New York Penal Law 145.00 defines criminal mischief in the fourth degree, a Class A misdemeanor that carries up to 364 days in jail, a fine of up to $1,000, mandatory restitution, and a DNA sample on conviction. The statute reaches four different kinds of conduct: intentionally damaging someone else’s property, taking part in destroying an abandoned building, recklessly causing more than $250 in damage, and disabling a phone or similar device to stop someone from calling for help. Because it sits right at the line between a violation and a felony, how the case is resolved often matters more than the charge itself.
The Four Ways to Violate the Statute
Each subdivision stands on its own. A prosecutor only has to prove one. Every subdivision opens with the same qualifier: the defendant acted with no right to do so and no reasonable ground to believe they had that right.
Intentional Damage to Someone Else’s Property
Subdivision 1 is the everyday version. You deliberately damage property that belongs to another person. There is no minimum dollar amount. A scratched car, a broken window, a smashed mailbox all qualify. What the prosecution must show is intent, not accident or carelessness.
Destroying an Abandoned Building
Subdivision 2 targets people who intentionally take part in destroying a building that meets the legal definition of abandoned. It is a separate prong from ordinary property damage and aimed at the kind of stripping and vandalism that hollows out neighborhoods.
Reckless Damage Over $250
Subdivision 3 is the only one that does not require intent to damage. It applies when someone acts recklessly and the resulting damage exceeds $250. Recklessness means you were aware your conduct created a real risk of causing damage and went ahead anyway. The $250 figure is a strict element. If the damage is $250 or less, this subdivision does not apply, though subdivision 1 still can if the act was intentional.
Disabling a Phone or Emergency Device
Subdivision 4 covers intentionally disabling or removing a phone, TTY device, or similar equipment to stop someone from seeking emergency help, whether from 911, law enforcement, or any other person they are turning to for protection from imminent physical harm. Owning the device is not a defense. Breaking or hiding your own phone to stop someone else from calling for help still counts.
What a Conviction Costs
As a Class A misdemeanor, this is the most serious misdemeanor class in New York. The jail cap is 364 days, not a full year. That one-day gap is deliberate: federal immigration law treats a sentence of one year or more as an aggravated felony trigger for deportation, and New York shortened the maximum specifically to keep misdemeanor sentences below that line. For non-citizens, the difference is enormous.
Any jail time is served in a county correctional facility, not state prison. A judge can also impose a fine of up to $1,000, or up to double the amount gained if the defendant profited from the offense.
Incarceration is not the only option on the table. A court can impose probation for two or three years, with conditions that may include community service, counseling, or drug treatment. A conditional discharge is another route, running one year for a misdemeanor, with no probation supervision but court-imposed conditions the defendant must follow. If restitution is still owed when the conditional discharge period ends, the court can extend it by up to two more years.
Restitution and Surcharges
Courts routinely order defendants to pay the victim directly. Restitution covers the actual cost to repair the damaged property, or the fair market value if the item was destroyed. The court sets the number based on repair estimates, receipts, or testimony about what the property was worth.
A 5 percent surcharge is added on top to cover collection and administrative costs. If the entity handling collection can show its actual costs are higher, the court can add a second surcharge, but the total is capped at 10 percent of the amount collected. A defendant can ask the court to deny the additional surcharge on undue hardship grounds, and the judge has discretion to do so.
Missing a payment is not treated as a paperwork issue. Failure to pay court-ordered restitution can be treated as a violation of the sentence and lead to additional penalties, including jail.
Adjournment in Contemplation of Dismissal
For a defendant without a serious record, the best realistic outcome short of an outright dismissal is an adjournment in contemplation of dismissal, or ACD. Under Criminal Procedure Law 170.55, the court adjourns the case for six months. Stay out of trouble and meet any conditions the court sets, and the charges are automatically dismissed and the case sealed.
Criminal mischief in the fourth degree is generally eligible because the statute’s exclusions are narrow and mostly involve certain vehicle and traffic offenses. An ACD is not automatic, though. The prosecution has to consent, or the court has to find dismissal serves the interest of justice. If the prosecution objects and moves to restore the case to the calendar within the six months, the case proceeds as if the ACD never happened. A first-time defendant who caused a small amount of damage has a much stronger position than someone with prior arrests.
Defenses That Fit the Statute
The “no right” and “no reasonable ground to believe” language at the top of the statute opens several defenses.
- Claim of right. If you genuinely and reasonably believed the property was yours, that belief negates the required mental state. The belief does not need to be legally correct, but it has to be grounded in facts a reasonable person would rely on.
- Lack of intent. Subdivisions 1, 2, and 4 all require intentional conduct. Accidental damage, however expensive, does not meet that element. Subdivision 3 requires recklessness, a lower bar, but still requires awareness of a substantial risk.
- Consent. If the property owner authorized the conduct, there is no crime. This comes up in tenant-landlord disputes and between co-owners.
- Damage under $250. For a subdivision 3 charge, the prosecution has to prove the damage exceeded $250 with credible evidence. If they cannot, the reckless-damage theory fails.
When It Becomes a Felony
Fourth degree is the entry-level charge. The step up catches people by surprise.
Criminal mischief in the third degree, Penal Law 145.05, is a Class E felony. It applies when a person intentionally damages another’s property in an amount exceeding $250. The difference from subdivision 3 of the fourth-degree statute is the mental state: third degree needs intent, fourth-degree reckless damage needs only recklessness. Third degree also reaches repeat offenders who break into locked motor vehicles with intent to steal and have three or more prior criminal mischief convictions in the past ten years.
Criminal mischief in the first degree, Penal Law 145.12, is a Class B felony reserved for intentional damage caused by use of an explosive, with state prison exposure measured in years.
The trap is the jump from fourth to third degree. Intentionally keying a car and leaving $300 in damage is a Class E felony, not a misdemeanor. Prosecutors have discretion, and the facts, the defendant’s history, and the victim’s wishes shape the decision. But once the dollar figure creeps above $250 on an intentional act, the felony exposure is real.
How Long the Prosecution Has to File
Charges must be filed within two years of the offense. Once that window closes, the case cannot be brought no matter how strong the evidence. The clock runs from the date the crime was committed, not the date it was discovered or reported.
DNA Collection on Conviction
A conviction under Penal Law 145.00 triggers a DNA sample requirement. Executive Law 995 defines a “designated offender” to include any person convicted of a Penal Law misdemeanor, with only narrow exceptions for certain prostitution and trafficking-victim cases. Many people charged with a low-level property crime are surprised to learn the databank obligation attaches to misdemeanors, not just felonies.
Sealing the Conviction Later
If a conviction does happen, Criminal Procedure Law 160.59 allows an application to seal it, but the wait is long. At least ten years must pass from sentencing, or from release from incarceration if jail time was served. Time in custody does not count toward the ten years; it pushes the date back.
A person can seal up to two eligible offenses, and no more than one can be a felony. Fourth-degree criminal mischief qualifies. The court will deny the application if the person has been convicted of any crime after the last conviction they want sealed, has an open case, or has already sealed the maximum. Even for someone eligible, sealing is discretionary. The court weighs the seriousness of the offense, the impact on the victim, and the applicant’s conduct since.
That ten-year wait is the reason an ACD or other pre-conviction resolution is worth so much on this charge. A dismissal avoids the conviction entirely and takes the sealing question off the table.