Let me be straight with you: if you’re facing burglary charges in New York, you’re in serious trouble. This isn’t a speeding ticket or a minor misdemeanor that’ll blow over. Unlike many other states, New York classifies all burglary offenses as felonies, which means a conviction can result in significant prison time, substantial fines, and a permanent criminal record that follows you everywhere.
But here’s the thing. Being charged doesn’t mean you’re convicted. There are powerful defense strategies available, and understanding your options is the first step toward protecting your rights and your freedom.
The skilled burglary lawyers in NY at Lebedin Kofman LLP are prepared to guide you through the complexities of burglary charges and protect your constitutional rights. We understand the stress and uncertainty that burglary accusations can cause, and we are committed to providing knowledgeable, strategic legal representation tailored to your unique circumstances. Let us help protect your rights and defend your future. Contact us today at (646) 663-4430 to arrange a free consultation and learn more about how we can assist you.
What Constitutes Burglary in New York?
Under Article 140 of the New York Penal Law, burglary is defined as knowingly entering or remaining unlawfully in a building with the intent to commit a crime inside. Here’s what catches most people off guard: you don’t need to actually steal anything or complete any criminal act. The mere intent to commit a crime upon entry is sufficient for a burglary charge.
Think about that for a second. You could walk into a building planning to steal something, change your mind, and walk out empty-handed. You’re still guilty of burglary under New York law.
Burglary differs from other crimes in several key ways. Unlike robbery, which requires taking property directly from a person through force or threat, burglary focuses on unlawful entry with criminal intent. Similarly, burglary is distinct from criminal trespass because trespass involves only unauthorized entry without the additional element of intent to commit a crime.
The Three Degrees of Burglary in New York
New York law categorizes burglary into three degrees, each carrying different penalties based on specific circumstances.
Burglary in the Third Degree
Burglary in the Third Degree (NY Penal Law § 140.20) is the least serious burglary charge and occurs when someone knowingly enters or remains unlawfully in a building with intent to commit a crime. This is a Class D felony with potential sentences ranging from one to seven years in prison.
Third-degree burglary is not classified as a violent felony, which can affect sentencing considerations. This distinction matters because violent felonies carry mandatory minimum sentences and harsher consequences.
Burglary in the Second Degree
Burglary in the Second Degree (NY Penal Law § 140.25) elevates the charge when additional aggravating factors are present. This Class C violent felony applies when someone unlawfully enters a building with intent to commit a crime and any of the following apply:
- The building is a dwelling (residence)
- The person is armed with a deadly weapon or explosives
- The person causes physical injury to a non-participant
- The person uses or threatens to use a dangerous instrument
- The person displays what appears to be a firearm
The mandatory minimum sentence is 3.5 years in prison, with a maximum of 15 years. That “mandatory minimum” part is crucial. It means the judge has no discretion to give you less time if you’re convicted.
Burglary in the First Degree
Burglary in the First Degree (NY Penal Law § 140.30) is the most serious burglary offense and represents a Class B violent felony. This charge applies when someone unlawfully enters or remains in a dwelling with intent to commit a crime and engages in one of the aggravating factors listed above.
Sentences range from a minimum of five years to a maximum of 25 years in prison. We’re talking about potentially spending a quarter century behind bars.
Critical Elements Prosecutors Must Prove
To secure a burglary conviction, prosecutors bear the burden of proving specific elements beyond a reasonable doubt. Understanding these elements is essential because your defense strategy will focus on creating doubt about one or more of these components.
Unlawful Entry or Remaining
The prosecution must establish that you entered the building without permission or remained there after your authorization expired. The entry doesn’t need to involve breaking or force. Simply entering through an unlocked door or open window can constitute unlawful entry if you lack permission.
I’ve seen cases where someone walked through an open door at a business after hours, thinking they were allowed to be there. That’s still unlawful entry if they didn’t have actual permission.
Criminal Intent
This is perhaps the most critical element of any burglary charge. The state must demonstrate that at the time of entry or remaining, you specifically intended to commit a crime inside the building. Intent cannot be formed after you’re already lawfully inside. It must exist at the moment of entry.
This intent element distinguishes burglary from simple trespass and provides fertile ground for defense strategies. If you entered a building for a legitimate reason, even if you were technically trespassing, you’re not guilty of burglary.
Aggravating Factors
For second and first-degree burglary charges, prosecutors must also prove aggravating factors such as the involvement of weapons, injury to others, or that the building was a dwelling. Notably, displaying what “appears to be” a firearm is sufficient. The weapon doesn’t need to be real or loaded.
