N.Y. Pen. Law § 245.00
A lewd act is a term used to describe any activity considered to be indecent when performed in public. A lewd act typically involves exposure of private or intimate parts to the public accompanied by behavior which is meant to provide sexual arousal. An example of lewd behavior is masturbating in public. Public could mean a park, bus, subway platform, library, beach, theater, or a public restroom. In People v. Guaman, 2014 NY Slip Op 01264 (2014), the defendant was accused of lewd conduct when he exposed his penis while standing on a subway platform when other people were also on the platform, while in People v. Davis, 164 Misc.2d 89 (1994), defendant Raymond Davis was accused of masturbating in a public restroom in the presence of others. However, you can also be accused of lewd conduct if the act is at your house or in another private residence, but is observed from a public place or from other private residences. It is against the law in New York to display lewd behavior in public. It is considered an act that is against public sensibilities. The charge you would face is public lewdness, a Class B misdemeanor. N.Y. Pen. Law § 245.00. However, a public lewdness charge is often accompanied by other more serious criminal charges. Thus, if you are accused of performing a lewd act, you should immediately contact an experienced Nassau County Lewd Acts Lawyer who will explain the criminal process to you and support and defend you until your case is resolved.
While public lewdness is not considered a sex crime and if you are convicted of public lewdness you will not be required to register a sex offender under the New York Sex Offender Registration Act (SORA), if you are charged with lewd conduct you may also face other charges that are sex crimes. For example, in the case of People v. Guaman the defendant, Luis Guaman was charged with a lewd act based on exposing his penis while standing on a subway platform. He also was charged with the sex crime of forcible touching and sexual abuse in the third degree based on rubbing his penis against the buttocks of another man without that man's consent. In many cases lewd conduct is directed toward children. In those cases a lewd conduct charge may accompany a charge of endangering the welfare of a child. N.Y. Pen. Law § 260.10
Arrest and arraignmentPublic Lewdness. You will be charged with public lewdness if you intentionally expose your private parts, such as your penis, buttocks, or vagina in a lewd manner in a public place such as a city street or on a public bus, and you also do some sort of lewd act such as masturbation. It is a Class B misdemeanor. N.Y. Pen. Law § 245.00
Forcible Touching. You will be charged with forcible touching if you touch another person's intimate parts either to abuse or degrade that person or in order to receive sexual gratification. It is a Class A misdemeanor. N.Y. Pen. Law § 130.52.
Sexual Abuse. Sexual abuse in the third degree is a Class B misdemeanor and refers to nonconsensual sexual contact. N.Y. Pen. Law § 130.55. Sexual contact is defined as touching another person's intimate parts in order to receive sexual gratification. If the sexual contact is nonconsensual because the other person is less than 14 years old, or is incapable of consent for any other reason the charge will be sexual abuse in the second degree. It is a Class A misdemeanor. N.Y. Pen. Law § 130.60. The charge will be sexual abuse in the first degree if the sexual contact is by force, with a person who is physically helpless or with a person who is less than 11 years old. In addition, you will be charged with sexual abuse in the first degree if you are at least 21 years old and the victim is less than 13 years old. N.Y. Pen. Law § 130.65.
If you are arrested for public lewdness, after initial processing at the local police precinct you may be issued a Desk Appearance Ticket (DAT). A DAT may be called a ticket, but is actually an order to appear in court. It will state that you have been charged with public lewdness. It will also list the day, time and place that you must appear in court for your arraignment hearing. DATs are issued at the discretion of the arresting officer, and are typically only given if the charge is a violation or a misdemeanor, and in some cases Class E felonies. If you are issued a DAT, you can avoid being detained in Central Booking while you await your arraignment. If you are charged with a felony sex crime or if you have a prior criminal history, it is not likely that you will be given a DAT. You will end up in Central Booking until your arraignment.
At your arraignment the prosecutor will present the criminal complaint against you that will detail the crimes with which you are charged. Between the time of your arrest and your arraignment, the prosecutor will have reviewed the evidence in your case as well as your criminal history and may determine that you should be charged with additional crimes, or different crimes. You will have the option of pleading guilty or not guilty.
Before your trial you may be able to reach a plea agreement with the prosecutor. If you are charged with public lewdness the prosecutor may agree to lower the charge to disorderly conduct or harassment. Each of these charges is a violation, not misdemeanors or felonies. N.Y. Pen. Law § 240.26. Or if you are charged with a sex crime such as forcible touching or sexual abuse, the charges may be reduced to a single count of public lewdness. It is up to you to decide if you prefer to go to trial on the original charges or if you prefer to accept a plea deal. However, trials are rare the defendant is charged with a single misdemeanor.
SentencingThe sentence you will face for lewd acts or an accompanying sex crime varies depending on the charge.
Public Lewdness. This is a Class B misdemeanor. If convicted the possible sentence is up to 3 months in jail, probation for 3 years and a fine of up to $500.
Forcible Touching. This is a Class A misdemeanor. If convicted the possible sentence is up to 1 year in jail, probation for 6 years and a fine of up to $1,000. However, if you have been convicted of forcible touching in the past, you may be charged with persistent sexual abuse, a Class E felony. N.Y. Pen. Law § 130.53. The possible sentence for a persistent sexual abuse conviction is up to 4 years in prison.
Sexual Abuse in the Third Degree. This is a Class B misdemeanor. If convicted the possible sentence is up to 3 months in jail, probation for 6 years and a fine of up to $500.
Sexual Abuse in the Second Degree. This is a Class A misdemeanor. If convicted the possible sentence is up to 1 year in jail, probation for 6 years and a fine of up to $1,000.
Sexual Abuse in the First Degree. This is a Class D felony. If convicted the possible sentence is up to 7 years in prison, probation for 10 years and a fine of up to $5,000.
In addition to a prison sentence, you may also be sentenced to probation. If you are sentenced to probation for a public lewdness conviction, the probation term would be 3 years. For a misdemeanor sex crime conviction the probation term would be 6 years, while a felony sex crime conviction carries a probation sentence of 10 years. If you are sentenced to probation you will have to follow several strict rules, or risk having your probation revoked and being sent to prison. The rules attached to your probation may require you to abide by a curfew, submit to warrantless searches, to refrain from associating with disreputable people, to submit to drug testing, to have a job, to support your family, and to generally stay out of trouble. You have to report to your probation officer on a regular basis. If you violate your probation you will have to go before a judge who may decide to revoke your probation and resentence you to prison.
Another consequence of being convicted of public lewdness or any sex crime is that you will have a criminal record. While public lewdness is not a registrable offense under the SORA, forcible touching, sexual abuse or almost any other sex crime whether it is a misdemeanor or a felony are registrable offenses. Law enforcement will maintain a record of your name, home address, school name and address, the name and address over your employer, your email address, online your screen names, as well as other identifying information. You will have to regularly provide an updated photo and regularly verify your address. If it is determined that you present a high risk of re-offending, your information will be made public so that anyone will be able to go online and learn that you are a registered sex offender. You will be required to register for at least 20 years, and maybe for the rest of your life.
If you have been accused of a committing a lewd act, you may face additional, more serious charges such as forcible touching, sexual abuse, or endangering the welfare of a child. If convicted you may be sentenced to several years in prison and be required to register as a sex offender. If you are arrested for public lewdness, you should immediately consult an experienced Nassau County Lewd Acts Lawyer. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully defending clients in New York criminal courts who are accused of public lewdness as well as sex crimes such as forcible touching and sexual abuse. 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: