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New York Penal Code 130.50: Criminal Sexual Act in the First Degree

The New York Penal Code enumerates three different crimes in the criminal sexual act category. The most serious of the crimes in this category is criminal sexual act in the first degree. Criminal sexual act in the first degree is a classified as a class B felony.

Elements of Criminal Sexual Act in the First Degree

Criminal sexual act in the first degree involves engaging in anal or oral sex with another individual under a specific set of circumstances. Criminal sexual act in the first degree involves anal or oral sex by forcible compulsion or with a person who is physically helpless. This crime also occurs when it involves a child under the age of 11. In addition, the crime occurs when the victim is a child under the age of 13 and the perpetrator is at least 18-years old.

The statute further defines specifically what constitutes anal or oral sex for the purposes of this crime. All of these elements must be satisfied in order for a person to be prosecuted under this provision of the New York penal code.

George FernandezGeorge Fernandez
14:16 30 Apr 24
Excellent 10 out of 10, Helped resolve my case. Jeremy explained everything and made everything easy to understand.
21:33 24 Apr 24
If you are looking for a lawyer that listens, is aggressive where needed, and holds his word above all else, Todd is the best pick. I had hired multiple attorneys prior to hiring the Spodek Group for a white collar case. The first thing that stood out to me was the cost, as anyone going through the process and dealing with the system, money was tight at that time - especially after hiring and firing multiple lawyers. The cost was not as high as others which was definitely a plus. Todd's intake process was also unlike other attorneys. He took the time to actually listen. He cared. He was trying to put himself in my shoes while I was explaining the situation to him and he really took the time to understand the whole situation. Other lawyers will give you 15 mins and send you a retainer agreement. Not Todd, I think he spent almost two hours with me as I was explaining everything.Not only was he great during the onboarding process, he was supportive and very informative through the entire plea process and eventually sentencing. After hiring him, I asked if I should hire a prison consultant, he told me to save my money as he would do everything they would. He was right and held up to his word. Later on I would hear from others that went with the prison consultants that they were a waste of money - I am glad I listened to Todd!When it came time for sentencing, two days prior to sentencing, the prosecutor tried increasing my proposed prison time by almost double - apparently a normal move. Todd and his team worked with me non-stop through the weekend prior to sentencing to ensure that I was not given additional prison time. Again, he took the time to listen and came up with a strategy to explain the case with great detail.Unfortunately, I did plead guilty as that was my best option. Todd and his whole team wrote up nearly 300 pages of a summary of what happened and why I should not be given prison time. If I breakdown the amount I spent with Todd versus the amount of work that I saw being done, I am shocked I was not charged four times as much. The other benefit was, a lot of criminal defense lawyers were just a single attorney with a paralegal or two. Todd had a team of people that I dealt with (5-7 people that I interacted with), but he was ALWAYS accessible. It would never take him more than an hour to reply unless he was in court.I was sentenced to prison and I was emotionally distraught. Todd and his team did whatever they could even after sentencing to make sure I was alright. He personally stayed in touch with my family to ensure I was doing alright and offered support to them. Most lawyers would consider the job complete at sentencing, not Todd.After prison, Todd still spent time with me to make sure I was on the right track and avoiding any potential risks in the future. He has also been giving advice on how to navigate probation etc and has not been looking at the clock for billing.Although I wish I had never been arrested in the first place, I am glad I had Todd and his team in my corner. Without them I likely would have had to spend a lot more time in prison than I did.Thank you, Todd, and the entire Spodek Law team, for helping turn what was a nightmare into a manageable situation!
Yelva Saint-PreuxYelva Saint-Preux
19:26 19 Apr 24
I am immensely grateful to the entire team at Spodek Law Group for their unwavering dedication and exceptional expertise throughout my case. From our initial consultation to the final resolution, their professionalism and tireless advocacy made all the difference. Their strategic approach and attention to detail instilled confidence in me every step of the way.Thanks to their hard work and commitment, we achieved a truly favorable outcome that exceeded my expectations. Not only did they navigate the complexities of my case with precision, but they also provided invaluable support and guidance during what was undoubtedly a challenging time. I cannot recommend Spodek Law Group highly enough, especially attorneys Todd Spodek and Claire Banks; they are beacons of excellence in the legal profession.YSP.
Katherine SunKatherine Sun
18:08 18 Apr 24
my lawyer is Alex Zhik. Efficient, patient and professional
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17:48 18 Apr 24
Todd, Ralph and Alex are amazing. Helped my husband get from a double digit number with multiple charges to a single digit, by the time I blink he will be out. They very professional and help with all your needs. They dealt with my anxiety and worry very well and they understand that your family member needs to get home as soon as possible.
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20:45 15 Mar 24
Believe every single review here about Alex Z!! From our initial consultation, it was evident that Alex possessed a profound understanding of criminal law and a fierce dedication to his clients rights. Throughout the entirety of my case, Alex exhibited unparalleled professionalism and unwavering commitment. What sets Alex apart is not only his legal expertise but also his genuine compassion for his clients. He took the time to thoroughly explain my case, alleviating any concerns I had along the way. His exact words were “I’m not worried about it”. His unwavering support and guidance were invaluable throughout the entire process. I am immensely grateful for Alex's exceptional legal representation and wholeheartedly recommend his services to anyone in need of a skilled criminal defense attorney. Alex Z is not just a lawyer; he is a beacon of hope for those navigating the complexities of the legal system. If you find yourself in need of a dedicated and competent legal advocate, look no further than Alex Z.
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16:26 15 Mar 24
I don’t know where to start, I can write a novel about this firm, but one thing I will say is that having my best interest was their main priority since the beginning of my case which was back in Winter 2019. Miss Claire Banks, one of the best Attorneys in the firm represented me very well and was very professional, respectful, and truthful. Not once did she leave me in the dark, in fact she presented all options and routes that could possibly be considered for my case and she reinsured me that no matter what I decided to do, her and the team will have my back and that’s exactly what happened. Not only will I be liberated from this case, also, I will enjoy my freedom and continue to be a mother to my first born son and will have no restrictions with accomplishing my goals in life. Now that’s what I call victory!! I thank the Lord, My mother, Claire, and the Spodek team for standing by me and fighting with me. Words can’t describe how grateful I am to have the opportunity to work with this team. I’m very satisfied, very pleased with their performance, their hard work, and their diligence.Thank you team!
K MarK Mar
01:37 25 Jan 24
I recently had Spodek Law Group represent me for a legal matter in NYC and I am thoroughly impressed with their services.Alex Zhik secured the best possible outcome for my case.It was a seamless journey from the initial consultation to the resolution of my legal matter. From the moment I spoke to Todd about my case, his enthusiasm to help was evident, setting a positive tone for the entire experience. The efficiency and professionalism displayed by the team is commendable.A particularly noteworthy aspect of their service is their user-friendly portal to upload your documents/evidence. This not only simplified the process, but showcases their commitment to streamline the client experience.Lastly, in an industry where legal fees can often be a concern, I found their pricing to be very reasonable, making needing legal assistance feel accessible and stress-free.I am grateful for their support and wouldn't hesitate to turn to them again in the future.

