangulation in the Second Degree as separate offenses, even though both may involve allegations that someone restricted another person’s breathing or blood circulation. The difference between the two charges can affect how the case is filed, where it proceeds, what penalties may apply, and how the defense should respond.

At the office of David Mejia Colgan, Esq., Attorney Colgan guides people facing charges under PL § 121.11 or PL § 121.12 through the legal process and the practical issues that may follow an arrest. As a Bronx domestic violence attorney, he helps clients understand the charge, evaluate the evidence, and respond to misdemeanor or felony allegations in Bronx courts.

This guide explains how PL § 121.11 and PL § 121.12 differ, how these charges are commonly handled in Bronx domestic violence cases, what penalties may apply, and how the evidence may be challenged. Contact our NY criminal defense lawyer at (718) 484-8820 to schedule a consultation.

What Is Criminal Obstruction of Breathing in New York?

Criminal Obstruction of Breathing or Blood Circulation under PL § 121.11 is a misdemeanor offense. Prosecutors must prove intentional pressure to the throat or neck, or blocking of the nose or mouth, that impeded normal breathing or blood circulation. Because the statute does not require proof of physical injury, the charge may be filed based on the complainant’s account, officer observations, a 911 call, visible redness, or other case-specific facts. A conviction carries up to 364 days in local jail.

Key Takeaway: PL § 121.11 focuses on intentional interference with breathing or blood circulation. It is a Class A misdemeanor, and no physical injury is required.

What Makes PL § 121.12 a Felony Instead?

Strangulation in the Second Degree under PL § 121.12 includes the conduct covered by Criminal Obstruction of Breathing or Blood Circulation, plus proof that the conduct caused stupor, loss of consciousness for any period of time, or another physical injury or impairment. 

Physical injury includes impairment of physical condition or substantial pain. That added injury or impairment element is what changes the case from a misdemeanor obstruction charge to a felony strangulation charge. Because PL § 121.12 adds a qualifying result element, the felony charge often turns on the evidence of injury, impairment, or altered consciousness.

What Must Prosecutors Prove for PL § 121.12?

• Loss of consciousness means the complainant blacked out, even briefly. Evidence may include the complainant’s account, witness observations, medical records, or other documentation of altered consciousness.
• Stupor generally involves significantly impaired awareness or a near-unconscious condition. In these cases, the issue is often whether the surrounding evidence supports that level of impairment.
• Substantial pain is one way to prove physical injury. In a strangulation case, claimed symptoms may include throat pain, difficulty swallowing, neck pain, breathing problems, or other signs that the complainant’s physical condition was impaired. The strength of that evidence depends on the duration, severity, and surrounding facts.

How Do Prosecutors Prove the Injury Element?

Prosecutors use several types of evidence to establish the felony injury or impairment element. Common examples include medical records from emergency room visits, 911 call recordings, photographs of visible injuries, witness or complainant statements, and medical testimony about breathing or blood-circulation impairment. The exact evidence depends on the facts of the case.

In some cases, the complainant’s statements to police may be the primary evidence supporting the felony charge, which means the strength of the prosecution may depend heavily on one witness whose credibility can be challenged.

How Do New York Penalties Compare Between the Two Charges?

The sentencing difference is substantial. The chart below compares the misdemeanor and felony charges by classification, proof requirements, incarceration exposure, and related consequences.

Key Difference	Criminal Obstruction (PL § 121.11)	Strangulation 2nd Degree (PL § 121.12)
Classification	Class A Misdemeanor	Class D Violent Felony
What prosecutors must prove	The defendant intentionally impeded breathing or blood circulation by pressure to the throat or neck, or by blocking the nose or mouth	The same conduct, plus proof that the conduct caused stupor, loss of consciousness for any period of time, or another physical injury or impairment
State-prison range if imposed	N/A	Generally 2 to 7 years
Post-Release Supervision	N/A	1.5 to 3 years if a determinate state-prison sentence is imposed
Predicate Felony Impact	No	Will affect future felony sentencing as a prior felony conviction; second violent felony sentencing scales up if a future conviction is also a violent felony.
Firearms Impact	Possible, depending on the case	Federal firearm prohibition and New York firearm-license disqualification apply after a felony conviction.
Order of Protection	Likely in domestic violence cases	Likely in domestic violence cases; the court will routinely issue a temporary or final order.

Beyond incarceration, the violent felony classification can affect firearm rights and future sentencing exposure. If a determinate state prison sentence is imposed, post-release supervision may also apply.

Key Takeaway: PL § 121.12 carries felony-level consequences that go beyond the jail exposure attached to PL § 121.11, including possible post-release supervision and collateral consequences after conviction.

If you are facing a felony strangulation charge, David Mejia Colgan can explain how sentencing applies in your specific case and what options may be available. 

How Are These Charges Filed in Bronx Domestic Violence Cases?

When officers have reasonable cause to believe that a qualifying felony was committed against a member of the same family or household, CPL § 140.10 requires an arrest. Mandatory arrest also applies to a misdemeanor family offense committed against a family or household member, unless the person against whom the offense was allegedly committed requests otherwise. However, officers may not ask whether that person wants an arrest, and the arrest decision cannot be based on whether that person is willing to testify or participate in court. The law also includes primary aggressor and justification provisions, so the arrest decision depends on the facts officers identify at the scene.

