If a stranger is trespassing in defiance of conspicuous "No Trespassing" or "Posted" signs or he has refused to leave unenclosed land (or any other "premises") when lawfully ordered by the land-owner (or home-owner, store-owner, condo-owner, apartment-tenant or other lawful occupant) to do so, or the stranger is thereafter notified that he is being held for any such "offense" for the police but attempts to flee, the occupant has statutory rights to use non-deadly force (including the "mere display" of a weapon or the USE of PEPPER-SPRAY) if necessary to expel or to detain the intruder.

"'Property' is more than just the physical thing-the land, the bricks, the mortar-it is also the sum of all the rights and powers incident to ownership of the physical thing. [T]he right to use the physical thing to the exclusion of others is the most essential and beneficial. Without this right all other elements would be of little value.'"

Dickman v. Commissioner, 465 U.S. 330, 336 (1984).

"The ownership and possession of property confer a certain right to defend that possession, [including] a defense of it which results in an assault and battery, and that which results in the destruction of the means used to invade and interfere with that possession."

People v. Kane, 131 N.Y. 111 (142 N.Y. 366, 37 N.E. 104).

In Cross v. State, 370 P.2d 371 (Wyo 1962) the Court found that the Due Process of Law clause in the state constitution guaranteed "the inherent and inalienable right to protect property."

"Justification does not make a criminal use of force lawful; if the use of force is justified, it cannot be criminal at all. ... The defense of justification (NY Penal Law art. 35) affirmatively permits the use of force under certain circumstances. ... The defense does not operate to "excuse" a criminal act, nor does it negate a particular element of a crime. Rather, by recognizing the use of force to be privileged under certain circumstances, it renders such conduct entirely lawful (see, People v. Taylor, 177 N.Y. 237, 245, 69 N.E. 534). ... In this regard, the current statutory defense reflects the common-law "right" of an individual to repel a threat [to his person or property]. Defense [was] deemed a natural, inalienable right at common law."

People v. McManus, 67 N.Y.2d 541, 496 N.E.2d 202, 505 N.Y.S.2d 43 (1986).

"That a landowner has a legal right to exclude the public is recognized in the sections of New York's Penal Law dealing with offenses involving damage to and intrusion upon property (see Penal Law, art. 140, particularly 140.05....). This "power to exclude has traditionally been considered one of the most treasured strands in an owner's bundle of property rights. … Moreover, an owner suffers a special kind of injury when a stranger directly invades and occupies the owner's property" (Loretto v Teleprompter Manhattan CATV Corp, 458 U.S. 419)."

As Justice Byron White of the United States Supreme Court noted:

Christy v. Hodel cert. den., 490 U.S. 1114 (1989).

"Property rights convey the right to benefit or harm oneself or others. ... A man may be permitted to benefit himself by shooting an intruder [in his dwelling]." Harold Demsetz (1967).

Article 35 was enacted together in pari materia with Article 140. At the same time that the legislature wrote that "A person in possession or control of any premises, … may use physical force . . . to prevent or terminate … the commission or attempted commission by such other person of a criminal trespass upon such premises." (PL 35.20(2)), there were (only) THREE DEGREES of "criminal trespass" defined in Penal Law article 140, the lowest degree was present section 140.05 (which was then a "violation" titled "Criminal trespass in the third degree")

In 1969, by L. 1969 Chap. 341, the title of PL s 140.05 was changed from "Criminal trespass in the third degree" to "Criminal trespass in the fourth degree." And then there were FOUR DEGREES of the offense known as "criminal trespass," and the lowest degree of "criminal trespass" was PL 140.05 which was still a "violation." And that is the substance of the Law Today.

