Sex Offenses

Sex Offenses

If you have been accused of committing a sex crime, then you are potentially facing a serious felony conviction on your record, a long prison sentence, and the stigma of being forced to register in a public directory as a sex offender (click here to learn more about registration). Moreover, the mere accusation of a sex crime can have a devastating impact on you, your family, your career, and your reputation. With so much at stake, you simply cannot afford to gamble on a defense attorney that does not have extensive experience in this specific area.

Our team of former Manhattan Assistant District Attorneys is especially adept at defending these very serious cases. Matthew Galluzzo, in particular, is a former member of the elite Sex Crimes Unit of the Manhattan District Attorney’s Office. In that role he investigated and prosecuted a wide variety of sex crimes including forcible rape, statutory rape, sexual abuse, sex trafficking, and the online solicitation of minors. He also prosecuted one of the first cases in New York County charged as a sexually-motivated felony. He has tried rape cases to successful verdicts and worked side-by-side with federal and state law enforcement officers specializing in the investigation of sex crimes. In fact, the United States Agency for International Development has hired Mr. Galluzzo to train law enforcement officers and prosecutors in foreign countries on how to best investigate allegations of sexual assaults. As a result, Mr. Galluzzo has a unique and invaluable insight into the way that prosecutors investigate and prosecute these especially serious crimes. He is also quite familiar with the complex scientific and medical evidence that is oftentimes used in these cases and has received specialized training in understanding its nuances. In short, if you need a top-notch defense attorney to help vindicate you in the face of a sex crime allegation, consider one – such as Matthew Galluzzo – that worked for and trained at the nation’s first and finest prosecutorial unit specializing in sex crimes and has a proven track record of success in these matters.

Recent case results:

  • Client, a university student, charged with raping a fellow student in his dormitory room. Client's roommate agreed to testify that he assisted client in raping the woman.
    • Result: client acquitted of all charges at trial. See newspaper article about the case here. Notably, client was previously convicted of a felony sexual assault with a different attorney, but G&J pursued appeal and had conviction unanimously overturned before earning acquittal at trial. See text of the appellate decision here.
  • Client, a foreign student studying in NYC on a student visa, arrested for allegedly forcibly raping a woman that he met at a nightclub. G&J uncovered proof of inconsistencies and misstatements in the complainant's story.
    • Result: all charges dismissed upon motion by the prosecutor.
  • Client, a successful foreign entrereneur living in the U.S. on an H1 visa, arrested for allegedly raping a woman in his hotel room. G&J presented their version of the encounter to the investigating prosecutors.
    • Result: all charges dismissed upon motion by the prosecutor.
  • Client, an illegal resident of the United States, charged with having sex with a 14 year old woman (statutory rape).
    • Result: client allowed to plead guilty to non-criminal violation with community service; no jail, no criminal conviction, no deportation.
  • Client, an engineer with master's degree, arrested for allegedly groping a woman on the subway train. G&J submitted a motion to dismiss to the presiding judge.
    • Result: all charges dismissed.
  • Adult client arrested and charged with felony for having oral sex with a 14-year-old. Ciient confessed to police before hiring G&J.
    • Result: client allowed to plead guilty to misdemeanor with probation and no registration as a sex offender.
  • Client arrested for allegedly molesting a child relative. G&J provided numerous alibi witnesses to the prosecutor.
    • Result: all charges dismissed and mother of the child investigated for pursuing a false police report.
  • Client charged with numerous felony charges for repeatedly videotaping neighbors in their bathrooms and while undressed.
    • Result: no sex offense registration, no jail, and client allowed to re-plead to misdemeanor upon completion of counseling.

The following is an overview of the law pertaining to sex crimes

Understanding Consent under New York Law

Article 130 of the Penal Law contains most of the sex crimes-related state laws in New York, and the vast majority of these laws hinge on the issue of consent. Indeed, it is a lack of consent on the part of the victim that makes otherwise legal sexual acts into crimes. Most obviously, the use or threat of force to effectuate a sex act is criminal – for example, a man is guilty of Rape in the First Degree if he forcibly compels his victim to have sexual intercourse without her consent. However, many people are legally incapable of consenting even where no force is used to compel the act. First and foremost, there are a variety of age restrictions on consent (some of which depend upon the age of the other person involved). Furthermore, the mentally disabled, mentally incapacitated, and physically helpless may be unable to consent to sexual intercourse, and inmates and minors in state custody may not be able to consent to sexual acts with certain state employees. In defending sex crimes cases, the issue of consent is often of paramount importance, especially in cases where there is a prior relationship between the accuser and the accused. The full definition of consent is available here, in Penal Law 130.05.

Rape

Rape means sexual intercourse without consent. Sexual intercourse is defined as having “its ordinary meaning,” and occurs upon any penetration, no matter how slight, of the vagina by a penis.

