New York Criminal Fondling
Criminal fondling is the touching of the private parts of another person for sexual gratification without that person's consent. Under the New York Penal Code, criminal fondling is referred to as forcible touching . N.Y. Pen. Law § 130.52. Touching can mean a variety of different acts, such as squeezing, grabbing or pinching. While criminal fondling is classified as a sex crime, it is a class A misdemeanor and not a felony. Even though it is a misdemeanor, it is still a crime. If you are convicted you could be sentenced to jail and you will have a criminal record. Being convicted of criminal fondling may also negatively affect both your personal and professional lives. If you are in need of a criminal lawyer because you have been accused of criminal fondling, forcible touching, or any other sex crime it is important to immediately contact an experienced New York sex crime lawyer who is familiar with the New York criminal court system and who will aggressively defend you against the charges. The attorneys at the Law Offices of Stephen Bilkis & Associates have decades of experience representing clients who have been charged with sex crimes and other serious crimes such as assault, domestic violence and kidnapping. Find out what we can do for you by contacting us at 800.696.9529 to schedule a free, no obligation consultation regarding your case.Lack of consent
In order to be convicted of forcible touching, the prosecutor must be able to show a lack of consent. Lack of consent can be shown in several different ways. If there was forcible compulsion, if the victim did not have the capacity to consent, or if there was a lack of express or implied consent by the victim, then there was no consent. N.Y. Pen. Law § 130.05.Criminal fondling explained
Criminal fondling, also known as forcible touching or groping, can occur anywhere. It often occurs in crowded public places, such as packed buses or subway trains where passengers often stand. In such cases, it is easy for someone to take advantage of the crowded space to fondle another person without that person's consent. In People v. Soto, 192 Misc.2d 161, 167 (Crim. Ct., NY County 2002), the defendant was charged with forcible touching after he touched the victim's vagina through her clothing while they were riding in a subway car. In another case, the defendant Outram Parbhu rubbed his exposed penis against a woman's buttocks and thigh while they were standing on a subway platform. People v. Parbhu, 191 Misc.2d 473 (2002). In People v. Smiley, 2010 N.Y. Slip Op. 5154 (2010) and People v. Powell, 19 Misc.3d 364, 365 (Crim Ct, Kings County 2008), the touching occurred in private residences. In both cases the victims were minors and the defendants were relatives.
Criminal fondling is different from sexual misconduct or rape in that penetration is not required for someone to be charged with criminal fondling. In addition, the touching can be through clothing. In fact, it is not unusual for the victim to be fully clothed in cases of forcible touching. In both People v. Soto and in People v. Powell the touching occurred through clothing. It is only necessary that you intentionally touch another person's intimate parts without that person's consent for sexual gratification and for no legitimate reason. Intentionally means that the touching was not accidental, but that you consciously or purposely touched the other person's intimate parts.
While "intimate parts" is not specifically defined in the sex crimes statute, defendants have been convicted of forcible touching based on touching another person's vagina, penis, breasts, or buttocks. For example, in People v. Smiley, the defendant touched the 13-year old victim's vagina, breasts, and buttocks. While the statute describes touching as "squeezing, grabbing, or pinching," it does not define these terms. Courts have interpreted the language in the statute as merely being examples of conduct that the forcible touching charge was designed to address.Arrest and arraignment
When you are accused of a crime, the police may immediately take you into custody and send you to Central Booking, or the officer may issue a Desk Appearance Ticket (DAT). Generally, a police officer will issue a DAT if you do not have a criminal history and the criminal charge is not a felony. Because forcible touching is a misdemeanor, there is a good chance that you will be issued a DAT. However, it is up to the police officer as to whether or not to issue a DAT. With a DAT you are still charged with a crime. You should take a DAT very seriously. The DAT will state that you have been charged with forcible touching. It will also state the day, time and place of your court hearing. If you fail to appear in court at the specified date, time and place, the judge will issue a bench warrant for your immediate arrest. At your hearing you will be arraigned. This will be when you will learn the exact crimes with which you are being charged. It may just be forcible touching as indicated on the DAT. Or, the prosecutor may decide to charge you with additional crimes. The prosecutor will have had a chance to review the facts of your case and based on that information may determine that additional charges are warranted, such a sexual abuse, rape, or criminal sexual act. Bail, if any, will be set. You will then be given a date for your next court appearance.
If the police officer decides not to issue you a DAT, you will be arrested and immediately taken into custody. You will eventually be taken to Central Booking where you will remain locked up for several hours until your arraignment hearing.Defenses
Lack of consent is a critical element for a charge of forcible touching as well as other sex crime charges. If you can show that the other person consented to the fondling, then you have a valid defense to a forcible touching charge.
For a forcible touching charge to stick there must have been intent. If you and the victim were on a crowded train traveling at a high speed, the jostling of the train may cause you to accidently brush up against the victim. The victim may interpret the "touching" as criminal fondling. However, if you can show that there was no intent, but a mere accident, you have a valid defense to a charge of forcible touching.
The statute of limitations may also provide a defense. The statue of limitations refers to the amount of time that a prosecutor has to bring a criminal case against you. The statute of limitations for forcible touching is just two years. N.Y. Crim. Pro. Law § 30.10. If the prosecutor fails to bring charges against you with 2 years of the incident, then the prosecutor is forever barred from prosecuting you. An exception to this general rule is where the person accusing you of forcible touching was under 18-years-old at the time of the incident. If this is the case the limitations period will not begin to run until the child turns 18-years-old or until the incident is reported to law enforcement.
Mistaken identity is another possible defense. If the incident occurred in a crowded space such as a party or a subway platform, the victim may have identified you as the perpetrator, when in reality it was not you at all.Sentences and other consequences
Forcible touching is a class A misdemeanor, carrying a possible sentence of up to one year in jail. In the case of first time offenders there is no minimum required sentence. This means that the judge has the option of sentencing you to just a few months in jail, or to just probation. However, if you have been convicted of forcible touching in the past you may be labeled a repeat offender and the prosecutor may decide to charge you with persistent sexual abuse, which is a class E felony. N.Y. Pen. Law § 130.53. If convicted of persistent sexual abuse you could be sentenced to up to 4 years in prison. On the other hand, instead of going to trial, you may be able to work out a plea agreement with the prosecutor that allows you to plead guilty to a less severe charge such as harassment or disorderly conduct. N.Y. Pen. Law § 240.26. Both harassment and disorderly conduct are violations.
Even though forcible touching is not a felony, if you are convicted of forcible touching or almost any other sex crime whether misdemeanor or a felony, you will end up with a criminal record and will have the designation as a registered sex offender. Having a criminal record may make it challenging to find employment. If you are a registered sex offender, you will be so designated for at least 20 years and certain restrictions will be placed on you.Schedule a consultation
The consequences of being accused of criminal fondling or being convicted of forcible touching, persistent sexual abuse or any sex crime are significant, affecting both your personal and professional lives. For this reason it is important to immediately contact an experienced attorney as soon as you are accused of criminal fondling. The staff at the Law Offices of Stephen Bilkis & Associates has years of experience successfully defending clients in New York criminal courts who are accused of sex crimes, such as forcible touching, sexual misconduct, criminal sexual act, sexual abuse, aggravated sexual abuse, and facilitating a sexual offense with a controlled substance. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the Bronx, Brooklyn, Long Island, Manhattan, Nassau County, Queens, Staten Island, Suffolk County and Westchester County.