CRIMINAL MISCHIEF

In Part 1 of this series, we discussed the various elements of the crimes of Making Graffiti and Possession of Graffiti Instruments, two charges which often go hand in hand in these types of cases. However, in cases where actual damage is caused to property, arrestees may find themselves faced with the charge of “Criminal Mischief” [Penal Law §145.00] (note that the Graffiti statute only requires intent to damage property, whereas this statute requires actual damage be caused). Once again, any argument that graffiti is “improving” property, absent permission by the property owner, will fail and graffiti that defaces property will be deemed to also damage it. Any damage to property, regardless of the dollar amount of such damage, would fall under Criminal Mischief in the Fourth Degree, which is a class “A” misdemeanor punishable by up to one year in jail. In cases where damage is alleged to exceed $250.00, the charges may be elevated to Criminal Mischief in the Third Degree, a Class “E” felony which is punishable up to 1 and 1/3 – 4 years in jail for a first time offender. The addition of these charges can sometimes be problematic for those who seek to preserve their records and change the landscape of any plea negotiation.

ENHANCING GRAFFITI PROSECUTIONS

As previously noted, the City has put great effort into preventing the proliferation of graffiti in New York as well as punishing those who create it. The NYPD’s specialized “Vandalism Squad” routinely photographs as much graffiti as they can for the purpose of maintaining a graffiti database. When a person is charged with creating a tag or mural, the detectives will then check to see if an identical tag or mural has been documented in the database and if so, and will then attempt to secure an admission from the suspect that he/she was responsible for making the older graffiti markings as well. Obviously, this can leading to additional charges being filed, which further complicates things for an arrestee, so anyone in such a position should consult with an attorney before making the decision to talk with law enforcement.

THE COURT CASE

Once a graffiti case is passed off to the prosecutor and the case heads to Court, it is common for the government to attempt to seek restitution in the form compensation to the property owner for any cost incurred in undoing the damage caused by the graffiti. Restitution payments can be incorporated in plea deals which may end up being more favorable to those facing graffiti charges, so it is important to have an experienced attorney involved in the process as early as possible to attempt to mitigate the situation. Our team of former prosecutors mounts aggressive campaigns on behalf of each of our clients for the purpose of preserving their liberty, employment and citizenship status. If you have been arrested and charged with any offense involving graffiti or damage to property, do not hesitate to contact one of our former prosecutors at the Law Office of Matthew Galluzzo for a consultation. We are experience both in prosecuting and defending Graffiti offenses, and are ready to put together a sound strategy on your behalf.

Making graffiti on property without the owner’s permission to do so is a class “A” misdemeanor in New York State, punishable by up to one year in jail. In recent years, the City has stepped up it’s effort to combat graffiti writing and enforce this law, with the New York City Police Department going as far as creating an anti-graffiti task force and offering cash rewards for people who continually violate the graffiti statute.

MAKING GRAFFITI

A person who is accused of making graffiti will, lo and behold, be charged with the crime of “Making Graffiti,” which is defined in Penal Law §145.60(2). This law states that “[n]o person shall make graffiti of any type on any building, public or private, or any other property real or personal owned by any person, firm, or corporation or any public agency or instrumentality, without the express permission of the owner or operator of said property.”

“Graffiti” is defined in Penal Law §145.60(2) as the etching, painting, covering, drawing upon or otherwise placing of a mark upon public or private property with intent to damage such property. In other words, the acts of using a paint pen, a liquid aerosol container, a permanent marker, a pencil, a knife or a chisel to carve a marking out of property are all equally illegal under the graffiti statute. It should be noted that any argument that a graffiti maker merely intended to “improve” the property he/she marked will fail if the owner of the property has not provided consent.

POSSESSION OF GRAFFITI INTRUMENTS

The charge of “Making Graffiti” is usually accompanied by the charge of “Possession of Graffiti Instruments,” which is a class B misdemeanor punishable by up to 90 days in jail. According to Penal Law §145.65, graffiti instruments include “any tool, instrument, article, substance, solution or other compound designed to etch, paint, cover, draw upon or otherwise place a mark” if possessed “under circumstances evincing an intent to use the same in order to damage such property.”

In cases where a person is caught in the act of making graffiti with such an instrument, possession with intent to use that instrument to damage such property will be obvious. In cases where individuals are not actually observed using the instrument to make graffiti but are caught possessing something believed to have been used to damage property pursuant to Penal Law §145.60(2), law enforcement may resort to circumstantial methods of proving that the individual intended to use it to damage property. An example would be where a person possesses a marker or aerosol spray can matching the color of graffiti markings on nearby property, or that person has matching paint on his or her fingers, hands or clothing. As always, the easiest way for law enforcement to establish possession with intent (as well as the actual making of the graffiti, for that matter) is to elicit a statement from the individual admitting as such. For this reason, we urge anyone accused of committing a crime to consult with an experience attorney prior to engaging in ANY discussion with law enforcement.

For more information on understanding graffiti arrests, read Part 2 of Understanding the Law of Making Graffiti.

“Understanding the Law of Making Graffiti in New York, Part 1”