Burglary

What is Burglary?

Burglary is the entering or remaining unlawfully in a building with the intent to commit a crime therein. A building includes any structure, vehicle or watercraft used for overnight lodging of persons, or used for carrying on business.1 No breaking or forced entry is required. A person enters or remains unlawfully where s/he has no license or privilege to enter or remain.2 A person always has permission to enter a building open to the public unless s/he defies a protective order not to enter. The crime of burglary is complete as soon as a person enters or remains inside the building, regardless of whether any crime is committed.3 Second degree burglary, commonly known as residential burglary, is the entering of a building which is usually occupied by a person lodging therein at night. All other burglaries are generally of the third degree and commonly known as commercial burglaries.

What Are the Consequences?

Burglary can be charged in three different degrees, which means there are three levels of punishment. Let’s start with the lowest punishment: third degree burglary, commonly known as commercial burglary, is charged as a D felony. This means that you will receive between one (1) and seven (7) years in jail. If you are a predicate offender (prior felony within last ten years) then you will receive at minimum two (2) years in jail.

Second degree or residential burglary is treated more serious than commercial because the building entered is an inhabited dwelling, and thus there is a greater degree of privacy and intrusion. If you are convicted of this offense, it will be punished as a violent C felony4, which means that you will receive between three and half (3 ½) years and fifteen (15) years in jail. This punishment can be raised if you are a predicate offender (prior felony within ten years) to a minimum of five (5) years in jail, and seven (7) years in jail if the prior is considered violent.

First degree burglary is a form of aggravated residential burglary where you either: a) caused physical injury to any person who was not a participant in the crime, or b) were armed with a deadly weapon, or c) were armed with a dangerous instrument. If either of these three scenarios occurred, but you entered a building instead of a home, then you will be charged with second degree burglary. Since the crime is classified as a violent B violent felony5, you will receive between five (5) and twenty-five (25) years in jail. But, if you are a prior felony offender, your minimal punishment will be raised to eight (8) years, and ten (10) years if your prior is considered violent.

All burglary convictions include probation, and court fines and fees. In addition, it is important to know that just the mere record of your conviction will have serious consequences on your future educational, job, residential, and financial prospects. Also, the record of your burglary conviction can be used by the D.A. as a prior to raise your sentence the next time you are accused of burglary or theft.

Years In Prison
Class of FelonyFirst time felony offenderPredicate OffenderPredicate Violent Offender
MinMaxMinMin
B (first degree burglary)525810
C (second degree burglary, aka: residential burglary)3 1/21557
D (third degree burglary, aka: commercial burglary)172-
How We Can Help You

If you are being suspected of burglary, Lavy Law is the firm in the best position to help you. As a past deputy district attorney who handled countless of cases involving burglary, we know how to get your charge dismissed or reduced. As a counselor at law, we know how to empower you during this intimidating process. As a trial attorney, we know how to argue and win your case before a judge or jury.

We urge you to read our Recent Cases to see a case won just like your own.

If you are being accused of the charge of burglary, Contact Us for a consultation.


[1] Although not as commonly charged, a building also includes an elementary or secondary school, or an enclosed motor truck, or enclosed motor truck trailer. Penal Law § 140.00(2)

[2] Penal Law § 140.00(5)

[3] Penal Law § 140.00(5)

[4] Penal Law §70.2

[5] Penal Law §70.2

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