For as long as many New Yorkers can remember, graffiti writing has been prevalent on building walls and subway cars all over the city. Graffiti writing spans from simply "tagging" one's name in multiple locations throughout the city for the purpose of gaining notoriety to composing large murals conveying positive messages to the communities they are created in. It goes without saying that graffiti making is recognized by many as a powerful vehicle for artistic, social, and political expression, whether it be displayed on the walls of art galleries or on the walls of someone else's personal property. Despite the opinions of many who recognize its artistic value, "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. Over the years the city has taken steps to combat graffiti writing and enforce this law, with the New York City Police Department going as far as to create an anti-graffiti task force in 2004 offering cash rewards for people who continually violate the graffiti statute.
The crime of "Making Graffiti" is defined in Penal Law §145.60(2), which 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." Penal Law §145.60(2) states that "graffiti" means the etching, painting, covering, drawing upon or otherwise placing of a mark upon public or private property with intent to damage such property. Whether a person uses a paint pen, a liquid aerosol container, a permanent marker, a pencil, a knife or a chisel to carve a marking out of property is of no consequence – all are covered by the statute and their use in such a fashion can subject that person to prosecution under this statute. In certain circumstances that person may also be charged with possession of a graffiti instrument. It should be noted that any arguments that a graffiti artist is merely intending to "improve" the property he/she marks will fail if the owner of the property has not provided consent.
It is also common for people charged with "Making Graffiti" to be charged with "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 police officer or civilian witnesses catch a person 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. It is important to remember that 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 that he or she in fact made the graffiti.
It should also be noted that people who are charged with Making Graffiti and Possession of Graffiti Instruments may find themselves faced with yet another charge for "Criminal Mischief" [Penal Law §145.00] if it can be proven that damage has been caused to the property (note that the Graffiti statute only requires intent to damage property). Once again, any argument that graffiti is "improving" property, absent permission by the property owner, will fail and graffiti that defaces property is deemed to also damage it. Any damage to property, regardless of the dollar amount of such damage, is covered by Criminal Mischief in the Fourth Degree, which is a class A misdemeanor punishable by up to one year in jail. In cases where the damage exceeds $250.00, the charges can be elevated to Criminal Mischief in the Third Degree, a Class E felony which is punishable up to 11/3 – 4 years in jail for a first time offender.
The Bronx District Attorney’s Office has special policies in place in an effort to combat the prevalent graffiti problem in the Bronx. Prosecutors there usually require anyone convicted of a graffiti offense, or even a lesser violation charge, to participate in a five day community service program specifically geared towards reversing the damaging effects of graffiti. In almost every case where a person is arrested for making graffiti and/or criminal mischief, prosecutors will seek "restitution" from the person who caused the damage, meaning a specific dollar amount paid to the owner of the damaged property which is sufficient to provide compensation for any costs incurred by undoing the damage caused. Restitution payments are 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 represent you if you have been arrested and charged with any offense involving damage to property, whether by making graffiti or otherwise.
If you or a loved one has been arrested or issued a desk appearance ticket and charged with Making Graffiti, Possession of a Graffiti Instrument, or Criminal Mischief, contact us at Galluzzo and Arnone LLP for a consultation.