People who commit minor offenses on federal property (such as parks, beaches, government buildings, or national monuments) sometimes receive United States District Court Violation Notices. These notices look a bit like traffic tickets or criminal summonses (see links below). They typically list the offense charged and the date and time of the offense. They also usually offer the option to pay a fine through the mail or request an appearance in court. Many people elect to simply pay the fine through the mail because they think it is harmless to do so. (And, the arresting officers usually tell them that it’s no big deal and they should just pay the fine). However, most of the time, pleading guilty through the mail actually constitutes a guilty plea to a crime that will show up on a background check. These offenses are typically misdemeanors and the records of conviction are publicly available through the federal Central Violations Bureau. Those convicted of a federal petty offense have to respond “yes” to the question as to whether they have been convicted of a crime, and of course those professionals with employment-related licenses may be obligated to report these convictions to their certification boards. See the links below to a typical violation notice:

violation notice (page 1) violation notice (page 2)

In short, people who receive these offenses should probably not take legal advice from their arresting officers and plead guilty by mail. They should instead retain an attorney to discuss their legal options. The most obvious legal option is to request a court date in federal court and bring an attorney to represent them. Their attorney may be able to negotiate a disposition to the matter – such as an adjournment in contemplation of dismissal – that will permit the defendant to resolve the case with a criminal conviction. These cases can also ultimately be tried on the merits as well. Generally, these are bench trials conducted by a magistrate (meaning that there is no right for a defendant to have a jury to decide a case at this level), but otherwise the same procedures and rules of evidence apply to this sort of trial as it would to a felony offense.

Mr. Galluzzo of the Law Office of Matthew Galluzzo PLLC is an experienced criminal defense attorney and former prosecutor who has represented numerous people charged with federal misdemeanors. If you have received a notice for a federal petty offense, you should strongly consider retaining his services to achieve the best possible result for yourself.

What has changed however, is the New York Police Department’s approach to marijuana arrests. In short, you can absolutely still be charged with a crime if caught smoking or possessing marijuana in public. The NYPD, however, has announced that it will cease making full-blown arrests and instead will issue summonses in these cases with limited exceptions (if the person they stop is on probation or parole, has outstanding warrants or a history of violence, or is in violation of another law (ie, DWI drugs).

A summons is a pink ticket handed to you by a police officer which can charge you with a crime or a violation. If you receive one, it means you have been commanded to answer misdemeanor and/or violation charges in a Court of law. Failure to abide by the summons and appear in Court can and will result in a warrant being issued for your arrest. So you (or a lawyer who can go on your behalf – see below) must answer the ticket personally.

The decision to issue summonses as opposed to put arrestees through the system comes on the heels of Manhattan DA Cyrus R. Vance announcing that his office will now declining to prosecute (“DP”) low-level marijuana possession cases. This means that most folks who are caught smoking/possessing weed in Manhattan can expect to go to summons Court only. As it were, the Queens DA has indicated he is not as eager to DP cases and will enforce the law as long as it is still on the books.

So what should you do now if you’re unfortunate enough to be issued a summons to answer a marijuana charge? You should contact us immediately. There are a number of things we can do to help. For example: let’s say you were visiting New York on the day you were issued the summons and will no longer be in the City on the day of the scheduled Court date? Luckily, our attorneys can appear on your behalf, armed with the proper documentation which we can prepare for you and which authorizes us to dispose of the case without you being present. Likewise, if you reside in New York, can’t miss work, or simply want to avoid having to go to the Criminal Courthouse altogether, you should contact us immediately The worst thing you can do is nothing.

In Manhattan, specifically, most arrestees are brought downtown to the 100 Centre Street Courthouse to face charges. However a smaller number of defendants are directed to appear in Manhattan’s Midtown Community Court which is located at 314 West 54th Street in Manhattan. In this blog, we cover some of the Midtown Community Court basics to shed light on what should be expected for those who find themselves in the unfortunate predicament of having to fight a charge or charges there.

