Burglars conjure images of a criminal breaking open a door or window, often with a crowbar or other break-in tools, to steal money or other valuables. However, the crime of burglary is a broader concept.
In New York, you’re guilty of burglary when you enter or stay in another’s building without permission and with the intent to commit a crime in it. Burglaries constitute felonies and are classified by degrees, based upon the type of building involved, the instrumentalities involved and whether the criminal inflicts injuries upon the victim.
New York Penal Law Section 140.20 defines the lowest-level of burglaries in New York — burglary in the third degree. This form of burglary occurs when the perpetrator “knowingly” enters or “unlawfully remains” in the building of another with the intent to commit a crime.
What is Entry or Remaining?
The first element of the crime of burglary resembles trespassing. Any method of trespass satisfies the first element of the crime. As such, you face conviction if you forcefully enter the building or trick your way into it. The latter may arise when you deceive the building owner or possessor into letting you in the building. Examples of this include misrepresenting yourself as a building or other inspector, as someone performing repairs or other services in the building or as someone conducting a survey of the building occupant.
Also, you enter a building for purposes of burglary in the third degree even if the door or window is unlocked, ajar or completely open. This reflects a definition of burglary that is broader than
Bear in mind that you’re not guilty of burglary based on a trespass if you had permission to enter. If you visit a store or retail establishment during normal business hours, the fact of a theft on your part does not blossom into a burglary conviction. However, if you refuse to leave a store or other building upon a lawful demand to leave, you have committed trespass. Should you form the intent to perform a crime at the time you trespass by not leaving, you can face a burglary conviction.
The Intent to Commit a Crime
A burglary conviction requires that the perpetrator have the requisite intent at the time of the unauthorized or unlawful entry. That is, you’re not a burglar merely for having committed a crime after entry. If you didn’t intend to commit a crime when you entered, then you are not subject to a burglary conviction.
Note that the commission of a crime can serve as some evidence of your intent to commit a crime. Circumstances such as the time of day and the type of building or establishment are relevant to your intent. If you break into or enter a store, then a prosecutor may stand a better chance of showing you intended to steal merchandise. For some circumstances, such as a need for shelter from rain or other elements or trespassing as some political or other demonstration, it is very possible that you did not have the intent to commit a crime separate from trespass.
What is the Punishment for Burglary in the Third Degree?
Under New York law, burglary in the third degree constitutes a “Class D” felony. If you’re convicted, the prison sentence can range between one year and seven years. You’ll face a fine of up to $5,000 in addition to incarceration.
Felonies exact collateral effects upon the ability for employment, qualification for many professional licenses and threats to a foreign alien’s ability to remain in the United States. If you are an immigrant, burglary in the third degree or other felonies (and even some misdemeanors) can render you ineligible to become a citizen or constitute deportable offenses.
More aggravated burglaries arise if the building is a home, if the victim is injured in the course of the burglary or if you display a firearm or deadly weapon — or something that appears as such. These aggravated burglary charges carry up to 25 years in jail.
Contact us for a free consultation if you find yourself charged with burglary in the third degree or other criminal offenses.