Criminal Solicitation Defense in New York

The Crime of Asking

Criminal solicitation is the charge for asking someone else to commit a crime. Nothing has to happen afterward. Under Penal Law Article 100, a person is guilty when, with intent that another person engage in conduct constituting a crime, they solicit, request, command, importune, or otherwise attempt to cause that person to do it. The other person can refuse, laugh it off, or turn out to be an undercover officer, and the charge still stands. Most of these cases are built on a text message, a recorded phone call, a jail call, or a conversation with someone who went to the police.

Attorney Andrew DeLuca defends solicitation charges at every level, from the violation to the class C felony, in the town, village, city, and county courts of Saratoga, Warren, Washington, Fulton, and Montgomery Counties. The defense in these cases turns on two words in the statute, intent and crime: what you actually meant, and whether what you asked for was a crime at all.

To talk to Andrew directly, at any time call 518-245-9109

Sentencing by Degree

• Violation (5th): up to 15 days in jail and a $250 fine. No probation, because probation requires a crime.
• Class A misdemeanor (4th): up to 364 days in jail, a fine up to $1,000, or probation of two or three years.
• Class E felony (3rd): indeterminate sentence up to 4 years, or a definite local jail term of a year or less, or probation of three to five years.
• Class D felony (2nd): indeterminate sentence up to 7 years, with the same jail and probation alternatives.
• Class C felony (1st): indeterminate sentence up to 15 years; probation remains available, but the one-year local jail option does not.

None of the solicitation felonies is a violent felony under Penal Law 70.02, so a first felony offender is sentenced under the indeterminate rules of Penal Law 70.00, with a minimum of at least one year and no more than one-third of the maximum. The felony fine is up to $5,000. A second felony offender within ten years faces mandatory state prison.

If the Crime Actually Happened

Solicitation is the charge for the crime that did not happen. When the person you asked goes through with it, Penal Law 20.00 makes you criminally liable for the completed crime itself, because accessorial liability uses the same verbs: a person who solicits, requests, commands, or importunes another to commit a crime, with the required mental state, is liable for that crime. In that situation the solicitation count is usually the least of the problem, and the defense becomes the defense to the underlying charge.

Renunciation: The Defense That Requires Stopping the Crime

Penal Law 40.10(4) gives a solicitation defendant an affirmative defense with three conditions: the crime solicited was not in fact committed; the defendant renounced the criminal purpose voluntarily and completely; and the defendant prevented the commission of the crime. All three are required. Under 40.10(5), a renunciation is not voluntary and complete if it was motivated in whole or in part by a belief that detection had become more likely, by the crime becoming harder, or by a decision to postpone it or switch to another victim or objective. The practical meaning is that calling it off because you got nervous is not a defense, but calling the other person and stopping them, before anything happened, can be. Because it is an affirmative defense, the defendant carries the burden of proving it.

How Solicitation Cases Are Defended

• Intent. The full message thread, the relationship, and what came before and after decide whether the words were a genuine request or venting, hyperbole, or a bad joke. Prosecutors often charge from a screenshot; the defense works from the whole conversation.
• Whether a crime was solicited. The conduct requested has to be a crime, and the degree depends on which crime. Asking someone to do something ugly but lawful is not solicitation, and asking for a misdemeanor is a violation, not a felony.
• Entrapment. When the request was induced by a police officer or an informant working with police, entrapment under Penal Law 40.05 is an affirmative defense. Sting cases are examined for who raised the idea first and how hard it was pushed.
• The witness. Many solicitation cases rest on one person’s account of a conversation. If that witness could be considered a participant, CPL 60.22 bars a conviction on their testimony alone without corroboration connecting the defendant to the offense.
• The charge level. The ages of the parties and the class of the crime solicited set the degree. A miscounted age or an overstated underlying crime moves the case down a class, sometimes from felony to misdemeanor.

Records, Sealing, and Young Defendants

A fifth-degree violation is sealed automatically under CPL 160.55 when the case ends. Misdemeanor and felony solicitation convictions fall under the Clean Slate Act, CPL 160.57, which seals eligible misdemeanors after three years and felonies after eight, provided there are no new convictions, no pending charges, and supervision has ended. Defendants who were 16, 17, or 18 at the time of the offense are eligible for youthful offender treatment under CPL 720.10 at every degree, since no solicitation offense is a class A felony, an armed felony, or a sex offense. Details are on our record sealing page.

Solicitation Cases in Saratoga County and the Capital Region

Violation and misdemeanor solicitation charges are heard in the local town, village, and city courts, including Saratoga Springs City Court and Glens Falls City Court; the felony degrees are prosecuted in county court in Ballston Spa, Lake George, Fort Edward, Johnstown, or Fonda. Related pages: Conspiracy, Attempt to Commit a Crime, Felony Defense, What Happens After an Arrest, and the court guides.