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The information provided is not for commercial use it is intended only for informational use. There has been no attempt to make a complete list of all or related statutes. There is no guarantee of the completeness or accuracy of the information provided. Please Seek Professional Legal advice and visit the State’s official web site and consult the Bound Volumes of the State’s Statutes for more information.
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URL :
McKinney’s
Consolidated Laws of New York – Criminal Procedure Law Book 11A – Penal Law
Book 39 from 2000-20003
Penal
Law Book 39 (pgs 252 –363)
OFFENSES
AGAINST THE PERSON
TITLE
H
§130.05
Sex offenses; Lack of Consent
1. Whether or not specifically stated, it is an element
of every offense defined in this article that the sexual act was committed
without consent of the victim.
2. Lack of consent results from:
(a) Forcible compulsion; or
(b) Incapacity to consent; or
(c) Where the offense charged is sexual abuse or forcible
touching any circumstances, in addition to forcible compulsion or incapacity to
consent, in which the victim does not expressly or impliedly acquiesce in the
actor’s conduct; or
(d) Where the offense charged is rape in the third
degree as defined in subdivision there of section 130.25, or criminal sexual
act in the third degree as defined in subdivision three of section 130.40, in
addition to forcible compulsion, circumstances under which, at the time of the
act of intercourse, oral sexual conduct or anal sexual conduct, the victim
clearly expressed that he or she did not consent to engage in such act, and a
reasonable person in the actor’s situation would have understood such person’s
words and acts as an expression of lack of consent to such act under all the
circumstances.
3. A person is deemed incapable of consent when he or
she is:
(a) less than seventeen years old; or
(b) mentally disabled; or
(c) mentally incapacitated; or
(d) physically helpless; or
(e) committed to the care and custody of the state
department of correctional services or a hospital, as such term is defined in subdivision
two of section four hundred of the correction law, and the actor is an
employee, not married to such person, who knows or reasonably should know that
such person is committed to the care and custody of such department or
hospital. For purposes of this paragraph, “employee” means
(i) an employee of the state department of correctional
services who performs professional duties in a state correctional facility
consisting of providing custody, medical or mental health services, counseling
services, education programs, or vocational training for inmates;
(ii) an employee of the division of parole who performs
professional duties in a state correctional facility and who provided
institutional parole services pursuant to section two hundred fifty-nine-e of
the executive law; or
(iii) an employee of the office of mental health who
performs professional duties in a state correctional facility or hospital, as
such term is defined in subdivision tow of section four hundred of the
correction law, consisting of providing custody, or medical or metal health
service for such inmates; or
(f) committed to the care and custody of a local
correctional facility, as such term is defined in subdivision two of section
forty of the correction law, and the actor is an employee not married to such
person, who knows or reasonably should know that such person is committed to
the care and custody of such facility. For purposes of this paragraph,
“employee” means an employee for the local correctional facility where the person
is committed who performs professional duties consisting of providing custody,
medical or mental health services, counseling services, educational services,
or vocational training for inmates; or
(g) committed to or placed with the office of children
and family services and in residential care, and the actor is an employee, not
married to such person, who knows or reasonably should know that such person is
committed to or placed with such office of children and family services and in
residential care. Fro purposes of this paragraph, “employee” means an employee
of the office of children and family services or of a residential facility who
performs duties consisting of providing custody, medical or mental health
services counseling services, educational services, or vocational training for
persons committed to or placed with the office of children and family services
and in residential care; or
(h) a client or patient and the actor is a health care
provider or mental health care provider charged with rape in the third degree
as defined in section 130.25, criminal sexual act in the third degree as
defined in section 130.40, aggravated sexual abuse in the fourth degree as
defined in section 130.65-a, or sexual abuse in the third degree as defined in
section 130.55, and the act of sexual conduct occurs during a treatment
session, consultation, interview, or examination.
§130.10
Sex offenses; Limitation; defenses
1. In any prosecution under this article in which the
victim’s lack of consent is based solely upon his or her incapacity to consent
because he or she was mentally disabled, mentally incapacitated or physically
helpless, it is an affirmative defense that the defendant, at the time he or
she engaged in the conduct constituting the offense did not know of the facts
or conditions responsible for such incapacity to consent.
