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Nassau County Persistent Sexual Abuse

N.Y. Pen. Law § 130.53

Under New York law you have committed persistent sexual abuse if you commit forcible touching, sexual abuse in the third degree or sexual abuse in the second degree and have also been convicted of these same crimes or any other felony sex crime at least 2 times within the previous 10 years. Forcible touching, sexual abuse in the third degree and sexual abuse in the second degree are all misdemeanor sex crimes. The impact of having 3 misdemeanor sex crime convictions in the space of 10 years is that with the 3rd conviction, you can be charged with persistent sexual abuse, a felony. As a result, the possible sentence is much more severe. If you are arrested and charged with any sex crime it is important to immediately contact an experienced Nassau County Persistent Sexual Abuse Lawyer who will aggressively defend you against the charges.

The Underlying Sex Crimes

The underlying sex crimes for a charge of persistent sexual abuse include forcible touching, a Class A misdemeanor; sexual abuse in the second degree, a Class A misdemeanor; and sexual abuse in the third degree, a Class B misdemeanor.

  • Forcible touching is intentionally touching the sexual or intimate parts of another person for no legitimate reason or in order to receive sexual gratification. Touching can mean squeezing, grabbing, or pinching. N.Y. Pen. Law § 130.52. This sex crime often happens in crowded, public areas such as on a subway platform, a subway car, a bus, a parade, or a party. In People v. Soto, the defendant was charged with forcible touching after he placed his fingers on a woman's vagina through her clothing while they were riding the subway. Similarly, in People v. Parbhu, 191 Misc.2d 473 (2002), while standing on a subway platform the defendant rubbed his exposed penis against the buttock and thigh area of a woman.
  • Sexual abuse in the second degree is subjecting another person to sexual contact when the other person is a child who is less than 14 years old, or where the other person is incapable of consent for any reason other than being less than 17 years old. N.Y. Pen. Law § 130.60.
  • Sexual abuse in the third degree is subjecting another person to sexual contact without that other person's consent. N.Y. Pen. Law § 130.55.

If you are convicted of a Class A misdemeanor such as forcible touching or sexual abuse in the second degree the maximum sentence is 1 year in jail. If you are convicted of a Class B misdemeanor the maximum sentence is 3 months in jail. There is no minimum sentence. First time offenders would likely not have to spend any time in jail, but would be sentenced to probation. However, if are convicted of one of these misdemeanors multiple times, you will be prosecutor under a felony charge with the possible sentence being much more severe.

The Arrest and Arraignment

If you are charged with a misdemeanor such as forcible touching or criminal sexual abuse in the second or third degree, there is a good chance that you would be issued a Desk Appearance Ticket (DAT). The arresting officer will take you to the local police precinct and give you a document that will state the charge along with the date, time, and place of your arraignment. You will be able to go home. Typically DATs are only issued for misdemeanors.

If you are charged with persistent sexual abuse, a Class E felony, you will not be given a DAT. Instead, after your arrest you will be taken to Central Booking where you will remain for several hours until you are called for your arraignment. The arraignment is a court hearing where you will be formally charged. You may be initially charged with forcible touching, criminal sexual abuse in the second degree, or criminal sexual abuse. Or you may be charged with another sex crime. However, after the prosecutor reviews the evidence in your case as well as your criminal history, the prosecutor may discover information that leads to him or her to a charge you with the felony charge of persistent sexual abuse.

At your arraignment the judge will let you know whether or not bail is required. The judge will make this determination will based on the flight risk you pose. You will then learn when you must next appear in court. It is vital for you to be present at each court date. If you miss a court date, the judge will issue a bench warrant for your arrest.

Prior to your trial, the prosecutor may offer you a plea deal that may require you to plead guilty to a lesser offense. For example, the prosecutor may decide to change the charge from persistent sexual abuse to a misdemeanor charge or a lesser felony charge. If you do not accept a plea deal, then your case will proceed to trial.

Defenses

A defense to a charge of course of persistent sexual abuse would involve challenging the underlying criminal charge. Since lack of consent is an element of forcible touching or sexual abuse in second or third degree, if you can show that the other person consented, then that would be a defense to forcible touching or sexual abuse. The prosecutor would then have a difficult time prosecuting you for persistent sexual abuse. For forcible touching intent must also be shown. If you touched the other person by accident, then you did not have the requisite intent and a charge of forcible touching will not be supported. Oftentimes forcible touching occurs in a crowded space such as a bar or a party. Thus, it may be easy for the victim to misidentify you as the perpetrator. Mistaken identity may be a valid defense.

Sentencing

If you are convicted of persistent sexual abuse, you could be sentenced to up to 4 years in prison as it is a Class E felony. There are additional factors that the court will consider in determining your sentence such as your criminal background. If this conviction is your second felony conviction, the minimum sentence that you will received is 3 years with a maximum of 4 years. N.Y. Pen. Law § 70.06. If you are convicted of other crimes in addition to persistent sexual abuse your sentence will be more severe than if you are convicted of more than just one crime. If this is your first felony offense, the judge may sentence you to significantly less prison time than 4 years. The judge may even sentence you to 10 years of probation.

While probation is a more desirable sentence than incarceration, you could find yourself incarcerated if you do not follow the probation rules. The rules may include:

  • you must not commit a crime,
  • you must have a job,
  • you must support your family,
  • you must not use controlled substances,
  • you must refrain from associating with disreputable people,
  • you must refrain from patronizing disreputable places,
  • you must not use alcohol excessively,
  • you cannot leave New York State without permission,
  • you will be subject to a curfew, and
  • you must regularly check in with your probation officer.

If you break any condition of your probation, your probation officer will violate you. You will then have to return to court and appear before the judge who sentenced you. It the judge agrees that you did violate the terms of your probation, the judge will send you to jail or modify the terms of your probation.

The consequences of a conviction for persistence sexual abuse does not end after a prison term or after a probation sentence. Persistent sexual abuse like most other sex crimes is a "registrable" offense. This means that if convicted you will be a registered sex offender. N.Y. Cor. Law § 168. You will have to follow the rules of sex offender registration and verification for at least 20 years. Based on your background, the court will determine the likelihood of you re-offending and designate you as a Level 1, 2 or 3 sex offender. Level 1 offenders present a low risk of re-offending; level 2 offenders present a medium risk of re-offending; and level 3 offenders present a high risk of re-offending. Level 1 offenders will remain on the registry for at least 20 years. Level 2 and 3 offenders will remain on the registry for life. Level 2 and 3 offenders' names are listed in the public sex offender directory so that anyone can go online and find that you are a registered sex offender. All registered sex offenders must verify their addresses with law enforcement each year, and must inform law enforcement of a new addresses within 10 days of moving. If you move out of state, you must register as a sex offender under the rules of your new jurisdiction.

The consequences of being convicted of any sex crime is serious. However, if you are determined to be a repeat offender, the consequences are even more harsh. This is why it is crucial to have someone who is knowledgeable about the New York criminal justice system support and guide you from the beginning of the case until it is resolved. 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 abuse and persistent 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:

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