Midtown Community Court was launched in 1993 with the primary objective of dealing with quality-of-life offenses, so most of the cases involve misdemeanors and/or violations. Examples of some of the common charges you are likely to face in Midtown Community Court include:

Prostitution;

Illegal Vending (Unlicensed General Vendor and/or Counterfeit Trademarking);

Making Graffiti;

Shoplifting;

Drug Possession;

Farebeating; and

Property Damage and Vandalism.

While very few arrestees are “booked” and brought through the system before they appear in Midtown Community Court (although some are), most are issued DAT’s or summons.

As we have pointed out in previous blogs, it is absolutely imperative not to disregard a DAT or summons if you receive one, since failure to appear in Court results in an arrest warrant being created. Some people are lulled to sleep by the fact that they were “only” issued a ticket and either forget or disregard it’s mandate to appear several weeks or months later.

Next, anyone who is arrested and directed to appear in Midtown Community Court should consult with a criminal defense attorney prior to appearing to face criminal charges. We cannot emphasize enough how important this is, lest defendants appear and plead guilty to something that may leave them with a permanent criminal record, and/or cause them to jeopardize their careers and/or citizenship status.

When you do attend your Court date, you are going to want to bring an attorney with you for the purpose of securing a non-criminal disposition on your behalf; in other words, a case result that preserves your record and keeps it clean of any criminal conviction. Our team of former prosecutors are familiar with the judges, court staff and infrastructure of the Midtown Community Courthouse, and have an excellent track record of securing such results there. Additionally, defendant’s appearing in Midtown Community Court should prepare themselves for dispositions which involve the completion of community service, enrollment in on-site social services such as drug treatment, job training and/or mental health counseling. The important thing to note is that every case is different, and often dispositions need to be reached which are custom-made for each individual client, which is why it is all the more important to consult with an attorney before making the appearance.

If you have received a summons or desk appearance ticket for Midtown Community Court or in any other court in the greater New York City area, you should contact attorneys who have experience in Midtown Community Court as well as the more traditional criminal courts. Taking steps now to preserve your record can mean the difference between losing your job, your liberty, or your citizenship status, so it’s best to be diligent and consult with attorneys who can help you.

If you receive a summons for underage sale a summons for sale to a minor, you will probably be sent initially to the courthouse at 346 Broadway, where all summonses in New York and Kings Counties are dealt with.

Violations of ABC Law § 65 are misdemeanors, as no particular penalty is spelled out elsewhere in the chapter. See ABC Law § 130(5). Thus, if a violation occurs, the violator – whether it be a corporation or an individual – would be facing a permanent criminal record. The corporate consequences of a criminal conviction cannot all be discussed here, but suffice it to say, it is not a good thing for any type of business association (or individual for that matter) to maintain a criminal record.

Should you or your business receive such a summons, your attorney should be able to negotiate with the judge or attorney handling the case and try for a non-criminal disposition of the charges. Of course, corporations and certain other business associations must appear by an attorney per New York state law.

Even if your criminal case is successfully handled, you are not necessarily out of the woods. The SLA can still “look back” several years to investigate ABC law violations and subject your business to additional penalties, up to and including the permanent revocation of your liquor license.

It is important for owners, bartenders, and other employees in the restaurant industry to seek the advice of experienced alcoholic beverage control law attorneys (such as The Law Office of Matthew Galluzzo [link above]) who can assist in process and offer guidance and counsel with a view toward minimizing the impact of these cases on their lives and businesses.

Perhaps because of the view that corporations solely exist by virtue of the law — as opposed to actual living, breathing people — the New York Legislature has decided that a corporation must be represented by an attorney in criminal matters, including corporate summonses when required to appear in New York courts. Thus, pursuant to Criminal Procedure Law section 600.20:

S 600.20 Corporate defendants; prosecution thereof. At all stages of a criminal action, from the commencement thereof through sentence, a corporate defendant must appear by counsel. Upon failure of appearance at the time such defendant is required to enter a plea to the accusatory instrument, the court may enter a plea of guilty and impose sentence. . . .