2. Conduct performed for a valid medical or mental
health care purpose shall not constitute a violation of any section of this
article in which incapacity to consent is based on the circumstances set forth
in paragraph (h) of subdivision three of section 130.05 of this article.
3. In any prosecution for the crime of rape in the
third degree as defined in section 130.25, criminal sexual act in the third
degree as defined in section 130.40, aggravated sexual abuse in the fourth
degree as defined in section 130.65-a, or sexual abuse in the third degree as
defined in section 130.55 in which incapacity to consent is based on the
circumstances set forth in paragraph (h) of subdivision three of section 130.05
of this article it shall be an affirmative defense that the client or patient
consented to such conduct charged after having been expressly advised by the
health care or mental health care provided that such conduct was not performed
for a valid medical purpose.
4. In any prosecution under this article in which the
victim’s lack of consent is based solely on his or her incapacity to consent
because he or she was less than seventeen years old, mentally disabled or a
client or patient and the actor is a health care provider, it shall be a
defense that he defendant was married to the victim as defined in subdivision
four of section 130.00 of this article.
§130.20
Sexual Misconduct
A person is guilty of sexual misconduct when:
1. He or she engages in sexual intercourse with another
person without such person’s consent; or
2. He or she engages in oral sexual conduct or anal
sexual conduct with another person without such person’s consent; or
3. He or she engages in sexual conduct with an animal
or a dead human body.
Sexual misconduct is a class A misdemeanor.
§130.25
Rape in the Third Degree
A person is guilty of rape in the third degree when:
1. He or she engages in sexual intercourse with another
person who is incapable of consent by reason of some factor other than being
less than seventeen years old; or
2. Being twenty-one years old or more, he or she
engages in sexual intercourse with another person less than seventeen years
old; or
3. He or she engages in sexual intercourse with another
person without such person’s consent where such lack of consent is by reason of
some factor other than incapacity to consent.
Rape in the third degree is a class E felony.
§130.30 Rape in the Second Degree
A person is guilty of rape in the second degree when:
1. being eighteen years old or more, he or she engages
in sexual intercourse with another person less than fifteen years old; or
2. he or she engages in sexual intercourse with another
person who is incapable of consent by reason of being mentally disabled or
mentally incapacitated.
It shall be an affirmative defense to the crime of rape in the second
degree as defined in subdivision one of this section that the defendant was
less than four years older than the victim at the time of the act.
Rape in the second degree is a class D felony.
§130.35 Rape in the First Degree
A person is guilty of rape in the first degree when he or she engages in sexual intercourse with another person:
1. By forcible compulsion: or
2. Who is incapable of consent by reason of being
physically helpless; or
3. Who is less than eleven years old; or
4. Who is less than thirteen years old and the actor is
eighteen years old or more.
Rape in the first degree is a class B felony.
§130.35 Criminal Sexual Act in the Third Degree
A person is guilty of criminal sexual act in the third degree when:
1. He or she engages in oral sexual conduct or anal
sexual conduct with a person who is incapable of consent by reason of some
factor other than being less than seventeen years old;
2. Being twenty-one years old or more, he or she
engages in oral sexual conduct or anal sexual conduct with a person less than
seventeen years old; or
3. He or she engages in oral sexual conduct or anal
sexual conduct with another person without such person’s consent where such
lack of consent is by reason of some factor other than incapacity to consent.
Criminal sexual act in the third degree is a class E felony.
§130.45 Criminal Sexual Act in the Second Degree
A person is guilty of criminal sexual act in the second degree when:
1. being eighteen years old or more, he or she engages
in oral sexual conduct or annals sexual conduct with another person less than fifteen
years old: or
2. he or she engages in oral sexual conduct or anal
sexual conduct with another person who is incapable of consent by reason of
being mentally disabled or mentally incapacitated.
It shall be an affirmative defense to the crime of criminal sexual act in the second degree as defined in subdivision one of this section that the defendant was less than four years older than the victim at the time of the act.
Criminal sexual act in the second degree is a class D felony.
§130.52 Forcible Touching
A person is guilty of forcible touching when such person intentionally, and for no legitimate purpose, forcibly touches the sexual or other intimate parts of another person for the purpose of degrading or abusing such person; or for the purpose of gratifying the actor’s sexual desire.
