Queens Aggravated Sexual Abuse in the Second Degree

New York law includes four offenses called aggravated sexual abuse. Each crime involves inserting either a finger or foreign object into the vagina, urethra, penis, rectum or anus of another person without that person's consent. Aggravated sexual abuse in the second degree is the second most serious aggravated sexual abuse offense. You will be charged with this crime if you physically injure someone when you insert your finger into another person's vagina, urethra, penis, rectum or anus of that person by forcible compulsion, when the other person is physically helpless, or when the other person is a child who is less than 11 years old. It is a Class C felony. If you are convicted, you could end up being sent to prison for up to 15 years. N.Y. Pen. Law § 130.67. In addition to possibly spending many years in prison when you are released your life will be forever changed. As soon as you know that you may be charged with aggravated sexual abuse in the second degree or any other sex crime you should immediately contact an experienced Queens Aggravated Sexual Abuse in the Second Degree Lawyer who will review the facts of your case and aggressively defend you until the case is resolved.

Lack of Consent

Under the statute lack of consent can be demonstrated in three different ways:

  • Forcible Compulsion. If you exerted physical force in order to insert your finger into the victim then the victim did not consent. In addition to physical force, forcible compulsion refers to threatening the victim or another person with death, physical injury or kidnapping. The threat can be a verbal threat or can be with a dangerous weapon such as a knife or gun. N.Y. Pen. Law § 130.00(8)

  • Physically Helpless. A person is physically helpless if that person is unconscious, or for some other reason is unable to communicate that he or she does not consent to you inserting your finger into that person's vagina, urethra, penis, rectum or anus. N.Y. Pen. Law § 130.00 (7). You would face this charge even if you are not the person who caused the victim to be physically helpless. It is enough that you found the person in a physically helpless state and then inserted your finger into that person.

  • Child Victim. The victim is child who is less than 11 years old. If the victim is of a certain young age, even if he or she appeared to have consented, the law says that that person is too young to consent to this type of sexual activity.

The Arrest and Arraignment

There are several steps in the criminal process that lead up to the ultimate resolution of a case. The first step after you are arrested for aggravated sexual abuse in the second degree you will be taken into custody at the local police precinct. Because it is a Class C felony, the arresting police officer will not issue a Desk Appearance Ticket. Instead, after you are processed in the local precinct you will be taken Central Booking where you will remain for several hours until your arraignment hearing.

Several things may happen at your arraignment. The prosecutor will present the criminal complaint against you which will detail the charges against you. You might be surprised to learn that the charges against you are different from what you expected. While you were in Central Booking waiting to be the arraigned, the prosecutor will have had the chance to review the facts of your case, your personal background as well as your criminal history. Based on this the prosecutor makes a decision as to what charges are appropriate. In some cases the prosecutor will add additional criminal charges such as facilitating a sexual offense with a controlled substance 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 child endangerment or assault.

At the arraignment the judge will determine your bail status. The judge will review the information gathered by the prosecution regarding your background and criminal history to determine how much of a flight risk you are. Based on that assessment 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. If bail is set, you will have to post it before you will be released.

After the arraignment several other steps may occur before your case goes to trial. You case will likely go before the Grand Jury. There may be several hearings. At some point you may strike a plea deal with the prosecutor that would require you to plead guilty to lesser charges in order to avoid a trial and possible conviction on the original, more serious charges.

Defenses

You may have defenses to the charge of aggravated sexual abuse in the second degree. Depending on the type of defense and the evidence to support the defense, a defense may result in the charges against you being dropped, the charges being reduced, or you being acquitted. Possible defenses to a charge of aggravated sexual assault in the second degree include consent, medical necessity, statute of limitations, or mistaken identity.

Since one of the key elements to the charge is that there was no consent, if you can show that the other person did in fact consent to the act, then the prosecutor would have a difficult time moving forward with the case. If you inserted your finger into the victim for a valid medical reason and not for sexual gratification, then you have valid defense. N.Y. Pen. Law § 130.70(2). For example, if you are a licensed healthcare professional performing a vaginal examination with the person's consent or in a medical emergency, then you have a defense to prosecution under the statute.

Sentencing

Because aggravated sexual abuse in the second degree is a Class C felony, the maximum is 15 years in prison. Like aggravated sexual abuse in the first degree aggravated sexual abuse in the second degree is also a violent felony offense. This means that the law prescribes minimum sentencing guidelines that the judge must following when sentencing you. The minimum sentence of 3.5 years in prison, even if you are a first time offender. If this conviction is your second violent felony conviction, the minimum prison sentence that you will be given is 7 years. N.Y. Pen. Law § 70.04

However, you may be able to negotiate a plea agreement with the prosecutor such that the charges are reduce to a less serious crime that would not require a prison sentence. Instead, you may be sentenced to just probation. For a felony offense that is a sex crime a sentence of probation would be 10 years.

Probation comes with several rules that you are required to follow or risk going to prison. Depending on the nature of the crime you were convicted of and your personal background, these rules may include: you must not commit a crime, you must have a job or be enrolled in school, you may be required to submit to random drug testing, you may be required to complete an alcohol or substance abuse program, you must refrain from associating with disreputable people, 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 revoke your probation and order that you be incarcerated.

Aggravated sexual abuse in the second degree is a registrable offense under the New York Sex Offender Registration Act. This means that you will be required to follow the rules for registered sex offenders. All registered sex offenders must verify their addresses and other personal information 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. You will have to follow the sex offender registration rules for at least 20 years. Some sex offenders will have to do so for the rest of their lives.

Defending any sex offense charge is always complicated, involving an understanding of not only criminal law, but how to interpret complex evidence. 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, 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 serve those accused of sex crimes in the following locations:

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