New York Penal Law § 230.40: Permitting Prostitution

New York Penal Law § 230.40 addresses the criminal offense of permitting prostitution. Under this law, individuals who have possession or control over a property or vehicle and knowingly allow it to be used for prostitution can be charged with permitting prostitution. The statute requires individuals to take reasonable steps to stop illegal activities when they become aware of them. Importantly, this law does not require the individual to directly participate in prostitution—only that they fail to prevent it when they know it is happening on their premises. If you are facing such charges, it is crucial to consult with an experienced New York sex crimes lawyer to understand your rights and options.

Under NY Penal Law § 230.40, a person is guilty of permitting prostitution if they control a premises or vehicle and know it is being used for prostitution or to advance prostitution. "Advancing prostitution" refers to facilitating or promoting the act of prostitution, which may involve actions such as providing services or goods that support prostitution or encouraging others to engage in it.

To be convicted of permitting prostitution, the prosecution must prove the following:

• The defendant has possession or control over a premises or vehicle. For a charge of permitting prostitution to apply, the defendant must have possession or control over the property or vehicle where prostitution is happening. This could be a home, apartment, office, business, or vehicle. Possession or control doesn’t require ownership; it simply means that the individual has the authority to allow or prevent the use of the premises. Tenants, employees, and others with control over the property may also be charged under this statute if they meet the necessary conditions.
• The defendant knew that prostitution was taking place or that the premises were being used to advance prostitution. The second key element in permitting prostitution is the defendant’s knowledge of the activities. The defendant must be aware that prostitution is occurring on their property. This knowledge can be direct or inferred from the circumstances. For example, if neighbors have complained, if law enforcement has notified the individual, or if there are other clear signs of prostitution-related activity, the defendant may be presumed to have knowledge. New York law does not allow ignorance as a defense—if you are aware of the activity and fail to act, you can be charged under this statute.
• The defendant failed to take reasonable steps to stop or prevent the activity. The final element of the offense is the failure to take reasonable steps to stop the prostitution once the defendant becomes aware of it. This requirement puts the onus on the property owner or controller to prevent illegal activities. Reasonable steps could include evicting individuals involved in the prostitution, notifying law enforcement, or taking other actions to stop the illegal activities from continuing. If the defendant makes no effort to prevent prostitution despite having knowledge, they can be charged under this statute.

In People v. Gallucci, 62 A.D.2d 1129 (N.Y. App. Div. 1978), the court addressed what a person must know or be aware of to be charged under Penal Law § 230.40 (permitting prostitution). The defendant, who owned and managed a restaurant, hosted a stag party where two women performed a sexually explicit show. Afterward, those women moved to a van parked behind the restaurant and allegedly engaged in prostitution. Although the prostitution involved individuals who had been inside the defendant’s establishment, the court found there was insufficient evidence that the defendant actually knew, or should have known, that prostitution was occurring in the van. Because § 230.40 requires a person in control of the premises to be aware of prostitution on that property and fail to stop it, the court concluded that the facts did not show the defendant permitted prostitution within the meaning of the statute. Consequently, the charge under § 230.40 was unwarranted.

Though permitting prostitution is classified as a misdemeanor, it can be connected to more serious offenses under New York law. These include:

• Promoting Prostitution (NY Penal Law § 230.20) – This crime involves knowingly promoting or facilitating prostitution, such as acting as a "pimp" or providing goods or services that support prostitution. Promoting prostitution is a class D felony and carries more severe penalties than permitting prostitution.
• Sex Trafficking (NY Penal Law § 230.34) – This is a more serious offense involving the trafficking of individuals for prostitution. It is a felony with significant penalties, including lengthy prison sentences.

There are several potential defenses that can be raised in response to a charge of permitting prostitution. A skilled experienced sex crimes attorney serving New York can help explore these defenses and determine the best strategy for your case.

• Lack of Knowledge: If the defendant did not know that prostitution was taking place on their property, they cannot be convicted under this statute. For example, if the defendant was absent or unaware of any clear signs of prostitution, they may have a valid defense.
• Efforts to Abate the Activity: If the defendant took reasonable steps to stop the prostitution, they might avoid a conviction. This could involve reporting the activity to law enforcement, attempting to evict individuals involved in prostitution, or taking other reasonable actions to stop the illegal activity.
• Lack of Control or Possession: A defendant might argue that they did not have control over the premises or vehicle where the prostitution was happening. If they could not influence the activities taking place, they could claim they should not be held liable.
• Entrapment: If law enforcement induced the defendant to allow prostitution to take place, they might claim entrapment. Under New York law, entrapment occurs when law enforcement creates the opportunity for criminal activity that the defendant would not have engaged in without their involvement. However, the defense of entrapment is complex and requires proof that the police induced the defendant to commit a crime.

Permitting prostitution is classified as a class B misdemeanor in New York. While this offense is less severe than felony charges, it still carries significant penalties. A conviction can result in:

• Jail Time: A class B misdemeanor is punishable by up to three months in jail. Although jail time is not mandatory, it is a potential consequence of a conviction.
• Fines: The court may impose a fine, the amount of which will vary depending on the circumstances of the case and the defendant’s prior criminal history.
• Probation: Instead of jail time, the court may impose probation, which could last for up to three years. Conditions of probation may include regular check-ins with a probation officer, community service, or mandatory counseling.
• Collateral Consequences: A conviction for permitting prostitution can have long-lasting impacts beyond the legal penalties. A criminal record may hinder employment opportunities, restrict access to housing, and negatively affect relationships and personal reputation. Additionally, a conviction could affect one’s ability to obtain certain licenses or permits required for certain businesses or professions.

It is important to note that a conviction for Permitting Prostitution in violation of § 230.40 does not trigger registration under New York’s Sex Offender Registration Act (SORA). Although many prostitution-related offenses can carry serious penalties, Permitting Prostitution is not one of the crimes that typically requires registration as a sex offender.

A person is guilty of permitting prostitution when, having possession or control of premises or vehicle which he or she knows are being used for prostitution purposes or for the purpose of advancing prostitution, he or she fails to make reasonable effort to halt or abate such use.

Permitting prostitution is a class B misdemeanor.

Permitting prostitution under NY Penal Law § 230.40 is a serious offense with significant legal consequences. If you are facing charges related to permitting prostitution, it is important to seek legal counsel from an experienced sex crimes attorney in New York. A conviction can result in jail time, fines, and long-term effects on your personal and professional life.

If you or someone you know is facing charges related to permitting prostitution or any other sex crime, don’t hesitate to reach out for legal assistance. Contact Stephen Bilkis & Associates today for a free consultation. Our team of experienced sex crimes attorneys serving New York is here to help you navigate the complexities of your case. Call us at 800.696.9529 to speak with a skilled attorney who will fight to protect your rights. We proudly serve clients throughout Manhattan, Brooklyn, Queens, the Bronx, Staten Island, Long Island, Nassau County, Suffolk County, and Westchester County. Let us provide the strong defense you need to achieve the best possible outcome in your case.