Corporations are commonly charged in summons court with fire or building code violations as well as violations concerning commercial vehicle operations. If not properly handled, judges are authorized to simply enter a guilty plea on a corporation’s behalf and impose whatever fine they feel is justified given the offense.

The process of hiring an attorney to handle such matters is relatively simple compared to the hassles associated with mounting ticket and summons debt. Once your attorney has a copy of the summons, they can advise you as to the fine range and seek to minimize exposure by offering advice as to remedial measures the corporation may take. Thus, although it may not seem fair to the directors of a corporation to have to hire an attorney for relatively minor infractions, an attorney can actually reduce your liability and assist in handling the matter in the most efficient manner possible.

If you have questions about a citation or summons your corporation has received, you should contact the corporate summons attorneys at the Law Office of Matthew Galluzzo.

While the issuance of criminal court desk appearance tickets may have gone down in light of a re-energized debate as to the wisdom of continued illegality of marijuana, the number of NYC marijuana summonses or pink summonses issued appears to have increased. This occurrence probably has as much to do with the relaxed views on the harmful effects of marijuana as it does with the protestations of the defense bar and others that misdemeanor marijuana arrests were often times predicated on illegal or questionable practice of ordering an arrestee to empty his or her pockets only to be told that upon compliance the marijuana was now “open to public view” thus elevating the charge from a violation to a misdemeanor. Whatever the cause, people who have received a marijuana summons in New York City need to know that they have the right to pursue a result which keeps their criminal records not only conviction-, but also arrest-free. The full text of the statute regarding marijuana violations is below:

§ 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.

Most individuals who appear at 346 Broadway for a marijuana summons (pertaining to Manhattan or Brooklyn arrests), 120-55 Queens Boulevard (Queens), 161st Street (Bronx) or on Staten Island do not realize that a far better disposition than a plea to a violation may be reached with the assistance of an attorney. A conviction of a marijuana violation can leave you with a permanent arrest record. Thus, if you have received a summons charging you with marijuana offenses in the greater New York City area, you should appear withcounsel experienced in handling marijuana cases in New York City courts.

PL 170.00(7). Criminal possession of a forged instrument in the third degree: “A person is guilty of criminal possession of a forged instrument in the third degree when, with knowledge that it is forged and with intent to defraud, deceive or injure another, he utters or possesses a forged instrument. Criminal possession of a forged instrument in the third degree is a class A misdemeanor.” PL 170.20.

These provisions work to actually criminalize the possession of a fake or forged driver’s license. However, prosecutorial experience teaches us that that in certain situations, having something like this can actually lead to felony charges. This is because the next level up in the statutory scheme reads as follows:

PL 170.25 Criminal possession of a forged instrument in the second degree. A person is guilty of criminal possession of a forged instrument in the second degree when, with knowledge that it is forged and with intent to defraud, deceive or injure another, he utters or possesses any forged instrument of a kind specified in section 170.10. Criminal possession of a forged instrument in the second degree is a class D felony. And, PL 170.10(3) specifically includes “A written instrument officially issued or created by a public office, public servant or governmental instrumentality . . .”

Problems may compound if the circumstances under which the arrestee is found in possession of the forged or fake driver’s license are egregious. For example, if a person is found with marijuana and a fake ID, a prosecutor may be more inclined to proceed with serious criminal charges than had the forged driver’s license been the only possible charge.

In any event, should you or a loved one be found facing charges, whether through a processed arrest or through the issuance of a desk appearance ticket, you should immediately consult with experienced former prosecutors with experience in New York forged or fake ID cases.

Regardless of whether this decision results in fewer summonses or changes practices in summons court, if you are issued a summons to appear at 346 Broadway (from either Manhattan or Brooklyn) you should contact an experienced summons court attorney in order to gain valuable advice and representation in your case. There are many ways to avoid any charges in that courtroom that you should discuss before going forward.