The statutory right of a land-owner under PL s 35.20(2) to prevent or terminate the commission of "a criminal trespass" upon "any premises," was not intended to be limited to the prevention of only a "crime" involving a trespass upon such "premises." (Cf. PL 35.20(1)). The term "premises" was purposefully defined expansively to include "any real property" (PL 140.00(1)) which necessarily includes un-fenced and un-enclosed land. Therefore the "any premises" which may be defended by non-deadly force against "criminal trespass" is NOT LIMITED TO land "which is fenced or otherwise enclosed." The "all inclusive" statutory definition of the term "any premises" used in PL 35.20(2) informs the reader of the types of private property which may be forcibly defended by "a person in possession or control of any premises."

However, in 1971 a latent ambiguity was inadvertently introduced into the Penal Law structure, when somebody decided that someone convicted of only a "violation" (not a "crime") should not have a conviction Record that reads "Criminal" trespass [PL 140.05]. So, to remove the "stigma" of the odious title of "criminal," the legislature changed the title of PL 140.05 to read simply "Trespass" but did not change the substance of the offense. See Commentaries about L. 1971 Chap. 307. The change to the mere title of PL 140.05 was not avowed nor intended by the Legislature to cause any "substantive" (e.g., Socialist) change in the Law whatsoever. Some ignorant or devious people have used this ambiguity to attempt to Practically Abolish the Institution of Private Property with respect to "open land" (i.e., unfenced lands, including back-yards). But other people, knowledgeable of the Law, have consistently recognized that the ancient and inalienable right of a land-owner to defend private land has not been abolished.

In the 1975 Practice Commentaries to PL 35.20, Arnold D. Hechtman stated:

"This section [of Article 35 of the Penal Law] addresses the use of physical force to repel an unlawful intrusion on property. .... In this general area, the former Penal Law [i.e., prior to 1965] was substantially similar to the instant section's provisions with respect to the use of ordinary physical force in that it simply authorized a person to use physical force as might be necessary to prevent 'a trespass or other unlawful interference with real property in his lawful possession.' ...
"A noteworthy feature of subdivision 1, dealing with 'crimes' involving real property 'damage,' is that 'Any person' -including one who is neither owner nor occupant nor licensee- may use physical force to prevent or terminate criminal mischief or arson of real property, and deadly physical force in the case of an arson or arson attempt. Thus, a passing pedestrian who reasonably believes that a man observed by him is about to set fire to a house owned by a person whom the pedestrian does not even know may shoot the arsonist if such be necessary to prevent the crime.
"Subdivision 2, devoted to the prevention and termination of [any] criminal trespass, is primarily applicable to cases of trespass not amounting to burglary and not involving arson. Absent those features, an owner or occupant of premises or a person privileged to be thereon- but no one else- is here authorized to use any physical force, other than deadly force, which he reasonably believes to be necessary to prevent or terminate the intrusion."

Hence: "A person in possession or control of ANY PREMISES [i.e., ANY REAL PROPERTY], …may use physical force … to prevent or terminate ... a [defiant] trespass upon such premises. He may use any degree of physical force, other than deadly physical force, which he reasonably believes to be necessary for such purpose." PL 35.20(2).

In People v. Munafo, 50 NY2d 326, 50 NYS2d 326 (1980), the High Court noted that a landowner has the "power to convert certain lawful entries on real property into unlawful ones" (e.g., by posting conspicuous "No Trespassing" signs), and that the NY Penal Law shall be interpreted according to "established real property concepts."

See also, Trespass, Recreational access and owner liability:

"[G]enerally, restraint or detention [of trespassers and/or of their personal property (e.g. vehicles)], reasonable under the circumstances and in time and manner, imposed for the purpose of preventing another from inflicting personal injuries or interfering with or damaging real or personal property in one's lawful possession or custody is not unlawful. … And although confinement reasonably perceived to be unlawful may invite escape, the person falsely imprisoned is not relieved of the duty of reasonable care for his own safety in extricating himself from the unlawful detention."
Sindle v. NYCTA, 33 N.Y.2d 293, 307 N.E.2d 245 (1973); Fieldston Prop. Owners Assn. v. City of New York, 16 NY2d 267, 269; Forest Hills Corp v. Kowler, 80 AD2d 630; Forrest Hills Corp. v. Baroth, 147 Misc. 2d 404.

