New York Predatory Sexual Assault Against a Child

Predatory sexual assault against a child involves committing a violent sex crime against a child who is less than 13 years old. Under the New York Penal Code you have committed the crime of predatory sexual assault if you 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 who is less than 13 years old, and you are at least 18 years old. Sex crimes against children are considered among the most heinous. Because of the violent nature of this crime and because it involves a child victim, it is punishment is severe. In fact, predatory sexual assault against a child and predatory sexual assault are the only sex crimes that are classified as class A-II felonies. If convicted the possible sentence is up to life in prison. The mandatory minimum sentence is 10-25 years. Because of the possible consequences of being convicted of predatory sexual assault of a child are so severe, it is critical that an experienced New York sex crimes lawyer is involved in your case as early as possible. 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, assault, and drug crimes. We will review 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 regarding your case.

Predatory sexual assault against a child defined

To be charged with predatory sexual assault against a child you must have committed 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 involves a person who is least 18 years old having sexual intercourse with a child who is less than 13 years. N.Y. Pen. Law § 130.05. It is a class B felony. There is no issue as to consent as a child less than 13 is deemed incapable of consenting to sexual intercourse. Criminal sexual act in the first degree is similar to rape, but instead of sexual intercourse, the sexual contact is oral or anal sex. It is also a class B felony. N.Y. Pen. Law § 130.50. Oral sex refers to sexual contact between the mouth of one person and penis of another person, the mouth and the anus, or the mouth and the vagina or vulva. Anal sex means contact between the penis and the anus. N.Y. Pen. Law § 130.00(1)

Aggravated sexual abuse in the first degree involves inserting a finger or a foreign object into the vagina, urethra, penis, rectum or anus of the victim. It is a class B felony. N.Y. Pen. Law § 130.70. Course of sexual conduct against a child in the first degree involves engaging in sexual contact with a child under the age of 13 at least 2 times over a 3-month period, where at least one of the incidents involved sexual intercourse, oral sex, anal sex, or aggravated sexual conduct. It is also a class B felony. N.Y. Pen. Law § 130.80.

Arrest and arraignment

If you are charged with predatory sexual assault against a child you will be arrested and immediately taken into custody. You will end up in Central Booking where you will remain until your arraignment. This could take up to 18-36 hours. The arraignment is the hearing where you will be formally charged. It is the first of many hearings that will take place during the criminal process. At the arraignment you may learn that the prosecutor has decided to charge you with more offenses in addition to predatory sexual assault against a child. For example, based on the allegations of the case the prosecutor may charge you with additional sex crimes such as criminal sexual act in the first degree, attempted rape in the first degree, or sexual abuse in the first degree. You may also be charged with additional offenses that are not sex crimes such as endangering the welfare of a child. You will enter a plea of guilty or not guilty.

At the arraignment the judge will make a decision regarding bail. The judge's decision will be based on his or her assessment of whether or not you are a flight risk. When a charge is particularly serious with the possibility of a severe sentence if convicted the judge is likely to conclude that you are a flight risk and set a high bail. There is also the possibility that you will be held without bail.

At you arraignment you will be told the date of your next hearing. If you are released while you await trial it is critical for you to show up for at each court date. If you do not show up 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. If the plea agreement is reached during the trial, the trial will not proceed to verdict.

Defenses

Lack of intent. A possible defense to a charge of predatory sexual assault against a child is that you did not have the requisite intent to commit the crime. An example of this is if you were so intoxicated at the time of the sexual contact that you were incapable of forming the intent necessary for a charge of predatory sexual assault. In People v. Velcher, 2014 NY Slip Op 02464 (2014), the defendant was charged and convicted of criminal sexual act in the first degree as a result sexual contact with a child. When the defendant appealed the conviction, the appeals Court acknowledged that because the defendant was intoxicated at the time of the incident, it is possible that he may not have been able to form the requisite intent.

Marriage. Marriage is another defense to a charge of predatory sexual assault against a child. If you are married to the victim, you may have a valid defense. While in New York it is unusual for someone under 13 years old to be married, it is not unheard of. To be a valid defense, however, the marriage must be one that is legal in the New York. In People v. Ezeonu, 155 Misc.2d 344 (1992) the defendant was charged with rape in the first degree and rape in the second degree, based on having sexual intercourse 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 already married to another woman when he married the 13 year old. While polygamous marriages are recognized in Nigeria where the defendant and the victim were from, they are not recognized in the United States.

Statute of limitations. The statute of limitations may provide another defense. Because predatory sexual assault against a child is a felony, the statute of limitation for bringing a charge is 5 years. N.Y. Crim. Pro. Law § 30.10. If you are not prosecuted within 5 years of when the incident purportedly occurred, then you can never be prosecuted. If the victim was less than 18 years old at the time of the incident, then statute of limitations is a little different. The prosecutor has 5 years after the victim turns 18, or after the incident is reported to law enforcement.

Sentencing and other consequences

Prison. If you are convicted the maximum sentence is life 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). However, if you do not have a prior criminal history, the minimum sentence is 10-20 years in prison. You may also be able to reduce the amount of time you spend in prison for a conviction if you agree to a plea deal that allows you to plead guilty to a lesser offense that has less severe penalties. You may even end up with a sentence that results in concurrent terms of prison and probation.

Probation. If you are released from prison and still have probation time to serve, you will have to follow the terms of probation. The terms of probation may include:

  • That the you will be subject to a warrantless search;
  • That you will be subject to drug testing;
  • That you will be employed;
  • That you will follow all rules of probation, including undergoing drug treatment programs or psychological testing;
  • That you will not associate with disreputable people.

Most importantly, if you are on probation, you cannot commit another crime. If you fail to adhere to the terms of your probation you may end up back in prison.

Sex offender registration. 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, 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. The public directory will also list your address, where your work, the offense you committed, and your sentence. 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. Level 3 offenders must verify their addresses every 90 days. If you move out of New York State, you must inform the DCJS and register with law enforcement of your new jurisdiction. You will then be required to follow the sex offender registration requirements of that jurisdiction.

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The consequences of being convicted of predatory sexual assault against a child 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 the Law Offices of Stephen Bilkis & Associates has years of experience successfully defending clients in New York criminal courts who are accused of sex crimes, such as sexual misconduct, criminal sexual act, forcible touching, sexual abuse, sexual conduct against child, female genital mutilation, and facilitating a sexual offense with a controlled substance. In addition, we also have experience defending clients who have been charged with other crimes including drug possession, domestic violence, grand larceny, petit larceny, gun crimes, assault, robbery, and computer crimes. 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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