For the purpose of this section, forcible touching includes squeezing,
grabbing or pinching.
Forcible touching is a class A misdemeanor.
§130.60 Sexual abuse in the Second Degree
A person is guilty of sexual abuse in the second degree when he or she subjects another person to sexual contact and when such other person is:
1. Incapable of consent by reason of some factor other
than being less than seventeen years old; or
2. Less than fourteen years old.
Sexual abuse in the second degree is a class A misdemeanor.
§130.65 Sexual abuse in the First Degree
A person is guilty of sexual abuse in the first degree when he or she subjects another person to sexual contact:
1. By forcible compulsion; or
2. When the other person is incapable of consent by
reason of being physically helpless; or
3. When the other person is less than eleven years old.
Sexual abuse in the first degree is a class D felony.
§130.65-a Aggravated Sexual abuse in the Fourth
Degree
1. A person is guilty of aggravated sexual abuse in the
fourth degree when:
(a) He or she inserts a foreign object in the vagina,
urethra, penis or rectum of another person and the other person is incapable of
consent by reason of some factor other than being less than seventeen years
old; or
(b) He or she inserts a finger in the vagina, urethra,
penis or rectum of another person causing physical injury to such person and such
person is incapable of consent by reason of some factor other than being less
than seventeen years old.
2. Conduct performed for a valid medical purpose does
not violate the provisions of this section.
Aggravated sexual abuse in the fourth degree is a class E felony.
§130.66 Aggravated Sexual abuse in the Third Degree
1. A person is guilty of aggravated sexual abuse in the
third degree when he inserts a foreign object in the vagina, urethra, penis or
rectum of another person:
(a) By forcible compulsion; or
(b) When the other person is incapable of consent by
reason of being physically helpless; or
(c) When the other person is less than eleven years old.
2. A person is guilty of aggravated sexual abuse in the
third degree when he or she inserts a foreign object in the vagina, urethra,
penis or rectum of another person causing physical injury to such person and
such person is incapable of consent by reason of being mentally disabled or
mentally incapacitated.
3. Conduct performed for a valid medical purpose does
not violate the provisions of this section.
Aggravated sexual abuse in the third degree is a class D felony.
§130.67 Aggravated Sexual abuse in the Second Degree
1. A person is guilty of aggravated sexual abuse in the
second degree when he inserts a finger in the vagina, urethra, penis, or rectum
of another person causing physical injury to such person:
(a) By forcible compulsion; or
(b) When the other person is incapable of consent by
reason of being physically helpless; or
(c) When the other person is less than eleven years old.
2. Conduct
performed for a valid medical purpose does not violate the provisions of this
section.
Aggravated sexual abuse in the second degree is a class C felony.
§130.70 Aggravated Sexual abuse in the First Degree
1. A person is guilty of aggravated sexual abuse in the
first degree when he inserts a foreign object in the vagina, urethra, penis or
rectum of another person causing physical injury to such person:
(a) By forcible compulsion; or
(b) When the other person is incapable of consent by
reason of being physically helpless; or
(c) When the other person is less than eleven years old.
2. Conduct performed for a valid medical purpose does not
violate the provisions of this section
Aggravated sexual abuse in the first degree is a class B felony.
§130.75 Course of Sexual Conduct Against a Child in
the First Degree
1. 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:
(a) he or she engages in two or more acts of sexual
conduct, which includes at least one act of sexual intercourse, oral sexual
conduct, anal sexual conduct or aggravated sexual contact, with a child less
than eleven years old; or
(b) he or she, being eighteen years old or more, engages
in two or more acts of sexual conduct, which include at least one act of sexual
intercourse, oral sexual conduct, anal sexual conduct, or aggravated sexual
contact, with a child less than thirteen years old.
2. A person may not be subsequently prosecuted for any
other sexual offense involving the same victim unless the other charged offense
occurred outside the time period charged under this section.
Course of sexual conduct against a child in the first degree is a class
B felony.
§130.80 Course of Sexual Conduct Against a Child in
the Second Degree
1. A person is guilty of course of sexual conduct against
a child in the second degree when, over a period of time not less than three
months in duration:
(a) he or she engages in two or more acts of sexual
conduct with a child less than eleven years old; or
(b) he or she, being eighteen years old or more, engages
in two or more acts of sexual conduct with a child less than thirteen years
old.
