New York Penal Law 140.25: Burglary in the Second Degree

Burglary in the second degree is a serious felony charge in New York that can lead to years in prison if convicted. This article will break down the law in simple terms, so you can understand what constitutes burglary in the second degree, potential defenses, and the possible penalties if convicted. We’ll also look at some real-world examples to make it more clear.

What is Burglary in the Second Degree?

Under New York Penal Law 140.25, a person commits burglary in the second degree when they:

• Knowingly and unlawfully enter or remain in a building
• With intent to commit a crime inside the building

In addition, one of the following conditions must also be met:

• The person or an accomplice is armed with explosives or a deadly weapon
• The person injures someone inside the building
• The person uses or threatens to use a dangerous instrument
• The person displays what appears to be a firearm

So in plain English, second-degree burglary is illegally entering a building with plans to commit a crime inside, while also being armed/dangerous in some way. It covers things like breaking into a home while carrying a gun or knife.

Breaking Down the Legal Elements

Let’s take a closer look at each part of the law:

Knowingly and Unlawfully Entering or Remaining

This means the person has to:

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• Intentionally enter a building without permission (like breaking in)
• Stay inside a building without permission (like hiding until after closing)

It doesn’t matter if force was used to enter. Just being somewhere you’re not allowed to be qualifies.

Legal Scenario: What Would You Do?

Scenario

You came home late one night and realized you locked yourself out of your apartment. After entering through an unlocked window of what you believed was your unit, police arrived and arrested you for burglary in the second degree because you had actually entered your neighbor's apartment one floor up.

Can I really be charged with second-degree burglary when I genuinely thought I was entering my own apartment?

Attorney's Answer

Under New York Penal Law 140.25, burglary in the second degree requires that a person knowingly enters or remains unlawfully in a building with the intent to commit a crime therein. If you truly believed you were entering your own apartment, your attorney can argue that you lacked the requisite intent to commit a crime inside the dwelling, which is an essential element the prosecution must prove beyond a reasonable doubt. A mistake-of-fact defense could be raised to show you had no criminal purpose when you climbed through that window. As a class C violent felony carrying up to 15 years in prison, getting experienced legal counsel involved immediately is critical to building this defense and potentially getting the charges reduced or dismissed.

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

With Intent to Commit a Crime

This means the person planned to commit some kind of crime inside the building. It could be theft, assault, vandalism, or anything illegal. The person doesn’t actually have to commit the intended crime. Just proving they planned to do it is enough.

Armed With a Deadly Weapon or Explosives