Queens Aggravated Sexual Abuse in the Fourth Degree

New York Penal Law defines aggravated sexual abuse in the fourth degree as inserting a foreign object into another person's vagina, urethra, penis, rectum or anus and that person is incapable of consenting. A second basis for this crime is physically injuring another person by inserting a finger into that person's vagina, urethra, penis, rectum or anus of that person, and that person is incapable of consenting. It is a fourth degree is a Class E felony. If you are convicted, the judge could sentence you to up to 4 years in prison. N.Y. Pen. Law § 130.65-a. In addition, if you are convicted restrictions will be placed on your life that will remain in place years after you serve your sentence. Because your life as well as the lives of your family members will be negatively impacted if you are accused of a sex offense, as soon as you know that you are being accused of sex crime you should immediately contact an experienced Queens Aggravated Sexual Abuse in the Fourth Degree Lawyer who will explain the criminal process to you and aggressively defend you against this charge and any other criminal charges.

To successfully prosecute you for this crime, the prosecutor must have evidence that you inserted a finger or some other object into the vagina, urethra, penis, rectum or anus of someone else without that person's consent because that person was not capable of consent. The statute does not define "foreign object." It can be anything from a bottle, to a stick, to a knife. For example, in People v. Morrow, 304 A.D.2d 1040 (2003), defendant Jeffrey morrow was convicted for aggravated sexual abuse based on shoving a bottle into the rectum of the victim.

Lack of the Capacity to Consent

Lack of the capacity to consent can be shown in several different ways: the presence of forcible compulsion, a physically helpless victim or a child victim.

  • Forcible Compulsion. Forcible compulsion involves compelling the sex act by using physical force or a threat of physical harm such as a threat of death or kidnapping. For forcible compulsion to exist, the threat of harm may be directed toward the victim or toward another person. If you exerted physical force in order to insert an object into the vagina, urethra, penis, rectum or anus of the other person, then you took away the capacity of the other person to consent. N.Y. Pen. Law § 130.00(8)

  • Physically Helpless. If you sexually abuse someone with your finger or with an object while that person is unable to object because he or she is unconscious or is in some other way physically helpless, then that person would not have the capacity to consent. N.Y. Pen. Law § 130.00 (7). The statute does not require that you personally cause the person to be physically helpless. It is enough that you found the person in a physically helpless state and then sexually abused that person using your finger or a foreign object.

  • Mental Disability. Another reason that you could be arrested and prosecuted for aggravated sexual abuse in the fourth degree is if you sexually abused someone who suffers from some sort of mental disease or defect such that he or she does not have the ability to understand the nature of the conduct. If a person suffers from a mental disability, even if he or she appears to agree to the sex act or even if the person initiates it, legally there would be no consent. As a result you could be charged with aggravated sexual abuse in the fourth degree. N.Y. Pen. Law § 130.00(5)

  • Mental Incapacity. If you cause someone to become intoxicated by giving that person a controlled substance, a prescription drug or some other type of intoxicating substance without his or her permission, then that person would then be mentally incapacitated and you could be charged with aggravated sexual abuse in the fourth degree. N.Y. Pen. Law § 130.00(6)

The Arrest and Arraignment

In some cases if you are suspected of committed and are arrested the police officer will issue you a Desk Appearance Ticket (DAT). With a DAT you are required to show up at a specified place and time for your arraignment. However, you will not be detained in Central Booking while awaiting your arraignment. Because aggravated sexual abuse in the fourth degree is a Class E felony, you will not receive a DAT. Usually DATs are only given for misdemeanors. Therefore, if you are arrested for aggravated sexual abuse in the fourth degree, you will end up in Central Booking where you will remain for several hours until your arraignment hearing. During the arraignment you may find that the prosecutor decided to charge you with additional crimes, or raise the degree of the crime. For example, based on the allegations of the case, the prosecutor may decide to charge you with aggravated sexual abuse in the first degree instead of aggravated sexual abuse in the fourth degree. Or, the prosecutor may feel that additional charges are warranted such as rape or facilitating a sexual offense with a controlled substance.

At the arraignment you will also learn whether you will be held without bail, released on your own recognizance, or released after paying bail. 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.

Following your arraignment, and before your trial, there will be a number or hearings and meetings. The prosecutor may offer you a deal that would require you to plead guilty to lesser charges. If you agree then you will receive a sentence based on the lesser charge and you will avoid a trial. If no plea deal is agreed upon, then you will ultimately go to trial.

Defenses to an Aggravated Sexual Abuse Charge

There are be a number of possible defenses to the charge of aggravated sexual abuse in the fourth degree. Since one of the key elements to the charge is that the victim was incapable of consent, if you can show that the person was not physically helpless, that the person was not suffering a mentally disability or incapacity at the time of the incident, or that you did not use forcible compulsion, then the prosecutor will have a difficult time convicting you. Other defenses include medical necessity, statute of limitations, lack of injury, and mistaken identity.

Sentencing

If you are convicted of aggravated sexual abuse in the fourth degree the maximum prison sentence that a judge could give you is 4 years. There is no statutory mandatory minimum sentence. If this is your first offense it is possible that the judge will sentence you to significantly less than 4 years in prison, maybe even to just probation. If you do have a prior felony offense, you will face a mandatory minimum sentence of at least 3 years in prison.

If your sentence includes probation, you will be required to agree to Conditions of Probation. These conditions may include:

  • You must not commit a crime
  • You must have a job, diligently look for a job, or be enrolled in school
  • You must support your family
  • You must refrain from associating with disreputable people and going to disreputable places
  • You must complete a drug or alcohol abuse program
  • You must seek any ordered medical or mental health treatment
  • you cannot leave New York State without permission

You will also be required to regularly check in with your probation officer. In some cases you may even be required to wear an electronic monitor. N.Y. Pen. Law § 65.10. If you break any of the conditions of your probation a judge may send you to jail.

Like aggravated sexual abuse in the first, second and third degrees, aggravated sexual abuse in the fourth degree is a registrable offense under the New York Sex Offender Registration Act. This means that immediately upon sentencing you will be required to complete a form that will be used to register you as a sex offender. You will have to provide your name, aliases, address, work address, school address, email addresses, your photograph and other personal information, as well as details about your crimes. You will have to regularly update your photo and verify your registered information. You will remain on the sex offender registry for at least 20 years. If you are Level 2 or Level 3 offender, meaning that you pose a substantial risk of re-offending, you will remain on the list for the rest of your life, and your name will be made public. If you move out of state, you must register as a sex offender under the rules of your new jurisdiction.

The idea of having to defend yourself against charges that you sexually abused someone may seem daunting. This is why it is important to have experienced representation on your side. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully defending clients in New York criminal courts who have been charged with sex crimes such as aggravated sexual abuse, criminal sexual act, sexual misconduct, 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 serve those accused of sex crimes in the following locations:

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