2. a person may not be subsequently prosecuted for any
other sexual offense involving the same victim unless the other charged offense
occurred outside the time period charged under this section.
Course of sexual conduct against a child in the second degree is a
class D felony.
Penal
Law Book 39 (pg. 15)
OFFENSES
AGAINST MARRIAGE & FAMILY
TITLE
0
§255.25 Incest
A person is guilty of incest when he or she marries or engages in sexual intercourse or deviate sexual intercourse with a person whom he or she knows to be related to him or her, either legitimately or out of wedlock, as an ancestor, descendant, brother or sister of either the whole or the half blood, uncle, aunt, nephew or niece.
Incest is a class E felony.
Criminal
Procedure Law Book 11A (pgs. 166-167)
Article
30 – TIMELINESS OF PROSECUTIONS AND SPEEDY TRIAL
§30.10
Timeliness of prosecutions; periods of limitation
1. A criminal action must be commenced within the
period of limitation prescribed in the ensuing subdivision of this section.
2. Except as otherwise provided
in subdivision three:
(a) A prosecution for a class A felony may be commenced
at any time;
(b) A prosecution for any other felony must be commenced
within five years after the commission thereof;
(c) A prosecution for a misdemeanor must be commenced
within two years after the commission thereof;
(d) A prosecution for a petty offense must be commenced
within one year after the commission thereof.
3. Notwithstanding the provisions of subdivision two,
the periods of limitation for the commencement of criminal actions are extended
as follows in the indicated circumstances:
(a) A prosecution for larceny committed by a person in
violation of a fiduciary duty may be commenced within one year after the facts
constituting such offense are discovered or, in the exercise of reasonable
diligence, should have been discovered by the aggrieved party or by a person
under a legal duty to represent him who is not himself implicated in the
commission of the offense.
(b) A prosecution for any offense involving misconduct
in public office by a public servant may be commenced at any time during the
defendant’s service in such office or within five years after the termination
of such service; provided however, that in no event shall the period of
limitation be extended by more than five years beyond the period otherwise
applicable under subdivision two.
(c) A prosecution for any crime set forth in the title
twenty-seven or article seventy-one of the environmental conservation law may
be commenced within four years after the facts constituting such crimes are
discovered or, in the exercise of reasonable diligence, should have been
discovered by a public servant who has the responsibility to enforce the
provisions of said title and article.
(d) A prosecution for any misdemeanor set forth in the
tax law or chapter forty-six of the administrative code of the city of New York
must be commenced within three years after the commission thereof.
(e) A prosecution for course of sexual conduct in the
first degree as defined in section 130.75 of the penal law and course of sexual
conduct in the second degree as defined in section 130.80 of the penal law may
be commenced within five years of the commission of the most recent act of
sexual conduct.
(f) For purposes of a prosecution involving a sexual
offense as defined in article one hundred thirty of the penal law committed
against a child less than eighteen years of age, incest as defined in section 255.25 of the penal law committed against a child less than
eighteen years of age, or use of a child in a sexual performance as defined in
section 263.05 of the penal law, the period of limitation shall not begin to
run until the child has reached the age of eighteen or the offense is reported
to a law enforcement agency or statewide central register of child abuse and
maltreatment, whichever, occurs earlier.
4. In calculating the time limitation applicable to
commencement of a criminal action, the following periods shall not be included:
(a) Any period following the commission of the offense
during which
(i) the defendant was continuously outside this state or
(ii) the whereabouts of the defendant were continuously
unknown and continuously unascertainable by the exercise of reasonable
diligence. However, in no event shall the period of limitation be extended by
more than five years beyond the period otherwise applicable under subdivision
two.
(b) When a prosecution for an offense is lawfully
commenced within the prescribed period of limitation therefore, and when an
accusatory instrument upon which such prosecution is based is subsequently
dismissed y an authorized court under directions or circumstances permitting
the lodging of another charge for the same offense or an offense based on the
same conduct, the period extending form the commencement of the thus defeated
prosecution to the dismissal of the accusatory instrument does not constitute a
part of the period of limitation applicable to commencement of prosecution by a
new charge.
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Revised 10/04