New York Criminal Sexual Act in the First Degree

Under the New York Penal Code you have committed criminal sexual act in the first degree if you do any one of the following:

  • Engage in anal sex or oral sex with another person by forcible compulsion,
  • Engage in anal sex or oral sex with another person who is physically helpless,
  • Engage in anal sex or oral sex with another person who is less than 11 years old, or
  • You are at least 18 years old and you have anal sex or oral sex with someone who is less than 13 years old

Criminal sexual act in the first degree is the most serious criminal sexual act charge under New York law. It is a class B felony. If you are convicted, you could be 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 a significant amount of time in prison, and you will have to suffer additional, life-altering consequences once you are released. Because of the consequences of being convicted of criminal sexual act in the first degree or any sex crime, as soon as you have been arrested you should contact an experienced New York criminal sexual act in the first degree lawyer at Stephen Bilkis & Associates who will explain the criminal process and who will aggressively defend you against the charges. With decades of legal and law enforcement experience the attorneys at Stephen Bilkis & Associates have a proven track record of success in defending clients charged with sex crimes and other serious felonies. Contact us at 1-800-NY-NY-LAW (1-800-696-9529) to schedule a free, no obligation consultation regarding your case.

Lack of consent

In order for you to be charged with criminal sexual act in the first degree, the prosecutor must be able to show that there was a lack of consent. N.Y. Pen. Law § 130.05. There would have been no consent if one of the following conditions was present:

  • Forcible compulsion. If you exerted physical force in order to have anal or oral sex with the victim, then the victim did not consent. In addition to physical force, under the statute forcible compulsion also refers to using an express or implied threat of immediate death or physical injury either to the victim, or to someone else. For example, if you threatened the victim with a knife or a gun, then that would constitute forcible compulsion. Or, if you threatened to kidnap the victim or perhaps the victim's family member or friend, then that also amounts to forcible compulsion. N.Y. Pen. Law § 130.00(8)
  • Physically helpless. A person is physically helpless if that person is unconscious or for any other reason is unable to express refusal to the sexual act. N.Y. Pen. Law § 130.00 (7). Under the statute it is not required that you caused the person to be physically helpless. It is enough that you took advantage of the fact that the victim was physically helpless.
  • Age. If the victim was less than 11 years old, or you were at least 18 years old and the victim was less than 13 years old, then the victim would not have the legal capacity to consent. If the victim is of a certain young age, then the law says that that person is too young to consent to oral or anal sex.
The arrest and arraignment

If you are arrested for criminal sexual act in the first degree you will be taken into custody at the local precinct. Your next stop will be Central Booking. You will remain in Central Booking until your arraignment. This may be from a few hours to a few days. The arraignment is a hearing where you will be formally charged. Even if you are arrested on a criminal sexual act in the first degree charge, it is possible that the prosecutor will add additional criminal charges. For example, based on the allegations of the case, the prosecutor may also charge you with rape in the first degree or sexual abuse in the first degree. You may also be charged with other offenses that are not sex crimes. You will enter a plea of guilty or not guilty.

The next step in the arraignment hearing is the issue of bail. Whether or not bail is set is based on the court's determination as to whether or not you are a flight risk. The judge will ultimately decide whether or not bail is required and if so, how much. It is possible that the judge will set bail, release you on your own recognizance, or decide that you should be held without bail. You will then learn when you must next appear in court. It is vital for you to be present at each court date. If you miss a court date, then the judge will issue a bench warrant for your arrest.

Between the time of your arraignment and the actual trial, you may be able to reach a plea agreement with the prosecutor. This may result in some of the charges being dismissed or reduced. If a plea agreement is reached, then a trial will not be necessary, of if the plea agreement is reached during the trial, the trial will not proceed to verdict.

Defenses

Depending on the facts of your case, there are several possible defenses. Because the lack of consent is a key element to a criminal sexual act charge, an important defense is to show evidence that there was consent to the anal or oral sex. 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 have the requisite intent 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. In People v. Velcher, 2014 N.Y. Slip Op. 02464 (2014), the defendant was charged and convicted of criminal sexual act in the first degree as a result of having oral or anal sex with a 17 year old girl. When the defendant appealed the conviction, the appeals Court ordered a new trial concluding that intent is a necessary element to the offense of criminal sexual act. Because the defendant was intoxicated at the time of the incident, he may not have been able to form the requisite intent.

The statute of limitations may provide another defense to a charge of criminal sexual act 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 criminal sexual act in the first degree is up to 25 years in prison as it is a class B felony. Criminal sexual act in the first degree, along with rape in the first degree, aggravated sexual abuse in the first degree, and course of sexual conduct against a child in the first degree are all sex offenses that are class B felonies and are also violent felony offenses. 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 receive will be 10 years with a maximum of 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.

If you are a first time offender and are convicted of criminal sexual act 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 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. 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. Depending on your background 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 the conditions of your probation a judge may send you to jail.

Sex offender registration. If you are convicted of criminal sexual act in the first degree, once you are released from prison 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. 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 that you are a registered sex offender. All registered sex offenders must verify their addresses 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. There are serious consequences for failing to register.

Stephen Bilkis & Associates can help

Defending a criminal sexual act in the first degree charge, or any sex offense charge is always complex. The staff at Stephen Bilkis and Associates has years of experience successfully defending clients in New York criminal courts 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 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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