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New York Penal Law 140 05 Trespass

By Spodek Law Group | July 17, 2023
(Last Updated On: October 18, 2023)

Last Updated on: 18th October 2023, 09:01 am

New York Penal Law 140.05 Trespass

New York Penal Law 140.05 makes it illegal to knowingly enter or remain on someone else’s property without permission. This article provides an overview of the trespass law, defenses, penalties, and related information.

What is Trespass Under NY Penal Law 140.05?

Trespass is defined as knowingly entering or remaining unlawfully on someone else’s property without permission[1]. To be guilty of trespass, the prosecution must prove:

  • The defendant entered or remained on someone else’s property
  • The defendant did not have permission or authority to be there
  • The defendant knew he/she was not allowed on the property

Trespass applies to any type of real property, including land, houses, apartment buildings, commercial buildings, and enclosed areas[2].

Under the law, “premises” covers:

  • Land, yards, gardens, buildings and other structures
  • Vehicles and watercraft used for lodging, business or as a school
  • Fenced or enclosed areas[3]

“Unlawfully” means without license, privilege or authority to be on the premises[4]. Even if you are invited onto a property, you commit trespass by remaining after being told to leave.

Defenses to Trespass Charges

There are several potential defenses if you are charged with trespass[5]:

  • No unlawful entry: You had permission or authority to enter the property, such as an invitation from the owner. Or you made a good faith mistake and did not know you were not allowed.
  • Public property: The property was open to the public and you did not defy an order to leave personally communicated to you.
  • Unused land: The land was unimproved, apparently unused, not fenced or enclosed, and you did not receive notice against trespass.
  • Lack of notice: You did not see posted no trespassing signs or receive personal notice to leave the property.
  • Necessity: You entered the property due to an emergency or medical necessity.
  • Self-defense: You entered to protect yourself, someone else, or your property from harm.
  • Mistake of fact: You made an honest and reasonable factual mistake, such as going to the wrong house address.
  • Mental disease or defect: You did not understand what you were doing due to a mental condition.

Penalties for Trespass

Trespass under NY Penal Law 140.05 is a violation, not a crime. If convicted, potential penalties include[6]:

  • Up to 15 days in jail
  • Up to $250 fine
  • A conditional discharge instead of jail time

While trespass is a minor offense, it can lead to more serious charges if there are aggravating factors. These include:

  • Criminal trespass 3rd degree (NY PL 140.10): Unlawfully entering a fenced or enclosed property, school building, or public housing project. This is a class B misdemeanor.
  • Criminal trespass 2nd degree (NY PL 140.15): Knowingly entering or remaining unlawfully in a dwelling. This is a class A misdemeanor.
  • Criminal trespass 1st degree (NY PL 140.17): Unlawful entry into a building while possessing a weapon or firearm. This is a class D felony.
  • Burglary 3rd degree (NY PL 140.20): Knowingly entering or remaining unlawfully in a building with intent to commit a crime inside. This is a class D felony.

What Are Common Trespass Scenarios?

Some common scenarios that could lead to trespass charges include:

  • Refusing to leave a store or restaurant when told to leave by staff
  • Entering a private club or community property without permission
  • Staying in a hotel room after checkout time
  • Entering an apartment building to visit a resident without permission
  • Cutting through someone’s private yard without permission
  • Entering a restricted construction site or utility property
  • Refusing to leave someone else’s home when told to leave

Schools, industrial facilities, transportation facilities, and government buildings also frequently have trespass issues with unauthorized people entering restricted areas.

Can Police Ask You to Leave Public Property?

In general, the police cannot trespass people from public property like a public park or sidewalk. There are some exceptions where police can order people to leave public areas:

  • When someone is violating a law, ordinance or regulation
  • To disperse a disorderly gathering
  • To protect public safety and order
  • When a property is closed to the public at certain times

Refusing to comply with a lawful order to leave public property can result in trespass charges or other offenses like disorderly conduct, loitering or failure to disperse.

What About Trespassing to Vote at the Wrong Polling Place?

During elections, people sometimes show up at the wrong polling place by mistake. New York has an exception allowing people to lawfully enter the wrong polling place for the limited purpose of voting.

But the protection only applies if:

  • The location is an active polling place on election day
  • The person enters solely to vote and leaves immediately after
  • The person does not defy an order to leave from poll workers

If these conditions are met, entering the wrong polling place to vote is not trespass. But it does not allow soliciting votes or any other purpose in the building.

Can You Trespass on Private Roads, Driveways or Sidewalks?

Under New York law, unpaved private roads, driveways and sidewalks leading to a house are considered part of the “premises” protected against trespass. So entering these areas without permission could lead to trespass charges, not just going into the house itself.

There is an exception if the private road or sidewalk is along the only access route to your own property. In that case, you have an easement to use the road reasonably out of necessity. But you still cannot loiter, damage property, litter, etc.

When Can a Landlord Be Liable for a Tenant’s Trespass?

Landlords have a duty to take reasonable security precautions against foreseeable criminal acts by tenants. If a landlord knows or should know that a tenant is likely to trespass and fails to take preventive action, the landlord may share liability.

For example, a landlord may be liable if he knows his tenant is harassing a neighbor but takes no action to stop it. Factors like prior complaints, lease violations, and police reports help establish the landlord’s knowledge.

Can You Be Trespassed from a Public School if You Are a Parent?

Public schools can limit access to protect student safety and order. But parents generally have rights to access their child’s school. To ban a parent from school grounds, the school must follow procedures like:

  • Giving written notice explaining the reasons for the ban and time period
  • An opportunity for the parent to object and be heard
  • Making reasonable accommodations for the parent to participate in their child’s education

Bans on parents require strong justification like threats, violence or major disruptions. And they must be limited in scope and duration. Schools cannot arbitrarily prohibit parents from school activities.

What About Being Trespassed from a Store Like Walmart?

Private businesses like retail stores can trespass individuals for reasons like shoplifting, disorderly conduct, harassment of staff or other problematic behavior. Some things to know:

  • The notice must be specific as to which location you are banned from and for what time period
  • Managers should provide a warning first unless there is an immediate threat
  • You must be given a chance to leave before police are called
  • Bans should not last longer than reasonably needed to prevent further issues
  • You can be arrested if you return to the store during the ban period

Improper trespass notices from businesses may be challenged. But you should still comply in the moment and contest it later.

Can I Be Trespassed from a Public Library?

Public libraries can create policies to maintain an orderly environment conducive to reading and research. This includes banning patrons who violate library rules or pose a safety risk. However, libraries as public institutions must balance security with access.

Considerations for library trespass bans include:

  • Providing written notice of the reasons for the ban and time period
  • Limiting the ban to the problem location and minimum time needed
  • Allowing the patron to appeal and respond to the allegations
  • Making reasonable accommodations for access to library materials and services
  • Not discriminating against patrons based on protected characteristics

Courts scrutinize public library bans more closely than those by private businesses. Patrons may contest improper or excessive bans.

What Kind of Notice Is Required for Trespass?

For someone to “knowingly” trespass, the property owner must provide clear notice that entry is prohibited. Types of notice include:

  • Signs: Posted “No Trespassing” or “Private Property” signs in visible areas. Signs must be conspicuous and located at normal access points.
  • Fences/Barriers: Fenced perimeters or other barriers to entry like locked gates. This prevents claims of implied consent to enter.
  • Verbal Notice: Direct verbal notice to leave the property by the owner or authorized agent.
  • Mail Notice: Written notice mailed or delivered informing the person they are banned.

Without proper notice, there may not be adequate proof the person knew they were not allowed on the property.

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