Queens Criminal Sexual Act in the Second Degree

Criminal sexual act in the second degree is one of 3 criminal sexual act crimes in New York. You would have committed criminal sexual act in the second degree if you are at least 18 years old and have anal or oral sex with someone who is less than 15 years old, or if you have anal or oral sex with someone who is incapable of consent due to a mental disability or incapacity. It is a Class D felony. N.Y. Pen. Law § 130.45. If convicted you will face a minimum sentence of 3 years in prison and a maximum of 7 years in prison. In addition you will have criminal record, and you will be required to register as a sex offender for at least 20 years. Because of the consequences of being charged with criminal sexual act in the second degree or any type of sex offense as soon as you have been accused it is critical that you contact an experienced Queens Criminal Sexual Act in the Second Degree Lawyer who will review the facts of your case and aggressively defend you against the charges.

Lack of Consent

Under the statute there would have been no consent to the sex act if one of the following conditions was present:

  • Mental Disability. If the person you had anal or oral sex with suffered from some sort of mental disease or defect such that he or she does not have the ability to understand the nature of the sexual act, then you would have committed criminal sexual act in the second degree. The person would have had to suffer from the mental disability at the time of the sex act. It is irrelevant that the person may have appeared to have agreed to engage in the sexual contact or have initiated it. N.Y. Pen. Law § 130.00(5)

  • Mental Incapacity. Under the New York Penal Code the prosecutor will charge you with criminal sexual act in the second degree if you cause someone to become intoxicated by giving that person an intoxicating substance without his or her permission, and then have anal or oral sex with that person. N.Y. Pen. Law § 130.00(6)

  • Age. If you have sex with a child it is statutory rape. Thus, if you are at least 18 years old and have oral or anal sex with a child who is less than 15 years old, you would have committed criminal sexual act in the second degree.

The Arrest and Arraignment Process

If you are accused of criminal sexual act in the second degree or any other sex crime you will be arrested and taken into custody. You will initially go to Central Booking, where you will remain for several hours until you are arraigned. An arraignment is a hearing before a judge at which the prosecutor will let you know the charges you are facing. While at the time of your arrest you may be under the impression that you are being charged with criminal sexual act in the second degree by the time you are arraigned the prosecutor would have reviewed the evidence in your case as well as your criminal background. As a result the prosecutor may decide that you should be charged with a more serious crime such as criminal sexual act in the first degree, or that additional charges are warranted. At your arraignment you will also find out the amount of your bail, if you will be held without bail, or if you will be permitted to be released on your own recognizance.

After the initial arraignment there may be several hearings and meetings prior to your trial. During this time the prosecutor may offer you a plea agreement. A plea agreement usually entails the defendant agreeing to plead guilty to a lesser charge. If you are unable to agree on a plea agreement with the prosecutor, you will ultimately have a trial.

Defenses to a Sex Crime Charge

While being charged with a sex crime is unnerving keep in mind that there may be several defenses available that you can use to help fight the charges. The facts of your case will determine the available defenses. An important defense is consent. The keystone to a sex crime charge is that the victim did not consent to the sex act. If you can show that the victim did indeed consent, then the prosecutor will have a difficult time proving that you committed criminal sexual act in the second degree. Keep in mind, however, that lack of consent is more than saying no. Lack of consent can also be based on the victim being mentally disabled or mentally incapacitated. If the victim is found to be mentally disabled or mentally incapacitated, then the prosecutor must have third party corroborating evidence to support the contention that there was a sexual assault. N.Y. Pen. Law § 130.16. In other words, a criminal sexual act charge in the second degree will not stick simply based on the word of someone who was mentally disabled or mentally incapacitated at the time of the incident. If there is no witness testimony or evidence to corroborate the accusation of the mentally disabled or mentally incapacitated victim, then the prosecutor has problem. Furthermore, it is also a defense if you did not have knowledge of the person's mental disability or incapacity. N.Y. Pen. Law § 130.10

If you have been charged with criminal sexual act in the second degree based on the victim being a minor, if you are also married to victim the prosecutor cannot prosecute you. N.Y. Pen. Law § 130.10. In order for the marriage defense to work, the marriage must be one that is valid in the United States. In People v. Ezeonu, 155 Misc.2d 344 (1992) the defendant Gregory Exeonu faced sex crime charges based on having sex 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 also married to another woman. While polygamous marriages are recognized in Nigeria where the defendant and the victim were from, they are not recognized in the New York.

