Burglary and Criminal Trespass in New York

A person who commits burglary or criminal trespass in New York can face serious prison time and substantial financial penalties.

By , Attorney

Like all states, New York makes it a crime to go into a building or onto land belonging to someone else without permission. Such behavior can result in a charge for burglary (by going into a building with the intent to commit a crime) or trespass (by going onto property without permission). Some burglaries, such as armed burglaries or burglaries of dwellings, can result in very severe penalties.

Burglary and Criminal Trespass in New York

Burglary and criminal trespass share some common legal definitions, including the terms "building" and "dwelling."

Building. A building means any structure, vehicle, or watercraft used for overnight lodging, for carrying on business, or as an elementary or secondary school; or any enclosed motor truck or trailer.

Dwelling. A dwelling includes any building which is usually occupied by a person who lodges there at night. "Usually occupied" means the structure is adapted for occupancy and, on the date of the unlawful entry, an occupant could have been present. A dwelling doesn't need to be a full-time residence—the following structures are also considered dwellings: vacation homes, hotels, hospitals, attached garages, and hallways in apartment buildings (where entrances are locked and restricted to residents).

Burglary in New York: Crime and Penalties

Traditionally, burglary was defined as breaking and entering into a home at night with the intent to commit a felony inside. Today, most states have done away with these narrow requirements.

Burglary Elements in New York

Under New York's laws, a person commits burglary by entering or remaining unlawfully in a building with the intent to commit any crime (felony or misdemeanor) inside. Let's examine these elements further.

Enter or remain unlawfully. An offender enters or remains unlawfully if they are not licensed to be there or an authorized user did not give permission for their immediate or continued presence. An unlawful entry also includes a defendant's use of intimidation or deception to gain access.

Intent to commit a crime. In order for a defendant to commit burglary, the defendant must have formed the intent to commit an offense at the time of entry into the building. A burglary occurs as soon as the offender enters the structure with the illicit intent, even if the intended crime or offense never occurs.

(N.Y. Penal Law §§ 140.00, 140.20 (2020).)

Burglary Penalties in New York

New York divides burglary offenses into three classifications. Harsher penalties apply when the burglary involves a dwelling or serious risk of harm to victims.

Third-Degree Burglary

A person commits burglary in the third degree by knowingly entering or remaining unlawfully in a building with the intent to commit a crime inside. Such an offense is a class D felony and carries up to seven years in prison and a $5,000 fine or double the amount the offender gains from the crime (which is the same fine-related penalty for all levels of burglary).

Second-Degree Burglary

An offender faces second-degree burglary penalties by unlawfully entering or remaining in a dwelling with intent to commit a crime. Second-degree burglary charges also apply when the crime involves a building and the offender or an accomplice do any of the following:

  • possess an explosive or deadly weapon
  • cause physical injury to any person who is not a participant in the crime
  • use or threaten the immediate use of a dangerous instrument, or
  • display what appears to be some type of gun or another firearm.

Burglary in the second degree constitutes a class C felony, whereby a guilty party can receive up to 15 years in prison and a fine.

First-Degree Burglary

A defendant, who enters or remains unlawfully in a dwelling with the intent to commit a crime inside, commits burglary in the first degree while also doing any one of these:

  • being armed with explosive or a deadly weapon
  • causing physical injury to any person who is not a participant in the crime
  • using or threatening the immediate use of a dangerous instrument, or
  • displaying what appears to be some type of gun or another firearm.

The law classifies this crime as a class B felony, which carries up to 25 years in prison and a fine.

Possession of Burglar's Tools

A person commits the crime of possession of burglar's tools by possessing any tool or equipment adapted, designed, or commonly used to commit theft or a forcible entry. Most tools that can be used to commit theft or burglary—such as screwdrivers, bolt cutters, and lock picks—have legitimate uses as well. To prove possession is a crime, the prosecution must show the person intended for the tool to be used to commit or facilitate a theft or forcible entry. Such an offense constitutes a class A misdemeanor, punishable by up to 364 days in jail and a fine of up to $1,000.

(N.Y. Penal Law §§ 70.00, 70.15, 80.00, 80.05, 140.00, 140.20, 140.25, 140.30, 140.35 (2020).)

Criminal Trespass in New York: Crime and Penalties

Criminal trespass is a less serious crime than burglary but also easier for the prosecutor to prove. Trespass also protects more property than burglary, covering buildings, dwellings, and real property.

Definition of Criminal Trespass

A person commits criminal trespass by entering onto another's property without permission from the owner or authorized user. Unlike burglary, this offense does not require an intent to commit a crime upon entry, as the unlawful entry itself constitutes the wrongdoing.

Penalties for Criminal Trespass

New York punishes criminal trespass under four offense levels, each with increasing severity.

Criminal trespass violation. A trespass that doesn't involve any of the additional factors listed below constitutes a violation, punishable by up to 15 days in jail and a $250 fine.

Third-degree criminal trespass. A person commits third-degree criminal trespass by knowingly entering or remaining unlawfully in a grade school or in a building on real property that is fenced or otherwise enclosed or used as a public housing project. Such an offense constitutes a class B misdemeanor, which subjects the trespasser to up to three months in jail and a $500 fine.

Second-degree criminal trespass. The crime of second-degree criminal trespass, a class A misdemeanor, occurs when a person knowingly enters or remains unlawfully in a dwelling. It's also second-degree criminal trespass for a registered sex offender to enter on school grounds knowing their victim attends the school. The law punishes class A misdemeanors with up to 364 days in jail and a $1,000 fine.

First-degree criminal trespass. A person commits first-degree criminal trespass by entering a building without permission and being armed or knowing another participant in the crime is armed. Such an offense constitutes a class D felony and carries up to seven years in prison and a fine.

(N.Y. Penal Law §§ 70.00, 70.15, 80.00, 80.05, 140.05, 140.10, 140.15, 140.17 (2020).)

Talk to a Lawyer

A criminal conviction for burglary, trespass, or possession of burglar's tools can have serious consequences, including incarceration time, fines, and a criminal record, which can make it hard to obtain a job, get a professional license, or rent an apartment. If you are charged with any crime in New York, contact a local criminal defense attorney. An experienced attorney can tell you what to expect in court and how to protect your rights and present the strongest possible defense.

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