Criminal Mischief Lawyer NYC

What is Criminal Mischief in NYC?

In New York, crimes involving an allegation of property damage are called “Criminal Mischief.” The elements of the crime of Criminal Mischief are:

• Intentionally damaging;
• Property;
• That belongs to another person; and
• Without a right to do so or any reasonable ground to believe that he or she has such right

In New York, Criminal Mischief is most often charged in cases of alleged Vandalism or Graffiti. But Criminal Mischief can be charged where damage is alleged to any type of property.

Depending on the type of property that is allegedly damaged, the circumstances of the alleged damage and amount or value of the property damage, Criminal Mischief charges are either a misdemeanor or a felony.

Most New York Criminal Mischief charges are based on the value or cost of property damage. The thresholds of property value in Criminal Mischief charges are low when compared to other New York criminal charges. Felony Criminal Mischief charges apply when the value of the alleged property damage is more than only $250.00 (yes, two hundred fifty dollars).

By comparison, the threshold for felony New York Larceny charges or Criminal Possession of Stolen Property charges is more than $1,000.  Although it is not defined in Criminal Mischief charges, the value of the property that is allegedly damaged is understood to be the fair market value at the time of the alleged damage or the cost of repair or replacement of the property that is damaged.

New York Criminal Mischief Degrees

• Criminal Mischief in the Fourth Degree
• Criminal Mischief in the Third Degree
• Criminal Mischief in the Second Degree
• Criminal Mischief in the First Degree

Elements of Criminal Mischief Charges in NYC

There are several elements of Criminal Mischief charges that deserve an explanation. All of these elements must exist to charge a person with Criminal Mischief in New York and to continue a criminal prosecution.

First, all 4 degrees of New York Criminal Mischief charges require that the alleged property damage be done through an intentional act. There is only one exception to this requirement. The term intentional is defined in New York Penal Law Section 15.05(1) as a person’s conscious objective. Thus, it may be a defense to Criminal Mischief charges if the property is damaged as a result of an accident, i.e., an unintentional act.

However, there is one exception to the requirement of an intentional act. One of the 4 types of of Criminal Mischief in the Fourth Degree charges has a provision for the reckless damage to property in an amount exceeding $250. Recklessly is defined in New York Penal Law Section 15.05(3) as an awareness of and conscious disregard of a substantial and unjustifiable risk that is a gross deviation from the standard of conduct that a reasonable person would observe in a situation.

Second, all Criminal Mischief charges require damage to property. New York Criminal Mischief charges do not define the meaning of damage. However, Courts recognize the term to mean injury or harm to property that lowers its value or involves loss of efficiency or reduces its value or usefulness.

In addition, Criminal Mischief charges don’t require total property damage, the damage may only be slight. But, under certain circumstances, a person could be charged in New York with attempted Criminal Mischief if damage to property does not result from an intentional act. Although attempted Criminal Mischief charges are rare, they are theoretically possible.

Third, New York Criminal Mischief charges require that the property in question belong to another person. Under New York Penal Law Section 145.13, the property of another is defined as “all property in which another person has an ownership interest, whether or not a person who damages such property, or any other person, may also have an interest in such property.” That means that a person can be charged with Criminal Mischief if he or she co-owns property that is allegedly damaged with a least 1 other person.

Fourth, Criminal Mischief charges require a person not to have any right to damage property or any reasonable ground to believe that he or she has such right. That means if a person has a right or even a reasonable belief that he or she has a right, then it is a defense to damaging property and New York Criminal Mischief charges.

Practically speaking, this defense is rarely invoked in New York because Criminal Mischief charges most often result when the person charged and the owner of the property that is allegedly damaged have no prior relationship.

Downgrading Criminal Mischief Charges in NYC

In New York, most Criminal Mischief charges are related to the value of the property that is allegedly damaged. Criminal Mischief in the Fourth Degree, which is a class A misdemeanor, does not have any value threshold.

New York Criminal Mischief in the Third Degree charges have a threshold of only $250 of property damage and Criminal Mischief in the Second Degree charges has a threshold of only $1,500 of property damage. Both Criminal Mischief in the Second Degree and the Third Degree are classified as felonies. By comparison, New York Larceny charges and Criminal Possession of Stolen Property charges have a floor of more than $1,000 for felony charges.

Depending on the nature of the property that is allegedly damaged and its value, an experienced and knowledgeable Criminal Mischief lawyer may be able to obtain a downgrade of felony charges to a misdemeanor.

That means that a felony Criminal Mischief in the Second Degree or Criminal Mischief in the Third Degree charges may be downgraded to misdemeanor Criminal Mischief in the Fourth Degree charges. In addition, misdemeanor or felony Criminal Mischief charges may be even further downgraded to a non-criminal outcome or even a complete dismissal.

There are several factors to consider when predicting if Criminal Mischief charges can be downgraded from a felony to a misdemeanor or even lower. Generally speaking, the factors are divided into 3 categories. First, the background of the person charged. Second, the specific allegations. Three, a person’s ability to pay restitution for the property damage.

