[1] Commonly at issue in criminal trespass cases is the first part of the definition “knowingly enters or remains unlawfully”. “Entering” is an intrusion onto premises, no matter how slight, and can be by any part of your body.[2] The word “remain” applies in situations where an individual had permission to be on premises, but stayed after their permission expired.[3] Lastly, “unlawfully” relates to whether or not an individual had permission to be on the premises from someone with authority to give that permission.[4]

In Albany, criminal trespass is divided into three degrees. Criminal trespass in the 3^rd degree (PL 140.10) occurs when an individual unlawfully enters/ remains on premises that are: fenced in, or otherwise enclosed; a school; or a railyard. Criminal trespass is upgraded to 2^nd degree (PL 140.15) when the premises consist of a dwelling; or the individual trespassing is a level two or three sex offender and the premises are a school. Lastly, criminal trespass is upgraded to 1^st degree (PL 140.17) when the individual entering the premises either possesses or knows that another co-participant possesses, a loaded gun, explosive, or deadly weapon. Criminal trespass in the 1^st degree was added to New York’s penal law specifically in reaction to an incident in 1969, where armed students occupied a Cornell University building.[5]

The consequences of a criminal trespass conviction in New York can be extreme depending on which degree an individual is ultimately convicted of. Criminal trespass 3^rd degree is classified as a “B” misdemeanor, which is punishable by either three (3) months in jail or one (1) year of probation, and with a fine of $500. Criminal trespass 2^nd degree is an “A” misdemeanor, which is punishable by either one (1) year in jail or three (3) years of probation, and with a fine of $1,000. Criminal trespass 1^st degree is classified as a “D” felony, punishable by either up to seven (7) years in state prison or five (5) years on probation, and with a fine of $5,000.[6]

Albany Criminal Trespass 3^rd Degree (PL 140.10)

A person is guilty of criminal trespass in the third degree when he 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 or a children’s overnight camp as defined in section one thousand three hundred ninety-two of the public health law or a summer day camp as defined in section one thousand three hundred ninety-two of the public health law 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 2^nd Degree (PL 140.15)

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 under article six-C of the correction law and designated a level two or level three offender pursuant to subdivision six of section one hundred sixty-eight-l of the correction law, he or 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 under this subdivision 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 or 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.

Albany Criminal Trespass 1^st Degree (PL 140.17)

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, as those terms are defined in section 265.00, 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.

Conclusion

While two out of the three degrees of criminal trespass are misdemeanors, they are still crimes that result in a criminal record and possibly time in jail. Whether it is a misdemeanor or felony, any time an individual is charged with a crime it is a serious matter. If you are charged with criminal trespass the best way to ensure you do not end up with a criminal record, or in jail, is to have an experienced team of criminal defense attorneys by your side. There may be issues with your case that only an experienced attorney can spot, and those issues could be the difference between getting convicted or having your case dismissed.

[1] New York Penal Law Section 140.00
[2] People v. King, 61 N.Y.2d at 555 (1984)
[3] People v. Licata, 28 N.Y.2d 113, 117 (1971)
[4] People v. Graves, 76 N.Y.2d 16, 20 (1990)
[5] New York Penal Law Section 140.00 Practice Commentary (McKinney)
[6] New York Penal Law Title E