New York Burglary Laws
Overview of New York Burglary Laws
A person is guilty of committing burglary in the third degree - the least of the burglary offenses - when he or she "knowingly enters or remains unlawfully" in a building with the intent to commit a crime therein. "Entry" of a building occurs when a person intrudes within a building, no matter how slightly, with any part of his or her body. Examples of entry include crossing the threshold of a building or reaching an arm through a window. Section 140 of the New York Penal Code states that a person enters or remains on a premises "unlawfully" when he or she "is not licensed or privileged to do so"; the entry need not be forcible in nature.
In essence, burglary can be boiled down to two elements: (1) trespass, or the entry or remaining on property while knowing that such act is unlawful (2) with the specific intent to commit a crime within a building. With regard to the latter element, the prosecution must prove that the defendant intended to commit a crime within the building at the time that he or she unlawfully entered or remained inside it. Thus, a person's mere commission of a crime while unlawfully inside a building does not constitute a burglary; he or she must have also had the contemporaneous intent to commit the crime upon entering or remaining therein.
Third-degree burglary will be elevated to second-degree burglary when the defendant trespasses the building with the requisite specific intent and (a) the building is a dwelling; or (b) while entering the building or in immediate flight, the defendant or a participant in the crime: is armed with explosives or a deadly weapon, causes physical injury to a non-participant, or displays what appears to be a firearm. First-degree burglary occurs when the building is a dwelling and one of the other four aggravating elements for second-degree burglary is present.
- Example: Joseph quit his construction job after a disagreement with a supervisor. He returned to the job site later that day to collect his tools and made no effort to hide his presence. As an afterthought, Joseph decided to take some of his former employer's tools as well. Joseph lacked the requisite intent to steal his employer's tools prior to entering the site.
New York also criminalizes the "possession of burglar's tools" - including tools "commonly used for committing or facilitating offenses involving forcible entry into premises" - when such possession is coupled with the intent (or knowledge of another person's intent) to use the tools in the commission of a burglary, larceny, or theft of services.
Defenses to Burglary Charges
- Lack of intent to trespass
- Lack of intent to commit a crime within the building after committing the initial trespass
- Weapon appearing to be a firearm was not loaded or operable (for first-degree burglary only)
NOTE: "Claim of right" is NOT a defense.
Penalties and Sentences
All degrees of burglary are classified as felony offenses under New York law; second- and first-degree burglary are additionally considered violent felony offenses. The least of the burglary offenses, third-degree burglary, carries a sentence of 3 to 7 years in prison or a fine of either $5,000 or double the defendant's gain from commission of the burglary, whichever is greater. Persons convicted of first-degree burglary will be sentenced to between 10 and 30 years in prison or a fine according to the amount stated for third-degree burglary. The crime of possession of burglar's tools is a class A misdemeanor and subject to a sentence of up to one year or a fine of up to $1,000.
New York Burglary Statute
Burglary and Related Offenses
Penal Code Article 140
Note: State laws are constantly changing -- please contact an attorney or conduct your own legal research to verify the state law(s) you are researching.