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New York Felony Sex Crimes Attorney

Being charged with any crime can be frightening and confusing. That fear and uncertainty may be magnified for a defendant facing a felony sex crime charge. In addition to the serious penalties associated with any felony conviction, a sex crime conviction can result in complicated terms of probation and registration requirements that may impact every area of your life for many years.

Sex Crimes and Lack of Consent

Consent is usually the crucial issue in sex crimes cases. Under New York law, lack of consent is defined by Penal Law Section 130.05, and includes by forcible compulsion or an incapacity to consent.

Forcible compulsion is defined as:

  • The use of physical force, which may be minimal; or
  • A threat that places a person in fear of immediate physical injury, death or kidnapping to themselves or another person

Incapacity to consent is due to a person being:

  • Less than seventeen years old;
  • Mentally disabled;
  • Mentally incapacitated, temporarily incapable because of the influence of a narcotic or intoxicating substance given without a person’s consent;
  • Physically helpless, either unconscious or unable to communicate an unwillingness; or
  • In certain institutional settings, like an inmate in state or location prison

Evidence Used in Prosecution of Felony Sex Crimes

Evidence in Sex Crimes Cases Involving Strangers

In addition to the testimony of a complaining witness, there are several other types of evidence that prosecutors typically use to corroborate the alleged crime during an investigation or at trial. If the defendant and the complaining witness are strangers, a prosecutor will seek an identification of the defendant and DNA evidence. If the defendant and complaining witness are not strangers, prosecutors may also rely on statements made by the complaining witness to medical professionals, 911 calls and photographs.

Evidence in Acquaintance Sex Crimes Cases

If the complaining witness and defendant know each other, the type of evidence that prosecutors seek may differ slightly. In such cases, consent (or lack of consent) is often the key issue. In addition to statements made by the complaining witness to medical professionals, 911 calls and photographs, prosecutors look for statements made to others in the immediate aftermath of the alleged acts. These statements may include in-person or phone conversations, text messages, emails or even social media posts.

The New York Sex Offender Registry

Sex offender registration is mandatory for those convicted of dozens of New York sex crimes, including several misdemeanor crimes. Registration is for 20 years or life, depending on the risk level assigned to the offender, 1, 2 or 3. Level 3 offenders are high risk and Level 2 offenders are moderate risk. Both must register for life. Level 1 offenders are deemed low risk, and must register for 20 years unless they are designated a sexual predator, sexually violent offender or predicate sex offender.

Failure to comply with registration requirements is a crime itself, carrying increasingly serious penalties with subsequent offenses. In addition, conditions of probation or parole associated with a sex crime may be very strict, including limitations on where the probationer or parolee is allowed to live.

If you’re facing felony sex crime charges in New York, you can’t afford to take chances. Consult an experienced criminal defense attorney right away.Contact Us

New York Rape Charges

There are three felony rape charges in New York, ranging from a class B violent felony to a class E felony.

Rape in the First Degree

Rape in the First Degree is a class B violent felony, meaning that a person convicted of this crime may face up to 25 years in prison.

A person commits Rape in the First Degree when he or she engages in sexual intercourse with another person by forcible compulsion, or when the other person is incapable of consent because he or she is physically helpless.

Rape in the First Degree, Penal Law Section 130.35, may also be charged when he or she engages in sexual intercourse with another person:

  • Who is under the age of 11, or
  • Who is less than 13 old, and the actor is 18 years of age or older

Sentencing for Rape in the First Degree

Rape in the First Degree is a class B felony and a violent felony offense. If the defendant has no prior felony convictions, the crime carries a mandatory minimum prison sentence of 5 years and a maximum of 25 years, as well as a fine of up to $5,000. A mandatory period of post-release supervision of between 5 and 20 years is also required. A person convicted of Rape in the First Degree will also be required to register as sex offender under the Sex Offender Registration Act (SORA) and submit to confidential testing for HIV.