Originally, in New York, a landowner's only duty with respect to dangerous conditions, ferocious animals, and known hazards upon his land was to "confine" them upon the land, and to inform invited guests of their presence: "It was long ago decided in this State that 'a man may keep a dog for the necessary defense of his house, his garden or his fields'.… And in the same case it is said: 'Where a dog is lawfully kept for the purposes of protection a trespasser cannot maintain an action for an injury if he come in the way of the dog.' [Because:] If the dog must be so confined that under no circumstances can he attack or injure a trespasser, then he may as well be dead, and the rule results in this, that no dog capable of defending property can be lawfully kept by any person. [T]he mere keeping of a ferocious dog, knowing him to be such, for the purpose of defending one's premises, is not in itself unlawful. And when injury follows from one so kept, the manner of his confinement and the circumstances attending the injury are all to be considered in determining the owner's liability. … There was nothing unusually or unnaturally vicious about the dog in question. He would, it seems, attack and bite any stranger who insisted upon forcing his way to the locality he was set to guard. Beyond that, it does not appear that he was of a vicious nature, or dangerous to mankind. … In my judgment the keeping of those dogs was not an unlawful act, and their confinement was all that could be required. They were securely chained within a space into which no stranger was invited to come; where he would have no business to go, and through which none could be reasonably expected to wander. Can it be said that, under such circumstances, the defendant was maintaining a nuisance in his back yard? It [was] but a danger, maintained on his own premises and in a locality upon which the plaintiff had neither invitation nor license to enter, and against which the defendant owed no duty to plaintiff either to protect or warn him." Woodbridge v. Marks, 45 N.Y.S. 156, 160, 17 App. Div. 139 (1897).

In modern times, liberalized New York liability law generally compels the prudent NY land-owner to post a reasonable "warning" of non-obvious hazards even to trespassing intruders, in order to enable the trespassers to make an informed decision as to whether they really do want to Create and Assume the Risk of injuring themselves upon the property.  For example, signs warning: "Keep Out: Spring Guns Concealed on Premises", or "Keep Out: Beware of Man-Eating Dogs" (or "Angry Bulls", "Head-Kicking Horses", "Rabid Attack-Porcupines," "Thorny-Locust Trees," etc) would give Trespassers the opportunity to Knowingly Create and Assume the Risk of being shot, or eaten alive (etc.) during their defiant trespasses.  This important principle of private property rights, reflecting "society's explicit recognition of a person's authority to act as he wishes in certain areas [and] the owner's right to prohibit entry" (People v. Scott, above), is illustrated in the case of Weber v. Bob & Jim, Inc., 59 Misc. 2d 249; 298 N.Y.S.2d 854 (Sol. Wachtler, J. 1969), decided by (future-chief-justice) Sol. Wachtler, J.

In the Weber case, the premises where the dog-bite occurred contained a small business office located in one corner thereof. The owner of the premises knew the dog had vicious propensities and with such knowledge, permitted the dog to be located upon the defendant's premises, which were not enclosed. A sign reading "Beware of Dog" was placed on the building. The property was open to the street on which the property faced. The trespassing plaintiff was bitten when he unlawfully used the defendant's property, which was about 50 feet in width and 100 feet in depth, as "a short cut" to his home. The court summarily dismissed the plaintiff's suit, explaining: "The dog was secured by a heavy chain approximately 12 feet in length. This tether prevented the dog from going beyond the property of the defendant and that one of the facts which precipitated the incident was the trespassing of the plaintiff on this property. Even if we were to assume the vicious propensities on the part of the dog, it is the opinion of the court that the owner acted in a reasonably prudent manner by posting signs [e.g., Beware of Dog] and by chaining the animal within the confines of his property. The plaintiff was a trespasser and in the court's opinion placed himself in a dangerous position which not only precipitated but invited the contact and subsequent injuries. … The court does not suggest that the defendant owed no duty whatsoever to the plaintiff even as a trespasser; however, it is of the opinion that this duty was amply discharged by the posting of signs and the tethering of the animal. Plaintiffs have failed to sustain the burden of proving negligence on the part of the defendant and accordingly the complaint is dismissed."

