Differences Between Crimes and Violations in New York Law

Posted By Galluzzo & Arnone LLP || 5-Nov-2009

People who are arrested may initially be confused when it comes to the difference between a crime and a violation (or infraction) in New York State. Generally speaking, a conviction of a crime carries with it a permanent criminal record whereas a violation (or infraction) disposition does not. This entry will point to some statutory law and perhaps provide a clearer picture of the difference between those two offenses. It is not meant to be a substitute for the advice ofexperienced criminal lawyers.

Classification of Offenses

Penal Law section 55.10 classifies all offenses into one of four categories: felonies, misdemeanors, violations, and traffic infractions. Note that the term “offense” is the one common feature to all of these four terms. Thus, every felony, misdemeanor, violation or traffic infraction is an “offense,” but not every “offense” is necessarily a felony, misdemeanor, violation or traffic infraction. The law distinguishes between these four offenses in the individual penal code section at issue. Thus, the code section describing each “offense” will typically include a sentence identifying it as one of the four categories. The marijuana sections of the penal code demonstrate the codification scheme:

	§ 221.05 Unlawful possession of marihuana. A person is guilty of unlawful
	 possession of marihuana when he knowingly and unlawfully possesses marihuana.
	Unlawful possession of marihuana is a violation punishable only by a fine of not more than one hundred dollars. However,
	 where the defendant has previously been convicted of an offense defined
	 in this article or article 220 of this chapter, committed within the three
	 years immediately preceding such violation, it shall be punishable (a)
	 only by a fine of not more than two hundred dollars, if the defendant
	 was previously convicted of one such offense committed during such period,
	 and (b) by a fine of not more than two hundred fifty dollars or a term
	 of imprisonment not in excess of fifteen days or both, if the defendant
	 was previously convicted of two such offenses committed during such period.
	§ 221.10 Criminal possession of marihuana in the fifth degree. A person
	 is guilty of criminal possession of marihuana in the fifth degree when
	 he knowingly and unlawfully possesses: 1. marihuana in a public place,
	 as defined in section 240.00 of this chapter, and such marihuana is burning
	 or open to public view; or 2. one or more preparations, compounds, mixtures
	 or substances containing marihuana and the preparations, compounds, mixtures
	 or substances are of an aggregate weight of more than twenty-five grams.
	Criminal possession of marihuana in the fifth degree is a class B misdemeanor.
	§ 221.20 Criminal possession of marihuana in the third degree. A person
	 is guilty of criminal possession of marihuana in the third degree when
	 he knowingly and unlawfully possesses one or more preparations, compounds,
	 mixtures or substances containing marihuana and the preparations, compounds,
	 mixtures or substances are of an aggregate weight of more than eight ounces.
	Criminal possession of marihuana in the third degree is a class E felony.

There are a few “unclassified” crimes and violations — most notably in the Vehicle and Traffic Law or New York City Administrative Code — but, generally speaking, the type of offense will be written directly into the code provision in question and it will always be present in a Penal Law offense.

Distinction between Crimes and Violations

Once the class of the offense is determined, one needs simply to review the first six subsections of the definition section of the Penal Law to determine whether the offense is a crime or not.

	§ 10.00 Definitions of terms of general use in this chapter. Except
	 where different meanings are expressly specified in subsequent provisions
	 of this chapter, the following terms have the following meanings: 1. "Offense"
	 means conduct for which a sentence to a term of imprisonment or to a fine
	 is provided by any law of this state or by any law, local law or ordinance
	 of a political subdivision of this state, or by any order, rule or regulation
	 of any governmental instrumentality authorized by law to adopt the same.
	 2. "Traffic infraction" means any offense defined as "traffic
	 infraction" by section one hundred fifty-five of the vehicle and
	 traffic law. 3. "Violation" means an offense, other than a "traffic
	 infraction, " for which a sentence to a term of imprisonment in excess
	 of fifteen days cannot be imposed. 4. "Misdemeanor" means an
	 offense, other than a "traffic infraction, " for which a sentence
	 to a term of imprisonment in excess of fifteen days may be imposed, but
	 for which a sentence to a term of imprisonment in excess of one year cannot
	 be imposed. 5. "Felony" means an offense for which a sentence
	 to a term of imprisonment in excess of one year may be imposed. 6.
	"Crime" means a misdemeanor or a felony.

(emphasis added). Thus, the difference between crimes and violations is fairly clear. In sum, misdemeanors and felonies are crimes that become part of a “criminal record,” and violations and infractions are simply not crimes. Violations and infractions, however, “offenses,” and while they may not show up on a general background check, records of their existence could potentially be found by those who are familiar with the court filing system. Thus, it is best to try to avoid pleading to any offense whatsoever, if at all possible.

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