New York Penal Law § 140.05 – Trespass

Under New York Penal Law, Trespass is an offense prohibiting individuals from unlawfully entering or remaining on another’s property. A Trespass offense is considered a violation.

Before a judge or jury can convict anyone of Trespass, the government must prove each element of the offense beyond a reasonable doubt. The elements of Trespass are:

1. The defendant unlawfully entered or remained on another’s property; and
2. The defendant did so knowingly.

In this context, “premises” refers to any real property, including buildings. Additionally, the term includes vehicles or watercraft that people sleep in or conduct business in. Trucks and trailers are also considered “premises” for the purpose of the Trespass statute.

If an order of protection is in place prohibiting a defendant from entering a certain location, their entrance onto the property is still unlawful, even if the defendant obtains the owner’s permission.

There are many examples of trespass, some of which include:

• Crossing across another’s property without their permission;
• Remaining in a retail store after hours by hiding in the dressing room or bathroom;
• Partying on another’s unoccupied boat that the owner left in the slip;
• Visiting the home of a former romantic partner who has a valid protective order that prohibits the defendant from entering his partner’s home.

Depending on the circumstance surrounding the arrest, prosecutors may bring Trespass charges in addition to one or more of the following crimes:

• Criminal Trespass in the Third Degree – NY Penal Law § 140.10
• Criminal Trespass in the Second Degree – NY Penal Law § 140.15
• Criminal Trespass in the First Degree – NY Penal Law § 140.17
• Burglary in the Third Degree – NY Penal Law § 140.20
• Burglary in the Second Degree – NY Penal Law § 140.25
• Burglary in the First Degree – NY Penal Law § 140.30
• Possession of Burglar’s Tools – NY Penal Law § 140.35

There are several defenses to Trespass that can either reduce your sentencing exposure or result in the prosecution withdrawing the case against you or the jury returning a “not guilty” verdict.

The most common defenses include the following:

• You had the owner’s permission to enter or remain on their property;
• You were unaware that you had entered another’s property;
• You thought that you had permission to enter the property; and
• You were justified in entering the property.

Note, however, that the owner’s consent to enter a property is not a defense if there is a valid protective order preventing you from entering the property. In this case, even with the owner’s written or verbal consent, you are still entering the property “unlawfully.”

Trespass is a violation, meaning the offense is not considered a misdemeanor or a felony. In New York, violations carry a maximum sentence of up to 15 days in jail and a fine of up to $250. However, allegations of Trespass are often accompanied by other, more serious, crimes.

If you were recently cited for Trespassing, regardless of the underlying facts, it is important that you are aware of your rights. Although Trespass is relatively minor, you shouldn’t lie down and accept the allegations against you as true. At Tilem & Associates, P.C., our clients regularly call upon us to defend them in Trespassing cases. We understand the best trespass defenses and how to use them to ensure your case ends with as little impact on your future as possible. We are immediately available to meet with you to get started working on a compelling defense to the charges you face. To learn more, and to schedule a free consultation today, call 877-377-8666. You can also reach us through our online contact form.