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Understanding New York’s Protesting, Looting and Curfew Crimes: Potential Charges and Punishment

What can I be arrested for if I violate curfew in NYC? What can the NYPD charge me with if I am caught unlawfully entering a store through a broken window? Is it a felony or misdemeanor to burn a vehicle or damage a building? By no means covering all applicable arrest charges in New York City or elsewhere, the following are some potential offenses you can face if law enforcement determines your conduct violates the law and goes beyond the right to legally protest.

Looting Crimes in New York City in the Midst of the George Floyd Protests

In the wake of George Floyd’s tragic and unnecessary death while in police custody in Minneapolis, the nation has seen innumerable and daily protests of all descriptions. New York City – Manhattan, Queens, Brooklyn, the Bronx and Staten Island – has been the scene of many of these protests. While no municipality is immune from violence, protesters by and large have behaved responsibly, peacefully, and within their rights.  In far less frequent, but on the more violent and tumultuous end of the spectrum, some protestors and others have set fires to vehicles and stores while also looting those stores by smashing windows, breaking in and stealing property. How law enforcement, including police and prosecutors such as the NYPD and the Manhattan or Brooklyn District Attorney’s Offices, deal with this conduct is starting to play out and will continue to do so in the weeks and months ahead. Setting aside Unlawful Assembly, Penal Law 2401.10, and Disorderly Conduct, Penal Law 240.20, whether given summonses, arrested with a relatively quick release and Desk Appearance Ticket, or processed through the infamous “Tombs,” each of the following criminal offenses are some of those an arrestee may face at his or her arraignment.

More Serious Looting-Related Crimes: Third & Second Degree Burglary

Those accused of looting during protests can, and often will, be charged with quite serious offenses. Perhaps the most obvious is Burglary in the Third Degree, Penal Law 140.20. The law is violated when a person enters a building illegally with the intent of committing a crime, such as stealing or damaging property. A Class D Felony punishable by five years of probation or up to seven years in state prison, the only silver lining for such an arrest is that Third Degree Burglary does not qualify for bail even if it can land you behind bars for an extended period of time.

Governor Cuomo and others have called upon the District Attorneys of New York City, such as Cyrus Vance, Jr. in Manhattan, to charge people who arrested for looting with the even more serious Burglary in the Second Degree, Penal Law 140.25. This latter offense is a legally defined “violent felony” and is a qualified offense for the purpose of bail. To charge this Class C felony, where an accused faces potential punishment up to fifteen years in prison and a mandatory minimum of three and one half years, a defendant must, for example, be armed with a weapon or cause certain injuries to other parties. Alternatively, if the building where the Burglary is committed also has apartments and dwellings, then Penal Law 140.25 is a viable offense. However, unless the accused enters the dwelling area, or as above possesses a weapon, for example, a judge would be unable to set bail.

Other Looting Crimes: From Larceny to Criminal Mischief

Other related offenses that the NYPD can charge, and District Attorneys can prosecute in a looting situation, are Grand Larceny and Criminal Mischief. Grand Larceny can simply be a theft of property that exceeds a statutory value, such as $1,000 for Grand Larceny in the Fourth Degree and $3,000 for Grand Larceny in the Third Degree. The former offense, Penal Law 155.30, is a Class E felony punishable by up to four years in prison, while the latter, Penal Law 155.35, has the same potential sentence as Third Degree Burglary. The greater the value of the property that is stolen, or if the property is of a certain type, the more serious the charge may be – all the way up to Grand Larceny in the First Degree, which is a Class B Felony punishable by up to 25 years in prison.

Criminal Mischief, on the other hand, generally relates to the intentional or reckless damaging of another person’s property, rather than stealing it. This can clearly apply to looting in the smashing of store windows with bricks, or other damage to stores, bicycles, cars and the like. The most commonly charged offense is Criminal Mischief in the Fourth Degree, Penal Law 145.00, which is a Class A Misdemeanor punishable by up to a year in jail or three years probation. While not a felony, this is still a serious misdemeanor that can leave anyone branded with a permanent criminal record. If that property is worth as little as $250, law enforcement can elevate the arrest to a Class E Felony, Third Degree Criminal Mischief, Penal Law 145.05, with the same penalties as Fourth Degree Grand Larceny.

Violations of Curfew: New York City Administrative Code 3-108

In New York City, one tactic to curb looting has been to set a city-wide curfew of 8 p.m. Those charged and convicted of violating the curfew, currently between the hours of 8 p.m. to 5 a.m., face NYC Administrative Code 3-108. This Class B misdemeanor is punishable by up to 90 days in jail and / or a fine up to $500.00. Irrespective of the sentence, a conviction becomes part of one’s permanent criminal record.

Civil Disobedience, Protesting, Looting and Law Enforcement

The inevitable arrests surrounding the George Floyd and civil rights protests present not only various decisions with respect to what crimes a person can be charged with, they also present a difficult public policy decision for police and prosecutors – what they should be charged with if anything at all. Simply, prosecutors famously have a great deal of discretion. In the end, these kinds of determinations are very fact-specific and case-specific, but they must be viewed in the context of the movement that is happening right now. Damaging a police car may seem an unjustifiable and straightforward crime to some, but others may see it as an essential act of civil disobedience. Our personal opinions aside, the NYPD, prosecutors and judges will be the ultimate arbiters of who to charge, determining what is the proper offense, and whether an accused should receive leniency or the full brunt of the criminal justice system.

To learn more about the above crimes and New York’s bail laws, review the following links. Founded by two former Manhattan prosecutors, the criminal lawyers at Crotty Saland PC represent those accused of or arrested for crimes throughout New York City and its suburban counties and municipalities.

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