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Nassau County Aggravated Sexual Abuse in the Third Degree

N.Y. Pen. Law § 130.66

Aggravated sexual abuse in the third degree is one of four aggravated sexual abuse crimes defined in New York's criminal code. While it is not as serious as aggravated sexual abuse in the first or second degree, it is still a felony with serious consequences. Under New York Penal Law you have committed aggravated sexual abuse in the third degree if you insert a foreign object into another person's the vagina, urethra, penis, rectum or anus of that person, and you do so without that person's consent. The court will conclude that there was no consent if:

  • Force was used
  • The other person was physically helpless
  • The other person was less than 11 years old
  • The other person was mentally incapacitated
  • The other person was mentally disabled

Aggravated sexual assault in the third degree is a Class D felony. If you are convicted you could go to prison for up to 7 years. N.Y. Pen. Law § 130.66. In addition to being sent to prison for multiple year, there are other consequences to being convicted of a sex crime such as having a permanent criminal record and also being required to follow the registered sex offender rules. However, there are also defenses to such a charge that may help your case to be resolved favorably. Thus, if you are a suspect in an aggravated sexual abuse criminal investigation you, a family member or friend should immediately contact an experienced Nassau County Aggravated Sexual Abuse in the Third Degree Lawyer who will explain to you your legal options and who will defend and support you until the case is resolved.

What is a foreign object?

An important element in the definition of aggravated sexual abuse in the third degree is the use of a foreign object. Under New York's criminal code a foreign object is defined as anything that could cause injury when inserted into someone's vagina, urethra, penis, rectum or anus. N.Y. Pen. Law § 130.00 (9). The statute does not give specific examples. However, defendants have been convicted under this statute based on using sticks, bottles, knifes, as well as other objects. For example, in People v. Critzer, 97 A.D.2d 878 (1983) the defendant was convicted of aggravated sexual abuse based on an accomplice shoving a glass soda bottle in the victim's vagina, while in People v. Morrow, 758 N.Y.S.2d 215 (2003) the defendant was convicted of aggravated sexual abuse based on shoving a bottle in the victim's rectum. In People v. Lackey, 827 N.Y.S.2d 331 (2007) the defendant was convicted of aggravated sexual abuse based on sticking what the victim described as a stick into her vagina. In one case the court concluded that a dirty, rubber glove was a foreign object since it is an inanimate object and it has the ability to cause physical injury. See People v. Best, N.Y. App. Div. (2002)

What if the victim was not injured?

Where there is an accusation of aggravated sexual abuse in the third degree, if the lack of consent is based on the use of force, the victim being physically helpless, or the victim being less than 11 years old, physical injury is not required. On the other hand, if lack of consent is based on the victim being mentally disabled or mentally incapacitated, then a physical injury is required to sustain the charge. A physical injury is defined as an injury that causes the victim to suffer some sort of impairment or substantial pain. N.Y. Pen. Law § 10.00 (9).

How can lack of consent be demonstrated?

A showing of lack of consent is more complex than merely saying no. Depending on whether or not the victim was injured, lack of consent can also be shown in several other ways.

  • Forcible Compulsion. Simply put, if you used physical force to insert the object into the other person, then there was a lack of consent. For example, in the case of People v. Morrow, the defendant used physical force by holding the victim's hands while an accomplice shoved a glass bottle into her vagina. Forcible compulsion also refers to using a threat of harming the victim or some other person. However, the threat does not have to be a threat of physical harm. It can also mean threatening to damage the victim's reputation by, for example, sharing compromising photos with the public. For example, in People v. Singh, 971 N.Y.S.2d 544 (2013), the defendant threatening to post compromising pictures of the victim on the internet.
  • Physically Helpless. If you insert an object into someone else while that person is unable to object because he or she is sleep, unconscious or is in some other way physically helpless, then you would not have that person's consent. N.Y. Pen. Law § 130.00 (7). For example, in People v. Puff, 724 N.Y.S.2d 247 (2001), the defendant was convicted of aggravated sexual abuse in the third degree based on sexually abusing the victim after she had passed out after using ecstasy. While in the case of People v. Puff the defendant provided the drug to the victim that resulted in her losing consciousness, it is not necessary that you personally caused the person to be physically helpless. It is enough that you found the person in a physically helpless state and you took advantage of the person's state.
  • Age. If the victim was a child under the age of 11, then the law states that he or she does not have the capacity to consent to this type of sexual activity.
  • Mental Disability. A person would not be able to consent to a sex act under this statute if that person suffers from some sort of mental disease or defect such that he or she does not have the ability to understand the nature of the act. If a person suffers from a mental disability, even if that person appears to agree to engage in the sex act or even if the person initiates it, there would be no consent and you could be charged with aggravated sexual abuse in the third degree. N.Y. Pen. Law § 130.00(5)
  • Mental Incapacity. If a person is intoxicated from drugs or alcohol, then that person would be mentally incapacitated and unable to consent to a sex act. This means that if you insert a foreign object into that person, you could be charged with aggravated sexual abuse in the third degree. N.Y. Pen. Law § 130.00(6)
What happens during arrest and arraignment?

If you are arrested for aggravated sexual abuse in the third degree, you will be first processed at a local police precinct, and then you will end up in Central Booking where you will remain until your arraignment hearing. The arraignment is the first time that you will appear before a judge, and it is the hearing at which you will be formally charged. During the arraignment 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 as well as your personal background and criminal history. Based on this information the prosecutor makes a decision as to which charges are appropriate.

At the arraignment the judge will let you know whether or not you will be required to post bail and if so, how much. 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. Finally, you will learn when you must appear in court next.

After the arraignment more hearings will occur. At some point you may 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 your case will eventually go to trial.

If I am convicted, what sentence will I receive?

Aggravated sexual abuse in the third degree is a Class D felony. New York criminal law requires that the sentence for a Class D felony conviction be up to a maximum of 7 years in prison. There is not required minimum sentence. If you are a first time offender it is possible that the judge will sentence you to no prison at all and just sentence you to a probation term of 10 years. However, if you do have a prior felony offense you will face a mandatory minimum sentence of at least 4 years in prison. N.Y. Pen. Law § 70.06.

While probation is more appealing than prison, it may present challenges for you as you will be subjected to several restrictions. With probation comes a set of rules that you are required to follow. 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
  • you must support your family
  • you must refrain from drinking excessive alcohol
  • you must refrain from using controlled substances
  • you must refrain from associating with other felons
  • you must refrain from patronizing disreputable places
  • you must report to your probation officer on a regular basis
  • you cannot leave the jurisdiction without permission.

If you break any of the conditions of your probation a judge may send you to jail.

Like most other sex crimes, aggravated sexual abuse in the third degree is a registrable offense under the New York Sex Offender Registration Act. This means that if you are convicted you will be required to follow the rules for registered sex offenders. N.Y. Cor. Law § 168. You will remain on the sex offender registry for at least 20 years. If you are Level 2 or Level 3 offender, meaning that you pose a substantial risk of re-offending, you will remain on the list for the rest of your life, and your name will be made public. This means that anyone will be able to go online and find out that you are on the sex offender registry. 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 criminal justice system is very complicated. There are several steps involved. Any misstep could have a negative impact on the resolution of your case. For this reason it is critical to have experienced representation. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully defending clients in who have been charged with sex crimes such as aggravated sexual abuse, rape, forcible touching, 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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