TRESPASS & BURGLARY. Definitions: 1/18/17. Knowingly: aware that he/she is entering or remaining without license or privilege.

Transcription

1 Definitions: TRESPASS & BURGLARY Laurentia & Brian Criminal Law Saturday January 7, 2017 Knowingly: aware that he/she is entering or remaining without license or privilege. Unlawfully: without license or privilege to enter or remain (no right, permission, or authority to do so) Premises: any real property including a building or any structure, vehicle, watercraft, or trailer used for overnight lodging of persons, conducting business, or used as an elementary or secondary school. Dwelling: is a building that is occupied by person who sleep there at night. Intent: conscious objective or purpose *In the context of Trespass & Burglary, intent may be inferred from the circumstances of the unlawful entry or the defendants unexplained presence on premises, as well as his/her actions and statements when confronted by police or property owner. **Intent to commit a crime is an element of all burglary charges. Possess: to have physical possession or the ability to exercise dominion or control over tangible property. Deadly Weapon any weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged or any of the following: Switchblade knife Ballistic knife Billy Blackjack Metal knuckle knife Metal knuckles Dagger 1

2 Physical Injury: impairment of physical condition or substantial pain. Dangerous Instrument: any tool or item (including a vehicle) that under the situation where it is used or attempted to be used, is capable of causing death or any other serious physical injury (serious and extended disfigurement, impairment of health, loss or impairment of the function of any bodily organ). Trespass Trespass (Penal Law ) Trespass is a violation in which a person: (1) knowingly and; (2) unlawfully enters or remains in or upon premises. Criminal Trespass Third Degree (Penal Law [a]) Criminal Trespass in the 3 rd Degree is a Class B Misdemeanor in which a person: (1) knowingly and; (2) unlawfully enters or remains in or upon a premises that is (3) fenced or enclosed in a manner designed to exclude intruders. 2

3 Penal Law (a) Trespass under subdivision a extends to include situations where, regardless of intent, a person knowingly and unlawfully: enters a building aware of an order of protection to stay away from said building enters or remains in or upon a premises open to the public in defiance of a lawful order not to.(continued) enters or remains after it has been personally communicated to him/her by the owner (or other authorized person) to not enter or to leave enters or remains in a part of a building which is not open to the public (even when other parts of the building are open to the public) enters or remains in a building or real property that is fenced or enclosed in a manner designed to keep intruders out It elevates to Trespass in the Second Degree when: the place that is trespassed is a dwelling. Criminal Trespass Second Degree (Penal Law [1]) Criminal Trespass in the 2 nd Degree subdivision 1 is a is a Class A Misdemeanor in which a person: (1) knowingly and (2) unlawfully enters or remains in a (3) dwelling. 3

4 Penal Law (1) Definition(s): Trespass under Penal Law subdivision 1 extends to include situations where a person knowingly and unlawfully: enters a dwelling without license or privilege to enter or remain enters a dwelling aware of an order of protection to stay clear from said dwelling enters or remains in or upon a premises open to the public in defiance of a lawful order not to, regardless of intent.(continued) enters or remains in a dwelling after it has been personally communicated to him/her by the owner or other authorized person of said dwelling to not enter or to vacate enters or remains in a part of a building which is not open to the public (even when other parts of the building are open to the public) It elevates to Trespass in the First Degree when: during a trespass, a weapon is in the possession of the trespasser(s). Penal Law [1] [2] [3] Criminal Trespass First Degree (Penal Law [1]) Criminal Trespass in the 1 st Degree subdivision 1 is a is a Class D Felony in which a person: (1) knowingly and (2) unlawfully enters or remains in or upon a premises (3) possessing or with the knowledge that another participant in the crime possesses a deadly weapon or explosive (as defined in section ). 4

5 Criminal Trespass First Degree (Penal Law [2]) Criminal Trespass in the 1 st Degree subdivision 2 is a is a Class D Felony in which a person: (1) knowingly and (2) unlawfully enters or remains in or upon a premises (3) knowingly possessing a firearm, or rifle, or shotgun (as defined in section ) and (4) knowingly possessing or having accessibility to a quantity of ammunition compatible to be discharged from such firearm, rifle, or shotgun. Criminal Trespass First Degree (Penal Law [3]) Criminal Trespass in the 1 st Degree subdivision 3 is a is a Class D Felony in which a person: (1) knowingly and (2) unlawfully enters or remains in or upon a premises (3) knowing that another participant in the crime possesses a firearm, or rifle, or shotgun and (4) knowing that another participant in the crime possesses or has access to a quantity of ammunition compatible to be discharged from such firearm, rifle, or shotgun. When the trespass is coupled with the intent to a commit crime, it becomes Burglary 5