At the scene, officers may photograph visible injuries, take statements from the complainant and any witnesses, and note the complainant’s physical condition. If the complainant describes choking or pressure on the neck, officers may consider Criminal Obstruction of Breathing or Blood Circulation. If the complainant also describes losing consciousness, feeling dazed, significant pain, or another physical injury or impairment, officers may add Strangulation in the Second Degree.

Prosecutors may file both charges when the alleged facts support both statutes. This gives prosecutors charging flexibility while the injury or impairment evidence is evaluated. Felony strangulation cases may proceed through the grand jury and, if indicted, continue in Bronx Supreme Court, Criminal Term. In domestic violence cases, the court may also address orders of protection and case conditions involving ongoing family or household relationships.

Bronx Criminal Defense Attorney: David Mejia Colgan, Esq.

David Mejia Colgan, Esq.

David Mejia Colgan is a Bronx criminal defense attorney with more than 25 years of experience in criminal law. He earned his J.D. from New York University School of Law in 1998 and was admitted to practice in New York in 1999. Before entering private defense practice, Attorney Colgan began his career as an Assistant District Attorney in the Bronx County District Attorney’s Office, where he worked in the domestic violence and sex crimes bureaus, prosecuted serious felony matters, including homicides, and tried misdemeanor and felony cases.

Attorney Colgan represents people facing criminal charges in New York state and federal courts, including cases involving violent felony allegations, domestic violence accusations, and related criminal defense matters. His background also includes admission to the U.S. District Courts for the Southern, Eastern, Northern, and Western Districts of New York. Fluent in Spanish, Attorney Colgan works with English- and Spanish-speaking clients who need clear guidance when severe charges carry serious criminal and collateral consequences.

Can a New York Strangulation Charge Be Reduced or Dismissed?

A felony strangulation charge may be reduced or dismissed depending on the strength of the evidence. Reduction or dismissal often turns on whether the prosecution can prove the qualifying felony result, including stupor, loss of consciousness for any period of time, or another physical injury or impairment.

What Defenses Apply to the Felony Injury Element?

The felony-specific defense usually begins with the medical records, symptom timing, witness accounts, and consistency of the complainant’s statements.

Medical records are often the key battleground. If the complainant did not seek medical treatment, or if hospital records do not document objective signs of strangulation injury, the defense may argue that the evidence does not support the elevated charge. A significant delay between the alleged incident and the complainant’s description of symptoms can also create an opportunity to challenge the connection between the defendant’s alleged actions and the claimed injury. Inconsistencies between statements to responding officers and later testimony can further weaken the injury element.

What Defenses Apply to Both Charges?

Several defenses apply regardless of whether the charge is a misdemeanor or a felony, and each must be evaluated against the specific facts of the case.

• False allegations: In domestic violence cases, allegations sometimes arise during custody disputes, breakups, or arguments. Defense counsel investigates the circumstances surrounding the accusation.
• Lack of intent: Both PL § 121.11 and PL § 121.12 require intentional conduct. Accidental contact during a struggle does not satisfy the statute.
• Self-defense: New York law permits the use of reasonable physical force to defend oneself. If the defendant was responding to an attack, this defense may apply.
• Witness credibility: If the complainant is the sole witness and their account is inconsistent or contradicted by physical evidence, the defense challenges their credibility at trial or during plea negotiations.
• Limited corroboration: The absence of visible injury, medical documentation, or corroborating witnesses may affect negotiations or trial strategy, especially when the case depends primarily on one account.

Key Takeaway: Defense strategy often focuses on whether the evidence supports the level of impairment alleged. Terms such as “substantial pain” and “stupor” are fact-specific and may be contested through medical records, witness accounts, and inconsistencies in the complainant’s statements.

Does a PL § 121.12 Conviction Affect Your Record Long-Term?

A conviction under PL § 121.12 creates a violent felony record. Traditional application-based sealing under CPL § 160.59 is not available for violent felony offenses listed in PL § 70.02. New York’s Clean Slate Act, CPL § 160.57, created a separate automatic sealing process for some convictions after statutory waiting periods. For eligible felony convictions, the waiting period is generally eight years from release from incarceration, or from sentencing if there was no incarceration, provided the person meets the other statutory conditions. Even when sealing later becomes available, it may not erase every legal consequence or block every form of authorized access. A conviction may still affect firearm rights, future sentencing exposure, employment, housing, professional licensing, and other background checks.

For non-citizens, the consequences can be severe and must be reviewed before any plea. Depending on the facts, sentence, and immigration status, a strangulation conviction may create removal risks as a crime of domestic violence, a crime of violence, an aggravated felony if the legal requirements are met, or a crime involving moral turpitude. Non-citizens charged with PL § 121.12 should consult both a criminal defense attorney and an immigration attorney before resolving the case.

Key Takeaway: A PL § 121.12 conviction can create serious long-term consequences even when some form of sealing may later become available. It can still affect firearm rights, future sentencing exposure, immigration status, licensing, and other legally authorized background checks.

If you are concerned about the long-term impact of a strangulation charge, contact David Mejia Colgan to discuss defense strategies that may help reduce felony conviction risks or identify available alternatives. He can help you understand both the criminal and collateral consequences before any plea or trial decision is made.

