Burglary

Burglary accusations are among the most serious in any locality in the United States. Contact an experienced New York City burglary crime lawyer immediately if you find yourself accused of this serious crime.

Many people mistakenly confuse burglary with larceny-related crimes. For example, prospective jurors when asked during jury selection whether they've been the victim of a crime in the past often say their home 'got robbed.' While this could be true, usually what they mean to say is they were the victim of a burglary. Larceny is taking something that does not belong to you with the intent to permanently deprive the rightful owner of the property. It's a fancy word for stealing. Robbery is committing a larceny by force. Burglary, on the other hand, is not a larceny-related crime.The reason for the confusion is because larceny is often a motive for burglary. However, burglary is basically trespassing onto the property of someone else with the intent to commit another crime. The common example of burglary is a situation in which a person enters another person's home when the other person isn't there and steals all the jewelry. It's easy to see why the stealing of the jewelry in this example makes the burglary victim think that the burglary was the stealing of the property. However, the actual stealing of the property has nothing to do with the burglary itself. The burglary is committed when the person entered the property with the intent to commit any crime. Whether he actually ends up committing the crime is irrelevant with regard to whether he committed the burglary. So if a person enters into another person's home without permission and with the intent to kill someone in the home, he is committing burglary. If he ends up killing that person, then he may also be guilty of murder. However, the second he enters that home with that intent, he is committing a burglary.

Burglary has historically been one of the most serious crimes a person can commit. It was often punishable by death. Under the common-law, the original concept of burglary was defined as “the breaking and entering the house of another at night, with the intent to commit a felony therein, whether the felony be actually committed or not.” Due to many technicalities within this definition that lead to people being acquitted of burglary charges even though the person's conduct 'felt' like a burglary, legislatures across the United States have systematically changed burglary. In New York, the various forms of burglary are codified in Article 140 of the New York State Penal Code. There are three degrees of burglary in New York.

The most basic form of the crime is Burglary in the Third Degree, which is defined as "knowingly entering or remaining unlawfully in a building with the intent to commit a crime therein." As you add aggravating factors to that basic crime, you get enhancements into higher forms of burglary. For example, if someone sleeps in the building at night, it legally a "dwelling." If a person commits a burglary into a dwelling, then he is guilty of Burglary in the Second Degree. If a person commits a burglary into a dwelling and a non-participant in the crime suffers physical injury, then the person is now guilty of Burglary in the First Degree. Below are the applicable sanctions in New York for the various forms of burglary and what the government needs to prove.

If you or a loved on is accused of committing a burglary, do not hesitate to contact an experienced New York criminal defense attorney for a free consultation.

  • Burglary in the First Degree

Burglary in the First Degree is a very serious crime. It is codified in Penal Code Section 140.30. If a person with no prior felony convictions is convicted of Burglary in the First Degree, the minimum period of incarceration is 5 years and the maximum is 25 years. If the person has been previously convicted of a prior felony within 10 years of the new conviction, excluding time spent in prison, the minimum period of incarceration is 8 years and the maximum is 25 years. If the person has been previously convicted of a violent felony within the past 10 years of the new conviction, excluding time spent in prison, the minimum period of incarceration is 10 years and the maximum period is 25 years. In all circumstances, the person is forced to be on parole between 2.5 to 5 years.

There are four subsections of Burglary in the First Degree.

140.30(1)
For the government to sustain a conviction for Burglary in the First Degree (subsection 1), the government needs to prove the following four elements beyond a reasonable doubt. The government needs to prove:

  1. the person entered or remained unlawfully in a dwelling;
  2. the person did so knowingly;
  3. the person did so with the intent to commit any crime inside of that dwelling; and
  4. while (i) effecting entry or (ii) while in the dwelling or (iii) in immediate flight from the dwelling, the person or another participant in the crime was armed with a deadly weapon or explosives.

140.30(2)
For the government to sustain a conviction for Burglary in the First Degree (subsection 2), the government needs to prove the following four elements beyond a reasonable doubt. The government needs to prove:

  1. the person entered or remained unlawfully in a dwelling;
  2. the person did so knowingly;
  3. the person did so with the intent to commit any crime inside of that dwelling; and
  4. while (i) effecting entry or (ii) while in the dwelling or (iii) in immediate flight from the dwelling, the person or another participant in the crime causes physical injury to a non-participant in the crime.

140.30(3)
For the government to sustain a conviction for Burglary in the First Degree (subsection 3), the government needs to prove the following four elements beyond a reasonable doubt. The government needs to prove:

  1. the person entered or remained unlawfully in a dwelling;
  2. the person did so knowingly;
  3. the person did so with the intent to commit any crime inside of that dwelling; and
  4. while (i) effecting entry or (ii) while in the dwelling or (iii) in immediate flight from the dwelling, the person or another participant in the crime possessed a dangerous instrument or used or threatened the immediate use of that dangerous instrument.

