Nassau County Criminal Sexual Act in the Second Degree

N.Y. Pen. Law § 130.45

Criminal sexual act is a crime that involves having anal or oral sex with someone against that person's will. There are three different criminal sexual act crimes under New York Penal Law. Criminal sexual act in second degree is a Class D felony while criminal sexual act in the first degree is a Class B felony and criminal sexual act in third degree is a Class E felony. You would have committed criminal sexual act in the second degree if:

  • You are at least 18 years old and have anal or oral sex with someone who is less than 15 years old, or
  • You have anal or oral sex with someone who is incapable of consent due to a mental disability or incapacity.

N.Y. Pen. Law § 130.45. If convicted you will face a maximum of 7 years in prison. In addition you will have criminal record, and you will be required to register as a sex offender for at least 20 years. Because of the consequences of being charged with criminal sexual act in the second degree or any type of sex offense as soon as you have been accused it is critical that you or a family member contact an experienced Nassau County Criminal Sexual Act in the Second Degree Lawyer who will review the facts of your case and aggressively defend you against the charges.

Lack of Consent

Under the statute there would have been no consent to the sex act if one of the following conditions was present:

  • Mental Disability. If the person you had anal or oral sex with suffered from some sort of mental disease or defect such that he or she does not have the ability to understand the nature of the sexual act, then you would have committed criminal sexual act in the second degree. The person would have had to suffer from the mental disability at the time of the sex act. It is irrelevant that the person may have appeared to have agreed to engage in the sexual contact or have initiated it. N.Y. Pen. Law § 130.00(5)
  • Mental Incapacity. Under the New York Penal Code the prosecutor will charge you with criminal sexual act in the second degree if you cause someone to become intoxicated by giving that person an intoxicating substance without his or her permission, and then have anal or oral sex with that person. N.Y. Pen. Law § 130.00(6)
  • Age. If you have sex with a child it is statutory rape. Thus, if you are at least 18 years old and have oral or anal sex with a child who is less than 15 years old, you would have committed criminal sexual act in the second degree.
The Arrest and Arraignment Process

If you are accused of criminal sexual act in the second degree or any other sex crime you will be arrested and taken into custody. You will initially go to Central Booking, where you will remain for several hours until you are arraigned. An arraignment is a hearing before a judge at which the prosecutor will let you know the charges you are facing. While at the time of your arrest you may be under the impression that you are being charged with criminal sexual act in the second degree by the time you are arraigned the prosecutor would have reviewed the evidence in your case as well as your criminal background. As a result the prosecutor may decide that you should be charged with a more serious crime such as criminal sexual act in the first degree, or that additional charges are warranted. At your arraignment you will also find out the amount of your bail, if you will be held without bail, or if you will be permitted to be released on your own recognizance.

After the initial arraignment there may be several hearings and meetings prior to your trial. During this time the prosecutor may offer you a plea agreement. A plea agreement usually entails the defendant agreeing to plead guilty to a lesser charge. If you are unable to agree on a plea agreement with the prosecutor, you will ultimately have a trial.

Defenses to a Sex Crime Charge

While being charged with a sex crime is unnerving keep in mind that there may be several defenses available that you can use to help fight the charges. The facts of your case will determine the available defenses. An important defense is consent. The keystone to a sex crime charge is that the victim did not consent to the sex act. If you can show that the victim did indeed consent, then the prosecutor will have a difficult time proving that you committed criminal sexual act in the second degree. Keep in mind, however, that lack of consent is more than saying no. Lack of consent can also be based on the victim being mentally disabled or mentally incapacitated. If the victim is found to be mentally disabled or mentally incapacitated, then the prosecutor must have third party corroborating evidence to support the contention that there was a sexual assault. N.Y. Pen. Law § 130.16. In other words, a criminal sexual act charge in the second degree will not stick simply based on the word of someone who was mentally disabled or mentally incapacitated at the time of the incident. If there is no witness testimony or evidence to corroborate the accusation of the mentally disabled or mentally incapacitated victim, then the prosecutor has problem. Furthermore, it is also a defense if you did not have knowledge of the person's mental disability or incapacity. N.Y. Pen. Law § 130.10

