New York Penal Law § 140.17 – Criminal Trespass in the First Degree

Criminal Trespass in the First Degree is the most serious trespassing crime in New York, which prohibits specific instances of trespassing. For example, Criminal Trespass in the First Degree provides enhanced punishments for those who carry an explosive device, deadly weapon, or firearm with ammunition while trespassing or commit a trespassing offense with another person, knowing the other person possesses a firearm or shotgun. Criminal Trespass in the First Degree is a Class D felony.

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

1. The defendant unlawfully entered or remained in a building;
2. The defendant knew they were not permitted to enter or remain in the building; and
3. The defendant either,
   1. Knowingly possessed an explosive device or another deadly weapon;
   2. Knowingly possessed a firearm, rifle or shotgun with ammunition capable of being fired by the weapon; or
   3. Committed the offense with knowledge that another person who was also involved in the commission of the crime possessed a firearm, rifle or shotgun.

Some of the most common examples of Criminal Trespass in the First Degree include the following:

• A defendant breaks into a closed business carrying a firearm;
• A defendant unlawfully enters the unlocked front door of a residential home with another person they know to be carrying a gun;
• A defendant entered another’s motorhome without permission while carrying explosives.

Often, prosecutors bring Criminal Trespass in the First Degree charges along with one or more of the following:

• Trespass – NY Penal Law § 140.05
• Criminal Trespass in the Second Degree – NY Penal Law § 140.15
• Criminal Trespass in the Third Degree – NY Penal Law § 140.10
• 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
• Criminal possession of a weapon in the fourth degree - N.Y. Penal Law § 265.01
• Criminal possession of a weapon in the third degree - N.Y. Penal Law § 265.02
• Criminal possession of a weapon in the second degree - N.Y. Penal Law § 265.03
• Unlawful possession of weapons by persons under sixteen - N.Y. Penal Law § 265.05
• Criminal possession of a weapon in a restricted location- N.Y. Penal Law § 265.01-D
• Criminal possession of a weapon on school grounds - N.Y. Penal Law § 265.01-A

There are several defenses to Criminal Trespass in the First Degree 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 permission to enter the building;
• You were not in possession of ammunition that could be fired with the firearm you were carrying;
• You thought you had permission to enter the building; or
• You did not know that the person you were with was carrying a firearm.

Criminal Trespass in the First Degree is a Class D felony. In New York, Class D felony offenses carry a maximum sentence of up to seven years in jail and a fine of up to $5,000.

If you were recently charged with Trespassing in the First Degree, Tilem & Associates, P.C. is here to help. For over 25 years, we’ve been providing clients with zealous representation designed to minimize the impact of their recent arrest. We take a comprehensive approach to every case we handle, ensuring we do everything possible to protect your interests. 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.