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Nassau County Aggravated Sexual Abuse in the Second Degree

N.Y. Pen. Law § 130.67

While the term most commonly associated with sex crimes in rape, under New York criminal law there are several other sex crimes, including aggravated sexual abuse. In fact, there are four offenses called aggravated sexual abuse. Aggravated sexual abuse is different from the crime of rape. While rape involves sexual intercourse where the penis penetrates the vagina, aggravated sexual assault involves inserting either a finger or foreign object into the vagina, urethra, penis, rectum or anus of another person without that person's consent. Aggravated sexual abuse in the second degree, a Class C felony, is the second most serious aggravated sexual abuse offense. If you are convicted, you could end up spending up to 15 years in prison. N.Y. Pen. Law § 130.67. You will be charged with this crime if you physically injure someone when you insert your finger into another person's vagina, urethra, penis, rectum or anus:

  • By physical force
  • Where that person is physically helpless, or
  • Where the other person is a child who is less than 11 years old.

The consequences of being convicted of this crime go beyond having to serve a significant term in prison, as you will have a criminal record and will be required to register as a sex offender. Because of the potentially grave consequences of being arrested and charged with aggravated sexual abuse in the second degree, as soon as you have been arrested it is critical that you or a family member immediately contact an experienced Nassau County Aggravated Sexual Abuse in the Second Degree Lawyer who will be there to defend you from your arraignment until your case is resolved.

The Issue of Consent

The issue of consent is the most important issue in a case involving the accusation of aggravated sexual abuse in the second degree, or in a case involving any type of sex crime. If you are accused of a sex crime and can show that the other person did indeed consent to the sex act, then the prosecutor will have a difficult time sustaining the sex crime charge against you.

In the case of aggravated sexual abuse in the second degree, the lack of consent can be demonstrated in three different ways:

  • Forcible Compulsion. Forcible compulsion means that in order to perform the sex act y you used physical force or the threat of physical force. The threat can be express or implied. The threat must place the person in fear of immediate death, physical injury, physical injury to another person such as a friend or family member. Furthermore, the threat can also be one that places the person in fear of being immediately kidnapped or that another person will be kidnapped. N.Y. Pen. Law § 130.00(8)
  • Physically Helpless. A person who is physically helpless does not have the ability to consent to a sexual act. Physically helpless means that a person is unconscious or for any other reason physically unable to communicate unwillingness to an act. For example, if a person passes out because they are ill or because they are intoxicated, it would be illegal for you to take advantage of the person by performing a sex act on that person. It is irrelevant that to you did not cause the victim to become physically helpless. It is enough that you found the person in a physically helpless state and then inserted your finger into that person.
  • Child Victim. Minors do not have the legal capacity to consent to sex. Thus, if you inserted your finger or a foreign object into the vagina, urethra, penis, rectum or anus of someone who is less than 11 years old, then you will be charged with aggravated sexual abuse in the second degree. It does not matter if the child appeared to have consented; the law says that a person who is less than 11 years old is too young to consent to this type of sexual activity (or any type of sexual activity).
The Arrest and Arraignment Process

The criminal just system is scary and complicated. The first step is in the process is being arrested. You will be taken into custody at the local police precinct where initial processing will take place such as fingerprinting and photographing. You may have heard of something that is called a "Desk Appearance Ticket" or DAT. Some people who are arrest receive a DAT after being taken into custody. This allows them to go home instead of being transferred to Central Booking. However, because aggravated sexual assault in the second degree is a Class C felony, the arresting police officer will not issue a Desk Appearance Ticket. Instead, after you are processed in the local precinct you will be taken Central Booking. The location of the Central Booking facility where you will be taken depends on where you were arrested. In Nassau County, Central Booking is located at 99 Main Street in Hempstead. You will remain in Central Booking until you are called for your arraignment. While you are in Central Booking, someone from the Criminal Justice Agency (CJA) will interview you. The CJA will use the information elicited during the interview to 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.