In some cased the police will watch someone walk into the park after closing time without warning them, and then immediately stop them and issue a summons (again, no fences close – you’d think the police would warn you). If you are issued such a ticket, you are probably charged under Park Rules and Regulations § 1-03, which is a misdemeanor. Believe it or not, if you are convicted of being in a park after closing time you will be left with a permanent criminal record. The lesson here is to take the summons seriously; as is the case with any summons, failing to return on the summons date will result in a warrant being issued for your arrest. If you or anyone you know has been issued a summons or a desk appearance ticket for this, contact an experienced criminal defense lawyer at The Law Office of Matthew Galluzzo to represent you.

§1-03 General Provisions

1. Hours of Operation
   1. Persons may enter and use the parks from 6:00 a.m. until 1:00 a.m. unless other open hours are posted at any park.
   2. Whenever a threat to public health or safety exists in any park resulting from any natural cause, explosion, accident or any other cause, or by riot or unlawful assembly or activity, the Commissioner may close the park or any part thereof to the public for such duration as he deems necessary to ensure the safety and well-being of the public.
   3. No person shall enter or remain in any park without the permission of the Commissioner when such park is closed to the public.

“Summonses for Entering or Remaining in “Closed” New York City Parks”

Well, maybe not the sounds so much these days…You may have noticed green and white signs which are being placed in public areas by the Department of Parks and Recreations or the Central Park Conservancy, most notably in the Park’s Strawberry Fields, Bethesda Fountains and the Boathouse. The signs, which have been placed in areas where talented musicians play soothing music which enriches the city’s cultural value and history, designate the areas they are posted in as “Quiet Zones” and prohibit musical instrument playing in addition to playing music through amplifying devices. So, no radios or speaker systems to disturb the peace…but what about the gentle classical music you may have been accustomed to hearing when strolling through the park? You won’t hear it anymore, if the city can help it…So far this year cellists, saxophonists, violinists, guitarists, and flutists playing without any electric amplification have been issued summons by the Parks Department charging them with making unreasonable noise, and asked to cease playing music at all in these areas.

While the New York Civil Liberties Union has gotten involved in the matter to address the First Amendment issues associated with the city’s prohibition of music playing in our city, the fact of that matter remains that musicians are being summoned to criminal courts to answer to judges for their actions and pay fines. Presumably they are being charged under Parks and Recreations Regulations § 1-05, section (a) which deals with:

Noise; Musical Instruments; Sound Reproduction Devices

1. No person shall make, or cause or allow to be made, unreasonable noise in any park so as to cause public inconvenience, annoyance or harm. Unreasonable noise means any excessive or unusually loud sound that disturbs the peace, comfort or repose of a reasonable person of normal sensitivity or injures or endangers the health or safety of a reasonable person of normal sensitivity, or which causes injury to plant or animal life, or damage to property or business.
2. No person shall play or operate any sound reproduction device, as defined in §1-02 of these Rules, in any park without a permit from the Department of Parks & Recreation and any other City agency or agencies with pertinent jurisdiction. This paragraph (2) shall not apply to the regular and customary use of portable radios, record players, compact disc players, or television receivers, or tape recorders played or operated in full accordance with these Rules so as not unreasonably to disturb other persons in their permitted uses of the park, except that in areas designated by the Commissioner as “quiet zones,” such regular and customary use of sound reproduction devices shall be prohibited. Signs shall be posted in all quiet zones advising the public of such prohibition. Use of radios and other sound reproduction devices listened to solely by headphones or earphones, and inaudible to others, is permitted in all areas of the parks.

While subdivision two would apply where people are enhancing the volume of their music with speakers or amplifiers, subsection 1 applies to those who simply play their instruments with no sound enhancement. Subsection one, however, requires that the “unreasonable noise” cause “public inconvenience, annoyance or harm.” It’s hard to imagine a violinist in Central Park causing such harm…especially if people are surrounding the musician and giving him or her a few dollars for the performance.

If not charged under the Parks and Recreations Regulations, perhaps a police officer could charge a musician under Administrative Code § 24-218, which classifies “making unreasonable noise” as a misdemeanor, meaning it can leave the person charged with a permanent criminal record and carries a potential sentence of up to 20 days imprisonment, and/or a fine of anywhere from $50 – $500.