Key Penal Law Provisions:

  • Rape in the third degree, PL 130.25, a class E felony
  • Rape in the second degree, PL 130.30, a class D felony
  • Rape in the first degree, PL 130.35, a class B felony

Criminal Sexual Act

The Criminal Sexual Act statutes closely mirror the Rape statutes, but instead of sexual intercourse without consent, they proscribe oral sexual conduct and anal sexual conduct without consent. “Oral sexual conduct” means conduct between the mouth and the penis, the mouth and the anus, or the mouth and the vulva or vagina. “Anal sexual conduct” means contact between the penis and anus.

Key Penal Law Provisions:

  • Criminal sexual act in the third degree, PL 130.40, a class E felony
  • Criminal sexual act in the second degree, PL 130.45, a class D felony
  • Criminal sexual act in the first degree, PL 130.50, a class B felony

Sexual Abuse and Aggravated Sexual Abuse

Sexual Abuse generally involves sexual contact without consent. “Sexual contact” means any touching of the sexual or other intimate parts of a person not married to the actor for the purpose of gratifying sexual desire of either party. This broad definition includes the touching of the actor by the victim, as well as the touching of the victim by the actor, whether directly or through clothing.

Aggravated Sexual Abuse occurs generally when a foreign object is inserted into another’s penis, rectum, vagina, or urethra without the other person’s consent. The penalties become more severe if force is used, the victim is young, or if the act causes physical injury.

Key Penal Law Provisions:

  • Sexual abuse in the third degree, PL 130.55, a class B misdemeanor
  • Sexual abuse in the second degree, PL 130.60, a class A misdemeanor
  • Sexual abuse in the first degree, PL 130.65, a class D felony
  • Aggravated sexual abuse in the third degree, PL 130.66, a class D felony
  • Aggravated sexual abuse in the second degree, PL 130.67, a class C felony
  • Aggravated sexual abuse in the first degree, PL 130.70, a class B felony

Public Sex Offenses

Public lewdness is a misdemeanor charge and is applied to those that intentionally and publicly commit lewd acts or expose the private or intimate parts of their bodies in a lewd manner. Most commonly, this charge is used against people engaging in sexual activity - such as intercourse or masturbation – in public. Note, however, that it also applies to people that commit lewd acts in “private premises under circumstances in which he may readily be observed from either a public place or from other private premises, and with intent that he be so observed.” Thus, exhibitionists in their own homes could also be guilty of this charge.

In addition, Exposure of a Person (PL 245.01) is a violation and occurs when one appears in a public place with his/her private or intimate body parts exposed. Finally, Penal Law 245.11 precludes the “public display of offensive sexual material,” and is the reason why the covers of pornographic magazines are not fully displayed on store shelves.

Key Penal Law Provisions:

  • Public lewdness, PL 245.00, a class B misdemeanor
  • Exposure of a person, PL 245.01, a violation
  • Public display of offensive sexual material, PL 245.11, a class A misdemeanor

Other Misdemeanor Sex Crimes

Forcible Touching, a Class A misdemeanor, is charged when a person forcibly grabs, squeezes, or pinches another person’s intimate body parts without their consent. The classic defendant is a subway groper; repeat offenders can be charged with the felony crime of Persistent Sexual Abuse.

Penal Law Section 130.20 (Sexual Misconduct) makes it a Class A misdemeanor to engage in sexual intercourse, oral sexual conduct, or anal sexual conduct with another without their consent. Typically, this charge is only brought against minors that engage in sex acts with other minors, or as a lesser-included offense, although it is sometimes offered to adults as a plea bargain alternative to a more serious charge. The charge also proscribes sexual conduct with an animal or dead human body.

Key Penal Law Provisions:

  • Forcible touching, PL 130.52, a class A misdemeanor
  • Sexual misconduct, PL 130.20, a class A misdemeanor

Predatory Sexual Assault

Predatory sexual assault is an extremely serious charge and is classified as an A-II felony. It applies to defendants that commit one of the most serious First Degree sexual felonies (i.e. rape, aggravated sexual abuse, course of sexual conduct against a child, criminal sexual act) as well as an aggravating act during the crime (or while attempting to flee the scene of the crime). Those aggravating acts include causing serious physical injury to their victim or using or threatening the use of a weapon or dangerous instrument. Also, defendants that commit one of the above-mentioned First Degree sex felonies against multiple victims can also be charged with predatory sexual assault. Defendants accused of First Degree sexual felonies with prior convictions for certain sex crimes can also be charged with Predatory Sexual Assault. Finally, Predatory Sexual Assault Against a Child is also a class A-II felony and is charged where the defendant is alleged to have committed one of the First Degree sex crimes felonies against a child less than 13 years old.

