New York Persistent Sexual Abuse

Under the New York Penal Code you have committed persistent sexual abuse if you commit a specified sex crime and within the previous 10 years were convicted of one the specified crimes 2 or more times. The crimes that can serve as the basis for persistent sexual abuse include:

  • Forcible touching. N.Y. Pen. Law § 130.52
  • Sexual abuse in the third degree. N.Y. Pen. Law § 130.55
  • Sexual abuse in the second degree. N.Y. Pen. Law § 130.60

Each of the three specified sex crimes are misdemeanors. The impact of having 3 misdemeanor sex crime convictions in the space of 10 years is that with the 3rd conviction you can be charged with persistent sexual abuse, a felony. As a result, the possible sentence is much more severe. If you are arrested and charged with persistent sexual abuse or any sex crime, it is important to immediately contact an experienced New York sex crimes lawyer at Stephen Bilkis & Associates who will aggressively defend you against the charges. The attorneys at 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 at 1-800-NY-NY-LAW (1-800-696-9529) to schedule a free, no obligation consultation regarding your case.

Underlying sex crimes

The underlying sex crimes for a charge of persistent sexual abuse include forcible touching, a class A misdemeanor; sexual abuse in the second degree, a class A misdemeanor; and sexual abuse in the third degree, a class B misdemeanor. Forcible touching is intentionally touching the sexual or intimate parts of another person for no legitimate reason or in order to receive sexual gratification. Touching can mean squeezing, grabbing, or pinching. N.Y. Pen. Law § 130.52. This sex crime often happens in crowded, public areas such as on a subway platform, a subway car, a bus, a parade, or a party. In People v. Soto, the defendant was charged with forcible touching after he placed his fingers on a woman's vagina through her clothing while they were riding the subway. Similarly, in People v. Parbhu, 191 Misc.2d 473 (2002), while standing on a subway platform the defendant rubbed his exposed penis against the buttock and thigh area of a woman. However, forcible touching also often happens in private homes. At a private home the act typically happens between relatives-- often between an adult and a child. In People v. Smiley, 2010 N.Y. Slip Op. 5154 (2010) the person accused of forcible touching was the father of the victim, while in People v. Powell, 19 Misc.3d 364 (Crim. Ct., Kings County 2008), the accused was the victim's cousin.

Sexual abuse in the second degree is subjecting another person to sexual contact when the other person is less than 14 years old, or is incapable of consent for any reason other than being less than 17 years old. N.Y. Pen. Law § 130.60. Sexual abuse in the third degree is subjecting another person to sexual contact without that person's consent. N.Y. Pen. Law § 130.55.

Normally the sentence for a class A misdemeanor such as forcible touching or sexual abuse in the second degree is up to 1 year in jail, while the sentence for a class B misdemeanor is typically up to 3 months in jail. There is no minimum sentence. First time offenders would likely not have to spend any time in jail, but would be sentenced to probation.

The arrest and arraignment

If you are suspected of committing the crime of persistent sexual abuse, a class E felony, you will be arrested and immediately taken into custody. You will remain behind bars in Central Booking until your arraignment. This could be for 18-36 hours. The arraignment is a hearing where you will be formally charged. You may be charged with just persistent sexual abuse. Or you may learn that the prosecutor has decided to charge you with additional crimes. While you are waiting in Central Booking, the prosecutor will have had a chance to review the facts of your case as well as your criminal background. Based on what the prosecutor learns, he or she may decide that additional criminal charges are warranted.

At your arraignment the judge will let you know how much your bail is, if you will be released on your own recognizance, or if you will be held without bail. This determination will based on how much of a flight risk you are determined to be. 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, the judge will issue a bench warrant for your arrest.

Prior to your trial, the prosecutor may offer you a plea deal that may require you to plead guilty to a lesser offense. For example, the prosecutor may decide to change the charge from persistent sexual abuse to a misdemeanor charge. If you do not accept a plea deal, then your case will proceed to trial.

Defenses

A defense to a charge of course of persistent sexual abuse would involve challenging the underlying misdemeanor. Since lack of consent is an element of forcible touching or sexual abuse in second or third degree, if you can show that the other person consented, then that would be a defense to forcible touching or sexual abuse, and therefore to a charge of persistent sexual abuse. For forcible touching intent must also be shown. If you touched the other person by accident, then you did not have the requisite intent and a charge of forcible touching will not be supported. Oftentimes forcible touching occurs in a crowded area such as a subway train. Thus, it may be easy for the victim to misidentify you as the perpetrator. Mistaken identity may be a valid defense.

The statute of limitations may provide another defense to a charge of forcible touching or sexual abuse in the second or third degree, and, therefore to a charge of persistent sexual abuse. The statute of limitations is the time period in which a case must be prosecuted after the criminal act occurred. Because forcible touching and sexual abuse in the second or third degree are misdemeanors, the statute of limitations is just 2 years. As a felony, the statute of limitations for persistent sexual abuse is 5 years. N.Y. Crim. Pro. Law § 30.10. If you are not prosecuted within the limitations period, 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. The prosecutor may have more time to prosecute you as 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

If you are convicted of persistent sexual abuse, you could be sentenced to up to 4 years in prison as it is a class E felony. There are additional factors that the court will consider in determining your sentence. If this conviction is your second felony conviction the minimum sentence that you will receive is 3 years with a maximum of 4 years. N.Y. Pen. Law § 70.06. If you are convicted of other crimes in addition to persistent sexual abuse your sentence will be more severe than if you are convicted of more than just one crime. If this is your first felony offense, the judge may sentence you to significantly less prison time than 4 years. He or she may even sentence you to probation. If you are sentenced to probation it will be for 10 years.

While probation is a more desirable sentence than incarceration, you could find yourself incarcerated if you do not follow the probation rules. The rules may include: you must not commit a crime, you must have a job, you must support your family, you may be required to submit to random drug testing, you must refrain from associating with disreputable people, you must refrain from patronizing disreputable places, 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 condition of your probation, your probation officer will violate you. You will then have to return to court and appear before the judge who sentenced you. It the judge agrees that you did violate the terms of your probation, the judge will send you to jail or modify the terms of your probation.

Persistent sexual abuse like most other sex crimes is a "registerable" offense. This means that if convicted you will be a registered sex offender. N.Y. Cor. Law § 168. Based on your background, the court will determine the likelihood of you re-offending and designate you 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.

Stephen Bilkis & Associates can help

The consequences of being convicted of persistent sexual abuse are serious. This is why it is crucial to have someone who is knowledgeable about the New York criminal justice system support and guide you from the beginning of the case until it is resolved. The staff at Stephen Bilkis and Associates has years of experience successfully defending clients in New York criminal courts who are accused of sex crimes, as well as those who are accused of other crimes such as robbery, burglary, kidnapping, assault, stalking, strangulation, manslaughter, murder, arson, and promoting prostitution. 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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