This means someone could face first-degree burglary charges for using a toy gun during a home invasion. The law doesn’t care if it was fake. What matters is whether it appeared to be real.
Effective Defense Strategies for Burglary Charges
An experienced criminal defense attorney can employ various strategies depending on the specific facts of your case. The following defenses have proven effective in challenging burglary charges in New York courts.
Challenging Criminal Intent
Since criminal intent is a required element for burglary, demonstrating a lack of intent to commit a crime can be a powerful defense. If your attorney can show that you entered the building for a legitimate purpose or without any plan to commit a crime, the burglary charge cannot stand.
For example, if you entered a building seeking shelter from dangerous weather, looking for a lost item you believed was yours, or under the mistaken belief that you had permission to be there, these circumstances negate the intent element.
Your defense lawyer will gather evidence such as communications, witness statements, or circumstances surrounding your entry to demonstrate your lack of criminal intent. I’ve successfully defended clients by showing they entered a property to retrieve their own belongings after a breakup, or because they genuinely believed they had permission to be there.
Establishing Consent or Permission
Consent is a complete defense to burglary charges because it eliminates the “unlawful” element of entry. If you can demonstrate that you had the property owner’s permission to enter, or reasonably believed you had such permission, the foundation of the burglary charge collapses.
Your attorney may present text messages, emails, witness testimony, or other evidence showing that you were invited to enter or had a legitimate reason to believe your presence was authorized. This defense can also apply when there was a misunderstanding about the scope of permission.
For example, if you were invited into one part of a building but entered another area by mistake, that’s not burglary. It’s a misunderstanding.
Proving Mistaken Identity
Mistaken identity is a compelling defense when the wrong person has been accused of burglary. Eyewitness identifications are notoriously unreliable, particularly when made under stressful conditions, poor lighting, cross-racial circumstances, or when significant time has passed.
Your defense attorney will challenge the reliability of any identification by questioning witnesses, examining surveillance footage, presenting alibi evidence, or highlighting factors that could have led to misidentification. If you can establish that you were elsewhere when the burglary occurred, or that physical evidence doesn’t match you, this creates reasonable doubt about your guilt.
I’ve seen cases where witnesses were absolutely certain they identified the right person, only to have video evidence prove they were wrong. Human memory is fallible, especially under stress.
Challenging Unlawful Search and Seizure
The Fourth Amendment protects against unreasonable searches and seizures, and this protection is vigorously enforced in New York. If law enforcement violated your constitutional rights during their investigation, any evidence obtained through an illegal search may be suppressed and cannot be used against you.
Common violations include:
- Searching your home, vehicle, or person without a valid warrant when one was required
- Conducting searches that exceed the scope of a warrant
- Stopping or frisking you without reasonable suspicion
- Coercing consent to search
Your attorney will file a motion to suppress any evidence obtained through these constitutional violations, which can significantly weaken the prosecution’s case or lead to dismissal of charges.
Demonstrating Insufficient Evidence
The prosecution must prove every element of burglary beyond a reasonable doubt. Your defense attorney will scrutinize the evidence to identify weaknesses, gaps, or inconsistencies that prevent the state from meeting this high burden.
This strategy involves challenging the credibility of witnesses, questioning the reliability of forensic evidence, highlighting contradictions in police reports, or demonstrating that circumstantial evidence is equally consistent with innocence. If the prosecution cannot establish each required element with sufficient proof, your attorney can argue for reduced charges or dismissal.
Other Defense Strategies
Additional defenses may apply depending on your specific circumstances. If you owned the property or had a legitimate claim of right to items inside, this can negate criminal intent. In some cases, duress, where you were forced or threatened into committing the burglary, may provide a defense.
Mental impairment or intoxication at the time of entry might also affect whether you formed the required criminal intent, though these defenses are fact-specific and require careful legal analysis.
The Role of Plea Bargaining
While fighting charges at trial is sometimes necessary, the vast majority of criminal cases in New York are resolved through plea bargaining. A plea bargain is a negotiated agreement where you plead guilty to a particular charge in exchange for some form of leniency, typically a reduced charge, lighter sentence, or dismissal of certain counts.
An experienced criminal defense attorney plays a crucial role in plea negotiations. Your lawyer will assess the strength of the prosecution’s evidence, identify weaknesses in their case, and leverage these factors to negotiate the most favorable outcome possible.
