What is a Criminal Sexual Act in the Second Degree in NYC?
In New York, Criminal Sexual Act in the Second Degree, Penal Law Section 130.45, is a class D violent felony.
The maximum sentence is 7 years if prison, for a first felony offender, followed by between 3 and 10 years of post-release supervision. Criminal Sexual Act in the Second Degree is charged in 3 circumstances.
If you or a loved one is charged with committing a Criminal Sexual Act in New York, hiring an experienced sex crimes lawyer in NYC is crucial in obtaining a favorable outcome.
A person is guilty of Criminal Sexual Act in the Second Degree in New York when:
- Being 18 years old or more, he or she engages in Oral Sexual Conduct or Anal Sexual Conduct with another person less than 15 years old;
- He or she engages in Oral Sexual Conduct or Anal Sexual Conduct with another person who is incapable of consent by reason of being Mentally Disabled; or
- He or she engages in Oral Sexual Conduct or Anal Sexual Conduct with another person who is incapable of consent by reason of being Mentally Incapacitated
The first provision of Criminal Sexual Act in the Second Degree is purely related to the age of the person charged and the complaining witness. Lack of knowledge that a person was 15 or younger is not a defense to the charge.
Of course, based on the facts and allegations, a skilled defense lawyer may be able to convince a prosecutor not to proceed in with Criminal Sexual Act in the Second Degree case based on misleading behavior of a complaining witness relating to representations of legal age.
The second and third provisions address the specific reason for the alleged incapacity to consent of the complaining witness. Both Mentally Disabled and Mentally Incapacitated have specific definitions in New York. Under Penal Law Section 130.00(5), Mentally Disabled “means that a person suffers from a mental disease or defect which renders him or her incapable of appraising the nature of his or her conduct.”
Penal Law Section 130.00(6) stated that Mentally Incapacitated “means that a person is rendered temporarily incapable of appraising or controlling his conduct owing to the influence of a narcotic or intoxicating substance administered to him without his consent, or to any other act committed upon him without his consent.”
That means if a person is alleged to have engaged in Oral Sexual Conduct or Anal Sexual Conduct with a person who is either Mentally Disabled and Mentally Incapacitated, a prosecutor has to prove the condition beyond a reasonable doubt.
First, that a person was incapable of appraising the nature of his or her conduct. Or, second, temporarily incapable of appraising or controlling his or her conduct owing to the influence of a narcotic or intoxicating substance administered to him without his consent, or to any other act committed upon him without his or her consent.
Criminal Sexual Act in the Second Degree Affirmative Defense
There is an important defense to a Criminal Sexual Act in the Second Degree charge when it is based on the age provision. Under Penal Law 130.45, it is an affirmative defense to Criminal Sexual Act in the Second Degree that the defendant was less than 4 years older than the complaining witness at the time of the alleged act.
Thus, if the person charged is 18 years old and the complaining witness is 14 years old, with less than 4 full years between the 2 people, a Criminal Sexual Act in the Second Degree should be dismissed. This is often called a Romeo and Juliet defense. However, as an affirmative defense, the burden of proof is on the defense.
Even if the affirmative defense of less than 4 years apart in age applies, there still could a Sexual Misconduct charge. Under Penal Law Section 130.20, Sexual Misconduct is a class A misdemeanor and carries a maximum sentence of 1 year in jail. Sexual Misconduct charges include Oral Sexual Conduct or Anal Sexual Conduct without a person’s consent, such as when the complaining witness is less than 17 years old.
Sentencing for Criminal Sexual Act in the Second Degree
In New York, Criminal Sexual Act in the Second Degree is classified as a class D violent felony a conviction requires a person to register as a Sex Offender, even if convicted of an attempt to commit the crime.
The minimum sentence for a person who does not have a prior felony conviction is 2 years in prison and the maximum is 7 years. A period of post-release supervision of 3 to 10 years is also required. However, there are several other sentencing options for a first felony offender, including a lesser term of incarceration or none at all.
For a first felony conviction, a Judge may also set a sentence of 1 year in prison, a split sentence of 6 months in jail and 10 years probation or a 3-year conditional discharge.
In order to obtain a sentence that is less than 2 years, a Judge must make certain findings such as a long prison sentence would be unduly harsh because of the nature and circumstances of the crime and the history and character of the person charged, a long prison term is not necessary to protect the public and the public interest or justice would not be served by such a long term of prison.
Speak With a NYC Criminal Sexual Act Attorney Today
If you or a loved one is charged with committing a Criminal Sexual Act in New York City, we’re here to help.
Contact The Law Firm of Andrew M. Stengel
Contact us via the live chat below, through our contact form here, or call us at (212) 634-9222. Initial consultations are free and confidential, and you will speak with Andrew M. Stengel directly.
Our offices are located at 11 Broadway, Suite 715, New York, NY 10004, and we handle cases throughout New York City, Nassau, Westchester and the surrounding counties.