Another age-based defense is where the defendant was less than 4 years older than the victim at the time of the incident. Some refer to this defense as the Romeo and Juliet defense. For example, if you were 18.5 years old and the victim was 15, you have a defense to a charge of criminal sexual act in the second degree if the charge is based on lack of consent due to age.

A defense to criminal sexual act in the second degree is lack of intent. If you can show that you were unable to form intent to commit the crime of criminal sexual act in the second degree because, for example, you were intoxicated, you may avoid being convicted.

While some victims of sexual assault report it to law enforcement immediately, others who claim to be victims wait for days, weeks, months and even years to report the incident. Or, although reported, there may be reasons why the prosecutor waited a long time to prosecute. Regardless of the reason if you are not prosecuted within 5 years of the date of the incident, under New York statute of limitations law the prosecutor would be legally barred from ever prosecuting you. N.Y. Crim. Pro. Law § 30.10. However, if the person who accuses you of criminal sexual act in the third degree was less than 18 years old at the time of the incident, the limitations period does not begin to run until he or she turns 18 years old or until the incident is reported to law enforcement.

Sentencing

While criminal sexual act in the second degree is not the most serious criminal sexual act crime, if you are convicted you will end up incarcerated. It is a Class D felony carrying a maximum sentence of 7 years in prison. However, because criminal sexual act in the second degree is also considered a violent felony offense, if you are convicted the judge will be required to sentence you to at least 3 years in prison. In other words, unlike with other Class D felonies even if you are a first time offender there is not the option of you being sentenced to just probation.

Your sentence, however, may include both prison and probation. Because criminal sexual act in the second degree is both a felony and a sex crime, the mandatory probation term is 10 years. You will have to serve the probation term concurrent with the prison terms. For example, if you are sentenced to 3 years in prison and 10 years of probation, once you are release from prison after service 3 years you will still have to serve 7 more years of probation. While on probation you will be required to follow a number of strict rules, including rules related to who you can associate with and where you can go. If you break the rules or commit another crime while on probation, your probation officer will violate you. This is serious as the result of a probation violation could mean that you have to go to jail.

Additional Consequences of a Conviction

After you have served your prison or probation sentence, it is difficult to move past a criminal sexual act in the second degree conviction as this crime is a registrable offense. This means that if you will be required to register as a sex offender. N.Y. Cor. Law § 168. Being a registered sex offender impacts many aspects of your life. The New York Sex Offender Registration Act requires that a sex offender register for at least 20 years. If it is determined that you present a particularly high risk of committing a similar crime again, then you will have to register for the rest of your life. The consequences of having both a felony conviction and being a registered sex offender can be devastating for your future. You will have a hard time getting a job as potential employers who may be willing to overlook a criminal history, may be unwilling to overlook a criminal history that involves a sex crime. You will not be able to hold certain jobs such as a teacher. In New York as in most places you cannot hold a job as a public school teacher if you have a felony conviction. In fact, if you are a sex offender many schools will not allow you on school premises. Some sex offenders' personal information will be made public and easily accessible on the internet. This means that anyone, including your neighbors will be able to find out your status, making your living situation uncomfortable.

Whether the charge is criminal sexual act in the second degree or any other criminal sexual act charge, defending you will be complicated requiring an understanding of complex issues pertaining to evidence as well as interpreting the criminal statute and applying defenses. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully defending clients in New York criminal courts who are accused of criminal sexual act in the second degree as well as other sex crimes such as rape 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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