Rookie term Manhattan District Attorney, Cyrus Vance, Jr., has found himself in a position that is anything but envious. According to multiple reports, DA Vance’s main referral source for business, New York City Police Department Commissioner Ray Kelly, is also the father of an accused rapist. Greg Kelly, the co-host of Fox 5’s “Good Day New York,” is alleged to have raped a woman this past October in Manhattan. Although it is claimed that the alleged victim’s boyfriend initially confronted Commissioner Kelly about his son’s unwanted sexual conduct with his roughly thirty-year old girlfriend, the investigation was properly turned over to the District Attorney’s Office to ensure a fair and honest investigation by an agency with no ties to Greg Kelly. Far from atypical and likely the best decision for the investigation into the newsman’s guilt or innocence, Assistant District Attorney’s in the Sex Crimes Bureau will determine how and if the case will proceed to an arrest or indictment.
Obviously, Greg Kelly, through his counsel, strenuously denies the wrongdoing. Although any allegation of a sex crime is potentially debilitating and an embarrassing stigma, should the accused be convicted of a rape crime in New York the actual punishment is much worse than any public shame. While the manner in which Greg Kelly is accused of raping the complainant is not yet clear, there are generally three degrees of this crime. Regardless of the degree, rape must include penetration, aka “sexual intercourse,” even if slight.
Third Degree Rape (New York Penal Law 130.25) comes in three distinct subsections. An “E” felony punishably by up to four years in prison, one is guilty of this crime if he engages in sexual intercourse with a person who is unable to consent due to any reason other than being less that seventeen. The second subsection would occur if a defendant is twenty-one or older and the complainant is less than seventeen years old. Lastly, the third subsection occurs where the victim does not consent due to a reason other than incapacity to do so.
Second Degree Rape (New York Penal Law 130.30) is perpetrated through two distinct subsections. In the first scenarios, a defendant is guilty of this crime if and when he engages in sexual intercourse with a person less than fifteen years of age. The second subsection occurs when an accused engages in sexual intercourse with a person who is incapable of consent by a reason of being either mentally disabled or mentally incapacitated. According to the New York Penal Law, “mentally disabled” means that an individual has a mental disease that renders her incapable of appraising the nature of her conduct. “Mentally incapacitated,” however, means that a person is temporarily incapable of controlling or appraising her conduct due to the influence of drugs or alcohol that was given without consent. A “D” felony, Second Degree Rape is punishable by up to seven years in prison and as little as two years.
The last and most serious degree, First Degree Rape (New York Penal Law 130.35), is a “B” felony punishable by five to twenty-five years in state prison. A person is guilty of this crime if and when he has sexual intercourse with another person by forcible compulsion (the use of physical force or a threat of immediate death or physical injury). Alternatively, the complainant is incapable of consent because they are physically helpless (unconscious or is physically unable to communicate unwillingness to an act). The third subsection of this degree transpires when the sexual intercourse involves a child less than eleven years old. Finally, this crime is also committed if the victim is less than thirteen and the accused is eighteen years old or more.
Due to the nature of the allegations and the ages of Mr. Kelly and the complainant, many of the degrees and subsections above would not be applicable. However, reports are not clear as to whether force was used or the complainant could not consent due to intoxication. If and when such information is released or Mr. Kelly is charged, we will have a full understanding of the allegations, criminal charges and potential sentences. Until that time, Mr. Kelly is merely a man who is accused of a crime he may or may not have committed.
Founded by two former Manhattan prosecutors, the New York criminal lawyers at Saland Law PC represent those accused of crimes throughout New York City and the surrounding suburbs.