Criminal Nuisance in New York

What puts a person or entity at risk of prosecution?

In New York, what can put a person at risk of prosecution for Criminal Nuisance? There are essentially two types of actions.

First, someone can be found guilty of Criminal Nuisance in the second degree in New York when that individual “knowingly or recklessly” creates conditions that endanger other people’s safety or health. In addition, a charge of Criminal Nuisance can arise when someone knowingly maintains a venue where people assemble in order to engage in unlawful conduct.

Criminal Nuisance can range from above-noted second-degree charge, which is a class B misdemeanor, to Criminal Nuisance in the first degree, which is a class E felony. Offenses related to Criminal Nuisance are defined under New York Penal Codes § 240.45 – § 240.46.

The more onerous charge of Criminal Nuisance in the first degree generally involves steeper penalties than the misdemeanor offense in the second degree. Nevertheless, in either case, your best course of action is to seek the counsel of an attorney to help you fight the charge and determine a viable defense strategy.

Examples of Criminal Nuisance

There are many instances in which Criminal Nuisance charges might be filed, as we’ll see with some of the impactful cases we present later on. Several of the actual cases cited involve illegal substances. It might be difficult to understand when charges of Criminal Nuisance might arise, so let’s look at some examples based on actual cases filed:

Example 1. You own or manage a bar frequented by many under-age customers. You enable or even encourage the bartender to serve alcohol to minors without regard to their legal status to drink alcoholic beverages. In other words, the bar does not have a general policy of requesting identification from customers who appear to be minors.

In fact, your bar frequently provides alcoholic beverages to people who have not yet reached the legal drinking age – in New York; it’s 21. In this case, you are at risk of being charged with Criminal Nuisance.

Example 2: Let’s stick with the same example above, but make one change. Now you are the bartender and not the owner. You consistently serve alcohol to minors. Telling the authorities that your boss did not want to enforce the laws concerning the legal drinking age is unlikely to spare you from a charge. You are also at risk of being charged with Criminal Nuisance.

The Legal Definition of Criminal Nuisance

Now that we understand some general parameters around Criminal Nuisance, let’s look at what the law says. N.Y. Penal Codes § 240.45 – § 240.46 lay out the legal definitions of Criminal Nuisance.

According to N.Y. Penal Law § 240.45,

An individual is legally guilty of Criminal Nuisance in the second degree when that individual “knowingly or recklessly” creates or maintains a condition that endangers the safety or health of others or knowingly maintains premises where people get together “for purposes of engaging in unlawful conduct.” Keywords here are “knowingly” and “recklessly.”

You are at risk of being charged if you knew that what you were doing could be dangerous or impact other people’s health or if your actions were done without regard to other people – in other words, recklessly.

A Criminal Nuisance in the second-degree charge is bad, but a charge of Criminal Nuisance in the first degree is even worse. The charge can rise to the level of Criminal Nuisance in the first degree when drugs are involved.

According to N.Y. Penal Law § 240.46

It says that a person is guilty of criminal nuisance in the first degree when that person knowingly maintains a venue where people get together “for purposes of engaging in the unlawful sale of controlled substances” and, as a result, that individual benefits “from such unlawful conduct.”

Examples

We’re using a similar scenario as we presented in the examples above. However, in this case, the venue does not serve alcohol. It is a vaping parlor. You, as the owner or server, consistently enable minors to vape in your place of business. Again, you are at risk of being charged with Criminal Nuisance.

In particular, regulators and the legal system are scrutinizing the vaping industry with greater attention, as underage vaping is a growing problem in New York and throughout the country.

Let’s look at another scenario that is similar to the ones we discussed earlier with one significant difference. In this example, you own or manage a bar or restaurant where you serve alcoholic beverages. Your customers are of legal status to drink. In other words, they are over the age of 21.

However, you do not have a liquor license and are therefore not legally authorized to sell alcoholic beverages. In this case, too, you are at risk of being charged with Criminal Nuisance.

Finally, let’s move away from alcoholic beverages or vaping in order to drive home the fact that there is a wide range of situations where you might put yourself at risk of charges of Criminal Nuisance being filed.

In the case of People v. Adalgiza Nunez, which we discuss in further detail in a later section, the defendant was charged with Criminal Nuisance in the second degree when he was observed handling betting slips that indicated he was operating an illegal lottery program.

Specifically:

You face a potential charge of Criminal Nuisance in the second degree if you knowingly are involved in a situation where the safety or health of other people is at risk. The charge could stem from your conduct towards the people who potentially are being harmed. Remember the example of the bar owner or bartender serving the drinks illegally.
The charge could also stem from your being involved with an establishment that puts people’s health or safety at risk. The owner of the bar who never visits his business is still at risk of being charged with Criminal Nuisance in the second degree. Criminal Nuisance in the second degree is a class B misdemeanor.
You face a potential charge of Criminal Nuisance in the first degree if you operate a venue where people gather to purchase “controlled substances.” The definition of venue could include the school grounds if you are dealing in drugs at school. Criminal Nuisance in the first degree is a class E felony.

