Bill S654-2013

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

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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  • Jan 8, 2014: REFERRED TO CODES
  • Jan 9, 2013: REFERRED TO CODES

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.


Text

STATE OF NEW YORK ________________________________________________________________________ 654 2013-2014 Regular Sessions IN SENATE (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
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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