New York Penal Law § 145.65 – Possession of Graffiti Instruments

Possession of Graffiti Instruments is a crime that prohibits the possession of certain tools, instruments and other objects that are commonly used to make graffiti where the circumstances suggest that the person possessed the object to damage another’s property. Possession of Graffiti Instruments is a Class B misdemeanor.

Before a judge or jury can convict anyone of a graffiti crime, the government must prove each element of the offense beyond a reasonable doubt. The elements of Possession of Graffiti Instruments are:

• The defendant possessed a tool, instrument, substance or solution that is commonly used to place a mark on property;
• The defendant possessed the object under circumstances suggesting that they intended to use the object to cause damage to another’s property without the owner’s permission.

While the term graffiti usually refers to tagging or using spray paint to put up a word or symbol, in this context, the term has a broader meaning and includes any “etching, painting, covering, drawing upon or otherwise placing of a mark.”

Most examples of Possession of Graffiti Instruments are fairly obvious and include the following:

• A person who wasn’t actively creating graffiti was arrested with six cans of spray paint while standing in a group of others who were creating graffiti;
• A teenager with a pocket knife is caught by a bus driver attempting to scratch something into the seat in front of him; and
• A person is stopped by transit police while trespassing in the subway tunnels, and they have a backpack containing several cans of spray paint.

Often, prosecutors bring Possession of Graffiti Instruments charges along with one or more of the following:

• Making Graffiti– NY Penal Law § 145.60
• Criminal Mischief in the Fourth Degree – NY Penal Law § 145.00
• Criminal Mischief in the Third Degree – NY Penal Law § 145.05
• Criminal Mischief in the Second Degree – NY Penal Law § 145.10
• Criminal Tampering in the Third Degree – NY Penal Law § 145.14
• Criminal Tampering in the Second Degree – NY Penal Law § 145.15
• Cemetery Desecration in the Second Degree – NY Penal Law § 145.15
• Cemetery Desecration in the First Degree – NY Penal Law § 145.23

There are several defenses to Possession of Graffiti Instruments that can either reduce your sentencing exposure or result in the prosecution withdrawing the case against you or the jury returning a “not guilty” verdict. Because the term “graffiti Instrument” is very broad, most defenses relate to the intent element of the offense. For example, the most common defenses include the following:

• Insufficient evidence you intended to use the object to create graffiti;
• You possessed the object for reasons related to your employment;
• You intended to use the object to create graffiti on property you owned; and
• You had the owner’s permission to make graffiti on their property.

Possession of Graffiti Instruments is a Class B misdemeanor. In New York, Class B misdemeanor offenses carry a maximum sentence of up to three months in jail and a fine of up to $500.

If you were recently charged with Possession of Graffiti Instruments, you shouldn’t resign hope as there are several defenses that may result in the prosecution withdrawing the case against you. The dedicated New York graffiti attorneys at Tilem & Associates, P.C. have a history of defending clients charged with property crimes and knows what it takes to secure the best possible result in even the toughest cases. We are immediately available to meet with you to get started working on a compelling defense to the charges you face. To learn more, and to schedule a free consultation today, call 877-377-8666. You can also reach us through our online contact form.