Criminal Mischief Becomes a New Family Offense

October 1, 2007

Author: Amy Schwartz

New York’s Response to Criminal Mischief in the Domestic Violence Context

Destruction of or damage to property has long been a common domestic violence tactic utilized by abusers to threaten, retaliate, terrorize or maintain power and control.  While the type of harm to property is limited only by the offender’s access to the victim and his creativity, some typical examples may include: destruction of landlines or cellular phones, disabling phones by pulling cords from the walls, destroying furniture or other household items, breaking windows in a home or car, breaking doors or disabling locks, vandalizing the victim’s vehicle or intentionally involving the vehicle in an accident, injuring or killing a family pet or farm animal, destroying the partner’s clothing, jewelry or items of sentimental value.   
 
Despite the prevalence of these abusive tactics in the intimate partner violence context, New York’s law enumerating the domestic violence crimes called “family offenses” under both the Criminal Procedure Law1 and the Family Court Act2 did not specifically include conduct of this nature.  As a result, domestic violence victims seeking relief from these acts of abuse faced uphill challenges when commencing a family offense proceeding against their abuser under Article 8 of the Family Court Act.  Victims were forced to re-characterize the property-related attacks under an existing family offense such as disorderly conduct, harassment, menacing or stalking with the hope that the court would not dismiss the case for lack of jurisdiction.  Those unable to engage the civil Family Courts often elected not to proceed while others attempted to hold their abusers accountable via criminal actions.  However, even the criminal justice system was unwilling to consider abusers liable for this type of abuse in some jurisdictions.  Certain New York police agencies, prosecutors, and courts in the 2nd Department have interpreted the criminal mischief laws to specifically exempt offenders who damaged or destroyed the “property of another person” that could be considered marital (or jointly-owned with the victim) because the offender arguably had an ownership interest in the items and was thereby entitled to do as he pleased with his own property.3

Interestingly, this interpretation of the criminal mischief law has been openly criticized in New York, in academic circles, and in other states as being wrongly decided, bad policy and bad law (especially in the domestic violence context), as well as out of step with the evolution of similar mischief and vandalism laws and case law around the country.4  With no recent appellate level decisions or remedial legislative action, many victims subjected to this type of abuse in New York were, essentially, abandoned without any civil or criminal recourse against their intimate partners.   

The Legislature Responds

In 2007, the Legislature sought to remedy this obvious gap in the law by making the crime of criminal mischief an enumerated family offense.5  Bills were introduced on June 1, 2007 in the Assembly by Assembly Judiciary Chair Helene Weinstein (A.8854-A) and in the Senate on April 18, 2007 by Senator Liz Kruger (S.4542-A).  This was the first time bills of this nature were introduced in both houses and, surprisingly, they passed both bodies in the same session.  The Governor signed the legislation on August 18, 2007 and the law will become effective on November 13, 2007.  Notably, this is the first enhancement to the list of family offenses since the addition of the stalking laws in 1999.

The justification for the new law as outlined in the bill memo stated:

Experience with the concurrent jurisdiction provisions of the Family Protection and Domestic Violence Intervention Act (Chapter 222, Laws of 1994) has revealed a significant gap in the enumerated family offenses. With regularity, courts handling family offense cases are faced with situations in which an offender is alleged to have vandalized or destroyed property that is either owned by the victim or jointly owned by both parties.  Yet criminal mischief is not enumerated as a family offense that may be prosecuted in Family Court, and courts are sharply divided regarding whether it may be prosecuted as a crime if the property is jointly owned or owned in the offender’s name. This bill provides that criminal mischief be added to the concurrent jurisdiction provisions in section 812 of the Family Court Act and section 530.11 of the Criminal Procedure Law.

While Article 145 of the Penal Law contains four different degrees of criminal mischief crimes6 ranging from misdemeanors to felonies, the new law does not specify whether one or all of the crimes constitute new family offenses.  However, the enumerated family offense of “reckless endangerment” also has multiple levels and has been generally interpreted to include either level of offense.  Accordingly, based on the facts in one’s case, attorneys could legitimately argue that any of the appropriate degrees apply.

Other than the criminal mischief statutes themselves, there is no definitional section in the laws to assist in their interpretation.  Therefore, civil practitioners in Family Court family offense cases should familiarize themselves with the existing criminal mischief case law addressing the laws’ culpable mental states, what may constitute “damage” to property, as well as how “property of another person”7 has been previously interpreted.  

Despite the existence of challenging New York-based legal precedents and criminal justice policies, practitioners representing domestic violence survivors in the Family Courts have the ability to cite the law, case law from New York and other states, together with the persuasive legislative intent for passing these new laws.

Despite the existence of challenging New York-based legal precedents and criminal justice policies, practitioners representing domestic violence survivors in the Family Courts have the ability to cite the law, case law (from New York and other states8) together with the persuasive legislative intent for passing these new laws.  It can now be argued that by adding criminal mischief to the list of criminal and civil family offenses and applying it to victims of family offenses, the Legislature specifically intended to end the debate regarding destruction or vandalization of separate or jointly-held property by their abusers.  In limiting these protections to those defined as “family and household members” in family offense cases doubtless the Legislature anticipated that the majority members of this victim class would jointly own property with their abusers through marriage or cohabitation.  To limit access to this family offense only to a select, smaller class of victims who do not jointly own property with their abusers would serve to only to undermine the law’s stated purpose and would be inconsistent with the application of all other existing family offenses.  However, given the existing legal precedent in the 2nd Department, practitioners in that jurisdiction may face increased challenges as the new legislation butts up against the case law.

