New York Criminal Defense Blawg

Having practiced criminal law for ten years, we have seen hundreds of cases in New York City where people have been arrested and charged with felonies or misdemeanors because they intentionally or recklessly caused damage to another person’s property. These cases frequently occur in domestic situations where an argument between family members, spouses or domestic partners escalates and someone punches a wall, breaks a window, or damages any personal property in a residence belonging to a spouse or relative. We’ve also seen many cases where people punch out or hurl objects into storefront windows, quite often because they’ve had too much to drink and sober up just in time to find themselves in handcuffs. Another common case involves disputes between automobile drivers, where one driver or passenger gets out of a vehicle after a traffic dispute over a parking spot or over who had the right of way, and ends up knocking off the opposing driver’s side view mirror, or uses an object to break windows or dent the vehicle. Making graffiti, while considered by many as a form of artistic expression and even beautification, is not so viewed by the NYPD and the DA’s office (See our prior blawg dealing with the nuances of graffiti charges in NY). Any case involving the damage of another person’s property is taken seriously by the District Attorney’s Office which will often seek to procure a sentence involving restitution to compensate the property owner for the damage, as well as community service, probation, or even a term of incarceration.

Here are some of the common charges which are applicable in these types of cases:

Criminal Mischief.

Criminal mischief is a broad crime encompassing intentional and reckless damage to property. The degrees are distinguished primarily by the monetary value of the damage caused. There are provisions for intentional and reckless damage to property, damage to abandoned buildings, even the use of explosives to cause damage. Anyone who damages the property of another will be charged under one of these sections:

S 145.00 Criminal mischief in the fourth degree.

  A person is guilty of criminal mischief in the fourth degree when,

having no right to do so nor any reasonable ground to believe that he

has such right, he:

  1. Intentionally damages property of another person; or

  2. Intentionally participates in the destruction of an abandoned

building as defined in section one thousand nine hundred seventy-one-a

of the real property actions and proceedings law; or

  3. Recklessly damages property of another person in an amount

exceeding two hundred fifty dollars.

  Criminal mischief in the fourth degree is a class A misdemeanor.

S 145.05 Criminal mischief in the third degree.

  A person is guilty of criminal mischief in the third degree when, with intent to damage property of another person, and having no right to do so nor any reasonable ground to believe that he has such right, he damages property of another person in an amount exceeding two hundred

fifty dollars.

  Criminal mischief in the third degree is a class E felony.

 S 145.10 Criminal mischief in the second degree.

  A person is guilty of criminal mischief in the second degree when with intent to damage property of another person, and having no right to do so nor any reasonable ground to believe that he has such right, he damages property of another person in an amount exceeding one thousand five hundred dollars.

  Criminal mischief in the second degree is a class D felony.

S 145.12 Criminal mischief in the first degree.

  A person is guilty of criminal mischief in the first degree when with

intent to damage property of another person, and having no right to do

so nor any reasonable ground to believe that he has such right, he

damages property of another person by means of an explosive.

  Criminal mischief in the first degree is a class B felony.

Auto Stripping. Where a person is charged with causing damage to an automobile, that person is subject to prosecution for Auto Stripping, even if the vehicle is abandoned. Prosecutors favor securing convictions for Auto Stripping in the Third degree because any future charge for Auto Stripping within 5 years is automatically bumped up to a E felony:

§ 165.09  Auto stripping in the third degree.

    A person is guilty of auto stripping in the third degree when:

    1.  He or she removes or intentionally destroys or defaces any part of a vehicle, other than an abandoned vehicle, as  defined  in  subdivision one of section one thousand two hundred twenty-four of the vehicle and traffic law, without the permission of the owner; or

    2. He or she removes or intentionally destroys or defaces any part of an abandoned  vehicle,  as  defined  in  subdivision one of section one thousand two hundred twenty-four of the vehicle and traffic law,  except that it is a defense to such charge that such person was authorized to do so pursuant to law or by permission of the owner.

    Auto stripping in the third degree is a class A misdemeanor.

Criminal Tampering.

This charge applies when someone breaks a payphone, or unlawfully tampers or makes a connection with property of a gas, electric, sewer, stream, water-works, or with the property of any public carrier or a public utility operated by a municipality or district:

S 145.14 Criminal tampering in the third degree.

  A person is guilty of criminal tampering in the third degree when,

having no right to do so nor any reasonable ground to believe that he

has such right, he tampers with property of another person with intent

to cause substantial inconvenience to such person or to a third person.

  Criminal tampering in the third degree is a class B misdemeanor.

S 145.15 Criminal tampering in the second degree.

  A person is guilty of criminal tampering in the second degree when,

having no right to do so nor any reasonable ground to believe that he

has such right, he tampers or makes connection with property of a gas,

electric, sewer, steam or water-works corporation, telephone or

telegraph corporation, common carrier, or public utility operated by a

municipality or district; except that in any prosecution under this

section, it is an affirmative defense that the defendant did not engage

in such conduct for a larcenous or otherwise unlawful or wrongful

purpose.

  Criminal tampering in the second degree is a class A misdemeanor.

S 145.20 Criminal tampering in the first degree.

  A person is guilty of criminal tampering in the first degree when,

with intent to cause a substantial interruption or impairment of a

service rendered to the public, and having no right to do so nor any

reasonable ground to believe that he has such right, he damages or

tampers with property of a gas, electric, sewer, steam or water-works

corporation, telephone or telegraph corporation, common carrier, or

public utility operated by a municipality or district, and thereby

causes such substantial interruption or impairment of service.

