Long Island's Premier Criminal & DWI Defense Law Firm
NY Penal Law § 260.21: Unlawfully Dealing with a Child (Selling Tobacco or Vapes Under 21)
Unlawfully dealing with a child in the second degree, NY Penal Law § 260.21, covers three things: letting children under 16 into some bars, tattooing anyone under 18, and selling tobacco in any form to someone under 21. On Long Island, nearly every case is the third one: store clerks charged after a police compliance check, often for selling cigarettes or vapes. It is a class B misdemeanor. Richard Hochhauser of Hochhauser Criminal & DWI Defense, PLLC is a former Long Island prosecutor who defends store employees and owners in these cases.
Free Consultation
In person, by video call or phone call
On over 230 reviews
Former Prosecutor
Brings years of experience from both sides to every case.
Arrested or have a court date on Long Island?
Call or text (516) 939-1529 for a free consultation, in person at our Hempstead office, by video call or by phone call. We answer 24/7.
NY Penal Law § 260.21 at a glance
| Unlawfully dealing with a child in the second degree | |
|---|---|
| Statute | NY Penal Law § 260.21 |
| Most common on Long Island | Subdivision 3: selling tobacco in any form to someone under 21 |
| Charge level | Class B misdemeanor |
| Maximum jail term | Up to 3 months |
| Who gets charged | Usually the clerk who made the sale |
What NY Penal Law § 260.21 says
A person is guilty of unlawfully dealing with a child in the second degree when:
1. Being an owner, lessee, manager or employee of a place where alcoholic beverages are sold or given away, he permits a child less than sixteen years old to enter or remain in such place unless: (a) The child is accompanied by his parent, guardian or an adult authorized by a parent or guardian; or (b) The entertainment or activity is being conducted for the benefit or under the auspices of a non-profit school, church or other educational or religious institution; or (c) Otherwise permitted by law to do so; or (d) [the establishment is closed to the public for a specified activity, with no alcohol sold, served or consumed, and the State Liquor Authority is notified in advance]; or
2. He marks the body of a child less than eighteen years old with indelible ink or pigments by means of tattooing; or
3. He or she sells or causes to be sold tobacco in any form to a child less than twenty-one years old.
It is no defense to a prosecution pursuant to subdivision three of this section that the child acted as the agent or representative of another person or that the defendant dealt with the child as such.
Unlawfully dealing with a child in the second 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.
Bracketed text is our summary of a longer provision in the official statute.
What the prosecutor has to prove
- For subdivision 3: you sold, or caused to be sold, tobacco in any form.
- The buyer was under 21.
- It is not a defense that the young buyer was buying for someone else.
Penalties for unlawfully dealing with a child
| Outcome | What it means |
|---|---|
| Jail | Up to 3 months (class B misdemeanor), though jail is unusual for a first offense. |
| Record | A conviction is a criminal record, which can affect employment and immigration status. |
| The store | Separate administrative proceedings against the store are possible. The clerk’s criminal case and the store’s case are handled differently. |
| Reduced outcome | Many first-time cases are resolved with a non-criminal disposition, such as an adjournment in contemplation of dismissal. |
Many of the people charged are store clerks with no criminal record. A conviction can matter far more for immigration status than the penalty suggests, so get advice before pleading.
Charged after a tobacco or vape sting?
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 unlawfully dealing with a child charges show up on Long Island
In the cases we’ve seen over the last two years, PL 260.21 charges come up almost entirely in Suffolk County, and nearly every one is subdivision 3, selling tobacco to someone under 21.
These cases usually come from compliance checks, where police send an underage buyer into gas stations, delis, convenience stores and smoke shops, and often several stores are checked on the same day.
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
A gas station clerk sells a vape to a 19-year-old who is working with police during a compliance check. The clerk asked for ID but misread the date of birth. The clerk is charged with PL 260.21(3). The defense looks at the clerk’s record and immigration status, the store’s ID-check procedures and the circumstances of the sale to resolve the case without a criminal conviction.
Defenses to a PL 260.21 charge
- Was it “tobacco”? Whether the product sold falls within the statute matters.
- Who made the sale. Identification of the clerk in a busy store can be wrong.
- Age of the buyer. The prosecutor must prove the buyer was under 21.
- Resolution strategy. For first-time clerks, a non-criminal outcome is often achievable and protects immigration status.
Related offenses
- Endangering the welfare of a child (PL 260.10)
- Disorderly conduct (PL 240.20)
- Long Island criminal defense lawyer
NY Penal Law § 260.21: frequently asked questions
Is selling cigarettes or vapes to someone under 21 a crime in New York?
Yes. Under Penal Law 260.21(3), selling or causing the sale of tobacco in any form to someone under 21 is unlawfully dealing with a child in the second degree, a class B misdemeanor.
Who gets charged in a tobacco sting, the clerk or the owner?
Usually the clerk who made the sale is charged criminally. The store may face separate administrative consequences.
Is it a defense that the buyer was buying for an adult?
No. The statute says it is no defense that the child acted as the agent or representative of another person.
Will this affect my immigration status?
It can. Any criminal conviction can have immigration consequences, so talk to a lawyer before pleading. Many first-time cases can be resolved without a conviction.
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.
Talk to a former prosecutor today
Free consultation in person, by video call or by phone call. We answer 24/7.
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.
Our Offices
Garden City Office
1225 Franklin Ave #325
Garden City, NY 11530
Phone: (516) 939-1529
Appointments Only
See What Our Clients Are Saying
During what was one of the scariest times of my life, he gave me all of the knowledge and support possible to help me get through it. Not only did I end up getting a great outcome for my case, but Richard helped make it a very smooth process and was always there when I had...
Mr. Hochausser worked hard on my behalf.. so hard that he achieved what seemed impossible. He always communicated with me honestly and earnestly, which is rare in any profession these days. He was prepared and forthright every step of the way. I hope to never need his services...
Best Criminal Attorney in New York. Richard explains each detail slowly and carefully so it’s easily understood. He handles each case as if it’s the most important. Highly recommend!
Best DWI lawyer in New York!
Mr. Hochhauser was incredible. I was consulted immediately after the first call. Richard was easy to keep in touch with and would answer all of my emails, phone calls, and even texts regarding my concerns. Guided me through the whole process, made sure I understood everything...
Richard explained the matters of my case thoroughly and was professional and effective in dealing with the charges I was facing, ultimately getting the docket dismissed in its entirety. I would highly recommend procuring his services.
Was in a bad spot but Richard Hochhauser got me great results on my DWI case in Nassau County. Highly Recommend!!!
Can't thank Richard enough. He went aobve and beyond for me. Never had any issues with the law before and he made sure I had no record. Great Criminal Attorney!!!
Was never really in trouble before. And just googled best criminal attorney near me. Feel so lucky that Richard was the one I called. He really fought for me was very knowledgeable. Highly recommend!!
Call Now to schedule a Free Consultation with Richard Hochhauser
Call or text anytime.