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Nassau County Aggravated Sexual Abuse in the First Degree

N.Y. Pen. Law § 130.70

Aggravated sexual abuse in the first degree is a sex crime that does not involve sexual intercourse. It involves injuring someone by inserting a foreign object into that person's vagina, urethra, penis, rectum or anus, doing so

  • By forcible compulsion
  • When the victim is physically helpless, or
  • When the victim is a child who is less than 11 years old.

As a Class B felony, aggravated sexual abuse in the first degree is one of the most serious sex crimes in New York's criminal code. N.Y. Pen. Law § 130.70. If you are convicted your prison sentence could be up to 25 years. In addition to possibly more than two decades behind bars, there are other serious consequences to being convicted of aggravated sexual abuse in the first degree such as being required to registered as a sex offender and having a permanent criminal record. In order to have the best chance of fighting a charge of aggravated sexual abuse in the first degree, as soon as you are charged you or a loved one should contact an experienced Nassau County Aggravated Sexual Abuse in the First Degree Lawyer who will vigorously defend you throughout the criminal process.

Difference among the aggravated sexual abuse charges

In the New York criminal code there are 4 different aggravated sexual abuse charges: aggravated sexual abuse in the first degree, second degree, third degree, and fourth. Aggravated sexual abuse in the first degree is the most serious of the 4 charges. The main different between first and second degree aggravated sexual abuse is that with second degree a finger is used, while with first degree a foreign object is used. With third and fourth degree aggravated sexual abuse, injury to the victim is not required to be charged, while with first and second injury is required. Thus, the combination of the use of a foreign object and injury to victim is required for the charge to rise to aggravated sexual abuse in the first degree charge. However, the statute does not provide examples of what a foreign object can be for the purpose of this offense, so the assumption is that any object can be the basis for a charge. For example, defendants have been prosecuted based on inserting bottles and sharp sticks in victims.

Lack of consent requirement

In order for you to be charged with aggravated sexual abuse in the first degree, the prosecutor must be able to show that you inserted a foreign object into the victim and that you did so without the consent of the other person. N.Y. Pen. Law § 130.05. If you used forcible compulsion, if the victim was physically helpless, or if the victim was a minor, then consent was not present.

  • Forcible Compulsion. If you overpowered the victim by using physical force and then inserted a foreign object into the vagina, urethra, penis, rectum or anus of the other person, then that would be enough to establish that you used forced. However, for you to use forcible compulsion it is not necessary for physical force to be present. If you show a weapon such as a gun or knife, or if you threaten to kill or injure the victim or some else, then you would have used forcible compulsion so that you could sexually abuse the victim. N.Y. Pen. Law § 130.00(8)
  • Physically Helpless. A person who is unconscious or in some other way unable to communicate refusal participate in the sex act is also not able to consent. Thus, it is a crime to insert a foreign object into someone else's vagina, urethra, penis, rectum or anus if that person is physically helpless. N.Y. Pen. Law § 130.00 (7). In order to face this charge it is not required that you were the person who caused the victim to be physically helpless. It is enough that you found the person in a physically helpless state and then inserted a foreign object into that person.
  • Child. New York law states that a child is not able to consent to a sex act. Thus, if the victim is a child who was less than 11 years old then he or she was too young to consent to this type of sexual contact.
The Arrest and Arraignment

If you are arrested for aggravated sexual abuse in the first degree you will immediately be taken into custody at the local precinct. You will then be taken to Central Booking where you will await your arraignment hearing. In some cases where the charge is a misdemeanor, for example, the arresting officer would have the discretion to issue you a Desk Appearance Ticket (DAT), so that you would avoid having to go to Central Booking. However, because aggravated sexual abuse in the first degree felony a DAT is not an option.

The arraignment is a hearing where you will be formally charged. While you might be arrested and told that you are facing a charge of aggravated sexual abuse in the first degree. However, while you are in Central Booking waiting to be the arraigned, the prosecutor will have had the opportunity to the details surrounding your case, including the evidence as well as your criminal history. Based on this, the prosecutor may decide to change the charge or add additional charges. For example, based on the allegations of the case, the prosecutor may also charge you with rape, sexual abuse, facilitating a sexual offense with a controlled substance, predatory sexual assault, predatory sexual assault of a child, or course of sexual conduct against a child. In addition, you may also be charged with other offenses that are not sex crimes such as assault or kidnapping.

