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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

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 a New York criminal attorney or conduct your own legal research to verify the state law(s) you are researching.

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