New York Burglary: Charges, Penalties and Sentencing

In New York, Burglary is a very serious criminal offense. It is punishable by up to 25 years in prison. Accordingly, it is crucial that you consult an attorney with experience defending New York Burglary charges.

New York Burglary Charges

Firstly, there are three different burglary charges. Specifically, they are (1) Burglary in the First Degree (Penal Law §140.30, a Class “B” felony);

(2) Burglary in the Second Degree (Penal Law §140.25, a Class “C” felony);

(3) Burglary in the Third Degree (Penal Law §140.20, a Class “D” felony)

Significantly, the severity of the crime depends on the underlying facts. The following factors increase the seriousness of the offense:

(1) the building is someone’s home;

(2) injury to a non-participant; and

(3) use of a weapon.

Burglary in the Third Degree – Class “D” Felony

The elements of Burglary in the Third Degree (Penal Law §140.20) are follows:

  • Knowingly entering or remaining unlawfully,
  • In a building,
  • With the intent to commit a crime.

To begin, the definition of “building” in Penal Law §140.00 is very broad and includes any “structure.” Surprisingly, enclosed motor trucks and motor trailers are also considered “buildings.” That is to say – someone can be charged with a Burglary in the Third Degree for breaking into a UPS truck and stealing packages.

Penalties for Burglary in Third Degree

Being that Burglary in the Third Degree is a Class “D” non-violent felony, it is punishable by up to 7 years in prison.

Burglary in the Second Degree – Class “C” Felony

Similarly to Burglary in the Third Degree, Burglary in the Second Degree (Penal Law §140.25), also requires:

  • Knowingly entering or remaining unlawfully,
  • In a building,
  • With the intent to commit a crime.

However, Burglary in the Second Degree has these additional elements:

  • The building is a dwelling, OR
  • In entering the building, while in the building or during flight from building, a participant:
    • is armed with explosives or a deadly weapon; or
    • causes physical injury to an individual who is not a participant in the crime, or
    • uses or threatens the use of a dangerous instrument; or
    • displays what appears to be a gun.

What is the Definition of a Dwelling?

To emphasize, the definitions are located in Penal Law §140.00. “Dwelling” is any building which is used for sleeping at night. Examples of dwellings are:

  • apartment buildings
  • residential homes
  • hotel rooms
  • house boats
  • motor homes

In addition, the Courts have broadened the definition of “dwelling” to include places “within the same four outer walls, and under the same roof” as a room used for sleeping at night.

Penalties for Burglary in Second Degree

Burglary in the Second Degree is a Class “C” Violent Felony (even if the charge is a Burglary in the Second Degree only because the building is a dwelling). Therefore, in New York Burglary in the Second Degree is punishable by up to 15 years imprisonment.

Burglary in the First Degree – Class “B” Felony

Finally, the charge of Burglary in the First Degree (Penal Law §140.30) has the following four elements:

  1. Knowingly entering or remaining unlawfully;
  2. In a dwelling;
  3. With the intent to commit a crime; AND
  4. During the commission of the crime:
    • a participant is armed with explosives or a deadly weapon, OR
    • causes physical injury to an individual who is not a participant in the crime, OR
    • uses or threatens the use of a dangerous instrument; OR
    • displays what appears to be a gun.

Certainly, Burglary in the First Degree is a very serious offense, as it is a Class “B” Violent Felony. Consequently, it is punishable by up to 25 years in prison.

New York Burglary Defenses

It is important to realize that New York Burglary offenses can result in significant jail time. It is essential that you retain an experienced New York attorney to fight for you. Of course, no stone ought to be left unturned in preparing your defense. The following defenses may help your case:

Lack of Intent to Commit a Crime

Seeing that intent to commit a crime inside the location is one of the elements of all the above-mentioned Burglary charges, a viable defense may be establishing that the person never had a criminal intent. For example, imagine someone hops a fence and goes into an abandoned building just to check it out. While this may constitute Trespass in the Third Degree under New York Law, it falls short of Burglary. To put it another way, you would rather deal with a Trespass Charge, which is either a Class “A” (punishable by up to 1 year jail) or a Class “B” misdemeanor (punishable by up to 60 days jail), than any of the Burglary Counts.

Duress

Duress is an affirmative defense that your New York criminal defense attorney can raise on your behalf. In essence, Duress is a defense that the person committed a crime only because he was coerced to do it by that of imminent use of physical force upon himself or another person. This defense does not apply to all situations. For example, the defense of duress is not available if the person intentionally or recklessly put himself into a situation in which it was probable that he would be subject to duress.

Property is not a Dwelling

As you know, one main difference between Burglary in the Second Degree and Burglary in the Third Degree is whether the building is a “dwelling.” Significantly, this is the difference between a 7 year and a 15 year term of imprisonment. The Courts have expanded the definition of a “dwelling” to also include property that is under the same roof as a “dwelling.”

Through extensive investigation of your case and a visit to the property, your attorney may be able to establish that the tangential property cannot be a “dwelling.” Undeniably, this defense is only available when there is no physical way that the individual can get from the property to the part of the building that is commonly used for sleeping at night. For example, let’s say a building has two entrances on different side of the street and divided into a store on one side and a house on another. If someone breaks into the store to steal the cash register, she may not be committing Burglary in the Second Degree, if the two properties are not connected onto inside.

Consult a New York Burglary Attorney Today

Burglary laws are meant to protect the sanctity of people’s homes. In New York, the crime of Burglary may be punishable by up to 25 years imprisonment. In light of these severe consequences, you cannot afford delaying speaking to an experienced New York Burglary attorney. Together, we can figure out how to defend your case. Give us a call at 212-729-9494 or contact us today to schedule your free initial consultation.