Forcible Touching Defense in New York

A Misdemeanor Charged Like a Felony

Forcible touching is a class A misdemeanor, the same level as a first DWI, but nothing else about it is treated that way. It carries six years of probation instead of two or three, it can carry sex offender registration in defined circumstances, it cannot be sealed by petition, and the words “sex offense” attach to the case from the first appearance. Most of these charges come out of a bar, a party, a workplace, or a relationship, and turn on a few seconds of contact and two accounts of what it meant.

Attorney Andrew DeLuca defends forcible touching and misdemeanor sexual abuse charges in the courts of Saratoga, Warren, Washington, Fulton, and Montgomery Counties. The statute has more specific elements than the arrest paperwork usually reflects, and the registration question has a precise answer that most people charged do not know.

To talk to Andrew directly, at any time call 518-245-9109

Sex Offender Registration: When It Applies and When It Does Not

Forcible touching is not on the general list of registerable sex offenses in Correction Law 168-a(2)(a). It is registerable under two narrower provisions: 168-a(2)(b), when the victim was under 18, and 168-a(2)(c), when the defendant has previously been convicted of a registerable sex offense, a sexually violent offense, or a prior forcible touching or sexual abuse 3rd. An adult complainant and a clean record means no registration. Where the State claims the complainant was under 18 and the defendant disputes it, Correction Law 168-d requires the court to hold a hearing before sentencing at which the People must prove the age by clear and convincing evidence. When registration does apply, the risk level set at a SORA hearing decides the terms: 20 years at level 1, life at levels 2 and 3, with level 3 offenders verifying their address every 90 days. A defendant registered because of a prior sex offense is a predicate sex offender and registers for life regardless of level.

Sentencing

• Jail: up to 364 days for forcible touching (class A); up to 3 months for sexual abuse 3rd (class B)
• Fine: up to $1,000 (class A) or $500 (class B)
• Probation: six years for forcible touching, because Penal Law 65.00 sets a six-year term for any class A misdemeanor sexual assault; one year for sexual abuse 3rd
• Conditional discharge: one year
• Order of protection: up to five years on a class A misdemeanor conviction, or six years where probation is imposed for a misdemeanor sexual assault, under the current text of CPL 530.13

The six-year probation term is the sentence that shapes these cases. It comes with sex offense conditions, treatment, and supervision, and because Clean Slate sealing cannot begin until supervision ends, it also delays the record relief that would otherwise arrive after three years.

Records: ACD, Sealing, and Clean Slate

An adjournment in contemplation of dismissal under CPL 170.55 is legally available on a forcible touching charge; the statute contains no exclusion for Article 130 misdemeanors, though it requires the prosecutor’s consent. Sealing by petition under CPL 160.59 is not available: that statute excludes every sex offense defined in Article 130, registerable or not. The Clean Slate Act, CPL 160.57, is narrower in its exclusion: it excludes only convictions that are registerable sex offenses or sexually violent offenses under Correction Law 168-a. A forcible touching conviction that did not trigger registration is therefore sealed automatically three years after sentence or release, provided probation has ended, there is no pending charge, and there is no new conviction. Defendants who were 16, 17, or 18 at the time of the offense are eligible for youthful offender treatment. Details are on our record sealing page.

How Forcible Touching Cases Are Defended

• Purpose. The State must prove the touching was for degradation, abuse, or sexual gratification. Contact in a crowded bar, a hand on a shoulder or waist, or a gesture the other person read differently does not carry that purpose, and the surrounding facts, video, and witnesses decide it.
• Force and the parts touched. The statute requires forcible touching of sexual or other intimate parts. A touch that was neither forcible nor to an intimate part is not this crime, whatever else it may be.
• Consent and acquiescence. Because lack of consent can rest on non-acquiescence alone, the history between the parties, messages before and after, and the complainant’s conduct at the time are central. Under Penal Law 130.16, corroboration is not required unless the theory is mental incapacity, so the case is about credibility.
• Identification. In bar, concert, and transit cases the question is often who did it, and lighting, crowd density, and camera coverage matter more than anything the complainant says about the act itself.
• The disposition. A plea to a non-registerable, non-Article 130 offense such as disorderly conduct or harassment, where it can be obtained, removes the six-year probation, the sex offense label, and the registration question in one step.

A non-citizen charged with any Article 130 offense needs immigration counsel before any plea: sexual abuse of a minor is an aggravated felony under federal law regardless of the state misdemeanor label, and offenses with a sexual gratification element are frequently treated as crimes involving moral turpitude. New York’s 364-day misdemeanor maximum was written with those federal thresholds in mind, but the categorical questions are decided case by case.

Forcible Touching Cases in Saratoga Springs and the Capital Region

In this region the charge comes out of the Caroline Street bars during track season, SPAC concerts, Lake George in summer, college weekends, and workplaces. It is heard in Saratoga Springs City Court, Glens Falls City Court, and the town and village courts of Saratoga and Warren Counties. Related pages: Sexual Abuse, Sexual Misconduct, Public Lewdness, Orders of Protection, and College Student Defense.