  Criminal tampering in the first degree is a class D felony.

Other possible charges arising out of situations involving property damage:

Reckless Endangerment of Property.

S 145.25 Reckless endangerment of property.

  A person is guilty of reckless endangerment of property when he

recklessly engages in conduct which creates a substantial risk of damage

to the property of another person in an amount exceeding two hundred

fifty dollars.

  Reckless endangerment of property is a class B misdemeanor.

Unlawfully posting advertisments.

S 145.30 Unlawfully posting advertisements.

  1. A person is guilty of unlawfully posting advertisements when,

having no right to do so nor any reasonable ground to believe that he

has such right, he posts, paints or otherwise affixes to the property of

another person any advertisement, poster, notice or other matter

designed to benefit a person other than the owner of the property.

  2. Where such matter consists of a commercial advertisement, it shall

be presumed that the vendor of the specified product, service or

entertainment is a person who placed such advertisement or caused it to

be placed upon the property.

  Unlawfully posting advertisements is a violation.

 Making Graffiti.

If you or anyone you know has been accused of damaging the property of another, contact an experienced criminal attorney immediately. At Galluzzo and Johnson LLP, our team of former prosecutors will work to negotiate the best result possible for you. It is important to have an experienced lawyer represent you in any matter which can result in incarceration, or subject you to having a permanent criminal record.

Many juveniles in New York City are arrested every week and given a family court summons for a crime that would otherwise subject him or her to a permanent criminal record.  A juvenile is “defined” in the Penal Law as a person under the age of sixteen years old.  To be more precise, it is actually a defense to a criminal charge that the defendant was less than sixteen at the time the offense was allegedly committed.  See Penal Law 30.00.  Often times juveniles are arrested for such offenses as Criminal Possession of Marijuana in the Fifth Degree, Penal Law 221.10, Unlawful Possession of Marijuana, Penal Law 221.05, Petit Larceny, Penal Law 155.25, Assault in the Third Degree, Penal Law 120.00, Criminal Mischief, Penal Law 145.00, and Making Graffiti, Penal Law 145.60.  However, in other cases, the charges can be more serious, especially where a victim has been killed or seriously injured or a felony charge, such as a drug sale, are involved.

The Family Court process can be daunting for a family inexperienced in defending against allegations such as these, even in juvenile arrest matters.  A young defendant and his or her family will most likely be interviewed by probation and if the charge warrants it, be brought before a judge where an adjudication of juvenile delinquency can be made either through an admission or, in some cases, after a fact-finding hearing.  The Family Court Act requires the attendance of the juvenile respondent and his or her counsel to be present during such a hearing.  It is for this reason, that it is important that your child’s rights are protected by a lawyer experienced in handling juvenile arrest cases.  If an adjudication of juvenile delinquency is made, the Family Court Act requires a dispositional hearing to take place within 10 days of the adjudication (if the charge is a felony) or within 50 days of the adjudication (for all other cases).   The possible outcomes of a dispositional hearing for a juvenile defendant are three: (i) a conditional discharge, which for all intents and purposes is an order from the court requiring the juvenile to stay out of trouble and comply with whatever other conditions the court deems necessary to correct the behavior, (ii) probation, which would imply reporting to a probation officer for a set period of time, or, in extreme cases (iii) placement in a juvenile detention facility.  The court’s decision will be the result of a balancing of the needs of the juvenile against the need to protect the community.

Simply put, should a loved one or family member of yours require assistance in sorting out a family court or adult criminal matter, you should call Galluzzo & Johnson LLP.

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.

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 have been charged with Making Graffiti, Possession of a Graffiti Instrument, or Criminal Mischief, contact us at Galluzzo and Johnson LLP for a consultation.

Unfortunately, it happens to most of us. At some point in our life, we get a call that the police have arrested a friend, family member, or other loved one. In addition or in preparation for securing competent criminal defense counsel, there are several things that you can do on the internet in the early stages of the arrest-to-sentence process to locate that person, gain basic information about his or her case, and support him or her as you see fit.

The first thing to do would be to look up the person’s name in the court system to see if they actually have a pending case. This can be done on the New York State Unified Court System’s eCourts Webcrim system. After logging in, you can input the name, case number or other identifying information about your loved one to determine the court information about their case. This will give you the basic case details, including the defendant’s Case number (sometimes referred to as a Docket number), his or her date of birth, NYSID number, details concerning the time of the incident that is the subject of the case, the time of arrest, the arresting agency, the name of the attorney or institutional defender currently representing him or her, and his or her next court appearance.

As noted in the arrest-to-sentence information linked above, the first time that an arrestee will see a judge after his or her arrest will be at a criminal court arraignment proceeding. If your friend or loved one has already been arraigned and bail was set or he or she was remanded into custody by the judge, you can find out where he is being held by accessing the New York City (or New York State) Department of Corrections website. On the New York City Department of Correction’s website, for example, you can access his or her NYSID number, Book and Case Number, and the name of the facility where he or she is currently being held. There is also a link to a informational page explaining how to send an inmate money, clothing, food, or other property.

This information will serve you well as you search for a lawyer to represent your loved one’s interests in the criminal justice system. You should print up as much of it as you can and bring it with you for your initial consultation with his or her lawyer. You can find links to all of these sites as well as other information concerning the criminal justice system on Galluzzo & Johnson LLP’s website or call us at (212) 918-4661 for more information.