Thus, it seems, that in addition to "confining" a ferocious animal (e.g., by fencing or by "tethering") upon his premises, a prudent New York land-owner will also be expected to "post signs" generally warning potential trespassers of peculiar non-obvious risks inherent in trespassing (entering) upon that particular land. Apparently, the signs need not explicitly state that "Trespassers Assume the Risk of Being Bitten and/or Eaten Alive by Ferocious Dogs Kept unattended On this Land." But, presumably that kind of explicit warning, giving notice of the type of Risks to be Created and Assumed by Trespassers would be more than sufficient to give a Trespasser the ability to consciously choose (Or Choose Not) to Create and Assume those Risks by knowingly "plac[ing] himself in a dangerous" place. A warning gives the potential intruder personal responsibility for his own decisions.

"It would be ludicrous to hold that someone is liable because his watchdog failed to discriminate between an inadvertent trespasser on the property and one who is there bent on criminal activity." Bramble v. Thompson, 264 Md. 518; 287 A.2d 265 (MD 1972)

Section 516 of the Restatement of Torts recognizes that a possessor of land has a privilege to employ a mechanical protective device for protection of his property to the same extent he is entitled to use a watchdog. "Mechanical devices and animals may be used for the protection of property.... Barbed wire, fence spikes, and broken glass are reasonable since they serve to exclude.... Spring guns and traps on the other hand are dangerous weapons.... Dogs, ... are generally treated like mechanical devices [and] a posted warning in such cases has [in New York state] served as a defense." Rights Incident to Possession of Land, sec. 28.18 Forcible Resistance Against Intruders (KF575 M367).

New York's Highest Court long ago noted: "The distinction between acts done by the owner to repel a trespass, he being present, and his taking measures for the general protection of his rights during his absence, [ New York's highest court found]: In the former case he can fix himself the necessary measure of violence; in the latter he can only provide the means with a measure of prudence adapted to his general purpose, and the trespasser [with notice] must act at his peril [as in the case] of a man keeping a dog for the necessary defense of his garden, his house or his field [or as in a case of] of keeping a useful domestic animal, a mischievous bull for instance, in a remote inclosure [or as in a case of] setting spring guns with public notice of the fact; for even that has been held warrantable.  And there can be no doubt that, as against a trespasser, a man may make any defensive erection, or keep any defensive animal which may be necessary to the protection of his grounds, provided he take due care to confine himself to necessity.  But it has been held that in these and the like cases, the defendant shall not be justified, even as against a trespasser, unless he give notice...." Loomis v. Terry, (New York' Highest Court, 1837).

People v. Joseph, 172 NYS2d 463 (1958).

People v. Landson Terrace Apartments, Inc., 332 NYS2d 705 (1972).

The Law of New York therefore appears to continue to draw a distinction between liability to honest trespassers and liability to "defiant" (criminal) trespassers.  By definition, defiant (criminal) trespassers are those who defy conspicuously posted Warnings, physical Barriers designed to exclude them and other Lawful Orders from the landowner that are calculated to "guard or warn" them from injuring themselves upon private property. Traditionally, a defiant (criminal) trespasser has no right to complain when he Creates and Assumes the Risks inherent in defying a land-owner's lawful orders to Keep Out of private premises containing non-obvious hazards. However, some Officers of NY Courts who are Socialist Land-Reformists (see below) cannot be expected to agree with or to uphold that ancient moral and legal principle of property law.

[Note: By Executive Order, in 2002, NY Governor George Pataki decreed an edict adopting the "International Property Maintenance Code" that provides, among other things, that all NY landowners must put a fence around their pools or premises containing a pool. The text of that new "international" code was secret and unpublished before the last state Gubernatorial election, but can be purchased at this time from a commercial website for more than $20.]

