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New York Burglary Laws

Overview of New York Burglary Laws

A person is guilty of committing burglary in the third degree - the least of the burglary offenses - when he or she "knowingly enters or remains unlawfully" in a building with the intent to commit a crime therein. "Entry" of a building occurs when a person intrudes within a building, no matter how slightly, with any part of his or her body.

Examples of Entry 

Examples of entry include crossing the threshold of a building or reaching an arm through a window. Section 140 of the New York Penal Code states that a person enters or remains on a premises "unlawfully" when he or she "is not licensed or privileged to do so"; the entry need not be forcible in nature.

Two Elements of Burglary

In essence, burglary can be boiled down to two elements:

  1. trespass, or the entry or remaining on property while knowing that such act is unlawful and
  2. with the specific intent to commit a crime within a building. 

With regard to the latter element, the prosecution must prove that the defendant intended to commit a crime within the building at the time that he or she unlawfully entered or remained inside it. Thus, a person's mere commission of a crime while unlawfully inside a building does not constitute a burglary; he or she must have also had the contemporaneous intent to commit the crime upon entering or remaining therein.

Second and First Degree Burglary 

Third-degree burglary will be elevated to second-degree burglary when the defendant trespasses the building with the requisite specific intent and

  1. the building is a dwelling; or
  2. while entering the building or in immediate flight, the defendant or a participant in the crime: is armed with explosives or a deadly weapon, causes physical injury to a non-participant, or displays what appears to be a firearm. 

First-degree burglary occurs when the building is a dwelling and one of the other four aggravating elements for second-degree burglary is present.

Defenses to Burglary Charges

  • Lack of intent to trespass
  • Lack of intent to commit a crime within the building after committing the initial trespass
  • Weapon appearing to be a firearm was not loaded or operable (for first-degree burglary only)

NOTE: "Claim of right" is NOT a defense.

New York Burglary Laws At a Glance

The charges and penalties under New York's burglary laws are detailed below in the following chart. Remember, there are several defenses to the crime of burglary, whether commercial or residential.


Enhanced Penalties

Burglary carries a higher sentence if committed during any of the following:

  • 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), 
  • the defendant uses or threatens to use a dangerous instrument (any object used in a way that could cause death or serious injury).


  • Third Degree Burglary: Class D felony punishable by one to seven years in prison and a fine of up to $5,000
  • Second Degree Burglary:  Class C felony punishable by one to 15years in prison and a fine of up to $5,000.
  • First Degree Burglary: Class B felony punishable by one to 25 years in prison and a fine of up to $5,000.

Note: State laws are always subject to change through the passage of new legislation, rulings in the higher courts (including federal decisions), ballot initiatives, and other means. While we strive to provide the most current information available, please consult an attorney or conduct your own legal research to verify the state law(s) you are researching.

New York Burglary Laws Related Resources

Get Professional Legal Assistance With Your New York Burglary Case 

Burglary can be charged a number of different ways in New York, depending the facts of your case and if you are accused of using a dangerous or deadly weapon during the crime. If you have questions about how to defend yourself against these charges, you can get them answered by an experienced New York criminal defense attorney today.

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