N.Y. Pen. Law § 130.80
In New York the crime of course of sexual conduct against a child in the second degree is the less serious of two course of sexual conduct against a child crimes enumerated in New York law. It is defined as
It is distinguishable from course of sexual conduct against a child in the first degree in that the first degree charge requires that the sexual conduct be sexual intercourse, anal sex, oral sex, or aggravated sexual conduct. Course of sexual conduct against a child in the second degree is a Class D felony. If you are convicted of this crime, the maximum penalty that you could face is 7 years in prison. N.Y. Pen. Law § 130.80. In addition to possibly going to prison for a number of years you will also end up with a criminal record and you will be required to register as a sex offender. Because of the consequences of being convicted of course of sexual conduct against a child it is critical that as soon as you have been arrested you make sure that either you, friend or a family member immediately contact an experienced Nassau County Course of Sexual Conduct Against a Child in the Second Degree Lawyer who understands New York criminal law and who will aggressively defend you against the charge.
The course of sexual conduct against a child statute defines sexual conduct includes sexual intercourse, oral sex, anal sex, aggravated sexual conduct, or sexual contact. N.Y. Pen. Law § 130.00(10).
Sexual intercourse. Sexual intercourse involves a penis penetrating a vagina. It does not matter if the penetration is only slight. N.Y. Pen. Law § 130.00(1)
Oral sexual conduct. Oral sexual conduct refers to contact between the mouth and the penis, anus, vulva or vagina. N.Y. Pen. Law § 130.00(2)(a)
Anal sexual conduct. Anal sexual conduct refers to contact between the penis and the anus. N.Y. Pen. Law § 130.00(2)(b)
Aggravated sexual conduct. Aggravated sexual contact is defined as inserting a foreign object in the vagina, urethra, penis, rectum or anus of a child and causing physical injury to such child. N.Y. Pen. Law § 130.00(11)
Sexual conduct. Sexual conduct means any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party. Examples of sexual or intimate parts include the vagina, penis, breasts, buttocks, and lips. It includes the touching of the actor by the victim, as well as the touching of the victim by the actor. It does not matter if the touching is directly on the skin, or if it is through clothing. Furthermore, ejaculating onto the victim or onto the victim's clothing is included in the definition of sexual conduct. N.Y. Pen. Law § 130.00(3)
Lack of ConsentAs with any sex crime, lack of consent is an important element to a charge of course of sexual conduct against a child in the second degree. Under the law a child does not have the capacity to consent to sex. As long as the victim was a child under 11 or 13, depending on your age, you will face this charge. You cannot argue that the child agreed to the sexual conduct.
Arrest and arraignmentIf you are suspected of committing the crime of course of sexual conduct against a child in the second degree the first steps in a long, complicated the criminal process is that you will be arrested and arraigned. Once arrested you will be taken to the local police precinct for initial processing. There you will be fingerprinted and photographed.
The next step is that you will be transferred to Central Booking to await arraignment. There are several different Central Booking locations throughout New York. If you are arrested in Nassau County you will be taken to Central Booking located at 99 Main Street in Hempstead. You will remain in Central Booking until you are called for your arraignment. If you are arrested in another county, you will be taken to Central Booking located in that county. While you are in Central Booking, a representative from the Criminal Justice Agency (CJA) will interview you in order to determine your ties to the community. Based on the information elicited in the information, the CJA will make a recommendation to the judge regarding bail. The CJA will ask questions regarding where you live, whether you have a job, whether you support your family, and your level of education.
During your arraignment you will learn the charges against you. The prosecutor will have determined the charge or charges based on details about the crime you are accused of, as well as based on your criminal history. Thus, you may be charged with only course of sexual conduct against a child in the second degree, or you may learn that you are being charged with one or more additional crimes. For example, if you are accused of committing additional sex acts against the child victim outside of the two year period covered by the course of sexual conduct against a child in the second degree, the prosecutor may add an additional sex crime to the charges against you.
During your arraignment the judge will decide the amount of bail required, if you should be held without bail or if you should be released on your own recognizance (ROR). The judge's decision will be based on several factors including:
Ultimately, the judge will make an assessment of how much of a flight risk you present. If the judge determines that you present a significant risk of flight, the judge will order you to be held without bail or set a very high bail that you are not likely to be able to post. If the judge decides that you have strong ties to the community and do not present a significant flight risk, the judge will order no bail or a reasonable bail amount. If possible, it is a good idea for a friend or family member to be in the courtroom during your arraignment prepared to post bail for you. Not only will this show that you have ties to the community, if bail is set it will allow you to be released relative quickly.
After arraignment there may be a number of hearings and meetings with the prosecutor prior to your case going to trial. You must attend every hearing. If you are released on ROR or after posting bail and you do not show up for a hearing, the judge will issue a bench warrant for your arrest.
