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April 13, 2020 - Governor Andrew Cuomo has issued a series of executive orders (202-202.14) to contain COVID-19 and protect the public’s health and well-being. The orders have, among other directives, banned nonessential gatherings of any individuals of any size for any reason; closed movie theaters, casinos, gyms, barbershops, bars, restaurants and other nonessential businesses; and required a 100% workforce reduction for all nonessential businesses. By his most recent order (EO 202.14), the Governor has expressly made a violation of his executive orders, committed on or after April 7, 2020, in addition to any other available enforcement mechanisms, a violation of Public Health Law § 12-b (2), a misdemeanor.

The District Attorney deems public adherence to the Governor’s executive orders and his New York State 10-point policy of vital necessity to contain the virus and protect all of us in Westchester County.

Adherence and deterrence can be achieved through several mechanisms. The District Attorney agrees with the statement of the New York State Pause Assistance Task Force, issued April 1, 2020, that the least invasive enforcement mechanism should be used to obtain adherence. Verbal warnings to disperse or cease the activity or gathering, including when applicable, an advisement of the Government’s order barring non-essential gatherings, should be employed. Such warnings usually will suffice. Civil enforcement through fines and even injunctive relief by state or local health, fire, and building authorities, more coercive measures, may be warranted. Finally, in the most egregious circumstances, or repeated willful violations, criminal enforcement may be appropriate.

If warranted in a particular instance, and the specific facts demonstrate probable cause to establish all the material elements of a particular offense, the District Attorney’s Office will prosecute as a last resort to secure public adherence to the Governor’s emergency orders to stem this horrible pandemic.

The offenses listed here are not exhaustive, but illustrative only. Again, their applicability and proof is uniquely fact-driven, and depends on our satisfying the applicable burden of proof. Potentially applicable offenses for enforcement are:

  • Public Health Law § 12-b (2) (providing that “a person who wilfully [sic] violates any provision of this chapter, or any regulation lawfully made or established by any public officer or board under authority of this chapter, the punishment for violating which is not otherwise prescribed by this chapter or any other law, is punishable by imprisonment not exceeding one year, or by a fine not exceeding two thousand dollars or by both”);

  • Disorderly Conduct, Penal Law § 240.20 (6) (providing that “a person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof . . . He congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse”);

  • Disorderly Conduct, Penal Law § 240.20 (7) (providing that “a person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof . . . He creates a hazardous or physically offensive condition by any act which serves no legitimate purpose”);

  • Obstructing Governmental Administration in the Second Degree, Penal Law § 195.05 (providing that in relevant part, “a person is guilty of obstructing governmental administration when he intentionally obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference . . . .”); and

  • Criminal Nuisance in the Second Degree, Penal Law § 245.45 (1) (providing that “a person is guilty of criminal nuisance in the second degree when . . . By conduct either unlawful in itself or unreasonable under all the circumstances, he knowingly or recklessly creates or maintains a condition which endangers the safety or health of a considerable number of persons . . .”).

For legal assistance and guidance in any particular circumstance or situation, law enforcement is encouraged to contact my office.

On behalf of the entire District Attorney’s Office, I thank all of you for your efforts in keeping us safe and please stay safe.