Yes, you can be arrested by the NYPD in New York City for Loitering. In fact, if you’re loitering in Manhattan, Yonkers, Brooklyn, White Plains, New City or Queens, the crime is still the same. Codified in the New York Penal Law under sections 240.35, 240.36 and 240.37. The first of these offenses is a violation while the latter two are misdemeanors. This particular blog entry will address the violation of New York Penal Law 240.35. However, we will also address the more serious criminal charges of PL 240.36 and 240.37 which you are likely to receive a Desk Appearance Ticket (DAT) should you have no prior criminal history and you are compliant with the arresting officers.
It is a violation to loiter in a public place for the purpose of gambling (PL 240.35(2)), with others wearing masks (PL 240.35(4)), around schools for no purpose or permission (PL 240.35(5)) and around a transportation center with no purpose or permission (PL 240.35(6)). The crime jumps up to a misdemeanor when you loiter or remain in a public place with at least one other person and you do so for the purpose of using or possessing a controlled substance or drug set forth in New York Penal Law Article 220. Article 220 contains the crimes relating to the possession and sale of drugs including cocaine, heroin, MDMA, and other narcotics but not marijuana. Lastly, PL 240.37 makes it a crime to remain in a public place and loiter for the purpose of engaging in prostitution.
With all of the Loitering definitions (not the actual legal ones, but of the rephrased digestible variety), is it enough for a police officer in conlusory language to draft a legally sufficient criminal complaint by merely asserting you were loitering for the purpose of gambling even if it was obvious at the time you were playing dice or cards? The short answer is simply “no.”
No matter the allegation or crime, when the police or a prosecutor draft a complaint it must not be based solely on a conclusion. In this scenario, to state that a person was loitering for the purpose of gambling does not explain how that person was loitering or how they were engage in gambling. This infirmity may have been overcome by merely stating that the officer observed the defendant for ten minutes squatting down and throwing dice. Each time the dice were thrown people picked up or dropped money or United States currency.
While only a fabricated hypothetical, the law is clear. Bringing us from common sense analysis to the legal realm, the Court recognized in People v. Kenneth Love, 15-237334, NYLJ 1202751733803, at *1 (City, AL, Decided March 2, 2016), addressed the conclusory language issue of a Loitering case where there was no description of conduct and just conclusions by the arresting officer. The Court recognized that “[a]n information is sufficient on its face when it (1) substantially conforms to the requirements of CPL 100.15, (2) sets forth allegations which ‘provide reasonable cause to believe the defendant committed the offense charged’ and (3) contains non-hearsay allegations which ‘establish, if true, every element of the offense charged and the defendant’s commission thereof.’ CPL 100.40(1); People v. Alejandro, 70 NY2d 133, 517 NYS2d 927 (1987). This third requirement is also known as the ‘prima facie case’ requirement. The Alejandro Court further held that failure to comply with the prima facie case requirement is a jurisdictional defect.” A jurisdictional defect is one that would require dismissal of the complaint or accusatory instrument.
As noted above, while the Court found the Loitering charge to be legally insufficient, it likely could have been rectified with a little effort and more details as to the alleged conduct. The lessons from this case are certainly applicable to a Loitering arrest, but have far greater value as the rules of legal sufficiency can be and is applied to every criminal case.
To determine whether you have grounds to challenge the legal sufficiency of a criminal complaint or accusatory instrument, educate yourself on the law and seek counsel to review the language and wording found within the four corners of the complaint against you.
Crotty Saland PC is a New York criminal defense firm. The two founding New York criminal attorneys and partners at Crotty Saland PC served as Manhattan prosecutors before establishing the criminal defense practice serving New York City and the greater area.