Burglary is a serious crime that gets you into a lot of legal hot water because it can lead to other charges. This is one crime that you don’t want on your record.

Any type of criminal record can follow you for the rest of your life, but felonies are viewed as especially awful. Felony burglary is offensive on so many levels. It is invasive, the offender unlawfully enters another person’s property, often their home, to commit a crime. If someone gets in the way, they are likely to get hurt, or worse.

The public views that type of behavior in a very bad light. When someone has a felony burglary conviction hanging over their head it marks them and can make them social outcasts. Even those who allow you into their circle will never fully trust you. 

When you commit burglary, you create a stereotype for yourself.

But that’s not all.

In New York, it is legal for homeowners to use force, even deadly force, to defend their homes. So, if you decide to burglarize the wrong house you could find yourself staring down the business end of a firearm – with a very scared (or angry) homeowner on the other end.

That isn’t likely to end well for you.

Aside from that, the penalties for burglary can be harsh. And as the prosecution piles charges on you, you are going to need a good criminal defense attorney to have your back.

When You Need Representation for a Felony Burglary Charge, You Need Someone who will Fight for You

When you are facing a felony burglary charge, you want an attorney who will be aggressive in protecting your rights, someone who has the experience and skills that will ensure you have the best outcome possible. You want the best.

Dealing with a felony burglary charge isn’t easy. The criminal court system is complex and it’s easy to fall between the cracks. You want to make sure that your case is in the most capable hands possible. You want a New York criminal defense attorney who will fight for you.

And that’s what you’ll get at The Litvak Law Firm.

Overview of Felony Burglary

In general terms, a burglary occurs when a person knowingly enters a home or building and remains there illegally with intent to commit a crime inside.

Burglary has several offenses that are related:

  • Burglary in the third degree
  • Burglary in the second degree
  • Burglary in the first degree
  • Possession of burglar tools
  • Unlawful possession of radio devices

Trespassing is also a common charge along with burglary:

  • Trespass is a violation
  • Criminal trespass in the third degree is a Class B misdemeanor
  • Criminal trespass in the second degree is a Class A misdemeanor
  • Criminal trespass in the first degree is a Class D felony

Burglary is also an inchoate crime that can lead to other criminal offenses at the state and/or federal level.

Inchoate Offenses

The word inchoate means “underdeveloped” or “unfinished.” Inchoate offenses are offenses that were committed in the process of committing another crime – and the first crime aids in the commission of the final crime.

In most crimes, two elements must be present:

  • Mens rea – guilty intention to commit a crime
  • Actus reus – the actual act of committing the crime

An inchoate offense fulfills the first (mens rea) but not the second (actus reus). Criminal conspiracy and attempt to murder are two inchoate offenses.

Typically, an inchoate crime is a felony that is charged one degree below what the actual, fully completed offense is. For instance, second-degree felony burglary is the act, and attempted burglary is the inchoate crime that would be charged as third-degree felony burglary.

Federal Felony Burglary Offenses

Burglary is usually handled at the state level. Because burglary is an inchoate crime, it can be committed in preparation to commit another crime. Some of these may be federal crimes.

Federal burglaries include bank burglaries or just about any burglary that involves a financial institution. Burglary of post offices would also be handled at the federal level, as would robbing someone of any federal property. In the cases where the crime violates laws at both the state and federal level, federal law and sentencing are the ones that will likely be applied.

18 U.S. Code Chapter 103 – Robbery and Burglary

  • § 2112 – Personal property of the United States – Robbing someone of property that belongs to the United States.
  • § 2113 – Bank robbery and incidental crimes – Robbing a bank or financial institution, receives/possesses/sells/ disposes of property or anything of value that has been stolen from a bank or financial institution.
  • § 2114 – Mail, money, or other property of United States – Stealing/ possessing, disposing of money or other property or assaulting a person who is in the lawful custody/charge/ control of such property of the United States.
  • § 2115 – Post office – Breaking into a post office or building that is used in part or in whole as a post office with the intent to commit a crime.
  • § 2116 – Railway or steamboat post office – Breaking into a US Post Office car, steamboat, or vessel, with the intent to commit a crime of burglary.
  • § 2117 – Breaking or entering carrier facilities – breaking the lock or seal of a vessel, railroad car, wagon, motortruck, aircraft, or other vehicle or of any pipeline system that contains interstate or foreign shipments of freight.
  • § 2118 – Robberies and burglaries involving controlled substances – Stealing any type of controlled substance.
  • § 2119 – Motor vehicles – Stealing a motor vehicle that has been shipped, transported, or received in foreign or interstate commerce.

New York Felony Burglary Offenses

Under Article 140 – NY Penal Law – the crime of burglary is addressed.

