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NYC Burglary Lawyers

By Spodek Law Group | March 17, 2021
(Last Updated On: July 26, 2023)

Last Updated on: 26th July 2023, 10:10 pm

Disentangling Burglary & Criminal Trespass in NY Penal Law

Alright, my friend, let’s gym-bunny-hop through the complex maze of New York Penal Laws (NYP), particularly those related to burglary and trespassing. Our esteemed colleague, Todd Spodek of the Spodek Law Group, will be our guide.

First, let’s set the table with some definitions.

“Premises”, you say, well, that’s just the same as a “building.”

A “building” stretches beyond brick and mortar. It could include a structure or vehicle used as lodging, like a school or a mobile home. Fun fact, each unit in a building is both a separate building and part of the main building.

Next, we have “dwelling” which is simply a place someone calls home. “Night”, on the other hand, rolls in thirty minutes after sunset and tiptoes away thirty minutes before sunrise.

Alright, to “enter or remain unlawfully” implies hanging out where you don’t have the rights to. Like crashing a public place with an open invitation unless there’s a big sign saying “Do not enter.” The same rules don’t apply if the building is partly public – you can’t just waltz into the non-publicly accessible areas.

Criminal Trespass & Its Kins

“Trespass” tags you guilty the moment you knowingly step foot and/or decide to loiter in places without authority. It’s a slap-on-the-wrist sort of crime, just a violation, really.

If you want to level-up to “Criminal Trespass in the Third Degree”, you’d have to knowingly waltz into a fenced building, or school or kid’s camp. Or, if it’s in a city populated by over a million and the building is used as a school. Consider this a class B misdemeanor ticket.

Now let’s talk “Second Degree Criminal Trespass”. Fancy label! You earn this title if you knowingly infiltrate a dwelling or violate specific laws related to school buildings, and you’re consciously aware of the potential victim’s presence or past attendance. If you’re lawfully registered as a student, participating in a school event, or a parent of a school-goer, you’re off the hook. A class A misdemeanor right here.

And now, the showstopper “Criminal Trespass in the First Degree.” You’re the star of this crime story if you knowingly encroach upon a building, possess an explosive or deadly weapon, and you are aware that another participant in the crime possesses a firearm. This one’s a class D felony.

Here Comes the Burglaries

Welcome to the world of “Burglary in the Third Degree.” Get ready for a class D felony if you sneak into a property with an intent to commit a criminal act.

Next up is “Burglary in the Second Degree.” This sneak-peak into criminality has your name on it if you break into a place already knowing it’s a crime scene, and while in there, you equip yourself with explosives or a deadly weapon. Or if you harm anyone uninformed about your crime or threaten them, or show a firearm, or simply if the building’s a dwelling. In case you’re wondering, this crime is a class C felony.

Now the grand finale: “Burglary in the First Degree.” To be crowned with this title, you must enter or stay put in a dwelling, all the while scheming to cook up a crime. Plus, you need to be armed with explosives or a deadly weapon or cause harm to an outsider or threaten them with dangerous weapons. This ‘honor’ is branded a class B felony.

Tools and Toys of the Crime

Alright, if you’re bearing any tools, or an instrument, or some other ‘interesting’ items that come in handy for forced break-ins, you might just be dancing with “Possession of Burglar’s Tools.” This offense is treated as a class A misdemeanor.

And finally, we’ve got “Unlawful Possession of Radio Devices.” These are basically those little beauties that can catch wireless transmission on police frequencies or any device that can transmit and catch wireless communications. If you’re seen sporting one intending to use it for a little theft, gambling, or a violation of other particular provisions, you’re ringing the bell for a class B misdemeanor.

Trust me, law canny look complex but when broken down into bite-sized pieces, it turns into an intriguing puzzle. Much easier on the eye, right?

Cracking Open NY Penal Law 140.30: Burglary in the First Degree

Burglary in the First Degree, that’s quite a mouthful! Many imagine a “burglar” scurrying under the cloak of darkness, decked out in black, attempting to infiltrate a business or home. Well, while this may ring true, there’s much more to it when charges are filed. Sure, burglary crimes are universal, but the punishments vary from state to state. It could range from fines to repayments and even jail time.

The first-degree burglary comes into play when the defendant enters a building with a criminal intent. The prosecutor must provide hard evidence, back it up with facts, and convince a judge or a jury beyond a reasonable doubt of the accused’s intent.

Remember, each state, including the Empire State, has difference nuances in laws. For instance, until recent years, burglary was only about unlawfully encroaching a home. But now, the charge applies even if the accused breaks into an uninhabited building, business premises, school buildings, houseboats, and tents. The punishment meter hikes if the building is residential than, let’s say, commercial.

There’s another checklist for first-degree burglary – the accused must invade the premises (home or business) without permission, and the building should be private or public but debars unlawful entry without consent. So, if you boldly break into a publicly owned building aiming to commit a crime in there, that’s a check on the first-degree burglary criterion.

Examples of First-Degree Burglary

For instance, say you break into a home or business, and pocket something valuable before the police come swooping in – that says “first-degree burglary” all over it.

Alternatively, right after you barge into a retail store, and swipe some items from the displays without coughing up the money, you’re putting yourself under the burglary umbrella. Forced entry could be something as simple as attempting to lift a window or fiddling with a doorknob. If you’ve marked your presence at an event with full intent to pilfer, careful there, that’s burglary. If something caught your eye and you impulsively took it without having a plan, well, it just a common theft.

