People v Acevedo
Annotate this CaseDecided on November 29, 2017
Criminal Court of the City of New York, New York County
The People of the State of New York
against
William Acevedo, Defendant.
2017NY035973
For the Defendant:Bennett M. Epstein, of Counsel
For the People:Cyrus R. Vance, Jr., District Attorney, New York County
(Lindsey Stearns, of Counsel)
Heidi C. Cesare, J.
Defendant, WILLIAM ACEVEDO, charged in a two-count information with making graffiti (Penal Law § 145.60 [2]) and possession of graffiti instruments (Penal Law § 145.65), moves to dismiss both counts of the information pursuant to Criminal Procedure Law §§ 170.30 and 170.35 on the ground that each count is facially insufficient. The sole issue presented is whether intent to damage, an element essential to both counts, is sufficiently plead by the allegations that defendant, using a brush dipped in glued, pasted a poster bill onto the wooden barrier of a construction site without the permission or authority of the custodian of the property. For the reasons stated below, defendant's motion to dismiss is denied.[FN1] Defendant's remaining motions are addressed below.
The Allegations
The present information provides that at a certain time and place an officer observed the defendant paste a poster bill onto the wooden barrier of a construction site with a brush dipped in glue. The factual allegations further provide that the custodian of the property did not give defendant permission or authority to paste the poster bill on the barrier.
Facial Sufficiency
A facially sufficient information must contain non-hearsay factual allegations providing reasonable cause to believe that the People can prove every element of the crime charged (CPL 100.40 [1] [b], [c]; People v Alejandro, 70 NY2d 133 [1988]). Reasonable cause to believe that a person has committed an offense "exists when evidence or information which appears reliable [*2]discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it" (CPL 70.10 [2]). A court reviewing for facial sufficiency must assume that the factual allegations contained in the information are true and must consider all reasonable inferences that may be drawn from them (People v Jackson, 18 NY3d 738, 741 [2012]; see CPL 100.40 [1] [c]). Further, "[s]o long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading" (People v Casey, 95 NY2d 354, 360 [2000]).
Intent to damage property is sufficiently pled.
Penal Law § 145.60 (2) provides that "No person shall make graffiti of any type on any building, public or private, or any other property real or personal owned by any person, firm or corporation or any public agency or instrumentality, without the express permission of the owner or operator of said property." Penal Law § 145.60 (1) defines the term "graffiti" as "the etching, painting, covering, drawing upon or otherwise placing of a mark upon public or private property with intent to damage such property." Penal Law § 145.65 provides that "A person is guilty of possession of graffiti instruments when he possesses any tool, instrument, article, substance, solution or other compound designed or commonly used to etch, paint, cover, draw upon or otherwise place a mark upon a piece of property which that person has no permission or authority to etch, paint, cover, draw upon or otherwise mark, under circumstances evincing an intent to use same in order to damage such property." Common to each charge is the essential element of intent to damage property.
The culpable mental state under each statute (Penal Law §§ 145.60 [2] and 145.65) is that the accused acted with intent to mark or deface property with no right nor any reasonable ground to believe that he had such a right to so mark or deface (See, People v Vinolas, 174 Misc 2d 740, 745 [Crim Ct New York County 1997]]; see also, Donnino, Practice Commentaries, Penal law § 140.60). Intent "may be inferred from conduct as well as the surrounding circumstances" (People v Hatton, 26 NY3d 364, 370 [2015] [internal quotation marks omitted]).
As the Penal Law offers no definition of the term "damage," the court gives the term its "ordinary" and "commonly understood" meaning (People v Versaggi, 83 NY2d 123, 129 [1994]). The term has been held to "contemplate[] injury or harm to property that lowers its value or involves loss of efficiency" (People v Collins, 288 AD2d 756, 758 [3d Dept 2001] [internal quotation marks omitted]). In determining the meaning of statutory language, courts have regarded dictionary definitions as "useful guideposts" (People v Ocasio, 28 NY3d 178, 181 [2016] [internal quotation marks omitted]). The Oxford English Dictionary (3d Ed 2010) offers the following definition, both consistent with and a bit broader than the Collins formulation: "physical harm caused to something in such a way as to impair its value, usefulness, or normal function." This court incorporates both definitions. On this basis, this court finds that intent to damage is shown when the accused acted with intent to mark or deface property, with no right nor any reasonable ground to believe that he had such a right to do so, in a manner that would impair the value, usefulness, or normal function of the property.
The pertinent allegations here are that defendant pasted a poster bill onto the wooden barrier of a construction site with a brush dipped in glue, and that he did so without the permission or authority of the custodian of the property. On these allegations, the court may [*3]reasonably infer that defendant intended to mark or deface the wooden barrier. The court may also reasonably infer that the normal function of the wooden barrier was to surround and protect a construction site, and that the cost of returning the barrier to its original condition, involving materials and labor, would be measurable however slight. Defendant's unsolicited use of the wooden barrier as an advertising platform had the potential to damage the property as the defendant's intended actions could lower the value of the property as well as alter the normal function of the barrier. As the defendant's intent to mark or deface the property may reasonably be inferred from his conduct, and as defendant's intended actions were reasonably likely to cause damage to the property of another, this court finds that intent to damage property is sufficiently plead.
Conclusions
Defendant's motion to dismiss for facial insufficiency is denied.
Defendant's motion for a Huntley/Dunaway hearing is granted.
Defendant's motion to compel a bill of particulars and discovery is granted to the extent provided in the People's Voluntary Discovery Form.
Defendant's motion for a Sandoval hearing is reserved to the trial part.
The People are reminded of their continuing obligations under Brady v Maryland (373 US 83 [1963]), and this Decision and Order incorporates by reference the accompanying Order to Counsel in Criminal Cases dated November 29, 2017.
The right to make further motions is granted to the extent indicated in CPL 255.30 (3).
This constitutes the Decision and Order of the Court.
November 29, 2017
New York, New York
Heidi C. Cesare, J.C.C. Footnotes
Footnote 1: In evaluating defendant's motion, the court has considered all submissions by the parties, all documents in the court file, and all relevant cases and statutes.
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