Burglary in the Third Degree

Burglary in the Third Degree is the most common degree of all Burglary crimes charged throughout New York City, Westchester County and the surrounding Hudson Valley region. While arrests for and accusations of New York Penal Law 140.20 may occur more frequently than the more serious degrees, never underestimate the gravity of what you will soon face. A class “D” felony, your legal counsel and defense attorney will no doubt advise that this statute is relatively easy to violate and a conviction will unquestionably have life altering consequences. Irrespective of whether your alleged conduct involves a trespassory theft in a NYC retail store or something more or less nefarious, know that the right defense implemented by a lawyer familiar with the criminal justice system will make the difference between reliving your mistake in perpetuity or potentially walking away from your arrest unscathed.

Definition and Elements

You are guilty of Penal Law 140.20 if you knowingly enter or remain unlawfully in a building and have the intent to commit a crime. Of critical import, the NYPD or any other police agency need not have probable cause to believe that you committed a crime but merely that you intended to do so. For that matter, when prosecutors are tasked with presenting your case to a Grand Jury or securing a conviction at trial, they need not establish you intended to, for example, commit an Assault or Grand Larceny but that you merely had an intent to commit some offense.

Penalties and Punishment

The punishment for committing the class “D” non-violent felony of PL 140.20 is quite severe even if not as serious the Second and First Degree crime. Although incarceration is not mandatory, your sentencing judge is permitted to incarcerate you in jail for up to seven years. Alternatively, the court can sentence you to alternatives such as five years of probation, a conditional discharge, restitution, community service and/or fines and surcharges. Keep in mind that if you are a “predicate felon,” even if your prior conviction is from out of the state, the mandatory minimum is two to four years in prison.

Example and Hypothetical Scenario

To better grasp and understand Burglary in the Third Degree, the following examples are quite helpful. Keep in mind they are only scenarios where you might find yourself under arrest for this charge. The reality is that there are far too many possibilities to articulate on any website.

Example One

You don’t have permission to be in a commercial building. Maybe it is marked with a “No Trespassing” sign or you stay beyond the time permitted because you hid out inside after it closed to the public. Alternatively, you entered an area closed to off to non-employees within this building. The purpose of you entering or remaining was to steal something – cash, liquor, clothes or any other property. Unfortunately, the police or security officers learn of your presence and they catch you before you – even before stole anything. Have you violated the law and committed Burglary in the Third Degree? Assuming, of course, the District Attorney can prove your case beyond a reasonable doubt, the answer would likely be “yes.” Why? You (1) went into the building or stayed there without permission (a “trespass”) and (2) you had the intent to commit a crime – any crime. There is no requirement that the crime be completed at the time of your arrest. In its simplest terms, one way to look at Penal Law 140.20 is as trespassing in a building coupled with an intent to commit any crime.

Example Two

It is interesting to note that often after a person has been arrested for shoplifting and charged with Penal Law sections 155.25 and 165.40, Petit Larceny and Fifth Degree Criminal Possession of Stolen Property respectively, the store – Macys, Sephora, Bloomingdales, Century 21 – often revokes the right of the accused from entering again. This is commonly referred to as a “Trespass Notice.” If the accused does so, he or she would be trespassing. Compounding this, however, is if the prosecution can establish that you came back to the store with intent to commit a crime, such as to shoplift, you can be charged with Burglary in the Third Degree. Keeping the prosecution to it’s burden of proof, and not simply accepting the legitimacy of such a Trespass Notice can be key in the beginnings of any defense to this charge.

Related Offenses and Collateral Issues

While Burglary charges are most often associated with theft offenses such as Petit Larceny, Grand Larceny, and Robbery, there is no requirement that the crime committed inside of someone else’s real property must be theft-related. Other crimes that frequently serve as the basis for this offense include Assault and Criminal Contempt.

Your Case, Your Defense, Your Future

Any conviction, especially for a felony offense, is debilitating. Failure to take the steps to identify the right defense and secure evidence as early as possible can, and often will, compromise your ability to challenge and successfully limit your exposure or even exonerate yourself. Your best defense is to arm yourself with the criminal lawyers and former Manhattan prosecutors at Saland Law to advocate on your behalf to best ensure your career is preserved, licenses and certifications are not revoked or suspended and immigration status is not adversely impacted.

Call the Criminal Defense Team and former Manhattan prosecutors at (212) 312-7129 or contact us online today to discuss your case and possible defenses.