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People v. G.
2018 NY Slip Op. 02803
April 25, 2018
Decision
The defendant appeals from a Queens County Supreme Court decision regarding his conviction of 1st-degree sexual abuse and child endangerment. Upon his guilty plea, there was a resentence of 10 years post-release supervision upon the adjudication of a second sexual assault, in addition to the term already imposed from his prior conviction, as well as a 1-year prison term for child endangerment.
It was ordered that the resentencing was changed by vacating the adjudication of the second sex assault offense. The post-release supervision was reduced to 6 years.
In this case, the defendant was charged with 3 counts of 1st-degree sexual abuse against a child and 2 counts of child endangerment. The defendant pleads guilty to a single count of 1st-degree sexual abuse (Penal Law 130.65[3] and a single count of child endangerment (Penal Law 260.10). Pat of his plea deal was a term of 5 years in prison and 6 years post-release supervision. The defendant waived his right to appeal.
In December of 2013, his sentence was ordered. The defendant, however, returned to court for resentencing (Penal Law 70.7) due to the second child sexual assault. He was resentenced to 5 years in prison and a 10-year supervision.
The defendant waived his right to appeal, and the court determined that it was valid (People v. Lopez 120 AD3d 1437). Because of this waiver, the court will not review the defendant’s argument that the enhanced term was improper procedurally (People v. Abdul 112 AD3d 644; People v Backus 43 AD3d 409). The issue, however, is whether the defendant is if the second child sex offender sentence is waived because it pertains to the legality of the defendant’s sentence (People v Ifill 96 AD 974).
Pursuant to NY Penal Law 70.7(2) sexual assault against a child is a felony. The elements include the commission of a crime, and that the child is less than 15 years old. New York Penal Law 130.00(10) defines sexual conduct as intercourse, oral or anal sex, sexual or aggravated sexual conduct. This sexual conduct includes touching or causing a 3d party to touch a child.
The defendant has already been convicted of possessing a sexual performance of a child (Penal Law 263.16). This offense is committed when a person has in their possession or has the intent to view a sexual performance by a child less than 16 years old. The sex is performed by the child, and the defendant has access or control over the performance so they can watch it.
Because in this case, the defendant’s prior conviction didn’t require a physical sexual act, the defendant is not a second-time child sexual assault felony offender.
Therefore, the adjudication of the defendant as a second time offender should be vacated. His post-release supervision will be reduced to 6 years.
If you have been accused of a sex crime such as rape, child pornography or sexual abuse, it is important to seek legal help as soon as possible. If convicted, the penalties for these crimes are harsh. Contact the Stephen Bilkis and Associates for guidance and a free consultation. We have office locations throughout New York, including locations in Queens, the Bronx, Manhattan, Staten Island, Brooklyn, and Manhattan. We also have offices in Nassau County, Suffolk County, and Westchester County. Call today to schedule an appointment at 1-800-NYNYLAW.