senate Bill S654

Expands scope of criminal mischief to include cases wherein a person intentionally damages property of another with intent to harass, annoy, or alarm

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Sponsor

Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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actions

  • 09 / Jan / 2013
    • REFERRED TO CODES
  • 08 / Jan / 2014
    • REFERRED TO CODES

Summary

Expands scope of criminal mischief to include cases wherein a person intentionally damages property of another with intent to harass, annoy, or alarm; permits offenders to be prosecuted notwithstanding their own partial interest in the property; includes second through four degrees of criminal mischief within the scope of "family offenses."

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Bill Details

Versions:
S654
Legislative Cycle:
2013-2014
Current Committee:
Senate Codes
Law Section:
Penal Law
Laws Affected:
Amd ยงยง145.00, 145.05 & 145.10, Pen L
Versions Introduced in Previous Legislative Cycles:
2011-2012: S1666
2009-2010: S124

Sponsor Memo

BILL NUMBER:S654

TITLE OF BILL:
An act
to amend the penal law,
in relation to criminal mischief in certain cases

PURPOSE OR GENERAL IDEA OF BILL:
Expands the scope of the crime of
criminal mischief to include cases wherein a person intentionally
damages property of another with the intent to harass, annoy, or
alarm, in order to address cases of domestic violence that include
property damage.

SUMMARY OF SPECIFIC PROVISIONS:
Section 1 of the bill amends the
Penal Law sections 145.00, 145.05, and 145.10, to add an element to
each count of criminal mischief to cover a situation where a person,
with intent to harass, annoy, or alarm another person, intentionally
damages property in which the other person has a possessory or
proprietary interest, which property may include marital property.
Section 2 of the bill
amends the Criminal Procedure Law to add criminal mischief to the
list of family offenses.
Section 3 of the bill amends the Family Court
Act to add criminal mischief to the list of family offenses.

JUSTIFICATION:
This law corrects the holding in PEOPLE v. PERSON
658 NYS2d 372 (2nd Dep't 1997) that a husband can not be charged with
criminal mischief when he destroys the personal property of his
estranged wife because the property was marital property in which
the husband had a proprietary interest In that case, Mr Person
forcibly entered Ms. Person's dwelling, assaulted her, and destroyed
her clothing, toiletries, the contents of her handbag, and various
items of household furnishings. Although convicted of criminal
mischief in the fourth degree at the trial level, the Appellate
Division reversed, holding that "because the defendant had an
equitable interest in the items he was charged with damaging or
stealing... he could not be charged with these crimes" The PERSON
case misapplies the Domestic Relations Law, which defines marital
property for purposes of equitable distribution, to a domestic
violence crime under the Penal Law. As the New York State Commission
on Domestic Violence Fatalities stated in its 1997 report to the
Governor: "The court in PERSON appears to have equated marital
property for purposes of distribution between the parties upon
divorce, with household property in which a spouse has at least a
proprietary
interest The explanatory comment published with the Criminal
Mischief sections of the Penal Law states: 'Property is that of
another person...if anyone, other than the defendant, has a
possessory or proprietary interest in such tangible property." The
Commission recommended legislation to clarify that the criminal
mischief sections of the Penal Law do apply when a person destroys
marital or jointly owned property, committing a form of domestic
violence. Aggressors in domestic disputes often commit domestic


violence by destroying or damaging property of their victim with the
intent to harass, annoy, or
alarm. This type of behavior is a form of domestic violence which the
PERSON case in effect sanctions. The case directly contradicts the
strong public policy in this State of protecting the victims of
domestic violence. The bill implements this policy by amending each
count of criminal mischief to include sanctions where a person has a
possessory or proprietary interest with the intent to annoy, harass
or alarm that other person. Lastly, the bill includes the crime of
criminal mischief in the 2nd, 3rd, and 4th degree in the list of
crimes that can constitute a family offense under the Criminal
Procedure Law and the Family Court Act so that victims of this form
of domestic violence have the option of going to Family Court for an
order of protection when a person commits domestic violence by
destroying property.

PRIOR LEGISLATIVE HISTORY:
S.7612 of 2008
04/17/08 Referred to Codes
S.1666 of 2011
01/11/11 REFERRED TO CODES
01/04/12 REFERRED TO CODES

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
This act shall take effect on the
first of November
next succeeding the date on which it shall have become law.