140.30(4)
For the government to sustain a conviction for Burglary in the First Degree (subsection 4), the government needs to prove the following four elements beyond a reasonable doubt. The government needs to prove:

  1. the person entered or remained unlawfully in a dwelling;
  2. the person did so knowingly;
  3. the person did so with the intent to commit any crime inside of that dwelling; and
  4. while (i) effecting entry or (ii) while in the dwelling or (iii) in immediate flight from the dwelling, the person or another participant in the crime displayed what appeared to be a pistol, revolver, rifle, shotgun, machine gun, or other firearm.
  • Burglary in the Second Degree

Burglary in the Second Degree is codified in New York Penal Code Section 140.25. It is a class C violent felony. If a person with no prior felony convictions is convicted of this crime, the minimum period of incarceration is 3 1/2 years in prison and the maximum is 15 years in prison. If the person has been previously convicted of a prior felony within 10 years of the new conviction, excluding time spent in prison, the minimum period of incarceration is 5 years and the maximum is 15 years. If the person has been previously convicted of a violent felony within the past 10 years of the new conviction, excluding time spent in prison, the minimum period of incarceration is 7 years and the maximum period is 15 years. If a person has prior felony convictions, he must serve 5 years parole after his sentence is over. If the person has no prior felonies, he must serve 2.5-5 years on parole.

There are two main subsections of Burglary in the Second Degree. The first subsection as its own 4 four subsections.

140.25(1)(a)
For the government to sustain a conviction for Burglary in the Second Degree (subsection 1-A), the government needs to prove the following four elements beyond a reasonable doubt. The government needs to prove:

  1. the person entered or remained unlawfully in a building;
  2. the person did so knowingly;
  3. the person did so with the intent to commit any crime inside of that building; and
  4. while (i) effecting entry or (ii) while in the building or (iii) in immediate flight from the building, the person or another participant in the crime was armed with a deadly weapon or explosives.

140.25(1)(b)
For the government to sustain a conviction for Burglary in the Second Degree (subsection 1-B), the government needs to prove the following four elements beyond a reasonable doubt. The government needs to prove:

  1. the person entered or remained unlawfully in a building;
  2. the person did so knowingly;
  3. the person did so with the intent to commit any crime inside of that building; and
  4. while (i) effecting entry or (ii) while in the building or (iii) in immediate flight from the building, the person or another participant in the crime causes physical injury to a non-participant in the crime.

140.25(1)(c)
For the government to sustain a conviction for Burglary in the Second Degree (subsection 1-C), the government needs to prove the following four elements beyond a reasonable doubt. The government needs to prove:

  1. the person entered or remained unlawfully in a building;
  2. the person did so knowingly;
  3. the person did so with the intent to commit any crime inside of that building; and
  4. while (i) effecting entry or (ii) while in the dwelling or (iii) in immediate flight from the building, the person or another participant in the crime possessed a dangerous instrument or used or threatened the immediate use of that dangerous instrument.

140.25(1)(d)
For the government to sustain a conviction for Burglary in the Second Degree (subsection 1-D), the government needs to prove the following four elements beyond a reasonable doubt. The government needs to prove:

  1. the person entered or remained unlawfully in a building;
  2. the person did so knowingly;
  3. the person did so with the intent to commit any crime inside of that building; and
  4. while (i) effecting entry or (ii) while in the building or (iii) in immediate flight from the building, the person or another participant in the crime displayed what appeared to be a pistol, revolver, rifle, shotgun, machine gun, or other firearm.

140.25(2)
For the government to sustain a conviction for Burglary in the Second Degree (subsection 2), the government needs to prove the following four elements beyond a reasonable doubt. The government needs to prove:

  1. the person entered or remained unlawfully in a building;
  2. the person did so knowingly;
  3. the person did so with the intent to commit any crime inside of that building; and
  4. that building was a dwelling.
  • Burglary in the Third Degree

Burglary in the Third Degree is codified in Penal Code Section 140.20. It is a class D felony. It is classified as a non-violent felony. There is no minimum period of mandatory incarceration if a person with no prior felony convictions is convicted of Burglary in the Third Degree, however, the maximum period of incarceration is an indeterminate sentence of 2 1/3 - 7 years. An indeterminate sentence is one in which the person is sentenced to a range and the department of corrections determines how much of that range the person must serve before he is eligible for release. If the person has been previously convicted of a prior felony within 10 years of the new conviction, excluding time spent in prison, the minimum period of incarceration is 2 - 4 years and the maximum is 3 1/2 - 7 years. There is no period of mandatory parole after the person is released from custody.

There are no subsections for Burglary in the Third Degree.

140.20 For the government to sustain a conviction for Burglary in the Third Degree, the government needs to prove the following three elements beyond a reasonable doubt. The government needs to prove:

  1. the person entered or remained unlawfully in a building;
  2. the person did so knowingly; and
  3. the person did so with the intent to commit any crime inside of that building.

There are some terms of art that have their own legal definitions.

"Dwelling" means a building which is usually occupied a person lodging at night.

A person enters or remains "unlawfully" when that person has no license or privilege to enter or remain in that dwelling. To have no license or privilege to enter or remain means to have no right, permission or authority to do so.

"Dangerous Instrument" means any instrument, article, or substance, including a vehicle, which, under the circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable of causing death or other serious physical injury.

"Deadly Weapon" means any loaded weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged, or a switchblade knife. gravity knife, pilum ballistic knife, metal knuckle knife, dagger, billy, blackjack, or metal knuckles.

"Physical Injury" means impairment of a person's physical condition or substantial pain.

Accusations of Burglary are very serious. John Buza is an experienced New York criminal defense attorney and is a former Manhattan prosecutor. Do not hesitate to contact him for a free consultation if you, or a loved one, is accused of this crime.