6 Burglary in Third Degree (Penal Law ) A person is guilty of Burglary in the third degree (Class D Felony) when s/he knowingly enters or remain unlawfully in a building with intent to commit a crime (in said building). Burglary in Third Degree (Penal Law ) building. It elevates to Burglary in the Second Degree when: (1) while entering or while in the building or on his way out of the building the assailant is (a) is armed with a deadly weapon / explosive (b) causes physical injury to victim (c) uses or threatens to use a dangerous instrument (d) displays what appear to be a firearm (pistol, revolver, rifle, etc) - OR - (2) the building is a dwelling (Penal Law [1] [a] [b] [c] [d]) A person is guilty of Burglary in the second degree (Class C Felony) when s/he knowingly enters or remains unlawfully in a building with intent to commit a crime (in said building) and while entering or while in the building or on his/her way out of the building the assailant. 6

7 (continued) (a) is armed with a deadly weapon / explosive OR (b) causes physical injury to a victim OR (c) uses or threatens to use a dangerous instrument OR (d) displays what appear to be a firearm (pistol, revolver, rifle, etc) (Penal Law [1][a]) building. 4) that, in effecting entry or while in the building or in immediate flight from there, the defendant [or another participant in the crime] s/he was armed with deadly weapons (or explosives). (Penal Law [1][b]) building. 4) that, in effecting entry or while in the building or in immediate flight from there, s/he [or another participant in the crime] s/he causing physical injury to other people other than the participant in the crime. (Penal Law [1][c]) building. 4) that, in effecting entry or while in the building or in immediate flight from there, s/he [or another participant in the crime] s/he has and uses or threatens to use a dangerous instrument. 7

8 (Penal Law [1][d]) building. 4) that, in effecting entry or while in the building or in immediate flight from there, s/he [or another participant in the crime] s/he displayed what appeared to be a pistol, revolver, rifle, shotgun, machine gun or other firearm. (Penal Law [2]) A person is guilty of Burglary in the second degree (Class C Felony) when: s/he knowingly enters or remain unlawfully in a building with intent to commit a crime in said building, when: (2) the building is a dwelling. (Penal Law [2]) 3) s/he did so with intent to commit a crime (in said building) 4) said building is a dwelling. It will escalate from burglary in the Second Degree to burglary in the First Degree when: the building is a dwelling 8

9 Burglary in First Degree (Penal Law [1]) A person is guilty of Burglary in the First Degree (Class B Felony) when that person knowingly enters [remains] unlawfully in a dwelling with the intent to commit a crime in said dwelling, and while entering or while in the building or on his way out of the building the assailant is: [1] is armed with a deadly weapon [or explosives]. (Penal Law [1]) 1) s/he enters or remain unlawfully in a dwelling dwelling. 4) that, in effecting entry or while in the dwelling or on his/her way out from there, the defendant [or another participant in the crime] s/he was armed with deadly weapons [or explosive]. Burglary in First Degree (Penal Law [2]) A person is guilty of Burglary in the First Degree (Class B Felony) when that person knowingly enters [remains] unlawfully in a dwelling with the intent to commit a crime in there, and while entering or while in the building or on his way out of the building the assailant: [2] causes physical injury to any person who is not a participant in the crime (Penal Law [2]) 1) s/he enters or remain unlawfully in a dwelling dwelling. 4) and, in effecting entry or while in the dwelling or on his/her way out, the defendant [or another participant in the crime] causes physical injury to any person who is not a participant in the crime. 9

10 Burglary in First Degree (Penal Law [3]) A person is guilty of Burglary in the First Degree (Class B Felony) when that person knowingly enters [remains] unlawfully in a dwelling with the intent to commit a crime in said dwelling, and while entering or while in the building, or on his or her way out of the building the assailant: [3] uses or threatens the immediate use of a dangerous instrument. (Penal Law [3]) 1) s/he enters or remain unlawfully in a dwelling dwelling. 4) and, in effecting entry or while in the dwelling or on his/her way out from there, the defendant [or another participant in the crime] uses or threatens the immediate use of a dangerous instrument. Burglary in First Degree (Penal Law [4]) A person is guilty of Burglary in the First Degree (Class B Felony) when that person knowingly enters [remains] unlawfully in a dwelling with the intent to commit a crime in said dwelling, and while entering or while in the building, or on his way out of the building the assailant: [4] displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm (Penal Law [4]) 1) s/he enters or remain unlawfully in a dwelling dwelling. 4) that, in effecting entry or while in the dwelling or on his/her way out, the defendant [or another participant in the crime] displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm. 10

11 Possession of Burglar s Tools (Penal Law ) A person is guilty of Possession of Burglar's Tools (Class A Misdemeanor) when that person: possesses any tool, instrument, or item altered, designed, or commonly used for committing or facilitating crimes involving forcible entry into premises [or offenses involving larceny by a physical taking or theft of services] under circumstances showing an intent to use [or knowing someone else intends to use] the same in the commission of a relevant crime. Possession of Burglar s Tools (Penal Law ) 1) possession of any tool, instrument, or article 2) intent to use the tools (or his/her knowledge that some person intends to use them) 11