Loitering in New York

Have You Been Charged With Loitering In New York

Loitering is a commonly committed offense in New York. With so many people in such a small space, the State of New York is incentivized to prevent citizens from simply remaining in certain areas without a good reason for doing so. 

Examples

Seemingly minor conduct can lead to charges of loitering such as:

• Remaining in a public place for the purpose of gambling.
• They are Congregating in public wearing masks without permission.
• You are remaining on school grounds or an overnight camp without permission.
• You are remaining in any transportation facility without permission with the intent of engaging in some sort of business or entertainment. 

The Legal Definition Of Loitering 

New York Penal Code Article 240.35 and the immediately following sections outline the crime of loitering. Loitering is a violation. The elements of loitering are the individual things the prosecutor must prove in order to convict you of the offense. In order for you to be found guilty all of the following must be proven true:

1. You remain in a public place;
2. You do not have special permission to remain; and
3. You are in the place for the purpose of engaging in a series of unpermitted activities.

In order to get a better understanding of how the crime of loitering works, let’s take a deeper look at each of the elements individually. 

Element #1 

The first element is remaining in a public or semi-public space. Loitering occurs when you enter and remain in a public space such as a sidewalk, transportation facility, or school. Many of these categories are purposefully vague.

For example, Steve and John stand on a street corner for three hours without an explicit purpose.

Element #2 

The second element is that you do not have special permission to remain. If you are in a transportation center and not waiting for public transit, you may be charged with loitering.

For example, Ron enters the train station with no intention of getting on the train, but rather waiting for commuters and attempting to sell them his new book. 

Element #3 

The final element of the crime is that your reason for remaining in the place is to participate in an unpermitted activity. If you are in a public place and waiting to solicit others for illegal activities, you may be charged with loitering.

 For example, Mike stands at the bottom of the stairs in the subway station, attempting to sell tickets to his comedy show later that night. In order to be convicted of loitering, the state must prove all of the above elements fully.

Other Loitering Crimes 

New York Penal Code also outlines two further loitering crimes within the same article. NY PL § 240.36 lays out the crime of loitering in the first degree. Loitering in the first degree occurs when you remain in a place with the intention of using or controlling a controlled substance. Loitering in the first degree is a class B misdemeanor, punishable by up to three (3) months in jail and a fine not to exceed $500.

Under NY PL § 240.37, loitering for the purpose of engaging in prostitution is a crime. Under this section, you can be charged for attempting to provide, solicit, or promote prostitution. Attempting to provide or solicit for prostitution is a violation unless you have been previously convicted under this section, in which case it becomes a class B misdemeanor. 

For a violation, you are subject to a sentence of no more than fifteen (15) days in jail. A person who promotes prostitution is guilty of a class A misdemeanor, punishable by up to one year in jail and a fine not to exceed $1,000.  

Related Crimes 

In addition to charges of loitering, you may also be charged with other related offenses. 

Related Offense #1

Disorderly Conduct (NY PL § 240.20) §  Disorderly conduct occurs when an individual, with the intent to cause an inconvenience to the public or by recklessly creating a risk to the public by:

• Engaging in a fight or other violent or threatening behavior; or
• Making an unreasonable noise; or
• Making obscene gestures or using obscene language; or
• Disturbing a lawful assembly; or
• Obstructing pedestrian or vehicular traffic; or
• Congregating with others and refusing to disperse when ordered to do so by law enforcement; or
• Creating a hazardous condition by an act, which does not serve a legitimate purpose.

If Todd is on a public street corner and remains there for an extended period of time, with the intent of gambling, he is likely to be charged with loitering. If the gambling game subsequently turns into a loud and profane argument between the participants, they may be charged with disorderly conduct. Disorderly conduct is a violation.

Related Offense #2

Appearance in Public Under the Influence of Narcotics or a Drug Other than Alcohol (NY PL § 240.40).

An individual violates this statute when he/she is intoxicated in public under the influence of a drug other than alcohol to the degree that he/she is a danger to himself/herself, others, or property. This statute also may be violated when an intoxicated individual annoys another in his/her vicinity.

If Nancy has been sitting on a bench at the bus station drinking from a flask and begins to yell at other patrons loudly, she may be charged with loitering and appearance in public under the influence of narcotics or a drug other than alcohol. 

