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Trespass Offense

2C:18-3. Criminal trespass


a. Unlicensed entry of structures. A person commits an offense if, knowing that he is not licensed or privileged to do so, he enters or surreptitiously remains in any research facility, structure, or separately secured or occupied portion thereof. An offense under this subsection is a crime of the fourth degree if it is committed in a school or on school property. The offense is a crime of the fourth degree if it is committed in a dwelling. An offense under this section is a crime of the fourth degree if it is committed in a research facility, power generation facility, waste treatment facility, public sewage facility, water treatment facility, public water facility, nuclear electric generating plant or any facility which stores, generates or handles any hazardous chemical or chemical compounds. Otherwise it is a disorderly persons offense.

b. Defiant trespasser. A person commits a petty disorderly persons offense if, knowing that he is not licensed or privileged to do so, he enters or remains in any place as to which notice against trespass is given by:

(1) Actual communication to the actor; or

(2) Posting in a manner prescribed by law or reasonably likely to come to the attention of intruders; or

(3) Fencing or other enclosure manifestly designed to exclude intruders.

c. Peering into windows or other openings of dwelling places. A person commits a crime of the fourth degree if, knowing that he is not licensed or privileged to do so, he peers into a window or other opening of a dwelling or other structure adapted for overnight accommodation for 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.

d. Defenses. It is an affirmative defense to prosecution under this section that:

(1) A structure involved in an offense under subsection a. was abandoned;

(2) The structure was at the time open to members of the public and the actor complied with all lawful conditions imposed on access to or remaining in the structure; or

(3) The actor reasonably believed that the owner of the structure, or other person empowered to license access thereto, would have licensed him to enter or remain, or, in the case of subsection c. of this section, to peer.

(A) Comparison to Burglary and General Principles

Criminal trespass is similar to burglary in that both offenses involve unlawful entries or unlawfully remaining in property. Criminal trespass is less serious because the defendant does not enter or remain with the purpose of committing an offense in the property. The gravity of the offense of criminal trespass depends on the type of property in or on which the trespass occurs. There are three levels of criminal trespass: crime of the fourth degree, disorderly persons offense, and petty disorderly persons offense. For each offense, the state must prove that the defendant was neither licensed nor privileged to enter or remain and that the defendant knew of the lack of license or privilege.

(B) Schools Dwellings and Research Other Special Facilities

Trespass in a school, or on school property, a dwelling or a research facility is a crime of the fourth degree. In addition in 2005 the number of facilities in which the offense of trespass was elevated to a fourth degree crime were increased. It is a fourth degree crime to trespass in a power generation facility, waste treatment facility, public sewage facility, water treatment facility, public water facility, nuclear electric generating plant, or any facility which stores, generates or handles any hazardous chemical or chemical compounds. Research facility means any building, laboratory, institution, organization, school, or person engaged in research, testing, educational or experimental activities, or any commercial or academic enterprise that uses warm-blooded or cold-blooded animals for food or fiber production, agriculture, research, testing, experimentation or education. A research facility includes, but is not limited to, any enclosure, separately secured yard, pad, pond, vehicle, building structure or premises or separately secured portion of it. A dwelling is a building or structure whether movable or temporary or a portion which for the time being is a person's home or place of lodging. A rental apartment is a dwelling. An unoccupied apartment that is between rentals but is suitable for occupancy is a dwelling for purposes of criminal trespass. A structure loses its character as a dwelling if it sits vacant for a substantial period of time.

(C) Affirmative Defenses

(i) Abandonment

It is an affirmative defense to a prosecution for either trespass in a dwelling or trespass in a structure that the dwelling or structure was abandoned. There was insufficient evidence to find that a structure was a dwelling when the building had been vacant for nearly a year at the time of the defendant's arrest and was essentially uninhabitable; there was no electricity or other utilities, including running water. In contrast a structure may retain its status as a dwelling whether occupied or unoccupied or vacant so long as it is suitable for residential use.