At the arraignment the judge will determine your bail status. Whether or not the judge will require bail and the amount of bail will be based on how much of a flight risk the court determines you to be. That determination will be based on several factors including the seriousness of the charge, your employment status, and your living situation. The judge may set bail, decide that no bail is necessary and release you, or decide that you present a significant flight risk and require that you be held without bail.

After the arraignment, there will be a series of hearings and meetings. At some point you may be able to strike a plea deal with the prosecutor in which you agree to plead guilty to the original charges or to lesser charges. If no plea deal is agreed upon, then you will eventually go to trial.

Defenses

There may be a number of defenses to the charge of aggravated sexual abuse in the first degree that you can raise that may result in the charges being dismissed, the charges being reduced, or you being acquitted at trial. One of the key elements to the charge is that you used force and, therefore, there was no consent. However, if you can show that the other person did in fact consent to the act, then you have a valid defense.

Another defense defined by that statute is that you had a valid medical reason for inserting the foreign object into the vagina, urethra, penis, rectum or anus of the victim. N.Y. Pen. Law § 130.70(2). If the victim or law enforcement waits too long to bring the charges against you, the prosecutor may be barred by that statute of limitations from prosecuting you. Under New York law such a charge of aggravated sexual abuse in the first degree must be brought within 5 years of the incident. N.Y. Crim. Pro. Law § 30.10. This means that if you are not prosecuted within five years of when the incident reportedly occurred, the prosecutor is time-barred from prosecuting you at all for that crime. Sometimes a delay in prosecution is due to the victim waiting a long time to report the incident to law enforcement. In other cases the prosecutor may have trouble assembling evidence and other necessary information to immediately charge you. An exception to this rule is with cases where the victim was less than 18 years old at the time of the incident. In such a case the limitations period does not begin to run until the victim turns 18 years old or until the incident is reported to law enforcement.

Sentencing

The maximum sentence for being convicted of aggravated sexual abuse in the first degree is up to 25 years in prison as it is a Class B felony. Aggravated sexual abuse in the first degree is a Class B felony. Like a few other sex crimes aggravated sexual abuse in the first degree is also a violent felony offense. As such if you are convicted you will face a mandatory minimum sentence of 5 years in prison and a maximum sentence of 25 years. You must serve at least 6/7 of your the prison sentence before you will be eligible to be released on parole.

There are additional factors that the court will consider in determining your sentence. If you have been previously convicted of a violent felony, the law requires that the judge sentence you to at least 10 years in prison. N.Y. Pen. Law § 70.04. If you are convicted of other crimes in addition to aggravated sexual abuse in the first degree, your sentence will be more severe than if you were convicted of just one crime.

On the other hand, if you are a first time offender the required minimum sentence for an aggravated sexual abuse in the first degree conviction is 5 years in prison. However, if you are able to negotiate a plea deal with the prosecutor such that the charge is reduced to aggravated sexual abuse in the second degree or another charge that is not classified as a violent felony, then it is possible that you could be sentenced to a short prison term or even to probation.

While probation is a lighter sentence than jail, when you are on probation you are still subject to several restrictions. With probation comes a set of rules referred to as conditions of probation. The rules may differ slightly for each person but may include: you must not commit a crime, you must have a job or be enrolled in school, you must support your family, you must refrain from associating with disreputable people such as other felons, you must not use controlled substances, you cannot leave New York State without permission, and you must regularly check in with your probation officer. If you break any of the conditions of your probation a judge may send you to jail. Because aggravated sexual abuse in the first degree is both a felony and a sex crime, the mandatory probation term is 10 years.

If you are convicted of aggravated sexual abuse in the first degree once you are released from prison you will be required to follow the rules of the Sex Offender Registration Act. N.Y. Cor. Law § 168. Depending on the level of risk you are determined to pose to the public, you will be labeled as a Level 1, 2 or 3 sex offender. Level 1 offenders present a low risk of re-offending. If you are a Level 1 offender, you will be required to follow the registration and verification rules for 20 years. Level 2 and Level 3 offenders will be required to do so for life. Furthermore, Level 2 and 3 offenders' names, addresses, photographs, crimes, and other information is listed in the public sex offender directory so that anyone can go online and find that information. If you move out of state, you must register as a sex offender under the rules of your new jurisdiction.

Defending any sex offense charge is always complicated. There is always conflicting testimony and other complex issues related to proof. However, because you freedom is at stake, it is important that you are represented by someone with experience. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully defending clients in New York criminal courts who have been charged with sex crimes such as aggravated sexual abuse, criminal sexual act, 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.

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