At some point the prosecutor may offer you a plea agreement that would require you to plead guilty to a lesser offense. However, if you plea to a lesser offense you will still be pleading guilty to a crime and you will be sentenced. If you do not accept a plea offer, your case will eventually go to trial.
Consequences of a convictionPrison. Course of sexual conduct against a child in the second degree is a Class D felony. In general the maximum possible sentence is 7 years in prison. N.Y. Pen. Law § 70.02. Because this crime is also classified as a violent felony, the judge is required to impose a minimum sentence of 2 years in prison. The actual length of your prison sentence will depend on factors such as your prior criminal record.
If you have a criminal record, the judge will view that as an aggravating factor. For example, if your status is that of a non-violent predicate offender meaning that you were convicted of a non-violent felony within the prior 10 years, then the court will sentence you to at least 3 years for an assault in the second degree conviction. If you are a violent predicate offender, you will be sentenced to at least 5 years in prison. If you are a persistent felony offender meaning that you have at least 2 prior felony convictions, then the minimum prison sentence you will receive is 12-25 years, and the maximum sentence is life in prison. N.Y. Pen. Law § 70.08. Mitigating factors that a judge might consider to show some lenience in sentencing may include the lack of a prior criminal history and a showing of remorse. Upon release from prison you will be required to serve a term of post-release supervision.
Post-Release Supervision. If convicted of course of sexual conduct against a child in the second degree part of your sentence will include a term of post-release supervision of 1.5-3 years. N.Y. Pen. Law § 70.45(e). Post-release supervision is a type of community supervision that is served at the end of a felony sentence. There will be several rules that you must follow while you are on post-release supervision. The rules associated with your post-release supervision vary from person to person, but may include that:
If you violate any of the terms of your post-release supervision, it is possible that a judge will order you sent back to prison to complete your original sentence plus additional time for violating your post-release supervision.
Fines, Fees and Restitution. Your sentence may also include the payment of a fine of up to $5,000. If you are convicted of a crime in New York, you will be required to pay certain fees. For a felony conviction you will have to pay a mandatory surcharge of $300 as well as a victim assistance fee of $25. N.Y. Pen. Law § 60.35. You may also be required to pay post-release supervision fees. There are also fees associated with sex offender registration.
As part of your sentence you may be ordered to pay restitution to your victim. For example, if the victim is injured and incurred medical expenses, your restitution may be the amount of the victim's medical expenses. Generally, the maximum amount of restitution is $15,000. However, the court may increase the amount to more than $15,000 to cover the amount of the victim's medical expenses.
Orders of Protection. As part of the criminal process, the prosecutor may request and the judge may grant an Order of Protection in favor of the victim. An Order of Protection is designed to keep the victim safe by limiting your actions. For example, an Order of Protection may state that you are not permitted to go near the victim or communicate with the victim for a period of time. If you live with the victim, you may be ordered to move. If you violate an Order of Protection, you could face additional criminal charges.
Criminal record. Even if you are sentenced to just the minimum prison sentence there will be consequences of being convicted of course of sexual conduct against a child in the second degree that will last for years after your prison sentence. You will have a criminal record that will negatively impact many aspects of your life such as getting a job. You will be completely excluded from practicing in certain professions such as law or teaching. You will not be able to own a gun, serve in the military, or serve on juries. You will not be able to receive certain government benefits such as welfare or federally funded housing. If you are not a U.S. citizen, you will be subject to deportation.
Sex offender registration. Course of sexual conduct against a child in the second degree like all but a few sex crimes is a "registrable" offense. This means that if convicted you will be a registered sex offender. N.Y. Cor. Law § 168. Being a registered offender is very serious and will impact many aspects of your life. You will have to register with law enforcement information such as your name, address, work address, school, photograph, aliases, email address, internet handles, crimes and victim attributes. You will have to regularly verify and update this information. If you move, then you will have to follow the registration and verification requirements of your new jurisdiction. Being a registered sex offender makes it more challenging to find employment, find housing, or even enter your child's school. You will be remain a registered sex offender for at least 20 years.
The consequences of being charged with course of sexual conduct against a child are significant, affecting your future and the futures of your family members. You could end up in prison away from your loved ones for many years. After prison you will have a criminal record and you will be labeled a registered sex offender. For this reason it is important to immediately contact experienced representation as soon as you are accused of course of sexual conduct against a child, or any sex crime. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully defending clients in New York criminal courts who are accused of sex crimes such as course of sexual conduct against a child, statutory rape, child molestation, sexual misconduct, criminal sexual act, forcible touching, sexual abuse, and facilitating a sexual offense with a controlled substance. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your case. We serve those accused of sex crimes in the following locations: