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NY Penal Law § 145.65: Possession of Graffiti Instruments

June 30, 2020 Federal Criminal Attorneys

New York has a number of laws aimed at penalizing individuals who damage the property of another individual. One of these laws makes it illegal to deface property with graffiti.  It is illegal under New York Penal Law § 145.60 to deface property by etching, covering, painting, drawing upon or otherwise marking on another person’s property without the permission of that person. Not only is it illegal to make graffiti on property that is owned by another individual, it is also illegal to possess the tools you would use to make graffiti. Under New York Penal Law § 145.65 you would face prosecuted for possession of graffiti instruments if you have in your possession any tool or substance that is designed or normally used to make graffiti, and you possess these items under circumstances that demonstrate that you have the intent to use the tool or substance to deface the property of another person with graffiti.

An Example

Pablo was walking down the street with a duffel bag in his hand. His clothing and hands had paint stains of various colors all over them. Around this time, the police were investigating a report of an individual making graffiti on a building in the area where they spotted Pablo coming around the corner with his bag. On a strong suspicion that Pablo was the one responsible for the graffiti, the police stopped him and took a look inside the bag he was carrying.  What they saw was a number of aerosol cans of paint.  The paint in the bag and on his hands and clothes matched the colors of the graffiti that was recently painted on the nearby building. Under these circumstances, Pablo could get charged with the crime of possession of graffiti instruments. 

Offenses that are Related

Making Graffiti: New York Penal Law § 145.60

Trespass: New York Penal Law § 140.05

Criminal mischief in the fourth degree: New York Penal Law § 145.00

Possible Defenses

In order for you to get convicted of the crime of possession of graffiti instruments, it must be demonstrated that you had the intent to use the articles found in your possession to make graffiti. Simply having the items in your possession is not enough, since many items customarily used to make graffiti have other, innocuous applications. If there is no evidence that you had plans to use the instruments for making graffiti on someone’s property without permission, you will not be convicted of this crime.

The Sentence

Due to the fact that possession of graffiti instruments is a Class B misdemeanor, if you are convicted, the maximum possible sentence that you could be looking at is 3 months in jail. In lieu of jail time, the judge will have the option of sentencing you to a 1 year probation term. On top of that, you may be ordered to pay a fine to the court and participate in a community service program that is designed to reduce the amount of graffiti in New York.

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