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NY Penal Law § 140.25: Burglary in the Second Degree

July 6, 2020 Federal Criminal Attorneys

Burglary is a crime that is often spoken of as “breaking and entering.” It entails entering a structure without permission for the purpose of committing a criminal act. You would also be looking at a burglary charge if you are in a building lawfully, but then you remain there after you were supposed to have left. That being said, burglary can be distinguished from the crime of trespass in that in order for you to be convicted of a burglary offense, the prosecutor must demonstrate that the purpose for you being on the premises was to carry out a crime. Pursuant to New York Criminal Law section 140.25, you would have committed the felony offense of burglary in the second degree if you unlawfully access a building or unlawfully remain in a building and you or an accomplice:

  1. Are armed with a deadly weapon or explosives,
  2. Cause injury to someone,
  3. Use or threaten to use a dangerous object against someone, or
  4. Display a gun or firearm

You will also be looking at a charge of burglary in the second degree if the building is a house, apartment, or other type of building where people remain overnight.

For Example

Steve lobbed a brick into the window of a closed electronics store one evening. He jumped in the window, picked up several high end cameras and started to leave. Derek witnessed what had happened. He shouted at Steve to stop and he chased him. At one point, Steve stopped, turned around and waved a gun at Derek. Derek was shocked by this, and he could only stand there stunned and watch Steve run away. In this scenario, Steve could be prosecuted for burglary in the second degree. First, Steve most certainly broke into the electronics store in order to commit the crime of larceny. Add to the fact that he used a weapon while fleeing, and the crime would be properly classified as burglary in the second degree.

Offenses that are Related

Criminal trespass in the second degree: New York Penal Law section 140.15

Possession of burglar’s tools: New York Penal Law section 140.35

Burglary in the third degree: New York Penal Law § 140.20

Burglary in the first degree: NY Penal Law § 140.30

Possible Defenses

There are a number of possible defenses against a burglary in the second degree charge. For example, if you have been charged with this crime on the basis of having a deadly weapon, the prosecutor must demonstrate that the weapon was indeed deadly. Any knife that is dull, un-serrated, or that has a round tip probably would not meet the requirements to be a deadly weapon. If you face a second degree burglary charge on the basis of causing another person a physical injury, then that person’s injury must be severe enough to meet the requirements of New York Criminal Law’s definition of physical injury.

The Sentence

Burglary in the second degree is categorized as a class C felony. The maximum possible sentence the judge can give you is 15 years in prison. Because this crime is also considered a violent felony offense, the judge is obligated to impose a minimum sentence of 3.5 years. The final determination on the length of your prison sentence will depend on factors such as your prior criminal record. If you don’t have any prior felonies, then the judge could sentence you to as little 7 years in prison. On the other hand, if you have been convicted of a felony in the past, the judge would have to sentence you to more than 7 years in prison and up to 15 years in prison.




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