Defending your
trespassing or burglary ticket or 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. They are as follows:
Statute |
Grade |
NY Penal
Law § 140.05 Trespass (also called “simple trespass”) |
Violation |
NY Penal
Law § 140.10 Criminal trespass in the third degree |
Class “B”
misdemeanor |
NY Penal
Law § 140.15 Criminal trespass in the second degree |
Class “A”
misdemeanor |
NY Penal
Law § 140.17 Criminal trespass in the second degree |
Class “D”
felony |
NY Penal
Law § 140.20. Burglary in the third degree |
Class “D”
felony |
NY Penal
Law § 140.25. Burglary in the second degree |
Class “C”
felony |
NY Penal
Law § 140.30. Burglary in the First degree |
Class “B”
felony |
Miscellaneous and related trespassing
and burglary crimes
Statute |
Grade |
NY Penal
Law § 140.35 Possession of burglar tools |
Class “A”
misdemeanor |
NY Penal
Law § 140.40 Unlawful possession of radio devices |
Class “B”
misdemeanor |
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.