Burglary and Home Invasions in New York

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 (going into a building with the intent to commit a crime) or trespass (going onto property without permission). Some burglaries, such as armed burglaries or home invasion burglaries, can result in very serious penalties. For more information on these crimes, see Home Invasions, Burglary: Penalties and Sentencing, and Trespassing Penalties.


Traditionally, burglary was defined as breaking and entering into a home at night with the intent to commit a felony (any crime punishable by time in state prison) inside. Today, most states have done away with these narrow requirements. Under New York’s laws, a person commits burglary (also called burglary in the third degree) by entering a building without permission, with the intent to commit a crime inside. “Building” is broadly defined to include structures as well as trailers and boats or vehicles used for sleeping or carrying on a business. So, a houseboat would be considered a building under New York’s burglary law. (N.Y. Pen. Law § § 140.00, 140.20.)

First and second degree burglary (including home invasion burglary)

All burglaries are punished more severely if during the crime or the escape:

  • the defendant is armed with explosives or a deadly weapon or displays what appears to be a firearm
  • the defendant injures someone (other than a participant in the crime), or
  • the defendant uses or threatens to use a dangerous instrument (any object used in a way that could cause death or serious injury, such as a crowbar used to hit someone).

These armed or violent burglaries are second degree burglaries, as are burglaries of dwellings (home invasion burglaries). However, if the building is a dwelling and one of these aggravating factors is present, then the crime is first degree burglary. A dwelling is any place where a person normally sleeps at night, such as an apartment or a dorm room. A trailer in which a person sleeps could also be considered a dwelling. (N.Y. Pen. Law § § 140.00, 140.25, 140.30.)

Intent to commit a crime

The defendant’s intent to commit a crime is generally determined by the circumstances, and the prosecutor is not required to establish exactly what defendant is thinking. For example, if the victim testified that defendant forced his way into the victim’s apartment and tried to assault her before she fought him off, then a jury could probably conclude that the defendant entered the apartment with the intent to commit a crime.

The crime of burglary occurs as soon as the defendant enters into the building with the illicit intent, even if the intended crime never occurs. Oftentimes, the defendant can also be convicted of committing or attempting the intended crime.

Burglar’s Tools

New York law also criminalizes the possession of tools normally used to commit theft. 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 under circumstances that show either an intent to use the tool to commit theft or knowledge that someone else is going to use the tool to commit theft. (N.Y. Pen. Law § 140.35.)

Most tools that can be used to commit theft—such as screwdrivers, bolt cutters, and lock picks—also have legitimate uses as well. The key issue is whether the tool is possessed with the intent to use it to commit theft. This intent can usually be determined by the circumstances. For example, a person found trying to enter someone else’s vehicle with a screwdriver could be convicted of possession of burglar’s tools. For more information on how even everyday items can become burglar’s tools, see Burglary Tools.


Trespass is a less serious crime than burglary. In New York, a person commits trespass by entering onto property without permission from the owner. Trespass is punished more severely if:

  • the land is fenced
  • the property is a school or a public housing project
  • the property is part of a railroad “No Trespassing” area
  • the property is a dwelling, or
  • the defendant is a registered sex offender and the property is a school attended by the victim of the sex offense.

For example, a person who is protesting outside a store and is asked by police to move and refuses could be convicted of trespass. A person commits first degree trespass, the most serious trespass offense in New York, by entering a building without permission when either the defendant or another participant in the crime is armed and defendant is aware of that fact. For example, a couple who forces their way into an apartment with a loaded shotgun could be convicted of first degree trespass. (N.Y. Pen. Law § § 140.05, 140.10, 140.15, 140.17.)


Burglary in the third degree is a class D felony, punishable by one to seven years in prison and a fine up to $5,000. Burglary in the second degree is a class C felony, punishable by one to 15 years in prison and a fine of up to $5,000. First degree burglary is a class B felony, punishable by one to 25 years and a fine. Possession of burglar’s tools is a class A misdemeanor, punishable by up to one year in jail and a fine of up to $1,000. First degree trespass is a class D felony. Otherwise, trespass may be punishable by a fine only, or as a class A misdemeanor.

New York’s sentencing laws can be complicated. For more information, see New York Misdemeanor Crimes by Class and Sentences and New York Felony Crimes by Class and Sentences.

Obtaining Legal Assistance

A criminal conviction for burglary, trespass, or possession of burglar’s tools can have serious consequences, including time in prison or jail, a fine, and a criminal record, which can make it hard to obtain a job or a professional license or even rent an apartment. If you are charged with any crime in New York, you should talk to a local criminal defense attorney. An 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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