Rape in the Second Degree

The second-degree crime, Penal Law Section 130.30, is a class D violent felony, and is charged when the defendant:

  • Engages in sexual intercourse with a person who lacks the capacity to consent, because he or she is mentally disabled or mentally incapacitated; or
  • Is 18 years or older and engages in sexual intercourse with another person who is less than 15

In the latter situation, an affirmative defense is available to a defendant who was less than 4 years older than the other person at the time of the alleged act. For example, if the defendant had just turned 18 that week, but the alleged victim was 14 years and 6 months old at the time of the encounter, the age difference would be approximately 3.5 years. In that case, the defendant could assert an affirmative defense based on the age difference.

It is important to note, though, that once the state has proven that the defendant was at least 18 years old and the victim was less than 15, the burden of raising this defense and establishing the facts falls on the defendant. In this situation, an experienced criminal defense attorney will often be able to persuade the Assistant District Attorney (ADA) to dismiss the charges, rather than having to proceed to trial and raise the defense in court.

Sentencing for Rape in the Second Degree

Rape in the Second Degree is a class D violent felony. However, there are several sentencing options, and prison is not mandatory. For a first felony conviction, a judge may impose:

  • A prison sentence of 2 years and maximum of 7 years;
  • A definite sentence of 1 year in prison;
  • A split sentence of 6 months in jail and 10 years on probation or a 3-year conditional discharge;
  • A 3-year conditional discharge; or
  • A straight unconditional discharge

To avoid incarceration for a conviction of Rape in the Second Degree, depending on the sentence, a Judge is required to find that:

  • Given the nature and circumstances of the crime and the history and character of the defendant, a long prison sentence would be unduly harsh;
  • Confinement is not necessary for the protection of the public; or
  • That the public interest or justice would not be served by incarceration

A Rape in the Second Degree conviction also requires registration under SORA, and the convicted person is required to undergo confidential HIV testing.

Rape in the Third Degree

Rape in the Third Degree, Penal Law Section 130.25, is a class E felony, carrying a potential sentence of 4 years in prison.

A person commits Rape in the Third Degree when he or she engages in sexual intercourse:

  • With someone who is incapable of consent for some reason other than being less than 17;
  • Without the other person’s consent, if the lack of consent is not attributable to incapacity to consent; or
  • With a person who is less than 17, if he or she is 21 or older

Sentencing for Rape in the Third Degree

Rape in the Third Degree is a class E felony. A first-time felony offender may be sentenced to 1.5 to 4 years in prison. However, the court may also sentence a person to a 1-year sentence, or 10 years on probation.

As in Rape in the Second Degree cases, a judge entering one of the alternate sentences must determine that, given the nature and circumstances of the crime and the history and character of the defendant, confinement is not necessary for the protection of the public, or that the public interest or justice would not be served by incarceration.

A person convicted of Rape in the Second Degree will also be required to register as sex offender under the SORA, and to undergo confidential testing for HIV.

A Rape conviction can have lifelong consequences. If you’ve been charged with Rape or have reason to believe you may be charged, consult an experienced criminal defense lawyer as soon as possible.Contact Us

Sexual Abuse

There are three degrees of Sexual Abuse and four degrees of Aggravated Sexual Abuse in New York. Sexual Abuse in the Third Degree and Sexual Abuse in the Second Degree are both misdemeanors.

Sexual Abuse in the First Degree

Sexual Abuse in the First Degree, Penal Law Section 130.65, is a class D violent felony, carrying a maximum prison sentence of 7 years. Unlike the three degrees of Rape, which involve sexual intercourse, Sexual Abuse concerns sexual contact.

Sexual contact is defined as “any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party . . . whether directly or through clothing.” Sexual contact also includes “the emission of ejaculate by the actor upon any part of the victim, clothed or unclothed.”

A person commits the first-degree crime when he or she subjects another person to sexual contact:

  • By force;
  • When the other person lacks the capacity to consent because he or she is physically helpless;
  • When the other person is under the age of 11; or
  • When the person is 18 years of age or older and the victim is under the age of 13

Sentencing for Sexual Abuse in the First Degree

Sexual Abuse in the First Degree is a class D violent felony. Prison, however, is not mandatory and there are several sentencing options.

For a first felony conviction, a judge may impose:

  • A prison sentence of 2 years and maximum of 7 years;
  • A definite sentence of 1 year in prison;
  • A split sentence of 6 months jail and 10 years of probation or a 3-year conditional discharge; or
  • A 3-year conditional discharge or a straight unconditional discharge.

