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Differences Between Crimes and Violations in New York Law

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.