First Degree Burglary Defense

Don’t you worry! Todd Spodek and his team are here to dissect the evidence and determine if criminal intent existed when the act occurred. Plead guilty, and you might face a jail sentence upto 20 years along with heavy fines. One defense argument that may be used is that the accused was compelled to break in and lift items from within. It’s no walk in the park to muster a defense for such crimes, but it may all boil down to establishing that the defendant didn’t commit the act in the first place.

New York Penal Law 140.25: Burglary in the Second Degree

Meet Burglary in the Second Degree, also referred to endearingly as “breaking and entering”. Simply put, it’s the act of infiltrating a premise sans permission with an intent to whip up a crime. If someone legally gains access to a building and then decides to just unceremoniously plant themselves there when asked to vamoose, that’s considered burglary too.

And of course, the crime escalates in severity levels under the New York penal law, with a felony burglary in the second degree being one of them.

Elements of Crime: Burglary in the Second Degree

The second-degree ride is a little thornier; involving more elements beyond simply invading a building with no consent to perform a crime. In specfic, the accused may be carrying a deadly weapon or explosives, displaying a gun, or threatening to use a dangerous instrument. Further, if anyone is injured during the burglary spree, that nudges the offense towards the second degree in New York.

Despite the complexity, the charges for second degree burglary may be leveled when the building in question is a house, apartment, or any overnight shelter. After all, innocent people are subjected to higher risk factors when their premises are burglarized.

Examples of Second-Degree Burglary

Imagine this scenario: an individual has an itch to pocket some slick consumer electronic devices, so they pry open the door of an electronics store post closing. Upon entering, they run into the store owner who’s still there conducting inventory. The individual brandishes a gun at the unsuspecting owner. Now, that’s a classic example of second-degree burglary in action.

Or how about this: an individual shatters a sliding glass door to break into a residential property. Clearly a place where a person stays overnight. The intent?

To make off with some pricey jewelry and other valuables. There you have it—an open-and-shut case of second-degree burglary.

What’s the Sentence for Burglary in the Second Degree?

Allow me to break it down for you. The state of New York tends to play it tough when it comes to second-degree burglary, categorizing it as a violent crime. If you’re found guilty of this offense, you’re staring down the corridor of a minimum sentence of 3.5 years in prison. The maximum on the other hand? That’s 15 years. Ouch! Now, the sentence length beyond the statutory minimum does take into account the specifics surrounding the crime and the defendant’s prior criminal history. Mind you, no matter the circumstances, there’s no escaping the mandatory minimum sentence once convicted.

Building a Defense Against Second-Degree Burglary

Well now, don’t lose hope yet. An expertise-driven, seasoned NYC criminal lawyer like Todd Spodek could just mount a strong enough defense to counter that second-degree burglary charge you’re confronting. There are indeed a few viable defenses.

Think about it. For your case to stand, the prosecutor needs to establish to the court that the alleged weapon was indeed deadly. Let’s say it’s a dull butter knife; it’s hardly likely to qualify as a ‘deadly weapon’ for the purposes of a second-degree burglary case.

Also, if the prosecutor is trumpeting the fact that the defendant caused bodily harm to someone, the emphasis is on the extent of injury. A minor bruise or scrape doesn’t fit the bill. According to the New York Penal Law, the physical injury needs to be substantial to meet the definition required for a second-degree burglary.

New York Penal Law 140.20: Burglary in the Third Degree

Right on to Burglary in the Third Degree, a less hardcore version of its two predecessors. This generally involves unlawful entry into another person’s property with intent to commit a crime, typically theft of property or money. It’s a felony, lower on the severity scale but a felony nonetheless.

Under New York Penal Law Section 140.20, there has to be concrete evidence that you were unlawfully on or in the premises and pre-meditatedly so. Meaning, at the time of entering the premises, you planned to commit a crime. Just forcing entry onto someone else’s property is trespassing, not burglary.

An inside View of Third-Degree Burglary per NYP Law Section 140.20

For instance, imagine a man sneaking into his ex-wife’s house through the back door, which he knew was often unlocked. He’s carrying a dog leash and is intent on stealing the dog that they cherished during their marriage. The man scoops up the dog and exits the house as quietly as he entered. This scenario could come under the purview of third-degree burglary because the man not only unlawfully entered his ex-wife’s house but also carried a dog leash as a clear indication that he planned to steal her dog.

On the contrary, if the man just entered his ex-wife’s house but didn’t take the dog or any other material belongings, the case would be one of trespassing, not burglary.

Defending Yourself against a Third-Degree Burglary Charge

One of the primary defenses that Todd Spodek and his squad might use is to prove that although you were unlawfully on the premises, you held no intention to commit burglary or even any other crime. Imagine you were shopping late into the evening at a supermarket and got locked inside the building after closing time. Essentially, you were at the premises lawfully and didn’t intend to commit a crime of any sort.

The Repercussions of Third-Degree Burglary

Burglary in the third degree is classified as a Class D felony. So, if you’re found guilty, you’re looking at the maximum sentence of seven years in prison. Now, the length of the prison term would depend on whether you have a prior criminal record. No prior convictions or none for the past 10 years might mean no prison term at all, only probation. However, if you’ve been a “bad boy” with at least one felony conviction in the past 10 years, the judge may sentence a minimum of two to four years in prison.

Well, now you’ve gotten an inside look into burglary and criminal trespass according to New York Penal Law. As daunting as it may first appear, everything boils down to intentions, evidence, and the expertise of a skilled lawyer like Todd Spodek.

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