New York State Assembly Bill A5157 modifies the statutory definition of Criminal Mischief in the Third Degree, codified in New York Penal Code § 140.05. Currently, the Penal Code defines Criminal Mischief in the Third Degree as either a) the damaging of a motor vehicle with the intent to steal property if the defendant has previously been convicted of criminal mischief, or b) the intentional damaging of property worth at least $250. A5157 adds to the statutory definition the damaging of any lock, alarm, or security or anti-theft device in a motor vehicle with the intent to steal property, regardless of the value of the damage caused.
The conduct covered by A5157 is already criminalized by New York Penal Code § 140.00, which defines Criminal Mischief in the Fourth Degree in relevant part as the intentional damaging of another person’s property, without regard to its value. Criminal Mischief in the Fourth Degree is a Class A misdemeanor, carrying a potential penalty of up to a year in prison, and $1,000 in fines. A5157 would reclassify the covered conduct as Criminal Mischief in the Third Degree, a Class E felony carrying a potential sentence of four years in prison.
A5157 has been introduced by Assembly Member Steven Cymbrowitz (D-45) in each term of the State Assembly since the 2009-2010 term, but has never made it past the Standing Committee on Codes.
A5157 is an unnecessary and potentially harmful addition to the New York Penal Code. First, the law disrupts the general scheme by which the Penal Code punishes attempt crimes. Under Penal Code § 110.05, attempted crimes are generally classified at one level of severity below the level at which the crime would be classified if completed. However, A5157 would make certain forms of attempted theft class E felonies, regardless of the normal severity of the attempted theft under § 110.05. This may create perverse incentives for criminals to complete, rather than abandon, their crimes. For example, under the current statutory scheme, an attempt to break into a motor vehicle in order to steal property worth $1,000 would be classified as a class A misdemeanor. See Penal Code § 155.30 (defining fourth degree larceny and classifying it as a class E felony), Penal Code § 110.05 (classifying an attempted class E felony as a class A misdemeanor). However, under A5157, such an act would be classified as a class E felony, regardless of whether or not the crime was complete. The distinction between the attempt and completed crime would be eliminated.
Such a result cannot be defended on the grounds that a more severe penalty is necessary to deter this kind of unlawful behavior. While prison sentences may deter lawful behavior, the length of the prison sentence has an attenuated relationship with the size of the deterrent effect. To the extent there is such a relationship, the deterrent effect suffers from diminishing returns the longer the prison sentence becomes. Far more important for deterrence is the certainty of conviction, rather than its severity. See generallyDaniel S. Nagin, Deterrence in the Twenty-First Century, 42 Crime & Justice 199–163 (2013). A5157 does nothing to make convictions for the relevant conduct more likely, as the conduct is already criminalized under Penal Code § 140.00.
Despite the marginal deterrent effect, A5157 could result in significant collateral consequences for criminal defendants convicted under the bill. The reclassification of the relevant conduct as a felony carries with it a number of collateral penalties. Felons in New York convicted of a crime punishable by more than a year may be unable to serve on juries (N.Y. Jud. Law § 510(3), 28 U.S.C. § 1865(b)(5)), unable to vote while on parole or in prison (N.Y. Elec. Law § 5-106(2)), unable to enlist in the armed forces (10 U.S.C. § 504(a)), and unable to possess firemarms (18 U.S.C. § 922(g)(1). Conviction under A5157 could also result in deportation for defendants who are not citizens. INA 101(a)(43)(G).
In short, A5157 causes damage to New York’s criminal punishment scheme, and imposes severe collateral consequences on criminal defendants, in exchange for what would likely be a negligible increase in deterrence. We urge this bill be rejected.