  • 140.20 – Burglary in the third degree – A person is guilty of burglary in the third degree when he knowingly enters or remains unlawfully in a building with the intent to commit a crime therein. 
  • 140.25 – Burglary in the second degree – A person is guilty of burglary in the second degree when he knowingly enters or remains unlawfully in a building with the intent to commit a crime therein, and when:
    • 1. In effecting entry or while in the building or in immediate flight therefrom, he or another participant in the crime:
      • (a) Is armed with explosives or a deadly weapon; or
      • (b) Causes physical injury to any person who is not a participant in the crime; or
      • (c) Uses or threatens the immediate use of a dangerous instrument; or
      • (d) Displays what appears to be a pistol, revolver, rifle, shotgun, machine gun, or other firearm; or
    • 2. The building is a dwelling.
  • 140.30 – Burglary in the first degree – A person is guilty of burglary in the first degree when he knowingly enters or remains unlawfully in a dwelling with intent to commit a crime therein, and when, in effecting entry or while in the dwelling or in immediate flight therefrom, he or another participant in the crime:
    • 1. Is armed with explosives or a deadly weapon; or
    • 2. Causes physical injury to any person who is not a participant in the crime; or
    • 3. Uses or threatens the immediate use of a dangerous instrument; or
    • 4. Displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, could be discharged. Nothing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, burglary in the second degree, burglary in the third degree or any other crime.

Other Offenses Related to Felony Burglary

Other offenses are related to felony burglary or often accompany the charge:

  • 140.35 – Possession of burglar’s tools – A person is guilty of possession of burglar’s tools when he possesses any tool, instrument or other article adapted, designed or commonly used for committing or facilitating offenses involving forcible entry into premises, or offenses involving larceny by a physical taking, or offenses involving theft of services as defined in subdivisions four, five and six of section 165.15, under circumstances evincing an intent to use or knowledge that some person intends to use the same in the commission of an offense of such character.
    • Possession of burglar’s tools is a class A misdemeanor.
  • 140.40 – Unlawful possession of radio devices – As used in this section, the term “radio device” means any device capable of receiving a wireless voice transmission on any frequency allocated for police use, or any device capable of transmitting and receiving a wireless voice transmission. A person is guilty of unlawful possession of a radio device when he possesses a radio device with the intent to use that device in the commission of robbery, burglary, larceny, gambling or a violation of any provision of article two hundred twenty of the penal law.
    • Unlawful possession of a radio device is a class B misdemeanor.

Trespassing

  • 140.05 – Trespass – A person is guilty of trespass when he knowingly enters or remains unlawfully in or upon premises.
    • Trespass is a violation.
  • 140.10 – Criminal trespass in the third degree – A person is guilty of criminal trespass in the third degree when he knowingly enters or remains unlawfully in a building or upon real property
    • (a) which is fenced or otherwise enclosed in a manner designed to exclude intruders; or
    • (b) where the building is utilized as an elementary or secondary school or a children’s overnight camp as defined in section one thousand three hundred ninety-two of the public health law or a summer day camp as defined in section one thousand three hundred ninety-two of the public health law in violation of conspicuously posted rules or regulations governing entry and use thereof; or
    • (c) located within a city with a population in excess of one million and where the building or real property is utilized as an elementary or secondary school in violation of a personally communicated request to leave the premises from a principal, custodian or other person in charge thereof; or
    • (d) located outside of a city with a population in excess of one million and where the building or real property is utilized as an elementary or secondary school in violation of a personally communicated request to leave the premises from a principal, custodian, school board member or trustee, or other person in charge thereof; or
    • (e) where the building is used as a public housing project in violation of conspicuously posted rules or regulations governing entry and use thereof; or
    • (f) where a building is used as a public housing project in violation of a personally communicated request to leave the premises from a housing police officer or other person in charge thereof; or
    • (g) where the property consists of a right-of-way or yard of a railroad or rapid transit railroad which has been designated and conspicuously posted as a no-trespass railroad zone.
    • Criminal trespass in the third degree is a class B misdemeanor.
  • 140.15 – Criminal trespass in the second degree – A person is guilty of criminal trespass in the second degree when:
    • 1. he or she knowingly enters or remains unlawfully in a dwelling; or
    • 2. being a person required to maintain registration under article six-C of the correction law and designated a level two or level three offender pursuant to subdivision six of section one hundred sixty-eight-l of the correction law, he or she enters or remains in a public or private elementary, parochial, intermediate, junior high, vocational or high school knowing that the victim of the offense for which such registration is required attends or formerly attended such school. It shall not be an offense subject to prosecution under this subdivision if: the person is a lawfully registered student at such school; the person is a lawful student participant in a school-sponsored event; the person is a parent or a legal guardian of a lawfully registered student at such school and enters the school for the purpose of attending their child’s or dependent’s event or activity; such school is the person’s designated polling place and he or she enters such school building for the limited purpose of voting; or if the person enters such school building for the limited purposes authorized by the superintendent or chief administrator of such school.
    • Criminal trespass in the second degree is a class A misdemeanor.
  • 140.17 – Criminal trespass in the first degree – A person is guilty of criminal trespass in the first degree when he knowingly enters or remains unlawfully in a building, and when, in the course of committing such crime, he:
    • 1. Possesses, or knows that another participant in the crime possesses, an explosive or a deadly weapon; or
    • 2. Possesses a firearm, rifle or shotgun, as those terms are defined in section 265.00, and also possesses or has readily accessible a quantity of ammunition which is capable of being discharged from such firearm, rifle or shotgun; or
    • 3. Knows that another participant in the crime possesses a firearm, rifle or shotgun under circumstances described in subdivision two.
    • Criminal trespass in the first degree is a class D felony.