Several things may happen at your arraignment proceeding. The prosecutor will present the criminal complaint against you which will detail the charges against you. You might be surprised to learn that the charges against you are different from what you expected. While you were in Central Booking waiting to be the arraigned, the prosecutor will have had the chance to review the facts of your case, your personal background as well as your criminal history. Based on this the prosecutor makes a decision as to what charges are appropriate. In some cases the prosecutor will add additional criminal charges such as facilitating a sexual offense with a controlled substance 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 child endangerment or assault.

At the arraignment the judge will determine your bail status. The judge will consider the recommendation of the CJA as well as the seriousness of the charges against you. The prosecutor will likely argue of significant bail, while your defense will argue against bail. Ultimately the judge will make the bail decision based on how much of a flight risk you are. For example, if you are a resident of the area, have family in the area, have had a steady job for a while, and have a high school or college degree, the judge may view you as not be as much as a flight risk as someone who is not from the area and who does not have a steady job. Based on that assessment 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. If bail is set, you will have to post it before you will be released. If your family is able to post bail at your arraignment, then you may be able to be released from custody soon after your arraignment.

After the arraignment there will be several other steps in the criminal process before a final resolution of your case, including several hearings and meetings with the prosecutor. If you are released on your own recognizance or after posting bail, it is critical that you return to court for each hearing. If you fail to do so, the judge will issue a bench warrant for your immediate arrest.

At some point you may strike a plea deal with the prosecutor that would require you to plead guilty to lesser charges in order to avoid a trial and possible conviction on the original, more serious charges. If you do agree to a plea, while your sentence may be less severe than if you were found guilty at trial, you will still have pled guilty to a crime and will have to face the consequences of that plea.

Defenses to a charge of aggravated sexual abuse in the second degree

You may have defenses to the charge of aggravated sexual abuse in the second degree. Depending on the type of defense and the evidence to support the defense, a defense may result in the charges against you being dropped, the charges being reduced, or you being acquitted. Possible defenses to a charge of aggravated sexual assault in the second degree include consent, medical necessity, statute of limitations, or mistaken identity.

Since one of the key elements to the charge is that there was no consent, if you can show that the other person did in fact consent to the act, then the prosecutor would have a difficult time moving forward with the case. If you inserted your finger into the victim for a valid medical reason and not for sexual gratification, then you have valid defense. N.Y. Pen. Law § 130.70(2). For example, if you are a licensed healthcare professional performing a vaginal examination with the person's consent or in a medical emergency, then you have a defense to prosecution under the statute.

Sentencing

Because aggravated sexual abuse in the second degree is a Class C felony, the maximum is 15 years in prison. Like aggravated sexual abuse in the first degree aggravated sexual abuse in the second degree is also a violent felony offense. This means that the law prescribes minimum sentencing guidelines that the judge must following when sentencing you. The minimum sentence of 3.5 years in prison, even if you are a first time offender. If this conviction is your second violent felony conviction, the minimum prison sentence that you will be given is 7 years. N.Y. Pen. Law § 70.04

However, you may be able to negotiate a plea agreement with the prosecutor such that the charges are reduce to a less serious crime that would not require a prison sentence. Instead, you may be sentenced to just probation. For a felony offense that is a sex crime a sentence of probation would be 10 years.

Probation comes with several rules that you are required to follow or risk going to prison. Depending on the nature of the crime you were convicted of and your personal background, these rules may include: you must not commit a crime, you must have a job or be enrolled in school, you may be required to submit to random drug testing, you may be required to complete an alcohol or substance abuse program, you must refrain from associating with disreputable people, 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 of the conditions of your probation a judge may revoke your probation and order that you be incarcerated.

Aggravated sexual abuse in the second degree is a registrable offense under the New York Sex Offender Registration Act. This means that you will be required to follow the rules for registered sex offenders. All registered sex offenders must verify their addresses and other personal information with the Division of Criminal Justice Services (DCJS) each year, and must inform the DCJS 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. You will have to follow the sex offender registration rules for at least 20 years. Some sex offenders will have to do so for the rest of their lives.

Defending any sex offense charge is always complicated, involving an understanding of not only criminal law, but how to interpret complex evidence. 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, sexual misconduct, criminal sexual act, forcible touching, sexual abuse, sexual conduct against child, 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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