Appearance in public under the influence of narcotics or a drug other than alcohol is a violation. 

Related Offense #3

Public Lewdness (NY PL §245.00). A person commits public lewdness when he/she intentionally exposes his/her private parts in a public place, in a private place where he/she may be easily observed from a public place, or while trespassing on the property of another and observed by a lawful occupant of said property.

If Jeff is standing in Times Square in nothing but a trench coat and exposes himself to passing citizens, he may be arrested and charged with loitering and public lewdness. Public Lewdness is a class B misdemeanor. 

Agencies Investigating and Prosecuting Loitering Crimes 

Because New York is such a congested place, loitering can become a major issue and is thus not tolerated by New York, law enforcement officials. Officers of the New York Police Department (NYPD) are constantly on the lookout for loitering and look suspiciously upon individuals remaining in a public place for an extended period of time. 

Because loitering involves a future illegal activity such as gambling or prostitution, NYPD officers view the prevention of loitering as the prevention of future crimes.  

The population density of New York also makes it increasingly likely to be arrested for loitering. An individual living in a building near where you may be standing and remaining may call the police and report you for loitering. With a law enforcement agency as large as the NYPD and the countless citizens living in New York, accusations of loitering may arise, and you need an experienced attorney in your corner. 

Penalties for Violating Loitering Statutes 

The penalties for loitering vary based on the surrounding circumstances of the incident. Ordinary loitering is a violation. A violation is punishable by a period of imprisonment not to exceed fifteen (15) days and a fine not to exceed $250. Loitering in the first degree is a class B misdemeanor. A class B misdemeanor is punishable by a period of imprisonment not to exceed three (3) months and a fine not to exceed $500. 

Loitering for the purpose of engaging in a prostitution offense can be anything from a violation to a class A misdemeanor. A class A misdemeanor is punishable by a period of imprisonment not to exceed one year and a fine not to exceed $1,000.

Sentencing Enhancements 

Sentencing enhancements are applicable to some of the loitering crimes. Under the crime of loitering for the purpose of engaging in a prostitution offense, a previous conviction under the same section can lead to a sentencing enhancement. 

If you are charged with attempting to provide or solicit prostitution under the loitering statute, it is a violation. However, if in these instances, the individual has previously been convicted of a crime under that section, the crime may be elevated to a class B misdemeanor.

Legal Defenses to Loitering Crimes 

There are some legal defenses that may be available to protect against the charge of loitering, such as:

Defense #1 – Self-defense or defense of others 

One defense you may have against a charge of loitering is self-defense or defense of others. There may be a situation where you find yourself in a dangerous situation. For example, you are walking out of a convenience store and see a group of individuals that have been harassing and attempting to rob you. 

For your own safety, you may choose to remain in a public place to protect yourself from being attacked once out of public view. In this case, you could claim self-defense as a defense to a charge of loitering. The same defense can be made if you are attempting to protect another person from harm in a similar situation.

Defense #2 – Entrapment 

Defense #2 – Entrapment 

Another defense that may be available to you in combating a charge of loitering is entrapment. Entrapment occurs when a government actor induces the suspect into committing the crime. For example, if a police officer pressures you into posing as a potential gambler on a public street corner and you are subsequently arrested for loitering, you are able to claim the defense of entrapment.  

Defense #3 – Outrageous police misconduct 

A related but slightly different possible defense is outrageous police conduct. Police do not have unfettered discretion in attempting to detect and prevent crime. If in the course of investigating for loitering, a law enforcement officer engages in conduct so outrageous that it violates the suspect’s rights to do the process, the defense of outrageous police misconduct is available. Similarly to entrapment, these defenses are complex, and you need an experienced legal professional on your side to help build a case for one of these defenses 

We Are Here To Help, Call Us Now! 

Although loitering may seem to be a minor crime to some, law enforcement officials in New York do not share this opinion. If you are arrested for a loitering offense, it is important to contact one of our experienced litigators immediately. Any interrogation that occurs without an attorney can produce damning evidence against you in your trial. 

You need time to work with your attorney on the plan of attack to defense you. You may be facing up to one year in prison and hundreds of dollars in fines if convicted so every second count.   

For any question about loitering in New York, or you have to obtain a confidential discussion with one of our knowledgeable criminal defense attorneys, please reach out and contact us today. We have an office nearby that can assist you.