In this two-part series, we endeavor to help our readers understand the law of making graffiti in New York, as well as the usual charges that lie in criminal cases involving graffiti making. While some may view graffiti and “tagging” as a form of art, the New York City Police Department and local District Attorneys beg to differ. With Vandalism Squads and anti-graffiti initiatives in place, law enforcement’s message is clear: tolerance for graffiti making is low and it will not go unpunished. In this blog we discuss the charges commonly found in graffiti cases, most of which involve allegations of “tagging” or painting on public or the private property.
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.
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”