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Court Decides if Defendant is Guilty of Criminal Mischief


The accused defendant is charged with assaulting his former girlfriend in the presence of their three children. The trial testimony established that during the assault, the victim attempted to call 911 for police assistance (using a land-line telephone) and she made a very brief initial contact, but was then immediately thwarted by defendant, who bound the victim’s wrists with the telephone cord and then slammed the telephone on the victim’s hands/fingers as she tried again to dial 911. At some point, however, during the incident the abused victim was able to complete a 911 call using the same telephone.

A New York Criminal Lawyer said the jury acquitted defendant of assault in the third degree but convicted him of attempted assault in the third degree, three counts of endangering the welfare of a child and criminal mischief in the fourth degree; the last one is the subject of defendant’s instant motion.
The primordial issue in is whether or not the evidence adduced at trial was legally sufficient to establish the necessary elements of criminal mischief in the fourth degree.

The statute requires that defendant intentionally disable or remove telephonic equipment while the complaining witness was attempting to call 911, in an effort to seek emergency assistance from the police during an alleged domestic violence assault upon her.

According to Commentaries, as well as the legislative history, the Legislature added subdivision four to the criminal mischief in the fourth degree statute in 2008 in order to address the troubling incidents in which a telephone or other communication equipment was disabled or removed by the perpetrator of domestic violence or elder abuse while the victim attempted to obtain emergency assistance. A Judge astutely states that: “Given the purpose of the legislation, using the criminal mischief statute as the template for this crime was not the best choice.” He notes that, unlike the other subdivisions of New York’s criminal mischief statute, subdivision four does not require that the telephonic equipment be damaged but rather it limits the proscribed conduct to the disabling or removal of the equipment, which can be done with or without damage to that equipment. The Judge further notes that the Governor, in approving the legislation in question, stated: “Although this is a laudable step, an abuser can keep a victim from making or completing a call by means other than disabling or removing telephone equipment. For example, if the abuser physically restrains the victim from using the telephone, or simply hangs up the telephone without damaging the equipment, that is an equally blameworthy and harmful act, and should be subject to the same punishment.”

A Westchester Criminal Lawyer said nonetheless, the way subdivision four is presently drafted, defendant’s chilling actions in the herein case neither resulted in the removal nor the disabling of the victim’s telephone. Although numerous situations can be envisioned in which the statute can be violated (e.g., cutting the cord, removing cellular phone batteries, breaking the phone or just removing it from the victim’s access, to name a few) the intentional act of binding the victim’s hands disabled the victim herself but did not disable the telephone itself, which remained in working order so that the victim was eventually able to summon the police for help with the same equipment. Furthermore, slamming the victim’s hands with the telephone did not disable the telephone either. What defendant did in this case was temporarily impede the victim’s successful use of the functioning telephone. However, until and unless subdivision four is amended by the Legislature to cover general hindering conduct, the Court is constrained to hold that defendant’s repugnant conduct does not constitute criminal mischief in the fourth degree under Penal Law.

Consequently, defendant’s application to set aside the criminal mischief guilty verdict is granted and that count is dismissed. The court finds that the trial evidence did not satisfy the statute in question.

Several causes of action may arise from cases of domestic violence, inlcluding sex crimes, battery, and endangering the welfare of a child. To know more, consult for free with Stephen Bilkis & Associates and talk to our New York Domestic Violence Lawyers or our New York Criminal Lawyers.

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