People v Suarez (2011 NY Slip Op 50585(U))

People v Suarez (Peter)

2011 NY Slip Op 50585(U) [31 Misc 3d 131(A)]

Decided on April 1, 2011

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

The People of the State of New York, Respondent,

against

Peter Suarez, Appellant.

Appeal from a judgment of the District Court of Nassau County, First District (Martin J. Massell, J., at pre-trial hearing and trial; Donald H. Birnbaum, J., at sentence), rendered July 14, 2009. The judgment convicted defendant, upon a jury verdict, of criminal mischief in the fourth degree.

ORDERED that the judgment of conviction is reversed, on the law, and the accusatory instrument is dismissed.

Following a jury trial, defendant was convicted of criminal mischief in the fourth degree (Penal Law § 145.00 [1]). It is undisputed that defendant spray-painted a
Belgian block wall which is located on his neighbor's property but runs along the boundary line of their properties. 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 or she has such right, he or she intentionally damages property of another person" (Penal Law § 145.00 [1]).

As applied to the crime of criminal mischief, "damage" is commonly understood to mean "injury or harm to property that lowers its value or involves loss of efficiency" (see People v Collins, 288 AD2d 756 [2001]; People v Stockwell, 18 Misc 3d 1145[A], 2008 NY Slip Op 50444[U] [Watertown City Ct 2008]; see also Donnino, Practice Commentary, McKinney's Cons Law of NY, Book 39, Penal Law § 145.00, at 103). While the extent of the damage necessary to sustain a conviction for criminal mischief in the fourth degree is slight, some amount of damage is required (People v Hills, 95 NY2d 947, 949 [2000]). The People merely introduced testimony that defendant did not have permission to paint the wall but submitted absolutely no proof that the wall's usefulness or value was diminished by the painting (see People v Hills, 95 NY2d at 949; People v Shannon, 57 AD3d 1016 [2008]; People v Stockwell, 18 Misc 3d 1145[A], 2008 NY Slip Op 50444[U]). The complainant did not even testify that she disliked and intended to strip the paint from the wall, in which case evidence of attendant cleaning and repair costs may have demonstrated proof of damage. In view of the foregoing, the People failed to establish the damage element of the offense.

Accordingly, the judgment of conviction is reversed and the accusatory instrument is [*2]dismissed.