People v. Hendrickson

Francis J. Clohessy, J.

Defendant appeals from a judgment of conviction rendered by Justice Anthony J. MacCarthy, sitting as a Court of Special Sessions of the Incorporated Village of Asharoken on September 7, 1963, after a trial without a jury for the offense of trespassing upon private property in violation of section 1-a of the General Ordinances of the Village of Asharoken.

Section 1-a of the General Ordinances reads as follows: “Section 1-a: No person shall by foot, vehicle or otherwise enter or trespass (a) upon any private property within the Village without the permission of the owner or occupant thereof or (b) upon any property owned by the Village, the entering upon which is forbidden by sign authorized and erected by the Village”. 1

The information charges that this defendant “ Did Trespass Upon The Private Beach And Did Dump Debris In Water of One Glen H. Anderson ”. The only proof is that the defendant dumped something which did not float on the top of the water over the lands of Anderson. This is not a crime under the ordinance since there is no proof of a trespass to the land itself but only to the wafer over the land. The People would have us take judicial knowledge of the physical law that articles which do not float, sink, but it must be remembered that such articles sink only until their density is equal to that of the water at that depth and need not sink all the way to the bottom. In the absence of proof as to what the articles were we cannot assume that they physically came to rest on the complainant’s property.

Judgment of conviction reversed.