(ii) Open to Public

There are two other Code affirmative defenses which apply to any trespass prosecution. It is an affirmative defense that the structure was at the time open to members of the public and the defendant complied with all lawful conditions imposed on access to or remaining in the premises. "Lawful conditions" means that there are limits to conditions which an owner may place on access to property that is open to some or all members of the public. These limits may arise from constitutional guarantees such as free speech and freedom of the press, or by federal laws prohibiting discrimination in places to which the public resort, or by a public policy which does not permit a landowner to isolate migrant workers. Once owners open a structure to members of the general public, they have no right to exclude people unreasonably. They can only exclude patrons for cause. The premises of a casino are not exempted from this affirmative defense. Property owners do have the right to exclude from their premises those whose actions disrupt the regular and essential operations of the premises or threaten the security of the premises and its occupants. A conviction for defiant trespass was upheld after the casino officials advised defendants on May 1, 1993 they would no longer be welcomed to play blackjack after engaging in disruptive behavior on several occasions between November 29, 1992 and May 1, 1993. On May 2, 1993, they returned to the blackjack table and sat there for forty minutes after being asked to leave and refusing to do so.

(iii) Reasonable Belief in License to Access

It is an affirmative defense to a prosecution for criminal trespass is that the defendant reasonably believed that the owner of the premises or any other person who was empowered to license access would have licensed him to enter or remain. Good faith is not sufficient for this defense. The belief must be reasonable. It is not reasonable if defendant should have been aware that there was a substantial likelihood that he would not have been licensed to enter or remain. A license to remain on a premises can be revoked. Suspension or expulsion from school is not the only method by which a student's license to remain on school grounds can be revoked. The availability of civil remedies does not foreclose the state from enforcing the criminal and quasi-criminal laws relating to trespass.

(iv) Constitutional Defenses

In addition to the Code defenses, there are constitutional defenses. The New Jersey Constitution has been interpreted more broadly than the Federal Constitution to permit the exercise of expressional rights on private property in certain circumstances. Regional and community shopping centers must permit leafletting on societal issues. The shopping center's right to set conditions must be designed to achieve its legitimate purposes while preserving the leafleteer's expressive rights. The placing of political leaflets on automobiles in the parking lot of a shopping mall is not trespassing. The test in determining whether or not the distribution of political material on the campus of a private university is constitutionally protected depends on the nature and extent of the public's invitation to use the property. In one case involving Princeton University, the distribution of political material on the campus of a private university was not trespassing. In contrast, a conviction for trespass occurred for the distribution of political material at Stevens University, which did not open its campus to the public to the same extent as Princeton. Private citizens do not have the right to enter upon the common areas of a multi-business office complex to espouse an anti-abortion thesis directed to prospective patients of one of the tenants without the consent of the landlord-owner.

(D) Culpability

An element of the offense is the defendant's knowledge that she is not privileged to enter on or remain in the property. In one case the defendant, an inspector for the Department of Environmental Protection, did not commit criminal trespass, because she believed she was privileged to enter the premises licensed by her department.

(E) Tenants

The criminal trespass offenses do not apply to persons who claim to be tenants. The municipality cannot proceed against persons in criminal trespass who remain on the premises as delinquent taxpayers after an in rem tax foreclosure. The municipality's remedy is in supplemental civil proceedings. Landlords cannot seek to remove unwanted tenants by filing criminal trespass complaints. Landlords must initiate a civil proceeding to obtain a judgment of possession.

(F) Material Elements

The state must prove four material elements for this fourth degree crime. First, the property must be a dwelling. Second, it must be proved that the defendant unlawfully entered or surreptitiously remained in the dwelling. Third, the defendant had no license or privilege to enter or remain. Fourth, defendant knew that he had no license or privilege.

(G) Grade of Offense

The trespass is a disorderly persons offense if it is committed in a structure and not a dwelling or research facility. Because of the broad definition of "structure," there can be a criminal prosecution for trespass of a building, room, ship, vessel, car, vehicle or airplane as well as any place adapted for overnight accommodation of persons or for carrying on a business whether or not a person is actually present. There can be a trespass into any separately secured portion of the structure. Except for proof that the offense was committed in a dwelling, all the other material elements are the same for the disorderly persons offense and the crime of the fourth degree.

