Can Prosecutors Avoid the Permission to Make Graffiti Element in a Possession of a Graffiti Instrument Arrest Pursuant to NY PL 145.65

Whether its an unapproved mural or a small tag, in order for a judge or jury to convict you of Possession of a Graffiti Instrument, New York Penal Law 145.65, an Assistant District Attorney must prove beyond a reasonable doubt: (1) your intent to damage property (2) your possession of any tool, instrument or compound designed to etch, paint, cover… or otherwise place a mark upon a piece of property and (3) you knew you had no permission or authority to do so. Although this definition seems fairly straight forward, the question presented in this blog entry is whether or not the prosecution can circumvent the third element of PL 145.65 and prove the crime of Possession of Graffiti Instruments where the intent to damage property is clear and the tools in question are those for actually making graffiti.

In the case of People v. Gusqui, 2015QN007897, NYLJ 1202732871821, at *1 (Crim., QU, Decided July 21, 2015), the defendant was observed writing the letters “SABBS” with white spray paint on a brick wall in Queens, NY. The defendant was later arrested and his attorney challenged the accusatory instrument. The legal guardian of the property stated that he had not given the defendant permission or authority to paint his property. However, although the arresting officer attested to this lack of permission, the supporting deposition required to confirm the guardian’s statement was not filed. Therefore, the permission language was lacking. The key issue for the court in People v. Gusqui was whether or not lack of permission or authority to mark the property of another is a material element of the Possession of a Graffiti Instrument charge pursuant to NY PL 145.65.

As briefly mentioned above, the first element of PL 145.65 requires that the prosecution prove that the defendant (that would be you) intended to damage property. Courts have ruled that the mere possession of an item which qualifies as a graffiti instrument or tool does not give rise to criminal culpability. Rather it is the possession of a graffiti instrument under circumstances that show the defendant intended to use that instrument to damage, or vandalize the property of another when criminal liability attaches. People v. Karina, 102 AD3d 446 [1st Dept 2013]. Whether the defendant’s conduct actually results in damage to the property of another is not sufficient, alone, to prove the defendant intended to damage that property. People v. Diaz, 10 Misc.3d 1074[A] [Crim Ct. NY County 2005]; People v. Vinolas, supra at 745; People v. Thomas, 47 Misc.3d 473 [Ithaca City Ct. 2014].

To satisfy the second element the court will look to the definition of the word “possess.” For this purpose the term “possess” means to have physical possession or otherwise to exercise dominion or control over tangible property (Penal Law §10.00[8]). In other words merely having possession or control of any tool that is used to place a mark upon a piece of property would satisfy this element of the crime (but not necessarily other elements).

The third and final element the prosecution must prove beyond a reasonable doubt is that the defendant knew he did not have permission or authority to make a mark on the property. In order to prove this element the District Attorney must produce evidence that shows the defendant knew that he or she did not have permission or authorization to make any marking on the property he or she marked.

In Gusqui, the People argued that merely being in possession of the tools required for graffiti combined with the intent to damage property should be sufficient to establish the crime of Possession of a Graffiti Instrument, PL 145.65. The court however disagreed with this argument. The court clearly stated that lack of permission or authority to etch or mark on the property of another is a material element of the crime. This element cannot be ignored even if the other elements are satisfied. The court decided that lack of permission or authority to mark the property of another is a required element because there are foreseeable circumstances where a suspect could satisfy the other elements of the crime but with permission to paint or perform graffiti. In those cases it would contradict the legislative intent of the law, to prevent vandalism, and criminalize legal graffiti art.  Therefore, to draft a legally and facially sufficient accusatory instrument for Possession of Graffiti Instrument, the prosecution cannot merely ignore the permission requirement even if evidence of the other elements is overwhelming.

To learn more about New York Graffiti crimes including Making Graffiti, New York Penal Law 145.60, and Criminal Mischief in the Fourth Degree, New York Penal Law 145.00, follow the related links.

The New York criminal lawyers and former Manhattan prosecutors at Crotty Saland PC represents clients throughout the New York City region in all matters including those involving graffiti offenses.

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