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New York Penal Law %c2%a7 140 30 Burglary First Degree

By Spodek Law Group | July 17, 2023
(Last Updated On: October 13, 2023)

Last Updated on: 13th October 2023, 06:20 am

New York Penal Law §140.30 defines the crime of Burglary in the First Degree, which is the most serious degree of burglary offense in New York. This article provides a comprehensive overview of this law – what constitutes Burglary First Degree, the elements that must be proven, defenses, penalties, and more.

What is Burglary First Degree?

Burglary First Degree is committed when a person knowingly and unlawfully enters or remains in a dwelling with the intent to commit a crime inside, and either:

  • They or another participant are armed with explosives or a deadly weapon, OR
  • They or another participant cause physical injury to a non-participant, OR
  • They or another participant threaten immediate use of a dangerous instrument, OR
  • They or another participant display what appears to be a firearm

So in summary, Burglary First Degree involves illegally entering a home, being armed or causing injury, and intending to commit another crime inside. It is a Class B violent felony.

Elements of Burglary First Degree

For a prosecutor to convict someone of Burglary First Degree, they must prove these elements beyond a reasonable doubt:

  • Knowingly and unlawfully entered or remained in a dwelling: The defendant knowingly and unlawfully entered or stayed inside the dwelling of another person, without permission or legal right.
  • Intent to commit a crime: The defendant intended to commit a separate crime inside the dwelling at the time of entry. This crime could be theft, assault, or any other criminal offense.
  • Armed with explosives/deadly weapon OR caused injury OR threatened dangerous instrument OR displayed firearm: While entering, inside, or fleeing the dwelling, the defendant or another participant was armed with explosives or a deadly weapon, OR caused physical injury to a non-participant, OR threatened use of a dangerous instrument, OR displayed what appeared to be a firearm.
  • Dwelling: The building entered was a dwelling, meaning a place where someone lives/sleeps at night.

Real World Examples

Here are some real world examples of acts that could lead to a Burglary First Degree charge:

  • John breaks into Jane’s home at night armed with a gun, planning to steal her jewelry. This meets all elements – knowingly/unlawfully entered a dwelling, intended to commit theft inside, was armed with a deadly weapon.
  • Mark forces open the door to Steve’s apartment and attacks Steve inside with a knife, causing severe cuts. This fulfills the requirements – knowingly/unlawfully entered dwelling, caused physical injury to non-participant.
  • Alex climbs through Jessica’s bedroom window at 3am wielding a metal bat, threatening to beat Jessica if she doesn’t give him money. Alex knowingly/unlawfully entered dwelling, threatened use of dangerous instrument (bat).

Defenses to Burglary First Degree

Some potential defenses to Burglary First Degree charges include:

  • No unlawful entry: The defendant had permission or legal right to be inside the dwelling, so entry was lawful. For example, the owner invited them in.
  • No intent to commit crime: The defendant entered the dwelling, but did not have any intent to commit a crime inside at the time of entry.
  • Weapon wasn’t operable/loaded: If the weapon wasn’t actually operable or loaded, this can be an affirmative defense (for the armed with deadly weapon element).
  • Misidentification: The defendant argues they were mistakenly identified and were not actually the person who committed the crime.
  • Duress: The defendant only entered/remained unlawfully under threat of immediate physical harm, which could excuse the crime.

Penalties and Sentencing

Burglary First Degree is a Class B felony, which carries the following penalties:

  • Up to 25 years in state prison.
  • Mandatory minimum sentence of 5 years in prison, since it is a violent felony.
  • Fines up to the greater of $5,000 or double the amount of the defendant’s gain from the crime.

Sentencing enhancements:

  • Prior felonies can increase prison time up to life imprisonment.
  • Hate crime conviction can extend sentence.
  • Persistent violent felony offender status can enhance sentence up to life imprisonment.

Other consequences:

  • Violent felony conviction remains on record permanently.
  • May affect immigration status for non-citizens.
  • Civil lawsuit for injury/damages from victim possible.
  • Loss of certain professional licenses possible.
  • Probation unlikely due to violent felony status.

Other related burglary offenses in New York include:

  • Burglary Second Degree (PL §140.25): Knowingly/unlawfully enters dwelling with intent to commit crime inside. D felony.
  • Burglary Third Degree (PL §140.20): Knowingly/unlawfully enters building (not just dwelling) with intent to commit crime inside. D felony.
  • Criminal Trespass First Degree (PL §140.17): Knowingly/unlawfully enters building and either possesses weapon or knows another participant does. D felony.
  • Criminal Trespass Second Degree (PL §140.15): Knowingly/unlawfully enters dwelling. A misdemeanor.
  • Criminal Trespass Third Degree (PL §140.10): Knowingly enters/remains unlawfully on property. B misdemeanor.
  • Possession of Burglar’s Tools (PL §140.35): Possesses tools adapted for burglary/theft. A misdemeanor.

Burglary does not require anything be stolen, unlike larceny or robbery charges. But burglary, larceny, and other theft charges can be brought together when appropriate based on the crime committed.

Federal Charges

In some cases, Burglary First Degree may also constitute a federal crime, such as:

  • Interstate Burglary (18 U.S. Code § 2117): Transporting stolen property across state lines after illegally entering a dwelling or committing burglary. Up to 10 years prison.
  • Burglary Involving Controlled Substances (18 U.S. Code § 2118): Illegally entering a pharmacy/other facility to steal controlled substances. Up to 20 years prison.
  • Burglary of Firearms (18 U.S. Code § 922(u)): Stealing firearms that have moved interstate/overseas during a burglary. Up to 10 years prison.

Federal charges may run consecutively with state charges.

Consulting a Lawyer

If you have been charged with Burglary First Degree or any other burglary offense in New York, it is critical to consult with an experienced criminal defense attorney immediately. An attorney can assess the details of your case and build the strongest defenses. They can also negotiate with prosecutors for reduced charges or sentencing leniency when possible. Don’t wait to get legal help – a skilled lawyer can make all the difference in achieving the best resolution to your case. Many offer free consultations, so contact a local criminal defense lawyer today.





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