New York loitering law is narrower than most people assume. Under Article 240 of the Penal Law, only three specific situations qualify as loitering under Section 240.35, and each is a violation carrying up to 15 days in jail and a $250 fine. A separate offense, loitering in the first degree under Section 240.36, is a class B misdemeanor tied to drug activity and carries up to three months in jail and a $500 fine. Standing around in a public place without an obvious purpose is not a crime in New York.
What Still Counts as Loitering Under Section 240.35
Section 240.35 lists the conduct that qualifies as loitering. Several subdivisions have been repealed over the years, leaving three active categories.1New York State Senate. New York Penal Law 240.35 – Loitering
- Remaining in a public place to gamble with cards, dice, or other gambling equipment (subdivision 2).
- Lingering on school property, a college campus, a children’s camp, or a school bus without a legitimate reason connected to the students or facility, and without written permission from someone authorized to give it (subdivision 5).
- Remaining in a bus terminal, subway station, or similar transportation facility to sell merchandise, solicit business, or perform entertainment such as singing or playing an instrument without authorization (subdivision 6).
Each of these is a violation, not a crime. That distinction matters because a violation does not produce a criminal record in the way a misdemeanor or felony would. It also matters what is not on the list. Simply standing in a public place, waiting, or looking out of place does not meet the statute. If an officer tells you to move along without your conduct fitting one of the three categories above, no loitering offense has occurred.
Loitering in the First Degree
Section 240.36 covers the more serious offense of loitering in the first degree. A person commits this offense by remaining in any place with one or more other people for the purpose of unlawfully using or possessing a controlled substance.2New York State Senate. New York Penal Law 240.36 – Loitering in the First Degree
Two elements do the work here: the group setting and the drug-related purpose. Prosecutors must show you were with at least one other person and that the shared purpose involved a controlled substance. Being near a location known for drug activity is not enough by itself. Loitering in the first degree is a class B misdemeanor.2New York State Senate. New York Penal Law 240.36 – Loitering in the First Degree
Penalties at a Glance
Standard Loitering (Violation)
A charge under Section 240.35 is a violation, the lowest category of offense in New York. The maximum penalty is 15 days in jail and a fine of up to $250.3New York State Unified Court System. Types of Criminal Cases Because a violation is not a criminal conviction, it will not appear as a misdemeanor or felony on a background check. It still creates a record of the incident, and even a short jail sentence disrupts work and family life.
Loitering in the First Degree (Class B Misdemeanor)
A conviction under Section 240.36 is a class B misdemeanor. The maximum jail sentence is three months.4New York State Senate. New York Penal Law 70.15 – Sentences of Imprisonment for Misdemeanors and Violation Fines can reach $500.5New York State Senate. New York Penal Law 80.05 – Fines for Misdemeanors and Violation Unlike a violation, this is a criminal conviction that shows up on background checks and can affect employment, housing, and immigration status. Courts may also impose probation, community service, or mandatory treatment programs.
If you are already on probation for another offense, a new loitering arrest can trigger a violation hearing, which carries its own penalties and can reopen the original case.
What New York Repealed and Why It Matters
Search results for New York loitering law are full of outdated information. Several once-prominent provisions no longer exist, and knowing what is off the books is as useful as knowing what remains.
Prostitution-Related Loitering (Section 240.37, Repealed 2021)
Section 240.37 once made it a crime to remain in a public place and repeatedly stop passersby or vehicles for the purpose of prostitution. The Legislature repealed this provision in 2021 through Senate Bill S1351, known as the “Walking While Trans” repeal. Lawmakers found the statute had been used disproportionately against transgender women, immigrants, and people of color, often based on appearance or location. The repeal legislation directed that no prosecution under the former section be commenced, continued, or refiled.6New York State Senate. Senate Bill 2021-S1351
Mask and Disguise Loitering (Section 240.35(4), Repealed 2020)
Subdivision 4 of Section 240.35 once prohibited congregating in a public place while masked or disguised. The provision dated to the 1840s and the Anti-Rent Movement in the Hudson Valley. The Legislature repealed it in June 2020.7Ask a Law Librarian. How Does the Old Criminal New York Mask Law Differ From the Current One
In 2025, Governor Hochul signed a new and much narrower statute, Section 205.35, making it a class B misdemeanor to wear a mask or facial covering to conceal your identity during the commission of a felony or class A misdemeanor, or while fleeing one. The new law requires that you actually be committing or fleeing a serious crime with intent to avoid identification. Wearing a mask in public, by itself, is not a crime.8New York State Senate. New York Penal Law 205.35 – Evading Arrest by Concealment of Identity
Other Repealed Subsections
Subdivisions 1, 3, and 7 of Section 240.35 were all repealed in 2010. These had covered additional vaguely defined forms of public presence.1New York State Senate. New York Penal Law 240.35 – Loitering
Loitering Is Not the Same as Trespassing
People often confuse the two, but they work differently. Trespassing requires entering or remaining on property without permission: you crossed a boundary, ignored posted signs, or stayed after being told to leave. Loitering does not require you to be somewhere you are forbidden to be. It targets specific behavior in places you may have every right to stand. You can be lawfully present in a subway station and still commit loitering under subdivision 6 if you run an unauthorized vending operation there.
The practical difference matters for enforcement. Trespassing is easier to prove because the question is binary: did you have permission or not? Loitering charges require the prosecution to show one of the specific prohibited activities, which leaves more room for a defense.
If You Receive a Summons
For a simple loitering violation, a summons (a ticket requiring you to appear in court) is the most common outcome of a police stop. You must appear on the date listed. Ignoring the summons can produce a bench warrant, which turns a minor matter into a much larger one.
At arraignment, the court states the charges and asks for a plea. For a violation under Section 240.35, the court may offer the option of paying a fine and resolving the case that day. Judges can also grant an adjournment in contemplation of dismissal, which puts the case on hold for a set period; if you stay out of trouble, the charge is dismissed and sealed. This is a common outcome for first-time violations.
A class B misdemeanor under Section 240.36 is a different situation. The prosecution must prove beyond a reasonable doubt that you were loitering with one or more people for the purpose of using or possessing a controlled substance, which typically depends on officer testimony about where you were, who you were with, and what conduct they interpreted as drug-related. Defense strategies often focus on whether those observations actually showed the specific intent the statute requires, or whether the stop itself lacked reasonable suspicion. At this level of charge, having a defense attorney meaningfully changes what outcomes are on the table.