Burglary is not what most people think it is.
Burglary isn't "stealing." When you steal something, you have committed a theft crime such as grand larceny or petit larceny. Burglary is different- it's when you enter or remain unlawfully in a dwelling with the intent to commit a crime. So if you walk into someone's house where you are not welcome and punch that person, you have committed burglary. Here is the definition of Burglary 1st degree:
Penal Law § 140.30 Burglary in the first degree, class B violent felony.
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.
The Burg 1 definition of burglary says that when a lesser crime like theft or assault is committed in a dwelling (home) where you are not welcome, the penalties become more harsh. And the penalties for burglary 1st are very severe. Burglary is classified as a violent crime, and Burglary 1st degree is a class B felony. That means a person with no prior felony record who is convicted of Burglary 1st faces a minimum term of 1 -3 years in state prison, and a maximum term of 8 1/3 - 25 years.
The lower classes of Burglary - Burg 2nd and 3rd - are similar to Burg 1, and we discuss them below.
Penal Law § 140.25 Burglary in the second degree, class C violent felony.
A person is guilty of burglary in the second degree when he knowingly enters or remains unlawfully in a building with 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.
Burglary 2nd is a slightly lower level of a violent felony which can be committed in any building, not just a dwelling. The minimum sentence for this crime is no jail, but realistically, most people convicted of Burglary in the second degree are going to face a term of probation, most likely with a shock incarceration component. The maximum sentence is 5 - 15 years in state prison.
Penal Law § 140.20 Burglary in the third degree, class D felony.
A person is guilty of burglary in the third degree when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein.
Burglary in the 3rd degree isn't classified as a violent felony, but for defendants with no prior felony history, it still carries a sentence of between 0 (zero) and 2 1/3 - 7 years.
The criminal defense attorneys at The Militello Law Firm in Rochester have experience successfully defending clients against burglary charges. We work as a team to employ every defense available to you; we analyze the specific facts of your case to see where the weaknesses exist in the prosecution's allegations against you, and we exploit those weaknesses to your benefit.
If you have been charged with Burglary near Rochester or Geneseo, contact P. Adam Militello, Esq. by calling (585) 485-0025. We're available 7 days a week, 24-hours a day.
