Published on:

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

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.