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 definite jail term of three months. 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.

For a deeper treatment of misdemeanor charges alone—including DATs, discovery, trial rights, possible dispositions, and sealing—read the firm’s New York misdemeanor defense guide.

One important note on New York’s 364-day misdemeanor maximum: the one-day difference can matter in federal immigration analysis, but only for provisions that use a one-year potential-sentence or actual-sentence threshold. For example, the single-CIMT deportability ground requires a crime for which a sentence of one year or longer may be imposed, while some aggravated-felony categories use a term of imprisonment of at least one year. Other federal rules use different tests, so 364 days can be important without eliminating every possible immigration consequence. Official source

Felony Charges and the Grand Jury

Felony cases generally proceed through a Grand Jury unless the defendant validly waives indictment and agrees to prosecution by superior court information. A Grand Jury may indict when the evidence is legally sufficient and competent, admissible evidence provides reasonable cause to believe the person committed the offense. At least 16 grand jurors must be present and at least 12 must agree on an indictment. There is no general rule requiring a felony case to be presented to a Grand Jury within 45 days of arrest. Instead, a person held on a felony complaint for Grand Jury action who remains in sheriff’s custody for more than 45 days without a specified Grand Jury action may apply for release on their own recognizance. The court must order release unless the defendant caused or consented to the delay, or the prosecution shows statutory good cause. This is a custody-release rule, not a dismissal rule; the period is 30 days for a juvenile or adolescent offender. Grand Jury proceedings are secret, although a defendant who properly requests to testify has a statutory right to do so. CPL § 190.80

The Defendant’s Right to Testify Before the Grand Jury

When a criminal charge is being, is about to be, or has been submitted to a Grand Jury, the accused may exercise the statutory right under CPL § 190.50 to testify on their own behalf by serving the District Attorney—before an indictment or direction to file a prosecutor’s information—with a written request to appear and an address for communications. If the accused has been arraigned on a currently undisposed felony complaint charging an offense that is the subject of a prospective or pending Grand Jury proceeding, the District Attorney must give the accused or counsel notice and a reasonable time to exercise that right. A person who appears under this procedure must sign and swear a written waiver of Grand Jury immunity before testifying. Counsel for a witness who has signed the waiver may be present in the Grand Jury room to advise the witness but may not otherwise participate. The witness is then subject to examination by the prosecutor. The Grand Jury may indict only when the statutory evidence standards are met; it may also dismiss the charge. An indictment is a written Grand Jury accusation filed in superior court, and the defendant is thereafter arraigned on it. Testifying can offer an opportunity to present relevant, competent evidence but also creates risks, including providing the prosecution with possible discovery and impeachment material and making damaging admissions. Whether to testify is a strategic decision requiring counsel’s expert judgment. CPL § 190.50

What the Grand Jury Can Do

Within the statutory options available after hearing and examining evidence, a New York Grand Jury may take several actions, including: CPL § 190.60

Indict a person for an offense supported by the evidence, including an offense not initially designated for the Grand Jury’s inquiry, when the statutory evidence standard is met. An indictment is filed in superior court and is followed by arraignment; it does not itself mean the case will go to trial. The Grand Jury may instead direct the district attorney to file a prosecutor’s information in local criminal court for a supported non-felony offense, subject to CPL § 190.70, or dismiss a charge when the statutory standard for dismissal is met. A dismissal or a decision not to indict on a felony does not always end every potential charge: the court may authorize or direct one resubmission of a dismissed charge, but a second dismissal after that authorized resubmission bars another Grand Jury submission. The Grand Jury stage can be important for the defense, and counsel can advise whether testifying is appropriate and explain the related risks and benefits. CPL §§ 190.60–190.75

Misdemeanor Charges: A Different Process

Most misdemeanor cases are handled in local criminal court rather than by a Grand Jury. A case may start with a misdemeanor complaint, which can rely on hearsay and ordinarily must be replaced by or converted into an information before it can be prosecuted; a defendant may waive prosecution by information. A supporting deposition is one way to add the nonhearsay facts needed for a valid information, but it is not required in every misdemeanor case. It is also a separate right for a defendant charged by a simplified information, such as certain traffic tickets, to request a supporting deposition. When a defendant makes a timely request, the court orders service within 30 days after receiving the request or at least five days before trial, whichever comes first. Failure to comply can make that simplified information facially insufficient and subject to a dismissal motion. There is no universal 90-day deadline after arraignment to convert a misdemeanor complaint. For many misdemeanors punishable by more than three months, CPL § 30.30 gives the prosecution 90 days from commencement of the action, excluding statutory time, to be ready for trial. Whether an unconverted complaint, a missing requested supporting deposition, or an untimely readiness statement leads to dismissal depends on the particular instrument, motion, and facts. CPL § 30.30

Other Key Differences Between Felonies and Misdemeanors

Beyond Grand Jury practice and sentencing ranges, felony and misdemeanor convictions can have different practical consequences. For immigration purposes, however, the New York label is not decisive. A felony is not automatically a federal removal ground, and a misdemeanor can create serious consequences only when it matches a particular federal ground after analysis of its elements, record, sentence, timing, status, and available relief. State sealing restricts access but does not automatically erase a federal immigration consequence. New York’s 364-day maximum can matter for some one-year thresholds, but it does not resolve every immigration issue. Official source

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.

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.