New York Penal Law 140.20: Burglary in the Third Degree

Burglary in the third degree is the most common burglary charge in New York. It’s a class D felony that can have serious consequences if convicted. Let’s break down the law and what it means.

What is Burglary in the Third Degree?

According to New York Penal Law 140.20, a person is guilty of burglary in the third degree when they knowingly and unlawfully enter or remain in a building with intent to commit a crime inside. Both elements – unlawful entry and intent to commit a crime – must be proven for a conviction.

Burglary doesn’t require theft or larceny. The intent could be to assault someone, vandalize property, or anything illegal. But the prosecution must prove you intended to commit a specific crime when unlawfully entering the building.

What Makes Entry Unlawful?

There are a few ways entry can be considered unlawful under the burglary statute:

• Entering without permission or authority
• Entering through fraud, trick, or misrepresentation to gain access
• Remaining in a building after permission to be there has been revoked

For example, if you lie about why you need to enter someone’s home or business, or stay in a store after closing time without permission, your presence would likely be considered unlawful.

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Legal Scenario: What Would You Do?

Scenario

You went to a friend's apartment to pick up some belongings after a falling out, but your friend had already changed the locks and told you not to come back. You found an open window and climbed inside to grab your things, and now you've been arrested and charged with burglary in the third degree.

How can I be charged with burglary when I was just trying to get my own stuff back from a place I used to visit all the time?

Attorney's Answer

Under New York Penal Law 140.20, burglary in the third degree occurs when a person knowingly enters or remains unlawfully in a building with the intent to commit a crime therein. Even though you believed the property inside was yours, entering through a window after being told not to return satisfies the 'unlawful entry' element, and prosecutors may argue your intent to take items — even ones you claim ownership of — constitutes intent to commit larceny. As a class D felony, a conviction carries up to 7 years in prison under New York Penal Law 70.00. A strong defense strategy could challenge the intent element or argue a claim of right under Penal Law 155.15, but you need experienced counsel to navigate these arguments effectively.

This is general information only. Contact us for advice specific to your situation.

What Buildings Are Covered?

The burglary law applies to any building, including:

• Houses
• Apartments
• Offices
• Stores
• Warehouses
• Garages
• Sheds
• Barns
• Any other structure used for regular activity