If the sentencing judge opts against incarceration, he or she must find that given the nature and circumstances of the crime and the history and character of the defendant, a long prison sentence would be unduly harsh, that confinement is not necessary for the protection of the public or that the public interest or justice would not be served by incarceration. A person convicted of Rape in the Second Degree will also be required to register as sex offender under the Sex Offender Registration Act (SORA). Confidential testing for HIV may be required under certain factual circumstances.

Aggravated Sexual Abuse

All degrees of Aggravated Sexual Abuse involve the insertion of a finger or a foreign object into the victim’s vagina, urethra, penis, rectum, or anus. The statute specifically excepts actions performed for valid medical purposes.

Aggravated Sexual Abuse in the First Degree

The first-degree crime, Penal Law Section 130.70, is a class B violent felony, and may carry a sentence of up to 25 years in prison.

A person commits the crime of Aggravated Sexual Abuse in the First Degree when that person inserts a foreign object into one of the above-listed orifices, causing physical injury to the victim, and:

  • Uses forcible compulsion;
  • The other person is incapable of consent because he or she is physically helpless; or
  • The other person is under the age of 11

Sentencing for Aggravated Sexual Abuse in the First Degree

Aggravated Sexual Abuse in the First Degree is a class B felony and a violent felony offense. The first-degree crime carries a mandatory minimum prison sentence of 5 years and maximum of 25 years for a first felony conviction, and a fine of up to $5,000.

A mandatory period of post-release supervision is also required, ranging from 5 to 20 years. Sex offender registration is mandatory. Under certain circumstances, confidential testing for HIV may be required at the request of the complaining witness.

Aggravated Sexual Abuse in the Second Degree

Aggravated Sexual Abuse in the Second Degree, Penal Law Section 130.67, is a class C violent felony, and carries a potential sentence of 15 years of prison.

The second-degree crime occurs when a person inserts a finger into one of the above-listed orifices and:

  • Uses forcible compulsion;
  • The other person lacks the capacity to consent because he or she is physically helpless; or
  • The other person is under the age of 11

Aggravated Sexual Abuse in the Second Degree is a class C violent felony. On a first felony conviction, a judge is required to impose a sentence of between 3.5 and 15, along with a period of post-release supervision of 5 to 15 years. Sex offender registration is also required. Under certain circumstances confidential testing for HIV may be required at the request of the complaining witness.

Aggravated Sexual Abuse in the Third Degree

Aggravated Sexual Abuse in the Third Degree, Penal Law Section 130.66, is a class D violent felony, carrying a potential sentence of 7 years in prison.

A person commits the crime of Aggravated Sexual Abuse in the Third Degree when he or she inserts a foreign object into one of the above-listed orifices, and:

  • Accomplishes the act by forcible compulsion;
  • The other person is incapable of consent because he or she is physically helpless;
  • The other person is under the age of 11; or
  • The other person lacks the capacity to consent because he or she is mentally disabled or incapacitated, and the act causes physical injury

Sentencing for Aggravated Sexual Abuse in the Third Degree

Aggravated Sexual Abuse in the Third Degree is a class D violent felony. However, prison is not mandatory, and the court has several sentencing options. For a first felony conviction, a judge may impose:

  • A prison sentence of 2 to 7 years;
  • A definite sentence of 1 year in prison;
  • A split sentence of 6 months jail and 10 years of probation or a 3-year conditional discharge;
  • A 3-year conditional discharge; or
  • A straight unconditional discharge

If the court does not impose a prison sentence, the sentencing judge must enter a finding that:

  • Given the nature and circumstances of the crime and the history and character of the defendant, a long prison sentence would be unduly harsh;
  • Confinement is not necessary for the protection of the public; or
  • That the public interest or justice would not be served by incarceration.

A person convicted of Aggravated Sexual Abuse in the Third Degree will also be required to register as sex offender under SORA, and is subject to confidential testing for HIV.

Aggravated Sexual Abuse in the Fourth Degree

The fourth-degree crime, Penal Law Section 130.65-a, is a class E violent felony, meaning a potential sentence of 4 years in prison.

A person is guilty of Aggravated Sexual Abuse in the Fourth Degree if he or she inserts a foreign object or a finger into one of the above-listed orifices, and that person is incapable of consent for some reason other than being less than 17 years old.

