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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: July 27, 2023)

Last Updated on: 27th July 2023, 04:35 pm

An In-Depth Look at New York Penal Law § 140.30 – Burglary First Degree

Burglary is no joke in New York. Enter the wrong building with the wrong mindset, and you could find yourself slapped with a first-degree burglary charge. Believe me, I’ve seen it enough times from guys thinking they could get away with a quick 5-finger discount at the bodega on the corner. But NY penal law § 140.30 doesn’t mess around when it comes to burglary in the first degree. This isn’t taking some gum from the checkout aisle – it’s a Class B Felony that could land you serious prison time. So before you get any bright ideas, let’s take a closer look at what exactly constitutes burglary in the first degree in New York.

The Core Elements

Under § 140.30, a person is guilty of burglary in the first degree when they 1) knowingly enter or remain unlawfully in a dwelling, 2) with intent to commit a crime therein, 3) when another person who is not a participant in the crime is actually present.

That’s a mouthful, so let’s break it down:

Knowingly Enter or Remain Unlawfully – This means you intentionally entered somewhere you’re not supposed to be or stayed somewhere illegally. No “oops wrong door” excuses here.

In a Dwelling – The location matters. We’re talking about a residence here, not a store or office building.

With Intent to Commit a Crime– You can’t just be there by accident or killing time. You have to have a criminal purpose for being there, whether it’s theft, assault, or whatever other unlawful act your deviant mind can dream up.

When Another Person is Present – There must be someone else in the dwelling when you enter or remain with intent to commit your criminal act. They don’t have to see you or interact with you, just be present somewhere on the premises.

Grading Burglary First Degree

All first-degree burglaries are Class B felonies, carrying potential prison sentences of 1-25 years. But within that Class B range, first-degree burglary can also be graded based on other circumstances:

B Violent Felony – If you’re armed with explosives or a deadly weapon during the burglary, it becomes a Class B Violent Felony, subject to even stiffer sentencing.

B Violent Felony with Extended Term – A first-degree burglary can jump to a Class B Violent Felony with Extended Term if any of the following apply:
– Previous conviction for burglary 1st or 2nd degree
– Previous violent felony conviction within 10 years
– Age 21+ and previous violent felony conviction

We’re talking up to life in prison if extended sentencing applies. Not the place you want to find yourself for a botched cat burglary job.

Real World Examples

Let’s look at some real world examples of how first-degree burglary charges have played out in New York courts.

In People v. Lewis, the defendant was charged with first-degree burglary after entering the apartment of his ex-girlfriend armed with a handgun and threatening her and her new boyfriend. Luckily no one was injured, but with the deadly weapon involved, Lewis was convicted of a Class B Violent Felony with up to 25 years in prison.1

Another case, People v. Cahill, involved a man who broke into his neighbor’s home at night while she was sleeping. When she woke up and confronted him, Cahill assaulted and attempted to rape the victim. He was convicted on multiple violent felonies, including first-degree burglary as a sexually motivated offense.2

As you can see, first-degree burglary is not taken lightly and can compound with other serious felonies. Even if you “just” intend property theft, the presence of residents escalates the crime substantially in the eyes of New York law.

Defending Against First-Degree Burglary Charges

So you got caught up in the wrong place at the wrong time and now face a first-degree burglary charge. Or maybe you had a lapse in judgment during a rough patch in life. Regardless of the circumstances, a skilled New York criminal defense attorney can still fight these charges and potentially avoid the huge penalties involved.

Here are some of the most common strategies we use for defending first-degree burglary allegations:

Contesting the “Intent” Element

Recall that intent to commit a crime inside the dwelling is a key component of first-degree burglary. We may argue you had no actual intent to steal or harm anyone upon entering the building. Maybe you were under the mistaken impression you had permission to enter or were so intoxicated you did not realize the unlawful nature of your actions. Challenging this intent element could get the charges dropped or reduced.

Questioning the Lawfulness of Entry

Certain circumstances exist where you may have a valid legal purpose for entering the dwelling, negating any unlawful entry allegations. For instance, if you had a key given by the owner or reasonably believed you had an ongoing right to enter the property. We can argue the entry was lawful in these cases.

Disputing the Occupancy Status

A key distinction between first and second-degree burglary is whether occupants were present. We can argue that no one else was actually in the residence when you entered, even if the indictment claims otherwise. With no proof of other occupants, the charges may be lowered to second-degree.

Negotiating a Plea Bargain

Rather than risk trial, we may be able to negotiate a favorable plea deal for reduced charges. Some options are:

  • Plead to second-degree burglary or attempted burglary
  • Plead to lesser felony like criminal trespass
  • Plead to misdemeanor charges only

The facts of your case will determine whether a plea bargain is possible. But skilled negotiations could lead to dramatically lower penalties.

Seeking Treatment Alternatives

For those with substance abuse issues, mental health conditions, or suffering extreme hardship, we can advocate for alternatives to incarceration. Drug or alcohol treatment programs, community service, probation, and other diversion programs are potential options we would pursue instead of prison.

Finding the Right Criminal Defense for First-Degree Burglary Charges

Navigating a serious felony charge like first-degree burglary is daunting without an advocate in your corner. The legal team at Spodek Law Group has collectively defended hundreds of complex burglary cases and obtained outstanding results for clients facing decades in prison.

Through aggressive litigation, masterful negotiation skills, and a thorough knowledge of New York penal code, attorney Todd Spodek has achieved full dismissals of burglary indictments, plea deals to non-criminal violations, and mitigated sentences involving no jail time in many first-degree burglary cases.

Don’t go it alone against the power of the NY criminal justice system. Reach out for a free case review and put an experienced burglar attorney on your side today. Mr. Spodek is always available 24/7 at (212) 300-5196 to assess your situation and discuss the best defense strategies. Consultations are confidential.

With the right criminal defense, a burglary charge does not need to define you. Our goal is securing your freedom, keeping clean record, and letting you move on with your life unencumbered. Have hope, stay positive, and make the call today that could make all the difference in your case.


  1. People v. Lewis – Casetext
  2. People v Cahill – NY Court of Appeals (2017)

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