Burglary is a type of crime that oftentimes is called breaking and entering. In general terms, burglary is entering a building without permission and to commit a crime. In addition, a person could be guilty of burglary if he or she entered a building legally, but then refused to leave when requested to do so.
The Elements of the Crime of Burglary in the Second Degree
Burglary in the second degree involves other potential elements beyond entering into a building without permission and to commit a crime. The other elements include the perpetrator carrying a deadly weapon or explosives, displayed a gun, or threatened to use a dangerous instrument. In addition, injuring someone during the course of a burglary also categorizes the crime as burglary in the second degree in New York.
A person can be charged with burglary in the second degree, whether or not these additional elements are present, if the building is classified as a house, apartment, or any other type of premise in which people stay overnight. The theory is that these types of premises expose innocent people to higher levels of risk when burglarized.
Examples of Burglary in the Second Degree
An example of burglary in the second degree is the case of a person who pries open the door to a electronics store after hours. The individuals taking this action intends to steal some consumer electronic devices.
When entering the building, the individual who entered without permission encounters the store owner, who was still on site. The person breaking and entering pulls a gun on the store owner.
Another example involves an individual that breaks a sliding glass door to a residence, which obviously is a place where a person stays overnight. The person who broke into the home intends to steal jewelry and other valuable items from the premises.
Sentence for Burglary in the Second Degree
Because burglary in the second degree is classified as a violent crime in New York, a person convicted of this offense faces a minimum sentence of 3.5 years in prison in any case. The maximum sentence is 15 years incarcerated. The circumstances surrounding the crime, together with a defendant’s criminal history, govern the length of the sentence beyond the statutory minimum. No matter the circumstances, when a person is convicted of this crime, there is no way around the mandatory minimum sentence enumerated in the New York Penal Law.
Defenses to Burglary in the Second Degree
An example of a defense centers on a case in which an allegation that a deadly weapon was used. The prosecutor is required to prove that the so-called weapon used in perpetrating the burglary was in fact deadly. A dull butter knife is not likely to meet the definition of a deadly weapon for the purposes of a case of burglary in the second degree.
If the case centers on a contention that the perpetrator caused bodily harm to someone, the physical injury must be significant enough to meet the definition of physical injury as contained in the New York Penal Law. In other words, it cannot be a minor bruise or scrape, but rather something more substantial to qualify as a physical injury for the purpose of the second degree burglary law.
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