| NY Criminal Defense |
This guide is published as a public service by the New York Criminal Defense Attorneys at the Storobin & Spodek LLP in order to help viewers learn about cases in New York criminal court. It is not intended to be legal advice, merely a way to help you understand your needs as your case moves along in New York Criminal courts. All the information, including the law, procedure and penal code is believed to be accurate, but can't be guaranteed due to possible changes and errors. The guide is for information and entertainment purposes only with the express expectation and agreement by the readers that it will not be acted upon in any way. No attorney-client relationship exists or can exist based on the offering of the information in this guide. We strongly recommend that you retain the services of a competent NY criminal defense lawyer. |
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The public has strong feelings about sex crimes and sex offenders, especially those involving children. Unlike other crimes, even unsubstantiated accusations of sex crimes usually mean being convicted in the court of public opinion until you prove yourself innocent. More than in any other criminal case, it is important that your criminal defense lawyer is experienced and knowledgeable about the special considerations of sex crime cases.
Child sex crimes are among the most serious sex crimes with first degree rape carrying potentially a 25-year prison sentence. Even the lowest level rape (third degree) carries a potential 4-year sentence. And yet child molestation cases remain among the most frequently mischarged crimes against innocent people because children imagine things that they heard about others to have happened against them. The media, of course, usually gets involved and crucifies the defendant before any of the facts are known.
It is easy to accuse someone a sex crime, and then difficult to disprove. In a case involving accusations of statutory rape, an innocent act can be perceived wrongly or the child can just imagine something that simply did not happen. Scientific literature by doctors and psychologists explains why children make up these cases. They aren't bad kids. But children live in a different world from adults. The things they imagine - the boogey-man under the bed, a stone monument waving to them - may seem funny, until children hear about sex on TV and imagine that it happened to them.
That is just one type of sex crime. In cases of forcible rape, the alleged victim may just be making an accusation because of greed, revenge or another emotion.
Storobin & Spodek LLP is a criminal defense law firm experienced in defending people accused of all types of sex crimes: forcible rape, statutory rape, child pornography, etc. We've defended people accused of sex crime in both New York State and Federal courts. Whether you are looking to take the case to trial to fight the charges or you are looking to plea bargain, you need a criminal defense lawyer who knows exactly what to do in a case like yours. If you are looking for a criminal defense attorney, call us at (212) 748-9243.
There are several crimes that may result in a determination that the defendant is a sex offender. Among them:
If you are subject to being registered as a sex offender in New York State, you are entitled to a hearing before a judge to determine whether you should be listed as a sex offender, and if so, what your level should be. There three levels of sex offenders - low risk is level 1, moderate risk is level 2 and high risk is level 3 - with varying degrees of reporting requirements. Level 1 sex offenders with no designation must register for 20 years. Level 2 and level 3, as well as level 1 sex offenders with a designation, must register for the rest of their life. The levels are assessed to each sex offender based on a risk of recidivism (a.k.a. the risk of committing a sex crime again).
You have the right to an attorney during the hearing and the right to hear and contradict evidence against you, as well as to present your own evidence and testimony. If you lose the hearing, you have the right to appeal it. If your hearing and appeal result in a decision that you are a sex offender, you will have to register under Megan's Law, officially known as Sex Offender Registration Act. In New York State, all sex offenders, including those convicted in other states, must register under the Megan's Law.
A sex offender must register with the Division of Criminal Justice Services (DCJS) by signing a Sex Offender Registration Form. A sex offender who is in jail or prison will be registered by the correctional facility 15 days before being released. The correctional facility will provide the offender with the registration form. Otherwise, the sex offender will be registered by the sentencing court. The court will provide the offender with the registration form.
1. Annually verify address with the Division of Criminal Justice Services (DCJS). Level 3 offenders will have to verify their address every 90 days.
2. Notify the DCJS, in writing, no later than ten days after a change in address.
3. Notify the DCJS, in writing, when enrolled in or working at an institution of higher learning within 10 days.
4. Level 1 or Level 2 sex offenders must personally appear every 3 years in person. Level 3 offenders must appear in person every year.
5. Level 3 sex offenders are required to notify DCJS, in writing, of employer's name and address.
The sex offender may move to another state, but must notify the authorities in the new state upon moving. Likewise, a person who is registered as a sex offender in another state must notify New York authorities upon moving to NYS.
* This is a list of basic responsibilities. Please refer to the back of the registration form and Correction Law Article 6-C for more information.
Under Section 130.75(a) of the New York State Penal Law, the crime of Course of Sexual Conduct against a Child in the First Degree reads as follows:
A person is guilty of course of sexual conduct against a child in the first degree when, over a period of time not less than three months in duration, he or she engages in two or more acts of sexual conduct, which includes at least one-act of sexual intercourse, deviate sexual intercourse or aggravated sexual contact, with a child not less 11 years old.
FIRST ELEMENT
The first element that the Jury/Judge would need to find would be that the defendant, engaged in two (2) or more acts of sexual conduct:
which included at least one (1) act of sexual intercourse, deviate sexual intercourse or aggravated sexual contact to the victim.
So we need two (2) acts of sexual conduct, and at a minimum one of those acts has to be either:
We now again turn to the Penal Law to examine the statutory definitions of those terms
Sexual Conduct is defined as sexual intercourse, deviate sexual intercourse and sexual contact.
Sexual Intercourse has the ordinary meaning that everyone knows it to mean. However, under the Law, any penetration is sufficient.
Deviate Sexual Intercourse means sexual contact between two people, who are not married, consisting of either contact between the :
- penis and the anus
- mouth and the penis
- mouth and the vulva
Sexual Contact is defined as any touching of the intimate (private) parts of another person. The two people can not be married. The touching has to be for the purpose of gratifying the sexual desire of other party. This can be the offeender touching the victim, or the victim touching the offender. The touching can be skin to skin or through clothing.
Aggravated Sexual Contact – Inserting a foreign object into vagina, urethra, penis or rectum of a child and causing physical injury to child. This inserting can not be done for a valid medical purpose.
SECOND ELEMENT
That the Defendant intentionally engaged in these two or more acts of sexual conduct. Intentionally means that the defendants conscious objective was to cause the result, or to engage in the conduct. This is proven by the facts and circumstances leading up to, surrounding and following the events in question.
THIRD ELEMENT
The time period where the two (2) acts of sexual conduct over a period of time not less than three (3) months. The time period that these events took place has to be at a minimum three (3) months long.
FOURTH ELEMENT
That the victim/child was less than 11 years old on the date of the acts charged. The defendant does not need to know the age of the victim at the time of the offense – it does not matter what age the defendant though the victim was. The victim just has to be under 11 at the time the acts were committed.
DIFFERENCE BETWEEN THE FIRST DEGREE AND SECOND DEGREE
The difference between the first degree crime, and the second degree crime is that the first degree crime requires that one of the acts of sexual conduct be either:
The second degree crime just requires two or more acts of sexual conduct.
The first degree crime is a B Felony, whereas the second degree crime is D Felony.
NYS Sex Offender Registry web site: criminaljustice.state.ny.us/nsor/index.htm .
New York State Sex Offender Registry phone: (800) 262-3257
National Sex Offender Public Registry (NSOPR): http://www.nsopr.gov
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