Daniel K., Matter of
| Decision Date | 01 July 1982 |
| Citation | 89 A.D.2d 630,453 N.Y.S.2d 96 |
| Parties | In the Matter of DANIEL "K", * A Person Alleged to be a Juvenile Delinquent, Appellant. Supreme Court, Appellate Division, Third Department |
| Court | New York Supreme Court — Appellate Division |
Pamela A. Clermont, Ithaca, for appellant.
James R. Hickey, Jr., Asst. County Atty., Tompkins County, Ithaca, for respondent.
Before MAHONEY, P. J., and KANE, CASEY, WEISS and LEVINE, JJ.
Appeal from a judgment of the Family Court of Tompkins County, entered July 22, 1981, which adjudicated appellant to be a juvenile delinquent and imposed sentence.
On July 22, 1981, after a fact- finding and dispositional hearing, the court found Daniel "K" to be a juvenile delinquent on the ground that while under 16 years of age, he committed an act which if done by an adult would constitute the crime of criminal mischief in the third degree, and further ordered that judgment be suspended for one year upon the condition restitution be made in that period of time. This appeal ensued.
The petition alleges that appellant, aged 15, was guilty of criminal mischief in the third degree when "on the 1st floor of the Tompkins County Court House, respondent did intentionally damage a marble banister and pillar by striking the same with a large metal sign holder, causing damage in the amount of $1,471, said property belonging to the County of Tompkins". It is undisputed that while outside the courthouse en route to the probation department, he was accosted by some boys who pursued him into the building. Inside, he picked up the metal sign holder to throw it at the boys but while in the act of swinging it like an ax, it struck the floor bouncing up and striking the banister.
Section 145.05 of the Penal Law states that a person commits criminal mischief in the third degree when "with intent to damage property of another person * * * he damages property * * * in an amount exceeding two hundred fifty dollars". We find this record clearly lacking in any evidence to prove that appellant intended to damage property; rather it indicates only that he sought to defend himself from the pursuing boys. Intent to injure a person, even if it were shown to be unlawful, cannot satisfy the mens rea requirement that a defendant be a person who wilfully destroys or injures property of another (People v Hackley, 20 A.D.2d 534, 535, 245 N.Y.S.2d 58). "In New York, the prosecution is required at all times to prove, beyond a reasonable doubt, the facts bearing the defendant's...
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People v. Toro
... ... , of criminal mischief in the fourth degree and imposed sentence.ORDERED that the judgment of conviction is reversed, on the law, and, as a matter of discretion in the interest of justice, the accusatory instrument is dismissed.Defendant was charged with criminal mischief in the fourth degree ( ... of the attack (see Washington , 18 N.Y.2d at 368, 275 N.Y.S.2d 508, 222 N.E.2d 378 ; Roberts , 140 A.D.2d at 961, 529 N.Y.S.2d 636 ; Matter of Daniel K. , 89 A.D.2d 630, 453 N.Y.S.2d 96 [1982] ; People v. Bryant , 85 A.D.2d 575, 445 N.Y.S.2d 711 [1981] ). As correctly conceded by the People, based ... ...