Burglary in New York
What is a Burglary Crime?
In 2017, there were over 11,000 burglaries in New York. A burglary is where an unauthorized individual enters or remains in a building with the intent to commit a crime. Most often this additional crime is theft; however, any crime will satisfy the burglary requirement. Even if an individual was authorized to enter a building but stays past such authorization with the intent to commit a crime, will be considered burglary. Since the definition of burglary includes the intent to commit a crime, a charge of burglary is often accompanied by other charges for various crimes
There are a variety of ways that someone may be charged with a crime of burglary. Here are some ways that individuals may commit a crime of burglary.
- An individual enters a home without permission and decides to steal valuables.
- An individual enters the office of their superiors, which they are not authorized, with the intent to steal documents.
- An individual breaks into a motorhome to steal valuables.
- An individual stays after permission is revoked and commits an assault.
- An individual breaks into a building to deface property.
- An individual enters into a previous where that individual had been evicted.
- An individual entering premises that have been restricted by the court to commit an action that normally would not be considered a crime.
- An individual enters a home without permission from their separated spouse who is a resident, even if that individual owns that residence.
- An individual enters onto a houseboat to steal valuables.
- An individual enters into a ride-share vehicle with the intent to commit an assault.
- It is in possession of items that aid in burglaries.
- Essentially, if an individual enters a structure without authorization, or stays beyond their authorization, with the intent to commit a crime or some other unauthorized action, it will be considered a burglary crime.
How does New York define a burglary crime?
New York has several burglary crime laws that are based on the circumstances of the burglary. For example, burgling an abandoned factory is different than burgling an occupied home with a weapon. It also criminalizes the possession of tools that are used for burgling structures.
Burglary is divided into three degrees of offense. All three offenses share the same elements, whereas second-degree burglary and first-degree burglary add additional elements.
What are the elements of burglary?
New York law states that knowledge is when an individual has actual knowledge of risk or “recklessly disregards a substantial and unjustifiable risk.” In People v. Collins an appeals court decided that a person’s experience and actions can constitute as knowledge.
With burglary, when someone enters the building or remains on the premises when they know that they do not have an authorization, or disregard the risk that does not have an authorization, then they have met the knowledge component of burglary.
- For example, a building which usually has its doors locked and is not open to the public, and that individual is aware of that, then that individual would have satisfied the knowledge element of burglary if that individual entered or attempted to enter that building without authorization.
New York law states that if a person enters into a building or remains unlawfully, it will be considered an unauthorized presence. In Finigan v. Marshall, a court decided that even though a spouse had an ownership interest in a residence where separate spouse resided, that she was still unauthorized to enter the home without her spouse’s permission to retrieve personal belongings.
With burglary, an individual’s unauthorized presence is not too difficult to prove. If it is not your residence or your permission to be on the premises is revoked, you are unauthorized to be there and are committing trespass. When that individual is there to commit a crime, it is a burglary.
- For example, an evicted tenant no longer is authorized to return to that residence without permission from the owner or authorized individual.
In a building
New York law defines building very broadly. Any structure that an individual may use for lodging, business, or education, or in connection with those activities, will be considered a building. This includes vehicles, boats, motorhomes, and temporary structures. Even separate bedrooms in the same apartment/home can be considered different buildings.
In People v. Mincione, a court found that a van that was used for operations of business was considered a building. In People v. Pringle, a nursing station attached to the prison was also considered a building. With the crime of burglary, if you are entering into a structure that is used for business, lodging, or education, it will be considered a building.
Intent to commit a crime
Under New York law, intent to commit a crime is fairly self-explanatory. It is simply the intention of the individual to commence an unlawful action. The unlawful action does not have to happen for this element to be met.
In People v. Ostrander, a court decided that the intent to commit a crime can be gathered from the circumstances. In People v. Cajigas, a court determined that the specified action does not need to be illegal if there are orders to remain off certain premises. In People v. Terry, a court determined that a specific crime does not need to be identified, just to commit a crime generally will satisfy the intent to commit a crime element.
- For example, an individual is discovered to be leaving their roommate’s bedroom. The individual never states why they were in the roommate’s bedroom. It is soon discovered that the individual is in possession of the roommate’s rare antique watch which was hidden in a safe in the roommate’s bedroom.
Even without the individual stating that they were in their roommate’s bedroom to commit a crime, it will likely be found that they had the intent to commit a crime based on this circumstantial evidence
The following elements are only associated with second-degree and first-degree burglary crimes.
The Building is a dwelling
New York law considers a building to be a dwelling when it is used for overnight lodging. In People v. McCreary, a wax museum that had a residence attached to it was considered a dwelling.
With the crime of burglary, a dwelling will always be found if that structure is used to lodge individuals overnight. This would include cars, motorhomes, boats, etc. Also, warehouses, where a storekeeper may reside, would also constitute a dwelling for the entire warehouse. The only time it would not be considered a dwelling is if the dwelling is so far removed from the area where the burglary occurred and it posed no extra danger to the resident.
- For example, if an individual break into a mass storage complex that is all interconnected, and the owner lives on the property, it will likely be considered a dwelling.
