Attorney General Letitia James lauded the passage of legislation permanently repealing N.Y. Penal Law 240.35(4), a nearly two-century-old statute which makes it a criminal violation for groups of individuals to wear masks in public — subject to a possible fifteen-day sentence of imprisonment. On May 11, 2020, Attorney General James sent a letter to Governor Cuomo and legislative leadership pointing out this conflict of law and urging that this specific provision of the penal code be suspended or repealed.

“Wearing masks in public remains necessary for the health and safety of New Yorkers. But there was a clear conflict of law, and repealing this outdated provision is commonsense policy,” said Attorney General James. “Even if it is difficult to imagine a police department enforcing, a prosecutor charging, or a judge upholding such a charge during the COVID-19 crisis, we should not tolerate a situation where following the law is dangerous. I thank Senator Bailey and Assemblymember Quart for their leadership and for permanently repealing this law.”

“We are living through an unprecedented health crisis. Governor Cuomo issued an executive order requiring that New Yorkers wear face masks while in public to help stop the spread of COVID-19, but this mandate conflicts with an outdated penal law provision banning the use of such masks, said Senator Jamaal Bailey. “I am proud to announce that during this session, we have taken steps to remedy this problem by passing legislation expressly repealing that part of the existing statute, which makes it illegal to wear face masks in public. No one should face increased scrutiny and potential criminal liability solely due to a conflict in the law. I would like to thank Majority Leader Andrea Stewart Cousins and Attorney General Letitia James for ensuring the passage of this bill.”

“This is a disaster waiting to happen,” said Assemblymember Dan Quart. “Not only is the continued criminalization of face coverings confusing for all New Yorkers, it exposes men of color to police harassment. If we are to stop the spread of COVID-19, we must ensure that everyone feels safe wearing a mask in public, without the threat of arrest, prosecution, or worse.”

The bill (S8415/A10446-A) would immediately repeal N.Y. Penal Law 240.35(4), which made “being masked or in any manner disguised by unusual or unnatural attire or facial alteration, loiters, remains or congregates in a public place with other persons so masked or disguised, or knowingly permits or aids persons so masked or disguised to congregate in a public place” a criminal violation. The passage of this bill also eliminates a conflict of law with Executive Order Number 202.17 which, effective April 15th, requires New Yorkers over the age of two to “cover their nose and mouth with a mask or cloth face-covering when in a public place and unable to maintain, or when not maintaining, social distance,” unless they are “[un]able to medically tolerate a face-covering.”

(Please visit the Attorney General’s  website to read this press release in Spanish.)

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