Burglary (NYPL 140.20)

Like criminal mischief, criminal trespass and arson, burglary is a crime against property.  It involves unlawfully entering or remaining in a building in order to commit a crime.  It is commonly referred to as “breaking and entering.”

However, in order to commit this crime, it is not necessary that you actually break into the building.  For example, suppose you are in a building lawfully and then are instructed to leave by someone with the authority to do so.  If you fail to leave, then you would have remained on the property illegally.   There are three degrees of the crime of burglary:  burglary in the third degree, second degree and first degree.  Each is a felony and is considered a crime involving moral turpitude under immigration laws. In fact, the Board of Immigration Appeals (BIA) consistently held that the offense of third-degree burglary in New York involved moral turpitude. Matter of M-, 2 I&N Dec.

Burglary in the third degree

Burglary in the third degree has two elements:  unlawfully entering or remaining in a building and having the intent to commit a crime in the building.  It is commonly believe that burglary involves entering a building in order to commit the crime of theft.  That is not the case in New York.  You will have committed the crime of burglary if your intent to enter and remain in a building is to commit any type of crime, not just theft.  It is a Class D felony.  N.Y. Pen. Law § 140.20

Burglary in the second degree

The seriousness of a burglary rises to the level of second degree burglary if you are armed with explosives or a deadly weapon, you display a firearm, you use or threaten to use a dangerous instrument, or you injure someone who is not an accomplice.  In addition, you will be charged with burglary in the second degree if the building you enter or remain in unlawfully is a dwelling.  A dwelling is a place where people stay overnight.  In the context of a burglary, it typically refers to a residence.  It is a Class C felony.  N.Y. Pen. Law § 140.20

Burglary in the first degree

The most serious burglary offense is burglary in the first degree.  It is the similar to burglary in the second degree except that for burglary in the first degree the building involved must be a dwelling and a deadly weapon, firearm;  dangerous instrument must have been used;   or someone must have been physically injured.  It is a Class B felony.  N.Y. Pen. Law § 140.20.  However, the statute also provides that a defense to a burglary in the first degree charge is that the firearm displayed was not loaded.

A conviction on any burglary charge could mean prison for a number of years.  In fact, if you are convicted of burglary in the first degree you could be sent to prison for up to 25 years.   Thus, if you are charged with burglary it is important that you contact and experienced New York burglary lawyer how understands the New York criminal justice system and who will vigorously defend you until your case is resolved.