Pursuant to New York's Recreational Use Statute (GOL s 9-103 ), an owner of premises, even if not "posted", "owes NO DUTY to keep the premises SAFE for entry or use by others" pursuing listed recreational activities by non-payers. The statute also states that an owner has "NO DUTY to give warning of any hazardous condition or use of or structure or activity on such premises." GOL s 9-103 The statute only permits liability at common law for a willful or malicious "failure to guard or warn."

But, John Adams earlier warned Americans that:

In the minds of some, the resulting anarchy of Hitler's Germany and World War II proved that Adams was Right, and Hitler was Wrong.

Cautious landowners in the Socialist-leaning State of New York who intend to deter and prevent trespasses will post conspicuous "NO TRESPASSING" or "POSTED" signs, and/or signs specifically warning trespassers of non-obvious risks and/or that "physical force" will be used to repel or expel them. In Palumbo v. State, 487 So.2d (Fla. App. 1986), the plaintiff was injured when he entered a lake containing alligators. He alleged that he did not see the alligators and did not read the posted warning signs (telling him about the alligators and to keep out of the lake). In the opinion of the court, it was irrelevant whether plaintiff had actually read the signs. As long as he was given a reasonable opportunity under the circumstances to read the warning message, he would be charged with the knowledge that "would be obvious to him upon the ordinary use of his senses."

WHAT IS NON-DEADLY PHYSICAL FORCE?

In Black's Law Dictionary (7th Ed.), the definition of "Deadly Force" is "violent action known to create a substantial risk of causing death or serious bodily harm." Conversely, the definition of "non-deadly force" is "force intended to cause only minor bodily harm. 2. A threat of deadly force, such as displaying a knife." (e.g., constructive force).

New York's Penal Law implicitly defines non-deadly "physical force" as being "any degree of physical force other than deadly physical force." PL 35.10(6); 35.20(2). "Deadly physical force" is defined in Penal Law s 10.00 (11) as that which is "readily capable of causing death or other serious (i.e., non-temporary) physical injury."

"Reckless endangerment frequently involves the use of firearms, but no case has been found which holds that the mere threatened use of a gun is sufficient to support a reckless endangerment conviction and there are decisions holding that it does not (see, e.g., People v Richardson, 97 AD2d 693, 694). The cases generally require that the weapon be fired, or at a minimum, capable of firing …. Moreover, even if a gun is fired, that standing alone, is not enough to constitute commission of the crime. The use of the gun must create a risk. Thus, it has been held that shooting a pistol into the air ( People v Richardson, 97 AD2d 693, supra) or in the general direction of a roadway but considerably short of it ( People v Sallitto, 125 AD2d 345) does not constitute reckless endangerment. In this case, the evidence established that although defendant pulled the trigger his gun did not fire and thus his conduct could not create a risk…." People v. Davis, 72 N.Y.2d 32; 530 N.Y.S.2d 529 (1988)

In People v. Magliato, 68 NY2d 24 (1986) the NY High Court explained the difference between "the mere display, [a] warning, or preparation for a deadly act" on the one hand, and conduct that "itself constitutes a deadly act." The Court explained that:
"Conduct intended merely to scare off an assailant [or intruder] or to keep him at bay may [or may not] place the assailant [or intruder] in such imminent danger of grave bodily injury or death that the conduct, without more [i.e., without actually firing a weapon], may constitute 'the use of deadly physical force.' ... Allegedly protective conduct in drawing and aiming a loaded and cocked weapon [having a "hair trigger" and NO SAFETY such that the "slightest movement" or "extremely light pressure" on the trigger could fire it] but not firing it intentionally ... unquestionably placed [the offender] in the imminent risk of grave danger [i.e., reckless endangerment] and constituted the 'use of deadly physical force.' ... The mere display or brandishing of a pistol may, perhaps, create an insufficient imminent threat to life to be considered the 'use' of deadly physical force. But, leveling a loaded pistol, with the cocked hammer set to release under the slightest pressure, and pointing it at another .... is conduct well beyond a [threat], warning or preparation for a deadly act. Such conduct itself, constitutes a deadly act."

