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.
degrees of offenses,
level of crimes,
levels of offense new york,