Elements of Criminal Nuisance

Below we outline the “elements” of Criminal Nuisance. These elements are what the prosecutor must prove in order for you to be found guilty of the crime. Under N.Y. Penal Law § 240.45, for a defendant to be convicted in a trial for Criminal Nuisance in the second degree, generally the following must be true:

You must engage in the offense “knowingly or recklessly.”
The harmful conduct must involve several other people
Or you expressly used a venue for illegal purposes that could harm or endanger others

Let’s look at these in greater detail.

Element #1: Knowingly engaging in Criminal Nuisance

This element is fairly straightforward. To find an individual guilty, the prosecutor must show that the individual was aware that his or her conduct could lead to adverse consequences for other people.

For instance, citing an earlier example, a bartender surely knows that serving minors is illegal and that alcohol can have harmful consequences for the minors. However, let’s say that the bar has multiple servers. You also work there as a bartender.

You scrupulously observe the rules regarding the legal drinking age, although your co-worker does not. Therefore, you did not knowingly engage in Criminal Nuisance even if the other bartender did.

Element #2: Conduct involves several people

The prosecutor must also prove that your conduct involved many people and was not just one isolated incident. If you work in a bar or vape shop where the practice is to serve minors, there are several people potentially harmed in this infraction of New York Penal Code § 240.45.

Element #3: Using a venue for illegal purposes

In the case of use of a venue for illegal purposes, the prosecutor must prove that you used that venue expressly for illegal purposes. If you’re the bartender from the earlier example and you generally request identification but do not in an isolated incident, it is likely that the prosecutor will not be able to show that you used the venue (the bar) for illegal purposes.

Related Offenses

Charges of Criminal Nuisance could be pursued instead of or in addition to charges of certain other related offenses, including those listed below:

Related Offense #1: Alcoholic Beverage Control Law § 64-b (1)

In order to sell beer, wine, or other alcohol, one must first obtain a license to sell liquor on premises. Specifically, it is illegal to sell liquor without a license, and it is illegal to operate “a place for profit …with a capacity … of 20 or more persons… for the purpose of consuming alcoholic beverages.”

The law does not apply to non-profit religious, charitable, or fraternal organizations or to clubs.

Related Offense #2: New York Consolidated Laws, Tax Law – TAX § 1814. Cigarette and tobacco products tax

A person is at risk of violating this law when he or she tries to evade paying the taxes imposed on any of the following:

at least 10,000 cigarettes
at least 22,000 cigars
at least 440 pounds of tobacco

If a person has at least two prior convictions of these violations, he or she is at risk of being found guilty of a class E felony.

Moreover, a person who possesses or transports any unstamped or unlawfully stamped packages of cigarettes for the purpose of selling them is at risk, as is a person who possesses more than 400 cigarettes in unstamped or unlawfully stamped packages, unless that person is a duly appointed agent.

Related Offense #3: Promoting gambling

Under New York penal code § 225.10 – 225.95, a person is guilty of promoting gambling when he or she knowingly advances or profits from unlawful gambling activity. There are many ways to violate these laws, including by being a bookmaker or conducting an illegal lottery, among others.

Related Offense #4: Endangering Public Health, Safety or Environment

Essentially, an individual is guilty of the crime of Endangering public health, safety, or the environment in the second degree (§ 71-2713), which is a class D felony, when:

the person knowingly causes the release of a hazardous substance; and/or
the substance enters the environment or a primary water supply

What are some of the essential and impactful cases?

There are several cases that can help understand when and how Criminal Nuisance charges are imposed in New York.

In the case of People v. Adalgiza Nunez, the defendant was charged with criminal nuisance in the second degree. In in the back of the store premises managed by the defendant, the arresting officer allegedly observed “betting slips, United States currency, [and] a printer and a laptop that was operating a Dominican lottery program.”

The officer further alleged that these items are “commonly used to operate a Dominican Lottery, a game based on chance.”

In People v. Jenkins, the Village of Monticello Courthouse was demolished by a private contractor on October 2, 2013, without having had any asbestos abatement as the law requires. The prosecution charged the defendants with one count of Criminal Nuisance in the Second Degree, among several other charges.
In People v. Snowden, the defendant was tried as a co-defendant with Mr. Jenkins above. The defendant, Mr. Snowden, was the code enforcement officer for the Village of Monticello and the codefendant was the mayor. As noted, the case involved the demolition of the Village of Monticello Courthouse.

Following an investigation, the prosecution alleged that In exchange for a discounted demolition fee, the defendants agreed to send more business to the demolition contractors. They were charged with one count of Criminal Nuisance in the second degree, as well as several other charges including receiving a bribe, criminal mischief, conspiracy, official misconduct, and endangering public health, safety or environment.