Land-occupants of normal intelligence who are familiar with the mechanical operation of their particular gun will know whether the manner in which they are displaying, brandishing, or pointing a loaded gun in the presence of an intruder is a "use" of deadly physical force or merely a threat, warning or preparation to do so.

Pepper Spray, Tear Gas, and similar items may be lawfully possessed and used by Adults for Self-Defense purposes, including for "defense of premises" and other property.

Read about a lawful citizen's arrest in Canajoharie, NY:

"A Canajoharie, New York, car thief's efforts were put in park after a potential victim pressed a shotgun to the criminal's throat. Daniel J. Stetin foiled the crime after awaking for work and discovering his car already running outside. He grabbed a shotgun and went to investigate, while his wife grabbed the telephone and dialed 911. Confronted by an armed and angry Stetin, the crook rested quietly on the ground and waited for police to arrive. (The Sunday Gazette, Schenectady, NY, 5/21/95)"

The right to damage the vehicle (instrument of flight) of an escaping criminal is recognized by NY Police Officers who have common sense. In the Year 2000 Annual Report of the New York State Police, the following article, titled "He Sure Picked the Wrong House," features a Hunter not unwilling to Arrest a criminal at Gun Point, and to Shoot as "necessary" to defend himself, and as necessary to prevent the escape of the Burglar/Thief:

"Trooper James M. Cavallero responded to a cellular phone caller who reported he was holding a burglar at gunpoint at his residence in Galen (Wayne County), Nov. 29. Upon arrival, he found the man holding a young burglar at bay with his shotgun. A Geo Tracker with two very flat tires was parked nearby. The man told Tpr. Cavallerro he had returned from hunting to find a strange car in his driveway and broken window near his back door.
Uncertain how many persons were in his house or it they were armed, he parked his truck in front of the Tracker, got out, loaded his shotgun with deer slugs and called out several times to anyone within the house to come out with their hands up. When a young man in his late teens came out, the homeowner told him to lie down on the driveway, which he did. But when the man went to call 911, the teen made a dash for his Tracker and backed it toward the homeowner, striking him with the vehicle [Note: at that moment, the escaping Burglar forfeited his Life. PL 35.30(4), and the hunter graciously spared that life]. The hunter fired one round into the rear tire as the suspect attempted to pull out, then a second into a front tire as the youth pulled out of the driveway. [The second shot at the tires was legally fired purely for the purpose to effect the arrest and prevent the escape, clearly not to prevent any injury to the defender] He then climbed into his own truck and gave chase until, unable to maneuver on his flat tires, the teen pulled over and gave up. The man flagged down a passing motorist who called 911 for him. In addition to the burglary, it was discovered that the teen was on probation for drug charges. Looking for some fast money, he had burglarized the first home that looked unoccupied, which proved to be his downfall. He was charged with 2nd Degree Reckless Endangerment, Burglary 2nd Degree, Possession of Burglar's Tools and Violation of Probation." NYSP Annual Report (2000) P. 18.

UNLAWFUL FORCE USED BY TRESPASSERS AGAINST LAND-OWNERS:

A defiant trespasser has no legal right to forcibly resist the non-deadly force (e.g., pepper spray) necessarily used by the landowner. The Justification statute that generally regulates the right of offenders to defend themselves is prescribed in PL sec. 35.15. That section prescribes that the trespasser may ONLY "use physical force upon another person [i.e., land-owner] when and to the extent he reasonably believes such to be necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of UNLAWFUL physical force by such other person." If the use of force (e.g., Pepper-Spray) used by a landowner is necessitated by the intruder's defiance, then the intruder has no legal right to believe that the use of the Pepper-Spray is a "use of UNLAWFUL physical force."

