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Burglary and Trespass


Key Penal Law Provisions:

  • Burglary in the third degree – PL 140.20, a class D felony
  • Burglary in the second degree – PL 140.25, a class C felony
  • Burglary in the first degree – PL 140.30, a class B felony
  • Possession of burglar’s tools – PL 140.35, a class A misdemeanor
  • Building, PL 140.00(2)
  • Dwelling, PL 140.00(3)

Third-degree burglary is the garden-variety burglary charge used in cases where a person is accused of knowingly entering or remaining unlawfully in a building with intent to commit a crime therein. PL 140.20. There are many common misconceptions about the crime of burglary. Oftentimes when people think of burglary, an image of a person breaking and entering through a locked door or an open window comes to mind, more likely than not at night, and of who intends to steal something of value from the residence. New York’s burglary statute, however, covers a much more broad spectrum of activity. For instance, the conduct can take place at any hour of day, even in broad daylight. Furthermore, the definition of “building” includes not only residences, office spaces, warehouses, and other ‘buildings’ in the dictionary-definition sense, it also includes trucks and vehicles used for business. PL 140.00(2). Moreover, no “breaking and entering” need apply; entering through an unlocked door may suffice. Another point to note is that the crime that the person intends to commit inside the building does not have to be larceny. It can be any crime defined in the penal law. Thus, a multitude of different conduct may give rise to burglary charges.

Differences in degree of burglary charges are due the presence or absence of certain aggravating factors in the given matter. A third-degree burglary can become a second-degree burglary if the accused is armed with explosives or a deadly weapon, threatens the immediate use of a dangerous instrument, displays what appears to be a firearm, causes physical injury to a person who is not a participant in the crime, PL 140.25 (1) or if the “building” at issue is a “dwelling.” PL 140.25 (2), PL 140.00(2), (3). Burglary in the first degree may be charged if a person commits a second-degree burglary under subsection (1) and where the “building” at issue is a “dwelling.” PL 140.30.

Criminal Trespass

Key Penal Law Provisions:

  • Criminal trespass in the third degree – PL 140.10, a class B misdemeanor
  • Criminal trespass in the second degree – PL 14.15, a class A misdemeanor
  • Criminal trespass in the first degree – PL 140.17, a class D felony
  • Trespass – PL 140.05, a violation
  • Premises – PL 140.00(1)

There are four degrees of trespass known to New York law, three of which expose those charged to a criminal record. Simple “trespass” is defined as the knowing entering or remaining unlawfully in or upon premises. The definition of “premises” includes the term “building,” as defined in subsection 2 of PL 140.00, and, in addition, any other kind of real property. Trespass can become a class B misdemeanor crime where certain aggravating factors are present, for instance, where the premises at issue is a fenced in area, PL 140.10(a), a school or children’s overnight camp, PL 140.10(b), or in cases where a person violates an officially-posted sign pursuant to a “trespass affidavit” or other such program, PL 140.10(e). Criminal trespass can also constitute a felony if the trespasser commits a trespass in a building while armed with a deadly weapon or dangerous instrument or where he or she (or another participant in the trespass) possesses a firearm. PL 140.17.

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