Felony vs. Misdemeanor in New York: What Is the Difference?

If you or someone you know has been arrested or charged with a crime in New York, one of the first questions that comes up is whether the charge is a felony or a misdemeanor. Both are serious criminal offenses — but they differ significantly in how they are prosecuted, what rights the accused has, and what the long-term consequences of a conviction can be.

The Basic Distinction

Both felonies and misdemeanors are crimes under New York law. The core distinction comes down to the potential sentence.  A misdemeanor is a criminal offense where a conviction can result in up to 364 days in jail, in addition to fines, surcharges, and other penalties. New York misdemeanors are divided into two classes. A Class A misdemeanor — the most serious — carries a maximum of 364 days in jail. A Class B misdemeanor carries a maximum of 90 days. There is also a category of unclassified misdemeanors, where the sentence is specified by the particular statute defining the offense. A felony is a criminal offense where a conviction can result in more than one year in state prison, in addition to fines, surcharges, and other penalties. New York felonies are divided into five classes — A through E — with Class A felonies being the most serious and carrying the longest potential sentences. Even a Class E felony, the least serious, carries a maximum of four years in prison.

One important note on the 364-day maximum for misdemeanors: this is not a rounding error. In 2019, New York State deliberately reduced the maximum misdemeanor sentence from one year to 364 days. The reason was to protect non-citizens from harsh federal immigration consequences — under federal law, a sentence of one year or more can trigger deportation proceedings. The one-day difference matters enormously for immigrants.  While the difference in potential jail time is straightforward, in practice there are many other important distinctions between how felonies and misdemeanors are handled — particularly when it comes to the Grand Jury process.

Felony Charges and the Grand Jury

Under the New York State Constitution, a person cannot be brought to trial for a felony unless they have first been indicted by a Grand Jury — unless they choose to waive that right in open court before a judge.  A Grand Jury is a group of citizens — up to 23 people — selected at random from the community where the alleged crime occurred. Their role is to review the evidence presented by the prosecution and decide whether there is enough to bring the case to trial. The Grand Jury acts as an independent check on the government’s power to prosecute — it stands between the accused and the full force of a criminal trial.   For a Grand Jury to vote an indictment, at least 12 of the jurors must find that there is reasonable cause to believe the accused committed the felony. This is a significantly lower standard than the “beyond a reasonable doubt” standard required for a conviction at trial — but it is a meaningful hurdle nonetheless.  The Grand Jury process works as follows. After a felony arrest, the case is presented to a Grand Jury, usually within 45 days if the accused is in custody. The prosecution presents evidence — witness testimony, police reports, physical evidence — to the Grand Jury. The proceedings are strictly confidential. Members of the public are not permitted. The defendant is not present while evidence is presented against them. Even a judge is not in the Grand Jury room during most of the proceedings, though one is available for legal questions.

The Defendant’s Right to Testify Before the Grand Jury

When charged with a felony, the accused has a statutory right under CPL § 190.50 to testify before the Grand Jury and tell their side of the story. This is a right that must be exercised carefully and with experienced legal guidance.  If the defendant chooses to testify, their attorney may be present in the Grand Jury room — but the attorney cannot speak, make objections, or question witnesses. The attorney is there only to advise the client between questions. Any questions from jurors go directly to the defendant.  If the Grand Jury finds the defendant’s testimony credible, it may vote to dismiss the charges entirely. If it does not, and instead finds the prosecution’s evidence sufficient, it will vote to indict — transforming the original felony complaint into a Grand Jury indictment, which is the formal charge that carries the case forward to trial in Supreme Court.  The decision of whether to testify before the Grand Jury is one of the most consequential choices in a felony case. Testifying gives the accused an early opportunity to persuade the Grand Jury — but it also means testifying under oath without the ability to make objections, and anything said can be used against the defendant at trial. This decision should never be made without consulting an experienced criminal defense attorney.

What the Grand Jury Can Do

The Grand Jury has broad authority to shape the outcome of a felony case. It can:

Vote to indict on the full felony charge as presented by the prosecution, moving the case forward to trial in Supreme Court.  Reduce the charge by finding that the evidence supports only a lesser offense — for example, directing the prosecutor to file a misdemeanor information rather than a felony indictment, or indicting on a lower-level felony than originally charged. Add charges, if the prosecution has presented evidence of additional offenses and asked the Grand Jury to consider them.  Dismiss all charges entirely by voting a “no true bill” — meaning the Grand Jury found insufficient evidence to proceed. When this happens, the criminal case ends. This range of outcomes makes the Grand Jury stage a genuinely important opportunity for the defense. An experienced attorney can advise on whether the accused should testify, what the risks and benefits are, and how to position the case most effectively at this early stage.