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                   654

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced  by  Sen. SAMPSON -- read twice and ordered printed, and when
  printed to be committed to the Committee on Codes

AN ACT to amend the penal law,  in  relation  to  criminal  mischief  in
  certain cases

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Sections 145.00, 145.05,  and  145.10  of  the  penal  law,
section  145.00  as  amended  by chapter 69 of the laws of 2008, section
145.05 as amended by chapter 276 of the laws of 2003 and section  145.10
as  amended  by  chapter 961 of the laws of 1971, are amended to read as
follows:
S 145.00 Criminal mischief in the fourth degree.
  A person is guilty of criminal mischief in the  fourth  degree  [when,
having]:
  1.  HAVING no right to do so nor any reasonable ground to believe that
he or she has such right, he or she:
  [1.] (A) Intentionally damages property of another person; or
  [2.] (B) Intentionally participates in the destruction of an abandoned
building as defined in section one thousand nine  hundred  seventy-one-a
of the real property actions and proceedings law; or
  [3.]  (C)  Recklessly  damages property of another person in an amount
exceeding two hundred fifty dollars; or
  [4.] (D) 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:  [(a)]
(I)  is attempting to seek or is engaged in the process of seeking emer-
gency assistance from police, law enforcement, fire or emergency medical
services personnel; or [(b)] (II) is attempting to seek or is engaged in
the process of seeking emergency assistance from another person or enti-
ty in order to protect himself, herself or a third person from  imminent

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02080-01-3

S. 654                              2

physical  injury.  The fact that the defendant has an ownership interest
in such equipment shall not be a defense to a charge  pursuant  to  this
subdivision[.]; OR
  2.  HAVING  NO RIGHT TO DO SO AND WITH THE INTENT TO HARASS, ANNOY, OR
ALARM ANOTHER PERSON, HE OR SHE INTENTIONALLY DAMAGES MARITAL  PROPERTY,
AS  DEFINED  IN  PARAGRAPH C OF SUBDIVISION ONE OF PART B OF SECTION TWO
HUNDRED THIRTY-SIX OF THE DOMESTIC RELATIONS LAW, IN  WHICH  THAT  OTHER
PERSON AND THE ACTOR SHARE A POSSESSORY OR PROPRIETARY INTEREST.
  Criminal mischief in the fourth degree is a class A misdemeanor.
S 145.05 Criminal mischief in the third degree.
  A person is guilty of criminal mischief in the third 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 or she has  such  right,
he or she:
  1.  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  ten year period, has been convicted three or more
times, in separate criminal transactions for which sentence was  imposed
on  separate  occasions,  of  criminal  mischief in the fourth degree as
defined in section 145.00, criminal mischief  in  the  third  degree  as
defined  in  this  section,  criminal  mischief  in the second degree as
defined in section 145.10, or criminal mischief in the first  degree  as
defined in section 145.12 of this article; [or]
  2.  damages  property  of  another  person  in an amount exceeding two
hundred fifty dollars[.]; OR
  3. WITH THE INTENT TO HARASS, ANNOY, OR ALARM  ANOTHER  PERSON  INTEN-
TIONALLY DAMAGES MARITAL PROPERTY, AS DEFINED IN PARAGRAPH C OF SUBDIVI-
SION  ONE  OF  PART  B OF SECTION TWO HUNDRED THIRTY-SIX OF THE DOMESTIC
RELATIONS LAW, IN AN AMOUNT EXCEEDING  TWO  HUNDRED  FIFTY  DOLLARS,  IN
WHICH  THAT OTHER PERSON AND THE ACTOR SHARE A POSSESSORY OR PROPRIETARY
INTEREST.
  Criminal mischief in the third degree is a class E felony.
S 145.10 Criminal mischief in the second degree.
  A person is guilty of criminal mischief  in  the  second  degree  when
[with]:
  1.  WITH  intent  to  damage 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 one thousand five hundred dollars[.]; OR
  2. HAVING NO RIGHT TO DO SO AND WITH THE INTENT TO HARASS,  ANNOY,  OR
ALARM  ANOTHER PERSON, HE OR SHE INTENTIONALLY DAMAGES MARITAL PROPERTY,
AS DEFINED IN PARAGRAPH C OF SUBDIVISION ONE OF PART B  OF  SECTION  TWO
HUNDRED THIRTY-SIX OF THE DOMESTIC RELATIONS LAW, IN AN AMOUNT EXCEEDING
ONE  THOUSAND  FIVE  HUNDRED DOLLARS, IN WHICH THAT OTHER PERSON AND THE
ACTOR SHARE A POSSESSORY OR PROPRIETARY INTEREST.
  Criminal mischief in the second degree is a class D felony.
  S 2. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.

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