When considering whether to downgrade a Criminal Mischief charge, prosecutors consider the background of the person charged. The background includes: a person’s age, education, immigration status, if not a U.S. citizen and prior arrests or criminal convictions, if any.

A prosecutor may be apt to take a more lenient approach if there is a possibility of negative immigration from a criminal conviction. The specific allegations include what type of property was damaged and the dollar amount of damage that was allegedly caused.

Third, if the evidence of the Criminal Mischief charge is strong, then the ability to pay for replacement or repair of the damaged property. The likelihood of downgrading Criminal Mischief charges to a non-criminal disposition or dismissal increase if the 3 factors work in favor of the person who is charged.

New York Criminal Mischief in the Fourth Degree Charges

In New York, Criminal Mischief in the Fourth Degree is the least severe Criminal Mischief charge.

Unlike the 3 other degrees of Criminal Mischief, Criminal Mischief in the Fourth Degree does not have a minimum value of the property damage. Criminal Mischief in the Fourth Degree is a class A misdemeanor and it carries a maximum penalty of 1 year in jail.

Penal Law Section 145.00 states “A person is guilty of Criminal Mischief in the Fourth Degree when, having no right to do so nor any reasonable ground to believe that he or she has such right, he or she”:

• Intentionally damages property of another person;
• Intentionally participates in the destruction of an abandoned building;
• Recklessly damages property of another person in an amount exceeding $250; or
• With intent to prevent a person from communicating a request for emergency assistance, intentionally disables or removes telephonic, TTY or similar communication sending equipment while that person:
  • Is attempting to seek or is engaged in the process of seeking emergency assistance from police, law enforcement, fire or emergency medical services personnel; or
  • Is attempting to seek or is engaged in the process of seeking emergency assistance from another person or entity in order to protect himself, herself or a third person from imminent physical injury

Criminal Mischief in the Fourth Degree Charges and Vandalism or Graffiti in NYC

New York Criminal Mischief in the Fourth Degree charges involve allegations of damage to any type of property. Two commonly charged types of Criminal Mischief in New York involve allegations of Vandalism and Graffiti. Vandalism is broadly defined as the deliberate destruction of property. Graffiti is defined as writing or drawings scribbled, scratched, or spray painted on a surface. Any act of Vandalism to property or Graffiti can result in Criminal Mischief charges, typically Criminal Mischief in the Fourth Degree.

The alleged damage to property in Vandalism and Graffiti cases is often quite slight. As noted above, the term damage is not defined under Criminal Mischief charges. Courts have held the term damage to mean harm to property that lowers its value. There have been cases of the New York City Police Department or NYPD arresting a person for placing a sticker on property and charging the person with Criminal Mischief in the Fourth Degree. Such arrests are a complete waste of time and resources for police, prosecutors and Courts.

Possible Outcomes of NYC Criminal Mischief in the Fourth Degree Charges

Criminal Mischief in the Fourth Degree charges in New York are a class A misdemeanor. A conviction of Criminal Mischief in the Fourth Degree can result in up to 1 year in jail and a criminal record. However, an experienced Criminal Mischief charges lawyer may often be able to obtain the dismissal of the charges or a plea bargain to a non-criminal outcome. Often in Criminal Mischief in the Fourth Degree cases the ability to pay restation factors into a favorable outcome.

Two common outcomes of Criminal Mischief charges include an ACD or Adjournment in Contemplation of Dismissal and Disorderly Conduct. An Adjournment in Contemplation of Dismissal is dismissed and sealed in 6 months, if a person stays out of trouble during the period.

A conviction of Penal Law Section 240.20, Disorderly Conduct, is not considered a crime. Because Disorderly Conduct is classified as a violation under New York law, a person does not have a criminal conviction as a result of a Disorderly Conduct conviction.

NYC Criminal Mischief in the Third Degree Charges

In New York, Criminal Mischief in the Third Degree is a class E felony.

Under Penal Law Section 140.05, Criminal Mischief in the Third Degree is charged in 2 circumstances. A person is guilty of Criminal Mischief in the Third Degree when, with intent to damage the property of another person, and having no right to do so nor any reasonable ground to believe that he or she has such right, he or she”:

• Damages property of another person in an amount exceeding $250; or
• Damages the motor vehicle of another person, by breaking into such vehicle when it is locked with the intent of stealing property, and within the previous 10 year period, has been convicted 3 or more times, in separate criminal transactions for which sentence was imposed on separate occasions, of any degree of Criminal Mischief

The first provision of Criminal Mischief in the Third Degree only requires that the property that is allegedly damaged by valued at more than $250. Because of the low threshold, as explained above, an experienced Criminal Mischief charges lawyer can often negotiate a favorable outcome to such charges. The next threshold for Criminal Mischief charges is Criminal Mischief in the Second Degree, which applies to property that is allegedly damaged and valued at more than $1,500. The second provision of Criminal Mischief in the Third Degree is rarely charged. It applies only to damage to motor vehicles and if a person has 3 previous Criminal Mischief convictions.

