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Nassau County Sexual Abuse in the First Degree

N.Y. Pen. Law § 130.65

Sexual abuse is a type of sex crime that involves subjecting another person to sexual contact without that person's consent. There are 4 bases for a sexual abuse in the first degree charge. Two of them are based on the age of the victim. If you are at least 21 years old and the victim is under 13 years old, then you will face a first degree sexual abuse charge. If you are any age and the victim is less than 11 years old, then you will face this charge. In addition, if you subject a person to sexual contact by force, or if the victim is physically helpless, you will face a first degree sexual abuse charge. This crime is a Class D felony meaning that if you are convicted the judge could sentence you to a prison term of up to 7 years. N.Y. Pen. Law § 130.65. A conviction for sexual abuse in the first degree means more than just prison time. You will also have a criminal record and you will be required to register as a sex offender. For these reasons if you have been charged with sexual abuse in the first degree you should take immediate steps to defend yourself. You should contact an experienced Nassau County Sexual Abuse in the First Degree Lawyer who will review the facts of your case and work closely with you to aggressively defend you against the charges.

Definition of Sexual Contact

Just like rape, sexual abuse is a type of sexual assault under New York law. However, a rape charge requires sexual intercourse. A charge of sexual abuse requires sexual contact. Sexual contact refers to touching another person's sexual or intimate parts for sexual gratification. N.Y. Pen. Law § 130.00(3). Sexual contact can also include ejaculation onto the other person. In People v. Mack, 18 N.Y.3d 929 (2012), the defendant was charged with sexual abuse in the first degree for touching the lower back of a minor and ejaculating on her while riding in a subway car.

Sexual or intimate parts are not specifically defined but have been interpreted to mean the vagina, penis, anus, rectum, buttocks, breasts, lips and mouth. For example, in People v. Cook, 977 N.Y.S.2d 769 (2013), defendant Lawrence cook was convicted of sexual abuse in the first degree based on touching a child's vaginal area with his hand through her pants, while in People v. Watson, 281 A.D.2d 691 (2001), defendant Wardell Watson was convicted for sexual abuse in the first degree based on having rubbed a 13 year old girl's buttocks with baby oil.

Lack of Consent

In order for you to be charged with sexual abuse in the first degree the prosecutor must prove that the sexual contact was without consent. Lack of consent can be shown in 3 different ways.

  • Forcible Compulsion. If you physically force the sexual contact upon the other person or physically force the other person to touch you in an intimate area, then you used forcible compulsion. Forcible compulsion can also mean using threats of injury, death or kidnapping. In People v. Singh, 971 N.Y.S.2d 544 (2013), the defendant was convicted of several sex crimes including sexual abuse in the first degree based on forcing the victim to have sex with him as well as others by threatening to post compromising pictures of her on the internet. The threats can be directed toward the victim, or toward another person. N.Y. Pen. Law § 130.00(8).
  • Physically Helpless. A person is physically helpless if that person is unconscious, sleep, or for some other reason does not have the ability to object to the sexual contact. N.Y. Pen. Law § 130.00(7). Under the statute it is not required that you were the person who caused the victim to be physically helpless. In fact, it is frequently the case that a defendant is charged with sexual abuse or other sex crimes based on having sexual contact with a victim who was simply sleeping. In other cases the victim has passed out from voluntarily drinking alcohol or doing drugs. However, if you came upon a sleep or passed out person and then subjected that person to sexual contact, you would have committed sexual abuse in the first degree.
  • Age. If the victim is of a certain young age the law states that that person does not have the capacity to consent to sexual activity. In the case of sexual abuse in the first degree, if the victim is a child who is less than 11 years old, or if you are at least 21 and the victim is less than 13 years old, you would have committed sexual abuse in the first degree if you subjected that person to sexual contact. In People v. Fernandez, 968 N.Y.S.2d 603 (2013), defendant Marcos Fernandez was convicted of sexual abuse based on having kissed several intimate parts of his 8 year old relative.
Sexual Gratification

Another element of sexual abuse in the first degree is that the contact must have occurred for the purpose of sexual gratification. While the statute does not describe how to determine if contact was for the purpose of sexual gratification, the court is likely to conclude that the purpose of the contact was for sexual gratification based on the circumstances of the contact. For example, in People v. Beecher, 639 N.Y.S.2d 863 (1996), the court inferred that the defendant Robert Beecher was seeking sexual gratification by the very act of placing his hand on the victim's genitalia and because he asked the victim sexually explicit questions.

