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Nassau County Criminal Sexual Act in the First Degree

N.Y. Pen. Law § 130.50

Criminal sexual act is a crime defined in New York law that is sometimes referred to as "rape." However, under New York Penal Law, it is still a sex crime, but is distinguishable from rape. Criminal sexual act involves engaging in anal or sex with another person without that person's consent. On the other hand rape involves engaging in sexual intercourse without the other persons consent. Sexual intercourse is defined as the penetration of a vagina by a penis. Under New York Penal Law criminal sexual act in the first degree is defined as engaging in anal sex or oral sex with another person by forcible compulsion, with another person who is physically helpless, or with a child who is less than 11 years old. An additional basis for this charge is engaging in anal or oral sex with a child who is less than 13 years old, if you are at least 18 years old. There are 3 different criminal sexual act offenses under New York law. Criminal sexual act in the first degree is the most serious. It is a Class B felony. If you are convicted of this crime the judge could sentenced to up to 25 years in prison. N.Y. Pen. Law § 130.50. Even if you do not receive the maximum possible sentence, because criminal sexual act in the first degree is considered a violent felony you will still spend several years in prison, and you will have to face additional life-altering consequences once you are released. Because criminal sexual act in the first degree is such a serious charge as soon as you have been arrested you or a family member should contact an experienced Nassau County Criminal Sexual Act in the First Degree Lawyer who will explain your legal options and aggressively defend you from your arraignment until your case is resolved.

Lack of Consent

In order for you to be convicted of criminal sexual act in the first degree the most important element that the prosecutor must show the court is that the victim did not consent to the sex act. N.Y. Pen. Law § 130.05. Under the statute there would have been no consent if one of the following conditions was present:

  • Forcible Compulsion. A common way that criminal sexual act in the first degree is accomplished is by the use of physical force. In addition to physical force according to the sex crimes statute forcible compulsion also refers to using an express or implied threat of death or physical injury either to the victim or to someone else. N.Y. Pen. Law § 130.00(8)
  • Physically Helpless. If you have oral or anal sex with a person who is sleep, unconscious or who for some other reason is unable to express refusal to participate in the sex act, then there was no consent. N.Y. Pen. Law § 130.00 (7). This does not mean that you had to have caused the person to be physically helpless. It just means that you had sex with a person who was in a physically helpless state.
  • Age. It is against the law to have sex with a child because children do not have the capacity to consent to sex. Under the criminal sexual act in the first degree statute you would have committed this offense if the victim is a child who is less than 11 years old, or if you were at least 18 years old and the child was less than 13 years old. In People v. Toback, 2015 NY Slip Op 01204 (February 11, 2015), defendant Terrance Toback pled guilty to criminal sexual act in the first degree based on sexual contact he had on two occasions with a girl who was under the age of 13 when he was 22 years old.
The Arrest and Arraignment

Because criminal sexual act in the first degree is a felony if you are arrested for this crime you will be first be processed at the local precinct, then you will be taken to Central Booking facility in the county in which you were arrested. For example, for Nassau County Central Book is at 99 Main Street in Hempstead. You will be required to wait at Central Booking until your arraignment hearing. While you are waiting to be arraigned the prosecutor will review your case, including the evidence and your background.

The arraignment is the hearing where you are formally charged. Even if you are arrested based on being suspected of having committed criminal sexual act in the first degree based on what the prosecutor learns upon reviewing the allegations in the case, the evidence and your background, it is possible that the prosecutor will add additional criminal charges. For example, the prosecutor may also charge you with rape in the first degree or sexual abuse in the first degree. In addition, you may be charged with other criminal offenses that are not sex crimes.

During arraignment the judge will also address the issue of bail. The judge will take several factors into consideration when determining the bail issue. For example, the judge will consider the serious of the charges, whether you live in the area, whether you have a job, whether you have a high school or college degree. The prosecutor will argue for substantial bail while your defense will argue for no bail. The judge will base the bail decision on how much of a flight risk you present. The judge may release you on your own recognizance, set bail or require that you be held without bail. If you are released on your own recognizance or after posting bail, it is important to know that you must attend every court hearing, otherwise the judge will issue a bench warrant for your arrest.

After arraignment there are several possible additional steps in the criminal process including multiple hearings and meetings. Between the time of your arraignment and your trial the prosecutor may offer you a deal that would require you to plead guilty to a lesser charge. If you agree you will not have to stand trial. You will still be convicted of a crime. However, it is likely that the crime would be less serious than the original charge, meaning that you would serve less prison time. For example, Terrance Toback was originally charged with 5 different crimes based on sexual contact he had with a child who was under the age of 13. He agreed to a plea offered to him by the prosecutor that resulted in him pleading guilty to one count of criminal sexual act in the first degree. He was sentenced to 5 years in prison and 15 years of post-release supervision. People v. Toback, 2015 NY Slip Op 01204 (February 11, 2015)

Defenses

Depending on the circumstances of your case there may be several possible defenses that could help you to be acquitted. Because the lack of consent is a key element to a criminal sexual act charge or any sex crime, the prosecutor will have a difficult time successfully prosecuting you if you can show that there was consent to the anal or oral sex. In fact, if you can show consent the prosecutor may decide to drop the charges against you. This means that you will have to show that there was no forcible compulsion or that the victim was not physically helpless.

Another possible defense is that you did not intend to commit criminal sexual act in the first degree. An example of this is if you were so intoxicated at the time of the incident that you were incapable of forming the intent necessary for a charge of criminal sexual act. For example, in People v. Velcher, 2014 N.Y. Slip Op. 02464 (2014), defendant Ilia Velcher was convicted of criminal sexual act in the first degree as a result of having sex with a 17 year old girl. When the defendant appealed the conviction the Court ordered a new trial concluding that because Velcher was intoxicated at the time of the incident he may not have been able to form the requisite intent to commit criminal sexual act in the first degree.

In some cases the victim allows a great deal of time to pass before approaching law enforcement about the incident. If the victim waits too long he or she may have a statute of limitations problem. Under New York law a felony charge must be brought within 5 years of the incident. N.Y. Crim. Pro. Law § 30.10. This means that if the prosecutor does not pursue a case against you within 5 years of when the incident reportedly occurred, the prosecutor is time-barred from prosecuting you at all for that crime. An exception to this rule is 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

Because criminal sexual act in the first degree is classified as a Class B felony, if you are convicted the judge could send you to prison for as many as 25 years. Furthermore, it is also one of a few sex crimes that are also classified as violent felony offenses. As such if you are convicted you will face a mandatory minimum sentence of 5 years in prison. You must serve at least 6/7 of the prison sentence before you will be eligible to be released on parole.

In determining your sentence the court will also consider your criminal history. If this conviction is your second violent felony conviction, the judge will be required to sentence you to at least 10 years and up to 25 years. N.Y. Pen. Law § 70.04. If you are convicted of other crimes in addition to criminal sexual act in the first degree, even if they are misdemeanors 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 and are convicted of criminal sexual act in the first degree, your minimum sentence will be 5 years in prison. However, if you are able to negotiate a plea deal with the prosecutor such that the charge is reduced to criminal sexual act 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 much shorter prison term or even to probation.

Probation may be part of your sentence. Since criminal sexual act in the first degree is a felony as well as a sex crime, the mandatory probation term is 10 years. If you are sentence to probation, you must agree to follow a number of rules while you serve your probation term. For example, you will be required to have job or diligently search for one. You will be required to support your family. You will not be allowed to associate with disreputable people or patronize disreputable places. You cannot use controlled substances or drink alcohol excessively. If you want to leave New York State, you will be required to first get permission. A probation officer will be assigned to you, and you will be required to check in to with your probation officer on a regular basis. If you break the conditions of your probation a judge may send you to jail.

Registered Sex Offender

Criminal sexual act in the first degree is a registrable offense. This means that if you are convicted of this crime you will be required to register as a sex offender. 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; level 2 offenders present a medium risk of re-offending; and level 3 offenders present a high risk of re-offending. If you are determined to be a Level 1 offender, you will remain on the registry for at least 20 years. If you are determined to be a Level 2 or 3 offender you will remain on the registry for the rest of your 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, as well as your address and details about your crime.

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.

Defending a criminal sexual act in the first degree charge is complex, requiring an understanding of New York criminal law and procedure as well as understanding available defenses. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully defending clients in New York criminal courts who are accused of criminal sexual act in the first degree as well as other sex crimes such as sexual misconduct, rape, 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. We serve those accused of sex crimes in the following locations:

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