Nassau County Predatory Sexual Assault

N.Y. Pen. Law § 130.95

Predatory sexual assault is one of the most heinous crimes enumerated in New York's criminal code. It is one of just two sex crimes that is classified as a Class A-II felony. If convicted you could end up spending the rest of your life in prison. You have committed the crime of predatory sexual assault if you:

  1. Commit the crime of rape in the first degree, criminal sexual act in the first degree, aggravated sexual abuse in the first degree, or course of sexual conduct against a child in the first degree, and you also seriously injure the victim or threaten the immediate use of a dangerous instrument;
  2. Commit one of the listed sex crimes against more than one person; or
  3. Also have a prior conviction for a felony sex offense, incest or use of a child in a sexual performance.

N.Y. Pen. Law § 130.95. Because of the harsh sentence that you may receive if you are convicted of predatory sexual assault as soon as you have been charged with this crime, or any of the underlying sex crime it is critical that you, a family member or a friend immediately contact an experienced Nassau County Predatory Sexual Assault Lawyer who is familiar with the details of New York criminal law and who will aggressively support and defend you. The earlier in your case that you have experienced representation the better.

Predatory Sexual Assault and Related Offenses

To be charged with predatory sexual assault you must have caused injury or used a dangerous instrument while committing rape in the first degree, criminal sexual act in the first degree, aggravated sexual abuse in the first degree, or course of sexual conduct against a child in the first degree.

  • Rape in the First Degree. Rape occurs where a person has sexual intercourse without the consent of the other person. N.Y. Pen. Law § 130.05. A person commits first degree rape if he or she forcibly has sexual intercourse with another person, or has sexual intercourse with a child who is less than 11 years old. If a person who is 18 years old or older and has sexual intercourse with someone who is a child who is less than 13 years old, the older person can be charged with rape in the first degree. It is a Class B felony. For example, in People v. Schlau, 2014 N.Y. Slip Op. 03325 (2015), the defendant Schlau was charged with rape in the first degree based on evidence that showed that he used a knife to force the victim to have sex with him.
  • Criminal Sexual Act in the First Degree. Criminal sexual act in the first degree involves engaging in oral or anal sex with another person by force, or with a person who is physically helpless, or with a person who is a child who is less than 11 years old. Criminal sexual act in the first degree will also be the charge if you are 18 years old or older and the victim is a child who is less than 13 years old. It is a Class B felony. N.Y. Pen. Law § 130.50. In People v. Pena, 2015 NY Slip Op 02563 (2015) defendant Michael Pena, a police officer, was convicted of three counts of predatory sexual assault. Pena pointed his firearm at the head of the victim and then committed three criminal sexual acts on her.
  • Aggravated Sexual Abuse in the First Degree. Aggravated sexual abuse in the first degree involves inserting a finger or a foreign object into the vagina, urethra, penis, rectum or anus of another person by force, or with a person who is physically helpless, or with a child who is less than 11 years old. Aggravated sexual abuse in the first degree will also be the charge if you are 18 years old or older and the victim is a child who is less than 13 years old. It is a Class B felony. N.Y. Pen. Law § 130.70.
  • Course of Sexual Conduct Against a Child in the First Degree. Course of sexual conduct against a child in the first degree involves engaging in sexual contact at least 2 times with a child who is less than 13 years old over a 3 month period, with one of the instances being sexual intercourse, anal sex, oral sex, or aggravated sexual abuse. Course of sexual conduct against a child in the first degree will also be the charge if you are 18 years old or older and the victim is child who is under 13 years old. It is a Class B felony. N.Y. Pen. Law § 130.80. In People v. Cruz, 2015 NY Slip Op 03178 (April 15, 2015), the defendant Humberto Cruz was a youth pastor. He was accused of sexually abusing 3 boys who were in his Sunday School class. After a jury trial Cruz was convicted of course of sexual conduct against a child in the first degree, as well as criminal sexual act in the first degree, sexual abuse in the second degree, and endangering the welfare of a child.
  • Incest. You would have committed incest in the third degree if you marry or have sex, oral sex, or anal sex with someone who you know is related to you, such as an ancestor, descendant, brother, sister, uncle, aunt, nephew or niece. N.Y. Pen. Law § 255.25.
  • Use of a Child in a Sexual Performance. Use of a child in a sexual performance involves inducing a child who is under 17 years old to engage in sexual conduct. N.Y. Pen. Law § 263.05.
The Arrest and Arraignment

If you are arrested for a serious felony such as predatory sexual assault, the experience can be quite frightening. Once you are processed at the local precinct you will be taken to Central Booking and held until your arraignment. At your arraignment hearing you will be formally charged. This is when you will learn all of the charges the prosecutor has decided to file against you. In addition to predatory sexual assault, you will likely be charged with additional felonies. The judge will then decide whether to set bail, or release you on your own recognizance.

