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”

As former prosecutors who specialize in criminal defense, our attorneys at The Law Office of Matthew Galluzzo have a great deal of experience assisting people who find themselves in the unfortunate position of being charged with weapons possession, in particular what are commonly referred to as ‘gravity knives.’ Indeed, many of our clients lawfully purchase these knives from such on-line marketplaces as Amazon.com or in popular brick-and-mortar stores like K-Mart. Completely unaware that the possession of such knives is illegal in New York, these clients openly carry the knives on their belts, or clipped to their pockets, only to find themselves in handcuffs and going to criminal court charged with the Class “A” misdemeanor of Criminal Possession of a Weapon in the Fourth Degree (which is punishable by up to 1 year in jail).

So what exactly is a gravity knife? A “Gravity knife” is defined under New York Penal Law 265.01(5) as “any knife which has a blade which is released from the handle or sheath thereof by the force of gravity or the application or centrifugal force which, when released, is locked in place by means of a button, spring, lever or other device.” In practical terms, any knife which a police officer can open with the flick of a wrist and which locks into place falls under this definition. Not surprisingly, police officers are particularly adept at opening and locking the knives into place.

Although the Second Circuit Court of Appeals has held that the gravity knife ban is not unconstitutionally vague for the moment, they have not ruled out that a future challenge to the ban on different grounds might be successful. Nevertheless, for the moment, it is still illegal to carry a gravity in New York State. If you find yourself in a position where you have been arrested and charged with possessing a gravity knife, you need to contact an experienced criminal defense attorney immediately.

Many (if not most) of our first-arrest clients accused of possessing gravity knifes are issued “Desk Appearance Tickets” by the police department, a fact which can be deceiving. A person who receives a ticket is commanded to appear in Court on a future date, and failure to do so – as we ALWAYS admonish our readers – can and WILL result in a warrant being issued for your arrest.

Additionally, if you intend to simply “show up” in Court and plead guilty to the charge, you will incur a permanent criminal record. This is why it is imperative to consult with an attorney. To be sure, some of the local District Attorney’s Offices take weapons cases – gravity knife cases in particular – very seriously, and will not make non-criminal offers at your first Court appearance, if at all. Thus, it is absolutely necessary to enlist the help of an experienced attorney who can convince the prosecutor in your case to deviate from the weapons charge and preserve your record and future. Our team of former prosecutors have a proven track record and a long list of excellent results in such cases.

If you or a loved one are charged with possessing a gravity knife, contact our firm immediately. Our lawyers are on call ready to help.

What has changed however, is the New York Police Department’s approach to marijuana arrests. In short, you can absolutely still be charged with a crime if caught smoking or possessing marijuana in public. The NYPD, however, has announced that it will cease making full-blown arrests and instead will issue summonses in these cases with limited exceptions (if the person they stop is on probation or parole, has outstanding warrants or a history of violence, or is in violation of another law (ie, DWI drugs).

A summons is a pink ticket handed to you by a police officer which can charge you with a crime or a violation. If you receive one, it means you have been commanded to answer misdemeanor and/or violation charges in a Court of law. Failure to abide by the summons and appear in Court can and will result in a warrant being issued for your arrest. So you (or a lawyer who can go on your behalf – see below) must answer the ticket personally.

The decision to issue summonses as opposed to put arrestees through the system comes on the heels of Manhattan DA Cyrus R. Vance announcing that his office will now declining to prosecute (“DP”) low-level marijuana possession cases. This means that most folks who are caught smoking/possessing weed in Manhattan can expect to go to summons Court only. As it were, the Queens DA has indicated he is not as eager to DP cases and will enforce the law as long as it is still on the books.

So what should you do now if you’re unfortunate enough to be issued a summons to answer a marijuana charge? You should contact us immediately. There are a number of things we can do to help. For example: let’s say you were visiting New York on the day you were issued the summons and will no longer be in the City on the day of the scheduled Court date? Luckily, our attorneys can appear on your behalf, armed with the proper documentation which we can prepare for you and which authorizes us to dispose of the case without you being present. Likewise, if you reside in New York, can’t miss work, or simply want to avoid having to go to the Criminal Courthouse altogether, you should contact us immediately The worst thing you can do is nothing.

Vance’s policy change comes on the heels of a disturbing (albeit unsurprising) study which revealed that African-Americans are arrested for low-level marijuana offenses at a rate 8 times that of whites in New York City, and 15 times more than white people in Manhattan alone. The critical component of the study of course indicated that both African-American and white folks use marijuana at the same rate.

In light of these (and other) statistics, beginning on August 1, 2018, the Manhattan District Attorney’s Office will simply stop prosecuting low-level criminal cases involving smoking and possession of marijuana, with few exemptions. Yes, you read that correctly: If you are arrested for smoking a marijuana cigarette, joint, blunt or pipe in public, or otherwise possess a small enough quantity of marijuana, the Manhattan DA’s office will not prosecute you as of that date. DA Vance expects that the number of marijuana cases handled by the system annually to be reduced from roughly 5,000 to 200 as a result.

What if I am arrested for possessing or smoking marijuana before August 1, 2018?

In the meantime, between now and August 1, if you are arrested for smoking or possessing marijuana for the first time you should be offered a 90-day marijuana ACD. If you are arrested for the same charge and you have previously received a marijuana ACD, you may receive a 6-month ACD this time around, unless you fall under one of the DA’s Office’s “public safety” exemptions. [It is worth noting that the Criminal Procedure Law in New York calls for a 1-year ACD in Marijuana offenses (See CPL 170.56)]. The Manhattan DA’s Office has indicated that they will not abide by this interim policy in cases where defendants have been convicted of a violent felony in the last ten years , have a conviction for any sex crime-related offense, or are under a particular arrested alert by their Office’s Crime Strategies Unit, so if you fall under one of those categories, the new policy will not apply.

What is an “ACD”?

An “ACD” is an acronym for an Adjournment in Contemplation of Dismissal, and it means just that: your case will be adjourned with the expectation of being dismissed at the end of the ACD’s term. So, for example, if you were to receive a 90-day ACD today, your case will be marked down for dismissal in 90 days assuming you do not incur any new arrests. The critical caveat with the ACD is that your criminal case remains open for the entire ACD period. This can have important consequences for non-citizens, or those who expect to be subjected to a background check for employment opportunities, for example.