Making Graffiti (NY PL 145.60), Possession of Graffiti Instruments (NY PL 145.65) & Your Criminal Defense: Does it Matter Under New York Law if You Did Not Intend to Damage Any Property or it in Fact was not Damaged?

If you have ever been arrested for Making Graffiti (New York Penal Law 145.60) or Possession of Graffiti Instruments (New York Penal Law 145.65) in Manhattan, Brooklyn, Queens or anywhere in New York City, you know that the Graffiti / Vandal Squad detectives are aggressive in their pursuit of alleged offenders. The bottom line is that Making Graffiti and Possession of Graffiti instruments is a serious offense in the eyes of law enforcement. If the damage is significant, prosecutors may seek restitution in addition to whatever the disposition might be.

Often times, the gravity of the alleged damage is tied to the ultimate deal in the case. This assumes, of course, that you have explored with your New York criminal defense attorney whether or not the prosecution can prove the case beyond a reasonable doubt or whether there are any legal, factual or procedural defenses to the allegations. Regardless, the question addressed in this entry is clear. What if it was not your intent to cause the damage? What if you were expressing yourself through your art? In other words, is it a defense to the crimes of Making Graffiti and Possession of a Graffiti instrument if you did not have the intent to cause damage when you painted, etched, or drew on another person’s property, or in the alternative, that the property was not damaged?

To be clear, the short answer is that the statutes and underlying definitions involving graffiti offenses in New York require an intent to damage the property of another without their permission. Moreover, whether or not there was actual damage is of no consequence. The statutes merely require an intent to damage whether or not that the alleged offender was successful. As set forth in People v. Vinolas, 174 Misc.2d 740 (NY Crim. Ct. 1997):

“The intentional, rather than inadvertent, nature of defendant’s actions…tend to show that the defendant intended to damage complainant’s property. The culpable mental state is not that the defendant intended to cause actual damage, as required by [New York Penal Law section 145.00 – Criminal Mischief], but rather, ‘that the actor acted intentionally in placing a mark upon the property which the actor had no right to mark and no reasonable ground to believe that he/she had such right.’ Whether the defendant actually caused damage is irrelevant for purposes of these charges; and whether the defendant intended to cause such damage is a question of fact for the trier of fact and not a consideration for the instant motion [to dismiss for facial insufficiency].”

Although this is the short answer and one that needs far more vetting, the above case makes it clear that it is one’s intent to damage as opposed to the ultimate results that are important.

For further information on the crimes of Making Graffiti (New York Penal Law 145.60) and Possession of Graffiti Instruments (New York Penal Law 145.60), please follow the appropriate links or contact the New York criminal defense attorneys and former Manhattan prosecutors at Saland Law PC to arrange for a consultation.

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