‘Hands to the neck’

Ex-prosecutor sought to expose non-fatal strangulations at NY institutions

The husky man, wearing the dark watch cap and jacket of a state youth services aide, grabs the 17-year-old boy by the throat with both hands and drives him backward with such force that the teenager appears to rise from the ground.

The aide slams the boy’s head into a metal grate and then, still gripping the boy’s neck, he pushes him into an entranceway and against a wall. The boy’s face flushes as other staffers urge the man to stop. He finally lets go. The assault, captured in 2014 by surveillance cameras at Highland Residential Center, a juvenile prison in Ulster County, lasts 17 seconds.

The aide pleaded guilty to felony strangulation, which state law defines as restricting the breath or circulation of a victim and causing physical injury or impairment, such as loss of consciousness. He was sentenced to five years of probation and barred from holding similar caretaking jobs in the state.

The Highland attack was rare in having been captured on camera, but it was far from an isolated case. Before the attack, other instances of nonfatal strangulation had been reported at New York State’s residential centers for those with special needs.

On Staten Island, a worker at a center for the developmentally disabled had throttled a resident. In Rockland County, an aide at a youth psychiatric home had compressed a child’s windpipe, leaving the victim unable to breathe. In Broome County, a foster home worker had pushed a child into a bush and strangled him.

Patricia Gunning, who prosecuted the Highland case, detected the distressing pattern. At the time, she served as special prosecutor and inspector general at the state’s then newly established Justice Center for the Protection of People with Special Needs, which Gov. Andrew M. Cuomo took a personal role in creating.

The center was established to track, prevent and prosecute abuse or neglect at state facilities and those run by taxpayer-funded private care providers regulated by agencies that serve the developmentally disabled, incarcerated youth, those with mental health issues and other vulnerable, institutionalized groups.

Gunning’s team began a study of center records as her prosecutors brought charges in one nonfatal strangulation case after another, including one in Smithtown that led to the felony conviction of a residential home manager who had assaulted a special needs youth. As work progressed, Gunning said the team sifted through incident reports from service providers — who by law must log instances of possible abuse — and, in one 10-month period alone, identified nearly 500 that included words like “hands to the neck,” “choke” or “strangle.”

That work was just one element of Gunning’s broader attempt to document and address nonfatal strangulation assault in institutional settings across New York State — an initiative that may have been without precedent nationally.

Gunning said she was doing exactly what her job demanded, but others in state government felt differently. Over the course of nine months in 2016, the strangulation project hit a wall, leaving the scope of the problem unknown and bringing to a halt several initiatives Gunning was working on in cooperation with a consultant for the Department of Justice that has trained FBI agents and prosecutors across the country on combating nonfatal strangulation assault.

‘Nobody, in my opinion, wanted to say this was happening on the state’s watch’ -Patricia Gunning, former special prosecutor

Gunning said she believes that state officials were worried about “the optics” of devoting resources and attention to so sensitive and disturbing a subject.

“Nobody, in my opinion, wanted to say this was happening on the state’s watch,” she said.

The initiative ran aground at a time when all but a handful of states had made nonfatal strangulation a felony, recognizing its prevalence in domestic abuse.

It also occurred amid uproar at the Justice Center over the conduct of its then-acting director, Jay Kiyonaga. Gunning was forced from her job last year after having reported Kiyonaga’s behavior to state officials, according to an Equal Employment Opportunity Commission complaint that she filed in May against the Justice Center. Kiyonaga was fired from state government after the Office of the Inspector General — which began an investigation after Gunning went public with her experience — issued findings based on witness testimony that described his “reprehensible and indefensible” record of workplace sexual misconduct.

The Justice Center declined interview requests for this story, citing Gunning’s complaint. On Oct. 17, a reporter sent several questions to Cuomo’s office, and the Justice Center provided written replies the next day.

‘… a first draft of the project’ was scrapped because the consultant had ‘provided misleading and unreliable data regarding strangulation.’ -Christine Buttigieg, Justice Center spokeswoman

Spokeswoman Christine Buttigieg wrote that the effort was not halted but that “a first draft of the project” was scrapped because the consultant had “provided misleading and unreliable data regarding strangulation.”

