The first question that is often asked by clients is, “What’s the worst that could happen?” Or what is the maximum punishment for [insert charge here] in New York? While it may be disheartening to learn the answer, quite often, the worst that can happen is only a remote possibility.
The answer to the question what’s the worst that could happen depends of several factors, which I call the WTWTCH Factors:
- The alleged crime(s), whether a felony or misdemeanor, and the degree.
- The facts of the case.
- The strength or weakness of the evidence of the alleged crime(s).
- The defendant’s prior contacts with law enforcement and criminal convictions.
- The defendant’s age, character and standing in society.
Whether a prosecutor will offer a non-criminal disposition, a plea bargain to a lesser offense or insists on a plea to the charge, largely depends on these three factors. The bottom line is that for many misdemeanors in New York, which include low-level and quality-of-life crimes and crimes where there is no victim or complaining witness, the likely disposition will not result in a criminal record if the person has never been arrested before or even arrested once or twice. For other types of misdemeanors in New York, where there is a victim or Driving While Intoxicated crimes, or for felonies in New York, the answer to the question becomes more complicated.
Generally, in New York speaking misdemeanors where there is a victim or complaining witness, Driving While Intoxicated and sex crimes, as well as felonies are prosecuted more vigorously than other crimes. However, in these cases a non-criminal outcome or even a criminal outcome without a jail sentence remains a possibility. Again it depends of the WTWTCH Factors.
In the literal sense, if charged with the following offenses in New York, the worst that could happen is:
Violation: 15 days in jail and/or fine of up to $250.
Class B misdemeanor: 3 months in jail and/or a fine of up to $500.
Class A misdemeanor: 1 year in jail and/or a fine of up to $1,000.
In New York, felonies are classified by class of severity: A-1, A-2, B, C, D and E. Felony prison sentences are classified as indeterminate, which establish a minimum and maximum period of incarceration, and determinate, which usually involve violent felonies or repeat offenders and are for a set number of years between a certain range.
Indeterminate Sentence Felonies
Once a person completes the minimum sentence, he or she usually becomes eligible for parole. If parole is denied or violated, then the person will only serve up to the maximum sentence. Below are the maximum indeterminate sentences for each class of felony. Again, these are the maximum sentences, the worst that can happen:
Non-Violent Felony: No Prior Felony Convictions
Class E felony: 1 1/3 to 4 years in prison
Class D felony: 2 1/3 to 7 to years in prison
Class C felony: 5 to 15 years in prison
Class B felony: 8 1/3 to 25 years in prison
Class A-2 felony: life in prison
Class A-1 felony: life in prison
Non-Violent Felony: 1 Prior Non-Violent Felony Conviction
Class E felony: to 4 years in prison
Class D felony: 3 ½ to 7 years in prison
Class C felony: 7½ to 15 years in prison
Class B felony: 12 1/2 to 25 years in prison
Class A-2 felony: life in prison
Determinate Sentence Felonies
In New York, these sentences are imposed for violent felonies (like Assault, Robbery and Weapons Possession), drug possession and sale and when the defendant has prior felony convictions. Judges have discretion to sentence a defendant to a set number of years between a range.
Violent Felony: 1 Prior Non-Violent Felony Conviction
Class E felony: 4 years in prison
Class D felony: 7 years in prison
Class C felony: 15 years in prison
Class B felony: 15 years in prison
Violent Felony: 1 Prior Violent Felony Conviction
Class E felony: 4 years in prison
Class D felony: 7 years in prison
Class C felony: 15 years in prison
Class B felony: 25 years in prison
The Second Question: What Is Likely to Happen?
If the first question is what’s the worst that can happen, the second question is what is likely to happen? As noted above, barring unfavorable WTWTCH factors, the worst outcome is unlikely. That said, it is impossible—and unwise—to guarantee any outcome. The explanations for what is likely to happen is based on years of experience as a prosecutor and a defense attorney.
What Is Likely to Happen?: Low-Level Misdemeanors in New York
In New York, there are a many criminal offenses that, if a person has never been arrested before or even has one prior arrest or conviction, a prosecutor will usually offer a non-criminal disposition at the arraignment. Even though the crimes are categorized as a class A or B misdemeanor, which means a maximum of 1 year in jail or 90 days in jail, that is rarely the result. Those crimes include but are not limited to:
- Shoplifting / Petit Larceny, Penal Law Section 155.25
- Criminal Possession of Stolen Property, Penal Law Section 165.40
- Theft of Services (turnstile jumping, failure to pay taxi fare), Penal Law Section 165.15(3)
- Theft of Services (failure to pay restaurant bill), Penal Law Section 165.15(2)
- Unlawful Possession of Marijuana, Penal Law Section 221.05
- Criminal Marijuana Possession of Marijuana, Penal Law Section 221.10
- Criminal Possession of a Controlled Substance, Penal Law Section 220.03
- Aggravated Unlicensed Operation of a Motor Vehicle, VTL Section 511
If the case is a first arrest for a low-level misdemeanor in New York, then a prosecutor will likely offer an Adjournment in Contemplation (“ACD”), which is dismissed and sealed in six months. If the case involves marijuana then a prosecutor will likely offer a marijuana ACD (“MACD”), which is dismissed and sealed in 12 months (as long the person has never received a MACD). If the case is a second or third arrest, then a prosecutor may offer a plea to Disorderly Conduct, Penal Law Section 240.20, which is a violation and not a crime. Disorderly conduct eventually seals and is not considered a criminal conviction. With multiple arrests and/or conviction, a prosecutor may insist of a plea to the charge, which would result in a criminal record. Still, it is possible to convince a prosecutor to offer an ACD or Disorderly Conduct in circumstances where either is not usually offered.
In addition, an ACD, a plea to Disorderly Conduct or other disposition, may include a conditional discharge, a requirement to complete a day or more of community service or a program relevant to the charged crime or payment of restitution, where appropriate. Failure to complete the terms of a conditional discharge could result in a warrant being issued and a judge could re-sentence a defendant to the maximum punishment allowed under the offense of the plea.
Shoplifting / Larceny /Criminal Possession of Stolen Property: What’s the Worst Than Can Happen With Shoplifting / Larceny / Criminal Possession of Stolen Property in New York?
The crime of Larceny, which includes shoplifting, is directly related to the value of item(s) that was allegedly taken. If the value of the property taken is less than $1,000, then the alleged crime is called Petit Larceny, Penal Law Section 155.25. The degree of larceny from the Fourth Degree to the First, ranges from a class E felony to a class B felony. Criminal Possession of Stolen Property is also graded into degrees depending on the value of the property.
With Petit Larceny and misdemeanor Criminal Possession of Stolen Property cases in New York, the prosecutor will usually offer an ACD on a first or second arrest if the value of the property is less than $500. If the property is more than $500 then a prosecutor will likely offer Disorderly Conduct for a first or second arrest. Community service may also likely be required as part of a condition discharge. The number of days of hours of the required community service increases with the amount of the value of the alleged property that was taken. Where Criminal Possession of Stolen Property, if the property is not recovered, then restitution might be part of a conational discharge. If a person cannot make restitution, then a prosecutor may substitute community service.
In cases of Grand Larceny, which is a felony, and felony Criminal Possession of Stolen Property the outcome may be favorable, but it is more difficult to predict without knowing more about the WTWTCH factors. It is possible to convince a prosecutor to reduce the felony Grand Larceny charge to a misdemeanor or even to a violation or an ACD. One factor given great weight by prosecutors in cases of Grand Larceny is the ability to make restitution for the amount that was allegedly taken. The likelihood of a reduction or mitigation of the charge and/or sentence is based entirely on aggressive work by a defense attorney and the WTWTCH Factors.
Marijuana / Drug Possession or Sale: What’s the Worst Than Can Happen With Marijuana / Drug Possession or Sale in New York?
While the trend toward prosecuting marijuana crimes is decreasing in New York, most drug possession and sale crimes are felonies and are prosecuted vigorously. Most misdemeanor marijuana cases, Penal Law 221.10, plead out to an MACD or a marijuana violation, unless a person has multiple arrests or convictions. Unlawful Possession of Marijuana, Penal Law Section 221.05, is already a violation, which ultimately seals.