New York law defines a physical injury as an injury that causes impairment or substantial pain. Impairment is where a body part or process is hampered or destroyed by the injury. Substantial pain is any pain greater than “slight or trivial.” And it does not need to be severe to be considered substantial pain. In People v. Chiddick, it was found that a bite that cracked a fingernail with bleeding was to be considered substantial pain. With burglary, if you injure anyone who is not participating in the crime of burglary, the courts will often find physical injury. And if the
injury occurred with a weapon, overwhelmingly the courts will find that a physical injury has occurred,
- For example, an individual burgles a home and shoves the resident in an effort to flee. That shove resulted in the fall of that resident and caused the resident to suffer a laceration in which they needed stitches or other non-urgent medical care, that will likely be considered a physical injury.
Dangerous instruments/Deadly weapons/Firearms/Explosives
New York law defines a dangerous instrument any implement or tool able to be used in such a way to cause death or serious physical injury. Deadly weapons, firearms, and explosives are self-explanatory.
In People v. Mann, a court determined that a burglar does not need to know if their fellow burglar is carrying a dangerous instrument/deadly weapon/firearm/explosive to be charged with a higher degree of the burglary. If a participant in the burglary carries any of these items, all participants in the burglary can be charged with higher degrees of burglary, regardless of knowledge.
With burglary, carrying any item that would likely be construed as a dangerous instrument, will likely satisfy the dangerous instrument element, even if that was only used to break in. A hammer and wrench could easily be found to be dangerous instruments. Also, something as simple as carrying a handgun during a burglary will easily satisfy this element.
- For example, an individual breaks into a home using a screwdriver and is discovered by the occupant. In an attempt to constrain the occupant, the individual threatens with the screwdriver. This item coupled with this action will likely be decided that this is a dangerous instrument.
What are the separate burglary crimes?
Burglary in the third degree
Burglary in the third degree is where an individual enters into or remains in a building, knowing that they are not authorized, with the intent to commit a crime. This is a class D felony.
For example, if an individual breaks into a warehouse and causes criminal mischief, this will be considered burglary in the third degree.
Burglary in the second degree
Burglary in the second degree has all of the same elements of burglary in the third degree; however, if an individual is harmed during the burglary, firearms were brandished, or if the building was a dwelling, it would be considered burglary in the second degree. This is a class C felony.
For example, if an individual breaks into their friend’s home to steal valuables, this will be a burglary in the second degree.
Burglary in the first degree
Burglary in the first degree is very similar to a burglary in the second degree. The major difference is that this must occur within a building.
Also, another caveat is if the individual charged with this crime is able to prove that the firearm that was brandished (if that was the item used) was incapable of causing injury (i.e., not loaded, broken, etc.) this can be an affirmative defense to receive the lesser charge of burglary in the second degree. This is a class B felony.
For example, if an individual breaks into a home to steal valuables and shoots the occupant with a pistol, this will be considered burglary in the first degree.
Possession of burglar’s tools
The crime of possession of burglar’s tools was created to criminalize the actions of suspected burglaries or attempted burglaries with limited information. The law criminalizes anyone for having in their possession tools that are commonly used in burglaries. This often encompasses tools that could also have a legal purpose to them.
Often, this is decided by the circumstances around when the individual is in possession of such items.
For example, if an individual is found to have a screwdriver and crowbar in their possession, a block or two from where a burglary occurred, and it is likely that tools of that kind were used in that burglary and the individual cannot provide a satisfactory explanation for having those tools at that location will likely be charged with possession of burglar’s tools.
What are the penalties for burglary crimes?
The penalties for burglary crimes can vary significantly. They also could be compounded with other charges. Depending on the circumstance, someone could face up to 7 years in prison and a 5,000 dollar fine, just for the burglary charge. Depending on the other crime, a person could be facing life imprisonment.
Are there any related offenses?
Since an element of burglary is the intent to commit a crime, it is often accompanied by another criminal charge. Sometimes, if burglary cannot be proven, a crime of criminal trespass may be sought.
The most common crimes that accompany burglary are larceny, criminal possession of the stolen property, and assault. The penalties for these offenses will often be based on circumstances and can be quite severe if death resulted.
For example, if a burglar participant dies, the prosecution might bring a felony murder charge which could come with a penalty of life imprisonment.
What are the defenses to these burglary charges?
There are a variety of defenses that can be used to defend against charges of burglary. The crime of burglary requires an individual to enter or remain on prohibited premises knowingly. Also, the prosecution needs to prove the intent to commit a crime. However, these can often be deduced from law enforcement through interrogations or suspicious circumstances.
Seemingly innocuous statements could be the death knell to the burglary charge. This is why it is vital to have an experienced attorney represent your best interests throughout the entire process. Our attorneys are skilled and experienced and ready to help you.
What should I do if I have been charged with a burglary crime?
Our firm has attorneys that have helped individuals just like you. We will provide the best legal representation to ensure that your charges and proceedings are in line with the law and we will help you understand all of your potential decisions.
These proceedings can take quite a toll on you and your loved ones. If you have been charged with a burglary crime, it is essential that you have legal representation who will seek to represent you and your interests best.