Burglary in the Second Degree

The basic language constituting Burglary in the Second Degree is somewhat similar to that of the Third Degree offense but with additional elements elevating this legally identified “violent crime.” Should you be arrested in NYC, Westchester County or elsewhere in the suburban Hudson Valley, your advocate – presumably an experienced criminal defense lawyer – must be able to break down the factors that elevate your conduct to this class “C” felony in violation of New York Penal Law 140.25. Upon doing so, and as you work together to prepare your defense, he or she can articulate how this offense falls right in the middle of all New York Burglary crimes in terms of its severity and potential punishment.

Penal Law 140.25(1)

At its core, if you enter or remain unlawfully in a building and you have an intent to commit a crime, then you have violated one of the three main Article 140 statutes codifying Burglary. If while entering, inside, or while leaving the building, you or another participant is armed with a deadly weapon (a gun, for example), causes a “physical injury” (something potentially as simple as a bloodied and swollen lip) to another person who is not involved in the crime, uses or threatens the use of a dangerous instrument (can be a lamp, vase or something dangerous based on the manner in which is used), or displays what appears to be a firearm, then you have committed NY Penal Law 140.25(1).

Penal Law 140.25(2)

Subsection (2) of Penal Law 140.25 is a part of a prosecutor’s extremely potent arsenal. If you enter or unlawfully remain in a building with the intent to commit a crime and that building is a “dwelling,” then the charge will be “bumped up.” As defined by Penal Law 140.00(3), a “dwelling” is a building usually occupied by a person at night for lodging, aka, an apartment or similar residence. The resident need not be home nor must the particular location you entered be used for lodging if the building, for example, is mix used.

Burglary in the Second Degree is a “C” violent felony punishable by a mandatory minimum term of incarceration of three and one half years up to a maximum fifteen years in state prison, as well as fines and surcharges. Keep in mind that if you have a prior felony in the preceding ten years, even if out of state, then the minimum you face would be either five or seven years incarceration depending on the nature of that earlier conviction. Simply, barring a strong defense, you cannot avoid jail upon conviction.

The scenario that many think of in terms of Second Degree Burglary is where a masked thief crawls through a window after scaling the fire escape and steals your computer, or whatever he or she finds, from your apartment. While this certainly satisfies the elements of Second Degree Burglary, remember that even if your masked perpetrator entered the deli in the space below your apartment and never stepped foot in your bedroom, he or she would still be in violation of the law. Even if there was no “dwelling” in the building, if the intruder punched out a worker or brandished a dangerous instrument such as a baseball bat during the course of his criminal conduct, then the crime is raised to a violation of Penal Law 140.25(2).

Burglary crimes are often related to other theft offenses such as Grand Larceny and Robbery. While Robbery always requires the use of force, and Grand Larceny typically requires some monetary threshold or type of stolen property, the focus or distinguishing aspect of this offense is that the theft occurs inside of a location that the perpetrator is not allowed to be in, such as a closed store or someone's home even if he or she merely had the intent to commit the theft or other act but did not reach that point or was unsuccessful. That said, any intent to commit a crime satisfies the elements of this offense whether it is theft related or not.

The best defense strategies will depend largely on the basis for this elevated charge – whether it is for causing physical injury, being armed with a weapon, or the premises being a dwelling. There is rarely an argument as to whether or not a premise is a dwelling or not – that is, whether people reside inside the building – but there may nonetheless be both a viable and strong defense. For example, did you have a legitimate reason to be there, did you in fact possess the requisite intent to commit a crime within the dwelling, and, for that matter, can you mitigate your arrest where you accidently entered the wrong location believing you were in another apartment, home, etc.?

No matter whether you were arrested by the Westchester County Police or the NYPD or you are prosecuted by the Queens County District Attorney’s Office or Brooklyn District Attorney’s Office, retaining the right counsel will provide you with the best opportunity to fight your charges through confronting witnesses, challenging evidence, or mitigating your conduct. Do not let law enforcement get or keep the upper hand. Take the steps you need to protect your immigration status, preserve your employment and maintain your professional licenses so that when your case is over your life and future is not.

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.