Burglary: NY Penal Law Article 140

July 17, 2014

Article 140 of the Penal Law generally encompasses two separate but related crimes: trespass and burglary.  This article will focus primarily on burglary.

When most people think of a burglary, they most likely conjure up an image of unshaven black-capped and masked marauders sneaking about someone’s home in the middle of the night carrying flashlights and pillow cases with the family valuables clanking around inside.  The essence of that scenario may, in fact, constitute a burglary offense (I say “may” since I am a criminal defense attorney after all, and I would certainly need more facts to make an accurate assessment!).  But there are a few other ways that can get you jammed up on a burglary charge, too.

There are three “levels” of burglary in New York: Burglary 3rd, Burglary 2nd and Burglary 1st, all three of which are felonies.

Penal Law (“PL”) Section 140.20Burglary 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.

Potential Incarceration for a first offender: 0 to 7 years in state prison.

As with most words in New York statutes, the word “building” as used here has its own definition.  In addition to the ordinary meaning of the word, PL Sec. 140.00(2) includes any of the following as a “building”:

            Any structure, vehicle or watercraft

o   used for overnight lodging or persons, or

o   used by persons for carrying on business therein, or

o   used as an elementary school or secondary school, or

o   an inclosed [sic] motor truck trailer.    

PL 140.25Burglary 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. Is armed with explosives or a deadly weapon; or
  3. Causes physical injury to any person who is not a participant in the crime; or
  4. Uses or threatens the immediate use of a dangerous instrument; or
  5. Displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; or
  6. The building is a dwelling.

Burglary in the second degree is a class C violent felony.

Potential Incarceration for a first offender: 3 ½ to 15 years in state prison.

Long story short, it is a far more serious offense if someone commits the offense of Burg 3 with the added element of a weapon, the threat of force, or does so in a dwelling (which is simply defined as a building which is usually occupied by a person lodging therein at night, PL 140.00(3)).

PL 140.30: Burglary in the first degree:

            A person is guilty of burglary in the second 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.

Burglary in the first degree is a class B violent felony.

Potential Incarceration for a first offender: 5 to 25 years in state prison.

It is an affirmative defense to a prosecution for Burglary 1st that the firearm was not loaded or capable of discharging a round.  Even if proven, however, that does not avoid a possible conviction for the lesser included offenses of Burg 2 or Burg 3.

All it takes to jump from a Burg 2 to a Burg 1 is the added element that a Burg 2 be committed in a dwelling.

Burglary is a serious offense that requires the knowledge and experience to mount a serious defense.  If you or someone you care about has been charged with Burglary, call the criminal defense attorneys atCatalano & Carpenter LLP at (845) 454-1919 to schedule a free consult today.