If you have been charged with criminal sexual act in the second degree based on the victim being a minor, if you are also married to victim the prosecutor cannot prosecute you. N.Y. Pen. Law § 130.10. In order for the marriage defense to work, the marriage must be one that is valid in the United States. In People v. Ezeonu, 155 Misc.2d 344 (1992) the defendant Gregory Exeonu faced sex crime charges based on having sex with a 13 year old girl. The defendant's defense was that he was married to the girl. However, the court rejected this defense because the defendant was also married to another woman. While polygamous marriages are recognized in Nigeria where the defendant and the victim were from, they are not recognized in the New York.

Another age-based defense is where the defendant was less than 4 years older than the victim at the time of the incident. Some refer to this defense as the Romeo and Juliet defense. For example, if you were 18.5 years old and the victim was 15, you have a defense to a charge of criminal sexual act in the second degree if the charge is based on lack of consent due to age.

A defense to criminal sexual act in the second degree is lack of intent. If you can show that you were unable to form intent to commit the crime of criminal sexual act in the second degree because, for example, you were intoxicated, you may avoid being convicted.

While some victims of sexual assault report it to law enforcement immediately, others who claim to be victims wait for days, weeks, months and even years to report the incident. Or, although reported, there may be reasons why the prosecutor waited a long time to prosecute. Regardless of the reason if you are not prosecuted within 5 years of the date of the incident, under New York statute of limitations law the prosecutor would be legally barred from ever prosecuting you. N.Y. Crim. Pro. Law § 30.10. However, if the person who accuses you of criminal sexual act in the third degree was less than 18 years old at the time of the incident, the limitations period does not begin to run until he or she turns 18 years old or until the incident is reported to law enforcement.

Sentencing

If you are convicted of criminal sexual act in the second degree your sentence may include prison, payment of fines and fees, post-release supervision, and sex offender registration. In addition, an Order of Protection may be issued against you.

Prison. Criminal sexual act in the second degree is a Class D felony. The maximum possible sentence is 7 years in prison. N.Y. Pen. Law § 70.02. Because criminal sexual act in the second degree is also classified as a violent felony, the judge is required to impose a minimum sentence of 2 years in prison. The actual length of your prison sentence will depend on factors such as your prior criminal record.

If your status is that of a non-violent predicate offender meaning that you were convicted of a non-violent felony within the prior 10 years, then the court will sentence you to at least 3 years for an assault in the second degree conviction. If you are a violent predicate offender, you will be sentenced to at least 5 years in prison. If you are a persistent felony offender, then the minimum sentence you will receive is 12-25 years in prison; the maximum sentence is life in prison. N.Y. Pen. Law § 70.08. You will be classified as a persistent felony offender if you have been convicted of at least 2 prior felonies. Because criminal sexual act in the second degree is a violent felony offense, you will be required to serve 6/7 of your sentence before you will be eligible for release. Upon release you will be required to serve a term of post-release supervision.

Post-Release Supervision. If you are convicted of criminal sexual act in the second degree part of your sentence will also include a term of post-release supervision of 1.5-3 years. N.Y. Pen. Law § 70.45(e). There will be several rules that you must follow while you are on post-release supervision. Such rules vary from person to person based on what the Department of Corrections determines is needed to ensure a smooth, crime-free transition from prison back into the community. Such rules may include that you must not commit a crime, you must not associate with other people who you know have criminal records, you must not patronize disreputable places, you must not possess a controlled substance or drug paraphernalia, you must consent to warrantless searches, you must submit to home visits by your Parole Officer, you must regularly report to your Parole Officer, you cannot leave the State of New York without permission, you must now own, possess or purchase a gun, you must refrain from consuming alcohol, you must submit to drug testing, you must stick to a curfew, and you must have job.

