Facts

The defendant has been charged under PL 140.00(1) intentionally damaging property of another person...having no right to do so nor any reasonable ground to believe that he has such right." [*2]

It is alleged that on July 17, 2007 the defendant did paint a wooden fence belonging to neighbors without permission along the side of his yard and the back of his yard. The defendant said that the fence sides facing his property were "in need of repair and painting" so he painted the sides facing his property to improve the appearance of the fence.

Judge William Donnino in his Practice Commentary for Penal Law Section 145.00 writes "[F]or the consummated crime of criminal mischief, damage to property, however slight, must be proved" and " Damage" implies an injury or harm to property that lowers its value...' Denzer and McQuillan, Practice Commentary to Section 145.00, McKinney's Penal Law (1967)" Donnino, Practice Commentary to Sect. 145.00, McKinney's Penal Law (1999).

Arnold Hechtman wrote in the 1975 Edition of McKinney's Penal Law for Section 145.00 observing, among other things, that "...the People must establish three elements [under PL 145.00(1)] (1) tangible property...was actually damaged..." (id. p. 65) going on to state "[I]t must be shown that damage however slight did occur" and "[F]or the completed crime...actual damage must be shown. Damage' implies an injury or harm to property that lowers its value..." (id. p. 60).

In People v Hills (2000), 95 NY2d 947, the Court ruled that to prove the crime of criminal mischief under P.L. 140.00[1] "[W]hile the extent of damage necessary to sustain a conviction...is slight, some amount of damage is required (see, People v Brown, 133 AD2d 277, 279; Cherno v Bank of Babylon, 54 Misc 2d 277, 279, affd 29 AD2d 767)" (id. p. 949). In Cherno the Court ruled that as "no evidence of actual physical damage' to assets [was presented] Section 1433 of the Penal Law does not apply (Polychrome Corp v Lithotech Corp., 4 AD2d 968, 969)" (id. p. 279) note: Sect. 1433 of the Penal Law of 1944 is now sect. 145.00(1). In Polychrome Corp. the Court ruled that "[T]he statute [PL 145.00(1)] is intended to apply to actual physical damage to property, in the nature of malicious mischief, and is not intended to apply to violations of incorporeal rights" (id. p. 696).

In People v Collins (2001), 288 AD2d 756, lv denied, 97 NY2d 753, the Court wrote:

While no statutory definition of "damages" is provided, it is commonly recognized that the term contemplates "injury or harm to property that lowers its value or involves loss of efficiency" and that only "slight" damage must be proved (Donnino, Practice Commentary, McKinney's Cons Law of NY, Book 39, Penal Law Section 145.00, at 103; cf., People v. Hills, 95 NY2d 947; Matter of James William H., 32 AD2d 932; compare, People v McDonald, 68 NY2d 1, 13-14). Likewise, we find no error in Supreme Court's charge to the jury, inter alia, that "damages" means injury or harm to property which reduces its value or usefulness (183 Misc 2d 303, 304-305). Id. p. 758.

In Mtr of H., 32 AD2d 932, the Court found that the conduct of the juvenile "chalking" words on the victim's driveway "...was no evidence of actual damage...within the meaning of Section 145.00 of the Penal Law (cf. People v Washington, 18 NY2d 366, 369; People v Hachtey, 20 AD2d 534, 535)" (id. p. 932).

In U.S. v Murtari (2007), 2007 U.S. Dist. Lexis 77153, the defendant was involved in writing messages on the sidewalk in front of a building in chalk. The Federal Court reviewed P.L. 145.00(1) citing Collins and In Re H and said "[T]he New York Practice Commentaries state that the damage inflicted should have some degree of permanency" going on to cite cases [*3]involving posting advertisements on a wall "applying glue and paper to a surface..., changes the surface and therefore, has the potential to reduce its value and perhaps result in some loss of use even if glue was water soluble" (P. v Torres, 184 Misc 2d 429), the Court said nonetheless that the defendant's actions by writing in chalk did not show his "actions... damaged' the property" (id. p. 12).

The accusatory instruments allege that the defendant painted wooden fences to "intentionally" damage them. As the Practice Commentaries for Penal Law 145.00(1) explain the "consummated crime" requires a showing of "damage to property, however slight, must be proved" (Donnino [1999]), "actual damage" (Hechtman [1975]). In Hills the Court stated the "extent of damage necessary to sustain a conviction...is slight," but "some amount of damage is required" (id. p. 949).

The Commentaries also state that "damage implies an injury or harm to property that lowers its value" (Donnino [1999] and Hechtman [1975]).

In Collins the Court said that even without a statutory definition of "damages," "it is commonly recognized that the town contemplates injury or harm to property that lowers its value...injury or harm to property which reduces its value" (id. p. 758).

