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Dupee & Monroe

New York Burglary Defense Lawyer

Burglary is a crime that New York law enforcement, prosecutors, and courts take very seriously. Burglary is a felony, and a conviction can lead to serious prison time. If you have been arrested for theft, a burglary attorney at Dupée & Monroe can help you put together your strongest defense in order to mitigate your charges or have them dropped entirely.

Elements and Degrees of Burglary in New York

New York’s burglary law is codified in Penal Law sections 140.20 (third-degree), 140.25 (second-degree), and 140.30 (first-degree). In order to convict on a base charge of burglary, known as burglary in the third degree, the government must prove the following beyond a reasonable doubt:

  1. The defendant knowingly entered or remained unlawfully in a building; and
  2. The defendant had the specific intent to commit a crime within the building.

Third-degree burglary is a class D felony. If the government also proves additional factors, the crime will be bumped up to burglary in the second or first degree, which carry harsher penalties.

Third-degree burglary will be automatically bumped up to second-degree burglary if the defendant trespasses the building with the requisite intent, and:

  1. The building is a dwelling (i.e., a residence); or
  2. While entering the building or when running from the scene, the defendant:
    1. Is armed with a deadly weapon or explosives; or
    2. Causes physical injury to a non-participant; or
    3. Threatens or uses a dangerous instrument; or
    4. Displays what appears to be a firearm.

First-degree burglary is triggered when the government proves the entry and intent requirements, as well as both that the property was a dwelling and that the defendant is guilty of one of the four aggravating factors listed above.

It is notable that the defendant does not need to actually have or brandish a real firearm. It is sufficient that they show what appears to be a gun. For example, showing a fake or toy gun and pretending it is real is sufficient to trigger burglary in the second or first degree. Moreover, a defendant need not actually commit a crime once inside, as long as the government can prove that the defendant intended to commit a crime upon entry.

Punishment for Burglary

Even burglary in the third degree is a felony requiring imprisonment, as well as fines and other penalties. Punishment is more severe for second and first-degree burglary. Third-degree burglary is punishable by up to seven years in prison. Burglary in the second degree is a class C violent felony punishable by up to 15 years in prison. Burglary in the first degree is a class B violent felony, and a conviction can lead to up to 25 years in prison. Prosecutors often seek the harshest penalties if the defendant is charged with a residential burglary.

Defending Against a Charge of Burglary in New York

In order to convict on a charge of burglary, the government must prove not only that the defendant entered or remained on a property unlawfully, but that they did so with the intent of committing a crime once inside. The crime may be theft, arson, or some other crime. A skilled defense attorney can poke holes in the government’s evidence if, for example, they do not have proof that the defendant had any criminal intentions other than entering the property. If entry was a mistake, for example if someone under the influence of alcohol accidentally entered the wrong home, then there is no crime of burglary. These defenses can kill a prosecutor’s case if effectively brought either at the pleading stages or during evidentiary discovery, or if necessary, by showing a jury that doubt remains.

The prosecutor will typically have to come forth with evidence of the crime such as eyewitnesses or surveillance footage, crime scene forensics, or the testimony of law enforcement. A seasoned defense attorney can help show the weaknesses in any evidence the prosecutor puts forward.

Help is Available for Burglary Charges from Our Hudson Valley Criminal Defense Lawyers

If you have been arrested and charged with burglary under New York state law, contact Dupée & Monroe, P.C., in Goshen. We represent clients charged with burglary and other serious offenses in Orange County and throughout the Hudson Valley.

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