How Does New York Define Strangulation in the First Degree?

Strangulation in the First Degree under PL § 121.13 is a Class C violent felony. While Second Degree requires stupor, loss of consciousness for any period of time, or another physical injury or impairment, First Degree requires serious physical injury. Serious physical injury involves a substantially greater level of harm, such as a substantial risk of death, protracted disfigurement, or protracted impairment of health or bodily function.

Legal Defense for Bronx Strangulation and Criminal Obstruction Charges

A Class D violent felony charge can create immediate pressure at arraignment, during grand jury proceedings, and throughout plea negotiations. Early defense work can help identify weaknesses in the medical evidence, witness statements, and charging theory before the case moves further through Bronx courts.

A strangulation or criminal obstruction case often depends on details that should be reviewed early, including the complaint, medical records, photographs, witness statements, 911 calls, and any inconsistencies in the timeline. Attorney Colgan can help identify whether the prosecution’s evidence supports the charge filed and what defense options may be available before the case moves further through the court.

Call David Mejia Colgan, Esq. at (718) 484-8820 to schedule a consultation. Our office is located at 910 Grand Concourse, Suite 1F, and serves clients throughout the Bronx, Manhattan, and Westchester. 

Frequently Asked Questions

Is strangulation in the second degree always charged as a felony in New York?

PL § 121.12 is a felony offense, and New York law treats Strangulation in the Second Degree as a Class D violent felony. There is no misdemeanor version of this specific statute, although plea negotiations may involve a lesser charge depending on the facts, evidence, and posture of the case.

What is the difference between PL § 121.11 and PL § 121.12 in plain terms?

PL § 121.11 focuses on intentional interference with breathing or blood circulation. PL § 121.12 involves the same underlying conduct, but the prosecution must also prove a qualifying result, such as stupor, loss of consciousness, or another physical injury or impairment.

Can I be charged with both PL § 121.11 and PL § 121.12 at the same time?

Prosecutors may file both charges when the alleged facts support both statutes. PL § 121.11 addresses the alleged breathing or blood-circulation obstruction, while PL § 121.12 depends on proof of the added injury, impairment, or altered-consciousness element.

Does the Complainant Have to Go to the Hospital for a PL § 121.12 Charge to Move Forward?

A hospital visit is not required for prosecutors to pursue PL § 121.12. However, medical records, or the lack of them, may become important when the defense challenges whether the alleged symptoms meet the felony standard.

What happens at arraignment for a strangulation felony charge?

At arraignment, the court addresses the charge, counsel, release conditions, and any request for a temporary order of protection. Depending on the facts and the charge filed, the court may release the defendant, impose conditions, set bail where authorized, or order remand in a qualifying case. If prosecutors pursue an indictment, the case may later move toward grand jury presentation.

How does a strangulation felony affect immigration status?

A PL § 121.12 conviction can create serious immigration risks for non-citizens. Depending on the facts, sentence, and immigration status, the case may raise issues involving removability, inadmissibility, domestic violence grounds, crime-of-violence analysis, aggravated felony analysis, or moral-turpitude concerns. Non-citizens should review immigration consequences with qualified counsel before entering any plea.

Can a first-time offender avoid prison on a PL § 121.12 charge?

A first-time offender may have defense or plea options, but the outcome depends on the evidence, criminal history, alleged injury, and prosecution position. Because PL § 121.12 is a violent felony, any prison exposure must be taken seriously. In some cases, negotiations may focus on reducing the charge or resolving the case under a different offense.

How long does a strangulation case take to resolve in Bronx courts?

There is no fixed timeline. A felony strangulation case may involve arraignment, grand jury presentation, discovery, motions, plea discussions, and trial preparation. The pace depends on the court calendar, the evidence, whether an indictment is filed, and whether the case resolves by plea or trial.

from David Mejia Colgan, Esq https://dmclawny.com/strangulation-second-degree-pl-121-12/

What Is Criminal Obstruction of Breathing Under NY Penal Law § 121.11 and How Is It Charged in Bronx DV Cases?

NY Penal Law § 121.11 makes it a Class A misdemeanor to apply pressure to a person’s throat or neck, or block their nose or mouth, with the intent to impede their normal breathing or blood circulation. In Bronx domestic violence cases, prosecutors charge this offense frequently, sometimes alongside assault, sometimes instead of it. Mandatory arrest policies, orders of protection, and serious collateral consequences make this charge much more serious in practice than its misdemeanor classification suggests.

Bronx domestic violence attorney David Mejia Colgan, Esq., is a former Assistant District Attorney in the Bronx County District Attorney’s Office with more than 30 years of criminal law experience. He defends clients charged under § 121.11 in Bronx Criminal Court and Bronx County Supreme Court, serving clients throughout the Bronx, Riverdale, and surrounding boroughs.

In this guide, you will learn how Bronx prosecutors build § 121.11 cases, what evidence they rely on, and what defenses may apply. You will also see how these charges can escalate to felony strangulation allegations, what to expect after an arrest, and how early legal intervention can affect the outcome of your case.

