Graffiti Offenses
Published by Thomas A. Tormey, Jr. - August 13, 2020
If you happened to be walking around New York City these days, you may think that graffiti is no longer against the law. But you’d be wrong, because it is. In fact, “Making Graffiti” is a crime and if you have been arrested for it, you could be facing grave consequences if you don’t take this matter seriously.
New York Penal Law Section 145.60 – Making Graffiti
In the New York State, the Penal Law contains a number of sections that have been enacted to hold people accountable for damaging the property of another. One of those laws is called “Making Graffiti.”
Section 145.60(1) of the New York Penal Law defines graffiti as “the etching, painting, covering, drawing upon or otherwise placing of a mark upon public or private property with intent to damage such property.” Subdivision (2) of Section 145.60 makes it a crime if you “make graffiti of any type on a 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.” The charge of “Making Graffiti” is a Class A Misdemeanor. That means it is a crime and a conviction for this offense will result in the person having a criminal record in addition to a number of other penalties which are discussed below.
In addition to the crime of “Making Graffiti,” people arrested for this offense are also often charged with “Possession of Graffiti Instruments,” Section 145.65 of the New York Penal Law. That section makes it a crime if you possess any items that might have been used to create the graffiti. Section 145.65 defines “graffiti instruments” as “any tool, instrument, article, substance, solution or other compound if the same is possessed with the intent of making graffiti.” Like the crime of “Making Graffiti,” “Possession of Graffiti Instruments” is also a crime. It is a class B misdemeanor and even though it is a lower level crime than “Making Graffiti,” it is still a crime and could have serious consequences for you later in life if you are convicted of this offense.
Defenses
Like any other criminal charge, the facts that led to your arrest are crucial in deciding how you should proceed. Very often, the facts of the case present various defenses that can be used to produce a verdict of “Not Guilty” should you go to trial, or perhaps the facts, as well as your history and background, may be used to show the prosecutor that you should receive a more lenient disposition than having to go to trial or plead to a crime. That is why it is so important that you discuss your case with a lawyer as soon as possible after your arrest.
In deciding what to do with your case, it is helpful to know what is required to prove a charge of Making Graffiti.
The charge of “Making Graffiti” requires basically two things:
1. That you put graffiti on the property of another person, corporation or public building with the intent to damage the property; and
2. That you do not have permission from the property owner to put that graffiti there.
Because of this, depending on the facts of your case, you may have several possible defenses available to you. For example, perhaps the owner of the property gave you permission to decorate his or her property or perhaps the prosecution is unable to locate the owner of the property allegedly defaced, in order to determine if you did or did not have permission to mark up the property. If they can’t locate the owner, they may not be able to prove that you did not have permission to adorn the property. In those cases, you may have a complete defense to the charges.
Another example of a possible defense to the charge of “Making Graffiti,” is that perhaps you did not intend to “damage” the other person’s property. Perhaps you were creating some sort of art form for the pleasure, education or benefit of the owner and others. While this defense might be difficult to prove, particularly if you marked the property without the permission of the owner, it is a defense that needs to be explored.
Penalties
As was indicated above, “Making Graffiti” is a class A misdemeanor which means that the maximum penalties are one year in jail, a $1,000 fine or 3 years on probation. You may also be required to pay restitution to the owner of the property in an amount that will compensate the owner for the cost of restoring the property to the condition it was in before the graffiti was put upon it.
In addition, possession of graffiti instruments is a class B misdemeanor. The maximum penalties for this offense are 3 months in jail, a $500 fine and 1-year probation.
But these are the maximum sentences if convicted of the top counts in the accusatory instrument. This is not necessarily what you will receive if prosecuted. In fact, there are often alternatives that may be available to you, depending on a number of factors, including your criminal history and the nature of the offense.
Call the Law Office of Thomas A. Tormey, Jr.
While you may not think that casually marking another person’s property with graffiti is very serious, a failure to give this matter your full attention could lead to severe consequences. While it is somewhat unlikely that a person with no criminal record would ever be incarcerated for graffitiing someone’s property, each case is different and the prosecution and penalties are always driven by the facts of the case and the background of the defendant.
But incarceration is not the only thing with which you must be concerned. The fact that these charges are crimes means that there could be serious consequences if the case is not handled properly. A conviction for either offense listed above would result in giving you a criminal record that will stay on your record for years to come. That is why it is important to retain the services of an attorney who will be able to help convince the prosecutors that you should be offered a plea to non-criminal offense or even that you are deserving of an outright dismissal of the charges.
In addition to possible favorable plea-bargaining options, a knowledgeable attorney would be able to discuss with you the possibility of entering different programs available to individuals accused of “Making Graffiti.” Successful completion of those programs would make you eligible to receive a Decline to Prosecute (“DP”) which is a decision by the District Attorney to refuse to charge you at all, or an Adjournment in Contemplation of Dismissal (ACD) which would result in a dismissal after a period of 6 months provided you stay out of trouble.
Never treat any arrest lightly. Not even if it is for the crime of “Making Graffiti.” Any arrest could lead to serious consequences and must be handled properly. Call a lawyer to discuss your case immediately before making any decisions on how to proceed. Your decision could have serious consequences and could affect you for the rest of your life.
Tom Tormey has a great deal of experience in all criminal matters, including the crimes of “Making Graffiti” and “Possession of Graffiti Instruments.” Call him to discuss your case today.
The call is free but the advice you receive may be priceless.
©Thomas A. Tormey, Jr – August 13, 2020