Examples of Criminal Sexual Act in the First Degree

An example of criminal sexual act in the first degree is two adults, a man and a woman, drinking alcoholic beverages. The woman consumes in excess and passes out.

While the woman is passed out, the man engages in oral contact with the woman’s vaginal area. This would constitute criminal sexual act in the first degree because it meets the description of the type of conduct anticipated by the statute. In addition, the act occurred while the woman was physically helpless.

Another example involves an 18-year old young man who entices a 12-year old to perform oral sex on him. The 18-year old cannot make the argument that the 12-year old willingly participated. A minor cannot consent to sexually contact.

Sentence for Criminal Sexual Act in the First Degree

Criminal sexual act in the first degree is classified as a class B felony. As a result, in New York, a person convicted of the crime can be sentenced up to 25 years in prison. If the crime is further classified as a violent offense, a defendant would face a mandatory five years incarcerated.

Probation may also be a part of a person’s sentence when convicted for criminal sexual act in the first degree. The mandatory probationary term is 10 years in this type of case. A person will also be ordered to register as a sex offender. This will likely be a lifetime requirement.

Defenses for Criminal Sexual Act in the First Degree

If an adult is the alleged victim, a valid defense would be consent to the sexual act. If a defendant can demonstrate the other adult party in fact consented to the act, prosecuting this type of case would become next to impossible. The only potential exception would arise from a demonstration that the purported consent was coerced.

Another defense may be that you lacked the necessary intent to be guilty of criminal sexual act in the first degree. A person may be guilty of a lesser charge, but not criminal sexual act in the first degree, if he or she lacked the necessary criminal intent.

An NYC criminal attorney can provide insights into possible defenses in a criminal sexual act in the first degree case. A defense attorney will schedule an initial consultation to discuss a case, and to provide an overall case evaluation. This includes an analysis of potential defense strategies. As a general rule, a criminal defense lawyer does not charge a fee for an initial consultation with a prospective client.

New York Penal Code 130.45: Criminal Sexual Act in the Second Degree

One of the most serious criminal sexual act crimes in the state of New York is criminal sexual act in the second degree. As per the New York Penal Code 130.45, the crime is committed if you are at least 18 years of age and engage in oral or anal sex with another person who is under 15 years old or if you have oral or anal sex with a person who is incapable of consenting because they are mentally disabled or mentally incapacitated.

