Cemetery Desecration in New York
Are You At Risk For Prosecution For Cemetery Desecration in New York?
Cemetery desecration is causing damage to the gravesite, tombstone, or other burial sites, stealing property from a burial site or removing human remains from a gravesite. Due to the emotional nature of death and burial, New York takes measures to dissuade anyone from engaging in cemetery desecration strongly.
If you are found in the area of a gravesite and damage has been done to it, you may find yourself facing charges of cemetery desecration. You likewise may face cemetery desecration charges if you are suspected of removing property from a burial site.
For example, if you and some friends are running through a cemetery and a couple of headstones are found to be damage you could find yourself under arrest.
The Legal Definition Of Cemetery Desecration
Article 145 of the New York Penal Laws outlines criminal mischief and related offenses. Among these related offenses is the cemetery desecration.
Under New York law cemetery desecration is divided into four (4) specific offenses; cemetery desecration in the second degree, cemetery desecration in the first degree, aggravated cemetery desecration in the second degree, and aggravated cemetery desecration in the first degree.
Let’s look at each offense individually.
Cemetery Desecration in the Second Degree
o NY PL § 145.22
- You commit cemetery desecration in the second degree when, with the intent to damage another’s property, and not having any right nor plausible belief that you had a right to do so, cause damage to personal or real property kept as a cemetery, grave, or place of interment for human remains; or
- You have the intent to, and do in fact steal personal property that is located in a cemetery, grave, or place of interment for human remains, and a person or entity that maintains the estate or representatives of the individual interred there owns the property.
- For example, If Todd enters the local cemetery and sprays graffiti on the tombstone of his father’s former boss. Todd may be charged with and convicted of cemetery desecration in the second degree.
- Similarly, If Jen is walking through the cemetery behind her house and notices a bouquet of flowers draped over a headstone and decides to take them home with her, she may be charged with and convicted of cemetery desecration in the second degree.
- Cemetery desecration in the second degree is a class A misdemeanor.
Cemetery Desecration in the First Degree
o NY PL § 145.23
- You commit cemetery desecration in the first degree when, with the intent to damage another’s property, and not having any right nor plausible belief that you had a right to do so, you:
- Cause damage to personal or real property kept as a cemetery, grave, or place of interment for human remains, in excess of $250; or
- You have the intent to, and do in fact steal personal property, with a value in excess of $250, that is located in a cemetery, grave, or place of interment for human remains, and a person or entity that maintains the estate or representatives of the individual interred there owns the property; or
- You commit the crime of cemetery desecration in the second degree, and you have been convicted of this same crime within the past five (5) years.
- For example, if Steve enters a cemetery and uses a sledgehammer to smash a series of $500 headstones, he may be charged with and convicted of cemetery desecration in the first degree.
- Similarly, if Molly vandalizes the mausoleum of her mother’s killer one year after having been convicted of cemetery desecration in the second degree, she may be charged with and convicted of cemetery desecration in the first degree.
- Cemetery desecration in the first degree is a class E felony
Aggravated Cemetery Desecration in the Second Degree
o NY PL § 145.26
- You commit aggravated cemetery desecration in the second degree when you open a crypt, casket or other vessel containing human remains that have been interred in a cemetery or buried, and remove the remains, without permission, and with the intent of delivering unlawful possession of the human remains to a third party.
- For example, if Devon sneaks on to the private property of another person, digs up a grave buried in the backyard of the estate, and sells the remains to a black market collector for a profit, he may be charged with and convicted of aggravated cemetery desecration in the second degree.
- Aggravated cemetery desecration in the second degree is a class E felony.
Aggravated Cemetery Desecration in the First Degree
o NY PL § 145.27
- You commit aggravated cemetery desecration in the first degree when you commit the crime of aggravated cemetery desecration in the second degree, and;
- You have been convicted of the crime(s) of cemetery desecration in the second degree, cemetery desecration in the first degree, or aggravated cemetery desecration in the second degree within the past five (5) years.
- For example, if Greg is a serial grave robber and is caught remove human remains from a grave site and has a conviction for another cemetery desecration offense, he may be charged with and convicted of aggravated cemetery desecration in the first degree.
- Aggravated cemetery desecration in the first degree is a class D felony.
Federal Statutes Governing Cemetery Desecration
Although the majority of laws pertaining to cemetery desecration are made at the state level, the federal government also has enacted legislation to protect cemeteries from desecration. Cemetery desecration is also a crime under federal law.
The PROTECT Act
Under the PROTECT Act, Congress amended the International Religious Freedom Act of 1998 to include cemetery desecration as a violation of religious freedom.
Related Offenses The Native American Graves Protection and Repatriation Act
There are also federal laws related to the protection of the graves of Native Americans. The Native American Graves Protection and Repatriation Act were enacted on November 16, 1990. This law outlines the steps that must be taken before a Native American burial site may be excavated. This law also lays out requirements for museums to possess and display Native American artifacts.
