For many people the word “burglar” is synonymous with thief. They recall memories of the Hamburglar sneaking behind trees and fences to take hamburgers. Burglary does not necessarily involve stealing and in-fact many times even if the Hamburglar was able to take the hamburgers, he would not have been convicted of burglary.
Burglary is defined by Article 140 of the New York State Penal Law as a trespass on property with the intent to commit a crime. There are three degrees of burglary differentiated by the nature of aggravating factors but each degree contains the following two elements:
- Trespass and
- Specific intent to commit a crime within a building
A trespass is the unlawful entry or remaining on another person’s property longer than permitted by the owner or entering other areas of the property without the owner’s permission. The vital element to burglary is entering someone’s property—not necessarily taking their things. However, what separates burglary from trespass is the requirement of the specific intent to commit a crime that may include, but is no way limited to, theft.
Specific intent means the burglar must have the desire to actually commit a crime. That desire occurs contemporaneously with the trespass. If a burglar enters a property without planning to commit a crime, but later decides to commit a crime, then either a lawful entry or a simple trespass can become a burglary at that moment. Similarly, if the person entered with the intent to commit a crime, but was unsuccessful in their execution of the crime, they still are guilty of having committed a burglary. Finally, if a person trespasses and simultaneously, but unknowingly, commits a crime, they have not committed burglary as there was no intent.
Third-Degree Burglary is the lowest level of burglary and only requires the two foregoing elements. The charge of burglary can be escalated to second-or first-degree burglary as a function various aggravating factors.
A burglary becomes a Burglary in the Second Degree when there is an added element to the building or dwelling, or while entering the building or in immediate flight from the building: the defendant is armed with explosives or deadly weapons; or the defendant causes physical injury to a non-participant, or the defendant displays what appears to be a firearm.
A burglary rises to the first degree when either the building is a dwelling, and while entering the building or in immediate flight from the building the defendant is either armed with explosives or deadly weapons or the defendant causes physical injury to a non-participant, or the defendant displays what appears to be a firearm.
Call a New York Criminal Attorney Today for a Free Consultation.
Being convicted of burglary, regardless of the degree, is considered a felony in New York with penalties of up to 30 years in prison or a fine equal to the greater of $5,000.00 or double the amount of the burglar’s gain from the burglary. A New York criminal attorney can properly evaluate your case and identify any possible defenses. Please call the Law Office of Stephan Jacob Siegel at 718-575-3900 for more information today. Stephan Jacob Siegel has tried more many burglary trials among the thousands of cases he has tried and will do everything possible to get you the best possible outcome.