New York Appellate Division Rules on Erotic Asphyxiation Case

A unanimous four-judge panel of the New York Appellate Division, 2nd Department, based in Brooklyn, ruled that a jury erred in convicting Larry Davis of second degree murder in the death of his sexual partner, Richard McCoy, from asphyxiation. Finding that a jury could reasonably have acquitted Davis of the murder charge, the court reduced the conviction to manslaughter in the second degree and sent the case back to the trial judge, Justice Dineen Riviezzo of Kings County Supreme Court.

According to the court’s opinion, McCoy was found dead in his apartment on August 19, 2010, with a “piece of clothing around his neck.” Davis told the police that “he tied a piece of clothing around the victim’s neck and that he tightened it while they were engaging in sexual conduct to enhance sexual pleasure.” Davis told the police that “he pulled harder on the piece of clothing because he was ‘pissed off’ due to his own inability to reach orgasm and that he failed to realize that the ligature was ‘dangerous’ to the victim, and that he ‘didn’t mean it’.”

The medical examiner testified at trial that McCoy died by strangulation, that it would have taken fifteen seconds for McCoy to lose consciousness if sufficient pressure was applied to his neck by the piece of clothing, and that death would have occurred after three more minutes of pressure.

The jury returned a verdict of second degree murder. In order to reach that verdict, the jury had to find beyond a reasonable doubt that Davis intended to kill McCoy. On appeal, Davis argued that the verdict was against the weight of the evidence. Davis argued that the only evidence going to motive that was presented to the jury was his statement to the police that he did not intend to kill McCoy.

“Weight of evidence review requires a court first to determine whether an acquittal would not have been unreasonable,” wrote the court. “If so, the court must weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions. Based on the weight of the credible evidence, the court then decides whether the jury was justified in finding the defendant guilty beyond a reasonable doubt.”

Concluding that the jury’s verdict was against the weight of the evidence in this case, the court found that “an acquittal would not have been unreasonable.” Although the evidence showed beyond reasonable doubt that “the defendant tied a ligature around the victim’s neck, that he tightened it, and that his actions caused the victim’s death,” the court found that the prosecution had not proved beyond a reasonable doubt that it was Davis’s “conscious objective” to kill McCoy.

“The evidence supports a finding that the defendant, while engaging in sexual conduct with the victim, acted recklessly by continuing to hold the ligature around the victim’s neck with sufficient force and for a sufficient length of time to completely obstruct blood flow to the victim’s brain during his effort to achieve sexual gratification, but not as a part of a calculated effort to kill the victim.” Thus, according to the court, the appropriate verdict was manslaughter, a lesser offense that would carry a lesser sentence. It will be up to the trial court to determine an appropriate new sentence for Davis.

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