TRESPASS AND DAMAGINGTRESPASS AND DAMAGINGTRESPASS AND DAMAGINGTRESPASS AND DAMAGINGTRESPASS AND DAMAGING
TANGIBLE PROPERTYTANGIBLE PROPERTYTANGIBLE PROPERTYTANGIBLE PROPERTYTANGIBLE PROPERTYI. TRESPASS
A. Scope of the Offense
- Elements of criminal trespass under N.J.S.A.
2C:18-3a:
a. Entering or surreptitiously remaining in any
structure or separately secured portion thereof.
b. Knowing that one is not licensed or privileged to
do so.
- Elements of defiant trespass under N.J.S.A.
2C:18-3b:
a. Entering or remaining in a place in which notice
against trespass is given by actual communication,
posting, or fencing.
b. Knowing that one is not licensed or privileged to
do so.
- Elements of peering under N.J.S.A. 2C:18-3c,
effective January 31, 1997:
a. Peering into a window or other opening of a
dwelling or other structure adapted for overnight
accommodation with the purpose of invading the privacy
of another person and under circumstances in which a
reasonable person in the dwelling or other structure
would not expect to be observed.
b. Knowing that one is not licensed or privileged to
do so.
- Caselaw
A municipal ordinance that bans signs does not apply
to “no trespassing signs,” since the ordinance unduly
limits owner’s trespass remedies. Oliver v. United States,
466 U.S. 170, 194, 104 S.Ct. 1735, 1750, 80 L.Ed.2d
214 (1984); Dolecky v. Borough of Riverton, 223 N.J.
Super. 354 (Law Div. 1987).
B. Grading
Criminal trespass is a fourth-degree crime if
committed in a structure, dwelling, research facility, or
on school property. See N.J.S.A. 2C:18-1 (defining
structure); N.J.S.A. 2C:1-14p (defining research
facility); N.J.S.A. 2C:35-7 (discussing school property).
Otherwise, it is a disorderly persons offense. An
unoccupied, essentially uninhabitable house without
electricity or other utilities is not a dwelling for purposes
of N.J.S.A. 2C:18-3a. The trial court’s failure to define
dwelling, and the lack of proof that the house was a
dwelling, meant that defendant could not be convicted of
fourth-degree criminal trespass. Rather, defendant had
committed only a disorderly persons offense pursuant to
the statute. State v. Crutcher, 313 N.J. Super. 203 (App.
Div. 1998).Defiant trespass is a petty disorderly persons offense.
Defiant trespass is usually not a lesser included offense to
unlicensed entry into a structure, especially as applied to
a case where the evidence posited that defendant
punched his fist through a glass door and forced his way
into the dwelling. State v. Braxton, 330 N.J. Super. 561,
567 (App. Div. 2000).C. Defenses- The structure was abandoned.
- The structure was open to the public and the actor
complied with all conditions. - The actor reasonably believed that he had license
to remain or peer.
In State v. Santiago, 218 N.J. Super. 427 (Law Div.
1986), the trial court ruled that defendant, an inspector
for the Department of Environmental Protection, could
not be convicted of criminal trespass, N.J.S.A. 2C:18-3a,
because the State failed to prove that she entered the
property knowing she was not privileged to do so.
Rather, because of statutory and administrative code
authority for such entry, there existed reasonable doubt
whether defendant realized she was not privileged to
enter the premises and examine the company’s records.
However, where the belief is unreasonable, a trespass
conviction will be affirmed. State v. Loce, 267 N.J. Super.
10 (App. Div.), certif. den., 134 N.J. 563
(1993)(affirming trespass conviction to prevent an
abortion); State v. Guice, 262 N.J. Super. 607 (Law Div.
1993)(affirming trespass conviction to distribute
political literature and speak with students at Stevens
Institute of Technology).School authorities may sign a criminal complaint for
defiant trespass against an eighteen-year old student who