Being accused of criminal trespass in New York can feel overwhelming, especially if you believe you had every right to be where you were. But in New York, trespass is more than a simple "no trespassing" violation. Depending on the circumstances, you could face anything from a violation-level offense to a serious felony charge that carries years in state prison.
If you or someone you love has been charged with criminal trespass in New York City, it is critical to understand the law, the potential penalties, and the defenses that may be available to you.
How New York Law Defines Criminal Trespass
Under New York law, criminal trespass occurs when a person knowingly enters or remains unlawfully in a building, dwelling, or other premises. The key phrase is "knowingly enters or remains unlawfully" – meaning the prosecution must prove you were aware that you did not have permission or authority to be on the property.
New York's Penal Law breaks criminal trespass into three degrees, each carrying different penalties depending on the type of property involved and the circumstances of the alleged offense.
Criminal Trespass in the Third Degree. NY Penal Law § 140.10
Criminal trespass in the third degree is the least serious trespass charge that is classified as a crime (as opposed to a violation). Under NY Penal Law § 140.10, a person is guilty of this offense when they knowingly enter or remain unlawfully in a building or upon real property that is fenced or otherwise enclosed in a manner designed to exclude intruders.
This charge also applies when a person enters or remains in a building that is used as a public housing project in violation of posted rules or conspicuous signage, or when they enter railroad yards, utility property, or other critical infrastructure without authorization.
Criminal trespass in the third degree is a Class B misdemeanor, punishable by up to 3 months in jail and a fine of up to $500.
Criminal Trespass in the Second Degree. NY Penal Law § 140.15
Criminal trespass in the second degree applies when a person knowingly enters or remains unlawfully in a dwelling. Under New York law, a "dwelling" is broadly defined as a building that is usually occupied by a person lodging therein at night. This includes apartments, houses, hotel rooms, and similar living spaces.
The distinction matters because the law treats unlawful entry into someone's home as a more serious intrusion than entering a commercial building or open property.
Criminal trespass in the second degree is a Class A misdemeanor, punishable by up to 1 year in jail and a fine of up to $1,000.
Criminal Trespass in the First Degree. NY Penal Law § 140.17
Criminal trespass in the first degree is the most serious trespass offense in New York and is classified as a Class D felony. A person commits this crime when they knowingly enter or remain unlawfully in a building and when they:
- Possess an explosive or deadly weapon (such as a firearm), or
- Know that another participant in the crime possesses such a weapon
A conviction for criminal trespass in the first degree can result in up to 7 years in state prison. This charge is often brought alongside other serious offenses, including burglary and weapons charges.
When Does Trespass Become Burglary?
Many people confuse trespass and burglary, but in New York the difference is significant. Burglary under NY Penal Law §§ 140.20. 140.30 requires that the person not only entered or remained unlawfully in a building, but did so with the intent to commit a crime inside. If prosecutors allege that you entered a property to commit theft, assault, or another offense, you could face burglary charges, which carry much steeper penalties than trespass alone.
Even a third-degree burglary charge (Class D felony) carries up to 7 years in prison. Second-degree burglary is a Class C violent felony, and first-degree burglary is a Class B violent felony with a potential sentence of up to 25 years.
Common Defenses to Criminal Trespass Charges in New York
An experienced NYC criminal defense lawyer can evaluate the facts of your case and determine which defenses may apply. Some of the most common defenses to criminal trespass include:
Lack of Knowledge
Because trespass requires that you knowingly entered or remained unlawfully, the prosecution must prove you were aware that your presence was unauthorized. If you reasonably believed you had permission to be on the property. For example, if you were a guest, tenant, or employee, you may have a strong defense.
License or Privilege
Under NY Penal Law § 140.00, a person enters or remains "unlawfully" when they are not licensed or privileged to do so. If you can demonstrate that you were invited, had an implied right of access, or were on public property where you were entitled to be, the trespass charge may not hold up.
Constitutional Challenges
In some cases, a trespass arrest, particularly those involving public housing projects, have been challenged on constitutional grounds. Courts have scrutinized trespass enforcement programs that disproportionately target individuals based on race or that infringe on First Amendment rights (such as the right to protest).
Mistaken Identity or Insufficient Evidence
As with any criminal charge, the prosecution bears the burden of proving every element beyond a reasonable doubt. If the evidence is weak, for example, surveillance footage is unclear or witness testimony is unreliable, your attorney can challenge the case on evidentiary grounds.
Trespass Charges in NYC: What Makes These Cases Unique
In New York City, trespass charges arise in a wide variety of contexts. You may be accused of trespassing in a subway station, a commercial building lobby, a public housing development, or even a former partner's apartment. NYPD enforcement of trespass laws has been a subject of significant public debate, and the specific facts of your case, including where the alleged trespass occurred and why you were there can make a major difference in how the case is resolved.
If you were arrested in connection with a domestic dispute or while subject to an order of protection, the consequences of a trespass arrest can be compounded by additional charges. An attorney who understands the intersection of these areas of law is essential.
Contact an NYC Criminal Defense Lawyer Today
If you are facing criminal trespass charges in New York City, do not assume the case is "minor." Even a misdemeanor conviction can result in jail time, a permanent criminal record, and lasting consequences for your employment and housing prospects. You need a trusted NY criminal defense attorney who will fight for your rights.
Julie Rendelman is a seasoned NYC criminal defense lawyer, former Assistant District Attorney in Kings County (Brooklyn), and former Deputy Chief of the Brooklyn Homicide Bureau. As one of New York’s most experienced criminal defense attorneys, she has the courtroom skill to defend you against trespass charges at every level. from violations to felonies.
Call the Law Offices of Julie Rendelman today at 212-951-1232 for a consultation about your case.
New York, NY 10017
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