A conditional discharge in New York is a criminal sentence that spares you jail time and probation supervision but still leaves a conviction on your record. Under Penal Law 65.05, a judge can impose it when imprisonment would serve no purpose and probation oversight is unnecessary, provided you follow whatever conditions the court sets. The discharge period runs one year for a misdemeanor or violation and three years for a felony. If you comply, you finish the sentence. The conviction, however, stays.
It Is a Sentence, Not a Dismissal
This is the point most people get wrong. A conditional discharge follows a guilty plea or a guilty verdict. You are convicted, and the judge then chooses this sentence instead of jail or probation. The statute says the defendant “shall be released with respect to the conviction for which the sentence is imposed without imprisonment or probation supervision but subject, during the period of conditional discharge, to such conditions as the court may determine.”1New York State Senate. New York Penal Code PEN 65.05 – Sentence of Conditional Discharge The phrase “with respect to the conviction” matters. The conviction exists. You are simply released from custody on conditions.
There is also no probation officer. Supervision provisions in Penal Law 65.10, such as reporting requirements and travel permission, apply only to probation. A conditional discharge is unsupervised. You are expected to meet the conditions on your own, though a court-ordered treatment program will report back to the judge on your participation.2New York State Senate. New York Penal Code PEN 65.10 – Conditions of Probation and of Conditional Discharge
How Long It Lasts
The length depends on the offense:
- One year for a misdemeanor or violation
- Three years for a felony
If the court ordered restitution and you haven’t paid in full by the time the original period ends, the judge can add up to two more years to give you time to finish paying. All the original conditions stay in force during that extension.1New York State Senate. New York Penal Code PEN 65.05 – Sentence of Conditional Discharge
What the Conditions Look Like
The judge picks conditions from Penal Law 65.10 and writes them into the sentence at the time it is imposed.3New York State Senate. New York Code CPL 410.10 – Specification of Conditions What you actually have to do varies with the offense and your circumstances, but common conditions include community service, a court-approved substance abuse program, education or job training, restitution to the victim, and staying out of trouble for the entire period.2New York State Senate. New York Penal Code PEN 65.10 – Conditions of Probation and of Conditional Discharge
Read the sentencing order carefully. Anything not written into it at sentencing is not a condition you are bound by, and anything that is written in can lead to a violation if you skip it.
Fees and Surcharges You Still Have to Pay
Avoiding jail does not mean avoiding costs. Penal Law 60.35 requires a mandatory surcharge and crime victim assistance fee on every conviction, and the judge cannot waive them:
- Felony: $300 surcharge plus a $25 crime victim assistance fee
- Misdemeanor: $175 surcharge plus a $25 crime victim assistance fee
These are on top of any fine or restitution.4New York State Senate. New York Penal Code PEN 60.35 – Mandatory Surcharge, Sex Offender Registration Fee, DNA Databank Fee and Supplemental Sex Offender Victim Fee DWI and DWAI convictions have their own surcharge schedule under Vehicle and Traffic Law 1809.5New York State Senate. New York Vehicle and Traffic Law 1809 – Mandatory Surcharge
What Happens If You Violate
Miss a counseling session, skip your community service hours, fail to pay restitution, or get arrested on a new charge, and the court can revoke your conditional discharge. It cannot do that without following the process in Criminal Procedure Law 410.70. The judge must file a written statement of the alleged violation, and you have the right to appear in court within ten business days and receive a copy.6New York State Senate. New York Code CPL 410.70 – Hearing on Violation
At the hearing, the prosecution must prove the violation by a preponderance of the evidence. That is a lower bar than the reasonable doubt standard used at trial, but it still requires actual proof. A judge decides, no jury. You can cross-examine witnesses and present your own evidence.6New York State Senate. New York Code CPL 410.70 – Hearing on Violation
If the court finds a violation, it can revoke the sentence and resentence you, and that resentence can include jail time that was not part of the original disposition. Picking up a new charge during the discharge period is especially dangerous, because you face the new case and possible revocation of the old sentence at the same time.
Conditional Discharge vs. Adjournment in Contemplation of Dismissal
These two outcomes sound alike and are constantly confused, but the difference is enormous.
An adjournment in contemplation of dismissal, known as an ACD, is authorized by Criminal Procedure Law 170.55. It is not a conviction. The court adjourns the case without a date, and if you stay out of trouble for six months (one year for family offenses), the charges are dismissed automatically. Once dismissed, the arrest and prosecution are treated as if they never happened.7New York State Senate. New York Code CPL 170.55 – Adjournment in Contemplation of Dismissal
A conditional discharge is a conviction. When the period ends, the sentence is complete, but the conviction stays on your record. If your attorney is negotiating and both options are on the table, the gap between them is what matters most for background checks, licensing, housing, and immigration.
Immigration Consequences for Non-Citizens
If you are not a U.S. citizen, this matters more than almost anything else in your case. Federal immigration law defines “conviction” broadly. Under 8 U.S.C. ยง 1101(a)(48)(A), a conviction exists for immigration purposes whenever the person has entered a guilty plea and a judge has ordered “some form of punishment, penalty, or restraint on the alien’s liberty.”8Legal Information Institute (LII). 8 USC 1101(a)(48) – Definition of Conviction
A conditional discharge checks both boxes. You pleaded guilty, and the court ordered conditions that restrain your liberty. That makes it a conviction under the Immigration and Nationality Act regardless of how New York courts label the sentence. Depending on the underlying offense, it can affect visa renewals, green card applications, naturalization, and deportation exposure. For a non-citizen, the choice between an ACD and a conditional discharge can decide whether you stay in the country.
What It Does to Your Record
Because a conditional discharge is a conviction, it does not vanish when the period ends. It will show up on background checks for employers, landlords, and licensing boards. There are two ways to limit that visibility over time.
Petitioning Under CPL 160.59
Criminal Procedure Law 160.59 lets you ask a court to seal up to two eligible convictions, no more than one of which can be a felony. At least ten years must have passed since sentencing or release from incarceration, whichever is later, and you must have no pending cases and no new convictions in that time.9New York State Senate. New York Code CPL 160.59 – Sealing of Certain Convictions Sex offenses, violent felonies, and Class A felonies are excluded.
The Clean Slate Act
New York’s Clean Slate Act, signed in 2023, will eventually automate sealing. The court system has until November 2027 to build the infrastructure. Once running, misdemeanor convictions will be sealed automatically three years after you complete your sentence, and felonies after eight years, provided you pick up no new convictions during those waiting periods. The same exclusions for sex offenses and violent felonies apply.10New York State Courts. New York State’s Clean Slate Act Until then, a CPL 160.59 petition is the only route.
What Sealing Does Not Reach
Sealing limits who can see the record. It does not erase the conviction. Law enforcement, prosecutors, and certain licensing agencies still have access. A sealed conviction can still be counted as a prior if you are charged with a new offense. And for federal immigration purposes, a sealed New York conviction is still a conviction. Sealing protects your privacy in civilian life. It does not undo the underlying legal fact.