Sentencing for Aggravated Sexual Abuse in the Fourth Degree

Aggravated Sexual Abuse in the Fourth Degree is a class E violent felony. A first-time felony offender may be sentenced to 1.5 to 4 years in prison.

However, the court may deviate from this sentence upon a finding that:

Given the nature and circumstances of the crime and the history and character of the defendant, confinement is not necessary for the protection of the public or that the public interest or justice would not be served by incarceration. A person convicted of Rape in the Second Degree will also be required to register under SORA, and confidential testing for HIV is required.

may also sentence a person to a 1-year sentence or 10 years probation

Criminal Sexual Act Charges in New York

Criminal Sexual Act may be charged in the first, second, or third degree. Classification ranges from class E felony to class B felony, depending on the degree.

Criminal Sexual Act in the First Degree

Criminal Sexual Act in the First Degree, Penal Law Section 130.50, is a class B violent felony, carrying a possible sentence of up to 25 years in prison.

A person is guilty of Criminal Sexual Act in the First Degree when he or she engages in oral or anal sexual contact with another person:

  • By forcible compulsion;
  • When the other person is incapable of consent because he or she is physically helpless;
  • When the other person is under the age of 11; or
  • When the actor is 18 or older and the other person is under the age of 13

Sentencing for Criminal Sexual Act in the First Degree

Criminal Sexual Act in the First Degree is a class B felony and a violent felony offense. If the defendant has no prior felony convictions, the crime carries a mandatory minimum prison sentence of 5 years and a maximum of 25 years, as well as a fine of up to $5,000. A mandatory period of post-release supervision of between 5 and 20 years is also required. A person convicted of Criminal Sexual Act in the First Degree will also be required to register as sex offender under the Sex Offender Registration Act (SORA) and submit to confidential testing for HIV.

Criminal Sexual Act in the Second Degree

The second-degree crime, Penal Law Section 130.45, is a class D violent felony, meaning a possible sentence of up to 7 years in prison.

A person commits Criminal Sexual Act in the Second Degree when that person engages in oral or anal sexual conduct with another person, and:

  • Is at least 18 years of age, while the other person is under the age of 15; or
  • The other person is incapable of consent because he or she is mentally disabled or mentally incapacitated

An affirmative defense is available to an 18-year-old who is charged under this section because the other person is under the age of 15, if the age difference between the two is less than 4 years.

Sentencing for Criminal Sexual Act in the Second Degree

Criminal Sex Act in the Second Degree is a class D violent felony. However, there are several sentencing options, and prison is not mandatory. For a first felony conviction, a judge may impose:

  • A prison sentence of 2 years and maximum of 7 years;
  • A definite sentence of 1 year in prison;
  • A split sentence of 6 months jail and 10 years on probation or a 3-year conditional discharge;
  • A 3-year conditional discharge; or
  • A straight unconditional discharge

To avoid incarceration for a conviction of Criminal Sex Act in the Second Degree, depending on the sentence, a judge is required to find that:

  • Given the nature and circumstances of the crime and the history and character of the defendant, a long prison sentence would be unduly harsh;
  • Confinement is not necessary for the protection of the public; or
  • That the public interest or justice would not be served by incarceration

Criminal Sexual Act in the Third Degree

Criminal Sexual Act in the Third Degree, Penal Law Section 130.40, is a class E felony, which carries a possible prison sentence of up to 4 years.

A person is guilty of the third-degree crime if he or she engages in oral or anal sexual conduct with another person, and:

  • The other person is incapable of consent for some reason other than being under the age of 17;
  • The other person is younger than 17 and the actor is 21 years old or older; or
  • He or she engages in the act without the other person’s consent, for some reason other than that the other person lacks the capacity to consent

Sentencing for Criminal Sexual Act in the Third Degree

Criminal Sexual Act in the Third Degree is a class E felony. A first-time felony offender may be sentenced to 1.5 to 4 years in prison. However, the court may also sentence a person to a 1-year sentence, or 10 years on probation.

In Criminal Sexual Act in the Third Degree cases, a judge entering one of the alternate sentences must determine that, given the nature and circumstances of the crime and the history and character of the defendant, confinement is not necessary for the protection of the public, or that the public interest or justice would not be served by incarceration.