Misdemeanor Charges: A Different Process

Unlike a felony, a misdemeanor charge does not go to a Grand Jury. The process is simpler and faster, but it carries its own procedural requirements that must be met for the case to move forward. In a misdemeanor prosecution, the complainant — the person who reported the crime, which can be the alleged victim or the arresting police officer — must sign a sworn written statement called a supporting deposition. This document verifies the facts of the complaint under penalty of perjury. The prosecution must obtain a signed supporting deposition and formally convert the case within 90 days of the defendant’s arraignment. If this is not done within that window, the case must be dismissed. This deadline is a meaningful procedural protection for people charged with misdemeanors, and an experienced defense attorney will track it closely.

Other Key Differences Between Felonies and Misdemeanors

Beyond the Grand Jury and the sentencing range, there are several other practical differences that matter enormously to people facing charges. Where the case is heard. Misdemeanor cases are prosecuted in local criminal courts — such as New York City Criminal Court or Nassau County District Court. Felony cases, once indicted, are prosecuted in Supreme Court, which is a higher-level court with its own procedures and judges. The long-term record. Both felony and misdemeanor convictions appear on your permanent criminal record. However, a felony conviction carries far greater stigma and consequences — including restrictions on the right to vote while incarcerated, limitations on firearms ownership, restrictions on certain professional licenses, and significantly greater impact on immigration status. Immigration consequences. A felony conviction almost always has serious immigration consequences, including potential deportation. Misdemeanors can also carry immigration consequences, particularly if they are classified as Crimes Involving Moral Turpitude or aggravated felonies under federal immigration law — which certain misdemeanors are, regardless of how New York state law classifies them. The 364-day maximum for misdemeanors was specifically designed to help avoid one of these federal immigration triggers.

Employment and licensing. Felony convictions create more significant barriers to employment, professional licensing, and housing than misdemeanors. Many government jobs, financial industry positions, healthcare roles, and licensed professions have strict rules about felony convictions. Plea bargaining. In both felony and misdemeanor cases, cases often resolve through plea agreements rather than trial. In felony cases, a common resolution is a plea to a reduced misdemeanor charge — which avoids a felony conviction and its long-term consequences. An experienced defense attorney will evaluate whether a reduction is possible and fight for the best outcome.

Frequently Asked Questions

What is the difference between jail and prison in New York?

In New York, jail and prison are different. People convicted of misdemeanors serve sentences in local county jails or city facilities. People convicted of felonies and sentenced to more than one year serve their sentences in state prison, operated by the New York State Department of Corrections and Community Supervision. This distinction is reflected in the law — misdemeanors carry definite jail sentences, felonies carry state prison sentences.

Can a felony charge be reduced to a misdemeanor?

Yes, and this happens regularly. A Grand Jury may reduce the charge on its own. Alternatively, the prosecution and defense can negotiate a plea to a lesser charge. Whether a reduction is available depends on the specific facts, the strength of the evidence, the prosecutor’s office, and the defendant’s background. This is one of the most important reasons to have an experienced defense attorney involved early.

Do I have to testify before the Grand Jury?

No. The right to testify before the Grand Jury is exactly that — a right, not an obligation. Whether to exercise it is a strategic decision that should be made with your attorney after a careful review of the facts and evidence. Testifying can sometimes result in dismissal, but it carries real risks and is not the right choice in every case.

What happens if the Grand Jury dismisses my case?

If the Grand Jury votes a no true bill — meaning it finds insufficient evidence — the charges are dismissed and the case ends. A prosecutor generally cannot simply re-present the same case to a different Grand Jury without new evidence or a court order. If no new evidence exists, the case should be dismissed.

What if I already have an attorney but want a second opinion?

We welcome that. A second opinion on a felony or serious misdemeanor case costs you nothing in a consultation and can make a significant difference in how your case is handled.

Contact Sharifov & Associates, PLLC

If you or someone you know is facing felony or misdemeanor charges in New York City or Nassau County, contact us for a consultation. We will analyze your case, explain the process, discuss your defenses, and advise you on the best possible path forward. We also offer second opinions for people who already have counsel but want experienced independent advice.

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Attorney Advertising. This article is for general informational purposes only and does not constitute legal advice or establish an attorney-client relationship. The outcome of any case depends on the specific facts and circumstances involved.