An intruder's THREAT to FORCIBLY resist a landowner's exercise of any of his statutory Rights under PL Article 35 is Attempted "Criminal Coercion" and is therefore a CRIME, potentially a Felony.  Penal Law Sec. 135.60, titled "Coercion in the second degree." Prescribes that:

"A person is guilty of coercion in the second degree when he compels or induces a person to engage in conduct which the latter has a legal right to abstain from engaging in, or to abstain from engaging in conduct in which he has a legal right to engage, by means of instilling in him a fear that, if the demand is not complied with, the actor or another will:… 
    1.  Cause physical injury to a person; or
    2.  Cause damage to property; or
    3.  Engage in other conduct constituting a crime;  ..."

Coercion in the second degree is a class A misdemeanor.   http://assembly.state.ny.us/leg/?cl=82&a=30

If the intruder's Threat is made for a more forward-looking purpose, such as to "permanently" appropriate a Valuable Possession of Premises to himself, the intruder may be guilty of attempted "Theft Of Premises" (e.g., Larceny By Extortion). http://assembly.state.ny.us/leg/?cl=82&a=34 

If the intruder's Threat is to immediately Use FORCE in order to "permanently" appropriate the Valuable Possession of Premises to himself or another, he may be guilty of attempted Robbery of Premises (i.e., attempted Forcible Stealing of the Possession of Premises).  http://assembly.state.ny.us/leg/?cl=82&a=37

Generally speaking, any unlawful force used or immediately threatened by the thief during the commission of a Forcible Stealing (i.e., Robbery) of "any thing of value" may be lawfully resisted by any degree of force "necessary," including Deadly Physical Force if necessary.  PL s 35.15(2)(b).

   In New York law, it IS legally POSSIBLE for "Premises" (i.e., any "Real Estate") or "valuable" Possession of Premises to be forcibly stolen.   Penal Law Sec. 155.05, titled "Larceny defined" prescribes that:

    "1.   A  person steals property and commits larceny when, with intent to deprive another of property or to appropriate the  same
to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof. [Incuding] By conduct heretofore  defined or known as common law larceny by trespassory taking.   ....
  "3.  "Deprive."  To "deprive" another of property means (a) to withhold it or cause it to be withheld from him permanently or for so extended a period or under such  circumstances  that  the major portion of its economic value or benefit is lost to him, or  (b) to dispose of  the property in such manner or under such circumstances as to render it unlikely that an owner will recover such property.
  4. "Appropriate." To "appropriate" property of another to oneself or a third person means (a) to exercise control over it, or to aid a third
person  to  exercise control  over it, permanently or for so extended a period or under such circumstances as to acquire the major portion  of its economic value or benefit, or (b) to dispose of the property for the benefit of oneself or a third person."

In, People v. Podolsky, 130 Misc. 2d 987, 496 N.Y.S.2d 619, (N.Y. Sup. Ct. 1985), persons were CONVICTED of attempting to steal the owners' entire "right to possess and occupy their" premises, because the owner's "legal right to possess and occupy [premises] constitutes 'property' as defined in [New york] Penal Law."

Another example of a case in which the defendants' conduct probably constituted Theft of Premises By Extortion (a conspiracy among Police Officers to Steal a House) is discussed at: http://billstclair.com/ferran/markferran2.html 

"A person is guilty of ROBBERY when 'he uses or threatens the immediate use of physical FORCE upon another person for the purpose of * * * [compelling] the owner of such property * * * to deliver up the property * * *".  Under former law, it was robbery whenever a person obtained property by way of a threat of injury "immediate or future" (former Penal Law, s 2120; see People v Thompson, 198 NY 396). The present statute, however, requires that the threat be of the "IMMEDIATE use of physical force" upon another person (Penal Law, s 160.00). The obtaining of property by means of a threatened physical injury in futuro is no longer robbery, but larceny by extortion (Penal Law, s 155.05)" People v. Woods, 41 N.Y.2d 279; 360 N.E.2d 1082 (1977).

