NY Criminal Trespass Lawyer

A criminal trespass charge in New York accuses you of entering or staying on someone’s property without permission. Nearly every case comes down to whether you were allowed on the property and whether you knew you weren’t.

In New York City, lobbies, rooftops, and store floors are open to some people and closed to others, and the line is rarely posted anywhere. A resident’s guest and a stranger with no business in the building may look the same to an officer, and the arrest report often reads the same too.

Mehdi Essmidi is a former New York City prosecutor. He knows what the District Attorney has to prove about what you knew, and where that proof tends to be thin. Contact us for a free consultation.

Criminal Trespass

Under New York Penal Law, criminal trespass means knowingly entering or staying in a building, or on land, where you have no license or privilege to be. The charge may be anything from a violation, which is not a crime, up to a felony, depending on the property involved and the degree charged.

Degrees of Criminal Trespass in New York

New York has three degrees of criminal trespass, separated by the kind of property involved and, for the most serious charge, whether a weapon was present. Each carries its own penalty.

Criminal Trespass in the Third Degree (§ 140.10)

Criminal trespass in the third degree is a class B misdemeanor, with up to three months in jail. It covers knowingly entering or staying in a building, or on land that is fenced or otherwise enclosed to keep people out.

Criminal Trespass in the Second Degree (§ 140.15)

Criminal trespass in the second degree is a class A misdemeanor, with up to one year in jail. It applies when you knowingly enter or stay unlawfully in a dwelling, meaning a place where people live, such as a house or an apartment. It also applies to certain registered sex offenders who enter a school the victim attends or attended.

Criminal Trespass in the First Degree (§ 140.17)

Criminal trespass in the first degree is a class D felony, with up to seven years in prison. It applies when you knowingly enter or stay unlawfully in a building while you have an explosive or deadly weapon, while you carry a firearm, rifle, or shotgun with ammunition for it within reach, or while you know that someone else taking part in the trespass has one.

Defending Against Criminal Trespass Charges in New York City

Possible defenses for criminal trespass charges in New York City include:

• Lack of intent: The prosecution must prove beyond a reasonable doubt that you entered (or stayed) unlawfully on someone else’s property. If your attorney can demonstrate that you were not aware you were committing trespass or had a valid reason to believe you were allowed on the property, the charges may be dismissed or reduced.
• No notice or posting: On open land that is not fenced, and in places that are open to the public, the law expects a posted warning or a personal order to leave before entry or staying becomes unlawful. If none was given, your attorney may be able to argue that you did not commit a trespass.
• Mistake of fact: If you mistakenly believed you had the right to be on the property, your attorney may be able to use this as a defense to the criminal trespass charges.

Contact a NY Criminal Trespass Lawyer

A trespass arrest tends to look too small to fight. The court date is weeks away, and it is tempting to show up, take whatever is offered, and move on. What gets offered, though, depends on what the prosecutor knows about your reason for being there and what, if anything, you were told.

As a former New York City prosecutor, attorney Mehdi Essmidi knows how a District Attorney’s office decides what to offer on a case like this, and what tends to improve that offer. We handle criminal trespass cases in every borough. Contact us for a free consultation.

FAQs About New York Criminal Trespass

Is a “trespass” ticket the same thing as criminal trespass?

No. Plain trespass under New York Penal Law 140.05 is a violation, not a crime, and it carries up to fifteen days in jail and a fine. Criminal trespass in the third, second, and first degree are crimes, and the line between a violation and a misdemeanor usually comes down to where you were and whether the property was fenced, a dwelling, or covered by posted rules.

I was in the lobby of a public housing building. How is that trespassing?

New York Penal Law 140.10 makes it criminal trespass in the third degree to enter a public housing building in violation of conspicuously posted rules, or to stay after a housing police officer or someone in charge tells you to leave. Visiting a resident is a lawful reason to be in the building, and proof that you were there to see someone who lives there is often the heart of the defense. If you were stopped in a lobby with neither a posted-rules violation nor a request to leave, the charge may not hold up.

I signed a trespass notice at a store. What happens if I go back?

Going back may be charged as criminal trespass in the third degree, or at minimum as trespass, because the notice is the personally communicated order the law requires. Once you have signed one, or been told in person that you are banned, a later entry is treated as knowing, even if you walk in quietly and buy something. New York law sets no fixed expiration on these notices, so treat one as open-ended unless the business says otherwise in writing.

I was drunk and do not remember going in. Does that help my case?

It may, though not in the way most people hope. Intoxication is not a defense to a criminal charge in New York. The law does let you offer evidence that you were intoxicated when it bears on whether you acted “knowingly,” and knowing is an element of every trespass offense. Whether that argument helps is a judgment call for your attorney after reading the police account.

The property owner does not want to press charges. Can the case still go forward?

Yes. In New York, the District Attorney decides whether to prosecute, not the person whose property was involved. An owner who says they do not want the case pursued may make a real difference to the outcome, and prosecutors often weigh that when offering a dismissal or a violation plea, but their wishes alone do not end the case.