Criminal Mischief

  A person is guilty of criminal mischief when having no right to do so nor any reasonable ground to believe that he or she has such right, he or she intentionally or recklessly damages the property of another person or when such the defendant prevents another person from making an emergency call to police, fire department or emergency medical services by intentionally disabling or removing such communication equipment (e.g. the phone). Interestingly, the fact that the defendant has an ownership interest in such equipment is not a defense to a charge of criminal mischief as per New York Penal Law section 145.00. Criminal mischief may be charged as a misdemeanor or a felony dependent on the value of another’s property that was damaged and, on the fact, whether such damage happened intentionally or recklessly. If the damage was intentional and the value of the damaged property was under $250,  or the damage was reckless, such criminal mischief charge will be a class A misdemeanor punishable by up to 1 year in jail, 3 years’ probation, and/or fine. In case of intentional damage to the property valued at more than $250 such criminal mischief charge will be a class E felony punishable by up to 4 years in jail, 5 years’ probation, and/or a fine. In case of intentional damage of the property of another exceeding the amount of $1,500, the defendant may be charged with a class D felony punishable by up to 7 years imprisonment, probation, and/or fine. Finally, if the damages to the property of another occur by means of an explosive, the defendant may be charged with a class B felony criminal mischief punishable by up to 25 years imprisonment, probation, and/or fine.

According to New York Law, for the purposes of the criminal mischief charges, the “property of another” shall include 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. In our practice, we often come across cases of domestic violence where one of the charges is criminal mischief based on the destruction of a common house, apartment, furniture, or utensils. Typically, the defendant would claim in his or her defense that he or she broke, for example, the door in his or her own house or broke the cell phone that (s)he purchased with his/her own money and for which (s)he pays the monthly bill even though it is used by his or her spouse. As described above, that explanation will not work as an affirmative defense since the complaining witness also has some ownership interest, for example, in the cell phone, he or she uses even though it is paid by another person. The same goes for the furniture and electronic appliances in the marital home or common residence.

Another frequent example of a criminal mischief case is the damage intentionally done to the neighbor’s car, usually based on parking or other disputes. On many occasions, there is video surveillance of the defendant committing such damage.

In almost any prosecution for criminal mischief where the value of the damaged property is substantial, the prosecutor will demand from the defendant the payment of the restitution amount to cover out-of-pocket expenses related to the damaged property paid by the complaining witness. We had many cases when the complaining witness attempted to make extra money claiming an inflated restitution amount based on unrealistic repair estimates. On several occasions, we successfully challenged and ultimately reduced the restitution amounts based on independent estimates and common sense. Unless there are other aggravated circumstances relevant to the criminal mischief case, such as prior convictions and/or additional charges involving personal injury, in all likelihood, such criminal mischief charge will be reduced to a non-criminal violation or even dismissal with the condition of restitution payment and possibly community service and/or anger management program.

If you have any questions regarding the criminal mischief, please call our office.