Queens Stalking and Sexual Assault Degree

N.Y. Pen. Law §120.60

The crime of stalking is not typically thought of as a violent crime, but of a crime that is more of an annoyance than anything else. This is far from reality. While stalking can be simply following another person or calling or emailing that person, in many cases stalking is coupled with violence such as sexual assault. When stalking is coupled with sexual assault, not only will you face the most serious stalking charge- stalking in the first degree, you will also be charged with a sex crime. If you are convicted of these both of these crimes you will face several years in prison, steep fines, restitution, fees, sex offender registration, and a permanent criminal record. Thus, if you have been charged with stalking in the first degree based on a sexual assault you should immediately contact an experienced Queens Stalking and Sexual Assault Lawyer who will carefully review the facts of your case and who will aggressively defend you from the beginning of the case until it is resolved.

Criteria for a Stalking and Sexual Assault Charge

If you sexually assault someone after stalking that person, you will be charged with the most serious stalking charge: stalking in the first degree. According to the stalking statute, the underlying sex crime can be sexual misconduct, forcible touching, sexual abuse in the second degree, rape in the third degree, criminal sexual act in the third degree, female genital mutilation, rape in the second degree, and criminal sexual act in the second degree. Stalking in the first degree is a Class D felony. N.Y. Pen. Law § 120.60

Underlying Sex Crimes

Forcible touching. The crime of forcible touching is when you touch another person's intimate parts either for no reason at all, or in order to receive sexual gratification. It is a Class A misdemeanor. N.Y. Pen. Law § 130.52.

Sexual misconduct. Sexual misconduct occurs if you have sexual intercourse, anal sex or oral sex with another person without that person's consent, or if you have sex with an animal or a dead person. N.Y. Pen. Law § 130.20.

Rape in the third degree. Rape is the criminal charge that will be applied if you have sexual intercourse without the consent of the other person. For sexual intercourse to occur there must be penetration. Even if the penetration was slight, that would be enough for a charge of rape if there was a lack of consent. N.Y. Pen. Law § 130.00. Third degree rape is the least severe rape charge. Third degree rape occurs when a person engages in sexual intercourse with another person who cannot consent or is less than 17 years old. N.Y. Pen. Law § 130.25. If you are convicted of third degree rape you can be sentenced to up to 4 years in prison.

Rape in the second degree. Second degree rape is when a person engages in sexual intercourse with someone who is mentally disabled or incapacitated. A person who is 18 years old or older can also be charged with third degree rape if that person has sexual intercourse with a person who is 15 years old or younger. Second degree rape is a class D felony that has a penalty of up to 7 years in prison. N.Y. Pen. Law § 130.30.

Criminal sexual act in the third degree. You will be charged with criminal sexual act if you have oral or anal sex without the consent of the other person. Oral sex means contact between the mouth and the penis, the mouth and the anus, or the mouth and the vulva or vagina, while anal sex means contact between the penis and the anus. Criminal sexual act in the third degree involves oral or anal sex if you are at least 21 years and the other person is under 17 years old, or the other person did not consent due to any other reason. It is a Class E felony. N.Y. Pen. Law § 130.40

Criminal sexual act in the second degree. Criminal sexual act in the second degree will be the charge if you are at least 18 years old and you engage in oral or anal sex with a person who is less than 15 years old. It will also be the charge if the person is incapable of consent because he or she is mentally disabled or incapacitated. Criminal sexual act in the second degree rape is a class D felony that has a penalty of up to 7 years in prison. N.Y. Pen. Law § 130.45

Sexual abuse in the second degree. Sexual contact is the touching of another person's intimate parts for the purpose of sexual gratification. If the victim is incapable of consent because he or she is less than 14 years old, or is incapable of consent for some other reason the charge will be sexual abuse in the second degree is a Class A misdemeanor. N.Y. Pen. Law § 130.60

Female genital mutilation is somewhat different from other types of sexual assault. It is typically not performed for sexual gratification, but as part of a cultural rite. However, it is still classified as a sex crime. Female genital mutilation involves circumcising, excising, or infibulating any part of the labia or clitoris of a child who is less than 18 years old, unless it is done so for medical reasons and is performed by a licensed medical professional. It is a Class E felony with a possible sentence of up to 4 years in prison. N.Y. Pen. Law § 130.85

Defenses to a Stalking in the First Degree Charge

An important way to challenge a charge of stalking in the first degree based on sexual assault is to show that no sexual assault occurred. Since lack of consent is a necessary element for a charge of rape in the second degree or any sex crime, it will be necessary for the prosecutor to prove that you did not have consent to have sexual intercourse with the other person. If it can be shown that there was indeed consent, you cannot be convicted of sexual assault.

If the prosecutor cannot sustain a sexual assault charge against you, that means that the prosecutor also cannot support a stalking in the first degree charge that was based on sexual assault.

Consequences of a Stalking in the First Degree Conviction

An important issue that you must keep in mind is that if you are charged with stalking in the first degree based on sexual assault you will face at least one other serious criminal charge. That charge will be one of 8 sex crimes that range from Class A misdemeanors to Class D felonies. This means that if convicted of both crimes the amount of time that you will have to spend in prison may significantly more than if you were only convicted of stalking in the first degree. Furthermore, if you are convicted of almost any sex crime you will have to register as a sex offender for at least 20 years.

Prison

Because stalking in the first degree based on sexual assault is a Class D felony, if you are convicted the maximum sentence is 7 years in state prison. It is also classified as a violent felony offense, meaning that even if you have no prior felony convictions within the prior 10 years the judge will still be required to sentence you to at least 2 years in prison. If you have a prior non-violent felony conviction within the past 10 years the minimum prison sentence that you will receive is 3 years, while if you have a prior violent felony conviction the minimum prison sentence you will receive is 5 years. If you have 2 prior felony convictions within the prior 10 years, you will be classified as a persistent felony offender and you will receive a minimum sentence of 12-25 years and a maximum sentence of life in prison.

Fine

The fine that the judge may impose if you are convicted of stalking in the first degree is up to $5,000.

Restitution

As part of your sentence the judge may order you pay restitution. Restitution is paid to the victim to cover out-of-pocket expenses that result from your crime. For example, if your injure victim the court may order you to pay the victim's medical expenses. Generally, the maximum amount of restitution is $15,000. However, the law allows a judge to order you to pay a greater amount of restitution if, for example, the victim's medical expenses exceed the general statutory limit.

Fees

In New York if you are convicted of a stalking in the first degree you will be required to pay certain statutory fees. One fee is a $300 "mandatory surcharge." You may also be required to pay a victim assistance fee of $25. N.Y. Pen. Law § 60.35. If you are placed on probation, you will have pay probation supervision fees of $30 per month. If along with stalking in the first degree you are also convicted of a sex crime, you will be required to pay a sex offender registration fee as well as other fees associated with a sex crime conviction.

Probation

Part of your sentence for a stalking in the first degree conviction may be probation. The term of probation will be 5 years. If your sentence includes both prison and probation, your sentence of probation will run concurrently with your prison sentence. In other words, while you are in prison you will also be on probation. If you are released from prison before you have completed all 5 years of your probation sentence you will serve the rest of your probation term after your release.

While living in the community while on probation is preferable to being locked up in prison you should know that serving probation is not without challenges. For the entire time that you are on probation you will be required to follow strict rules that are designed to help prevent you from committing another crime. If you break any of these rules there are severe consequences. The court will design a set of rules specifically for you. Typical rules include:

  • You must not commit a crime-- not even a misdemeanor
  • You must not hang out with other people who have criminal records
  • You must not patronize places known for illegal activity
  • You must not use or possess illegal drugs or drug paraphernalia
  • You must consent to warrantless searches without probable cause
  • You must submit to home visits by your Probation Officer
  • You must regularly report to your Probation Officer
  • You cannot leave the State of New York without permission.
  • You must let your Probation Office know if you move.
  • You must not own, possess or purchase a gun
  • You must refrain from the excessive use of alcohol.
  • You must complete any ordered substance abuse treatment or medical treatment
  • You must stick to a curfew
  • You must have job or be enrolled in school. If you change jobs or schools, you must let your Probation Officer know.
Sex Offender Registration

If you are convicted of sexual assault once you are released from prison you will be required to register as a 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.

Other Long-Term Consequences

If you are convicted of stalking in the first degree you will also have a permanent criminal record that will affect several aspects of your life. Most employment applications require that you disclose your criminal background. Some colleges perform criminal background checks on prospective students. With a criminal background you will have a difficult time being approved for a license to be teacher, lawyer, doctor, security guard or cab driver. If you are not a U.S. citizen you could be deported under federal law. You may lose eligibility for certain governmental benefits such as federally funded housing.

Being charged with stalking in the first degree is extremely serious. However, just because you are charged does not necessarily mean that you will be convicted. The best way to fight charges of stalking in the first degree and sexual assault is to have experienced representation. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully defending clients in New York criminal courts who have been charged with stalking in the first degree as well as sexual assault, rape, criminal sexual act, harassment, menacing, and reckless endangerment. 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 stalking in the following locations:

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