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Sexually Motivated Felony Law (Penal Law Section 130.91) explained by Expert Criminal Defense Attorney

Posted By Galluzzo and Johnson LLP || 26-Jul-2011

In 2007, a new law went into effect that created a special class of felonies called “sexually motivated felonies”.  Pursuant to Penal Law Section 130.91, a person is guilty of a sexually motivated felony when he or she commits one of several specified felony offenses “for the purpose, in whole or substantial part, of his or her own sexual gratification.”  That list of specified offenses includes the following:

A "specified offense" is a felony offense defined  by  any  of  the
  following  provisions  of  this chapter: assault in the second degree as
  defined in section 120.05, assault in the first  degree  as  defined  in
  section  120.10, gang assault in the second degree as defined in section
  120.06, gang assault in the first degree as defined in  section  120.07,
  stalking  in the first degree as defined in section 120.60, manslaughter
  in the second degree as defined in subdivision one  of  section  125.15,
  manslaughter in the first degree as defined in section 125.20, murder in
  the  second  degree  as  defined in section 125.25, aggravated murder as
  defined in section 125.26, murder in the  first  degree  as  defined  in
  section  125.27,  kidnapping  in the second degree as defined in section
  135.20, kidnapping in the first degree as  defined  in  section  135.25,
  burglary  in  the third degree as defined in section 140.20, burglary in
  the second degree as defined in section 140.25, burglary  in  the  first
  degree  as  defined  in  section  140.30,  arson in the second degree as
  defined in section 150.15, arson in  the  first  degree  as  defined  in
  section  150.20,  robbery  in  the  third  degree  as defined in section
  160.05, robbery in the second  degree  as  defined  in  section  160.10,
  robbery  in  the  first  degree  as defined in section 160.15, promoting
  prostitution  in  the  second  degree  as  defined  in  section  230.30,
  promoting prostitution in the first degree as defined in section 230.32,
  compelling  prostitution  as  defined  in  section 230.33, disseminating
  indecent material to minors in the first degree as  defined  in  section
  235.22,  use  of  a  child in a sexual performance as defined in section
  263.05, promoting an obscene sexual performance by a child as defined in
  section 263.10, promoting a sexual performance by a child as defined  in
  section 263.15, or any felony attempt or conspiracy to commit any of the
  foregoing offenses. 

Thus, in order to convict someone of a sexually motivated felony, a prosecutor has to demonstrate beyond a reasonable doubt that the accused not only committed one of the specified underlying crimes, but that he did so with a sexual purpose in mind.

One of the most serious consequences of being convicted of this charge is registration as a sex offender.  Previously, a conviction for Burglary in the Third Degree (Penal Law 140.20), for example, would not result in registration as a sex offender; now, however, a person can be convicted of Burglary in the Third Degree as a Sexually Motivated Felony and be forced to register as a sex offender.  Click here for a list of registerable sex offenses.

Also, the sentence for a sexually motivated felony can be harsher than the sentence for the equivalent non-sexually motivated offense.  (For more, see Penal Law Section 130.92).  For example, a person convicted of Burglary in the Third Degree can receive an indeterminate prison sentence, but a person convicted of Burglary in the Third Degree as a Sexually Motivated Felony must receive a determinate sentence pursuant to Penal Law Section 70.80, as well as post-release supervision.  (Note: probation can be available to some Class D and Class E nonviolent sex offenders).

Typically, prosecutors charge defendants that they believe committed sexually motivated felonies with both the underlying charge (for example, Burglary in the Third Degree) and the charge as a sexually motivated felony (in this case, Burglary in the Third Degree as a Sexually Motivated Felony).  Thus, if the prosecutors are unable to prove that the crime was not for the purpose, in whole or substantial part, of the defendant’s sexual gratification, the prosecutor can nevertheless convict the defendant of the underlying offense.

If you or a loved one have been accused of having committed a sexually motivated felony, you should strongly consider contacting the experienced criminal defense attorneys at Galluzzo and Johnson LLP.  Matthew Galluzzo, in particular, worked as a prosecutor in the famous Sex Crimes Unit of the Manhattan District Attorney’s Office and was one of the first prosecutors in NYC to indict someone for a sexually motivated felony.  He appears frequently on TV as an expert commentator on sex crimes cases and is prepared to lend his unique expertise to your defense.

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