So, before you pick up your instrument and perform in Central Park, or anywhere in the city for that matter, check to make sure you are not in a designated “Quiet Zone.” If you are, be prepared to be stopped by the police and issued a summons for violating the city’s new “noise” policy.

If you or someone you know has been given a summons to appear in court, accused of making “unreasonable noise” in violation of any New York statute, contact an experienced criminal lawyer from the firm of Galluzzo and Johnson to represent you.

The relevant parts of the smoking ban section read as folows:

c. Smoking is prohibited in all indoor and outdoor areas of the following public places at all times:

3. Any park or other property under the jurisdiction of the department of parks and recreation; provided, however, that this paragraph shall not apply to: (a) the sidewalks immediately adjoining parks, squares and public places; (b) any pedestrian route through any park strip, median or mall that is adjacent to vehicular traffic; (c) parking lots; and (d) theatrical productions.

It is interesting to note that several commentators on the law, including some of its principal backers, have stated that the hope is that the law will be self-enforcing. This, however, does not seem to be a likely long-term solution, if the city hopes to truly enforce this provision. After all, it would be extremely awkward, in some cases, to approach someone in a park and ask them to follow the anti-smoking law. Most New Yorkers are too busy or wary of strangers to engage smokers in this way. The likely outcome, then, would seem to be an eventual uptick in pink summonses and other enforcement of this law. If you have received a summons for smoking in the park, you should have representation at 346 Broadway, or wherever your court appearance is scheduled. Thus, if you have received such a summons, you should contact a lawyer experienced in dealing with all summons matters in New York City.

There are other potential penalties as well: repeat offenders are subject to double-fines and violators of the misdemeanor version of this offense can have their bicycles impounded. Fortunately, there are a variety of defenses to these charges as well. Certainly, in the misdemeanor cases, it can be very helpful to retain the services of a defense attorney to present those defenses.

If you or a loved one have been issued a summons or arrested for a violation of this provision, you should consider contacting the experienced criminal defense attorneys at The Law Office of Matthew Galluzzo. Our attorneys include former several Manhattan Assistant District Attorneys and avid cyclists.

The relevant text of the statute:

§ 19-176 Bicycle operation on sidewalks prohibited.

a. For purposes of this section:

(1) The term “bicycle” shall mean a two or three wheeled device upon which a person or persons may ride, propelled by human power through a belt, a chain or gears, with such wheels in a tandem or tricycle, except that it shall not include such a device having solid tires and intended for use only on a sidewalk by a child.

(2) The term “sidewalk” shall mean that portion of the street, whether paved or unpaved, between the curb lines or the lateral lines of a roadway and the adjacent property lines, intended for the use of pedestrians. Where it is not clear which section is intended for the use of pedestrians the sidewalk will be deemed to be that portion of the street between the building line and the curb.

(3) The term “child” shall mean a person less than fourteen years of age.

b. No person shall ride a bicycle upon any sidewalk unless permitted by an official sign. A person who violates this subdivision may be issued a notice of violation and shall be liable for a civil penalty of not more than one hundred dollars which may be recovered in a proceeding before the environmental control board.

c. A person who violates subdivision b of this section in a manner that endangers any other person or property shall be guilty of a misdemeanor, punishable by a fine of not more than one hundred dollars or imprisonment for not more than twenty days or both such fine and imprisonment. Such person shall also be liable for a civil penalty of not less than one hundred dollars nor more than three hundred dollars, except where a hearing officer has determined that where there was physical contact between the rider and another person, an additional civil penalty of not less than one hundred dollars nor more than two hundred dollars may be imposed. Such civil penalties may be recovered in a proceeding before the environmental control board. Enforcement agents shall indicate on the summons or notice of violation issued pursuant to this subdivision whether physical contact was made between the rider and another person. Any person who violates any provision of this subdivision more than once within any six month period shall be subject to the imposition of civil penalties in an amount that is double what would otherwise have been imposed for the commission of a first violation. It shall be an affirmative defense that physical contact between a rider and another person was in no way the fault of the rider.

d. Where a summons or notice of violation is issued for a violation of subdivision c of this section, the bicycle may be seized and impounded.