As per New York’s Penal Code 130.00(5), if a person has a mental disability and doesn’t have the capacity to understand what entails a sexual act and then you engage in one of those sexual acts with that person, it is considered to be a criminal sexual act in the second degree. In addition, New York’s penal code 130.00(6), a person is mentally incapacitated if they are intoxicated due to using alcohol or drugs. In that instance, if you engaged in one of the sexual acts with an individual in that scenario, it would also be considered a criminal sexual act in the second degree.

Example of Criminal Sexual Act in the Second Degree Under New York Penal Code 130.45

An example of a criminal sexual act in the second degree is that a woman serves as a caretaker for a man who suffers from mental retardation that results in his mental ability to be like that of a child. The woman initiates sexual contact and encourages the man to engage in oral sex with her. As a result of these actions, the woman could be charged with and prosecuted for a criminal sexual act in the second degree because the man lacked the mental capacity to consent to the sexual contact. Even if the man supposedly consented, it is irrelevant because his mental capacity would deem it impossible for him to consent.

Possible Defenses for Criminal Sexual Act in the Second Degree

There are a few possible defenses for a criminal sexual act in the second degree charge. Of course, the specific facts of your case depend on which of the defenses your NYC criminal attorney can use. The defenses are as follows:

Lack of Corroboration: If the charges against you came about as a result of the victim being mentally disabled or mentally incapacitated at the time of the incident, in addition to the testimony of the victim, as per the New York Penal Code 130.16, there must be evidence to corroborate the claims.

Statute of Limitations: New York, like the other states in the United States, has what is known as a statute of limitations. This is a time limit required to prosecute for a crime. In this instance, there is five years from the date of the incident for prosecution to take place. Under New York Criminal Procedure Law 30.10, if the case isn’t brought to court against you within that time frame, you cannot legally be prosecuted.

Penalties and Sentences for Criminal Sexual Act in the Second Degree

Criminal sexual act in the second degree is charges as a class D felony, with the maximum prison sentence being seven years. In addition to the prison term, you may also be given probation that last up to 10 years. However, regardless of the sentence you receive, you are also required to register as a sex offender under New York’s Correction Law 168. It’s also required to follow the rules of the registration for 20 years and possibly for the rest of your lifetime.

New York Penal Code 130.40: Criminal Sexual Act in the third degree

New York City takes a hard stance on sexual offenses. In many instances the prosecution must show that there was a lack of consent on the part of the victim. The following outlines New York penal code 130.40, which is criminal sexual act in the third degree. If you are facing a sexually based offense such as this, it is important to seek the advice of a NYC criminal defense attorney as soon as possible.


According to New York law, those who engage in the following conduct can be charged with violating penal code 130.40 of committing a criminal sexual act in the third degree:

  • Having Oral Sex Against A Person’s Will
  • Engaging In Anal Sex Without Consent
  • Having Oral Or Anal Sex With Someone Who Cannot Give Legal Consent
  • Being Over 21 And Having Anal Or Oral Sex With Someone Under 17

The law defines anal sex as:

  • Contact With The Anus And Penis

Oral sex is defined as contact between the mouth and:

  • The Vulva
  • The Vagina
  • The Penis
  • The Anus


Violation of New York penal code 130.40 is a Class E felony and can carry penalties of:

  • A Prison Sentence Of Up To 4 Years
  • Extended Probation Time
  • Fines And Fees
  • Registration As A Sex Offender

Being convicted of a sexually motivated crime that is a felony, will impact your life in negative ways. Because felony charges and convictions show up on routine background checks, you may not be able to get a job or rent an apartment or house. Having to register as a sex offender everywhere you live is also problematic for most people. Failing to register when required to do so could mean jail time.


Few crimes are as difficult to defend as sex charges. To do so, you need an experienced criminal defense attorney to help you avoid prison. Some things your defense attorney may do to defend you are:

  • Hire Investigators
  • Get The Case Dismissed Based On New York Statute Of Limitations
  • Prove Consent Was Given

Even though this criminal offense is less serious than other sex crimes, it is still a felony and can create havoc in your life if you are found guilty and convicted. For this reason, you must not wait to speak with a lawyer for advice. Your attorney may be able to negotiate a lighter sentence for you that does not include jail time and long periods of probation.

Being accused of any crime is difficult, but sexually based offenses are embarrassing for you and your loved ones. There is also a great deal of stress association with facing felony charges and possible jail time. Contact a criminal defense attorney today to discuss your options. After going over the facts in your case, a lawyer will let you know the best way to mount a defense in court. Once you have a competent attorney working for you, it will be less stressful for you until you can tell your story in court. Your criminal defense attorney will work hard to preserve both your reputation and your freedom.

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