Related Offenses
Under New York, Penal Code Article 145, the related offense of criminal mischief is outlined. Criminal mischief is divided into four degrees based upon the circumstances surrounding the crime:
According to NY PL § 145.00
Criminal mischief in the fourth degree occurs when you intentionally damage the property of another without a right to do so, or when you recklessly damage the property of another and the damages are in excess of $250.
- Criminal mischief in the fourth degree is a class A misdemeanor, punishable by a jail sentence not to exceed one (1) year or probation not to exceed three (3) years, and a fine not to exceed $1000.
According to NY PL § 145.05
Criminal mischief in the third degree occurs when you cause damage to the property of another, with the intent to do so and having no right to do so, and the damage to the property is in excess of $250. Criminal mischief in the third degree is a class E felony, punishable by a jail sentence not to exceed four (4) years or probation, and a fine.
According to NY PL § 145.10
Criminal mischief in the second degree occurs when you cause damage to the property of another, with the intent to do so and having no right to do so, and the damage to the property is in excess of $1,500. Criminal mischief in the second degree is a class D felony, punishable by up to seven (7) years in jail or probation, and a fine.
According to N PL § 145.12
Criminal mischief in the first degree occurs when you cause damage to the property of another, with the intent to do so and having no right to do so, and an explosive device causes the damage to the property. Criminal mischief in the first degree is a class B felony, punishable by a jail sentence not to exceed twenty-five (25) years, and a fine.
For the above sections, the “property of another” includes all property that another person has an ownership interest in, even if another person (including the defendant) also has an ownership interest in the property. Another crime that you are likely to be charged with in addition to cemetery desecration is the crime of trespass. Trespass is codified in New York law at NY PL § 140.05. According to the statute, you commit trespass when you knowingly enter or remain unlawfully on a property.
Agencies Investigating Cemetery Desecration
State and local law enforcement officials are tasked with enforcing cemetery desecration laws. If the cemetery is located on Native American land, it may be patrolled by tribal police. Also, security guards may patrol public and private cemeteries. Due to the extremely sensitive and personal nature of cemeteries and gravesites, both law enforcement officers and prosecutors take cemetery desecration very seriously. It is important that you have a trained legal professional on your side.
Statutory Penalties For Cemetery Desecration In New York
The penalties for violating the cemetery desecration statutes in New York vary depending on the circumstances surrounding the crime.
Cemetery desecration in the second degree is a class A misdemeanor punishable by up to one (1) year in prison or three (3) years of probation, and a fine not to exceed $1,000 or double the amount of the gain from the crime. Cemetery desecration in the first degree is Class E felony, punishable by a maximum of four (4) years imprisonment or probation; and a fine.
What are the Penalties?
The penalties for aggravated cemetery desecration are more severe and differ based on the prior criminal history of the defendant in regards to cemetery desecration crimes.
Aggravated cemetery desecration in the second degree is a class E felony punishable by a maximum of four (4) years imprisonment or probation and a fine. Aggravated cemetery desecration in the first degree is a Class D felony punishable by a maximum of seven (7) years imprisonment or probation and a fine.
With the possibility of substantial jail time and steep fines, cemetery desecration charges are not something to take lightly. Do not let your freedom and reputation be irreparably harmed. Call us today to be matched with an experienced legal professional.
Defenses To Cemetery Desecration
If you have been charged with cemetery desecration, there are some defenses that may be available to you. The defenses available to you depend on the degree of cemetery desecration you are charged with.
If you are charged with cemetery desecration in the second degree, you may be able to prove that the property was not actually damaged but was merely disturbed. If the property were not actually damaged, you are likely to have the charges against you dropped. For instance, if you are accused of stealing property off of a gravesite when you, in fact, had only moved them slightly while walking through the cemetery, this could be enough to avoid a conviction. If you are charged with cemetery desecration in the first degree, you may be able to get the charged reduced to cemetery desecration in the second degree.
How Can It Be Established?
This defense can be established by proving that the damage done to the burial site is less than $250. This reduction can save you time in jail, time on probation, and money in fines. The sooner you get a knowledgeable attorney on your case, the sooner he or she can get started on building the best defense for you
Don’t Face Cemetery Desecration Charges On Your Own, Call Us Today
Cemeteries are sacred places of eternal rest and places of solemn remembrance for loved ones. Because these places hold such a special place in the lives of so many citizens, the law enforcement officials of the State of New York take cemetery desecration very seriously.
A conviction for cemetery desecration can cost you several years of your freedom and thousands of dollars in fines and restitution. Any unrepresented interaction you have regarding your cemetery desecration charge can lead to harsh penalties for you. It is imperative that you get a lawyer on your side as soon as possible. For any questions regarding cemetery desecration or related crimes and how to find an experienced criminal defense attorney in your area, please reach out to us today.