New York criminal mischief offenses contemplate the act commonly known as vandalism. Each of these offenses are crimes that involve the unlawful damaging of the property of another in some way. Common cases may involve damage to vehicles, homes, or other buildings, or as discussed separately below, damage caused by property on account of graffiti or street art.
The base offense is Criminal mischief in the fourth degree, which would apply to one who, “having no right to do so nor any reasonable ground to believe that he [or she] has such right, he [or she] . . . [i]ntentionally damages property of another person,” participates in the destruction of certain kinds of abandoned buildings, or recklessly damages another’s property “in an amount exceeding two hundred fifty dollars.” PL 145.00. Third-degree criminal mischief is a class E felony, and may be charged where a person who had previously been convicted of a similar offense within the past ten years, has damaged the motor vehicle of another person with the intent to steal property therein, or where a person intentionally damages the property of another in excess of $250. PL 145.05. Second degree criminal mischief may apply where the intentional damage to the property of another exceeds $1500, PL 145.10. First-degree criminal mischief is a class B felony, and is a charge reserved for those accused of using an explosive to damage another’s property. PL 145.12. In the same vein, there are two misdemeanor criminal tampering offenses that apply to tampering with the property of another, PL 145.14, or the property of a utility company, PL 145.15, and an enhanced felony charge where such tampering causes a substantial interruption or impairment of the service of such a company. PL 145.20. There is also one related misdemeanor and two felony auto stripping charges found in Article 165 that are associated with criminal mischief in the context of vehicles. Auto stripping in the third degree involves the removal, destruction or defacing of any part of a non-abandoned vehicle without the permission of the owner. PL 165.09. A misdemeanor auto stripping charge may be “bumped up” to a felony charge if the accused has been convicted within the past five years of misdemeanor auto stripping, PL 165.10(1), or where the aggregate damage value exceeds $1000, PL 165.10(2), or, for the most serious charge, $3000. PL 165.11.
As the debate concerning the merit and artistic value of graffiti continues to play itself out in the public forum, New York law remains steadfast in its criminalization of the making of graffiti and can expose the graffiti artist to criminal liability, including the possibility of jail time.
Grafitti is defined in the Penal Law as “the etching, painting, covering, drawing upon or otherwise placing of a mark upon public or private property with intent to damage such property.” PL 145.60(1). The offense of making graffiti is defined in subsection 2: “No person shall make graffiti of any type on any building, public or private, or any other property real or personal owned by any person, firm or corporation or any public agency or instrumentality, without the express permission of the owner or operator of said property.” Making graffiti is a class A misdemeanor. One need not, however be caught “red-handed,” as the case may be, to sustain a graffiti-related arrest. Another misdemeanor charge may apply to those persons who are caught in possession of “graffiti instruments,” which are defined as “any tool, instrument, article, substance, solution or other compound designed commonly used to etch, paint, cover, draw upon or otherwise place a mark upon a piece of property which that person has no permission or authority to etch, paint, cover, draw upon or otherwise mark, under circumstances evincing an intent to use same in order to damage property.” PL 145.65. Thus, spray cans or other spray paint canisters, liquid aerosol containers, paintbrushes, paint pens, sharpies, and permanent markers may all, under certain circumstances, constitute graffiti instruments.