Holding Court is a series by retired Rye City Court Judge Joe Latwin. Latwin retired from the court in December 2022 after thirteen years of service to the City.
What topics do you want addressed by Judge Latwin? Tell us.
[Note: Our reader is referring to Manursing Island, not the Manursing Island Club (as we had previously indicated). We regret the error.]
This week, Judge Latwin responds to a reader, who writes: “I was on my daily bike ride around Kirby Lane when I saw the stick up at the Manursing Island gatehouse. As an inquisitive 30 year resident of Rye who has never been on the guest list at a soirée beyond the gatehouse, I decided to cruise past the guard and do a fast loop around the small island. Upon departure the guard was outside the gatehouse and threatened to call the police and have me arrested if I had the audacity to repeat this transgression. As a retired prosecutor it got me wondering whether Manursing Island (as well as similar exclusive enclaves in rye) can privatize their streets and restrict access.
By Joe Latwin
A curious reader inquired – when can I go on or in the premises of another? We will assume for these purposes that the person is not prohibited by an order to stay away from the premises, that the person is not intending or committing a crime in or on the premises, and the premises involved is not a protected location such as a school or prison. Two examples seem common examples: going in a retail store; and going on open property.
Penal Law § 140.05 prohibits Trespass. A person is guilty of trespass when he knowingly enters or remains unlawfully in or upon premises. Trespass is a violation, not a crime, for which, unless otherwise specified, carries a maximum sentence of a term of imprisonment which is not in excess of fifteen days and a fine, or both.
A person “enters or remains unlawfully” in or upon premises when he or she is not licensed or privileged to do so. An interest in the premises, such as by ownership or an interest in the premises, such as being a tenant of the premises gives one license or privilege to be in or on the premises. A person who has a contractual right to be somewhere, such as a person that bought a movie ticket has a license to be in the theatre, subject to the terms of the ticket. A person who, regardless of his intent, enters or remains in or upon premises which are at the time open to the public does so with license and privilege unless he or she defies a lawful order not to enter or remain, personally communicated to him by the owner of such premises or other authorized person. An example of this would be where the owner has conspicuously posted “No Trespassing” signs on the premises. A person has the privilege of entering a public place. A license or privilege to enter or remain in a building which is only partly open to the public or remain in that part of the building doesn’t mean you can go into areas not open to the public. You may be permitted to go into City Hall, but that doesn’t permit you to enter employee only spaces. A person who enters or remains upon unimproved and apparently unused land, which is neither fenced nor otherwise enclosed in a manner designed to exclude intruders, does so with license and privilege unless notice against trespass is personally communicated to him by the owner of such land or other authorized person, or unless such notice is given by posting in a conspicuous manner.
Of course, license or privilege may be revoked. So, if you go in a store and the owner or manager tells you to leave, you’ve lost that privilege and must go or risk the consequences.
If you knowingly enter or remain unlawfully in a building or upon real property which is fenced or otherwise enclosed in a manner designed to exclude intruders, you would be guilty of Criminal trespass in the third degree. Criminal trespass in the third degree is a class B misdemeanor for which the sentence may not exceed three months.
Best practices: go where you are permitted to be. If someone asks you to leave, don’t fight or argue, just go. You can always go to another store or walk elsewhere. You don’t want to have to take the time and incur the expense of resolving your dispute in Court or spend time in jail.