“High-level staff in Ms. Gunning’s own department verified that the information in question was not reliable,” Buttigieg wrote.

Newsday asked for any document backing up that claim but was told supporting records were relevant to Gunning’s complaint and could not be provided.

Casey Gwinn, president of the nonprofit organization that oversees the San Diego-based Training Institute on Strangulation Prevention, the consultant hired to assist Gunning, called Buttigieg’s charge “patently false.”

“No one from the Justice Center ever said anything about ‘misleading or unreliable data,’ ” he said. “This statement has been manufactured.”

If the Justice Center waived a confidentiality provision in its contract with the institute, Gwinn said he would release material collected while working on the project, including videos of assaults at facilities under agency oversight and emails from center employees corroborating his and Gunning’s accounts.

Asked whether the agency would waive the provision, Buttigieg did not respond.

“The statement of the Justice Center is stunning in its falsehoods,” said Gwinn, a former San Diego prosecutor. “We would love to see someone testify to these statements under oath in a courtroom.”

Gunning told Newsday that the agency was being deceptive. She said it was the limits of the Justice Center’s own flawed data, not anything the consultant provided, that made getting a true picture of the problem difficult. Gunning said she and her staff grappled at length with just that problem.

Buttigieg also told Newsday that “verifiable” elements of the effort had been used in a “number of important ways.” To support that assertion, Buttigieg pointed to a document in which the word "strangulation" does not appear and a bulletin that, upon inspection, was clearly sent by Gunning’s own office during her tenure.

Gunning and Gwinn rejected any suggestion that the Justice Center had preserved their work in any meaningful way and identified the study of center records, an educational video, a survey of caretakers and a training curriculum to spot and reduce nonfatal strangulation assault as all having been abandoned.

“I was talking about it all over the country, that New York was leading the way,” Gwinn said. “And then it all stopped.”

Justice Center’s beginnings

The story of how New York cares for special needs populations like the mentally ill and developmentally disabled is a cyclical one of scandal and reform. In 2011 and 2012, The New York Times highlighted unexplained deaths, questionable use of medications and other areas of concern in the state system.

“The Justice Center will be dedicated to implementing the strongest protections in the nation for over 1 million New Yorkers with special needs,” Cuomo said when the center began operation in June 2013. “We will work around the clock to safeguard the rights and protections of our most vulnerable citizens.”

Gunning joined the agency at its inception and held a dual role on the front line. As special prosecutor, she led a team that brought criminal charges in abuse and neglect cases. As inspector general, she identified threats to the welfare of those the agency is meant to protect and developed strategies to prevent harm.

“That was the point of my job, at least as it was described in the legislation that established the Justice Center,” Gunning said, “to identify systemic issues and what was causing them, not just prosecute low-hanging fruit.”

Before joining the Justice Center, Gunning spent five years as a prosecutor in Brooklyn, specializing in crimes against children. She then led the special victims unit of the Rockland County district attorney’s office for six years, focusing on child abuse and crimes against the elderly, the mentally ill and the disabled.

Last month  — nearly a year after a reporter first contacted her about the Justice Center — Gunning announced interest in becoming Rockland district attorney and said she plans to run for the seat in 2019.

“I want to have the independence to pursue robust crime prevention that comes with being an elected prosecutor who answers only to the people,” she said. “At the Justice Center, that necessary independence was challenged.”

Uncovering strangulation cases

Early on, Gunning became concerned that strangulation “cases were falling through the cracks.” In most instances she was dealing only with allegations. However, she said that when she looked deeper, it was often evident that a strangulation had occurred. Some victims had bruising on the neck after a choking that lasted just seconds, she said, while others had been strangled until they urinated or defecated, a sign the attack had threatened to turn lethal.

Gunning said she knew that when describing use of force, providers sometimes downplayed the severity of events. She would later win several criminal convictions for ferreting out just such deception. The further her work advanced, the more Gunning was convinced that strangulations were being underreported.

“I felt it was the tip of the iceberg,” she said.

In September 2015, the Justice Center and the Training Institute for Strangulation Prevention entered into a $49,500 contract to further the initiative.

