Hannah E. Meyers Trespass Without Fear New York’s criminal-justice reforms make it hard to prosecute squatters.
https://www.city-journal.org/article/trespass-without-fear
New York is suffering a “finders keepers, losers weepers”–style squatting epidemic, enabled by the state’s cumbersome civil process for abused landlords. As several recent stories make clear, the state’s housing courts are far too sympathetic to invaders masquerading as tenants. The situation had grown so dire that New York’s legislature passed a measure in April excluding from the definition of “tenant” those who intrude and then hunker down on property without permission.
The new law opens the possibility of a criminal-justice solution to the state’s squatting problem. But a pivotal question remains: Will New York’s 62 district attorneys, encumbered by a decade of pro-defendant policy reforms, successfully prosecute these non-tenants’ crimes? Recent experience suggests that they will struggle to do so, especially in trespass cases.
Queens district attorney Melinda Katz has been in the news for a high-profile prosecution against Brian Rodriguez, who featured in a video that went viral in April. Rodriguez, a 35-year-old burglary and narcotics ex-con, was allegedly occupying a Queens house that Adele Andaloro inherited from her parents. Before Andaloro could eject him, Rodriguez reportedly sublet her rooms. When she had the locks changed and tried to retake her property, he claimed squatter’s rights after 30 days—and had her arrested!
Katz’s office, to its credit, charged Rodriguez with five counts: burglary in the second degree, grand larceny in the fourth degree, criminal possession of stolen property in the fourth degree, criminal trespass in the second degree, and criminal mischief in the fourth degree. If convicted, Rodriguez faces up to 15 years in prison.
The chances of a conviction under New York’s current criminal-justice policies, however, are frustratingly slim. Statewide discovery reform, in particular, which went into effect in January 2020, created a voluminous and time-sensitive compliance burden for prosecutors on each and every case. Overwhelmed, prosecutors triage their caseloads, dismissing lower-level offenses (like trespass) or declining to prosecute them altogether. Still more cases are now tossed under New York’s “speedy trial” law, whereby cases are dismissed simply because prosecutors run out of time to compile the now-required mountains of paperwork—and not because justice warrants dismissal.
Consider the data from Queens. In 2019, the year before statewide bail, discovery, and parole reforms took effect, the county dismissed 38 percent of all criminal cases. By last year, the rate was 56 percent. For misdemeanors like trespass, the dismissal rate rose from 45 percent in 2019 to an average of 74 percent in the four years since.
More starkly, nearby Manhattan dismissed only 6 percent of trespass prosecutions a decade ago. Last year, the county dismissed 40 percent, with another 30 percent being adjourned in contemplation of dismissal, which effectively is the same outcome.
That surge in dismissals came despite a monumentally reduced caseload. A decade ago, the county arraigned 4,756 trespass cases; in 2021, after DA Alvin Bragg took office, it arraigned only 608. Bragg’s infamous “Day One Memo,” which committed to declining “some trespass cases,” doubtless contributed to last year’s meager 505 trespass arraignments.
In the Bronx, DA Darcel Clark’s office likewise went from prosecuting more than 500 trespass cases a half-decade ago and dismissing less than a quarter to prosecuting only 166 cases in 2021 and dismissing over half. (The dismissal rate improved slightly since.)
The shift is certainly not due to a corresponding drop in trespassing. Consider, in addition to the squatting cases, the 2020 protests, skyrocketing fare evasion rates, and the thousands of anti-Israel demonstrators invading public and private spaces. Trespassers are not in short supply, but it has become functionally impossible to attach consequences to their crimes.
Conviction rates have also plummeted. In 2019, around half of all prosecuted New York City cases resulted in convictions, compared with barely a quarter of cases in the years since. In Queens, conviction rates have fallen from more than half of all disposed cases to around a third.
In Manhattan, conviction rates on trespass charges have plummeted—from 62 percent (nearly 3,000 convictions) a decade ago to 43 percent (or 535 convictions) by 2019, after years of then-DA Cy Vance decriminalizing low-level offenses. By last year, only a quarter of Manhattan’s measly 136 trespass prosecutions yielded convictions. Similarly, in the Bronx, trespass convictions have fallen from 27 percent in 2019 to an average of 17 percent of disposed cases in the recorded years since. No wonder invaders squat with abandon and, like Rodriguez, feel entitled to appropriate others’ property.
Since defendants increasingly expect that their cases will be dismissed, fewer are pleading guilty. In 2014, nearly three-quarters of Manhattan misdemeanor trespass cases were disposed at arraignment. Now, with less incentive for defendants to plead guilty, this has dropped to just around half of cases last year. The actual number of cases disposed at arraignment also fell drastically—from 3,360 to 267.
Even guilty pleas carry fewer consequences, as overwhelmed prosecutors downgrade charges at record rates. Across the seven years before discovery reform, of the defendants charged with misdemeanor trespass in Manhattan who ultimately did plead guilty, around two-thirds pleaded to equivalently serious misdemeanor charges. But in the four years since, even out of the smaller percentage of misdemeanor trespass defendants who pleaded guilty, less than a third pled to equivalent misdemeanors! Instead, the portion of misdemeanor defendants disposed of with only a violation or infraction charge has risen from an average of 35 percent to 67 percent. How much deterrence is the risk of an infraction? Not much. Especially for someone like Rodriguez, who’s already dragging around a felony rap sheet.
Another bygone deterrent is the threat of pretrial detention—as Rodriguez discovered when he was released without bail. In 2014, a quarter of Manhattan misdemeanor trespass defendants had bail set. Last year, that number dropped to just 1 percent. Indeed, the number of trespass defendants for whom Manhattan prosecutors even requested bail fell from 471 a decade back to just 3 in 2023. This negligible number has been about the average since bail reform went fully into effect in January 2020, effectively making trespassing offenses ineligible for bail unless the defendant poses a clear flight risk.
State and local policies have tied prosecutors’ hands. Trespassers have little reason to fear being arraigned, held in jail, or convicted for their crimes. While the consequences for Brian Rodriguez remain to be seen, landlords will continue to be victimized until elected officials make it easier to enforce the law.
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