Cases of Criminal Possession of a Controlled Substance in the Seventh Degree, Penal Law Section 220.03, which is also a misdemeanor, are treated similarly. The likely outcome of a first or second arrest is an ACD, with either a brief treatment program or community service. If a person has a few arrests a prosecutor may offer Disorderly Conduct, which seals upon completion of the conditional discharge, for example, to stay out of trouble for 1 year. Beyond a few arrests and/or convictions, prosecutor may insist on a plea to the charge, which would result in a criminal record.
There is only one misdemeanor crime related to possession of a controlled substance in New York. The remaining controlled substance possession and sale crimes are felonies. While judicial diversion remains a possibility to treat dependence or substance abuse, it is an uphill battle to reduce a felony to a misdemeanor but not unheard of. It depends on the WTWTCH factors.
Driving With a Suspended License: What’s the Worst Than Can Happen With Driving With a Suspended License in New York?
The misdemeanor crime, Vehicle and Traffic Law Section 511(1)(a), is punished by up to 30 days and jail and/or a fine of $500. But that in not the likely outcome. Unless a person has a criminal conviction, a prosecutor usually will offer a plea to Vehicle and Traffic Law Section 509, which is a violation and not a crime, and a fine of between $74 and $300.
Weapons Possession: What’s the Worst Than Can Happen With Weapons Possession in New York?
Weapons possession in New York is treated seriously. While it is not considered a harmless, low-level misdemeanor, a non-criminal outcome is entirely possible. It depends on the WTWTCH Factors. If the charge is simple possession of a weapon and not connected to so other crime like menacing or assault, then an ACD or an offer of Disorderly Conduct, Penal Law Section 240.20, if the person has no more than one or two prior arrests. A conditional discharge may include one day or more of community service. If a person has a prior conviction to any crime, anywhere in the United States, misdemeanor criminal possession of a weapon charges may be bumped up to a felony.
On the other hand, possession of a firearm is prosecuted aggressively in New York City and elsewhere in New York State. In 2013, as part of weapons laws revisions, the mere possession of an unloaded firearm was increased from a misdemeanor to a felony called Criminal Possession of a Firearm, which is a class E felony. Assuming no prior felony convictions, the worst that can happen is a prison sentence of 1 1/3 to 4 years. If a person is charged with possessing a loaded firearm outside of one’s home or place of business. Assuming no prior felony convictions, the crime requires a mandatory minimum of 3 ½ years in prison. The worst than can happen is a sentence of 15 years in prison.
Driving While Intoxicated: What’s the Worst Than Can Happen With DWI in New York?
A first-time arrest for Driving While Intoxicated (“DWI”) VTL 1192(2), (3) or more than 10 years from a previous conviction, is a class A misdemeanor in New York State. Each District Attorney in the 62 counties of New York, which includes the 5 boroughs of New York City, has a plea bargain policy for first-time DWI arrests.
Generally speaking, if the arrest does not involve a crash, either personal injury or property damage, and the person submitted to a breathalyzer with a result of .13% BAC or below, then a prosecutor may offer a plea to Driving While Ability Impaired, VTL 1192(1) (“DWAI”), which is a traffic infraction and not a crime, and a $300 fine, the Driving Driver Program and a 90-day license suspension. (A quirk of DWAI is that it is a traffic infraction, and unlike violations, it is not sealed.)
If the breathalyzer result is above .13 or there were aggravating factors like a crash with personal injury or property damage, then a prosecutor may insist that a person plead guilty to Driving While Intoxicated, VTL Section 1192(2) or (3), which will result in a criminal record. While the maximum sentence is 1 year in jail, it is unlikely a person charged with DWI with no arrest record will be sentenced to jail if he or she has led a law abiding life. That of course assumes that the WTWTCH Factors are favorable.
Most District Attorneys’ Offices in New York have a policy that bars a plea to DWAI when a person refuses to submit to a breathalyzer or to give blood. That means that a plea bargain to DWAI is not offered with a DWI refusal. That is not always the case. A skilled and aggressive defense lawyer may be able to convince a prosecutor to make an offer to DWAI based on evidence favorable to the defense or the lack of strong evidence for the prosecution.
