N.Y. Pen. Law § 130.52
Forcible touching, sometimes referred to as criminal fondling or groping, is one of the few sex crimes in the New York Penal Law that is a misdemeanor and not a felony. It involves the touching of the private or intimate parts of another person for sexual gratification without that person's consent. N.Y. Pen. Law § 130.52. Examples of the meaning of the term "touching" include squeezing, grabbing or pinching. Even though forcible touching is a misdemeanor, it is still a crime. If you are convicted you could incarcerated and you will have a criminal record. This will impact not only your personal life, but your professional life as well. If you are accused of criminal fondling, forcible touching, or any other misdemeanor or felony sex crime it is important that you take it seriously and immediately contact an experienced Nassau County Criminal Fondling Lawyer who is familiar with the New York criminal system and who will aggressively defend you against the charges.
Criminal fondling, forcible touching or groping can occur anywhere. One of the most common places for this crime to occur is in crowded public spaces such as packed buses or subway trains where passengers often stand very close together. In such cases, it is easy for someone to take advantage of the crowded space to fondle another person without that person's consent and attempt to cover up the touching by blaming it on the motion of the subway train or bus. Thus, it is common for the accused and the victim to be strangers. In People v. Soto, 192 Misc.2d 161, 167 (2002), the defendant was charged with forcible touching after he touched the victim's vagina through her clothing while they were riding in a subway car. In another case, the defendant Outram Parbhu rubbed his exposed penis against a woman's buttocks and thigh while they were standing on a subway platform. People v. Parbhu, 191 Misc.2d 473 (2002).
However, forcible touching also occurs in private residences or in other nonpublic places. In such cases the accused and victim are often relatives. For example, in People v. Smiley, 2010 N.Y. Slip Op. 5154 (2010) and People v. Powell, 19 Misc.3d 364, 365 (2008), the touching occurred in private residences. In both cases the victims were minors and the defendants were relatives.
Criminal fondling is different from sexual misconduct or rape in that penetration is not required for someone to be charged with criminal fondling. In addition, the touching can be through clothing. In fact, it is not unusual for the victim to be fully clothed in cases of forcible touching. In both People v. Soto and in People v. Powell the touching occurred through clothing. It is only necessary that you intentionally touch another person's intimate parts without that person's consent for sexual gratification and for no legitimate reason. Intentionally means that the touching was not accidental, but that you consciously or purposely touched the other person's intimate parts.
While "intimate parts" is not specifically defined in the sex crimes statute, defendants have been convicted of forcible touching based on touching another person's vagina, penis, breasts, or buttocks. For example, in People v. Smiley, the defendant touched the 13-year old victim's vagina, breasts, and buttocks. While the statute describes touching as "squeezing, grabbing, or pinching," it does not define these terms. Courts have interpreted the language in the statute as merely being examples of conduct that the forcible touching charge was designed to address.
Lack of consentIn order to be convicted of forcible touching, the prosecutor must be able to show a lack of consent. Lack of consent can be shown in several different ways. For example, if you used physical force, then there clearly was no consent. If the victim did not have the legal or mental capacity to consent because, for example, the victim was minor or the victim was mentally disabled, mentally incapacitated or physically helpless, then the touching would have been nonconsensual. N.Y. Pen. Law § 130.05
Arrest and arraignmentIf you are accused of forcible touching you will be arrested and taken into custody. The officer will take you to the local precinct where you will be photographed and fingerprinted. The next step is your arraignment. Because forcible touching is a misdemeanor and not a felony, the arresting officer has the option of either issuing you a Desk Appearance Ticket (DAT) or sending you to Central Booking. Generally, a police officer will issue a DAT if you do not have a criminal history and the criminal charge is a misdemeanor. Because forcible touching is a misdemeanor, there is a good chance that you will be issued a DAT. The DAT will state that you have been charged with forcible touching. It will also state the day, time and place of your court hearing. If you fail to appear in court at the specified date, time and place, the judge will issue a bench warrant for your immediate arrest.
If instead of being issued a DAT you are sent to Central Booking that means that you will remain in custody until your arraignment. If you are arrested in Nassau County you will be sent the Central Booking at 99 Main Street in Hempstead. You will remain in Central Booking for several hours until you are called for your arraignment.
At your arraignment the prosecutor will present you and the court with the criminal complaint against you. The complaint will list each of the charges against you as well as the circumstances of the case. If you are charged with forcible touching, you may also be charged with indecent exposure, assault and other related crimes. You will have the opportunity to enter a plea of guilty or not guilty.
Defenses to a charge of forcible touchingLack of consent is a critical element for a charge of forcible touching as well as other sex crime charges. If you can show that the other person consented to the fondling, then you have a valid defense to a forcible touching charge and the prosecutor will have a hard time proving that you committed the crime of forcible touching.
For a forcible touching charge to stick there must also have been intent. If you and the victim were on a crowded train traveling at a high speed, the jostling of the train may cause you to accidently brush up against the victim. The victim may interpret the "touching" as criminal fondling. However, if you can show that there was no intent, but a mere accident, you have a valid defense to a charge of forcible touching. However, keep in mind that bumping into another person or your hand accidently briefly touching another person is different from rubbing or grabbing the intimate parts of another person.
The statute of limitations may also provide a defense. The statue of limitations refers to the amount of time that a prosecutor has to bring a criminal case against you. The statute of limitations for forcible touching is just two years. N.Y. Crim. Pro. Law § 30.10. If the prosecutor fails to bring charges against you with 2 years of the incident, then the prosecutor is forever barred from prosecuting you. An exception to this general rule is where the person accusing you of forcible touching was under 18 years old at the time of the incident. If this is the case the limitations period will not begin to run until the child turns 18 years old or until the incident is reported to law enforcement.
Mistaken identity is another possible defense. If the incident occurred in a crowded space such as a party or a subway platform, the victim may have identified you as the perpetrator, when in reality it was not you at all.
Sentences and other consequencesForcible touching is a Class A misdemeanor, carrying a possible sentence of up to one year in jail. In the case of first time offenders there is no minimum required sentence. This means that the judge has the option of sentencing you to just a few months in jail, or to just probation. However, if you have been convicted of forcible touching in the past you may be labeled a repeat offender and the prosecutor may decide to charge you with persistent sexual abuse, which is a Class E felony. N.Y. Pen. Law § 130.53. If convicted of persistent sexual abuse you could be sentenced to up to 4 years in prison. On the other hand, instead of going to trial, you may be able to work out a plea agreement with the prosecutor that allows you to plead guilty to a less severe charge such as harassment or disorderly conduct. N.Y. Pen. Law § 240.26. Both harassment and disorderly conduct are violations.
Even though forcible touching is not a felony, if you are convicted of forcible touching or almost any other sex crime whether misdemeanor or a felony, you will have the designation as a registered sex offender. However, in the case of a forcible touching conviction you will be required to register as a sex offender under the New York Sex Offender Registration Act (SORA) only if the victim was less than 18 years old or if you have a prior conviction at any time for a
Under SORA, you will be required to register for at least 20 years and perhaps for the rest of your life, depending on the level of risk of reoffending you are assessed to present.
The consequences of being convicted of forcible touching or any other sex crime are significant, affecting both your personal and professional lives. For this reason it is important to immediately contact an experienced attorney as soon as you are accused of criminal fondling. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully defending clients in New York criminal courts who are accused of misdemeanor and felony sex crimes, such as forcible touching, sexual misconduct, criminal sexual act, sexual abuse, aggravated 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: