New York Rape in the First Degree

Rape is a serious sex crime that involves having nonconsensual sexual intercourse. In order for the act to be nonconsensual, the victim must say no or in some other way resist the act, or the victim must not have the legally ability to consent. There are 3 degrees of rape in the New York Penal Code. While each rape charge is a felony, rape in the first degree is the most serious. It involves the use of force, having sexual intercourse with a person who is physically helpless, with someone who is less than 11-years-old, or if you are at least 18 years old, having sexual intercourse with someone who is less than 13-years-old. It is a class B felony. If you are convicted, you could be sentenced to up to 25 years in prison. N.Y. Pen. Law § 130.35. Because of the consequences of being convicted of rape in the first degree or any rape charge, as soon as you have been arrested you should contact an experienced New York rape lawyer at Stephen Bilkis & Associates who will aggressively defend you against the charges.

In order for you to be charged with rape in the first degree or any other type of rape offense, the prosecutor must be able to show that there was a lack of consent. Lack of consent must be evident by certain, specified conditions that if present differentiate rape in the first degree from other types of rape charges.

• Forcible compulsion. If you used physical force or the threat of physical force in order to have sexual intercourse with another person, then the victim did not consent. In People v. Schlau, 2014 N.Y. Slip Op. 03325 (2015), the defendant was charged with rape in the first degree based on allegations that he used a knife to force a prostitute to have sex with him.
• Physically helpless. A physically helpless person does not have the ability to consent to sex or express refusal. Thus, if a person is unconscious, for example, and you have sex with that person, then you could face a charge of rape in the first degree. N.Y. Pen. Law § 130.00 (7)
• Age. If the other victim is less that 11, or if you are at least 18 years old and the victim is less than 13 years old, then the victim would not have the legal capacity to consent to sexual intercourse. This type of rape is often referred to as "statutory rape".

If you are accused of rape in the first degree you will be arrested and taken into custody at the local precinct. Your next stop will be Central Booking which is located in the criminal court building in the county where you were arrested. You will remain in Central Booking until your arraignment. The arraignment is a hearing where someone accused of a crime is formally charged. Even if you are arrested on a rape in the first degree charge, it is possible that the prosecutor will add additional criminal charges. For example, based on the allegations in the case the prosecutor may also charge you with criminal sexual act in the first degree, attempted rape in the first degree, predatory sexual assault, predatory sexual assault against a child, or sexual abuse in the first degree. You may also be charged with other types of offenses. You will enter a plea of guilty or not guilty.

The next step in the arraignment hearing is the issue of bail. The judge will decide if bail is required, and if so, how much. The judge's decision will be based on his or her assessment of whether or not you are a flight risk. You will then learn when you must next appear in court. It is critical for you to be present at each court date. If you do not show up the judge will issue a bench warrant for your immediate arrest.

Between the time of your arraignment and the actual trial, you may be able to reach a plea agreement with the prosecutor. This may result in some of the charges being dismissed or reduced. If a plea agreement is reached a trial will not be necessary. If a plea agreement is reached during the trial, the trial will not proceed to verdict.

Depending on the facts of your case, there are several possible defenses to a first degree rape charge. Because the lack of consent is a key element to a rape charge, an important defense would be evidence that the sexual intercourse was consensual. This means that you will have to show that you did not use physical force and that the other person was not physically helpless.

Another possible defense is that the charges were not brought before the expiration of the statute of limitations. While accusations are generally brought soon after the incident, there are many cases where the victim waits a long time before contacting the police, or the prosecutor waits a long time before bringing charges against someone accused of rape. Under New York law a charge of rape in the first degree must be brought within 5 years of the incident. N.Y. Crim. Pro. Law § 30.10. This requirement is known as the statute of limitations. This means that if you are not prosecuted for rape in the first degree within five years of when the incident reportedly occurred, the prosecutor is time-barred from prosecuting you at all for that crime. An exception to this rule is where the victim was less than 18 years old at the time of the incident. In such a case the limitations period does not begin to run until the victim turns 18 years old or until the incident is reported to law enforcement. Even if the case is brought within the limitation period, any significant delay in bringing charges may make the prosecutor's job more challenging.

The sentence for being convicted of rape in the first degree is up to 25 years in prison as it is a class B felony. Rape in the first degree is also classified as a violent felony offense. As such if you are convicted you will face a mandatory minimum sentence of 5 years in prison and a maximum sentence of 25 years. You must serve at least 6/7 of your prison sentence before you will be eligible to be released on parole.

There are additional factors that the court will consider in determining your sentence. If this conviction is your second violent felony conviction, the minimum prison sentence that you will be required to serve is 10 years with a maximum of 25 years. N.Y. Pen. Law § 70.04. If you are convicted of other crimes in addition to rape in the first degree, even if they are misdemeanors, your sentence will be more severe than if you were convicted of just one crime.

If you are a first time offender and are convicted of rape in the first degree, you will still be sentenced to at least 5 years in prison. However, if you are able to negotiate a plea deal with the prosecutor such that the charge is reduced to rape in the second degree or another charge that is not classified as a violent felony, it is possible that you could be sentenced to a short prison term or even to probation.

Probation is a much preferable sentence than a jail or prison sentence. However, probation does not mean that you are free to do whatever you chose. With probation comes a set of rules that you are required to follow. These rules may include: you must not commit a crime, you must maintain a job, you must agree to random drug testing, you must refrain from associating with disreputable people, you must agree to psychological testing, you must refrain from possessing firearms, you cannot leave New York without permission, you must stick to a curfew, and you must regularly check in with your probation officer. If you break the conditions of your probation a judge may send you to jail, or the judge may modify the terms of your probation.

If you are convicted of rape in the first degree, 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. 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.

Defending a rape in the first degree charge, or any sex crime charge can be very complicated. Typically there are complex issues related to consent, credibility and evidence. The staff at Stephen Bilkis & Associates has years of experience successfully defending clients in New York criminal courts accused of rape in the first degree as well as other sex crimes such as 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 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.