Opinion
April 8, 1970
Appeal from the Police Justice Court of the Village of Brookville, County of Nassau.
Gerzof Miller ( Alan Manning Miller of counsel), for appellant.
William Cahn, District Attorney ( Gino Papa of counsel), for respondent.
An ordinance which when literally applied seeks to make criminal any trespass upon open, unfenced, unposted land of another, no matter what the circumstances, irrespective of intent and irrespective of whether a reasonable person could be expected to know that his conduct was unlawful, cannot be sustained. ( People v. Lawson, 44 Misc.2d 578, affd. 16 N.Y.2d 552.)
In our opinion, the ordinance in question (Ordinance No. 9 of the Village of Brookville) offends against the principle that a criminal statute must give fair warning of the conduct that it seeks to make a crime, so that a person of ordinary intelligence would understand that his contemplated conduct is criminal ( United States v. Harriss, 347 U.S. 612). Compare subdivision 5 of section 140.00 Penal of the Penal Law which under similar circumstances, i.e., entry upon open, unfenced, unimproved land, requires posting or a personal communication to the person not to trespass.
Judgment of conviction should be unanimously reversed on the law and complaint dismissed.
Concur — GULOTTA, P.J., PITTONI and McCULLOUGH, JJ.
Judgment reversed, etc.