Appeal from a judgment of the Supreme Court, entered February 27, 1978 in Montgomery County, upon a verdict rendered at a Trial Term, in favor of plaintiff. Plaintiff is employed as a construction inspector by the New York State Department of Transportation. He is also a licensed owner, trainer and driver of trotting and pacing horses. As a result of an incident at defendant’s facility on April 7, 1971, plaintiff, in an action for false arrest, has obtained a verdict against defendant for $750 in compensatory damages and $5,000 in punitive damages. The relevant and, for the most part, uncontradicted facts are amply set forth in the decision of this court when the matter was before us on an earlier appeal (50 AD2d 950). On that occasion, we upheld the judgment appealed from insofar as it dismissed the cause of action for malicious prosecution on the ground there was no evidence which would allow a jury to find that defendant was guilty of malice in instigating the criminal action against plaintiff. However, we directed a new trial on the cause of action for false arrest because the trial court had erroneously placed the burden of establishing the unlawfulness of a warrantless arrest on plaintiff (cf. Broughton v State of New York, 37 NY2d 451). After the retrial, some six years after the event, the record now contains two uncorroborated epithets attributed to defendants’ agents upon which the trial court relied, in large part, to sustain the jury’s award of punitive damages. With the exception of these two statements substantially the same evidence was advanced during the prior trial in which this court found no malice—albeit on a different cause of action—and the fact that these slurs were somehow belatedly recalled at the time of the new trial seriously diminishes the effect of such testimony. It simply does not possess sufficient probative quality to justify a punitive award (cf. Guión v Associated Dry Goods Corp. [Lord & Taylor Div.], 43 NY2d 876; Walker v Sheldon, 10 NY2d 401). Apart from this deficiency involving an element of damages, there is a more basic flaw in plaintiff’s case which, in our opinion, precludes any recovery. The presumptive unlawfulness of a warrantless arrest by a private citizen is overcome if it is shown that the plaintiff had, in fact, committed an offense in defendant’s presence (CPL 140.30; cf. Smith v County of Nassau, 34 NY2d 18, 23; McLoughlin v New York Edison Co., 252 NY 202). While justification is ordinarily a matter of affirmative defense, here the examination of plaintiff’s witnesses demonstrates that he was committing the crime of criminal trespass at the time of his arrest. Accordingly, there was no rational view of the evidence that would permit the jury to find in his favor and defendant’s motion to dismiss the complaint at the close of plaintiff’s evidence should have been granted. Whether plaintiff’s arrangement with defendant was some form of tenancy, a license or a privilege is uncertain, but it is plain that the relationship was at defendant’s will and sufferance. It is equally plain that sometime before March 29, 1971, he was requested to remove himself and his horses from the raceway. He failed to comply and on that date the request was repeated in written form, politely advising him that his horses were not being assigned stalls for the approaching season. Again he failed to comply, and on April 7, 1971, he was personally served with another written notice barring him from defendant’s premises and advising him that a violation of the directive *922would constitute criminal trespass. He left the premises and consulted with an attorney who apparently told him that his removal could only be accomplished through civil proceedings. The arrest occurred following his return to the facility later that afternoon. Section 140.10 of the Penal Law provides, in part, that "A person is guilty of criminal trespass * * * when he knowingly enters or remains unlawfully * * * upon real property which is * * * enclosed in a manner designed to exclude intruders.” Knowingly is defined as follows: "A person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such circumstance exists.” (Penal Law, § 15.05, subd 2.) Lastly, subdivision 5 of section 140.00 of the Penal Law specifies, in part, that "A person 'enters or remains unlawfully’ in or upon premises when he is not licensed or privileged to do so. A person who, regardless of his intent, enters or remains in or upon premises which are at the time open to the public does so with license and privilege unless he defies a lawful order not to enter or remain, personally communicated to him by the owner of such premises or other authorized person.” Since plaintiff did not prove that his original arrangement with defendant could not be revoked at will, and since, by his own account, he was fully cognizant of the foregoing communications, it necessarily follows that he committed a criminal trespass upon his return to defendant’s premises. His acquittal of such a charge does not alter this conclusion, nor can it be avoided by resort to the advice he received from his attorney. A charge in a criminal action must be proven beyond a reasonable doubt and, therefore, a not guilty verdict in such a proceeding does not conclusively establish the factual innocence of the accused. The issue of whether plaintiff was committing a criminal trespass was not determined by the outcome of that prosecution and his reliance on legal advice cannot erase his "knowledge” of the pertinent circumstances. As the proof was developed in this trial, there was nothing to suggest that defendant’s communications were anything other than lawful orders (see People v Licata, 28 NY2d 113; People v Brown, 25 NY2d 374) and plaintiff could not honestly believe he was licensed or privileged to enter defendant’s facility (compare People v Basch, 36 NY2d 154, 159). Perhaps he could regain access through legal process, but a license or privilege to then enter was unquestionably lacking. A clear preponderance of evidence established that plaintiff was committing a crime at the time of his arrest and no rational jury could arrive at a contrary determination. Judgment reversed, on the law and the facts, and complaint dismissed, without costs. Kane, Staley, Jr., and Main, JJ., concur.