We all have seen “No Trespassing” signs, but not everyone knows what it actually means to trespass. Generally, trespassing involves being on the property of another without their permission. In New Jersey, criminal trespassing could actually involve much more than that. Anyone charged with trespassing in New Jersey should contact an experienced criminal defense attorney.
What is Criminal Trespass?
Generally, N.J.S.A. 2C:18-3 defines criminal trespassing as unlawful entry onto a property. There are several different ways a person can commit criminal trespass in New Jersey.
One is to surreptitiously remain in any research facility, structure, or separately secured or occupied a portion of such a structure while knowing that one is not licensed or privileged to be there.
A person could also be guilty of criminal trespass if he/she peers into a window or other opening of a dwelling or structure adapted for overnight accommodation (e.g. hotel/motel, RV, tent, etc.) for the purpose of invading the privacy of another. This type of trespass requires that a reasonable person inside would not expect to be observed. It also requires that the offender know he/she is not licensed or privileged to do so.
Additionally, a person can be considered a “defiant trespasser” if he/she enters or remains in any place where notice against trespassing is given through verbal or other communication, posting of a sign or a fence.
Penalties and Fines
Defiant trespassing a petty disorderly persons offense. A conviction could lead to up to 30 days in jail and a fine of $1,000. Other penalties for trespassing include financial restitution (where applicable) to the victim and a suspension of the offender’s driver’s license.
Trespassing on most other structures is a disorderly persons offense. The penalties for a conviction include up to 6 months in jail and a $1,000 fine.
Trespassing on school property, in a dwelling (i.e. a home), in a research facility, in a power generation facility, or in any similar facility is considered a fourth-degree crime. Likewise, trespassing by peering is a fourth-degree crime. A conviction for this level of trespassing can mean up to 18 months in prison and a fine of up to $10,000.
How To Beat Trespassing
There are three main defenses that an experienced attorney can raise to help avoid a conviction. First, if the structure entered was abandoned, one usually will be able to avoid a conviction. Second, if the location was open to members of the public at the time the defendant allegedly trespassed and he/she complied with all the lawful conditions imposed on gaining access and remaining in the structure, then one will be able to avoid a conviction. Lastly, a person can avoid a conviction if he/she reasonably believed that the owner (or someone else with the authority to give permission) would have:
- given him/her access to the structure;
- allowed him/her to remain there; or
- let him/her peer into it.
In most cases, trespassing is a minor offense, although a conviction can result in a permanent criminal record and all the associated hardships. Thankfully, with the help of a skilled defense attorney, it may be possible to avoid a conviction or reduce the charges to a lesser offense that will not establish a criminal record.
Case Law Analysis
The defendant in State v. Gibson, 95 A. 3d 110 was found not guilty of defiant trespassing after having been arrested for leaning against a building’s upraised porch on a street corner. The building had a “No Loitering” sign, which the prosecution argued was sufficient to indicate that uninvited persons were not permitted on the property.
The judge concluded that “loitering” and “trespassing” constitute different activities, and while the sign indicates that a person is not permitted to idly remain on-premises, it does not warn of prosecution. Further, the defendant left the premises immediately upon arrival of the arresting officer, who followed him several blocks before intercepting, questioning and arresting. At no point did the officer did not issue a warning of any kind to the defendant. Based on these factors, the arrest was deemed unconstitutional.
State v. Pierce, 417 A. 2d 1085 establishes that trespassing does not apply in issues involving tenancy. In this case, the defendants were ordered to vacate property that had been leased by one of the defendant’s father. Upon the father’s death, the property owner insisted the tenancy had ceased. The defendants were initially convicted, but on appeal, those convictions were overturned. The judge argued that tenancy issues were civil matters that should not be handled in criminal court.
The right to expressional activity on private property was upheld in State v. Gerstmann, 486 A. 2d 912. The defendant was an independent candidate for public office who had been distributing leaflets on car windows in a mall parking lot in Paramus, NJ. Mall security and later the police asked the defendant to cease doing so.
The defendant insisted that he had the constitutional right to distribute campaign literature on the mall’s private property and refused both requests. Police then arrested him and charged him with criminal trespassing.
The charges were dismissed citing State v. Schmid, 84 N.J. 535 (1980), which establishes parameters for when free expression on private property is permissible. Specifically, there must be an intersection between the private property and the nature of the expression, in this case, local governmental issues. As the mall has a close relationship with the local and state government in the form of specific tax policies, the judge upon appeal upheld that the defendant’s campaign efforts met the Schmid test.
Consequences for a First Offense
In most cases, a violation of NJ trespassing laws is a fairly minor offense. A first-time offender with no prior convictions or arrests has a high chance of not being sentenced to jail time upon conviction.
Still, it would be unwise to just plead guilty and accept the consequences. Even a petty disorderly persons conviction means having a criminal record that will come up in background checks and can limit job prospects. If trespassing is charged as a fourth-degree crime, it is the equivalent of being convicted of a felony, and the stigma that comes with being a “convicted felon” can have long-term negative effects on one’s life.
Regardless of whether this is one’s first offense of trespassing or if one has a sizable criminal history, it is always best to consult with an attorney who can assess the facts and negotiate with prosecutors to have the charges dropped or reduced.
Consequences for Juveniles
Young kids and teens often push boundaries and test authority—it’s just part of being young and growing up. A juvenile charged with trespassing should be treated lightly by a judge in Family Court. However, that does not always happen.
It is not uncommon for minor instances of trespassing to be overblown by prosecutors and for juveniles to suffer unnecessary punishments, including time in a detention facility. It is critical for anyone whose child has been charged with trespassing in New Jersey to hire a skilled defense attorney to fight the charges and seek either a dismissal or reduced charge with less serious consequences.
Expunge Trespassing
A person convicted of trespassing may have the option of getting his/her criminal record cleared (expunged) if he/she otherwise meets the necessary criteria. This means having no more than 5 disorderly persons offenses on the record, or 3 disorderly persons offenses and 1 indictable (felony) offense.
In addition, one cannot be convicted of any offense that would disqualify a person from expungement, such as aggravated sexual assault or robbery. To find out more about the expungement process, how it works, and whether one is eligible to file a petition, visit our expungement page and contact one of our attorneys for a free consultation.
Frequently Asked Questions
Who Should You Contact?
If you or a loved one was recently charged with criminal trespassing in NJ, contact Rosenblum Law today. Our experienced criminal defense attorneys can work to defend your rights and keep you out of jail. E-mail or call us today at 888-815-3649.
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