NY PL 145.05: Elements, Penalties, and Defenses

New York Penal Law 145.05 defines criminal mischief in the third degree, a Class E felony that carries up to four years in prison. The statute reaches two very different situations: intentionally damaging someone else’s property by more than $250, or breaking into a locked motor vehicle with intent to steal from it when the person already has three or more criminal mischief convictions within the past ten years.¹

The Two Ways to Be Charged Under 145.05

Subdivision 2 is the route most people are charged under. It requires intentional damage to another person’s property in an amount exceeding $250. Type of property doesn’t matter, and no prior record is required. A storefront window, a neighbor’s fence, equipment at a job site — any of them qualifies once the damage crosses the dollar threshold.¹

That $250 line is what separates this felony from criminal mischief in the fourth degree, a Class A misdemeanor covering intentional damage of any amount and reckless damage over $250.² Courts measure damage by what it costs to restore the property to its pre-incident condition, using repair estimates, contractor invoices, and appraisals. When repair isn’t practical, fair market value or replacement cost applies. The prosecution has to prove the damage exceeds $250, and weak documentation on that point is a common reason charges get reduced.

Subdivision 1 is narrower. All of the following must be true:

The defendant damaged another person’s motor vehicle.
The damage happened by breaking into the vehicle while it was locked.
The defendant broke in with the specific goal of stealing property from inside.
Within the previous ten years, the defendant was convicted three or more times of criminal mischief in any degree, in separate criminal transactions with sentences imposed on separate occasions.

The subdivision 1 charge does not require any dollar threshold. But the requirements are strict: the vehicle must have been locked, the intent must have been to steal (not just to vandalize), and the three prior convictions must be criminal mischief specifically. A prior theft or burglary doesn’t count. The ten-year window runs backward from the date of the new offense; a prior that falls outside that window can’t be used to elevate the charge.¹

What the Prosecution Must Prove

Both subdivisions share three baseline elements the prosecution has to establish beyond a reasonable doubt.

The person acted intentionally. Under New York law, “intentionally” means the person’s conscious objective was to cause the damage. Careless or reckless conduct does not qualify. Backing into a fence by accident isn’t criminal mischief no matter how expensive the repair.

The property belonged to someone else. If the defendant owns the property outright and no one else has a stake in it, damaging it is not criminal mischief. Shared property counts: damaging an item another person has an interest in, without their consent, satisfies the element.

The defendant had no right to damage the property and no reasonable ground to believe they did. This is what separates criminal conduct from, for example, a landlord removing a fixture they genuinely think belongs to them. The prosecution has to show the person lacked actual authority and any reasonable belief in authority.¹

Penalties on Conviction

Third-degree criminal mischief is a Class E felony, the lowest felony classification in New York. It is not a violent felony, so sentencing follows the indeterminate framework under Penal Law 70.00.

Prison

An indeterminate sentence has both a minimum and a maximum term. For a Class E felony, the maximum cannot exceed four years, and the minimum must be at least one year and no more than one-third of the maximum imposed.³ Typical sentences look like one to three years or one and a third to four years.

There is an alternative. For a Class E felony, a judge who finds a full indeterminate sentence would be unduly harsh may impose a definite sentence of one year or less. That option is not available to second or persistent felony offenders.³

Probation

Rather than prison, the court may impose probation if it concludes incarceration isn’t necessary to protect the public and the person would benefit from supervision. Felony probation on a charge like this runs three, four, or five years, set by the judge.⁴ Violating conditions can lead to revocation and imprisonment on the original charge.

Fines and Restitution

The court can impose a fine of up to $5,000, or double the amount the defendant gained from the offense, whichever is higher. Using the double-gain calculation requires the judge to make a specific finding about how much the defendant profited.⁵

The court is also required to consider restitution and must state its reasons on the record if it declines to order it. Restitution covers the victim’s actual out-of-pocket losses, such as repair or replacement costs. For a felony, restitution is generally capped at $15,000, though the court has discretion to exceed that cap in certain circumstances.⁶

Mandatory Surcharges

Every felony conviction triggers surcharges the court cannot waive. A conviction under PL 145.05 carries a $300 mandatory surcharge and a $25 crime victim assistance fee, paid to the clerk of the court that entered the conviction.⁷

Common Defenses

Because the statute requires proof of intent and lack of any right to damage the property, defenses usually go after one of those two elements.

Lack of intent is often the strongest angle. Accidental or reckless damage does not meet the requirements of PL 145.05. Reckless damage over $250 falls under the fourth-degree misdemeanor charge instead, a significantly less serious outcome.²

A claim-of-right defense argues that the defendant genuinely believed they had the right to damage or alter the property. A tenant who thought a fixture was theirs, a co-owner who thought they had authority to dispose of shared property. The statute builds this defense in by requiring the prosecution to prove the person had no right and no reasonable ground to believe they had one.¹ A good-faith but mistaken belief can be enough to defeat the charge.

For a subdivision 2 charge, challenging the damage valuation is another route. If the prosecution can’t prove damage exceeds $250, the charge can’t stand as a third-degree felony. Defense attorneys commonly challenge inflated repair estimates, question whether damage was pre-existing, or argue that cost-of-repair overstates the actual loss.

Where 145.05 Sits Among the Other Degrees

The criminal mischief statutes cover a spectrum from minor vandalism to catastrophic destruction. Fourth degree (PL 145.00) is a Class A misdemeanor covering intentional damage of any amount and reckless damage over $250, with a one-year maximum.² Third degree (PL 145.05) is the Class E felony described here. Second degree (PL 145.10) is a Class D felony for intentional damage exceeding $1,500, carrying up to seven years.⁸ First degree (PL 145.12) is a Class B felony for intentionally damaging another’s property with an explosive, with a twenty-five-year maximum.

The jump from fourth degree to third degree is the sharpest step on this ladder. The difference between “any intentional damage” and “intentional damage over $250” is the difference between a misdemeanor and a felony, and the long-term consequences on the felony side of that line are severe.

Collateral Consequences That Outlast the Sentence

Prison, probation, and fines are only part of the picture. A Class E felony conviction creates lasting consequences.

Federal law prohibits anyone convicted of a crime punishable by more than one year of imprisonment from possessing firearms or ammunition. Because a Class E felony carries a four-year maximum, a conviction under PL 145.05 triggers the federal firearms ban.⁹

A felony record also affects employment and professional licensing. Many boards require disclosure of felony convictions, and some impose mandatory waiting periods before a person with a felony can apply.

For non-citizens, any felony conviction can carry immigration consequences, including deportation or bars to adjustment of status. That is a large part of why the difference between a misdemeanor and a felony resolution often matters more in the years after sentencing than the sentence itself.

1
New York State Senate. New York Penal Law 145.05 – Criminal Mischief in the Third Degree
2
New York State Senate. New York Penal Law 145.00 – Criminal Mischief in the Fourth Degree
3
New York State Senate. New York Penal Law 70.00 – Sentence of Imprisonment for Felony
4
New York State Senate. New York Penal Law 65.00 – Sentence of Probation
5
New York State Senate. New York Penal Law 80.00 – Fines for Felonies and Misdemeanors
6
New York State Senate. New York Penal Law 60.27 – Restitution and Reparation
7
New York State Senate. New York Penal Law 60.35 – Mandatory Surcharge, Crime Victim Assistance Fee
8
New York State Senate. New York Penal Law 145.10 – Criminal Mischief in the Second Degree
9
Office of the Law Revision Counsel. 18 USC 922 – Unlawful Acts