New York Burglary and Trespass Attorney
Burglary and Trespass are related crimes (Trespass is an element of Burglary), so it is useful to discuss the two together.
The crime known as Trespass, Penal Law Section 140.05, reads simply: “A person is guilty of trespass when he knowingly enters or remains unlawfully in or upon premises.” Trespass is considered a violation and not a crime. The maximum punishment is a fine of $250 or up to 15 days in jail. There are, however, Trespass offenses that are crimes, including both misdemeanor and felony charges.
Trespass prosecutions usually result from activity in public housing, privately owned apartment buildings that have opted in to a trespassing program and in public transportation settings such as subways or buses. District Attorneys’ Offices have created an affidavit program that allows police to patrol public housing and private buildings that have opted in and make arrests if a person present is not a resident or guest.
When a person is arrested for Trespass, police will conduct a search. If the person is found to be in unlawful possession of drugs, a weapon or other contraband, additional charges will likely result.
Misdemeanor Trespass in New York City
Criminal Trespass in the Third Degree
Criminal Trespass in the Third Degree, Penal Law Section 140.10, is charged when a person knowingly enters or unlawfully remains in a building or upon real property:
- That is fenced or otherwise enclosed in a manner designed to exclude intruders;
- That is an elementary or secondary school or a children’s overnight camp;
- That is public housing and the entry or act of remaining on the property violates posted rules;
- That is public housing and the person has been told to leave by a housing police officer; or
- That is a railroad zone posted “no trespassing”
Criminal Trespass in the Third Degree is a class B misdemeanor. Criminal Trespass in the Third Degree is punishable by a maximum of 90 days in jail.
Criminal Trespass in the Third Degree is often charged along with Theft of Services in turnstile jumping cases. If a turnstile jumping case proceeds to trial, the prosecution may drop the Theft of Services charge and proceed only with the lesser charge, since the defendant in a class B misdemeanor case is not entitled to a jury trial.
Criminal Trespass in the Second Degree
Criminal Trespass in the Second Degree under Penal Law Section 140.15 is charged when a person:
- Knowingly enters or unlawfully remains in a dwelling; or
- Is registered as a Level 2 or Level 3 Sex Offender and enters or remains in a school where they know a victim of the sex crime is registered or attends
Criminal Trespass in the Second Degree is a class A misdemeanor and is punishable by up to 1 year in jail. However, as noted above, it is often possible to negotiate for a non-criminal resolution, such as an Adjournment in Contemplation of Dismissal (ACD) or a plea to a non-criminal offense in misdemeanor Trespass cases.
Felony Criminal Trespass in New York
Criminal Trespass in the First Degree
Criminal Trespass in the First Degree, Penal Law Section 140.17, is charged when a person knowingly enters or remains unlawfully in a building and:
- Possesses an explosive or deadly weapon;
- Knows that another participant in the crime possesses an explosive or deadly weapon;
- Possesses a firearm, rifle or shotgun and possess or has ready access to a quantity of ammunition; or
- Knows that another participant in the crime possesses a firearm, rifle or shotgun and has or has ready access to a quantity of ammunition
For purposes of this statute, “deadly weapon” includes:
- A firearm that is operable and loaded;
- Several types of knives, including
- Switch blades
- Gravity knives; and
- Daggers;
- A blackjack; and
- Metal or plastic knuckles
Criminal Trespass in the First Degree is a class D felony, punishable by up to 7 years in prison for a first-time offender. However, the prosecution may agree to or the judge may choose to sentence a person convicted under this section to:
- 1 year in jail;
- 3, 4 or 5 years of probation;
- A split sentence of 6 months in jail and 3, 4 or 5 years of probation;
- A 3-year conditional discharge; or
- A conditional or unconditional release
A person arrested for possessing a deadly weapon during a Trespass crime would likely also be charged under New York’s Weapons Possession statute.
Burglary in New York City
Burglary is a serious felony offense in New York. The lowest-level Burglary charge is a class D felony, carrying a possible penalty of up to 7 years in prison for a first-time offender. The two highest levels are classified as violent felony offenses, meaning a significant longer prison sentence.