Buttigieg, in her written replies to Newsday, stated that the consultant “was a friend of Ms. Gunning’s and hired at Ms. Gunning’s recommendation.”

Gunning and Gwinn, who has worked with the Department of Justice for nearly a decade and was honored last year by the agency for his efforts on behalf of crime victims, said neither had met the other before the contract was signed. Gunning said she did recommend the institute because of its reputation and expertise but that she was not involved in any contract negotiation. She said she knew the institute from its work with New York prosecutors after strangulation was added to the state penal code in 2010 in response to the role of such attacks in domestic abuse.

She hoped the institute could provide investigators with new tools of detection and create awareness in the state system, helping to ensure that criminal acts of strangulation reached her desk. She also believed that overtaxed caretakers could benefit from an expert’s insight on preventing frustration from turning to rage and a potentially lethal attack — a scenario that turned up repeatedly.

The institute primarily educates law enforcement and health care workers on combating nonfatal strangulation in the context of domestic violence. A 2008 study funded by the National Institutes of Health found that if a man strangles a woman, she is seven times more likely to later die by his hand.

Strangulation in New York

The law

New York State added strangulation to its penal code in 2010 in recognition of how prevalent such attacks are in domestic abuse. A strangulation that simply impedes breath or circulation is a misdemeanor under the law. If stupor, loss of consciousness or injury results, the strangulation is a felony. Absent visual evidence, prosecuting the crime can be tricky.

The signs

Some possible signs and symptoms of strangulation that don’t involve visible injury to the neck:

  • Headache or dizziness
  • Memory loss
  • Burst capillaries on the eyeball or eyelid
  • Ringing or bleeding in the ear
  • Swelling of the lips, tongue or face
  • Raspy or hoarse voice
  • Trouble swallowing or clearing the throat

Sources: NYS penal law, Training Institute on Strangulation Prevention, news reports

New York is among 47 states where nonfatal strangulation is a felony. The charge can be difficult to prove. Brain damage, other traumatic injuries and death can occur even when an attacker has left little or no visible injury on the neck. Last month, Suffolk County District Attorney Timothy Sini announced a program to bolster strangulation prosecutions by training police and a team of nurses on how to spot and investigate the crime.

Intimate-partner strangulation gained renewed attention in May when state Attorney General Eric Schneiderman resigned after several women accused him of mental and physical abuse, including choking. As a state senator, Schneiderman had sponsored the bill that added strangulation to the penal code.

Institute leaders said parallels exist between the domestic and institutional settings. The closest thing mentally ill teenagers or developmentally impaired adults have to a home may be the facility housing them. And relationships between caretakers and residents can mirror those in families.

‘There is a clear relationship between what happens in domestic violence and sexual assault strangulation cases and what happens in the institutional care setting. And we don’t at present know the extent of the problem, because it never has been fully exposed.’ -Casey Gwinn, president of the nonprofit that oversees the Training Institute on Strangulation Prevention

“There is a clear relationship between what happens in domestic violence and sexual assault strangulation cases and what happens in the institutional care setting,” Gwinn said. “And we don’t at present know the extent of the problem, because it never has been fully exposed.”

William Spencer, the youth aide who was caught on camera strangling the 17-year-old resident of Highland Residential Center in Ulster County, had a history of domestic violence, according to court records. In one 1999 incident, prosecutors said, his wife “sustained bruising and a sprained neck.” He also had a history of excessive violence toward other residents of the state-run youth prison. In one 2011 case, Spencer was suspended for four months without pay after he fractured a resident’s arm, according to prosecutors.

Given the history that prosecutors detailed, it’s unclear why Spencer was hired at Highlands. Attempts to reach him for this story were not successful.

News releases show that while Gunning was special prosecutor, the center brought charges in at least 16 felony strangulation or misdemeanor obstruction of breath or circulation cases. One involved a manager at a Developmental Disabilities Institute program in Smithtown who attacked and choked a special needs teen in September 2015. Gunning won a felony conviction in the case.

In many instances, defendants pleaded guilty but had their convictions expunged after a period of good conduct, making it impossible to determine the total number of convictions based on a review of case files.