Crimes in New York Involving with a Complaining Witness / Victim
Whether a felony or misdemeanor, cases that involves a complaining witness, which includes Assault, Larceny, Forcible Touching / Sexual Abuse, and Domestic Violence-related crimes are more challenging to predict. Prosecutors usually investigate such cases, meeting with the witnesses and gather evidence before recommending a disposition. At the same time, a defense attorney should be doing the exact same thing—meeting with witnesses and gathering evidence to support the defense.
A prosecutor’s proposed disposition depends in part on the WTWTCH Factors. If the outcome is not favorable to the defense, a defense attorney who has done their homework may be able to influence the prosecutor’s decision. Short of an outright dismissal, an ACD or an offer of a violation, which eventually seals may be a favorable outcome. But, every case is different and requires an analysis of all the factors before a defense attorney may be able to give an educated answer about what is likely to happen.
Domestic Violence: What’s the Worst Than Can Happen With Domestic Violence in New York?
In New York Domestic Violence cases are given special attention because of the relationship of the parties. Although a case is classified as domestic violence, it does not mean that the outcome will be a criminal record. Where domestic violence is concerned, much depends on the history of domestic violence between the parties, any history of domestic violence by the person charges, the severity of the alleged crime(s) and the wishes of the complaining witness. During a domestic violence case in New York, the court will usually issue a full Order of Protection that bars any contact or communication by the person charged with the alleged crime with the complaining witness/victim. (Yes, even tagging somebody on Facebook who is protected by and Order of Protection can lead to criminal charges!)
At the outset, it is possible for a District Attorney to decline to prosecute and arrest if the complaining witness does not want to cooperate. And, even if a case goes forward over the objection of a complaining witness, some cases charging one or more class A misdemeanors are dismissed after 90 days, when the speedy trial time elapses. (The speedy trial time for a felony is 6 months).
Still, if a case goes forward and if the WTWTCH Factors are favorable to the person accused of a Domestic Violence crime, then is possible to obtain a family adjournment in contemplation of dismissal (“FACD”), which is dismissed and sealed in 12 months if the person stays out of trouble. Often with a domestic violence case, there will be conditions that may include a full or limited Order of Protection and/or counseling.
Assault: What’s the Worst Than Can Happen With Assault in New York?
The worst case scenario for Assault in New York, depends on the degree of the crime. The basic Assault in New York, Assault in the Third Degree, Penal Law Section 120.00, is a class A misdemeanor and is punished by up to 1 year in jail. Assault in the Second Degree, Penal Law Section 120.05 and Assault in the First Degree, Penal Law Section 120.10, are both violent felonies, which means mandatory minimum prison sentences. Assault in the Second Degree is punished by a mandatory minimum of 2 years in prison, and assuming no prior felony convictions, a maximum of 7 years in prison. Assault in the First Degree is punished by a mandatory minimum of 5 years in prison, and assuming no prior felony convictions, a maximum of 25 years in prison.
Depending on the TWWTCH factors, a defense attorney may be able to reduce a misdemeanor to a non-criminal offer, an ACD, Disorderly Conduct or Harassment, or reduce the level of felony. Self-defense is commonly raised as justification. A skilled defense attorney may be able to convince a prosecutor prior to trial that the arrest was the result of self-defense and have the charges dismissed. Alternatively, a defense attorney can make raise what is known as a justification defense at trial.
Forcible Touching /Sexual Abuse: What’s the Worst Than Can Happen With Forcible Touching / Sexual Abuse in New York?
In New York, Forcible Touching, Penal Law Section 130.52, is a class A misdemeanor, a maximum sentence of 1 year in jail. Sexual Abuse in the Third Degree, Penal Law Section 130.55, is a class B misdemeanor, a maximum sentence of 90 days in jail. A prior conviction of either crime or an attempt to commit either crime requires registration to the New York Sexual Offenders Registry. Cases involving sexual misconduct are prosecuted vigorously in New York. Even in cases where Forcible Touching or Sexual Abuse is charged, it is possible for a defense attorney to obtain a non-criminal disposition when the WTWTCH Factors are favorable to a defendant.
Robbery / Burglary: What’s the Worst Than Can Happen With Assault in New York?
The worst case scenario for any degree of Robbery or Burglary in New York, both of which are felonies, depends on the degree of the charge(s). Both crimes involved highly specific fact patterns. As a general rule, the more serious the degree of the crime, the more difficult it is to obtain a favorable outcome.