New York Aggravated Sexual Abuse in the First Degree

Under the New York Penal Code you have committed aggravated sexual abuse in the first degree if you injure someone by inserting a foreign object into the vagina, urethra, penis, rectum or anus of that person, and you do so by force, where the other person is physically helpless, or where the other person is less than 11 years old. Aggravated sexual abuse in the first degree is considered a particularly heinous sex crime and as such it is classified as a class B felony. If you are convicted you could be sentenced to up to 25 years in prison. N.Y. Pen. Law § 130.70. In addition to possibly spending years and years in prison, there are other serious, life-altering consequences to an aggravated sexual abuse in the first degree conviction. Because of this, as soon as you have been accused of aggravated sexual abuse or any other sex offense, you should immediately contact an experienced New York sex crimes lawyer at the Law Offices of Stephen Bilkis & Associates. The attorneys at the Law Offices of Stephen Bilkis & Associates have decades of experience representing clients who have been charged with sex crimes and other serious crimes such as domestic violence and drug crimes. We will review the facts of your case and come up with a defense designed to produce the best results for your case. Contact us to schedule a free, no obligation consultation.

Use of a foreign object

In order for you to be charged with aggravated sexual abuse in the first degree, the prosecutor must be able to show that you inserted a foreign object into the vagina, urethra, penis, rectum or anus of the victim and that you did so by force. N.Y. Pen. Law § 130.05. The statute does not provide examples of what a foreign object can be for the purpose of this offense, so the assumption is that any object can be the basis for a charge. In People v. Morrow, ___ A.D.3d ___ (2003), the defendant shoved a bottle into the rectum of the victim, while in People v. Lackey, 36 A.D.3d 953 (2007), the defendant inserted a sharp stick into the victim's vagina.

Use of force

Under the statute force can be demonstrated in three different ways:

  • Forcible compulsion. If you exerted physical force in order to insert the object into the other person, then the victim did not consent. In addition to physical force forcible compulsion also refers to threatening the victim with physical injury or death. This can be accomplished by brandishing a weapon such as a knife or gun. Forcible compulsion also exists if you threaten to kidnap the victim or someone else such as the victim's family member or friend. N.Y. Pen. Law § 130.00(8)
  • Physically helpless. If you insert a foreign object into someone while that person is unconscious or while for some other reason the person is unable to refuse, then you would not have that person's consent and you would have done so by force. N.Y. Pen. Law § 130.00 (7). It is not necessary that you personally rendered the person physically helpless. It is enough that you found the person in a physically helpless state and then inserted a foreign object into that person.
  • Age. If the victim was less than 11 years old he or she would not have the legal capacity to consent. Thus, inserting a foreign object in that person’s vagina, urethra, penis, rectum or anus would have been nonconsensual.
Arrest and arraignment

If you are arrested for aggravated sexual abuse in the first degree you will immediately be taken into custody at the local precinct. While with some offenses the arresting officer has the discretion to issue a Desk Appearance Ticket (DAT) and not take you into custody immediately, since aggravated sexual abuse in the first degree is such a serious crime a DAT is not an option. You will be taken to custody and eventually taken to Central Booking where you will remain for several hours until your arraignment.

The arraignment is a hearing where you will be formally charged. You might be under the impression that you will be charged only with aggravated sexual abuse in the first degree. However, while you are at 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 criminal history. Based on this the prosecutor may decide to change the charge or add additional charges. For example, based on the allegations of the case the prosecutor may also charge you with rape in the first degree, sexual abuse in the first degree, facilitating a sexual offense with a controlled substance, predatory sexual assault, predatory sexual assault of a child, or course of sexual conduct against a child. In addition, you may also be charged with other offenses that are not sex crimes such as assault or kidnapping. You will plead guilty or not guilty.

At the arraignment the judge will determine your bail status. 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. The judge may set bail, decide that no bail is necessary and release you, or decide that you present a significant flight risk and require that you be held without bail.

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 you will eventually go to trial.

Defenses

During your trial there may be a number of defenses to the charge of aggravated sexual abuse in the first degree that you can raise. Since one of the key elements to the charge is that you used force, if you can show that the other person did in fact consent to the act, then you have a valid defense.

A statutory defense to aggravated sexual abuse in the first degree is that you inserted a foreign object into the other person for valid medical reasons. N.Y. Pen. Law § 130.70(2)

The statute of limitations may provide another defense to a charge of aggravated sexual abuse in the first degree. Under New York law such a charge must be brought within 5 years of the incident. N.Y. Crim. Pro. Law § 30.10. This means that if you are not prosecuted 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

Prison. The sentence for being convicted of aggravated sexual abuse in the first degree is up to 25 years in prison as it is a class B felony. Like criminal sexual act in the first degree, rape in the first degree, and course of sexual conduct against a child in the first degree, aggravated sexual abuse in the first degree is a class B felony that is also a violent felony offense. As such if you are convicted you will face a mandatory minimum sentence of 5 years in prison and a maximum sentence of 25 years. You must serve at least 6/7 of the prison sentence before you will be eligible to be released on parole.

There are additional factors that the court will consider in determining your sentence. If this conviction is your second violent felony conviction the minimum prison sentence that you will be given is 10 years with a maximum of 25 years. N.Y. Pen. Law § 70.04. If you are convicted of other crimes in addition to aggravated sexual abuse in the first degree your sentence will be more severe than if you were convicted of just one crime.

If you are a first time offender and are convicted of aggravated sexual abuse in the first degree you will still be sentenced to at least 5 years in prison. However, if you are able to negotiate a plea deal with the prosecutor such that the charge is reduced to aggravated sexual abuse 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 short prison term or even to probation.

Probation. While probation is a lighter sentence than jail when you are on probation you are still subject to several restrictions. With probation comes a set of rules that you are required to follow. These rules may include: you must not commit a crime, you must have a job, you may be required to submit to random drug testing, you must refrain from associating with disreputable people, you must refrain from possessing firearms, 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. If you break any of the conditions of your probation a judge may send you to jail.

Sex offender registration. If you are convicted of aggravated sexual abuse in the first degree, once you are released from prison you will be a registered 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 will remain on the registry for at least 20 years. Level 2 and 3 offenders will remain on the registry for life. Level 2 and 3 offenders' names are listed in the public sex offender directory so that anyone can go online and find the names. All registered sex offenders must verify their addresses with the Division of Criminal Justice Services (DCJS) each year, and Level 3 offenders must do so every 90 days. You must also 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.

Request a free confidential consultation

Defending any sex offense charge is always complex. The staff at the Law Offices of Stephen Bilkis & Associates has years of experience successfully defending clients in New York criminal courts who have been charged with sex crimes such as aggravated sexual abuse in the first degree, criminal sexual act in the first degree as well as other sex crimes such as sexual misconduct, criminal sexual act, forcible touching, sexual abuse, sexual conduct against child, and facilitating a sexual offense with a controlled substance. Contact us at 1-800-NY-NY-LAW (1-800-696-9529) to schedule a free, no obligation consultation regarding your case. We represent clients in the Bronx, Brooklyn, Long Island, Manhattan, Nassau County, Queens , Staten Island, Suffolk County and Westchester County.

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