Re: O/T Property ownership and your rights...

Posted by Billy NY on March 14, 2008 at 13:14:39 from (64.12.117.74):

In Reply to: Re: O/T Property ownership and your rights... posted by Bret4207 on March 14, 2008 at 09:59:48:

Now somehow I knew that would draw you in, but for good reason :)!

This is something that is still always a bit confusing, and maybe those sections of law are just misleading, superceded or improperly applied, making my statements incorrect, but I did make an honest attempt to research what was applicable and understand what I read from the state assembly and other sites with current NYS laws, as I think it would be beneficial knowledge when dealing with these problems for a lot of reasons, my point will become diluted if I go any further about all my particular concerns, experiences and the reasons it is of high interest to me.

I found one section of NY penal law that caught my attention, and with all due respect to your knowledge based on your profession, I certainly do not need to quote law to you by any means, just doing so for discussion and learning purposes. I would have to spend more time to go back and find other sections in regards to disabling tresspassing atv's, also saw something about the use of tire spikes when the area is clearly posted, etc. etc., there might also have been some case law too, in regards to expectation of privacy of ones place etc. Just a bit much for discussing here, and a lot of information to translate that would probably be even more confusing.

From what I got out of reading most of the sections I researched, there is room for interpretation in all of them, which is not a good thing if a person decides to follow through based on what they believe after reading them, from what they interpret or even just heresay. I'm sure it could result in a costly legal mess very quickly. With that in mind, anyone reading ought to heed your advice. I am also aware that laws vary widely by state, and situations are much different in remote areas in regards to law enforcement and crimes.

One reason I am concerned here is that there is an increasing criminal element that is spreading from a nearby urban area. What starts as a nuisance can become and is now a real problem here, you have to be observant and stay alert to these things and I think having a good understanding of the applicable laws is beneficial, but by no means does it authorize you to become a vigilante when something occurs, make the call and let the police handle it.

My concern on this section is, the word offense is referred to and if tresspassing is an offense, the open ended question really is, what constitutes premises, your home, barns, shop and land are premises, or so one would think and if that is so, then does this apply if someone commits an offense like tresspassing in your presence, the only way to catch them is to positively ID or apprehend the person until the police arrive, or they just get away, repeatedly, yet technically they still have violated a law. Obviously, it's all for the issuance of an appearance ticket, and that seems kind of ridiculous to really follow up on, like who has the time to patrol their place and deal with it, (I politely explain to these people when caught that it's posted and we appreciate it if you would respect our privacy, if you don't I will make the call to the SP) Now a landowner has no other option if he or she wants to really pursue someone who repeatedly tresspasses, or has a serious problem with same that could lead to a more serious offense, at least the tresspasser who is caught will have to appear and they can be fined or jailed for repeat offenses, not much but better than nothing. It seems the key to following up on this offense and making them appear is hinged upon legally catching the person, which is made very difficult when it is so easy for them to just run as in most cases it just takes too long for police to respond to what is considered a petty crime anway, just the way it is, and these people know it and continue doing it.

What this section states seems clear, but what happens when a private citizen actually does it ? Maybe I've just read way to far into this but do appreciate the discussion of same.

NY Law states:
"6. A person may, pursuant to the ensuing provisions of this article, use physical force upon another person in defense of
himself or a third person, or in defense of premises, or in order to prevent larceny of or criminal mischief to property, or in order to
effect an arrest or prevent an escape from custody."
NY Penal Law 35.10(6) http://assembly.state.ny.us/leg/?cl=82&a=12

Penal Law, sec. 35.30, titled "Justification; use of physical force in making an arrest or in preventing an escape", provides:
NY Penal Law section 35.30(4) states:
"4. A private person acting on his own account 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 effect an arrest or to prevent the escape from
custody of a person whom he reasonably believes to have committed an offense [in his presence, see CPL Article 140] and who in
fact has committed such offense; and [after giving due notice of the grounds for the arrest] he may use deadly physical force for
such purpose when he reasonably believes such to be necessary to:(a) Defend himself or a third person from what he reasonably
believes to be the use or imminent use of deadly physical force."

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