The institute helped the Justice Center create training and educational materials for investigators and caregivers. The materials stressed the hazards of applying pressure to the neck, noting that even a brief loss of oxygen can cause brain damage, Gwinn said, and described how to detect signs of strangulation in a person who may be nonverbal and unable to describe an assault. Recognizing that abusers have often themselves been victims as children, the institute helped develop a survey for caregivers that probed for histories of trauma.

Meanwhile, the institute was advising the study Gunning began early in her tenure, which sought to make use of the valuable data the Justice Center collects.

While the trove was a potentially rich resource, Gunning said the center’s case tracking system made analysis difficult. Investigators had to pull individual files.

“If you were to say to the Justice Center, ‘How many cases of strangulation have you had?’ I don’t think they would be able to tell you,” she said. “The tracking system does not capture that. It was difficult to determine actual numbers.”

Buttigieg, in her replies to Newsday, said that elements of the work found their way into a “Spotlight on Prevention” tool kit the Justice Center shared with service providers in January that was focused on how to reduce the use of restraints. The tool kit mentions a data analysis of “inappropriate use of restraints” but does not give a number for such cases. The word strangulation does not appear.

There were other complications, too.

According to a retired Justice Center employee with more than three decades of experience who helped lead the early stages of the study Gunning initiated, some state agencies and private providers are uncomfortable with the word “strangle.” When writing an incident report, staff will sometimes minimize strangulation, said the retired employee — who described leading child abuse investigations that provoked death threats and asked not to be identified — instead characterizing it as improper use of restraint. This obfuscation is routine for some providers, said the retired employee, while others would never tolerate the practice.

Witness statements from two youth aides describing the strangulation attack at Highland Residential Center in Ulster County demonstrate the problem.

Spencer and other aides had just grappled with a resident and the 17-year-old was on the edge of the scrum. Spencer warned the boy not to interfere with him while he was trying to restrain inmates, and words were exchanged.

In statements provided to the Justice Center and included in a court file, one aide wrote that Spencer then “grabbed” the 17-year-old “by the throat with both hand[s].” Another aide wrote in his statement that Spencer “with his two hands” went toward the boy and grabbed his “red long sleeve shirt collar.” The first account describes a strangulation assault, the second does not.

‘What will the families think?’

Gunning said the first sign of resistance to her approach came in March 2016, when then-Justice Center acting executive director Kiyonaga asked her to brief leaders from the state agencies the Justice Center oversees on the strangulation project. Nothing similar had happened before, Gunning said, and she felt it was wrong for an ostensibly independent prosecutor and inspector general to be summoned before the agencies she was supposed to monitor.

Gwinn, the consultant, said Gunning contacted him after the briefing and relayed that officials from the Office for People with Developmental Disabilities and the Office of Children and Family Services had expressed discomfort with the work.

The Office for People with Developmental Disabilities coordinates care for more than 130,000 state residents with autism, cerebral palsy, Down syndrome and other neurological impairments. Among other duties, the Office of Children and Family Services oversees foster care, juvenile justice programs and child protection. They are among the largest state social service agencies.

Gunning, Gwinn said, mentioned that a deputy commissioner at the Office for People with Developmental Disabilities had asked “What will the families think?” — which he took to be an expression of concern over how relatives of those in state care would react if they knew officials had identified strangulation assault as a problem. The deputy commissioner, who now works for a private agency that coordinates special needs care, did not respond to interview requests.

In an email written shortly after the meeting, a portion of which was shown to a Newsday reporter, an Office of Children and Family Services attorney told Kiyonaga and other center officials that there was no need for the strangulation project because existing measures to limit harm were sufficient.

An agency spokeswoman declined to make the attorney available to interview, writing in an email that the anti-strangulation effort “was not our initiative.”

Gwinn said that by this time, he had seen roughly a dozen videos of assaults that had taken place in facilities under Justice Center oversight involving hands to the throat or “pile-ons” leading to positional asphyxia — impaired breathing caused by having one’s body contorted. Cameras are scarce in facilities the center oversees, so the number of videos was disturbing, he said.

When Gunning told him that her superiors had put the contract on hold and that none of the materials would be made public, Gwinn said he was dismayed. “We had literally viewed the problem,” he said. “We had seen so much.”