The Arrest and Arraignment

If you are suspected of committing the crime of sexual abuse in the first degree you will be taken to the local police precinct for processing. There you will provide information such as your name, address, date of birth and social security number. You will also be fingerprinted and photographed. The officer will check to see if you have any outstanding warrants or unpaid traffic tickets.

In cases where the charge is a misdemeanor the police officer has the discretion to issue you a Desk Appearance Ticket (DAT). With a DAT you will be released after initial processing and be required to return at a later date for your arraignment hearing. However, because sexual abuse in the first degree is a felony you will not be given a DAT. Instead, after being process at the local precinct you will be transferred to Central Booking to await arraignment.

While you are in Central Booking the paperwork for your case will be assembled and your case will be docketed. You will be interviewed by someone from the Criminal Justice Agency in order for an assessment to be made as to whether or not you should be released on bail.

During your arraignment you will learn the charges against you. In addition to sexual abuse in the first degree, you may also be charged with other crimes such rape or child endangerment. The judge will decide the amount of bail required, if you should be held without bail or if you should be released on your own recognizance.

After your arraignment there may be a number of hearings prior to your trial. The prosecutor will likely offer you a plea agreement that would require you to plead guilty to a lesser offense. However, if you plea to a lesser offense you will still be pleading guilty to a crime. Depending on the crime to which you plead guilty you may also be pleading guilty to a sex crime that would require you to register as a sex offender. If you do not accept a plea offer, your case will go to trial.

Sentencing

Prison. Since sexual abuse in the first degree is a Class D felony, if you are convicted the maximum possible sentence that you will receive is 7 years in prison. Since it is not classified as a violent felony offense, there is no mandatory minimum sentence. In determining your sentence there are several factors that the judge will consider, including your criminal history and whether you take responsibility for your actions. For example, in People v. Cook, the defendant was sentenced to 5 years in prison after being convicted of sexual abuse in the first degree. While the defendant did not receive the maximum possible sentence, the defendant did receive a significant amount of jail time because he failed to take responsibility for his actions. In People v. Hughes, 940 N.Y.S.2d 183 (2012), the defendant was sentenced to the maximum of 7 years because of his lack of remorse, his failure to accept responsibility for his actions, and the vulnerability of his victim.

Probation. Because there is not a required minimum sentence for a conviction of sexual abuse in the first degree, the judge may sentence you to just probation, or concurrent terms of prison and probation. If you are sentenced to probation, because sexual abuse in the first degree is both a sex crime and a felony the required term will be 10 years. With probation comes several conditions that you must adhere to or risk having your probation revoked. For example, some of the rules may include: you must not commit a crime, you must have a job, you must support your family, you must receive treatment for substance abuse, you must refrain from associating with felons, you must refrain from patronizing disreputable places, 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. N.Y. Pen. Law § 65.10. If you break any of the conditions of your probation your probation officer my violate you. For example, in People v. Julius, 960 N.Y.S.2d 811 (2013), defendant Donald Julius was convicted of sexual abuse in the first degree and was sentenced to probation. One of the conditions of Julius' probation was that he obtain and maintain a verifiable job, undergo evaluations, and receive treatment. The court determined that Julius violated the terms of his probation and resentenced him to prison for 5 years.

Sex Offender Registration. If you are convicted of sexual abuse in the first degree, you will be required to register as a sex offender under the New York Sex Offender Registration Act. You must provide law enforcement with your personal information such as your name, aliases, home address, work address, school, and internet identifiers. This information along with your crimes and victim attributes will be put in a database maintained by law enforcement. You will have to verify your information regularly. N.Y. Cor. Law § 168. Depending on the level of risk that you present to the community, you may have to register for 20 years, or for the rest of your life. If you move out of state, you must register as a sex offender under the rules of your new jurisdiction.

It is important to have experienced representation defend you against a charge of sexual abuse in the first degree. A conviction not only may result in your being incarcerated for several years, your punishment will continue for years into the future after you are released as you will be required to register as a sex offender. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully defending clients who have been charged with sex crimes such as sexual abuse, rape, criminal sexual act, sexual misconduct, 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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