If you violate any of the terms of your post-release supervision, you will receive a revocation hearing. Based on the evidence presented, the outcome of such a hearing may be that your post-release supervision statutes is undisturbed, you will be required to go back to jail for a period and then back on post-release supervision status, or you may be required to return to prison to complete your original sentence plus additional time for violating your post-release supervision.

Fines, Fees and Restitution. Being convicted of a sex crime also can have substantial financial consequences as you will likely be required to pay a fine, fees and restitution. You may also be required to pay a fine of up to $5,000. Furthermore, you will be required to pay certain fees including a fee that is called a "mandatory surcharge" of $300 as well as a victim assistance fee of $25. N.Y. Pen. Law § 60.35. If your sentence in includes post-release supervision you will have to pay a supervision fee of $30 per month. There are also fees associated with sex offender registration.

Another financial consequence of an assault in the second degree conviction is that you may be ordered to pay restitution to your victim. Generally, the maximum amount of restitution is $15,000, plus a 5% surcharge bringing to total to up to $15,750. However, the court may increase the amount to more than $15,000 to cover the amount of the victim's medical expenses. Furthermore, you will also have to pay a fee to the company charged with collecting the restitution from you. However, if you can show that you will not be able to pay the restitution, the judge may lower the amount you are required to pay or adjust the payment terms.

Orders of Protection. As part of the criminal process the prosecutor may request and the judge may grant an Order of Protection in favor of the victim. In simple terms, an Order of Protection is a court order requiring you to stay away from another person. Such orders are usually very specific about what you cannot do and what you must do. For example, an Order of Protection may state that you are not permitted to go near the victim, the victim's children or the victim's place of employment. If you live with the victim, you may be ordered to move. If you have children with the victim, you may be ordered to pay child support. If you violate an Order of Protection, you could face additional criminal charges. For example, in People v. Navas, 977 N.Y.S.2d 669 (2013) defendant Manuel Navas, who was already facing criminal charges based on an incident of domestic violence against his wife, was arrested and charged with criminal contempt in the second degree based on violation of an Order of Protection issued against him on behalf of his wife.

Long-Term Consequences. You will have a criminal record that will may several aspects of your life more challenging such as getting a job. In fact, you will be barred from working in certain professions such as being a teacher or a lawyer. In addition, you will not be able to own a gun, serve in the military, or serve on juries. You will also not be able to receive certain government benefits such as welfare or federally funded housing.

Sex offender registration. After you have served your prison or probation sentence, it is difficult to move past a criminal sexual act in the second degree conviction as this crime is a registrable offense. This means that if you will be required to register as a sex offender. N.Y. Cor. Law § 168. Being a registered sex offender impacts many aspects of your life. The New York Sex Offender Registration Act requires that a sex offender register for at least 20 years. If it is determined that you present a particularly high risk of committing a similar crime again, then you will have to register for the rest of your life. The consequences of having both a felony conviction and being a registered sex offender can be devastating for your future. You will have a hard time getting a job as potential employers who may be willing to overlook a criminal history, may be unwilling to overlook a criminal history that involves a sex crime. You will not be able to hold certain jobs such as a teacher. In New York as in most places you cannot hold a job as a public school teacher if you have a felony conviction. In fact, if you are a sex offender many schools will not allow you on school premises. Some sex offenders' personal information will be made public and easily accessible on the internet. This means that anyone, including your neighbors will be able to find out your status, making your living situation uncomfortable.

Whether the charge is criminal sexual act in the second degree or any other criminal sexual act charge, defending you will be complicated requiring an understanding of complex issues pertaining to evidence as well as interpreting the criminal statute and applying 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 second degree as well as other sex crimes such as rape sexual misconduct, forcible touching, sexual abuse, sexual conduct against child, and facilitating a sexual offense with a controlled substance. As with any criminal case, the sooner an experienced attorney represents you the better. Contact us at 1.800.NY.NY.LAW (1.800.696.9529) 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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