Gwinn called the project that Gunning began “cutting edge” and said he had never before seen such important work “put in a drawer.”

In her replies to Newsday, the Justice Center’s Buttigieg wrote that a “best practices bulletin” on investigating “an incident involving the neck” had been sent to relevant state agencies. Newsday asked for and received a copy of the bulletin, which had the name of Gunning’s office stripped across its top and its email address at the bottom. It was dated July 2016, after she said the initiative first met resistance.

“I was able to communicate directly to investigators, so I did,” Gunning said. “That was me … That was one of the things that I could do without a lot of interference."

The effort ends

Gunning said she tried to keep elements of the study on track with the intent of publishing a report, but the effort died amid agency turmoil in the fall of 2016.

That May, The Associated Press revealed that the center had not been reporting suspicious deaths — those possibly involving abuse and neglect — to the Suffolk County district attorney’s office. The law that established the center requires that local prosecutors be notified in such cases. The center was being barraged with questions over whether the notification had occurred elsewhere in the state.

As officials scrambled to respond, Gunning said Kiyonaga launched a verbal attack against her. The next day, June 9, 2016, Gunning wrote an email to Kiyonaga and the center’s general counsel.

“Repeatedly screaming that, ‘You work for me, you do what I say!’ did not address the pressing issue surrounding DA notifications that I was bringing to your attention,” Gunning wrote. “This clearly has little to do with the issues we are working through as an agency, and [is] more of an escalating pattern of behavior directed at me. As a reminder, the issues we are facing were not caused by me or my unit, but by some other lack of oversight I have nothing to do with.”

Although the verbal attack she described was sparked by the dispute over district attorney notification, Gunning’s EEOC complaint states that Kiyonaga had sought opportunities to harass her since July 2015.

That month, according to the complaint, Kiyonaga tried to change the agency’s structure in a way that would require Gunning to update an employee with whom he was having a personal relationship on ongoing prosecutions. Gunning confronted Kiyonaga and told him he was allowing his private life to affect policy and complained to Kiyonaga’s then-boss that his envisioned “reporting structure would undermine criminal prosecutions,” the complaint states.

Kiyonaga did not respond to voice messages left on his home phone.

Gunning relayed details of Kiyonaga’s outburst and her broader concerns about his conduct and comments in the workplace to the agency’s general counsel and its ethics officer.

In October 2016, Kiyonaga’s retaliation effort led to Gunning losing “jurisdiction over her entire Audit and Review unit, which is an essential part of the Inspector General role,” the complaint states. The study then collapsed, Gunning said.

In the 13 pages of the “Spotlight on Prevention” tool kit in which the Justice Center’s Buttigieg said the initiative lived on, the word strangulation does not appear. Gwinn and Gunning said the center did not want the word ‘strangulation’ in what they produced, so they used “pressure to the neck.” The tool kit mentions the danger of applying pressure to the neck in three brief references, as well as other areas of the body including the chest, back and joints.

“That’s the sum representation of our work,” Gwinn said. “We don’t exist in this document.”

Kiyonaga left the Justice Center and landed an executive position at the Office for People with Developmental Disabilities, a state agency he had formerly overseen. In early 2017, Cuomo named Denise Miranda the center’s new director. Gunning said that on Aug. 1, 2017, Miranda told her that the governor wanted to “go in a different direction” in regard to her position. Gunning resigned.

“Being outspoken about what you see is not a good quality to have if you want to stay in state government,” she said.

On May 30, two years after she first brought his conduct to the attention of state officials, the inspector general issued findings against Kiyonaga, who had been the subject of complaints from multiple women during his time in state service. In a letter, the inspector general stated that Kiyonaga had a “history of improper and sexually inappropriate acts towards and comments to fellow staff members and subordinates.” The Cuomo administration fired Kiyonaga the same day.

It’s unknown how many strangulation cases the Justice Center has handled since Gunning departed, but it appears the problem has not gone away. In May, after Newsday began to ask questions about the demise of the strangulation initiative, the center announced the arrest of a Rochester children’s center employee who allegedly choked a resident later treated for neck abrasions.

It is the only announcement of its kind from the agency since Gunning departed.