Graffiti in New York
Are You At Risk Of Prosecution For Graffiti In New York?
Graffiti is ubiquitous in certain areas of New York. Due to the epidemic of graffiti, the State of New York enforces laws to discourage any marking of buildings without express permission.
There are various situations you may find yourself in that may lead to accusations of graffiti-related offenses, such as:
- Covering the property of another with a poster or flyer
- Altering the property of another with the purpose of improving it
- Being in possession of spray paint in an area close to private property
The Legal Definition Of Graffiti
New York Penal Code Article 145.60 and Article 145.65 outline the crimes of Making Graffiti and Possession of Graffiti Instruments, respectively. Making Graffiti is a Class A Misdemeanor. The elements of making graffiti are the individual things the prosecutor must prove in order to convict you of the offense. In order for you to be found guilty, all of the following must be proven true:
- You made graffiti of some sort.
- Said graffiti was placed on a public or private structure or other property not belonging to you.
- You did not have the explicit permission of the property owner.
So as to find a better understanding of how the crime of making graffiti works, let’s take a deeper look at each of the elements individually.
The first element is the making of graffiti of some sort. Graffiti is defined as etching, painting, covering, drawing, or placing some other type of marking upon another’s private or public property, with the intent to damage said property.
This element is a purposefully vague definition of what fits under the umbrella of graffiti. For example, Neil uses a can of spray paint to write his name in all capital letters on the side of a building.
The second element is that the graffiti be placed on a structure or other property not belonging to you. This element is pretty self-explanatory. If you place graffiti on any property that you do not own, you have satisfied the element.
In the case of jointly owned property, the permission of all owners must be obtained. For example, Ben paints a giant bear on the side of his co-worker Aaron’s house.
The final element of the crime of making graffiti is that you did not have the property owner’s permission to place the graffiti. “Hence lack of permission or authority to etch or mark on the property of another is a material element of the crime.”
In order to satisfy the final element, it must be proven that you did not have the property owner’s permission to place the graffiti. For example, Will sneaks onto his local high school’s track (where he is a groundskeeper) and spraypaints words of encouragement for runners in the middle of the track.
In order to get a better understanding of how the crime of possession of graffiti instruments works, let’s take a deeper look at each of the elements individually.
In addition to charges of making graffiti and/or possession of graffiti instruments, you may also be charged with other related offenses.
Related Offense #1
Cemetery Desecration in the First Degree (NY PL Section 145.23), and Cemetery Desecration in the Second Degree (NY PL Section 145.22) define the desecration of a cemetery in the second-degree, as when someone intentionally damages any real property maintained at a cemetery or place of internment.
If the damage caused is in excess of $250, the crime rises to cemetery desecration in the first- degree. And if you have been convicted of cemetery desecration in the second-degree in the past five (5) years, the crime will be in the first degree regardless of the amount of the damages.
For example, if Joe enters a cemetery and paints graffiti on a large mausoleum and the cost to remove the graffiti is $400, Joe will likely be charged with cemetery desecration in the first degree.
Cemetery desecration in the second degree is a Class A Misdemeanor, cemetery desecration in the first degree is a Class E Felony.
Related Offense #2
Unlawfully Posting Advertisements (NY PL Section 145.30) is defined as when a person unlawfully posts advertisements, or when he/she posts, paints, or affixes in some way an advertisement to the property of another and that advertisement benefits someone other than the property owner.
It can be assumed in the case of a commercial advertisement, that the vendor of the particular product placed the advertisement. For example, if Todd posts a comedy show lineup for his comedy club on the side of a local restaurant, he is likely to be charged with unlawfully posting advertisements. And unlawfully posting advertisements is a violation
Related Offense #3
Criminal Mischief in the Fourth Degree (NY PL Section145.00), Criminal Mischief in the Third Degree (NY PL Section145.05), and Criminal Mischief in the Second Degree (NY PL Section145.10) define the act of committing criminal mischief in the fourth-degree, as when a person intentionally or recklessly damages the property of another, knowing he/she had no right to do so.
The crime can carry varying elements and charges, such as:
- The crime is elevated to the third degree if the amount of the damage is in excess of $250.
- The crime is further elevated to the second degree if the amount of the damage is in excess of $1,500.
For example, if Jen paints graffiti on her neighbor’s shed and the graffiti cannot be successfully removed, the degree of the offense will depend on the value of the shed.
Criminal Mischief in the Fourth Degree is a Class A Misdemeanor, while Criminal Mischief in the Third Degree is a Class E Felony. And Criminal Mischief in the Second Degree is a Class D Felony.
