Why Choose Us?
Michael A. Arbeit, P.C., provides aggressive criminal defense for individuals accused of trespass and burglary offenses on Long Island. We understand how quickly these charges can escalate and how damaging a conviction can be to your freedom, record, and future.
- 5-Star Client Satisfaction
- 24/7 Availability
- Confidential Consultations
- Focused Criminal Defense
- Early Intervention Strategy
- Long Island Court Experience
What Is the Difference Between Trespass and Burglary?
Trespass and burglary are related offenses but differ significantly in severity and intent. Trespass involves unlawful entry or remaining on property, while burglary requires intent to commit a crime inside. Key distinctions include:
- Trespass does not require intent to commit another crime
- Burglary involves unlawful entry with criminal intent
- Burglary charges are always more serious
- Penalties increase based on location, weapons, or injury
What Is Criminal Trespass in New York?
Criminal trespass occurs when a person knowingly enters or remains on property without permission. While basic trespass may be charged as a violation, more serious circumstances elevate the offense.
Trespass (Violation)
Simple trespass is a non-criminal violation involving unlawful presence on property. While less serious, it can still result in fines and court appearances.
Criminal Trespass in the Third Degree
This offense involves unlawful entry into certain buildings or enclosed properties, including:
- Fenced or restricted property
- Schools or school grounds
- Public housing complexes
- Railroad or transit restricted zones
Criminal trespass in the third degree is a class B misdemeanor.
Criminal Trespass in the Second Degree
This charge applies when a person unlawfully enters or remains in a dwelling or certain school settings under restricted circumstances. It is a class A misdemeanor and carries potential jail time.
Criminal Trespass in the First Degree
The most serious trespass offense involves unlawful entry into a building while possessing weapons, firearms, or explosives. Criminal trespass in the first degree is a class D felony.
What Is Burglary Under New York Law?
Burglary occurs when a person knowingly enters or remains unlawfully in a building with intent to commit a crime inside. The crime intended does not need to be completed for burglary charges to apply.
Burglary in the Third Degree
This charge involves unlawful entry into a building with criminal intent. It is a class D felony and may apply to commercial buildings, offices, or restricted structures.
Burglary in the Second Degree
Burglary becomes more serious when aggravating factors are present, including:
- Entry into a dwelling
- Possession of weapons
- Use or threat of force
- Causing injury
Burglary in the second degree is a class C felony.
Burglary in the First Degree
The most severe burglary charge involves unlawful entry into a dwelling with aggravating factors such as weapons, injury, or threats of violence. It is a class B felony and carries the possibility of long-term imprisonment.
Possession of Burglar’s Tools and Related Charges
In addition to trespass or burglary, individuals may also face related charges.
Possession of Burglar’s Tools
Possessing tools commonly used for forced entry or theft, combined with intent to use them, can result in a class A misdemeanor charge even if no burglary occurred.
Unlawful Possession of Radio Devices
Possessing police radio or communication devices with intent to use them during criminal activity can result in additional misdemeanor charges.
Penalties for Trespass and Burglary Convictions
Penalties depend on the level of the offense and the defendant’s criminal history. Consequences may include:
- Jail or prison sentences
- Probation or conditional discharge
- Criminal fines and surcharges
- Permanent criminal records
- Immigration consequences for non-citizens
Common Defenses to Trespass and Burglary Charges
Many trespass and burglary cases involve factual disputes or overcharging. Effective defense strategies may include:
- Lack of intent to commit a crime
- Lawful permission or misunderstanding
- Improper police entry or search
- Insufficient evidence of unlawful presence
- Mistaken identity
Why Early Legal Representation Matters
Trespass and burglary cases often begin with arrest or investigation, but prosecutors quickly build cases using statements, surveillance, and circumstantial evidence. Speaking to law enforcement without an attorney can severely harm your defense.
A defense lawyer can:
- Protect your constitutional rights
- Challenge unlawful searches or seizures
- Communicate with prosecutors on your behalf
- Seek dismissals or charge reductions
- Prepare for trial if necessary
Contact Our Long Island Trespass and Burglary Defense Lawyer
If you have been arrested or charged with trespass, burglary, or related offenses, your freedom and future are at stake. Michael A. Arbeit, P.C., offers confidential consultations and determined legal representation. Contact our office today to discuss your case.
FAQs
Can trespass charges be dismissed?
Yes. Trespass cases are often dismissed due to lack of proof, permission disputes, or improper police conduct.