Your case will go before a Grand Jury. A grand jury is comprised of 16-23 people whose job will be to determine if a crime has been committed, and if you were responsible for the commission of that crime. It is not the same as your criminal trial, so your innocence or guilt will not be determined by the Grand Jury. The purpose of the grand jury is to determine if there is sufficient evidence to move forward. The prosecutor will be allowed to present his or her case. If you are indicted by the Grand Jury, then you will again be arraigned. There will likely be several hearings and meetings before your case goes to trial.

What are the consequences of a conviction?

Predatory sexual assault is considered to be a particularly heinous crime. The consequences of conviction include prison, post-release supervision, a fine, fees, criminal record, and sex offender registration.

Prison. If you are convicted the maximum sentence is life in prison. However, if you do not have a prior criminal history, the minimum sentence is 10-20 years in prison. For second time felony offenders, the minimum sentence is 15 years in prison, while persistent felony offenders will be sentenced to at least 25 years in prison. N.Y. Pen. Law § 70.00(3). In the case of Michael Pena who was convicted of three counts of predatory sexual assault, the court sentenced him to an aggregate sentence of 75 years to life in prison. This sentence included consecutive sentences on the 3 predatory sexual assault convictions. People v. Pena, 2015 NY Slip Op 02563 (2015)

Post-Release Supervision. If convicted of predatory sexual assault part of your sentence will include a term of post-release supervision. N.Y. Pen. Law § 70.45(f). For example, in People v. Ramirez, 934 N.Y.S.2d 728, (2011), the defendant pleaded guilty to predatory sexual assault. He was sentenced to 23 years in prison followed by 20 years of post-release supervision.

There will be several rules that you must follow while you are on post-release supervision. The rules associated with your post-release supervision vary from person to person, but may include that:

  • You must not commit a crime
  • You cannot leave the State of New York without permission
  • You must consent to warrantless searches
  • You must not associate with people who have criminal records
  • You must now own, possess or purchase a gun
  • You must not possess a controlled substance or drug paraphernalia
  • You must refrain from consuming alcohol
  • You must stick to a curfew
  • You must have job
  • You must submit to home visits by your Parole Officer
  • You must submit to drug testing
  • You must regularly report to your Parole Officer

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. Your sentence may also include the payment of a fine of up to $5,000. If you are convicted of a crime in New York, you will be required to pay certain fees. For a felony conviction you will have to pay a mandatory surcharge of $300 as well as a victim assistance fee of $25. N.Y. Pen. Law § 60.35. You may also be required to pay post-release supervision fees.

As part of your sentence you may be ordered to pay restitution to your victim. Generally, the maximum amount of restitution is $15,000. However, the court may increase the amount to more than $15,000 to cover the amount of the victim's medical expenses.

If you do not pay a fine, fee or restitution, you may be charged with a misdemeanor and sent to prison for up to a year, your wages may be garnished or the state of New York may obtain a judgment against you.

Sex offender registration. Regardless of the number of years you are sentenced to prison, once you are released you will have to suffer the consequences of having a criminal record that includes a serious felony, and of being a registered sex offender. Under the New York Sex Offender Registration Act you will have to register for at least 20 years. In some cases, you will be required to remain on the sex offender registry for the rest of your life. N.Y. Cor. Law § 168. As a registered sex offender several restrictions will be placed on you. You will have to register your personal information with a designated law enforcement agency. The personal information that you must register includes your name, address, work address, school address, aliases, your crimes, and the attributes of your victim. You will also have to provide a photography. You will have to regularly verify that information and regularly provide an updated photograph. You will not be able to move out of New York state without informing law enforcement. If you do move you must let the local law enforcement that you have moved to that jurisdiction, and you must follow that jurisdiction's sex offender registration rules. If you do not follow these rules, you can be arrested and charged with a felony that could result in more prison time.

Criminal record. If you are convicted of predatory sexual assault or any other sex crime, you will end up with a criminal record that will negatively impact many aspects of your life such as getting a job. You will be completely excluded from practicing in certain profession such as law or teaching. You will not be able to own a gun, serve in the military, or serve on juries. You will not be able to receive certain government benefits such as welfare or federally funded housing. In addition, if you are not a U.S. citizen, you will be deported.

The consequences of being convicted of predatory sexual assault as well as any other sex crime are devastating and will impact both your life and the lives of your loved ones. Thus, it is critical to seek experienced representation to help you fight such charges. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully defending clients in New York criminal courts who are accused of sex crimes, such as rape, criminal sexual act, aggravated sexual abuse, or course of sexual conduct against a child. In addition, we also have experience defending clients who have been charged with other crimes such as incest and child endangerment. 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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