It should also be noted that as a new family offense, crimes of criminal mischief will also be subject to concurrent jurisdiction under the Criminal Procedure Law9, more comprehensive Criminal Court orders of protection10, mandatory arrest protections and primary aggressor determinations11, and requirements that police agencies prepare and file Domestic Violence Incident Reports12.

Evidence Collection Strategies in Criminal Mischief Cases

Because the criminal mischief statutes require proof of damage to or destruction of property, it is important that practitioners and their clients gather the necessary evidence:

• Take photographs or video of damaged or destroyed property
• Collect the damaged or destroyed property and keep it in a safe place or with law enforcement to preserve the chain of evidence
• Identify witnesses (including law enforcement, EMTs, neighbors, other witnesses) to the property damage or to the incident itself and, where possible, take their statements or subpoena them for trial
• Secure original sales receipts to document the original price paid for the item to document value
• Obtain repair receipts or estimates for property that can be repaired
• Keep receipts as the victim replaces damaged or destroyed property in order to document replacement value
• Obtain estimates for replacement costs for the item(s)
• If clean-up is required (i.e. removal of paint, feces, water or fire damage) to fix the property, keep receipts or estimates for the work

If proving the offender is responsible for past mischief offenses has proven difficult, consider surveillance options (i.e. home security cameras) 

Seeking Restitution in Criminal Mischief Family Offense Proceedings

Family Courts have the authority to grant restitution upon agreement or after a finding or an admission of a family offense.  While many Family Court family offense petitioners do not routinely seek restitution, the addition of criminal mischief to the enumerated family offenses and the proof of damage necessary to prove criminal mischief elements create a new opportunity for victims to be more frequently compensated for their losses.  In family offense proceedings, restitution up to $10,000 may be granted in a dispositional order.

Conclusion

As the criminal mischief laws face increased use and scrutiny under the Family Court Act it will be interesting to see how the case law evolves when applied more frequently in the domestic violence context.  Stay tuned! 

End Notes

1  Criminal Procedure Law §530.11

2  Family Court Act §812

3  To date, the 2nd Department is the only Appellate Division in NY to address this issue directly in the 1997 case People v. Person, 239 A.D.2d 612.  Although jurisdictions in the 2nd Department are the only courts subject to this legal interpretation, anecdotally it has been reported that many criminal justice systems (police agencies, prosecutors, judges) around the state have similarly elected to subscribe to this interpretation.  See also People v. Kheyfets, 174 Misc.2d 516 (Supreme Court, Kings Co., 1997)    

4  See People v. Brown, 185 Misc.2d 326 (Criminal Court, City of New York, 2000); People v. Kheyfets, 174 Misc.2d 516 (Supreme Court, Kings Co., 1997); Jackson v. United States, 819 A.2d 963 (D.C. Ct. App., 2003); State v. County of Maricopa, 188 Ariz. 372 (Div. 1, Dept. E, Ct. App. 1997); People v. Kahanic, 196 Cal.App.3d 461 (5th Ct. App., 1987); People v. Schneider, 139 Ill.App.3d 222 (5th Dist. 1986); State v. Zeien, 505 N.W.2d 498 (1993); Kergides v. Kergides, 2005 WL 3739704 (N.J. Super.A.D., 2006); Vanderburg v. State, 843 S.W.2d 286 (1st Dist. Ct. App., 1993); State v. Coria, 146 Wash.2d 631 (2002); Lutz & Slye, Where Criminal Mischief Is Not a Crime, 10/31/97 N.Y.L.J. 1 (col.1), Lutz & Bonomolo, My Husband Just Trashed Our Home: What Do You Mean That’s Not a Crime?, 48 S.C.LRev.641,651 (1997).

5  Family Court Act §812(1) and Criminal Procedure Law §530.11

6  PL §145.00 Criminal Mischief in the Fourth Degree, PL §145.05 Criminal Mischief in the Third Degree, PL §145.10 Criminal Mischief in the Second Degree, and PL §145.12 Criminal Mischief in the First Degree

7  See Endnotes iii and iv, as well as People v. Chatmon, 276 A.D.2d 496 (2nd Dept. 2000)(court held that while defendant could not be convicted or criminal mischief to property jointly held with his wife, he was properly convicted of damage to the same property as his mother-in-law was also an owner of the premises, he possessed no interest in her share and damage to her share was damage to the property of another).   Additionally, critics of Person and its general reasoning have argued that while one spouse may have the right to harm their own interest in the property, they do not have the right to simultaneously destroy the other’s interest in the property and therefore such conduct is criminal mischief.  Kheyfets at 520 [citing Lutz & Bonomolo, My Husband Just Trashed Our Home: What Do You Mean That’s Not a Crime?, 48 S.C.LRev.641, 651 (1997)]

8  See Endnote 5

9  Criminal Procedure Law §530.11

10 Criminal Procedure Law §530.12

11 Criminal Procedure Law §140.10(4)

12 Executive Law §214(a)

13 Family Court Act §841(e)