It may be on a non-violent crime, but an arrest for Criminal Mischief in New York can be either a misdemeanor or a felony. What should be of significant concern to anyone charged with a New York Penal Law Article 145 crime is how easily a Fourth Degree Criminal Mischief, New York Penal Law 145.00, can morph into a Third Degree Criminal Mischief, New York Penal Law 145.05.
What property or belongings of any significance exist in our lives these days that are worth less than $250. If your friend broke something that belongs to you in the course of an argument, is there anything worth less than $250 that would prompt you to call the police? A used iPhone 7 that is more than a year old runs around $400 on eBay. Moreover, is there anything of any importance that costs less than $250 to repair? What this means is that, in New York, almost anything a person intentionally breaks that doesn’t belong to them can result in a felony charge punishable by up to 4 years in state’s prison, even with no prior criminal record.
While the above may seem unbelievable, it is the result of the monetary threshold used in Criminal Mischief charges in New York. That threshold, which raises recklessly damaging property to a misdemeanor and intentionally damaging property to a felony, is $250. Once that value or damage exceeds $250, the felony crime is Third Degree Criminal Mischief, New York Penal Law 145.05. Practically speaking, it would be very unusual for a prosecutor to move forward on a case as a felony where the property damaged is relatively cheap to replace or repair, especially when the defendant reimburses the victim. However, this discretion lies entirely with that prosecutor, and under the right circumstances, a District Attorney’s Office will prosecute such a incident as a felony.
In People v. Agron, 106 A.D.3d 1126 (3d Dept. 2013), the defendant was accused, among other things, of punching out the bottom panel of a locked door belonging to the victim and, ultimately, to the victim’s landlord. The landlord temporarily fixed the door at no cost, but the testimony at trial was that ultimately the landlord did have to hire a repair person to replace the door at a cost of $510. The prosecution proceeded with that charge, and others, as a felony through trial and appeal. The defendant was convicted of the felony of Criminal Mischief in the Third Degree after trial, and the appellate Court upheld the conviction given that the elements of the crime had clearly been met. The facts in Agron involved the defendant damaging the door in the course of a violent assault on the victim, so that aggravating factor surely played a part in the prosecutors decision to proceed on the felony Criminal Mischief charge.
Prosecutorial discretion playing this pivotal a role in a person’s exposure to state prison time and the potential for being given a felony record can be alarming, but as long as the monetary threshold remains so incredibly low, that will be the reality given the costs and expenses of modern life.
Crotty Saland PC is a New York criminal defense firm founded by two former Manhattan prosecutors. The New York criminal lawyers at Crotty Saland PC represent clients in New York Criminal Mischief crimes throughout the New York City and Hudson Valley region.