For example, your attorney might negotiate for a reduction from second-degree burglary to third-degree burglary, or from burglary to criminal trespass. This can dramatically reduce potential prison time. The difference between a violent felony and a non-violent felony can literally be years of your life.
Plea bargaining can offer several advantages:
- Certainty of outcome
- Reduced penalties
- Faster resolution
- Potentially avoiding a permanent felony conviction
However, accepting a plea bargain means waiving important rights, including your right to trial, to confront witnesses, and against self-incrimination. Your attorney will carefully explain the pros and cons of any plea offer and advise you on whether accepting the deal is in your best interest based on the specific facts of your case.
Enhanced Penalties for Prior Convictions
If you have a prior felony conviction, New York’s predicate felony laws can significantly increase your sentence. For defendants classified as predicate felons, those convicted of a felony within the past ten years, mandatory minimum sentences are substantially higher.
For example, while a first-time offender convicted of second-degree burglary faces a mandatory minimum of 3.5 years, a predicate felon convicted of the same charge faces a mandatory minimum of seven years in prison. For violent felonies like first and second-degree burglary, these enhanced sentences become even more severe.
Understanding how prior convictions affect your current case is essential, and an experienced attorney can sometimes challenge whether a prior conviction qualifies as a predicate or argue for exceptions based on the circumstances.
The Criminal Justice Process: What to Expect
Understanding the criminal justice process can help reduce anxiety and allow you to make informed decisions.
Arrest and Arraignment
If you’re arrested for burglary, you’ll be taken to the police precinct for processing, then to Central Booking where you’ll await arraignment. Arraignment is your first court appearance and typically must occur within 24 hours of arrest.
At arraignment, the charges are formally presented, you’ll enter a plea (almost always “not guilty” at this stage), and the judge will make decisions about bail or release conditions. Having a private criminal defense attorney present at your arraignment is enormously beneficial, as they can advocate for your release and begin building your defense immediately.
Pre-Trial Proceedings
After arraignment, your case proceeds through pre-trial proceedings including discovery (exchange of evidence), motion practice (where your attorney challenges evidence or raises legal issues), and conferences aimed at resolving the case. These proceedings can last months and provide opportunities for your attorney to negotiate with prosecutors or prepare for trial.
Diversion Programs
In some cases, diversion programs may be available as alternatives to traditional prosecution. These programs focus on rehabilitation rather than punishment and can lead to reduced charges or dismissal upon successful completion.
Eligibility typically depends on factors like the offense type, your criminal history, and willingness to participate in required services. Your attorney can determine whether you qualify for any diversionary programs and advocate for your acceptance.
Why Hiring an Experienced Criminal Defense Attorney is Essential
The consequences of a burglary conviction extend far beyond prison time and fines. A felony conviction creates a permanent criminal record that can haunt you for years, affecting:
- Employment prospects
- Professional licensing
- Housing opportunities
- Educational access
- Your right to vote or possess firearms
An experienced New York criminal defense attorney provides invaluable advantages throughout your case. From the moment of arrest, your lawyer protects your constitutional rights, advises you on interactions with law enforcement, and begins investigating your case immediately.
Your attorney will conduct a thorough investigation, gathering evidence, interviewing witnesses, examining police procedures, and identifying weaknesses in the prosecution’s case. They’ll develop a comprehensive defense strategy tailored to your specific circumstances, whether that involves challenging intent, proving consent, establishing mistaken identity, or suppressing illegally obtained evidence.
Throughout the process, your lawyer serves as your advocate and advisor, explaining complex legal concepts, negotiating with prosecutors, presenting your case persuasively in court, and fighting aggressively to protect your freedom and future. Many criminal defense attorneys have experience as former prosecutors or judges, giving them unique insight into how the other side thinks and operates.
Take Action to Protect Your Future
If you’ve been charged with burglary or are under investigation, time is critical. The sooner you retain qualified legal representation, the more options your attorney will have to build a strong defense and potentially prevent charges from being filed or obtain favorable outcomes.
Don’t face these serious charges alone. Don’t talk to the police without a lawyer present. Don’t think you can explain your way out of this. Anything you say can and will be used against you, and I mean that literally.
Contact Lebedin Kofman LLP immediately at (646) 663-4430 for a consultation to discuss your case, understand your options, and begin building your defense. Your freedom, your future, and your rights are too important to leave to chance.
The stakes are too high to go it alone. Get the legal representation you deserve.
This article provides general information about facing burglary charges in New York. Every case is unique, and you should consult with a qualified criminal defense attorney about your specific situation.