If you are facing a criminal obstruction of breathing charge in the Bronx, David Mejia Colgan, Esq. can help you understand your options and protect your rights. Call us at (718) 484-8820 for a confidential consultation.

What Does NY Penal Law § 121.11 Actually Prohibit?

Under NY Penal Law § 121.11, a person commits criminal obstruction of breathing or blood circulation when they apply pressure to another person’s throat or neck, or block their nose or mouth, with the specific intent to impede that person’s normal breathing or blood circulation. 

The intent requirement is a key element: accidental contact during a struggle does not meet this standard. The prosecution must prove the defendant specifically meant to restrict the other person’s ability to breathe or their blood flow. Furthermore, the prosecution does not have to prove that breathing was successfully stopped, only that the defendant performed the act with the intent to do so. 

No physical injury is required. The law criminalizes the act itself, not the result. Even if the complainant has no visible marks, bruises, or medical symptoms, the charge can still stand. This makes § 121.11 different from assault charges, which generally require proof of physical pain or injury. 

How Does New York Classify and Punish This Offense?

Criminal obstruction of breathing is a Class A misdemeanor, the most serious misdemeanor classification under New York law. A conviction carries a maximum sentence of 364 days in jail, a probation term of two or three years, and a fine of up to $1,000.

These charges do not always stay at the misdemeanor level. If prosecutors allege that the obstruction caused stupor, loss of consciousness for any period of time, or any other physical injury or impairment, they may seek a felony strangulation charge under § 121.12, a Class D felony carrying up to seven years in prison. If serious physical injury results, the charge can become Strangulation in the First Degree under § 121.13, a Class C felony punishable by up to 15 years.

Charge	Statute	Level	Max Jail/Prison	Max Fine
Criminal Obstruction of Breathing	§ 121.11	Class A Misdemeanor	364 days	$1,000
Strangulation 2nd Degree	§ 121.12	Class D Felony	7 years	$5,000
Strangulation 1st Degree	§ 121.13	Class C Felony	15 years	$5,000 or double the defendant’s gain from the offense, whichever is higher

Key Takeaway: Criminal obstruction of breathing is a misdemeanor, but charges may be elevated to felony strangulation under § 121.12 or § 121.13 when qualifying harm is alleged. A misdemeanor arrest can develop into a felony case if prosecutors believe the evidence supports § 121.12 or § 121.13.

How Is This Charge Used in Bronx Domestic Violence Cases?

The Bronx District Attorney‘s Office treats § 121.11 as a domestic violence offense whenever the accused and the complainant are intimate partners, family members, or members of the same household, triggering additional legal consequences beyond the charge itself. This classification activates mandatory arrest protocols and prosecution by the DA’s specialized Domestic Violence Bureau.

Under CPL § 140.10, police officers generally must make an arrest when they have reasonable cause to believe a felony family offense has occurred. For misdemeanor family offenses, mandatory arrest applies unless the victim requests otherwise, and officers cannot ask whether the victim wants an arrest. The statute also recognizes primary-aggressor and justification exceptions.

At arraignment, the court may issue a temporary order of protection (OOP), and prosecutors commonly request one in Bronx DV cases. This order can require the defendant to leave a shared home, stay away from the complainant, and have no contact, including phone calls, texts, and messages through third parties. Violating the OOP is a separate criminal offense.

The Bronx DA’s Domestic Violence Bureau may prosecute domestic violence cases regardless of the complainant’s cooperation when appropriate. More precisely, the complainant cannot unilaterally drop the charge; dismissal depends on the prosecutor and the court.

Key Takeaway: When § 121.11 is charged as a domestic violence offense in the Bronx, it activates mandatory arrest protocols, commonly requested temporary orders of protection, and prosecution by the Bronx DA’s specialized Domestic Violence Bureau. These procedures may apply even if the complainant does not want to participate in the prosecution.

What Must the Bronx Prosecutor Prove to Convict?

To secure a conviction under § 121.11, the Bronx DA must prove two key elements beyond a reasonable doubt:

1. The defendant applied pressure to the complainant’s throat or neck, or blocked the complainant’s nose or mouth.
2. The defendant did so with the specific intent to impede the complainant’s normal breathing or blood circulation.

The intent element is often the most contested part of the case. If the defendant’s hand made contact with the complainant’s neck during a mutual struggle, but the defendant did not intend to restrict breathing, the prosecution has not met its burden. Similarly, if contact occurred while the defendant was trying to calm someone down, the statutory intent element may be lacking

What Evidence Do Bronx DAs Typically Present?

Bronx prosecutors build § 121.11 cases using several types of evidence, including 911 recordings, medical records, photographs, witness statements, and prior statements from the complainant.

• 911 recording: Statements made during a call may be admissible if they satisfy a hearsay exception, such as excited utterance, and do not violate the Confrontation Clause
• Medical records: Hospital documentation of petechial hemorrhaging, redness, bruising, or swelling around the neck
• Photographs: Images taken by police at the scene or hospital showing marks or injuries
• Witness statements: Testimony from neighbors, family members, or responding officers
• Prior statements: Written or recorded statements the complainant gave to police before changing their mind about cooperating

Cases can proceed even without visible marks because § 121.11 does not require injury. Prosecutors may rely on the complainant’s initial account along with evidence such as 911 recordings, photographs, medical records, or witness testimony.

