Burglary

When is Best Time to Act?

Given the high risk involved with a burglary charge, it is important to seek experienced counsel if you are the subject of an investigation or are detained by law enforcement.

Types of Crimes & Charges

Burglary charges can involve a number of ancillary crimes including the underlying crime committed with the building or dwelling unlawfully entered. For example, an offender enters a dwelling and assaults the occupant prior to committing larceny in the house. The burglary charge would also include the assault charge and related larceny.

Criminal Schemes

Burglary schemes can involve individual offenders or those acting in concert in sophisticated schemes involving a large number of crimes. More sophisticated schemes can employ a number of individuals providing surveillance and information on potential targets.

Related Crimes

The New York Penal Law contains a number of offenses related to burglary including:

Section 140.35, Possession of burglar’s tools, states: A person is guilty of possession of burglar’s tools when he possesses any tool, instrument or other article adapted, designed or commonly used for committing or facilitating offenses involving forcible entry into premises, or offenses involving larceny by a physical taking, or offenses involving theft of services as defined in subdivisions four, five and six of section 165.15, under circumstances evincing an intent to use or knowledge that some person intends to use the same in the commission of an offense of such character.

Criminal trespass, another related offense generally involves the same conduct as burglary absent the intent to commit a crime therein element. Section 140.10, Criminal trespass in the third degree, states: A person is guilty of criminal trespass in the third degree when he knowingly enters or remains unlawfully in a building or upon real property:

1. which is fenced or otherwise enclosed in a manner designed to exclude intruders; or
2. where the building is utilized as an elementary or secondary school or a children’s overnight camp as defined in section one thousand three hundred ninety-two of the public health law or a summer day camp as defined in section one thousand three hundred [fig 2] ninety-two of the public health law in violation of conspicuously posted rules or regulations governing entry and use thereof; or
3. located within a city with a population in excess of one million and where the building or real property is utilized as an elementary or secondary school in violation of a personally communicated request to leave the premises from a principal, custodian or other person in charge thereof; or
4. located outside of a city with a population in excess of one million and where the building or real property is utilized as an elementary or secondary school in violation of a personally communicated request to leave the premises from a principal, custodian, school board member or trustee, or other person in charge thereof; or
5. where the building is used as a public housing project in violation of conspicuously posted rules or regulations governing entry and use thereof; or
6. where a building is used as a public housing project in violation of a personally communicated request to leave the premises from a housing police officer or other person in charge thereof; or
7. where the property consists of a right-of-way or yard of a railroad or rapid transit railroad which has been designated and conspicuously posted as a no-trespass railroad zone, pursuant to section eighty-three-b of the railroad law, by the city or county in which such property is located.Regulations/Legislation

New York law contains three degrees of burglary S 140.20 Burglary in the third degree. A person is guilty of burglary in the third degree when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein. Burglary in the third degree is a class D felony. S 140.25 Burglary in the second degree. A person is guilty of burglary in the second degree when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein, and when:

1. In effecting entry or while in the building or in immediate flight therefrom, he or another participant in the crime:
2. In effecting entry or while in the building or in immediate flight therefrom, he or another participant in the crime:
   1. 1. Is armed with explosives or a deadly weapon; or
      2. Causes physical injury to any person who is not a participant in the crime; or
3. In effecting entry or while in the building or in immediate flight therefrom, he or another participant in the crime:
   1. 1. Is armed with explosives or a deadly weapon; or
      2. Causes physical injury to any person who is not a participant in the crime; or
      3. Uses or threatens the immediate use of a dangerous instrument; or
      4. Displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; or.
      5. The building is a dwelling.

Burglary in the second degree is a class C felony.

S 140.30 Burglary in the first degree. A person is guilty of burglary in the first degree when he knowingly enters or remains unlawfully in a dwelling with intent to commit a crime therein, and when, in effecting entry or while in the dwelling or in immediate flight therefrom, he or another participant in the crime:

1. Is armed with explosives or a deadly weapon; or
2. Causes physical injury to any person who is not a participant in the crime; or
3. Uses or threatens the immediate use of a dangerous instrument; or
4. Displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, could be discharged. Nothing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, burglary in the second degree, burglary in the third degree or any other crime. Burglary in the first degree is a class B felony.

Penalties & Punishment

New York has three degrees of burglary: first degree, second degree and third degree. The possible sentences for a first-degree burglary conviction range from one to 25 years. Second-degree burglary is subject to a one to 15 year sentence, and judges can set any third degree burglary sentence up to seven years.

Successful Defense

Defenses to a burglary charge can rest on a number of strategies including challenging the intent element, which requires that the prosecution prove an intent to commit a crime within the dwelling being entered. If successful, this could lower the charge to trespass.

Differences between State & Federal Charges

State law generally governs burglary offenses unless Federal jurisdiction is triggered through certain offenses. For example, burglarizing a financial institution or post offices would trigger Federal jurisdiction.

High Profile/ Govt. cases

Statistics on burglary arrests in New York indicate that over the last five years incidence of these crimes has reduced significantly. However, despite the fact that fewer offenses are occurring the penalties under state and federal law remain high especially when aggravating factors are present.