Vandalism charges in Rochester NY are a difficult offense to predict. Property defacements such as graffiti are civil matters. Once upon a time, police officers often intervened in civil disputes, such as for runaway spouses. But those days are long gone. In fact, many police departments do not respond to most fourth-degree criminal mischief complaints, especially if the estimated damage is less than $100.

On the other hand, vandalism is often an essential piece of the puzzle in New York. That’s especially true if the law enforcement department practices the controversial broken windows policing approach. According to this theory, aggressively preventing low-level criminal activity, like vandalism, loitering, and broken windows prevents more serious crimes. In the minds of many, the broken windows theory is closely associated with racial profiling.

Vandalism Charges – How a Rochester Criminal Defense Attorney Can Help

In either situation, a Rochester criminal defense lawyer makes a significant difference. If an attorney gets involved early, investigators who weren’t too serious to begin with will often give up. If the case goes to court, vandalism is usually much more severe in New York than in other states. Most forms of criminal mischief (including vandalism) are felonies in the Empire State.

Elements of the Offense

There are four levels of criminal mischief in New York. These laws are in Section 145 of the New York Penal Law.

  • Fourth Degree: It is a Class A misdemeanor to intentionally damage property, regardless of its value, or to recklessly damage property valued at more than $250. Usually, “intentionally” means not accidentally, and “recklessly” is just short of maliciously. It’s also a crime to interfere with another person’s 9-1-1 call.
  • Third Degree: The most common form of vandalism is an E felony in New York. Section 145.05 applies if the defendant broke into a motor vehicle or damaged any property worth more than $250. Motor vehicle criminal mischief must include the intent to steal property. There is no mental state in the general property prohibition.
  • Second Degree and First Degree: We’ll combine these two since they are relatively rare. Second-degree criminal mischief (D felony) refers to intentionally damaging property valued at more than $1,500. First-degree criminal mischief (B felony) is damaging property with an explosive device.

All these infractions include the “of another” element. So, when the case goes to court, the state must produce the property’s owner or “any other person” who has “an interest in such property.”

Possible Defenses for Vandalism

Lack of evidence is usually the best defense to a criminal mischief charge. The specific issue is usually a complete lack of proof or a lack of credible evidence.

As mentioned, the property owner, or perhaps a store security guard or maintenance supervisor, must testify in court. Pretrial matters in a vandalism case could last up to a year. Over that time, many owners lose interest in the case and become uncooperative. Others move away, and prosecutors cannot subpoena them.

Lack of credible evidence could be an issue as well. Direct evidence, like eyewitness testimony or camera footage, is rare in these cases. So, the state must rely on circumstantial evidence. For example, if gang graffiti appears on a wall, it’s almost impossible to prove which gang member tagged the wall.

Several resolutions are available because of these evidence problems and because vandalism is a nonviolent crime. These possibilities often include deferred prosecution and deferred disposition. Deferred prosecution is a pretrial dismissal of charges. Alternatively, a deferred disposition is a post-judgment dismissal. Both these programs have some eligibility requirements.

Criminal mischief is usually a severe offense in New York. For a free consultation about vandalism charges in Rochester NY, contact the Law Office of Frank Ciardi. Home, after-hours, and jail visits are available.


The information in this blog is provided for general informational purposes only and should not be used as a substitute for legal counsel on any subject matter.

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