Decided on January 8, 2013
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Tom, J.P., Andrias, Freedman, Roman, Gische, JJ.
Judgment, Supreme Court, Bronx County (Caesar Cirigliano, J.), rendered February 22, 2010, convicting defendant, after a non-jury trial, of possession of graffiti instruments, adjudicating her a youthful offender, and sentencing her to time served, unanimously reversed, on the facts and as a matter of discretion in the interest of justice, and the information dismissed.
An element of possession of graffiti instruments (Penal Law § 145.65) is that a defendant possessed the instrument at issue under circumstances evincing an intent to use it to damage property that the defendant had no permission or authority to mark. The court, sitting as trier of fact, correctly determined that since the officers' testimony as to the status of the property at issue was refuted by the testimony of a City official called by the defense, there was a failure of proof of the element of lack of permission. Accordingly, the court acquitted defendant of making graffiti (Penal Law § 145.60). For the same reason, the evidence failed to establish the corresponding lack-of-permission element of possession of graffiti instruments.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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