Rape in the First Degree: New York Penal Law 130.35

Rape charges are some of the most aggressively prosecuted cases in all of New York, whether it is in Manhattan, Brooklyn, Queens or “upstate” in the Hudson Valley’s Westchester or Rockland Counties. While sex crimes lawyers may see all the degrees prosecuted by District Attorneys, Penal Law 130.25, Rape in the First Degre, is by far the most significant, dangerous, and consequential of all these offenses. If you find yourself on Saland Law’s website because you are charged with First Degree Rape, then you no doubt recognize that your arrest and accusation by itself, even without more, is devastating. Frighteningly, a criminal conviction is far, far worse. Make no mistake, both the police and prosecutors can be, and routinely are, unyielding in their prosecution of this offense and the sooner you gather your evidence and implement your defense, the better your chances will be to successfully challenge your false accuser or mitigate your conduct to lessen your exposure.

You are guilty of Penal Law 130.35 when you engage in vaginal, anal, or oral sexual contact with another person by forcible compulsion, or where that person is incapable of consent because they are physically helpless, or if that other person is less than 11 years old, or if that other person is less than 13 years old and you are 18 years or older. It is critical to understand that as of September 1, 2024, penetration and actual intercourse is no longer a necessary element of any degree of Rape. As elaborated further, the elements of this crime and the terms necessary to understand them are available on both Saland Law’s New York Rape Crimes information page as well as the more general and larger New York Sex Crimes information page.

If you are convicted of this class “B” violent felony, your sentencing judge in a New York City Supreme Court or an upstate County Court can incarcerate you for as long as 25 years. By law, the minimum sentence is a non-discretionary five years. This means that even if you made a tragic mistake and committed a terrible act, or were found guilty by a jury, you absolutely must go to prison. There are no exceptions. To be clear, what is the most frightening consequence of a Penal Law 130.35 conviction is that this type of sentence assumes you have absolutely no criminal history whatsoever prior to your arrest for Rape in the First Degree. As someone with a prior felony conviction you may be facing an even higher mandatory minimum of eight or ten years or even 20 years to life. Keep in mind, as described on Saland Law’s New York Rape Crime and New York Sex Crimes information pages, a conviction will also mandate that you register as a sex offender under the Sex Offender Registration Act (SORA). In other words, even after you get out of prison, you will not “escape” your criminal conviction.

While it is unsurprising that such a serious criminal charge would apply to a violent, forcible sexual violation, it may be surprising to you to know that this same criminal statute applies equally to cases in which the person is not accused of assaulting or using force, but where the accusation is instead that the person was asleep or extremely drunk. In other words, two people who have been drinking heavily and engage in intercourse or even other sexual contact other than intercourse can result in a First Degree Rape allegation. In a more common scenario, strangling, beating, or using a weapon can and will very likely lead to an arrest or indictment for this crime.

The other hugely significant penalty for a conviction of Rape in the First Degree is registration with the New York sex offender registry pursuant to the SORA law, as mentioned above. This registration, which is mandatory, will result in your photo, name and address being publicly accessible potentially for the rest of your life.

There should be no misunderstandings. Rape in the First Degree is a horrifying accusation. However, as terrifying as it may be, it does not mean that the end is already written. Are there reasons to doubt the truthfulness of your accuser? Is this accusation a belated attempt to damage your reputation after a bad breakup? Should statements you made to the police be suppressed? Is there corroboration of the sexual assault from an “outcry witness” or “rape kit”? Were you secretly recorded, or did you apologize via text or some other message and it is now being weaponized against you? These are just some of the questions that you and your counsel must ask to explore all possible defenses.

• New York Sex Crimes Information Page
• Penal Law 130.30: Rape in the Second Degree
• Penal Law 130.25: Rape in the Third Degree

The role of Saland Law, and every criminal defense firm and counsel, is to protect clients and ensure prosecutors meet their burden. While those accused of Rape all too often are wrongfully saddled with the presumption of guilt instead of their rightful presumption of innocence, as a former Manhattan prosecutor Jeremy knows that should never be the case. Just as you are ready to defend yourself within the confines of the criminal justice system, we are ready to stand by your side and lead the way with experience, knowledge and advocacy.

Call the sex crime lawyers and former Manhattan prosecutors at 212.312.7129 or contact us online today.