Does the Complainant Have to Testify?

No. The Bronx DA’s Domestic Violence Bureau routinely prosecutes § 121.11 cases without the complainant’s cooperation. Under a no-drop approach, the prosecution evaluates the evidence independently and decides whether to proceed.

If a complainant recants, prosecutors can still use prior statements in certain circumstances. Under the framework established in Crawford v. Washington, 541 U.S. 36 (2004), testimonial statements generally require cross-examination. Some 911 statements may be treated as non-testimonial when their primary purpose is to address an ongoing emergency; they must still satisfy a hearsay exception, such as excited utterance, before they can be admitted.

In rare cases, prosecutors invoke the doctrine of “forfeiture by wrongdoing,” arguing that the defendant’s own conduct caused the complainant’s unavailability. If the court finds that the defendant intentionally caused the complainant’s unavailability for trial, even testimonial statements may be admitted under forfeiture by wrongdoing.

Key Takeaway: Bronx prosecutors may pursue § 121.11 charges without the complainant’s cooperation if they have admissible evidence, such as qualifying 911 recordings, medical records, photographs, or other witnesses.

Bronx Domestic Violence Defense Lawyer – David Mejia Colgan, Esq.

David Mejia Colgan, Esq.

David Mejia Colgan, Esq. is a Bronx domestic violence attorney with more than 30 years of experience in criminal law, including service as a former Assistant District Attorney in the Bronx County District Attorney’s Office. During his time as a prosecutor, he worked in the domestic violence and sex crimes bureaus and handled serious felony cases, giving him firsthand insight into how these cases are investigated, charged, and tried. He now uses that experience to defend clients facing domestic violence allegations in Bronx Criminal Court and throughout New York.

He has represented hundreds of clients in misdemeanor and felony cases, as well as in related family court matters such as orders of protection, custody, and family offenses. Fluent in Spanish and admitted to practice in multiple federal courts across New York, David is known for his trial experience, client-focused approach, and ability to guide clients through difficult and high-stakes domestic violence cases.

What Defenses Apply to NY § 121.11 Charges?

Because § 121.11 does not require proof of injury, the defense often centers on what actually happened and whether the prosecution can prove intent. Several recognized defenses apply in these cases.

• Lack of intent is a primary defense. If the contact was accidental or occurred during mutual physical contact without a specific intent to restrict breathing, the prosecution cannot meet its burden.
• False accusations may arise in DV cases. Custody disputes, contentious breakups, and housing conflicts can motivate a complainant to fabricate or exaggerate allegations. The defense focuses on the complainant’s credibility, prior inconsistent statements, and motive to lie.
• Legal insufficiency of the accusatory instrument is a procedural defense. The misdemeanor complaint or information must contain enough factual detail to establish every element of the offense. If the complaint merely states a legal conclusion without supporting facts, the defense can move to dismiss.

Can Self-Defense Apply in These Cases?

Yes. Under NY Penal Law § 35.15, a person may use physical force to defend themselves when they reasonably believe it is necessary to protect against the imminent use of unlawful physical force. This justification defense applies in DV cases just as it does in other contexts.

However, the force used must be proportional to the threat, and the person claiming self-defense generally cannot have been the initial aggressor. Raising justification in a DV strangulation case requires strong supporting evidence, such as injuries to the defendant, witness testimony, or inconsistencies in the complainant’s account.

Key Takeaway: Common defenses to § 121.11 include lack of intent, self-defense, false accusation, and challenging the legal sufficiency of the complaint. Because no injury is required to charge the offense, the defense often centers on the credibility of the complainant and the specific facts alleged.

What Happens After a § 121.11 Arrest in the Bronx?

After a § 121.11 arrest, you may be held for arraignment rather than released with a Desk Appearance Ticket, especially when the arrest is treated as a mandatory family-offense arrest under CPL § 140.10.

Arraignment in Bronx Criminal Court typically occurs within 24 hours of arrest. At arraignment, the judge decides release conditions, including whether bail is legally available and appropriate, and may issue a temporary order of protection. In DV cases, prosecutors commonly request an OOP at the first appearance.

After the arraignment, the Bronx DA’s Domestic Violence Bureau reviews the case. If the office believes the evidence supports a felony charge, prosecutors can present the case to a grand jury for indictment under § 121.12 or § 121.13. This felony upgrade can happen at any point before the misdemeanor case is resolved.

Misdemeanor DV cases in Bronx Criminal Court often take several months to over a year to resolve, depending on the evidence, whether charges are upgraded, and the progress of plea negotiations or motion practice. The order of protection may remain in effect while the case is pending unless it is modified, vacated, or allowed to expire.

Key Takeaway: After a § 121.11 arrest in the Bronx, you will be arraigned in Bronx Criminal Court, usually within 24 hours, where a temporary order of protection will be issued. The case may be handled by the Bronx DA’s Domestic Violence Bureau, and felony charges can be added before the case is resolved.

How Does a Conviction Affect You Beyond Jail Time?

A § 121.11 conviction, even as a misdemeanor, carries collateral consequences that often cause more long-term harm than the sentence itself. These consequences can affect your immigration status, right to own firearms, child custody rights, and career.

