Criminal Mischief – NY Penal Law 145.00: Lacking Intent as a Defense

You have just been arrested for Criminal Mischief, NY Penal Law 145.00 and you are waiting to see the judge after going through Manhattan Central Booking. Earlier in the day you got into a fight and threw a metal garbage bin from the corner of the street at some guy. Fortunately, you missed him, but the can hit a parked car causing a scratch that will cost the owner $200 to repair. You tell your NY criminal defense attorney that you intended to hit the guy and you never wanted to damage the vehicle. Well, your criminal defense attorney, if he is skilled and experienced, may have some good news for you.

According to Penal Law 145.00, a person is guilty of Criminal Mischief in the Forth Degree when, having no right to do so nor any reasonable ground to believe the he has such a right, he, under subsections (1) and (3), intentionally damages property of another person or recklessly damages property of another person in an amount exceeding two hundred fifty dollars.

Assuming the the prosecution’s theory falls under subdivision one, is the intent to damage another person’s property satisfied where the intent was to cause injury to another person, but as a result property was damaged instead? In other words, can the intent be transferred? In the scenario above, your intent was to hurt the person, but your bad aim caused damage to a car that you did not want to hit.

The answer to this question has been settled by the courts numerous times. Simply put, the intent cannot be transferred and the intent to damage property must be specifically for that purpose. See People v. Summer, 64 A.D.2d 658 (2nd Dept. 1978) ( to be guilty of criminal mischief in the fourth degree, one must have the specific intent to damage the property of another); People v. Bryant, 85 A.D.2d 575 (1st Dept. 1981) (evidence was insufficient to sustain conviction of criminal mischief in fourth degree upon theory that defendant intentionally damaged victim’s eyeglasses, in view of lack of evidence of specific intent directed toward eyeglasses as opposed to victim himself).

While the intent to cause damage is specific and critical for any conviction to stand in a prosecution for Criminal Mischief under this theory, prosecutors may still be able to proceed against you if your actions were reckless and the damage exceeds $250. If that is the theory, then another analysis is necessary. In the hypothetical scenario above where the damage is less than $250, an experienced criminal defense attorney, such as the former Manhattan prosecutors at Crotty Saland PC, must aggressively seek a complete dismissal of the charges against you.

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