What Is Criminal Trespass in New York?

In New York, criminal trespass happens when someone enters or remains on another’s property without permission, or when the property owner has clearly refused entry. New York State criminal trespassing Law (N.Y. Penal Law § § 140.05-140.17) encompasses various types of trespassing based on the user's intention and the type and nature of the property trespassed. Broadly, someone commits criminal trespass when they enter land, buildings, or other premises after they have been ordered to leave; or when they have been legally forbidden entry (for instance, there are gates, signs, or fences stating entry is prohibited, or there are locks on the gates that prevent entry).

New York State law differentiates the types and degrees of trespass. For instance, a less serious criminal offense may be to enter a backyard or any other similar area of property that has been fenced. A more serious criminal offense is to enter a home, school, or any other secured area, which may also result in a higher degree being classified as a misdemeanor or a felony.

How to Look Up Public Criminal Trespass Records in New York

Accessing public criminal trespass records in New York involves first visiting the New York State Unified Court System‘s eCourts portal. Most counties offer this as a free online option, allowing users to search for criminal cases by name or case number. You can also visit the local County Clerk's office or the Criminal Court Clerk for the county where the case was filed to request copies of the records.

Some offices may charge a small fee for certified copies. Note that sealed or expunged records, such as dismissed cases or cases that are old and eligible, will not show up in public searches. For a detailed criminal background check, the New York State Office of Court Administration (OCA) also offers a paid statewide search service that includes official record verification.

Types of Criminal Trespass Offenses

New York law recognizes several types of criminal trespass offenses based on the seriousness of the unlawful entry and the location of the illegal entry. These types of crimes include:

• Criminal Trespass in the Third Degree (§140.10): This is a Class B misdemeanor and is charged when an individual knowingly enters or remains on property that is fenced and enclosed for the purpose of keeping out trespassers. This includes construction sites or areas that are public utilities.
• Criminal Trespass in the Second Degree (§140.15): This is a Class A misdemeanor and applies when a person unlawfully enters or remains in a dwelling, school, or another building designed for living or restricted use.
• Criminal Trespass in the First Degree (§140.17): This is a Class D felony and is charged when a person is armed or enters a dwelling unlawfully or possesses a firearm or explosive when entering a dwelling.

Penalties for Criminal Trespass in Trespass

The consequences of criminal trespass in New York vary depending on the degree of the offense and the specifics of each incident. As dictated by New York Penal Law § 40.05–140.17, trespass can range from a violation to a felony. Most of the time, a simple trespass is classified as a violation, in which case the penalty is a term of imprisonment not exceeding 15 days and a fine. This involves entering without permission or remaining on the property, plus no aggravating factors are present.

Criminal trespass in the third degree, usually involving trespass of fenced or secured property, is a Class B misdemeanor, punishable by 3 months imprisonment, plus a fine of up to $500. A second-degree trespass is a Class A misdemeanor, involving the entry into a dwelling or a school building. It is punishable with 1 year of imprisonment and a fine of $1,000. The most serious charge, first-degree criminal trespass, pertains to cases where the individual enters a property with a weapon. This is a Class D felony and carries a prison term of up to 7 years.

Can You Be Arrested for Criminal Trespass in New York?

Certainly, in New York, an individual can be arrested for criminal trespass. Police officers can arrest for trespass if they find a person present on someone else’s property unlawfully. If the person is not found on the property, an arrest can still be made. This is if there is reliable evidence, such as videotape, eyewitness accounts, or a report from the property owner showing a person unlawfully entered or stayed on the property. New York law permits an immediate arrest for lower-level trespass offenses, including violations and misdemeanors, especially if the person will not leave or has been previously warned. In serious situations, such as trespassing in a dwelling or being armed in some manner, there will almost certainly be an arrest, the charge will become a felony, and the individual will be required to appear in court and post bail.

How Criminal Trespass Differs from Burglary or Breaking and Entering in New York

In New York, criminal trespass and burglary are related offenses, but they differ in intent and severity. Criminal trespass occurs when someone knowingly enters or remains on another person’s property without permission. It does not require intent to commit any other crime—just being there unlawfully is enough for a charge.

Burglary, under New York Penal Law § 140.20–140.30, is far more serious. It involves entering a building or dwelling with the intent to commit a crime inside, such as theft, assault, or vandalism. Unlike some states, New York law does not use the term “breaking and entering”. Physical force isn’t required; even entering through an unlocked door can qualify as burglary if there is criminal intent.

Trespass refers to unauthorized presence, whereas burglary involves the intent to commit another crime after entering. There are aggravating factors that can increase the severity of the burglary charge, such as forced entry, the use of a weapon, or entry during the night.

Can a Criminal Trespass Charge Be Dismissed or Reduced in New York?

Yes, in New York, there is the possibility of dismissing or reducing a criminal trespass charge. This is especially true for first-time offenders or instances where there is a lack of evidence to support intent or harm. Prosecutors typically consider the defendant’s behavior regarding law enforcement, any prior criminal record, and any misunderstandings about property boundaries. The charge can be reduced from a misdemeanor to a lesser violation, or a dismissal may occur after the defendant meets certain conditions.

Defendants can qualify for diversion programs or adjournment-in-contemplation of dismissal (ACD) whereby the case is allowed to be dismissed after a specific period, typically six months, as long as the defendant does not break the law again. In cases of violating trespass laws, judges often set more flexible conditions, such as performing community service, paying restitution, or, more commonly, a deferred adjudication in lieu of a criminal record.

If a case concludes without a conviction or a charge is dismissed, New York law permits the record to be sealed, which means that no one may access it, and it will not appear in any background check.

Will a New York Criminal Trespass Charge Stay on Your Record?

In New York, a conviction for criminal trespass becomes a permanent record, and since New York law operates under the principle of perpetual record retention, convictions can have lasting effects. Thus, job and housing background checks would show these records. Conversely, a record might not hold any permanent consequences after the case is dismissed, there is diversion, or adjournment in contemplation of dismissal (ACD).

New York Criminal Procedure Law §160.50 permits the sealing of records for individuals who have been arrested but not convicted. Most people, and even employers, will not have access to sealed records. There are still options for individuals with older convictions, which include a waiting period and the absence of a new offense to apply for sealing of records under §160.59.

New York's sealing of records functions similarly to expungement, making the record no longer available to the public and allowing only law enforcement access.

Expungement or Record Sealing Options in New York

While New York does not allow for complete expungement or removal of criminal trespass charges or convictions, they can, in most cases, still be sealed as described under Criminal Procedure Law § 160.50 and § 160.59. Record sealing differs from expungement, which is the complete removal of a criminal record, and for which New York does not currently allow as a possible option. New York only allows the sealing of criminal records, which keeps them hidden from the public while still accessible to law enforcement and certain government agencies.

For records under § 160.50, if someone’s criminal trespass charge was dismissed, resolved with a diversion program, or closed with an ACD, the documents can be sealed automatically. For those with convictions, § 160.59 allows individuals to apply for record sealing if they have a maximum of two eligible convictions, one of which must be a felony. And also after a 10-year waiting period from their sentencing or release.

Sealing criminal records means they will not appear in background checks for most employment, education, or housing purposes. This is not complete expungement, but sealing criminal records does provide strong privacy protection and the ability to move on without the visible burden of an open criminal record.