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Sample legal memorandum
Issue
Under New York law, what are the different standards for criminal and civil trespass? What
defenses are available? What are the penalties for civil and criminal trespass?
Rule

New York law recognizes civil and criminal trespass. Nominal, punitive and treble damages
can be claimed as penalty for trespass in New York.

Under New York law, the element of intent distinguishes the offenses of civil and criminal
trespass. According to § 70.00 of the New York Penal law, criminal trespass of first degree is a
felony whereas the criminal trespass of second and third degrees are misdemeanor.
Analysis

Civil Trespass
Under New York law, essence of a trespass to real property is injury to the right of
possession. Any unauthorized entry upon the land of another constitutes a trespass, without regard
to the amount of force used, and even though no damage is done, since at least nominal damage is
always presumed from a trespass on land. Butler v. Ratner, 173 Misc. 2d 783, 785 (N.Y. Misc.
1997)
Further, under New York law, a trespass may consist, not only in making an unauthorized
entry upon private property, but in refusing to leave after permission to remain has been withdrawn.
Rager v. McCloskey, 305 N.Y. 75, 79 (N.Y. 1953).
Under New York law, continued unauthorized presence is a sufficient basis for a civil
trespass claim. See Jones v. Maples, 1999 N.Y. Misc. LEXIS 605 (N.Y. Misc. 1999). Further, [in]
order to find someone liable for civil trespass, the court or jury must find that the person, without
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justification or permission, either intentionally entered upon another's property, or, if entry was
permitted, that the person refused "to leave after permission to remain had been withdrawn".
See Jones v. Maples, 1999 N.Y. Misc. LEXIS 605 (N.Y. Misc. 1999).
The standards for liability for civil trespass under New York law requires that the fact finder
consider whether the person, without justification or permission, either intentionally entered upon
another's property, or, if entry was permitted, the person refused 'to leave after permission to remain
had been withdrawn'. See St. Matthew Church of Christ v. Creech, 196 Misc. 2d 843, 858 (N.Y.
Misc. 2003); Long Island Gynecological Servs., P.C. v. Murphy, 298 A.D.2d 504 (N.Y. App. Div.
2002).

Defenses Available for Civil Trespass
Under New York law, intent is one of the material elements to the offense of civil trespass,
accordingly, one of the defenses that a defendant may raise in the event of indictment, could be, that
he entered the property in question under a bona fide claim of right, which he might have
reasonably believed to be entitled for him to take possession. However, to sustain such a claim,
there must be some colorable ground. See People v. Stevens, 109 N.Y. 159 (N.Y. 1888).
Additionally, the defendant could also raise a defense to the effect that, the defendant entered
the alleged premises with consent or implied consent of the plaintiff. However, this defense would
fail if consent to enter is obtained through misrepresentation or fraud. See Shiffman v. Empire Blue
Cross & Blue Shield, 256 A.D.2d 131 (N.Y. App. Div. 1998).

Penalties available for Civil Trespass
Nominal damages, punitive damages and treble damages can be claimed as penalty for Civil
trespass in New York. Nominal damages is always presumed from a trespass. Shiffman v. Empire
Blue Cross & Blue Shield, 256 A.D.2d 131 (N.Y. App. Div. 1998).
To recover punitive damages for trespass on real property, the plaintiff has the burden of
proving actual malice involving an intentional wrongdoing, or such conduct as may be deemed to
be tantamount to a wanton and wilful or a reckless disregard of the plaintiff's rights. See Butler v.
Ratner, 173 Misc. 2d 783, 786 (N.Y. Misc. 1997); Jones v. Maples, 1999 N.Y. Misc. LEXIS 605
(N.Y. Misc. 1999).
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It may be inferred from St. Matthew Church of Christ v. Creech, 196 Misc. 2d 843, 858
(N.Y. Misc. 2003) that in order to recover treble damages on civil trespass, the plaintiff must
establish that, the defendants have forcibly ejected the plaintiff from the property in question "by
putting him in fear of personal violence."

Criminal Trespass
Under New York law, the element of intent distinguishes the offenses of civil and criminal
trespass. It is the criminal mind and purpose going with the act that distinguishes criminal trespass
from a mere civil injury. The intent to deprive or defraud the owner of his property or the use of it,
is the basic element that constitutes Criminal trespass. Further, the offense of Criminal trespass can
be established only in the presence of the element of felonious intent. In the absence of that intent,
there would be no crime. It would be a bare trespass. See People ex rel. Perkins v. Moss, 187 N.Y.
410 (N.Y. 1907).

Factors elevating a Trespass to a crime
The most essential element that aggravates the crime of criminal trespass to a burglary is the
tresspasser's intent to commit a separate crime. See People v. Cahill, 2 N.Y.3d 14 (N.Y. 2003).
Further, [the] key element of burglary, which elevates it from trespass, is a defendant's intent to
commit a crime inside a building. People v. Lewis, 5 N.Y.3d 546 (N.Y. 2005)

Penalties for Criminal Trespass
According to § 70.00 of the New York Penal law, Criminal trespass of the first degree
(Class "D" Felony), entails a prison sentence not exceeding 7 years.
Criminal trespass of second degree (Class "A" misdemeanor), attracts a prison term not exceeding
one year in accordance with § 70.15 of the New York Penal Law.
Criminal Trespass of the third degree (Class "B" misdemeanor), shall entail a prison sentence not
exceeding three months, in accordance with § 70.15 of the New York Penal Law.
Conclusion
The above analysis sets forth the general law in New York, which may apply to the client’s
case in the given set of facts. It is intended as a legal survey only, not as a set of detailed practical
guidelines. Also, as it would be impossible to predict or anticipate every possible issue that may
come up during the production of the Program, it is not a comprehensive opinion regarding any or
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all matters that might arise. Accordingly, it should not be used as a substitute for detailed practical
guidelines or legal advice tailored to the specific facts of a given situation, which we are always
available to provide.
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