Trespass and Criminal Trespass in New York

Criminal trespass runs from a non-criminal violation up to a felony in New York, and the grade depends on where you were, not on what you did there. Just over 200 trespass cases a year move through Nassau and Suffolk County District Court. If you have been charged, call Hochhauser Criminal & DWI Defense at 516-939-1529.

The trespass ladder and its penalties

The bottom row is not a trespass charge at all, but it belongs on this table because the conduct is identical. The only thing separating criminal trespass from burglary is whether you entered intending to commit a crime inside. Nothing has to be taken. No crime has to actually be committed.

What “enter or remain unlawfully” means

Every one of these charges rests on the same phrase: you entered or remained somewhere you were not licensed or privileged to be. Two features of that definition matter enormously.

First, premises open to the public carry a license to enter. That license is only revoked when a lawful order not to enter or remain is personally communicated to you by the owner or someone authorized to speak for them. A store, a mall, a lobby, a campus — entering during open hours is not trespass unless somebody told you to leave and you stayed, or told you not to come back and you did.

Second, New York’s definition of “building” is far broader than ordinary usage. It includes any structure, vehicle or watercraft used for overnight lodging or for carrying on business, plus schools and enclosed trucks. A van, a boat, or a fenced work trailer can be a building for these purposes. A “dwelling” is a building usually occupied by someone lodging there at night — which turns on habitual occupancy, not on whether anyone was home.

Where each charge is defensible

• PL 140.10(a), fenced or enclosed property. The enclosure must be designed to exclude intruders. A decorative split-rail fence, a collapsed section, or an open gate is a real factual defense, not a technicality.
• PL 140.15(1), a dwelling. Whether the building qualifies is frequently the fight — vacant properties, buildings under construction, and commercial spaces are not dwellings. So is whether you had a license from a co-tenant, a family member, or a lease. This is the most litigated issue in domestic-adjacent trespass cases, where a client often has a legitimate residential claim to the place he is accused of entering.
• PL 140.20, burglary. The intent element is the weak link. It is almost always proven circumstantially — time of day, tools, forced entry, flight. Where someone walked into an open commercial building during business hours and took nothing, the inference collapses and a trespass plea is the realistic outcome. The intent also has to exist at the time of entry or of unlawfully remaining; an intent formed after a lawful entry does not convert it into burglary.

Burglary in the third degree is not a violent felony

This is worth stating plainly because it is widely assumed otherwise. PL 140.20 does not appear on New York’s violent felony list — only burglary in the first and second degree do. That means no determinate sentence and no mandatory prison term for a first felony offender. Probation of three to five years, a definite sentence of a year or less, and a conditional discharge are all available options.

Where trespass cases are heard

We handle trespass and burglary cases across Nassau County and Suffolk County. Where property was also damaged, see criminal mischief.

Criminal trespass frequently asked questions

Is trespass a crime in New York?

PL 140.05 trespass is a violation, not a crime. Criminal trespass in the third and second degree are misdemeanors.

I was in a store that was open to the public.

Then you had a license to be there. It is revoked only when someone with authority personally tells you to leave or not to return — and the People have to prove that happened.

It is my own apartment. How can I be trespassing?

You may well not be. A lease, a residential claim, or permission from a co-tenant all go directly to whether the entry was unlawful. This comes up constantly in domestic cases and it is a genuine defense, not an argument.

What turns trespass into burglary?

Intent to commit a crime inside, formed at the time of entry. That is the entire difference, and it is usually the weakest part of the People’s case.

Speak with a Long Island criminal trespass lawyer

Richard Hochhauser defends trespass and burglary cases in Nassau and Suffolk County District Court. On this ladder, one contested inference is the difference between a violation with no criminal record and a Class D felony — which is why these cases reward being litigated.

This page provides general information about criminal trespass in New York and is not legal advice. Every case turns on its own facts. Contacting our firm does not create an attorney-client relationship.