A person convicted of Criminal Sexual Act in the Third Degree may also be required to register as sex offender under the SORA, and to undergo confidential testing for HIV.

Persistent Sexual Abuse

Persistent Sexual Abuse, Penal Law Section 130.53, is charged when a person with two prior convictions for sex offenses, is accused of:

Sentencing for Persistent Sexual Abuse

Persistent Sexual Abuse is a class E violent felony. A first-time felony offender may be sentenced to 1.5 to 4 years in prison. However, prison is not mandatory. For a first felony conviction, a judge may impose:

  • A definite sentence of 1 year in prison;
  • A split sentence of 6 months jail and 10 years on probation or a 3-year conditional discharge;
  • A 3-year conditional discharge; or
  • A straight unconditional discharge

To avoid incarceration for a conviction of Persistent Sexual Abuse, depending on the sentence, a Judge is required to find that:

  • Given the nature and circumstances of the crime and the history and character of the defendant, a long prison sentence would be unduly harsh;
  • Confinement is not necessary for the protection of the public; or
  • That the public interest or justice would not be served by incarceration

Predatory Sexual Assault

Predatory Sexual Assault is a class A-II felony, carrying a maximum prison sentence of 25 years to life in prison.

A person commits the crime of Predatory Sexual Assault, Penal Law Section 130.95, when he or she:

  • Commits one of the following crimes:
    • Rape in the First Degree;
    • Criminal Sexual Act in the First Degree;
    • Aggravated Sexual Abuse in the First Degree; or
    • Course of Sexual Conduct Against a Child in the First Degree, Penal Law Section 130.75
  • And, in the commission of the crime or immediate flight therefrom:
    • Causes serious physical injury to the victim;
    • Uses or threatens to use a dangerous instrument;
    • Has engaged in the commission of one of the above listed crimes against one or more additional people; or
    • Has previously been convicted of:
      • Any felony sex crime under Article 130 of the New York Penal Law;
      • Incest, Penal Law Section 255.25; or
      • Use of a Child in a Sexual Performance, Penal Law Section 263.05

Sentencing for Predatory Sexual Assault

The sentencing for Predatory Sexual Assault carries a maximum sentence of life in prison. The minimum sentence varies between 10 and 25 years. Therefore, the maximum sentence is 25 years to life in prison and the minimum sentence is 10 years to life. A person convicted of Predatory Sexual Assault may also be required to register as sex offender under the SORA, and to undergo confidential testing for HIV.

Predatory Sexual Assault Against a Child

Predatory Sexual Assault against a Child, Penal Law Section 130.96, is a class A-II felony, carrying a potential prison sentence of up to 25 years to life in prison.

A person 18 years of age or older commits Predatory Sexual Assault against a Child when he or she commits one of the following crimes, and the victim is under the age of 13:

  • Rape in the First Degree;
  • Criminal Sexual Act in the First Degree;
  • Aggravated Sexual Abuse in the First Degree; or
  • Course of Sexual Conduct Against a Child in the First Degree

Sentencing for Predatory Sexual Assault against a Child</h4

The sentencing for Predatory Sexual Assault against a Child requires a maximum sentence of life in prison. The minimum sentence varies between 10 and 25 years. Therefore, the maximum sentence is 25 years to life in prison and the minimum sentence is 10 years to life. A person convicted of Predatory Sexual Assault may also be required to register as sex offender under the SORA, and to undergo confidential testing for HIV.

An Experienced Criminal Defense Attorney Can Help

Sex offenses carry serious consequences, ranging from prison sentences and burdensome terms of probation to a lifelong obligation to register as a sex offender. However, being charged with a sex crime doesn’t necessarily mean being convicted of a sex crime.

A veteran criminal defense attorney may be able to:

  • Negotiate with the ADA for a plea to a lesser offense, perhaps avoiding sex offender status
  • Persuade the ADA that the evidence against you is insufficient, resulting in dismissal of the charges
  • Succeed in having the charges dismissed prior to trial
  • Establish reasonable doubt at trial, resulting in a not guilty verdict
Get an experienced advocate in your corner. Schedule a consultation right now.Contact Us
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