Former Manhattan prosecutors specializing in criminal defense, appeals, and civil litigation in state and federal courts.

Send My Information

Differences Between Crimes and Violations in New York Law

Posted By Galluzzo and Johnson 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 of experienced 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.

Tags: , , , , , , ,