Criminal Trespass

If you simply enter property of another person and remain there unlawfully you would have trespassed.  Doing so is not a crime, but a violation. Criminal trespass is often applied to misdemeanor criminal activities associated with the unauthorized entry of a premises or facility. Trespass is held to infringe upon a property owner’s legal right to enjoy the benefits of ownership. New York’s trespassing laws also apply to some buildings and/or businesses that are normally accessible to the public.

If you have been told by the owner that you are no longer welcome on the property, any subsequent return to that property may result in a trespassing charge. However, if you trespass onto property and there are certain aggravating factors such as you have a weapon, then the trespass would be classified not as a violation, but as a crime.  There are three degrees of severity of the crime of criminal trespass: criminal trespass in the third degree, criminal trespass in the second degree, and criminal trespass in the first degree. Criminal trespass in the second and third degrees are misdemeanors while criminal trespass in the first degree is a felony.

Trespass. N.Y. Pen. Law § 140.05

Trespass is defined by the act of knowingly entering another person’s property without permission. Under New York Penal Law, a person is guilty of trespass when he/she knowingly enters or remains unlawfully in or upon premises. Trespass is a violation.

Criminal trespass in the third degree. N.Y. Pen. Law § 140.10

Criminal trespass in the third degree is the least severe of the criminal trespass offense.  It involves entering property that is clearly secured to prevent uninvited people from entering.  Trespassing on another individual’s property may be charged when a person knowingly enters or remains unlawfully in a building or upon real property:

(a) which is fenced or otherwise enclosed in a manner designed to exclude intruders; or

(b) where the building is utilized as an elementary or secondary school, a children’s overnight camp, or a summer day camp, in violation of conspicuously posted rules or regulations governing entry and use thereof; or

(c) located within a city with a population in excess of one million and where the building or real property is utilized as an elementary or secondary school in violation of a personally communicated request to leave the premises from a principal, custodian or other person in charge thereof; or

(d) located outside of a city with a population in excess of one million and where the building or real property is utilized as an elementary or secondary school in violation of a personally communicated request to leave the premises from a principal, custodian, school board member or trustee, or other person in charge thereof; or

(e) where the building is used as a public housing project in violation of conspicuously posted rules or regulations governing entry and use thereof; or

(f) where a building is used as a public housing project in violation of a personally communicated request to leave the premises from a housing police officer or other person in charge thereof; or

(g) where the property consists of a right-of-way or yard of a railroad or rapid transit railroad which has been designated and conspicuously posted as a no trespass railroad zone.

Criminal trespass in the third degree is a class B misdemeanor and you would face up to ninety days in jail.

Criminal trespass in the second degree. N.Y. Pen. Law § 140.15

Criminal trespass in the second degree follows the unauthorized entrance into a dwelling such as a residential structure. Dwelling is as any type of building that is usually occupied by someone who lodges there at night. You will also face this charge if you are a Level 2 or 3 registered sex offender and you enter a school that your victim attends or once attended.

A person is guilty of criminal trespass in the second degree when:

  1. he or she knowingly enters or remains unlawfully in a dwelling; or
  2. being a person required to maintain registration, he/she enters or remains in a public or private elementary, parochial, intermediate, junior high, vocational, or high school knowing that the victim of the offense for which such registration is required attends or formerly attended such school.

It shall not be an offense subject to prosecution if:

  • the person is a lawfully registered student at such school;
  • the person is a lawful student participant in a school sponsored event;
  • the person is a parent or a legal guardian of a lawfully registered student at such school and enters the school for the purpose of attending their child’s or dependent’s event or activity;
  • such school is the person’s designated polling place and he/she enters such school building for the limited purpose of voting;
  • or if the person enters such school building for the limited purposes authorized by the superintendent or chief administrator of such school.

Criminal trespass in the second degree is a class A misdemeanor, punishable by up to one year in jail.

N.Y. Pen. Law § 140.17. Criminal trespass in the first degree.

Criminal trespass in the first degree is the most serious trespass offense. Under New York laws, trespassing can be considered a felony and carries very serious potential penalties. You will face this charge if you enter property and remain there unlawfully and you or an accomplice have explosives, a deadly weapon, or a firearm, rifle, shotgun along with ammunition.

A person is guilty of criminal trespass in the first degree when he knowingly enters or remains unlawfully in a building, and when, in the course of committing such crime, he:

  1. Possesses, or knows that another participant in the crime possesses, an explosive or a deadly weapon; or
  2. Possesses a firearm, rifle or shotgun, and also possesses or has readily accessible a quantity of ammunition which is capable of being discharged from such firearm, rifle or shotgun; or
  3. Knows that another participant in the crime possesses a firearm, rifle or shotgun under circumstances described in subdivision two.

Criminal trespass in the first degree is a class D felony and carries the potential for prison time. If you are convicted of felony criminal trespass, you could end up in state prison for up to 7 years.

At first glance the crime of trespass may seem minor.  However, if you are convicted there is a good chance that you will end up behind bars.  Thus, if you have been charged with criminal trespass it is important that you immediately contact an experienced New York criminal trespass lawyer who will vigorously defend you until your case is resolved. A criminal defense lawyer understands whether the trespass charge can be serious or not and works to mitigate the circumstances of the event.