NY Penal Law § 140.30: Burglary in the First Degree

Many people link burglary with theft. Nevertheless, while a theft can take place during a burglary, it is not necessary that anything  is stolen in the process. According to the New York criminal code, burglary is defined as the unlawful entering of someone’s property with the intent to carry out a crime. The underlying crime could be larceny. Indeed, it could also be assault, rape, kidnapping or any other criminal offense. New York Penal Law lists 3 different burglary offenses. The most serious of the three is burglary in the first degree. It is distinct from other types of burglary in that violence or the threat of violence is involved, and the particular type of premises covered in this statute is a home. Pursuant to New York Penal Law section 140.30, you could face prosecution for burglary in the first degree if you enter a dwelling or unlawfully remain in a dwelling with the intent to commit a crime inside of that dwelling. Additionally, you or an accomplice must:

1. Be armed with a deadly weapon or explosives,
2. Have inflicted physical injury to another individual
3. Have utilized a dangerous instrument,
4. Have displayed what looks as though it is a gun or firearm.

According to New York Penal Law section 140.00(3), the term “dwelling” is defined as a building that is typically used by individuals for overnight lodging. In other words, a house or an apartment is a dwelling.

For Example

Terrell went to Jason’s place and knocked on his door. Jason answered his door and invited Terrell to come inside. Terrell and Jason have been friends for a long while, but they argued frequently. On this occasion, while at Jason’s house, Terrell and Jason got into another argument. Jason ordered Terrell to leave his place numerous times. Terrell refused to go. Terrell then decked Jason in the face, causing him to fall. After that, Terrell kicked Jason several times while he was on the ground. As a result of this beating, Jason suffered a black eye and broken ribs. In this scenario, Terrell could be prosecuted for burglary in the first degree. This is because even though Jason invited Terrell into his home at first, Jason later ordered Terrell to leave. From the time Terrell refused to leave, he was in Jason’s house unlawfully.  Then he proceeded to cause physical injury to Jason.

Offenses that are Related

Criminal trespass in the first degree: New York Penal Law section 140.17

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 second degree: NY Penal Law § 140.25

Possible Defenses

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In order to successfully convict you on a charge of burglary in the first degree, the prosecutor must demonstrate that your presence in the dwelling was unlawful. If you were an invited guest in the dwelling and did not remain there unlawfully, then the prosecutor will have a difficult time proving that you committed a burglary.

Legal Scenario: What Would You Do?

Scenario

You returned home late one evening to find your apartment door forced open and a stranger inside who claimed he was looking for someone else. Police arrived and arrested the intruder, but you learned he was carrying a concealed knife and had a prior conviction for assault.

Will this person be charged with burglary in the first degree even though he didn't steal anything from my apartment?

Attorney's Answer

Under NY Penal Law § 140.30, burglary in the first degree applies when a person unlawfully enters or remains in a dwelling and is armed with a deadly weapon, causes physical injury, uses or threatens to use a dangerous instrument, or displays what appears to be a firearm. Because the intruder entered your dwelling while carrying a concealed knife — a dangerous instrument — prosecutors can pursue a first-degree burglary charge regardless of whether anything was stolen. First-degree burglary is a Class B violent felony carrying a potential sentence of up to 25 years in prison. The fact that he claimed to be looking for someone else is unlikely to serve as a viable defense, since the prosecution only needs to prove he knowingly entered or remained unlawfully with intent to commit any crime inside.

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

The Sentence

Burglary in the first degree is categorized as a class B felony. The maximum possible sentence the judge can give you is 25 years in prison. Because this crime is also considered a violent felony offense, the judge is obligated to impose a minimum sentence of 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 5 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 5 years in prison and up to 25 years in prison.