Queens Aggravated Sexual Abuse in the Third Degree

Under New York Penal Law you have committed aggravated sexual abuse in the third degree if you insert a foreign object into another person's the vagina, urethra, penis, rectum or anus of that person, and you do so by forcible compulsion. You will also face this charge if you insert a foreign object into another person and that person is physically helpless, has a mental disability, has a mental incapacity, or is a child who is less than 11 years old. It is a Class D felony. If you are convicted you could go to prison for up to 7 years. N.Y. Pen. Law § 130.66. In addition to possibly being incarcerated there are other consequences to being convicted of a sex crime such as having a criminal record and being labeled a sex offender. However, there are also defenses to a charge of aggravated sexual abuse in the third degree that may help your case be resolved favorably. Thus, if you are a suspect in an aggravated sexual abuse criminal investigation you should immediately contact an experienced Queens Aggravated Sexual Abuse in the Third Degree Lawyer who will explain to you your legal options and who will defend and support you until the case is resolved.

In order for you to be charged with aggravated sexual abuse in the third degree, the prosecutor must be able to show that you inserted a foreign object into someone else without that person's consent. The statute does not define "foreign object." It can be just about anything. Defendants have been convicted under this statute based on using sticks, bottles, knifes, as well as other objects.

Lack of Consent

A showing of lack of consent is more complex than merely saying no. Depending on whether or not the victim was injured, lack of consent can also be shown in several other ways.

  • Forcible Compulsion. Simply put, if you used physical force to insert the object into the other person, then there was a lack of consent. Forcible compulsion also refers to using a threat of harming the victim or some other person. However, the threat does not have to be a threat of physical harm. It can also mean threatening to damage the victim's reputation by, for example, sharing compromising photos with the public. For example, in People v. Singh, 971 N.Y.S.2d 544 (2013), the defendant threatening to post compromising pictures of the victim on the internet.

  • Physically Helpless. If you insert an object into someone else while that person is unable to object because he or she is sleep, unconscious or is in some other way physically helpless, then you would not have that person's consent. N.Y. Pen. Law § 130.00 (7). It is not necessary that you personally caused the person to be physically helpless. It is enough that you found the person in a physically helpless state and you took advantage of the person's state.

  • Age. If the victim was a child under the age of 11, then the law states that he or she does not have the capacity to consent to this type of sexual activity.

  • Mental Disability. A person would not be able to consent to a sex act under this statute if that person 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 act. If a person suffers from a mental disability, even if that person appears to agree to engage in the sex act or even if the person initiates it, there would be no consent and you could be charged with aggravated sexual abuse in the third degree. N.Y. Pen. Law § 130.00(5)

  • Mental Incapacity. If a person is intoxicated from drugs or alcohol, then that person would be mentally incapacitated and unable to consent to a sex act. This means that if you insert a foreign object into that person, you could be charged with aggravated sexual abuse in the third degree. N.Y. Pen. Law § 130.00(6)

The Arrest and Arraignment

If you are arrested for aggravated sexual abuse in the third degree, you will be first processed at a local police precinct, and then you will end up in Central Booking where you will remain until your arraignment hearing. The arraignment is the first time that you will appear before a judge, and it is the hearing at which you will be formally charged. During the arraignment 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 as well as your personal background and criminal history. Based on this information the prosecutor makes a decision as to which charges are appropriate.

At the arraignment the judge will let you know whether or not you will be required to post bail and if so, how much. 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. Finally, you will learn when you must appear in court next.

After the arraignment more hearings will occur. At some point you may strike a plea deal with the prosecutor in which you agree to plead guilty to the original charges or to lesser charges. If no plea deal is agreed upon, then your case will eventually go to trial.

Sentencing

Aggravated sexual abuse in the third degree is a Class D felony. New York criminal law requires that the sentence for a Class D felony conviction be up to a maximum of 7 years in prison. There is not required minimum sentence. If you are a first time offender it is possible that the judge will sentence you to no prison at all and just sentence you to a probation term of 10 years. However, if you do have a prior felony offense you will face a mandatory minimum sentence of at least 4 years in prison. N.Y. Pen. Law § 70.06.

While probation is more appealing than prison, it may present challenges for you as you will be subjected to several restrictions. With probation comes a set of rules that you are required to follow. 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
  • you must support your family
  • you must refrain from drinking excessive alcohol
  • you must refrain from using controlled substances
  • you must refrain from associating with other felons
  • you must refrain from patronizing disreputable places
  • you must report to your probation officer on a regular basis
  • you cannot leave the jurisdiction without permission.

If you break any of the conditions of your probation a judge may send you to jail.

Like most other sex crimes, aggravated sexual abuse in the third degree is a registrable offense under the New York Sex Offender Registration Act. This means that if you are convicted you will be required to follow the rules for registered sex offenders. N.Y. Cor. Law § 168. 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. This means that anyone will be able to go online and find out that you are on the sex offender registry. All registered sex offenders must verify their addresses with law enforcement each year, and must inform law enforcement 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.

The criminal justice system is very complicated. There are several steps involved. Any misstep could have a negative impact on the resolution of your case. For this reason it is critical to have experienced representation. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully defending clients in who have been charged with sex crimes such as aggravated sexual abuse, rape, forcible touching, 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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