New York Criminal Mischief in the Third Degree Penalties

In New York, Criminal Mischief in the Third Degree is a class E felony. The minimum prison term is 1 to 3 years and the maximum is 1 1/3 to 4 years if a person does not have a prior criminal, conviction. However, jail is not mandatory for a Criminal Mischief in the Third Degree and a person is rarely sentenced to incarceration for a conviction.

The outcomes of Criminal Mischief in the Third Degree charges often depend on the background of the person who is charged, the value of the property that is allegedly damaged and the ability of a person to make restitution for the damage.

Even though Criminal Mischief in the Third Degree is a felony, the ultimate dismissal of the charges, a non-criminal disposition or a reduction to a misdemeanor are all possible outcomes. Short of complete dismissal, the outcomes listed above for Criminal Mischief in the Fourth Degree, an Adjournment in Contemplation of Dismissal or ACD or a plea bargain of Disorderly Conduct, are possible.  As with most cases of Criminal Mischief, the ability to pay restitution plays a role in the possible outcome.

Criminal Mischief in the Second Degree Charges in NYC

In New York, Criminal Mischief in the Second Degree is a class D felony and has a maximum prison sentence of 2 1/3 to 7 years if a person does not have a prior conviction.

Under Penal Law Section 140.10, “a person is guilty of Criminal Mischief in the Second Degree with intent to damage property of another person, and having no right to do so nor any reasonable ground to believe that he has such right, he damages property of another person in an amount exceeding $1,500.”

Thus, the sole provision of Criminal Mischief in the Second Degree involves an allegation of damage to property that is valued at more than $1,500. Under New York’s Criminal Mischief laws there is no higher value for alleged property damage, unless there is the additional allegation of an explosive used to damage the property. In other words, there is no upper limit to the value of the property that is allegedly damaged for Criminal Mischief in the Second Degree charges.

Like the lesser degrees of Criminal Mischief, it is possible to reduce the severity of Criminal Mischief in the Second Degree, especially if the value of the property is close to $1,500. In fact, the closer to $1,500 the more likely that the Criminal Mischief charge can be reduced.

New York Criminal Mischief in the Second Degree Penalties

Criminal Mischief in the Second Degree in the Third Degree is a class D felony. If a person does not have a prior felony conviction, the minimum term in prison is 1 to 3 years with a maximum of 2 1/3 to 7 years. But a Criminal Mischief in the Second Degree conviction does not require a prison sentence.

Criminal Mischief in the First Degree in NYC

In New York, Criminal Mischief in the First Degree is a class B felony.

Prison is mandatory for a conviction of Criminal Mischief in the First Degree with a maximum of 8 1/3 to 25 years.

Under Penal Law Section 145.12, a person is guilty of Criminal Mischief in the First Degree when: “with intent to damage property of another person, and having no right to do so nor any reasonable ground to believe that he has such right, he damages property of another person by means of an explosive.”

Thus, the only time that Criminal Mischief in the First Degree is charged if the property at issue is allegedly damaged by means of an explosive. As the most commonly charged provision of Criminal Mischief in the Fourth Degree, there is no minimum value requirement.

New York Criminal Mischief in the First Degree Penalties

Criminal Mischief in the First Degree is classified as a class B felony.  The minimum prison sentence for a conviction of Criminal Mischief in the First Degree without a prior felony conviction is 1 to 3 years in prison and the maximum is 8 1/3 to 25 years.

Hiring a New York City Criminal Mischief Lawyer

The criminal justice system is complex and can be intimidating and confusing, especially in New York. Hiring the right New York Criminal Mischief defense attorney is crucial in achieving the best possible outcome when one is charged with Criminal Mischief in NYC.

The best New York City Criminal Mischief lawyer is experienced, aggressive and knowledgeable. As a former prosecutor in Manhattan, I have the experience and knowledge from both prosecuting Criminal Mischief charges, and aggressively defending people against Criminal Mischief charges in New York.

Speak With a NYC Criminal Mischief Attorney Today

If you or a loved one is charged with Criminal Mischief in New York City, we’re here to help. Contacting a Criminal Mischief lawyer early in your case is important to preserve evidence that might be destroyed. A knowledgeable and aggressive Criminal Mischief lawyer may be able to have the charges completely dismissed based on the facts that are different in every case. In the alternative, a Criminal Mischief lawyer may be able to negotiate a favorable bargain to a non-criminal outcome or a lesser charge.

Contact The Law Firm of Andrew M. Stengel

Contact us via the live chat below, through our contact form here, or call us at  (212) 634-9222. Initial consultations are free and confidential, and you will speak with Andrew M. Stengel directly.

Our offices are located at 11 Broadway, Suite 715, New York, NY 10004, and we handle cases throughout New York City, Nassau, Westchester and the surrounding counties.