Trespassing – Burglary Charges

Trespassing and burglary are interrelated crimes. Because of popular culture, people think of burglary as a “breaking and entering” stealing. While this is not entirely inaccurate it is not entirely true. Burglary is a much broader crime than just theft. Burglary is a trespassing coupled with intent to commit a crime – any crime. At its core, trespassing prohibits a person begin somewhere he is not authorized to be, and burglary is the same as trespassing but being there with a motivation to commit a crime. The various degrees of trespassing turn on the type of property that one is accused of trespassing upon, and the severity of burglary likewise depends upon the type of property trespassed upon, plus the intent to commit a crime therein and whether or not the defendant was armed with any weapons.

Trespassing and burglary terms defined

Your criminal defense lawyer requires in depth knowledge of the various terms which turn on the elements of the offenses of trespassing or burglary. These are defined in NY Penal Law § 140. The main terms every attorney needs to master for purposes of trespassing and burglary are as follows:

“Premises” includes the term “building,” and any real property.

“Building” includes any structure, vehicle or watercraft used for overnight lodging of persons, carrying on business, used as a school, or an enclosed motor truck or trailer. 

“Dwelling” means a building which is usually occupied by a person lodging therein at night.

“Night” means the period between thirty minutes after sunset and thirty minutes before sunrise.

“Enter or remain unlawfully.” A person “enters or remains unlawfully” in or upon premises when he is not licensed or privileged to do so. 

Radio Device” means any device capable of receiving or transmitting a wireless voice transmission on any frequency allocated for police use. 

Further, having a license or privilege to enter part of an area open to the public, such as the selling area of a retail store, excludes a license or privilege to: 

·        Enter or remain after hours

·        Enter or remain after being told to leave by the establishment

·        Enter or remain in non-public areas 

However, a trespassing charge is not appropriate when a person who enters or remains upon unimproved, unused, outdoor and unfenced land unless notice against trespass is communicated to him by the owner of the land either personally or via posted “no trespassing” signs. 

The various degrees of trespassing and burglary
New York has 4 trespassing statutes and 3 burglary statutes ranging from a non-criminal violation to a class “B” felony.

Elements of each statute

Trespassing, NY Penal L. § 140.05 – violation

All the state must prove is that the defendant knowingly entered or remained unlawfully in or upon premises.

3rd Degree Criminal Trespassing, NY Penal L. § 140.10 – Class B misdemeanor

There are several ways to be charged with the crime of Criminal Trespassing in the 3rd degree. In addition to “knowingly entering or remaining unlawfully,” the location must be a building or real property and the aggravating circumstances are either:

·        Fenced or enclosed to exclude intruders, or

·        Utilized as a school or a children’s camp (overnight or day camp) so long as there were no trespassing signs, or

·        In a city of a population over 1 million, in a school subsequent to being personally asked to leave by school officials, or

·         A school outside of city with a population in excess of one subsequent to being personally asked to leave by school officials, or

·        In a public housing project with posted rules or regulations governing entry and use, or

·        In a public housing project subsequent to being asked to leave by a police officer or housing authority official, or

·        A railroad right of way which is posted as a no-trespass railroad zone.

2nd Degree Criminal Trespassing, NY Penal L. § 140.15 – Class A misdemeanor

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

·        Knowingly enters or remains unlawfully in a dwelling; or

·        Being a level two or level three sex offender enters or remains in a public or private school knowing that the victim attends or formerly attended such school. Exceptions to this element are if the person is a student at the school or a parent of a student at the school, or to enter for the purpose of voting. 

1st Degree Criminal Trespassing, NY Penal L. § 140.17 – Class “D” felony

A person is guilty of first degree criminal trespass when, upon knowingly entering or remaining unlawfully in a building, that person or his co-participant either:

·        Possesses an explosive or a deadly weapon; or

·        Possesses a firearm, rifle or shotgun, and ammunition.

3rd Degree Burglary, NY Penal L. § 140.20 – Class “D” felony

“A person is guilty of burglary in the third degree when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein.”

2nd Degree Burglary, NY Penal L. § 140.25 – Class “C” felony

 In addition to the elements required for 3rd degree burglary, and while either entering, having entered, or having immediately left, the person or a counterpart must also either:

·       Been armed with explosives or a deadly weapon; or

·       Cause physical injury to any person not a participant in the crime; or

·       Uses or threatens the immediate use of a dangerous instrument; or

·       Displays what appears to be a firearm; or

·       Even if unarmed, the building is a dwelling.

1st Degree Burglary, NY Penal L. § 140.30 – Class “B” felony

Burglary in the 1st degree requires that the state prove the individual knowingly entered or remained unlawfully in a dwelling with intent to commit a crime, and while either entering, having entered, or having immediately left, the person or a counterpart must also either:

·       Been armed with explosives or a deadly weapon; or

·       Cause physical injury to any person not a participant in the crime; or

·       Uses or threatens the immediate use of a dangerous instrument; or

·       4. Displays what appears to be a loaded and operable firearm. 

Collateral crimes

Possession of burglar’s tools, NY Penal L. § 140.35 – Class “A” misdemeanor

A person is guilty of possession of burglar’s tools when, with intent to utilize said object, he possesses any object designed or commonly used for committing offenses involving forcible entry into premises, larceny by a physical taking, or theft of services.  

Unlawful possession of radio devices, NY Penal L. § 140.40 – Class “B” misdemeanor

Unlawful possession of a radio device prohibits possessing a radio device with the intent to use in the commission of robbery, burglary, larceny, gambling or use or sale of a controlled substance. 

Defense of your trespassing or burglary charge

Often times defense of your trespassing ticket or arrest turns on undermining the elements. A common theme is that a defendant must knowingly enter a premises and, for the upgraded charge of burglary that in doing so the person had premeditated intent to commit a crime therein. Additionally, often times a person is over charged with a felony burglary for being in a public place that arguably your license to be there was previously revoked. This is common in a shoplifting larceny charge.

It is just as important to fight and defend a felony burglary charge as it is to fight a violation summons for simple trespass when given a ticket for being in a public park after hours. You should never plead guilty “as charged to the violation of simple trespass even though it does not result in a criminal conviction. This is because a trespassing conviction:

·        Implies an underlying charge of moral turpitude

·        Still comes up on a criminal background check

·        Is often over charged

·        There is nothing to lose and everything to gain by contesting and taking your simple trespassing ticket to trial instead of pleading guilty “as charged.” 

Further, often times a trespassing violation conviction can affect your job, college acceptance, financial aid and student loans, internship opportunities, and job opportunities. 

Just because you were arrested does not mean you are guilty “as charged.” Our office reviews all of the accusatory instruments, statements, and surrounding facts and circumstances of your trespassing or burglary summons or arrest to fully brief a defense to explain to you your options and put forth a zealous defense.