• Federal firearms prohibition: Under 18 U.S.C. § 922(g)(9), a person convicted of a qualifying misdemeanor crime of domestic violence is prohibited from possessing firearms or ammunition under federal law. Whether relief is available depends on the conviction, jurisdiction, and later legal proceedings, so defendants should get case-specific advice.
• Immigration consequences: A qualifying domestic violence conviction, even a misdemeanor, can trigger removal proceedings and affect naturalization, visa applications, and other immigration benefits. Non-citizens facing § 121.11 charges should consult with both a criminal defense attorney and an immigration attorney immediately.
• Child custody impact: When domestic violence allegations are properly raised and proven by a preponderance of the evidence, New York custody courts must consider their effect on the child’s best interests. A § 121.11 conviction can affect custody or visitation, but outcomes are case-specific.
• Employment and licensing: A misdemeanor conviction appears on background checks and can disqualify applicants from certain jobs, professional licenses, and government positions. These employment consequences can follow a person long after any jail time or probation has been completed.

Key Takeaway: A conviction under § 121.11, even as a misdemeanor, can trigger federal firearms prohibitions, immigration consequences including deportation, and lasting damage to child custody rights and employment prospects. These collateral consequences often exceed the direct criminal penalties.

Consult a Bronx Domestic Violence Attorney Today

If you have been arrested for criminal obstruction of breathing, you may already be dealing with an order of protection that bars you from your home, your family, and your normal life. Early legal intervention gives your attorney the best opportunity to challenge the evidence, contest the OOP, and prevent a felony upgrade.

David Mejia Colgan, Esq., has defended clients charged with criminal obstruction of breathing and domestic violence offenses throughout the Bronx for more than 30 years. As a former ADA who worked in the Bronx County DA’s domestic violence bureau, he understands exactly how prosecutors build these cases and where they are challenged.

Call David Mejia Colgan at (718) 484-8820. Our office is located at 910 Grand Concourse, Suite 1F, in the Bronx, serving clients throughout the Bronx, Riverdale, and the surrounding boroughs.

Frequently Asked Questions for a Domestic Violence Lawyer in New York

Is criminal obstruction of breathing a felony in New York?

No. NY Penal Law § 121.11 is a Class A misdemeanor. However, prosecutors can upgrade charges to felony strangulation under § 121.12 or § 121.13 if physical injury or serious physical injury is alleged.

Can I be charged under § 121.11 if no marks were left?

Yes. The statute requires only the intentional act of impeding breathing or blood circulation. No visible injury, bruising, or marks are needed for the charge to stand, and cases are regularly prosecuted without physical evidence of injury.

What is the difference between § 121.11 and strangulation?

Section 121.12 applies when § 121.11 conduct causes stupor, loss of consciousness for any period of time, or any other physical injury or impairment.

Will the case be dropped if the complainant recants?

Not automatically. The Bronx DA’s Domestic Violence Bureau can proceed using prior statements, 911 recordings, and medical evidence without the complainant’s testimony or cooperation, and routinely does so.

Does a § 121.11 conviction affect immigration status?

A qualifying domestic violence conviction can make a non-citizen deportable and may affect naturalization or other immigration benefits. Non-citizens should consult both criminal defense and immigration counsel before resolving a § 121.11 case.

Can I own a firearm after a § 121.11 conviction?

Possibly not. If the conviction qualifies as a misdemeanor crime of domestic violence under federal law, 18 U.S.C. § 922(g)(9) generally bars possession of firearms or ammunition. Eligibility can depend on the relationship, the conviction, and later relief such as expungement, pardon, rights restoration, or the limited dating-relationship exception.

What does an order of protection mean for my living situation?

A temporary OOP issued at arraignment may require you to leave a shared home immediately, have no contact with the complainant, and stay away from the complainant’s home, school, and workplace. Violating the order is a separate criminal offense that can result in additional charges and immediate arrest.

from David Mejia Colgan, Esq https://dmclawny.com/criminal-obstruction-breathing-pl-121-11/

What Makes a Domestic Violence Assault First-Degree Under NY Penal Law § 120.10?

A domestic violence assault becomes first-degree under New York Penal Law § 120.10 when the accused allegedly causes serious physical injury using a deadly weapon, acts with intent to permanently disfigure, shows depraved indifference to human life, or causes serious injury during the commission of another felony. This is the most severe assault charge in New York, and a conviction carries a mandatory minimum of five years in state prison. However, prosecutors must prove each element beyond a reasonable doubt, and several defenses may apply depending on the circumstances of the case.

Bronx domestic violence defense attorney David Mejia Colgan Esq. provides clients facing domestic violence charges with hands-on representation from a former prosecutor who understands how these cases are built. Our team works to challenge the evidence, protect your rights, and pursue the best possible outcome in Bronx courts and throughout New York City.

This guide explains the four ways prosecutors can charge first-degree assault in a domestic violence case and how the law defines key terms like “serious physical injury” and “deadly weapon.” If you are facing a first-degree domestic violence assault charge in New York, contact David Mejia Colgan, Esq. to protect your rights and begin building your defense. Call (718) 484-8820 today to schedule a confidential consultation.

What Are the Four Elements of First-Degree Assault in New York?

