Expands definition of "property of another", for purposes of criminal mischief, to include any property another person has an interest in

Justification

Article 145 of the Penal Law pertaining to criminal mischief and related offenses did not define "property of another" prior to November 1, 2008. Effective November 1, 2008, Chapter 601 of the laws of 2008 amended the Penal Law by adding a new section 145.13 providing a definition. Chapter 601 responded to cases in which this lack of a definition enabled one joint owner (such as a spouse) to intimidate or terrorize the other joint owner by damaging or destroying property owned by the two parties without fear of criminal consequences. This issue occurred with increasing frequency throughout the State and the courts struggled with the interpretation of the criminal mischief statute as it applied to these situations. There was particular concern with and criticism of the interpretation of "property of another" for the purposes of the crime of criminal mischief by the appellate court in its decision in People v. Person, 239 A.D.2d 612,658 N.Y.S.2d 372 (2nd Dept. 1997), in which, in the absence of a statutory definition, the Court interpreted this language to exclude property in which an actor has an ownership interest, even if others have such interests as well.

To avoid confusion and address the need for clarity in the law, the legislature added a new section, 145.13 to Article 145 of the Penal Law, providing for a definition of "property of another" pertaining to criminal mischief and related offenses. It also added a provision making explicit consent by a co-owner a prerequisite to another co-owner's ability to damage jointly or co-owned property without the potential of criminal consequences.

The Governor signed the bill proposed by the legislature in 2008 adding the definitional section 145.13 to Article 145 of the Penal Law, upon agreement of the legislature to a chapter amendment removing any rigid requirement in section 145.13 of explicit consent from co-owners.

In his Approval Memorandum, the Governor acknowledged the importance of defining property of another pertaining to criminal mischief and related offenses and noted that a spousal relationship or other basis of joint ownership should not protect a bad actor from criminal sanction. However, in his Approval Memorandum, the Governor raised concerns about a requirement of explicit consent from co-owners as a prerequisite to another co-owner's ability to damage jointly or co-owned property without the potential of criminal consequences, noting that under certain circumstances a spouse or other co-owner may damage or discard jointly owned property based on consent that is implied rather than expressed.

This bill refines the newly added definition of "property of another" under section 145.13 of the Penal Law. It retains protections for a person who acts based on a reasonable belief by removing the additional requirement of explicit consent from co-owners as a pre-requisite to an actor's reasonable belief that he or she has a right to damage property in which he or she shares an ownership interest with another.

This bill protects victims of domestic violence, particularly in cases where there is a shared ownership interest in property, and also preserves protections previously in place for persons acting under a reasonable belief.

Legislative history

2008: A.6308-A/S.2061-A - Ch.601 '08 2007: A.6308/S.2061-A.Codes/S.Codes 2006: A.10448/S.6518 - A.Codes/S.Codes

Fiscal implications

None.

Local fiscal implications

None.

Effective date

Immediately.