Key Penal Law Provisions:

  • Predatory sexual assault, PL 130.95, a class A-II felony
  • Predatory sexual assault against a child, PL 130.96, a class A-II felony

Course of Sexual Conduct Against a Child

These charges are brought against defendants alleged to have committed multiple sex acts against a single child over a period longer than three months. These charges can carry very high penalties but often hinge on little more than the testimony of a child. Oftentimes these cases are brought against family members of the alleged victim, who may be confused or under a great deal of pressure from other influential adults with an agenda. However, these cases can inflame explosive emotions among judges and juries, so be sure that whichever attorney you hire is sensitive to the delicacies involved in defending a case such as this.

Key Penal Law Provisions:

  • Course of sexual conduct against a child in the second degree, PL 130.80, a class B felony
  • Course of sexual conduct against a child in the first degree, PL 130.75, a class D felony

Sexually Motivated Felony

The recently enacted Penal Law Section 130.91 makes certain other criminal offenses – such as burglary and kidnapping, for example – more severe if the actor commits the crime “for the purpose, in whole or substantial part, of his or her own sexual gratification.” Thus, for example, if a person commits burglary by breaking into someone’s apartment, and does so for the purpose of satisfying himself sexually, then he can be penalized more severely than he would have been for simply breaking into the apartment in order to steal something. Specifically, this law has the effect of elevating a given crime by one “degree,” i.e. a Class C felony becomes a Class B felony. In this way, it is similar to the Hate Crimes statutes and increases the possible sentencing range for a defendant accused of the underlying crime.

Key Penal Law Provision:

  • Sexually motivated felony, PL 130.91

Internet Solicitation of Minors

Television programs like “To Catch a Predator” are raising public awareness about the prevalence of online solicitation and law enforcement authorities are actively pursuing people suspected of attempting to solicit minors for sex. Undercover officers often pose as minors in online chatrooms or via e-mail in an effort to catch people in the act (all the while recording the conversations and messages). Federal law enforcement agents also use these types of tactics in some instances, but at the state level, specially trained police officers pursue these operations in an effort to build cases and make arrests for Attempted Rape and Disseminating Indecent Materials to Minors (PL Sections 235.21 and 235.22). An arrest for a charge like this one can be extremely embarrassing and can also potentially result in very serious penalties for the accused (especially so at the federal level). The attorneys at Galluzzo & Arnone LLP have handled matters such as these and understand the numerous viable defenses to these cases that can be made.

The most commonly charged form of Disseminating Indecent Materials stems from explicit online communication with a minor (defined as a person under the age of seventeen). A person can be charged for the Second Degree crime if they initiate or engage in harmful sexual communications with a minor, and can be charged for the more serious First Degree crime when they engage in these explicit communications and invite or induce a minor to engage in sexual conduct with the person or engage in a sexual performance for the person. There are numerous affirmative defenses to these crimes, including, among other things, if the accused made a reasonable effort to ascertain the age of the minor, but the minor took actions that prevented the accused from knowing the truth.

One of the interesting debates about this law is whether it should apply to minors who engage in online sexually explicit communications with other minors. As it stands, for example, a minor that sends nude photographs of herself to her minor boyfriend via text or the internet could be at risk for an arrest for Dissemination of Indecent Materials or Promoting a Sexual Performance by a Child (263.15). “Sexting,” as it is sometimes called, has resulted in a number of controversial arrests of teenage girls and boys across the country and New York.

Key Penal Law Provisions:

  • Disseminating indecent material to minors in the second degree, PL 235.21, a class E felony
  • Disseminating indecent material to minors in the first degree, PL 235.22, a class D felony

Criminal Images Involving a Child

Under New York law, obscene images, photographs and videos are generally referred to as “sexual performances” or “obscene sexual performances,” depending on their content. Penal Laws 263.15 and 263.10 make it a Class D felony to produce, direct or promote a sexual performance or an obscene sexual performance by a child less than seventeen years of age, and Penal Laws 263.11 and 263.16 make it a Class E felony to possess a sexual performance or an obscene sexual performance.

Key Penal Law Provisions:

  • Promoting an obscene sexual performance by a child, PL 263.10, a class D felony
  • Possessing an obscene sexual performance by a child, PL 263.11, a class E felony
  • Promoting a sexual performance by a child, PL 263.15, a class D felony
  • Possessing a sexual performance by a child, PL 263.16, a class E felony

Incest

Key Penal Law Provisions:

  • Incest in the third degree, PL 255.25, a class E felony
  • Incest in the second degree, PL 255.30, a class D felony
  • Incest in the first degree, PL 255.35, a class B felony

The Penal Law prohibits sexual acts, whether consensual or not, between parties that are related, “whether through marriage or not,” as ancestors, descendants, brothers, sisters, uncles, aunts, nephews, or nieces. The severity of the charges depends upon the type of sex act performed. These charges are most often brought in cases alleging child molestation.