In Hills, the Court said that in order "to sustain a conviction...some amount of damage is required" (id. p. 299), citing Cherno "actual physical damage to assets," which Court in turn cited Polychrome Corp." statute [PL 145.00(1)] is intended to apply to actual physical damage to property" (id. p. 969).

In Re H the use of chalk on a driveway surface "was no actual evidence of physical damage...within the meaning of [PL 145.00(1)]" (id. p. 932). In U.S. v Murtari the Court citing Collins and In Re H said that defendant's actions by writing in chalk did not... damage' the property" (id. p. 12).

Penal Law Section 145.00(1) requires that a defendant "intentionally" damage property of another person." Evidence of "damage" to the property is an element of the charge and must be alleged and supported by a factual basis.

An accusatory instrument to be facially sufficient in the case of a complaint (CPL 100.40[4][b]) or an information (CPL 100.40[1][b]) requires that the allegations of the factual part of such accusatory instrument...along with "supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of such instrument."

In the supporting depositions of Doldo (7/17/07) and Marzano (7/17/07) both stated the defendant had painted the side of this wood fence facing his property without their permission. The police report reflected the victims' statements and when the defendant was interviewed he pointed out that the "fence was in need of painting and repair so he was painting the fence on the side that faces his property because [of] the look of the fence." Subsequently, Marzano signed an affidavit of non-permission (CPL 190.30[3]) which alleged "there occurred a criminal mischief at said property and as a result thereof a wood fence was painted...and was damaged in the amount of $50." However, this allegation of $50 in damage appeared to not be based on any "attached appraisal, estimate of damage/repair" as provided for on the affidavit form completed for the police by Marzano on 7/17/07 or by that of Doldo. [*4]

The Court finds that the accusatory instrument viewed either as a complaint or information is not facially sufficient under CPL 100.40(1)(b) or (4)(b) because the allegations in the factual part of the accusatory instrument along with the supporting depositions/police report fail to provide reasonable cause to believe a violation of PL 145.00(1) occurred due to the conduct of the defendant as there is no allegation of damage to the fence caused by painting it that is damages meaning "injury or harm to property which reduces its value" (Collins, supra, p. 758). In fact, the only evidence of the condition of the fence before the defendant painted it was that it "was in need of painting and repair" (see police report 7/17/07) so adding a coat of paint would not cause "actual physical damage to property...however slight (Hills) and to the contrary of causing "injury or harm to the property that lowers its value" (Collins, supra, p. 758), the addition of the paint, if nothing else, help maintain the fence's value or even enhanced it due to the protective coating against further deterioration due to the elements the fence would otherwise be subject to unpainted. The estimate of $50 of damage is unsupported as being a cost to "repair damage" caused by the painting of the fence.

The defense motion to dismiss under CPL 170.35(1)(a) is granted without prejudice to refile the charge so long as such is not barred under CPL 30.30.

CPL 170.40(2) allows the Court to dismiss an accusatory instrument "in the interest of justice" as provided for at subdivision one (a)-(j).

In People v Gragert (2003), 1 Misc 3d 646, the Court in that case opined neatly the role of a Court in considering a dismissal in the interests of justice:

When deciding a motion to dismiss in the interest of justice, it is not necessary to engage in a point-by-point "catechistic" discussion of all 10 factors listed under Criminal Procedure Law Section 170.40(1). (Rickert, 58 NY2d at 128.) Instead, the court is required to consider the factors "individually and collectively" in making a value judgment that is based upon striking a sensitive balance between the interests of the individual and those of the state. (People v Harmon, 181 AD2d 34, 35 [1st Dept 1992].) In so doing, the court must be mindful that its power to grant the relief is neither absolute nor uncontrolled (see People v Wingard, 33 NY2d 192, 196 [1973]), and that such power should be exercised "sparingly." (People v Howard, 151 AD2d 253, 256 [1989], lv denied 74 NY2d 811 [1989].) Id. p. 648.

In Gragert the Court correctly observed that "[W]hen deciding a motion to dismiss in the interest of justice, it is not necessary to engage in a point-by-point catechistic' discussion of all 10 factors listed under Criminal Procedure Law Section 170.40(1) (Rickert, 58 NY2d at 128)" (id.)

In this case the alleged facts are that the property of the defendant was bordered on two sides by fences "in need of painting and repair." The defendant painted these two fence sides facing towards his property to improve the appearance of them as well as enhancing his property's value. That was his stated purpose.

The two fence owners peeved that this was done without permission "called the cops." As a result the defendant was arrested, handcuffed, transported to police headquarters, booked, fingerprinted, had a mug shot taken and then turned over to Military Police for further detention after being given an appearance ticket by the Watertown Police Department.