New York Penal Law § 120.10 sets out four distinct ways a person can be charged with assault in the first degree. Each subsection requires different proof, and all involve grave injury allegations, but the required injury language differs by subsection. Subsections one, three, and four expressly require ‘serious physical injury,’ while subsection two requires serious and permanent disfigurement or the permanent destruction, amputation, or disabling of a member or organ. 

In a domestic violence case, the relationship between the accused and the alleged victim does not change the elements of the offense, but it can affect how the case is processed through the court system.

Under subsection one, the prosecution must prove that the defendant intended to cause serious physical injury and did cause such injury using a deadly weapon or dangerous instrument. Under subsection two, the prosecution must prove intent to permanently disfigure another person or to destroy, amputate, or permanently disable a body part, and that the defendant actually caused that type of injury. 

Subsection three covers situations where someone acted with depraved indifference to human life, recklessly engaged in conduct creating a grave risk of death, and caused serious physical injury as a result. Subsection four applies when, in the course of and in furtherance of a felony or attempted felony, or during immediate flight from it, the defendant or another participant causes serious physical injury to someone other than a participant.

Each of these subsections requires the prosecution to establish a specific mental state. Understanding the differences between these four paths is critical to building an effective defense.

Key Takeaway: First-degree assault under NY Penal Law § 120.10 can be charged in four ways, each requiring proof of serious physical injury plus a specific mental state or circumstance. The prosecution must prove every element beyond a reasonable doubt.

How Does New York Define “Serious Physical Injury”?

The distinction between “physical injury” and “serious physical injury” is one of the most important factors in any assault case. Under New York Penal Law § 10.00(10), serious physical injury means physical injury that creates a substantial risk of death, causes death, results in serious and protracted disfigurement, causes protracted impairment of health, or leads to protracted loss or impairment of a bodily organ’s function.

This is a higher bar than ordinary “physical injury,” which under Penal Law § 10.00(9) means impairment of physical condition or substantial pain. The word “protracted” is key in distinguishing between the two standards.

A broken nose that heals normally within a few weeks may qualify as a physical injury, but may not meet the threshold of serious physical injury. A broken bone requiring surgery and months of recovery, scarring that permanently alters someone’s appearance, or an injury that impairs the function of an organ for an extended period would more likely qualify.

In domestic violence cases, prosecutors often rely on medical records to establish the severity of the injury. The defense may challenge whether the injuries actually meet the statutory definition. If the injuries do not rise to the level of serious physical injury, a first-degree assault charge may not stand, though lesser charges could still apply.

Key Takeaway: Serious physical injury requires a substantial risk of death, protracted disfigurement, or extended impairment of health or organ function. This is a much higher standard than ordinary physical injury, and the distinction can determine whether a case is charged as a felony or a misdemeanor.

What Qualifies as a Deadly Weapon or Dangerous Instrument?

Under Penal Law § 120.10(1), the prosecution must prove the defendant used a deadly weapon or dangerous instrument to cause serious physical injury. New York law draws a specific distinction between these two categories.

What Is a Deadly Weapon Under New York Law?

New York Penal Law § 10.00(12) defines a deadly weapon as any loaded weapon from which a shot capable of producing death or serious physical injury may be discharged. The definition also specifically includes switchblade knives, pilum ballistic knives, metal knuckle knives, daggers, billies, blackjacks, plastic knuckles, and metal knuckles. These items are considered deadly weapons by their very nature, regardless of how they are used in a particular incident.

The key point is that the statutory list of deadly weapons is relatively narrow. Many everyday objects, such as baseball bats, hammers, and many kitchen knives, are not per se deadly weapons under this definition. Depending on the object and the circumstances, they may instead qualify as dangerous instruments. Some knives, however, can fall within the statutory deadly-weapon list, such as a dagger.

What Is a Dangerous Instrument?

Penal Law § 10.00(13) defines a dangerous instrument as any instrument, article, or substance that, under the circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable of causing death or other serious physical injury. This is a much broader category than deadly weapons because it depends on context rather than the nature of the object itself.

New York courts have found that everyday household objects can qualify as dangerous instruments when used in a way that could cause serious injury or death. In domestic violence cases, this can include items such as kitchen knives, heavy pans, bottles, or even a vehicle. The prosecution must demonstrate not just that the object was present but that it was actually used in a manner capable of causing serious harm.

Key Takeaway: A deadly weapon is defined by a specific statutory list in Penal Law § 10.00(12). A dangerous instrument is any object that becomes capable of causing death or serious injury based on how it is used. The distinction matters because different subsections of the assault statute require different types of proof.

Domestic Violence Defense Attorney in the Bronx – David Mejia Colgan Esq.

David Mejia Colgan, Esq.

David Mejia Colgan, Esq., is a Bronx domestic violence attorney and former Assistant District Attorney with over 30 years of experience in criminal law. After graduating from New York University School of Law in 1998, he served as an Assistant District Attorney in the Bronx County District Attorney’s Office, where he worked in the domestic violence and sex crimes bureaus and handled felony trials. Before joining the Bronx County DA’s Office, he served as second chair on five homicide trials as an intern with the Kings County District Attorney’s Office.

