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NY Penal Law § 240.36: Loitering in the First Degree
Loitering in the first degree, NY Penal Law § 240.36, is loitering or remaining somewhere with one or more other people for the purpose of unlawfully using or possessing a controlled substance. It is a drug-related charge, and on Long Island it is filed almost entirely in Suffolk County, often alongside a drug possession charge or in place of one. It is a class B misdemeanor. Richard Hochhauser of Hochhauser Criminal & DWI Defense, PLLC is a former Long Island prosecutor who defends these charges in Suffolk County and Nassau County courts.
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NY Penal Law § 240.36 at a glance
| Loitering in the first degree | |
|---|---|
| Statute | NY Penal Law § 240.36 |
| Charge level | Class B misdemeanor |
| Maximum jail term | Up to 3 months |
| Key element | The purpose of unlawfully using or possessing a controlled substance |
| Where it is charged | Almost entirely in Suffolk County |
What NY Penal Law § 240.36 says
A person is guilty of loitering in the first degree when he loiters or remains in any place with one or more persons for the purpose of unlawfully using or possessing a controlled substance, as defined in section 220.00 of this chapter.
Loitering in the first degree is a class B misdemeanor.
Source: New York State Senate, official text. Read the full section, including any later amendments, before relying on it.
What the prosecutor has to prove
- You loitered or remained in a place.
- You were with at least one other person.
- The purpose was unlawfully using or possessing a controlled substance. Being in a place where drugs are present is not enough on its own.
Penalties for first-degree loitering
| Outcome | What it means |
|---|---|
| Jail | Up to 3 months (class B misdemeanor). |
| Record | A conviction is a criminal record, which matters for jobs, licenses and immigration status. |
| Reduced outcome | These charges are often resolved with an adjournment in contemplation of dismissal (ACD), a non-criminal disposition or treatment, depending on your record. |
Charged with drug loitering?
Call before your next court date. Consultations are free, in person at our Hempstead office or by video call or phone call. We answer 24/7.
How first-degree loitering charges show up on Long Island
In the cases we’ve seen over the last two years, PL 240.36 charges come up almost entirely in Suffolk County. We rarely see this charge in Nassau County.
These arrests usually come from police encounters in parked cars, parking lots and parks, and they are frequently charged with seventh-degree drug possession or fifth-degree possession.
In Nassau County, arrests are arraigned at the Nassau County District Court, 99 Main Street, Hempstead, NY 11550, across the street from our office. Felony cases that are indicted move to Nassau County Court, 262 Old Country Road, Mineola, NY 11501. In Suffolk County, arraignments are held at the Suffolk County District Court, First District, 400 Carleton Avenue, Central Islip, NY 11722. Indicted felony cases go to Suffolk County Court, Arthur M. Cromarty Criminal Court Complex, 210 Center Drive, Riverhead, NY 11901.
An example
Police approach a parked car in a Suffolk County shopping center lot late at night and see two people inside. One has a small amount of drugs. Both are charged with PL 240.36. For the passenger who had nothing, the defense focuses on whether the prosecutor can actually prove that they were there for the purpose of using or possessing drugs.
Defenses to a PL 240.36 charge
- No unlawful purpose. The prosecutor must prove why you were there, not just that drugs were nearby.
- Unlawful stop or search. Many of these cases begin with car approaches that can be challenged.
- Presence is not enough. Being with someone who had drugs does not make you guilty.
- Lab results. If the substance is not a controlled substance, the charge fails.
Related offenses
- Criminal possession of a controlled substance in the seventh degree (PL 220.03)
- Criminal possession of a controlled substance in the fifth degree (PL 220.06)
- Disorderly conduct (PL 240.20)
- Long Island drug possession defense
NY Penal Law § 240.36: frequently asked questions
What is loitering in the first degree in New York?
Under Penal Law 240.36, it is loitering or remaining in a place with one or more other people for the purpose of unlawfully using or possessing a controlled substance. It is a class B misdemeanor.
Is loitering in the first degree still a crime in New York?
Yes. Penal Law 240.36 remains in effect and is a class B misdemeanor, punishable by up to 3 months in jail.
Can I be charged if the drugs belonged to someone else?
You can be charged, but the prosecutor must prove that your purpose for being there was to unlawfully use or possess a controlled substance. Being near someone else’s drugs is not enough.
Can a drug loitering charge be dismissed?
Often it is resolved with a dismissal-type outcome, such as an adjournment in contemplation of dismissal, especially for people with little or no record.
How much does a lawyer cost for this charge?
Hochhauser Criminal & DWI Defense, PLLC charges a flat fee, quoted after your free consultation, so you know the cost up front.
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This is general information about New York law, not legal advice about your case. Laws change, and the right defense depends on the facts. Prior results do not guarantee a similar outcome.
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