New York state law aims to protect property from being damaged; these laws make it illegal not only to deface property with graffiti but to possess the materials used for graffiti. New York’s Penal Law §145.65 for Possession of Graffiti Instruments can earn you a criminal charge that stays on your record for life.
What are Graffiti Tools
Tools of graffiti can constitute anything used in making graffiti. Most often, these are cans of spray paint, but they might also include etching tools, stencils, or even markers. What you likely notice is that thee tools are common and, on their own, are not illegal. Usually circumstances must point to these items being used in graffiti. For instance, if you were found with a spray can near freshly painted graffiti or purchased large amounts of a type of paint that had been used in graffiti in the area.
What is Graffiti?
It is important to know that graffiti is not merely painting a mural on a building. Graffiti is painting, engraving, or otherwise marking without permission or authority. If you own the building or have permission from the owner to paint, design or otherwise mark the property, that is not graffiti, even if it resembles traditional graffiti or if neighbors to the building do not like the finished artwork.
Defending Against the Charge
Because the tools used for graffiti are so common, the strongest defense to a charge of Possession of Graffiti Instruments is to argue that there is no evidence that you intended to use the tools to make graffiti. If the state cannot provide evidence that you intended to use the tools for graffiti, it cannot convict you of the crime. The prosecution must have some clear connection between your possession of the graffiti tools and an intent to commit graffiti.
Another defense is attacking the “permission” element of the crime. If you have permission, or at least had reason to believe you had permission, to decorate the property, your decorations cannot constitute graffiti.
Possession of Graffiti Instruments is a Class B misdemeanor under New York Law and carries a maximum possible sentence of three months in jail. However, like many crimes, the judge is granted discretion to issue alternative sentencing. You could instead be ordered to pay a fine or participate in community service with an organization that works to clean up littering or graffiti in the state.
The judge could also choose to sentence you to probation for up to one year in jail. While probation may seem like a much lighter sentence than jail time, you should take it seriously. If you have been sentenced to unsupervised probation, any repeat offenses could lead to jail time or additional penalties. If you are sentenced to supervised probation, you could be subject to random drug tests, warrantless searches, and regular reports to your probation officer.
Post Sentencing Consequences
Although it can be easy to dismiss the seriousness of this charge, a conviction of Possession of Graffiti Instruments can have long-lasting consequences. This is especially true if this is your first-ever criminal conviction. Although it is a low-level misdemeanor, Possession of Graffiti Instruments is still a criminal charge that will give you a criminal record. This can impact your ability to find employment and obtain housing.
If you ever find yourself charged with another crime in the future, it can also impact the seriousness of your sentencing. Judges are less likely to be lenient for repeat offenders.
That is why it is important to mount the strongest defense as soon as possible. A solid defense can prevent lifelong consequences.