Penalties for Federal Felony Burglary

There are some serious penalties for burglary under Federal law:

18 U.S. Code Chapter 103 – Robbery and Burglary:

  • § 2112 – Personal property of the United States – Maximum 15 years in prison
  • § 2113 – Bank robbery and incidental crimes – Maximum 25 years in prison or life if someone was killed during the commission of the crime. Fines may also apply.
  • § 2114 – Mail, money, or other property of United States – Maximum 25 years in prison and/or fines
  • § 2115 – Post office – Maximum 5 years in prison and/or fines
  • § 2116 – Railway or steamboat post office – Maximum 3 years in prison and/or fines
  • § 2117 – Breaking or entering carrier facilities – Maximum 10 years in prison and/or fines
  • § 2118 – Robberies and burglaries involving controlled substances – Maximum life in prison
  • § 2119 – Motor vehicles –Maximum 25 years and/or a fine. If someone was injured or killed during the crime the maximum sentence is life in prison.

Penalties for Felony Burglary in New York

The penalties for felony burglary in New York are steep. It is a very serious crime, and the sentencing is harsh.

  • 140.20 – Burglary in the third degree – Class D felony – Minimum 1 year to Maximum 7 years in prison
  • 140.25 – Burglary in the second degree – Class C felony – Minimum 1 year to Maximum 15 years in prison
  • 140.30 – Burglary in the first degree – Class B felony – Minimum 1 year to Maximum 25 years in prison

If someone is injured or killed during the commission of a robbery or if the offender has prior convictions the penalties can be even tougher.

Penalties for Other Offenses Related to Felony Burglary

The penalties for the offenses related to burglary or accompany it include:

  • 140.35 – Possession of burglar’s tools – Class A misdemeanor – Maximum 364 days in jail. 
  • 140.40 – Unlawful possession of radio devices – Class B misdemeanor – Maximum 90 days in jail or up to $500 fine

Trespassing

  • 140.05 – Trespass –Violation – Maximum 15 days in jail and/or Maximum $250 fine
  • 140.10 – Criminal trespass in the third degree –Class B misdemeanor – Maximum 90 days in jail and/or $500 fine
  • 140.15 – Criminal trespass in the second degree – Class A misdemeanor – Maximum 364 days in jail and/or Maximum $1,000 fine
  • 140.17 – Criminal trespass in the first degree – Class D felony – Minimum 1 year to Maximum 7 years in prison

Felony Burglary Defenses

In a felony burglary case, it is the job of the prosecuting attorney to prove beyond a reasonable doubt that the accused committed the crime, knowingly committed the crime, and had the intent to commit the crime.

The defense lawyer can use this to defend their client in court. The goal is to get the charges reduced or dropped. Some of the common defenses for felony burglary include:

  • Lack of intent
  • Insufficient evidence
  • Mistake of fact – the accused trespassed accidentally or by mistake
  • Mistaken identity
  • Discredit witness
  • Entrapment

If you have been charged with felony burglary at the federal level or in the State of New York, you could have a tough road ahead of you. Felony burglary can carry some serious penalties. Don’t try to handle it on your own. The laws surrounding this crime are very complex and you could end up with a sentence that you don’t deserve. You need a New York criminal defense attorney who has the training and experience to handle your felony burglary case and protect your rights.

If you need a criminal defense lawyer, call Mr. Litvak of The Litvak Law Firm at (718) 989-2908. Your initial phone consultation is free. Mr. Litvak is very experienced and dedicated to fighting for his clients to obtain the best possible outcome. Call today and get the legal representation that you deserve.