(H) Defiant Trespass

Defiant trespass is a petty disorderly persons offense. This offense encompasses trespass in open or unclosed land in which a notice against trespass has been given. The offense can occur on the right-of-way of a public road. The material elements for this offense differ in a number of respects from trespasses into research facilities and structures. In contrast to the offenses involving research facilities and structures, if the offense is based on a remaining, this remaining need not be surreptitious.

(i) Notice Against Trespass

The offense differs from the other trespass offenses in that notice against trespass must actually be given. It must be given by one of three means: actual communication to the defendant; posting in a manner prescribed by law or reasonably likely to come to the attention of intruders; or by fencing or other enclosure manifestly designed to exclude intruders. In one case it was sufficient notice for a student to be told by the principal and vice principal that he was to leave the school at the conclusion of his last class. On a subsequent date, the student returned after his class, and a teacher told him that he was not to be in the school at that hour and he should leave.

(ii) Exceed Limited License

A person can be guilty of defiant trespass when he has been granted a limited license with respect to the use of the land and the person disregards the restrictions placed on the license. A person could be prosecuted for defiant trespass when he had a right to enter land for purpose of dumping clean fill but deposited solid waste materials on the property.

(iii) Affirmative Defenses

There are two Code affirmative defenses to a prosecution for defiant trespass. These are two of the affirmative defenses which also apply to prosecutions for trespass into a dwelling or trespass into other structures. It is an affirmative defense that the structure was at the time open to members of the public and the defendant complied with all lawful conditions imposed on access to or remaining in the premises. A second affirmative defense to a prosecution for criminal trespass is that the defendant reasonably believed that the owner of the premises or any other person who was empowered to license access would have licensed him to enter or remain. In addition to the code defenses the constitutional defenses can also be asserted.

(iv) Material Elements

In a prosecution for defiant trespass the state must prove four material elements. First, it must prove that the defendant either entered or remained in the particular place. Second, it must prove that the defendant was not licensed or privileged to enter or remain in that place. Third, defendant knew that he was not so licensed or privileged. Fourth, notice against trespass was given by one of the three specified means.

(v) Lesser Included Offense

Where the proofs have established that defendant entered a structure which he was not entitled to enter, the court should not charge as a lesser included offense defiant trespass (a petty disorderly persons offense) which requires proof of the unprivileged entry into open land after prohibitory notice has been given.

(I) Peering into Windows or Openings in Dwellings

Effective January 31, 1997, it is a fourth degree crime to peer into windows or other openings of dwelling places. The offense applies to dwellings or other structures adapted for overnight accommodation. "Structure" includes any building, room, ship, vessel, car, vehicle or other place adapted for overnight accommodation. There are two separate culpability states. The defendant must know that he is not privileged or licensed to peer into the window or open structure. In addition, the defendant must do it with the purpose of invading the privacy of another person. The offense must occur under circumstances in which a reasonable person inside the dwelling or structure would not expect to be observed. Video voyeurism that surreptitiously occurs when a video camera is installed inside a building is not encompassed by this offense. If the camera is installed outside the structure it would be "peering into" and the activity would be prohibited by this section of the Code.

(i) Affirmative Defenses

There are two affirmative defenses to this offense. It is an affirmative defense that the structure was at the time open to members of the public and the defendant complied with all the lawful conditions imposed on access to or remaining in the structure. The second affirmative defense is that the defendant reasonably believed that the owner of the structure or other person empowered to license access thereto would have licensed the defendant to peer.

(ii) Material Elements

For this offense, the state must prove five material elements. First, it must prove that the place involved was a dwelling or other structure adapted for overnight accommodation. Second, it must prove that the defendant peered into a window or other opening in the structure. The state must then prove the separate culpability states. The third material element is that the defendant knew that he was not privileged or licensed to peer into the window or open structure. Fourth, it must be proved that the defendant did it with the purpose of invading the privacy of another person. Fifth, the state must prove that the offense occurred under circumstances in which a reasonable person in the dwelling or structure would not have expected to be observed.

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