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P. Simmons
P. Simmons, Lawyer
Category: Criminal Law
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Experience:  16 yrs. of experience including criminal law.
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criminal mischief...although unintentional

Customer Question

''criminal mischief''...although unintentional or planned, car marked by finger ring with hand ''slap'' and subsequent marking; can charges
Submitted: 6 years ago.
Category: Criminal Law
Expert:  P. Simmons replied 6 years ago.
I have pasted the NY statutes below and will post my comments below that

ARTICLE 145
CRIMINAL MISCHIEF AND RELATED OFFENSES
Section 145.00 Criminal mischief in the fourth degree.
145.05 Criminal mischief in the third degree.
145.10 Criminal mischief in the second degree.
145.12 Criminal mischief in the first degree.
145.14 Criminal tampering in the third degree.
145.15 Criminal tampering in the second degree.
145.20 Criminal tampering in the first degree.
145.22 Cemetery desecration in the second degree.
145.23 Cemetery desecration in the first degree.
145.25 Reckless endangerment of property.
145.30 Unlawfully posting advertisements.
145.35 Tampering with a consumer product; consumer product defined.
145.40 Tampering with a consumer product in the second degree.
145.45 Tampering with a consumer product in the first degree.
145.50 Penalties for littering on railroad tracks and rights-of-way.
145.60 Making graffiti.
145.65 Possession of graffiti instruments.
145.70 Criminal possession of a taximeter accelerating device.

S 145.00 Criminal mischief in the fourth degree.
A person is guilty of criminal mischief in the fourth degree when,
having no right to do so nor any reasonable ground to believe that he
has such right, he:
1. Intentionally damages property of another person; or
2. Intentionally particpates 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. Recklessly damages property of another person in an amount
exceeding two hundred fifty dollars.
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 has such right, he
damages property of another person in an amount exceeding two hundred
fifty dollars.
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
intent to damage property of another person, and having no right to do
so nor any reasonable ground to believe that he has such right, he
damages property of another person in an amount exceeding one thousand
five hundred dollars.
Criminal mischief in the second degree is a class D felony.

S 145.12 Criminal mischief in the first degree.
A person is guilty of criminal mischief in the first 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 has such right, he
damages property of another person by means of an explosive.
Criminal mischief in the first degree is a class B felony.

Based on your description, seems the only possible charge is in 4th degree...there the state has to prove intent...that you had a desire to do damage, or that your conduct was reckless and the damage over $250.

To cut in paint on a new care will cost $250 I gather...unless real minor. So they state will have to prove you acted in a "reckless" manner.

Reckless means careless to the point of being heedless of the consequences ("grossly" negligent). Most commonly this refers to the traffic misdemeanor "reckless driving." It can also refer to use of firearms (shooting a gun in public place),

SO, if the damage was over $250 and they can prove you acted in a reckless manner they have a case...if you can show less than $250 or that you were dumb but not reckless, you will win

Please let me know if you have questions else please hit the green button, its the only way i get paid
P. Simmons, Lawyer
Category: Criminal Law
Satisfied Customers: 26501
Experience: 16 yrs. of experience including criminal law.
P. Simmons and 7 other Criminal Law Specialists are ready to help you
Customer: replied 6 years ago.
can this be handled 'pro se' with success and
the 'victim' is also claiming other damage
inflicted by me even though the nature of the backhanded 'slap'(only once) could not have dented any cars sheet metal..only a direct punch might have and that didnt happen
Expert:  P. Simmons replied 6 years ago.
Well, I always recommend a good lawyer with experience in a criminal matter.

That said, it depends on the facts. If your not guilty your not guilty and if the case is not even close...that is if the government can not prove the case, they can not provet the case.

If the damage is less than $250 you are in great shape

BUT, recklessness is subjective term...an experienced professional may be of help here.

I would go to the arraignment and see if you can get a copy of discovery that shows cost to repair car...if less than $250 go the prosecutor and I suspect they will drop. Otherwise I would get a lawyer

P. Simmons, Lawyer
Category: Criminal Law
Satisfied Customers: 26501
Experience: 16 yrs. of experience including criminal law.
P. Simmons and 7 other Criminal Law Specialists are ready to help you
Customer: replied 6 years ago.
OK, now the final one, what is the legal
consequence of the A misdemeanor and E felony
for criminal mischief....fines?   if guilty
as such...
Expert:  P. Simmons replied 6 years ago.
Felony is without a doubt much worse than a misdemeanor. From what you describe, I suspect this would be charged as misdemeanor and not a felony

Both would show up on your record (again, felony looks worse)

For first offense, I would guess this would be a fine, community service and or probation,
P. Simmons, Lawyer
Category: Criminal Law
Satisfied Customers: 26501
Experience: 16 yrs. of experience including criminal law.
P. Simmons and 7 other Criminal Law Specialists are ready to help you
Customer: replied 6 years ago.
last question, i hope...what are the laws in NY
on taping a phone conversation??   i have a
suspicion when i challenge the alleged 'damage'
much of which not created by me, that he will
'threaten' filing charges if i dont pay him the
estimate for damages complete, whihc is now 375.00...can i use a recording of this phone
converstion w/o telling him??
Expert:  P. Simmons replied 6 years ago.
Its a 1 party state...only one party (typically the recording party) needs to have knowledge...so they could legally record w/o your knowledge and it would be legal
Customer: replied 6 years ago.
one more..if person rejects less money for damages
i claim not to be from me(and they arent), does he
still have right to proceed with criminal mischief
charges as a form of 'extortion?' pay me or else?(which is where the tape recording will come in)...it was his idea to settle w/o court in the first place....or does his refusal end up in small
claims instead of criminal by default?
Expert:  P. Simmons replied 6 years ago.
Hmm

Well, technically yes...a person can press charges for criminal mischief even if you pay, though I doubt Law Enforcement would send this up or that it would be prosecuted.

The question you pose...It is a form of extortion...is interesting since this would open both of you up to liability (this would not excuse your conduct)

I recommend to meet in the middle if you can

best of luck

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