§ 10-125 Consumption of alcohol on streets prohibited. a. Definitions. Whenever used in this section, the following terms are defined as follows: 1. Alcoholic beverage. Any liquid intended for human consumption containing more than one-half of one percent (.005) of alcohol by volume. 2. Public place. A place to which the public or a substantial group of persons has access including, but not limited to, any highway, street, road, sidewalk, parking area, shopping area, place of amusement, playground, park or beach located within the city except that the definition of a public place shall not include those premises duly licensed for the sale and consumption of alcoholic beverages on the premises or within their own private property. Such public place shall also include the interior of any stationary motor vehicle which is on any highway, street, road, parking area, shopping area, playground, park or beach located within the city. b. No person shall drink or consume an alcoholic beverage, or possess, with intent to drink or consume, an open container containing an alcoholic beverage in any public place except at a block party, feast or similar function for which a permit has been obtained. c. Possession of an open container containing an alcoholic beverage by any person shall create a rebuttable presumption that such person did intend to consume the contents thereof in violation of this section. d. Nothing in this section shall be deemed to prohibit the consumption of an alcoholic beverage in any duly licensed establishment whose certificate of occupancy extends upon a street. e. Any person who shall be found to have violated any of the provisions of this section shall be punished by a fine of not more than twenty-five dollars ($25) or imprisonment of up to five (5) days, or both, or pursuant to the provisions of the family court act of the state of New York where applicable.

This charge is oftentimes prosecuted with the use of a New York City “pink” summons which requires a person charged with such an offense to appear in court on the specified date. As is evident from the text of the code provision itself, the “public place” definition encompasses just about every conceivable public place in New York City, including parks, beaches, and malls. Another noteworthy section of the text of the statute is the “rebuttable presumption” that possession of an open container in New York evidences an intent to consume its contents. What this means is that mere possession is sufficient to prove intent unless the defendant comes back with evidence showing that the open container was possessed for another purpose. It is important to note that the factual portion of the accusatory instrument charging this offense must contain an assertion that the defendant “drank or consumed an alcoholic beverage or possessed, “with intent to drink or consume,” an open container containing an alcoholic beverage.” People v. Torres, 1 Misc.3d 126A, (App. Term. 1st Dep’t 2003). Thus, if the summons itself does not contain these words, the charge is subject to outright dismissal. Unfortunately, in New York City it is uncommon for a person charged with this offense to be given the factual portion of the summons at the time that it is issued. Most of the time that section is shown to the defendant for the first time (or his or her attorney) in court on the summons return date.

Another noteworthy decision in this area is Bankhead v. Wolfe, N.Y.L.J. Nov. 21, 2000, a civil decision decided by Judge Harkavy where the court held that “[t]he police may rightfully give a summons to petitioner or others if they have reasonable cause to believe that petitioner or any person is consuming an alcoholic beverage in an open container in public. An open bottle or can with a beer, wine or liquor label in a public place with indicia of consumption gives reasonable cause to believe that the individual consumed or is consuming alcohol in public or possessed or possesses an open container of alcohol with the intent to consume it in public.” Thus, although the officer may have a right to issue a summons based solely on the observation of the defendant in possession of a container seemingly containing alcohol because of its label, the decision left open the possibility that a summonsed person may be able to ultimately challenge the charge itself if the police did not actually test the substance in the container to determine that it did, in fact, contain alcohol.

If you have been issued a summons or otherwise been charged with possessing an open container of alcohol in New York City, you may want to consider calling anattorney who can represent you in summons court.

It should be noted from the outset that this particular sealing provision does not apply to (i) loitering violations under CPL 240.35, (ii) loitering for prostitution violations under CPL 240.37, or (iii) DWAI violations under VTL 1192(1).

