Is a Pleaing to a Violation Good?

Is taking a Plea to Violation a Good idea?

I live and practice criminal defense law with an DWI (Drunk Driving) emphasis in Ithaca, NY.
Because of my daily involvement with the local Courts I am often called on legal matters relating to College behavior. Some might call it hijinks (merrymaking), or shenanigans (according to Wikipeida: Shenanigans are trickery, mischief, or underhanded actions), or as I call it "what were they thinking?" What often seems like a good idea at 3:00AM makes no sense in the light of morning.

Yeah Ithaca College and Cornell University students sometimes unwind from the stress of studies in interesting ways. In my youth, I was a fraternity member. My rat brothers and I had made many road trips, and our fair share of craziness. Nothing like mixing PGA (pure grain alcohol), Boonesfarm, and alot of other assorted beverages to make a potent albeit sweet punch.

So when things happen, as they often do, at the wee hours of morning, when brain cells are not fully engaged, I will end up representing students with various criminal charges. These are usually misdemeanors, and if they resulted in a criminal conviction would stay on their permanent record forever. New York State unfortunately does not have an expungement statute. Many of these first time offenders just made a bad decision/judgement call.

One possible option, depending upon the facts and circumstances, for first timers (to the Court system) is that I can try to negotiate the charges with the ADA (Asst. District Attorney) to an ACD.

An ACD is a Court Adjournment of the matter (for 6 months) in Contemplation of Dismissal. In other words, if the offender does not get into any further trouble with the law over a six month time period the charges will be dismissed by the Court.

That is well and good, but sometimes the facts and circumstances of the offense involve more serious allegations. They are still at the misdemeanor level of crime, but they may involve violence, a pattern of drug abuse, or of harm to people and/or property. These cases are naturally dealt with more harshly by the prosecutors and the Court. Their concern for the general public is understandable.

In these situations a second potential disposition is a negotiated plea to Disorderly Conduct. Commonly called a "Discon" in criminal Court parlance.

Disorderly conduct is not a crime, it is considered under the Penal Law to be a Violation and
Disorderly conduct does covers a wide range of unlawful conduct, behavior, and activities.

Disorderly Conduct, Penal Law 240.20, has many subdivisions. According to the Penal Law, a person is guilty of this violation when, "with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof," a person does one of the following:

(1) Engages in fighting or in violent, tumultuous or threatening behavior;
(2) Makes unreasonable noise;
(3) Uses obscene or abusive language or obscene gestures in a public place;
(4) Disturbs a lawful assembly or meeting of persons without any lawful authority;
(5) Obstructs vehicular or pedestrian traffic;
(6) Congregates with others in a public place and refuses to comply with police requests;
(7) Creates a hazardous condition or physically offensive condition by any act which serves no legitimate purpose.

btw, The foregoing all sound like Hijinks, Shenanigans, and stuff that happens at College parties.

What are the advantages to a plea to Disorderly Conduct (a violation) versus a plea to a Criminal Misdemeanor?

1. A Violation is not considered a criminal disposition or conviction. It is a non-criminal disposition. In my opinion, a "good" non-criminal disposition.

2. A person who is convicted, by plea or trial, of a violation is entitled to have their record sealed.

3. A person who is convicted, by plea or trial, of a violation is entitled to have their fingerprints and any photographs (mug shots) returned.

4. Disorderly conduct is considered a "non-printable" charge, for which fingerprints are not required.

5. A person who is convicted of a violation is entitled to have their statewide record kept confidential. In other words, no statewide search by the Office of Court Administration of electronic records relating to their violation can be disseminated (released) to the public once it is sealed.

Please Note however that the actual paper records kept in a City or Town's Criminal Court are not sealed, and the public does have access to the physical record in the clerk's office. Someone could physically go to that particular City, Town, or Village Court and find your records.

A Disorderly Conduct plea can be a practical resolution and compromise to having a trial. Trials always involve a degree of risk. The risk of losing at trial (and being found guilty of a misdemeanor) usually far outweigh the benefits of pleaing to a violation.

For the all following reasons, when prosecutors and defense lawyers negotiate pleas to violations it helps clients avoid the lifetime consequences of a conviction for a crime that they were alleged to have committed.