Burglary in the Third Degree
Burglary in the Third Degree under Penal Law Section 140.20 requires only that a person knowingly enter or remain unlawfully in a building with the intent to commit
a crime therein. This crime is most often charged with regard to commercial buildings or private places from which a person has been barred. For example, entering a store to shoplift may be charged as Burglary in the Third Degree if the person has previously been caught shoplifting or attempting to shoplift from that merchant and has been serviced with a trespass notice revoking his or her permission to enter the store.
Burglary in the Third Degree is a class D felony. For a first-time offender, that may mean up to 7 years in prison. The judge has many other sentencing options, but if the crime is sexually motivated then the sentence is likely to be more severe and a period of post-release supervision will likely be included.
Burglary in the Second Degree
A person is charged with Burglary in the Second Degree under Penal Law Section 140.25 when he or she knowingly enters or remains unlawfully in a building with the intent to commit a crime therein, and:
- The building is a dwelling; or
- While inside or in the immediate flight, the defendant or another participant in the crime
- Displays what appears to be a firearm;
- Causes physical injury to any person who is not a participant in the crime;
- Uses or threatens the immediate use of a dangerous instrument; or
- Is armed with explosives or a deadly weapon
“What appears to be a firearm” is broadly construed, and may mean something as simple as holding one’s finger under a jacket to create the appearance of a gun. An actual firearm need not be operable or loaded to trigger this provision. Likewise, “physical injury” is interpreted broadly, and may include injuries as minor as a cut or bruise.
Further, anything that is capable of causing serious physical injury or death can be deemed a dangerous instrument, regardless of the item’s intended purpose. Some non-weapon examples include a hammer, a rock or a lead pipe. And, simply saying, “I’ll hit you with this brick (or tire iron, or fireplace poker)” is generally sufficient to charge a threat. In addition, the possession of a deadly weapon during the commission of a Burglary could lead to weapons charges in addition to the Burglary charge.
Burglary in the Second Degree is a class C felony and a violent felony offense. Even for a first-time offender, conviction carries a mandatory minimum sentence of 3.5 years in prison, and the sentence may be as long as 15 years. If the crime is related to Domestic Violence, then the sentence may be indeterminate. In addition, a 2.5 to 5 year period of post-release supervision is required, and that period may be longer if the crime was sexually motivated.
Burglary in the First Degree
Burglary in the First Degree, Penal Law Section 140.30, is charged when a person knowingly enters or remains unlawfully in a dwelling with the intent to commit a crime therein, and when entering or while inside or in immediate flight therefrom:
- He or another participant in the crime displays what appears to be a firearm that is loaded with ammunition and operable;
- He or another participant in the crime uses or threatens the immediate use of a dangerous instrument;
- He or another participant in the crime is armed with explosives or a deadly weapon; or
- He or another participant in the crime causes a physical injury to a non-participant in the crime
With regard to the first item above, it is an affirmative defense that the weapon was not loaded or not operable. That means that the burden is shifted to the defendant to prove that it was not a loaded, operable firearm. The burden on the defendant is only “by a preponderance of the evidence,” which is a much lower burden than the “beyond a reasonable doubt” standard required for the prosecution to prove elements of the crime. However, a person who successfully demonstrates that the firearm was not loaded or was not operable may still be convicted of Burglary in the Second or Third Degree.
Burglary in the First Degree is a class B felony and a violent felony offense. Conviction carries a mandatory minimum sentence of 5 years in prison, even for a first-time offender. The sentence may be as long as 25 years or, if the crime was related to Domestic Violence, may be indeterminate. In addition, the sentence requires 2.5 to 5 years of post-release supervision, which may be extended if the crime is sexually motivated.
Possession of Burglar’s Tools in New York
Possession of Burglar’s Tools, Penal Law Section 140.35, is a class A misdemeanor punishable by up to 1 year in jail. Typically, this crime is charged in addition to another, as the evidence is discovered in the course of an arrest for Burglary, Larceny or another crime.
