Under New York law, burglary is always considered a felony, either in the first, second or third degree. The crime involves an allegation that a person knowingly enters or remains unlawfully in a building with the intention to commit a crime in the building. It is not necessary that the illegal entry involve a "breaking" into the building.
The crime of burglary is separate and distinct from any crime that a person might commit while inside the building. New York law provides that the crime of burglary is complete when a person knowingly enters or remains in a building unlawfully and does so with the intent to commit a crime in the building, regardless of whether that person ever commits, or even attempts to commit, any crime in the building.
Queens Burglary Charge Lawyer
If you have been charged with burglary contact an experienced criminal defense attorney for any burglary charge in New York City including Queens, Brooklyn, Manhattan, and The Bronx. Rochelle Berliner is experienced in representing clients charged with burglary in the greater New York City area.
With offices conveniently located in Queens, give the Law Office of Rochelle S. Berliner a call to discuss the facts of your case.
New York Burglary Information Center
- Definitions for the Burglary Statute in New York
- Even Remaining in a Building Can Result in a Burglary Charge
- Burglary in the Third Degree
- Burglary in the Second Degree
- Burglary of a Dwelling in the First Degree
- Related Charges
For purposes of the burglary statute, New York law defines the term "building" to including any vehicle, structure, or watercraft "used for overnight lodging of persons, or used by persons for carrying on business therein, or used as an elementary or secondary school, or an inclosed motor truck, or an inclosed motor truck trailer."
The standard jury instructions for the criminal charge of burglary also include the following explanation: "Where a building consists of two or more units separately secured or occupied, each unit shall be deemed both a separate in itself and a part of the main building.
The term "unlawfully" means that a person enters or remains unlawfully in a building when the person has no license or privilege to enter or remain in that building. To have no license or privilege to enter or remain is defined to mean that the person has no authority, permission or right to enter or remain in the building.
The term "knowingly" is defined in the context of New York's burglary statute is defined to mean that the person enters or remains unlawfully in a building when that person is aware that he or she is entering or remaining in such building without license or privilege to do so.
New York defines the term "intent" to mean that a person has a "conscious objective or purpose" to commit a crime in that building.
Under New York law, a person who, regardless of his or her intent, enters or remains in or upon premises which are at the time open to the public does so with license and privilege unless he or she defies a lawful order not to enter or remain, personally communicated to him or her by the owner of such premises or other authorized person.
A privilege or license to enter or remain in a building which is only partly open to the public is not a license or privilege to enter or remain in that part of the building which is not open to the public.
Burglary in the third degree is a Class "D" felony under New York Penal Law 140.20. Under New York law, the crime of burglary in the third degree can be alleged when a person knowingly enters or remains unlawfully in a building with the intent to commit a crime in that building.
New York law provides for four different types of burglary charges that are considered to be burglary in the second degree or Class "C" felonies.
For example, New York Penal Law 140.25(1)(a) provides for enhanced penalties making the offense a Class "C" felony if the burglary offense involves an allegation that the person accused became armed with a deadly weapon or explosives while committing the burglary. For purposes of the burglary statute, the term "deadly weapon" means any loaded weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged such as a firearm or certain types of knives.
Burglary in the second degree can also be a Class "C" felony under New York Penal Law 140.25(1)(b) when it is alleged that the person causes physical injury to another person while committing the burglary. For purposes of New York's burglary law, the term "physical injury" is broadly defined to include any impairment of physical condition or substantial pain.
It is also a burglary in the second degree under New York Penal Law 140.25(1)(c) if the person uses or threatens the immediate use of a dangerous instrument while committing the burglary. The term "dangerous instrument" is defined to mean "any instrument, article or substance (including a vehicle) which, under the circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable of causing death or other serious physical injury, that is, serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ. Under that definition, death or other serious physical injury need not in fact be caused.
The fourth type of crime considered a burglary in the second degree involves an allegation that the burglary was committed in a building that qualifies as a "dwelling." Burglary of a dwelling is charged under New York Penal Law 140.25(2) and is considered a Class "C" felony.
The most serious allegations of burglary are those that occur within a dwelling. These crimes considered burglary in the first degree which is a Class "B" felony under certain conditions. A burglary in the first degree can be alleged in any of the following circumstances:
- the burglary of a dwelling occurred while the person or another participant in the burglary is armed with a deadly weapon or explosives;
- the burglary of a dwelling caused another person to be physically injured;
- the burglary of a dwelling involved the use of a dangerous instrument; or
- the burglary of a dwelling involved the display of a firearm.
Possession of Burglar's Tools - Read more about the penalties and punishments imposed under the laws of New York for possession of burglary tools under New York Penal Law Section 140.35, a Class "A" misdemeanor. Other related charges include trespass, criminal trespass, and unlawful possession of radio devices.
The Law Office of Rochelle S. Berliner | Burglar Arrest Lawyer in Queens
It's imperative that you consider all of your legal options as soon as possible, and certainly before agreeing to any deal made with the prosecution. An arrest for any property crime in New York does not mean that conviction is automatic.
With the assistance of an experienced Queens criminal defense attorney, you can fight for your freedom and help clear you name. Call the Law Office of Rochelle S. Berliner today at 718-261-5600 or submit an online form to receive a free consultation.
Rochelle Berliner grew up in Queens, NY. She started New York Law School in January 1989 and graduated in June 1991. Immediately after law school, she started working at the New York County District Attorney’s Office, where she stayed for approximately 14 years...
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