"While a 'larceny' has been committed when a person 'with intent to deprive another of property or to appropriate the same to himself or to a third person * * * wrongfully takes, obtains or withholds such property from an owner thereof' (PL s 155.05, subd 1), a "robbery" has been committed when "in the course of committing a larceny [a person] uses or threatens the immediate use of physical force upon another person" (PL s 160.00). A robbery is thus a larceny which has been committed with the use of or the immediate threat of the use of physical force. The peril to the victim and, therefore, to society is clearly greater when violence is used, or threatened to be immediately used, in the commission of a crime."  People v. Banks, 55 A.D.2d 795, *; 389 N.Y.S.2d 664; (1976).

"The defense of justification (NY Penal Law art. 35) affirmatively permits the use of force under certain circumstances" McManus, (above)

Penal Law section 35.25 prescribes, in pertinent part, that "A person may use physical force, other than deadly physical force, upon another person when and to the  extent  that  he reasonably believes such to be necessary to prevent or terminate what he reasonably believes to be the commission or attempted commission by such other person of larceny...."

Penal Law section 35.15 effectively ordains that:  "A person may... use DEADLY physical force upon another person"  "when and to the extent he reasonably believes such to be NECESSARY to defend himself or a third person from what he reasonably believes to be ....  a kidnapping, forcible rape, forcible sodomy or ROBBERY; or (c)  ... a burglary...."  The law "limits the felonies on the person, commission of which justify resistance by deadly physical force, to kidnapping, robbery, forcible rape and forcible sodomy."  McKinney's Practice Commentaries, PL s 35.15 (1975).  ["Burglary" is classified as a felony against Possession of a "Dwelling" that justifies resistance by necessary deadly physical force.  PL. 35.20(3).]

Arguably, a case where the trespassers' conduct may reasonably have appeared (from the land-owner's perspective) to be a Forcible Stealing of Premises (Robbery) is posted online at: http://www.tribune-chronicle.com/news/story/03602002_new11.asp  (A Farmer stopped a group of habitually trespassing ATV-riders who coveted the use of his land, and told them to leave. He was beaten up.  ''It's a blatant disregard for other people's property is what it is.  You can't even enjoy your own property.'')  See also many other similar cases at http://billstclair.com/ferran/atvtrespass.html   In such a case, in which an intruder with an apparent intent to appropriate to himself and/or others a valuable possession and occupancy of land ("permanently" or for an "extended period" of time), are apparently about to use unlawful physical force to compel or to induce the land-owner to then and FOREVER refrain from exercising his right to exclude them, the law of New York state might someday be expressly judicially interpreted to recognize that the land-owner's use of any Force "Necessary", including the use of Deadly Physical Force, necessary to resist the impending assault is Justifiable as Resistance to Robbery.  PL 35.15(2)(b).  

However, the Use of lawful and necessary Deadly Physical Force against a person reasonably suspected of forcibly stealing Land, Real Property, or a Valuable Possession of Premises (Robbery) is susceptible of being interpreted by some as an unlawful use of deadly force against a mere criminal "trespasser."   But the act of Trespassing should not be understood to give a defiant Trespasser a privilege to use his trespass as an opportunity to Forcibly Steal the Premises from the lawful occupant on a more "extended" or "permanent" basis.  There are few cases examining that distinction in the context of "Theft of Premises" and there are no known cases discussing in express terms a land-owner's use physical force to resist a "larceny" or "robbery" of his premises.  Generally speaking, given the intellectual challenges of the subjectmatter and the prejudices of an increasingly Socialist-leaning Society in New York, Police Officers and District Attorneys will find it much more convenient to prosecute a land-owner for using Force, especially Deadly Physical Force, than they will find prosecuting criminals for Larceny of Premises or Forcible Stealing (Robbery) of Premises. 

Some Police Officers and District Attorneys are so poorly educated in New York state that they do not even understand that land-owners have the legal right to "approach" and "confront" defiant trespassers, let alone the affirmative legal right to push them, shove them or otherwise forcibly expel or to arrest them.  Accordingly, it is important for land-owners in New York state to educate their local Police Officers, District Attorney, Justice of the Peace in advance of future problems with trespassers.

May 1, 2003

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