In this blog, we continue our discussion of the common criminal charges people face when accused of Making Graffiti.
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.