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NY Penal Law § 140.35: Possession of Burglar’s Tools

July 6, 2020 Federal Criminal Attorneys

Pursuant to the New York criminal code, burglary is a criminal offense in which a person unlawfully enters a building or unlawfully remains in a building with the intent to commit a crime. Burglary is a felony offense. In addition to that, it is also a crime to have the tools that are typically used to commit a burglary in your possession. Such items are referred to in the statute as “burglar’s tools.”  The fact is that burglar’s tools can be almost any item. According to New York Penal Law section 140.35, the term “burglar’s tools” is defined as “any tool, instrument or other article adapted, designed or commonly used for” committing a burglary, theft or trespass. However, simply carrying such an item is not a sufficient reason for you to be prosecuted under the possession of burglar’s tools statute. You must also have clear intent to use such item to commit a burglary. This crime is a class A misdemeanor.

An Example

Lou is standing around after hours in the lot behind a store. He is carrying bolt cutters with him. Cedric is also standing around at night with a bag that has bolt cutters, but he is in front of his home. In these scenarios, Lou could be charged with and prosecuted for possession of burglar’s tools.  He is carrying a tool that is customarily used to commit a burglary, and he is carrying it under circumstances that make it appear that he had an intention to commit a burglary. On the other hand, Cedric could not be charged with or prosecuted for possession of burglar’s tools.  Although he has the same tool that is often used to commit a burglary, the circumstances do not indicate in any way that he has the intent to commit a burglary or any other criminal offense.

Offenses that are Related

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

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

Burglary in the second degree: New York Penal Law section 140.25

Burglary in the first degree: New York Penal Law section 140.30

Possible Defenses

If you possess a “burglar’s tool” for a lawful purpose, then you have a plausible defense against a possession of burglar’s tools charge. For instance, if you work as a locksmith and you carry around lock picking tools, then you have a lawful purpose for possessing a so-called burglar’s tool.  As long as you only use them to pick a lock at the request of the owner of a property, you are in no way violating this law.

The Sentence

Again, the crime of possession of burglar’s tools is categorized as a class A misdemeanor. If you are convicted,  the longest prison sentence the judge could give you is 1 year. It is also possible that you would alternatively be sentenced to a probation term of 3 years.

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