What is the test for an allegation that a defendant molested and damaged a complainant's property?

There is also a very interesting distinction between offensive acts committed against 'others' as set forth in subdivision 2 of Section 722 of the Penal Law and offensive acts against 'any person' as set forth in Section 720 of the Penal Law. See People v. Harvey, 307 N.Y. 588, 123 N.E.2d 81.

The determination of this appeal should not be construed as an approval of the defendants' acts if they did in fact molest or damage the complainant's property. Clearly, if the allegations of the information are true, then the defendants may well be guilty of a malicious injury to property in violation of subsidivision 11-a of Section 1425 of the Penal Law, or a violation of Section 1433 of the Penal Law. Certainly there can be no justification for the defendants' conduct, if true. However, no case justifies stretching a penal statute to fit the facts. No conviction can be justified unless the facts fit into the statute under which a defendant is charged. No matter how much we may despise the conduct of the defendants, we cannot predicate guilt on such a basis. People v. Feliciano, supra.

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Section 722 of the Penal Law should not be used simply because someone believes that an arrest should be made. The facts alleged must clearly indicate a violation of the section before an information thereunder will be sustained. People v. Swald, 190 Misc. 239, 73 N.Y.S.2d 399.

The informations herein should be dismissed, the sentences vacated and the fines remitted.

Submit order.