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New York Penal Law 140 25 Burglary Second Degree

By Spodek Law Group | July 17, 2023
(Last Updated On: October 18, 2023)

Last Updated on: 18th October 2023, 09:01 am

New York Penal Law 140.25 Burglary Second Degree

Burglary is a serious crime in New York that involves unlawfully entering or remaining in a building with the intent to commit a crime inside. Burglary Second Degree, specifically, is covered under New York Penal Law 140.25 and is a Class C felony, carrying substantial penalties.

Overview of Burglary Second Degree

To be convicted of Burglary Second Degree, the prosecution must prove the following elements beyond a reasonable doubt:

  • The defendant knowingly entered or remained unlawfully in a building
  • The defendant had the intent to commit a crime inside the building
  • While entering, inside, or in immediate flight from the building, the defendant or another participant in the crime:
    • Was armed with explosives or a deadly weapon
    • Caused physical injury to a non-participant
    • Used or threatened to use a dangerous instrument
    • Displayed what appeared to be a firearm
  • Or, the building was a dwelling

Some key points:

  • “Knowingly” means being aware one’s entry or remaining is unlawful[1].
  • “Unlawfully” means without license or privilege to enter or remain[1].
  • “Intent to commit a crime” means conscious objective to commit any crime, not a specific crime[2].
  • “Dwelling” means a building for overnight lodging like an apartment[1].


Burglary Second Degree is a Class C violent felony[1]. The potential sentences are:

  • Minimum prison sentence of 3.5 years
  • Maximum prison sentence of 15 years
  • Fines up to $5,000 or double the amount of the proceeds of the crime[3]

With a prior felony conviction in the past 10 years, the minimum increases to 5-7 years depending on the nature of the prior conviction[3].


Here are some examples of acts that could lead to a Burglary Second Degree charge[2][4]:

  • Breaking into an electronics store at night while armed with a gun
  • Entering someone’s home through an unlocked window and assaulting the resident
  • Remaining hidden in a department store after closing and stealing merchandise
  • Entering an apartment unlawfully while displaying what appears to be a firearm


There are several potential defenses to Burglary Second Degree[2]:

  • The building was not actually a dwelling
  • The defendant had a license or privilege to enter the building
  • The defendant did not have intent to commit any crime inside
  • The weapon was not actually deadly or dangerous
  • The injury inflicted did not meet the legal definition of “physical injury”


A Burglary Second Degree conviction remains on one’s criminal record permanently and can impact[4]:

  • Future employment opportunities, as employers do background checks
  • Eligibility for professional licenses
  • Immigration status for non-citizens
  • Ability to receive government benefits like public housing

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