The sealing, return, or destruction of records relating to the arrest or prosecution is then effected, by and large, by operation of law. The following rules apply generally to violation or traffic infraction convictions, but special rules may apply in cases involving certain certain traffic and alcohol-related violations.

RULE 1: CLERK OF COURT IMMEDIATELY NOTIFIES POLICE AND STATE CRIMINAL JUSTICE OF THE TERMINATION BY SUCH CONVICTION

After the criminal action or proceeding is terminated, the clerk of the court where the proceeding was terminated is required to “immediately notify the commissioner of the division of criminal justice services and the heads of all appropriate police departments and other law enforcement agencies that the action has been terminated by such conviction.” CPL 160.55(1).

Exception: In certain cases, either the prosecuting attorney or the court, on its own motion, may, upon five days’ notice to the person or his or her attorney will move that the interests of justice require that the termination not be noticed to the police or state criminal justice. In those cases, the status quo will be maintained unless and until the motion is decided otherwise. CPL 160.55(1).

RULE 2: POLICE OR STATE CRIMINAL JUSTICE DESTROYS OR RETURNS ITS OWN COPIES OF PHOTOGRAPHS AND FINGERPRINTS FORTHWITH

After the appropriate investigative or criminal justice agency receives the notification from the clerk, “every photograph of such person . . . and palmprints and fingerprints taken or made of such person . . . in regard to the proceeding terminated, and all duplicates and copies thereof [with certain exceptions discussed below] . . . shall forthwith be, at the discretion of the recipient agency, either destroyed or returned to such person, or to the attorney who represented such person at the time of the termination . . . .” CPL 160.55(1)(a).

Exception: The CPL provision carves out two instances in which a law enforcement agency that receives a termination notification will NOT destroy or return photos and fingerprints, these are: (i) digital fingerprints maintained pursuant to subsection (e), and (ii) palmprints or fingerprints taken in harrassment (PL 240.26) cases where the violation was committed against a member of the same family or household.

RULE 3: POLICE OR STATE CRIMINAL JUSTICE FORMALLY REQUESTS IN WRITING THAT ALL COPIES THEY TRANSMITTED OR FORWARDED TO ANY UNITED STATES OR OTHER STATE AGENCY BE DESTROYED OR RETURNED

Oftentimes a police department in possession of photographs such as mugshots or fingerprint material to the FBI or another federal agency or to another state’s law enforcement agencies. In those cases, the New York state arresting agency, or state criminal justice must formally request the return of all such material.

RULE 4: ALL POLICE RECORDS AND PAPERS RELATING TO THE ARREST OR PROSECUTION ARE SEALED

While fingerprints and photographs must be either returned or destroyed (absent the applicability of an exception), the “official records and papers” concerning the case are merely sealed. The sealing is relatively secure, however, in that the statute specifically states that such records “shall be sealed and not made available to any person or public or private agency.” CPL 160.55(c).

Exception: The records and papers may be made available to (i) a prosecutor in a case where a defendant has made a motion pursuant to CPL 170.56 or 210.46 (motion for adjournment in contemplation of dismissal [“ACD”] in cases involving marijuana); (ii) “a law enforcement agency upon ex parte motion in any superior court, if such agency demonstrates to the satisfaction of the court that justice requires that such records be made available to it,” (iii) a firearms-licensing agency from any state who asks for it; (iv) the New York State Division of Parole where the arrest was made while the person was on parole or the probation department when the person was on probation, (iv) generally speaking, law enforcement, when the conviction was for a harassment violation (PL 240.26) committed against a member of his or her own household, as that is defined in CPL 530.11 and determined in CPL 170.10. There are also special sealing rules that apply to certain DWAI violations and loitering violations.

It should be noted, however, that the court file itself may still be accessible to outside parties. Thus, although it may be difficult to find, such a file may be viewed by a person with knowledge of some of the details of the occurrence, such as the date of the occurrence or the arrest number.

If you have received a dismissal or a conviction of a non-criminal offense, such as a violation or traffic infraction in New York, you should consider using an experienced attorney can help you contact the New York State Criminal Justice Department to ensure that your records are properly sealed.

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.