Is burglary charged even if nothing was stolen?
Yes. Burglary requires intent to commit a crime, not completion of the crime.
Are burglary charges always felonies?
Yes. All burglary charges in New York are felony offenses with serious penalties.
Can I be arrested for trespass even if the property was open?
Yes. Entering an open or unlocked property without permission can still lead to trespass charges in New York.
Does the owner have to warn me before calling the police for trespass?
No. Police can make an arrest even if the owner did not personally warn or confront you beforehand.
Can I be charged with burglary if I never entered the building?
Yes. Remaining unlawfully inside after gaining access, or attempting to enter with criminal intent, may still support a burglary charge.
Does burglary require breaking a lock or door?
No. Burglary focuses on unlawful entry with intent to commit a crime, not on forced entry or physical damage.
Can a misunderstanding or mistaken address lead to a trespass charge?
It can. However, prosecutors may reduce or dismiss the case if there is clear evidence of an honest mistake.
Michael A. Arbeit, P.C. assists clients throughout Long Island, including Nassau County, Suffolk County, Garden City, Freeport, and New York, including Queens, Brooklyn, Manhattan, Staten Island, and The Bronx.
S 140.00 Criminal trespass and burglary; definitions of terms.
The following definitions are applicable to this article:
1. “Premises” includes the term “building,” as defined herein, and any
real property.
2. “Building,” in addition to its ordinary meaning, includes any
structure, vehicle or watercraft used for overnight lodging of persons,
or used by persons for carrying on business therein, or used as an
elementary or secondary school, or an inclosed motor truck, or an
inclosed motor truck trailer. Where a building consists of two or more
units separately secured or occupied, each unit shall be deemed both a
separate building in itself and a part of the main building.
3. “Dwelling” means a building which is usually occupied by a person
lodging therein at night.
4. “Night” means the period between thirty minutes after sunset and
thirty minutes before sunrise.
5. “Enter or remain unlawfully.” A person “enters or remains
unlawfully” in or upon premises when he is not licensed or privileged to
do so. A person who, regardless of his intent, enters or remains in or
upon premises which are at the time open to the public does so with
license and privilege unless he defies a lawful order not to enter or
remain, personally communicated to him by the owner of such premises or
other authorized person. A license or privilege to enter or remain in a
building which is only partly open to the public is not a license or
privilege to enter or remain in that part of the building which is not
open to the public. A person who enters or remains upon unimproved and
apparently unused land, which is neither fenced nor otherwise enclosed
in a manner designed to exclude intruders, does so with license and
privilege unless notice against trespass is personally communicated to
him by the owner of such land or other authorized person, or unless such
notice is given by posting in a conspicuous manner. A person who enters
or remains in or about a school building without written permission from
someone authorized to issue such permission or without a legitimate
reason which includes a relationship involving custody of or
responsibility for a pupil or student enrolled in the school or without
legitimate business or a purpose relating to the operation of the school
does so without license and privilege.
S 140.05 Trespass.
A person is guilty of trespass when he knowingly enters or remains
unlawfully in or upon premises.
Trespass is a violation.
S 140.10 Criminal trespass in the third degree.
A person is guilty of criminal trespass in the third degree when he
knowingly enters or remains unlawfully in a building or upon real
property
(a) which is fenced or otherwise enclosed in a manner designed to
exclude intruders; or
(b) where the building is utilized as an elementary or secondary
school or a children`s overnight camp as defined in section one thousand
three hundred ninety-two of the public health law or a summer day camp
as defined in section one thousand three hundred ninety-two of the
public health law in violation of conspicuously posted rules or
regulations governing entry and use thereof; or
(c) located within a city with a population in excess of one million
and where the building or real property is utilized as an elementary or
secondary school in violation of a personally communicated request to
leave the premises from a principal, custodian or other person in charge
thereof; or
(d) located outside of a city with a population in excess of one
million and where the building or real property is utilized as an
elementary or secondary school in violation of a personally communicated
request to leave the premises from a principal, custodian, school board
member or trustee, or other person in charge thereof; or
(e) where the building is used as a public housing project in
violation of conspicuously posted rules or regulations governing entry
and use thereof; or
(f) where a building is used as a public housing project in violation
of a personally communicated request to leave the premises from a
housing police officer or other person in charge thereof; or
(g) where the property consists of a right-of-way or yard of a
railroad or rapid transit railroad which has been designated and
conspicuously posted as a no-trespass railroad zone.
Criminal trespass in the third degree is a class B misdemeanor.