In People v Daguiar, the defendant was observed behind the wheel of an ambulance that was parked in “the middle of the street,” and was thereby blocking traffic to oncoming vehicles for about 45 minutes, including other ambulances. When asked to provide his driver’s license to a police officer, the defendant refused and attempted to drive off in the ambulance. He was charged with disorderly conduct, as well as Criminal Nuisance.
In People v Rodriguez, the arresting police officer stated that defendant knowingly conducted a place where people gather for purposes of engaging in unlawful conduct and knowingly sold alcoholic beverages without a license.

The arresting police officer observed the defendant acting as a manager and bartender at the location and selling alcoholic beverages even though he did not have a license from the New York State Liquor Authority to sell alcoholic beverages. He was charged with violating Alcoholic Beverage Control Laws and Criminal Nuisance.

In People v Alsaidi, the defendant was charged with criminal nuisance in the second degree and unlawful possession, transportation, and sale of untaxed cigarettes.

The indictment alleged that he and others sold untaxed cigarettes in New York and ran “a massive criminal enterprise that trafficked over 18 million untaxed cigarettes into New York.” The prosecution brought charges of Criminal Nuisance in the second degree and unlawful possession, transportation and sale of untaxed cigarettes.

What agencies detect, investigate, and prosecute Criminal Nuisance?

At the initial stages of a situation where charges potentially will be brought, there are many law enforcement agencies that can get involved in pursuing an investigation. They include the local police or county sheriff’s office, which often will assist with gathering evidence and identifying witnesses who might ultimately testify in court.

The police, sheriff and local officers can use search warrants and subpoenas, among other tools, to move an investigation forward. Depending on the facts of the offense, there are other agencies that also can get involved. For instance, if the alleged crime involves hazardous material, the New York State Department of Environmental Conservation might play a role.

If the case involves drugs or alcohol, special agents from the United States Drug Enforcement Administration (DEA) or the U.S. Food and Drug Administration (FDA) might also get involved. After a potentially lengthy investigation, if ultimately the prosecutor decides to file charges, the district attorney or attorney general or deputy attorney general will conduct and oversee the case.

What are the statutory penalties if you are convicted of this crime?

Penalties for Violating N.Y. Penal Law § 240.45:

Criminal Nuisance in the second degree is generally charged as a Class B misdemeanor, with potential penalties that can include:
Up to 90 days in jail, or
Probation of up to one year
Payment of a fine

As noted, usually steeper penalties are imposed with charges of Criminal Nuisance in the first degree. Specifically, penalties can include those outlined below.

Criminal Nuisance in the first degree (§ 240.45)

- Class E felony
- Incarceration of up to 4 years in prison, or
- Probation
- While generally charged as a non-violent crime which implies lower sentences than violent offenses, people “with prior felony convictions are treated with an increased minimum and maximum sentence,” according to the New York State penal code.

What are some of the additional consequences of being convicted?

Nobody wants to have a Criminal Nuisance conviction on their record if it can be avoided.

As noted above, felony convictions put you at greater risk of receiving heavier penalties for possible future offenses. In general, the consequences of a conviction are serious. In addition to potential prison terms and possibly fines, having a conviction on your record often makes it difficult to find employment in the future.

It can also put any state or federal licenses that you have at risk. Since people will generally have access to the record of a conviction, there can be a personal impact, as well.

Legal Defenses to Criminal Nuisance

Therefore, it is advisable to consult an attorney to help steer you through your best means of defense. Legal defenses you can use to fight these charges include arguing that:

You did not engage in the offense “knowingly or recklessly.”
The offense was an isolated incident and did not involve several people
You did not expressly use a venue for illegal purposes

Defense #1: You didn’t know

Let’s go back to an earlier example we used where you own or manage a bar frequented by minors. The prosecution alleges that you serve alcohol to these minors. Your defense team could argue that you believed the customers were of legal drinking age. In other words, your defense strategy could be that you didn’t know that the customers were minors and that you would be breaking the law by serving them.

Defense #2: Isolated incident

Keeping the same example, your lawyer could also argue that your serving alcohol to a minor was an isolated incident and therefore, does not involve many people and does not constitute a pattern of behavior.

Defense #3: Did not use a venue for illegal purposes

This potential line of defense is fairly straightforward. Depending on the evidence collected against you, you could deny that you used the venue or establishment to engage in unlawful behavior. You could argue that any illegal activities occurred without your knowledge.

Call us for help

As we’ve seen in many of the cases presented above, the legal rules around these crimes can be complex and potentially steep punishments can be levied if you are found guilty. Your best course of action is to seek legal assistance.

If you have questions about any of the issues discussed above, or to discuss your case in private with one of our experienced Criminal defense attorneys, do not hesitate to contact us.

We have defended many, many clients against Criminal Nuisance charges and have a strong track record. We want to help you. We have local Criminal law offices in your area. Everything we discuss regarding your case will remain confidential.