A criminal charge can follow someone for months—or longer—while the prosecution continues to insist that the defendant either plead guilty or face the consequences of going to trial.
But an offer is just that – an offer.
Recently, our office represented a client charged with Criminal Obstruction of Breathing or Blood Circulation under New York Penal Law § 121.11. Under New York law, the charge is a Class A misdemeanor and generally alleges that a person intentionally impeded another person’s normal breathing or blood circulation by applying pressure to the throat or neck, or by blocking the nose or mouth.
From the beginning, our client was adamant about one thing; his innocence. And throughout the case, we maintained that position.
The Offer: Plead Guilty and Serve Nine Months in County Jail
For an entire year, the prosecution’s position remained essentially unchanged. The offer was to plead guilty as charged and serve nine months in jail, which is not much of an offer…
That was not an acceptable resolution for a client who consistently maintained that he did not commit the offense. It would have been easier to repeatedly encourage the client to take the offer simply because it had been on the table for so long.
We did not.
Instead, we continued preparing the case, challenging the prosecution’s evidence and set the case down for a jury trial. Both sides were ready to proceed, as the Prosecution had a complaining witness who wanted her day in Court.
We Prepared to Try the Case
When a defendant maintains his or her innocence, an attorney has to be prepared to do more than negotiate. Sometimes that means telling the prosecution no. It means reviewing the evidence carefully, identifying weaknesses in the People’s case, preparing witnesses and cross-examination, and being genuinely willing to put the case before a judge or jury.
That is what we did.
The case was scheduled for trial, and our office continued preparing to defend our client in court. Then, just days before trial, the District Attorney’s Office conveyed an entirely different resolution; An Adjournment in Contemplation of Dismissal.
An Adjournment in Contemplation of Dismissal—commonly called an ACOD—allows a criminal case to be adjourned with the expectation that the charge will ultimately be dismissed if the required conditions are satisfied, that being staying out of trouble for a period of time. Most of the time, the case is adjourned for six months and then dismissed. In this case, as it was labeled a DV or Domestic Violence matter, the adjournment period is for one year. Importantly, the granting of an ACOD is not a conviction or an admission of guilt. See CPL § 170.55
Our client accepted the ACOD.
The difference between the prosecution’s position for approximately a year and the resolution ultimately offered immediately before trial could hardly have been greater:
Nine months in jail and a criminal conviction
versus
No guilty plea and an ACOD leading toward dismissal
Why Being Willing to Go to Trial Matters
Not every criminal case should go to trial and not every offer should be rejected.
A good criminal defense attorney must evaluate the evidence, explain the risks and benefits of every available option, and allow the client to make an informed decision.
But there is an equally important principle… A defendant should not be pressured into accepting a bad resolution simply because fighting the case is difficult.
Trial preparation changes cases.
When prosecutors know that the defense attorney is prepared, knows the evidence, understands the weaknesses in the case, and is actually willing to select a jury and try the case, negotiations can look very different than they did months earlier.
That does not mean every case will result in an ACOD or dismissal. Every criminal case is different, and no attorney can guarantee a particular outcome. It does mean that defendants deserve an attorney who is prepared to keep fighting when the facts and circumstances warrant it.
Criminal Obstruction of Breathing Charges Are Serious
Criminal Obstruction of Breathing or Blood Circulation is prosecuted under Penal Law § 121.11 and is classified as a Class A misdemeanor.
Despite being labeled a misdemeanor, an allegation involving choking or interference with someone’s breathing can have significant consequences. Depending upon the circumstances of the case, a conviction can affect employment, professional licensing, immigration concerns, orders of protection and a defendant’s criminal record.
These cases are also often fact-intensive.
Questions may include:
- What exactly does the complainant allege occurred?
- Are there injuries or photographs?
- Were there eyewitnesses?
- Are the statements consistent with one another?
- Is there body-worn camera footage?
- Were statements made immediately after the alleged incident?
- Is there medical evidence?
- Does the physical evidence actually support the allegations?
- Are there credibility issues or motives that require investigation?
The mere fact that someone has been charged does not mean that the allegation has been proven. The prosecution still bears the burden of proving the case beyond a reasonable doubt.
Do Not Assume the First Offer Is the Final Outcome
One of the most important lessons from this case is that the prosecution’s initial position is not necessarily where the case will end. Here, the offer remained as charged plus nine months of jail for approximately one year. Our client maintained his innocence.
We continued forward and picked a jury selection date to commence trial.
And only days before that trial was scheduled to begin, the prosecution offered an ACOD.
That is a dramatic change in outcome—and one that would never have been reached if the client had simply accepted a resolution he believed was unjust months earlier.
Charged With Criminal Obstruction of Breathing on Long Island?
If you have been charged with Criminal Obstruction of Breathing or Blood Circulation, Penal Law § 121.11, or another misdemeanor or domestic-violence-related offense in Nassau or Suffolk County, the allegations should be carefully examined before you decide how to proceed.
You should understand the evidence against you, the weaknesses in the prosecution’s case, the potential consequences of a conviction, and whether the offer being made is truly the best possible resolution.
Most importantly, you should have an attorney who is prepared to negotiate when negotiation makes sense—and who is also prepared to fight when it does not.
The Law Office of Siara Ossa, PLLC represents individuals charged with criminal offenses throughout Nassau County, Suffolk County and Long Island.
Prior results do not guarantee a similar outcome. Every case is different and must be evaluated based upon its individual facts and circumstances.