Related Offense #4
Trespass NY PL Section 140.05 states a person commits trespassing when he/she knowingly enters and remains upon premises unlawfully. For example, if Trevor climbs the fence into his neighbor’s yard, he may be charged with trespassing. And trespassing is a violation.
Agencies Investigating and Prosecuting Graffiti Crimes
The city and state of New York take the crime of making graffiti very seriously. This is evident when you realize the NYPD has an entire squadron tasked with eradicating graffiti. The NYPD’s Vandal Squad is constantly pursuing active and prominent graffiti artists. Since the NYPD has its own dedicated squad for graffiti, it only makes sense for you to have a team of experienced litigators in your corner.
In addition to this dedicated squad, the entire NYPD is constantly on the lookout for graffiti crimes. Due to the prevalence of graffiti in the city, there has been an increased emphasis placed on the prevention of graffiti making, and it is not just in the city.
Law enforcement officials throughout the state are always staying vigilant against graffiti. With the amount of surveillance in New York and the countless law enforcement officers dedicated to preventing graffiti, it is important to have a dedicated legal professional on your side.
Penalties for Violating Graffiti Statutes
The penalties for graffiti-related offenses are far harsher than you may think. Making graffiti is a class A misdemeanor, punishable by a one-year prison sentence. Even if you are able to avoid jail time, you are very likely to face a term of probation of up to three years. You may also be required to pay a fine or restitution of $1,000 to the property owner.
Possession of graffiti instruments is a class B misdemeanor, punishable by a three-month prison sentence. You may be given probation in lieu of prison. You may also be required to pay a fine of $500. As you can see, facing an indictment with charges for making graffiti and possession of graffiti instruments can carry serious consequences for your finances and your freedom.
For making graffiti and committing related offenses, there are certain situations in which a sentence enhancement may be added. In the case of cemetery desecration, a previous conviction within the past five years for cemetery desecration will automatically elevate the offense to a first-degree offense.
Legal Defenses to Graffiti Crimes
There are some legal defenses that may be available to protect against charges of making graffiti or possession of graffiti instruments:
Defense #1 – Permission
The crimes of making graffiti and for being in possession of graffiti instruments require the act of creating graffiti to be done so without permission. In this case, you may be able to claim that the owner of the property gave you permission to place the graffiti on the property.
In some cases, the prosecution may fail to prove that a defendant lacked permission to mark the property. If a city official or other proper entity can refute the charge of entry or mark without permission, a charge may be dismissed.
If a friend asks you to draw a mural on the side of his home while he is out of town on business, an officer may arrest you. In court, you will have the defense of permission and will be able to have your friend inform the court of such.
In some instances, there may be a property that is owned by more than one person. You may be able to claim that the other owners of the property gave you permission. Even if you own a property jointly with others, you must obtain their permission before making graffiti. You can argue that the other owners of the property allowed you to make graffiti on the property in a way that would benefit the property.
Defense #2 – Improvement
Another possible defense to the crime of making graffiti is the intent behind creating it. You may be able to argue that the graffiti you created on the property enhances the property’s value rather than decreasing it.
There are times where you can argue the graffiti that you made did not damage the property, but rather added value and improved it. This can be this case when making positive and inoffensive art in an appropriate space. An instance of this occurred when a man spray-painted a small fairy on the sidewalk on the public sidewalk in front of an Elementary School.
Another example of a possible scenario for this defense would be if you painted a unity mural on a decrepit wall of a local community center.
We Are Here To Help, Call Us Now!
Although graffiti may seem to be a minor crime to some, law enforcement officials in New York do not share this opinion. There is an entire squadron dedicated to the eradication of graffiti. If you are arrested for a graffiti-related offense, it is important to contact one of our experienced attorneys immediately.
Any interrogation that occurs without an attorney can produce damning evidence against you in your trial. You need time to work with your attorney to build up a proper defense. You may be facing up to one year in prison if you are convicted, so every second counts.
For any question about making graffiti, or for being in possession of graffiti instruments in New York, or to have a confidential discussion with one of our knowledgeable criminal defense attorneys, please reach out and contact us today. We have an office nearby that can assist you.
 People v Acevedo, — Misc 3d —, 2017 N.Y. Slip Op. 27386 [Crim Ct, NY County 2017]
 People v Gusqui, — Misc 3d —, 2015 N.Y. Slip Op. 25239 [Crim Ct, Queens County 2015]
 People v Karina A., — A.D.3d —, 2013 N.Y. Slip Op. 00047 [App Div, 1st Dept 2013]
 People v Thomas, — Misc 3d —, 2014 N.Y. Slip Op. 24407 [Ithaca City Ct 2014]