NY Criminal Defense – Trespass in NY: Difference Between NY Penal Law 、140.15 and 、140.10

Each statute in New York Criminal Law has its own nuances. Sometimes particular subsections point to different theories of the same crime while other statutes, although similar on their face, are distinct and separate crimes. Some of these differences are very obvious to the non-legal observer while others require the analysis of a NY criminal defense attorney.

One example of this “issue” of whether the crime is merely a distinct theory or a unique charge, is evident in the NY Penal Law in reference to the crime of Trespass. Specifically, there are multiple crimes involving trespassing. Two of these offenses deal with the crime as a misdemeanor offense as opposed to either a violation or a felony. These crimes are 、140.10, Criminal Trespass in the Third Degree, and 、140.15, Criminal Trespass in the Second Degree.

The first of these sections make it punishable as class “B” misdemeanor (punishable by up to 90 days jail on Riker’s Island) if you knowing enter or remain unlawfully in a building or on real property, and under subsection (e) where the building is used as a public housing project in violation of conspicuously posted rules or regulations governing entry or use thereof.

Criminal Trespass in the Second Degree, 、140.15, however, makes it a class “A” misdemeanor (punishable by up to one year in jail on Riker’s Island) if you knowingly enter and remain unlawfully in a dwelling.

So, are these crimes two separate offenses or merely separate theories? In other words, what if you are trespassing in a public housing building (a violation of New York Penal Law 、140.10(e)) that was also a dwelling (New York Penal Law 、140.15)? Can the prosecution proceed with charges against you under either offense?
Recently, on July 23, 2008, Judicial Hearing Officer Gerald Harris of the New York County Criminal Court attempted to answer this question in People v. Abdullah Spencerel, 2008NY024890. In granting the defendant’s trial motion to dismiss the prosecutor’s case for legal insufficiency, JHO Harris clearly stated that where the building is a public housing building, even if it is a dwelling, the appropriate charge is 、140.10(e). JHO Harris stated that:

“[T]he Legislature manifestly intended that trespass in public housing be prosecuted pursuant to Penal Law 、140.10(e). Indeed, it was apparently the Legislature’s belief that, until adoption of that statute, such conduct would not be criminal. Therefore, when it enacted Penal Law 、140.10(e), the Legislature, in its view, was not providing an alternative method for prosecuting trespassers in public housing but creating a new and exclusive crime.”

JHO Harris further explained his position stating that the NYS Legislature enacted this statute because they believed their was a loophole in the law that 、140.15 did not apply to public housing even if said housing was a dwelling.

Although JHO Harris’ decision is not a decision that is controlling over other courts, it is a powerful case that may be persuasive in the event you are charged with trespassing in public housing. Armed with this decision, your NY criminal attorney can argue that even if the building you were allegedly trespassing in was “dwelling,” if it was also a public housing building then the lesser offense of 、140.10 is the appropriate offense to charge you with. If the prosecution only charges you with 、140.15, then your NY criminal lawyer can seek to have your case dismissed. Unlike two different theories of the same crime, these two offenses are two distinct statutes where only one may be applicable to your case.

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