It appears that as heretofore indicated due to the failure to allege what damage, if any, was [*5]caused to these fence sides "in need of repair and painting," the accusatory instrument was dismissed under CPL 170.35(1)(a). Considering the fact that all the defendant did was apply paint to a fence side "in need of painting," facing his property along two boundary lines done only to enhance their appearance and, in doing so, providing a protective coating against the elements to the benefit of the fence owners considering these "circumstances" it was an incident minimally serious in nature, not done with an intent to harm the fence owners, but rather, to improve the looks of the fences thus improving the look of the defendant's property in particular and the neighborhood generally (170.40[1][a]).

There is no apparent harm caused by this offense to the fences in question because, as heretofore observed by the Court, their appearance was improved to the benefit of all who could see them as compared to their appearance before when they were "in need of painting and repair" and the fence owners' property having been given a coating of paint were better able to weather the elements (CPL 170.40[a][b]).

The defendant when questioned by the police explained his reasons for painting the sides of these fences and had the impression he had the right to do so as they faced towards his property. He said he only did so to improve their appearance and, in doing so, also enhance his property's value. This admission of engaging in the conduct suggests not an intent to "intentionally damage property of another person" as an act of criminal mischief under PL 145.00(1). Seen as such, this conduct was hardly an act of "malicious mischief" the statute [PL 145.00(1)] is intended to apply [to]" (Hills citing Cherno, citing Polychroms, supra.) (CPL 170.40[a][c]).

The defendant is a member of the U.S. Army, a homeowner concerned with his property's value and otherwise a good citizen of this community. All of what he did was not done for a "malicious" purpose, but rather, to enhance the appearance of the fences as well as improve as a collateral benefit their ability to withstand the effects of the elements (CPL 170.40[d]).

The Court does not find there was any evidence of "exceptionally serious misconduct" by the police officer (id. [e]); any "purpose and effect of imposing upon the defendant" a year in jail, three years probation, $1,000 fine, conditional discharge or unconditional discharge available to the Court after a plea to a class A misdemeanor considering circumstances of the incident (id. [f]).

The Court finds that in dismissing this case considering the "totality of the circumstances" (Gragert). The "impact of a dismissal on the safety or welfare of the community" is di minis (id. [g]) and there would be no impact upon the confidence of the public in the criminal justice system in granting a dismissal in this case considering the public through its elected legislators enacted this law to be applied by this Court whose judge the public elected expected in such circumstances that a dismissal in the interest of justice should be considered as a matter of public justice in such a case by the Judge (id. [h]).

The "attitude of complainants" is considered by the Court and as it is manifested by their calling the police and seeing the defendant arrested, handcuffed and taken to the police station from his home, their vindictiveness was satisfied.

The Court finds "a judgment of conviction would serve no useful purpose" in this case as there was "no malicious" intent to damage the fences to bring the conduct within the charge of P.L. 140.00(1) and, in any event, no evidence of damage to either fence considering the pre-[*6]existing condition being "in need of painting and repair" which prompted the defendant to add paint to them (id. [j]).

The Court finds that this is a case of where there is "no harm" then there is " no foul." The defendant decided to paint two fence sides facing his property because both need "painting," as well as "repairs," trying to mitigate the effect of what he considered an eyesore on his property value. He did so without consulting the owners upon an unfounded assumption he could do so as the surfaces of the fence facing his property met a local municipal code requirement.

Robert Frost in "North of Boston" penned a now famous poem "Mending Wall" in which neighbors must once a year in the spring repair the stone wall on the boundary of their properties. The point made is that cooperation between neighbors to maintain this wall acknowledges to each the other's respect for their respective interests in the structure as well as keeping their relationship to each other as neighbors in good "standing" as well.

In this case it would have been better had the defendant talked to the neighbor who owned these fences about a request to paint the sides facing his property as he was the one affected by the apparent need for a coat of paint at no cost to them. In doing so he would recognize their right to approve this project and understanding his reasons for wanting to do it. Whether they would have agreed to it or not, and what other recourse the defendant may have had if they could not so agree to his request to paint the fences, will not be known, but as Frost wrote "good fences make good neighbours" one would hope both sides might have agreed to it "as good neighbours."

As it was, the police were called and the defendant arrested. In considering the ordeal imposed upon the defendant of being handcuffed, fingerprinted, photographed as a criminal and charged with a crime when the evidence is scant he engaged in "malicious mischief" due to a lack of intent to damage property as well as a lack of evidence of any damage to it by applying a coat of paint, the Court finds that this is a case that is qualified to be dismissed in the interest of justice.

The Court sui sponte in its discretion under CPL 170.40(2) in response to the defense motion "to grant other and further relief as the Court deems just and proper" at paragraph 24 of its 12/10/07 motion that was unopposed in the People's response to it in its 1/7/08 response decided to dismiss the charge.

The defense motion to dismiss the charge is granted under CPL 170.35(1)(a); and, the charge is also dismissed in the interest of justice under CPL 170.40(1)(2). This shall serve as the decision and order of the Court.

Enter: __3/7/2008________________________________________________

Date: ___3/7/2008_______________Hon. James C. Harberson, Jr.