New York Penal Law 145.65: What is an “Instrument” for the Purposes of Possession of Graffiti Instruments

Although not often litigated by New York criminal defense lawyers where a client is charged with Possession of Graffiti Instruments, pursuant to New York Penal Law section 145.65, it is important to understand or identify what constitutes a “graffiti instrument.” Certainly, some tools are obvious. Cans of spray paint, markers, etc. are obvious “graffiti instruments” in the right circumstances. Yet, why are those objects “graffiti instruments” and what is the basis of that definition?

New York Penal Law 145.65 sets forth that one is guilty of Possession of Graffiti Instruments when one possess any instrument (even a substance or solution) designed or commonly used to etch, paint, cover or draw upon property. The definition is further expanded to address permission or authority to make such marks and circumstances evincing the intent to damage the property of another. These terms put together establish graffiti instruments.

In People v. Torres, 184 Misc.2d 429 (NY Cty Crim. Ct. 2000), a Manhattan criminal court judge found that glue and posters were in fact instruments of graffiti as set forth in NY PL 145.65. In determining as such, the court reasoned that “If it is in fact the case that the Legislature intended that any ‘covering’ of property-such as covering property with glue and paper-with the intent to damage it constitutes graffiti, then any tools or substances commonly used to cover property with glue or paper would obviously be within the statute.” Therefore, while not commonly thought of as a “graffiti instrument” similar to a can of spray paint, if one has the intent to damage property and cover that property, the tools or means to do so, such as glue and posters, are the “instruments” to perpetrate the crime.

What should be taken away from this entry is that if you are charged with, arrested for or accused of Possession of Graffiti Instruments in New York, don’t think that the “instrument” must be an obvious tool of the trade. If it is used, to etch, cover, paint, etc., there is an intent to damage and you do not have the permission or authority to do so, then this charge is a likely and potential offense that you will face.

For further information on New York graffiti crimes please follow the link to the appropriate section of the Crotty Saland PC website. Further information on New York graffiti crimes as well as legal decisions and newsworthy cases on these an other offenses can be be found at the New York Criminal Law Blog at NewYorkCriminalLawyerBlog.Com.

Crotty Saland PC is a New York criminal defense firm. Representing the accused throughout New York City and the region, the New York criminal defense attorneys at Crotty Saland PC have extensive experience on both sides of the law having served as Manhattan prosecutors prior to starting the firm.

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