Mr. Colgan is focused on defending clients in criminal cases at the local, city, state, and federal levels. He is fluent in Spanish and known for providing direct, personal representation where every client works with him rather than being passed to junior associates.

What Does “Depraved Indifference to Human Life” Mean?

Penal Law § 120.10(3) covers situations where the defendant did not necessarily intend to injure anyone but acted with such extreme recklessness that the conduct showed a depraved indifference to human life. This subsection does not require proof of intent to harm. Instead, the prosecution must prove that the defendant recklessly engaged in conduct creating a grave risk of death and that serious physical injury resulted.

New York courts have interpreted depraved indifference as something more than ordinary recklessness. The conduct must be so wanton and deficient in moral sense that it amounts to an indifference to the value of human life. This is a high standard that goes beyond simply acting carelessly or even recklessly. The defendant’s behavior must reflect an utter disregard for the likelihood that someone could die.

Prosecutors may invoke this subsection when the alleged conduct involves extreme behavior that created a substantial risk of death, even if the accused did not specifically intend to injure the other person. Challenging this charge often involves questioning whether the conduct truly met the legal threshold for depraved indifference or whether it was more accurately characterized as ordinary recklessness.

Key Takeaway: Depraved indifference requires more than recklessness. The prosecution must prove the defendant’s conduct created a grave risk of death and demonstrated an utter disregard for human life. This is one of the most difficult elements for prosecutors to establish.

What Are the Penalties for First-Degree Assault in New York?

First-degree assault is classified as a Class B violent felony under New York law. The sentencing consequences are severe and carry mandatory prison time, meaning a judge cannot substitute a lesser sentence even if mitigating circumstances exist.

Offender Status	Minimum Sentence	Maximum Sentence
First-time offender (no prior felonies)	5 years in prison	25 years in prison
Second violent felony offender	10 years in prison	25 years in prison
Persistent violent felony offender	20 years in prison	Life in prison

Under New York Penal Law § 70.02, the court must impose a determinate sentence for a violent felony offense. For a Class B violent felony, the minimum term is five years, and the maximum is twenty-five years. A person with a prior violent felony conviction faces enhanced minimums under the predicate felony sentencing rules.

Beyond prison time, a conviction may also result in a fine of up to $5,000 in many cases, a $300 mandatory surcharge, a $25 crime victim assistance fee, restitution, and a court-imposed period of post-release supervision. For a class B violent felony sentenced under Penal Law § 70.02, post-release supervision is generally 2.5 to 5 years.

Key Takeaway: A first-degree assault conviction carries a mandatory minimum of five years in state prison. Enhanced penalties apply for repeat offenders, and the conviction cannot be sealed. Fines, surcharges, restitution, and orders of protection may also be imposed.

What Defenses Can Apply to a Domestic Violence First-Degree Assault Charge?

Several legal defenses may apply to a first-degree assault charge in a domestic violence case, depending on the specific facts involved. A defense attorney can evaluate the evidence and determine which strategies are most appropriate.

• Justification (self-defense): Under New York Penal Law § 35.15, a person may use physical force to defend themselves against what they reasonably believe to be the use or imminent use of unlawful physical force. This defense requires showing that the defendant believed force was necessary and that the level of force used was reasonable under the circumstances.
• Challenging the severity of injury: If the injuries do not meet the legal definition of serious physical injury, the charge may be reduced to a lesser offense, such as assault in the second or third degree.
• Lack of intent: For subsections one and two of Penal Law § 120.10, the prosecution must prove specific intent. Evidence that the defendant did not intend to cause serious physical injury or permanent disfigurement can undermine the charge.
• Challenging the weapon classification: If the prosecution cannot prove the object used qualifies as a deadly weapon or dangerous instrument under the statutory definitions, the first-degree charge under subsection one may not be sustainable.
• False or exaggerated allegations: Domestic violence cases sometimes involve allegations influenced by custody disputes, divorce proceedings, or other personal conflicts. A defense attorney can investigate the circumstances and credibility of the accusations.
• Insufficient evidence: The prosecution bears the burden of proving every element beyond a reasonable doubt. Weak physical evidence, inconsistent witness statements, or unreliable medical documentation can all be grounds for challenging the case.

Key Takeaway: Defenses to first-degree DV assault may include self-defense, challenging the severity of injuries, disputing intent, questioning weapon classifications, and exposing false allegations. The right defense strategy depends on the specific facts of each case.

Speak with an Experienced Bronx Domestic Violence Lawyer Today

A first-degree assault charge in a domestic violence case can change the course of your life. The mandatory minimum prison sentence, the immediate order of protection, and the permanent criminal record all carry consequences that extend far beyond the courtroom.

Bronx domestic violence attorney David Mejia Colgan has over 30 years of experience in criminal law, including years as an Assistant District Attorney in the Bronx County DA’s Office, where he handled domestic violence and sex crimes cases. His prosecutorial background gives him direct insight into how the District Attorney’s Office builds these cases and where those cases can be challenged. 

Call David Mejia Colgan, Esq. at (718) 484-8820 to schedule a consultation. Our office is located at 910 Grand Concourse, Suite 1F, in the Bronx, and we serve clients throughout New York.

from David Mejia Colgan, Esq https://dmclawny.com/assault-first-degree-pl-120-10-domestic-violence/