S 140.15 Criminal trespass in the second degree.
A person is guilty of criminal trespass in the second degree when:
1. he or she knowingly enters or remains unlawfully in a dwelling; or
2. being a person required to maintain registration under article
six-C of the correction law and designated a level two or level three
offender pursuant to subdivision six of section one hundred
sixty-eight-l of the correction law, he or she enters or remains in a
public or private elementary, parochial, intermediate, junior high,
vocational or high school knowing that the victim of the offense for
which such registration is required attends or formerly attended such
school. It shall not be an offense subject to prosecution under this
subdivision if: the person is a lawfully registered student at such
school; the person is a lawful student participant in a school sponsored
event; the person is a parent or a legal guardian of a lawfully
registered student at such school and enters the school for the purpose
of attending their child’s or dependent’s event or activity; such school
is the person’s designated polling place and he or she enters such
school building for the limited purpose of voting; or if the person
enters such school building for the limited purposes authorized by the
superintendent or chief administrator of such school.
Criminal trespass in the second degree is a class A misdemeanor.
S 140.17 Criminal trespass in the first degree.
A person is guilty of criminal trespass in the first degree when he
knowingly enters or remains unlawfully in a building, and when, in the
course of committing such crime, he:
1. Possesses, or knows that another participant in the crime
possesses, an explosive or a deadly weapon; or
2. Possesses a firearm, rifle or shotgun, as those terms are defined
in section 265.00, and also possesses or has readily accessible a
quantity of ammunition which is capable of being discharged from such
firearm, rifle or shotgun; or
3. Knows that another participant in the crime possesses a firearm,
rifle or shotgun under circumstances described in subdivision two.
Criminal trespass in the first degree is a class D felony.
S 140.20 Burglary in the third degree.
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.
Burglary in the third degree is a class D felony.
S 140.25 Burglary in the second degree.
A person is guilty of burglary in the second degree when he knowingly
enters or remains unlawfully in a building with intent to commit a crime
therein, and when:
1. In effecting entry or while in the building or in immediate flight
therefrom, he or another participant in the crime:
(a) Is armed with explosives or a deadly weapon; or
(b) Causes physical injury to any person who is not a participant in
the crime; or
(c) Uses or threatens the immediate use of a dangerous instrument; or
(d) Displays what appears to be a pistol, revolver, rifle, shotgun,
machine gun or other firearm; or
2. The building is a dwelling.
Burglary in the second degree is a class C felony.
S 140.30 Burglary in the first degree.
A person is guilty of burglary in the first degree when he knowingly
enters or remains unlawfully in a dwelling with intent to commit a crime
therein, and when, in effecting entry or while in the dwelling or in
immediate flight therefrom, he or another participant in the crime:
1. Is armed with explosives or a deadly weapon; or
2. Causes physical injury to any person who is not a participant in
the crime; or
3. Uses or threatens the immediate use of a dangerous instrument; or
4. Displays what appears to be a pistol, revolver, rifle, shotgun,
machine gun or other firearm; except that in any prosecution under this
subdivision, it is an affirmative defense that such pistol, revolver,
rifle, shotgun, machine gun or other firearm was not a loaded weapon
from which a shot, readily capable of producing death or other serious
physical injury, could be discharged. Nothing contained in this
subdivision shall constitute a defense to a prosecution for, or preclude
a conviction of, burglary in the second degree, burglary in the third
degree or any other crime.
Burglary in the first degree is a class B felony.
S 140.35 Possession of burglar`s tools.
A person is guilty of possession of burglar`s tools when he possesses
any tool, instrument or other article adapted, designed or commonly used
for committing or facilitating offenses involving forcible entry into
premises, or offenses involving larceny by a physical taking, or
offenses involving theft of services as defined in subdivisions four,
five and six of section 165.15, under circumstances evincing an intent
to use or knowledge that some person intends to use the same in the
commission of an offense of such character.
Possession of burglar`s tools is a class A misdemeanor.
S 140.40 Unlawful possession of radio devices.
As used in this section, the term “radio device” means any device
capable of receiving a wireless voice transmission on any frequency
allocated for police use, or any device capable of transmitting and
receiving a wireless voice transmission. A person is guilty of unlawful
possession of a radio device when he possesses a radio device with the
intent to use that device in the commission of robbery, burglary,
larceny, gambling or a violation of any provision of article two hundred
twenty of the penal law.
Unlawful possession of a radio device is a class B misdemeanor.