Attempted Burglary in New York: Charges, Penalties, and Defenses

Attempted burglary in New York is charged one felony class below the completed offense, so what you’re facing depends entirely on which degree of burglary prosecutors say you tried to commit. The floor is a Class E felony with up to four years in prison; the ceiling is a Class C violent felony carrying three and a half to fifteen years. Two of the three attempt levels are violent felonies, which means mandatory prison and no straight probation.

What Prosecutors Have to Prove

Under Penal Law 110.00, a criminal attempt is conduct, undertaken with intent to commit a crime, that “tends to effect the commission of such crime.”1New York State Senate. New York Penal Law 110.00 – Attempt to Commit a Crime New York reads that language through the “dangerous proximity” test. Your conduct has to have come dangerously close to completing the burglary. The standard jury instruction tells jurors the conduct “must go beyond planning and mere preparation” and “come dangerously close or very near to the completion of the intended crime.”2New York State Unified Court System. New York Criminal Jury Instructions – Penal Law 110.00

That is a harder standard than the “substantial step” test used in federal court and most other states. Someone who drives to a building with break-in tools and then leaves may have taken a substantial step under the Model Penal Code without ever reaching dangerous proximity under New York law.

Intent is the second half. Prosecutors have to show you specifically intended to enter or remain unlawfully in a building and commit a crime inside. Being near a building late at night, or even carrying tools that could be used for a break-in, doesn’t prove that on its own. Courts weigh everything together: what you had, what you said or wrote, where you were, and what you did in the minutes leading up to the arrest. In People v. Naradzay, the court sustained an attempted burglary conviction where the defendant had written out a plan, bought a shotgun and shells, driven to the neighborhood, loaded the weapon, and walked up to the edge of the victims’ property before police stopped him.3New York State Law Reporting Bureau. People v Naradzay

How the Degree of the Underlying Burglary Changes the Charge

The degree of the completed burglary the state accuses you of attempting sets the whole trajectory of the case: felony class, whether the attempt is a violent felony, sentencing floor and ceiling, bail eligibility, and later sealing eligibility.

Third Degree

Third-degree burglary under Penal Law 140.20 is the baseline: knowingly entering or remaining unlawfully in a building with intent to commit a crime inside. It’s a Class D felony.4New York State Senate. New York Penal Law 140.20 – Burglary in the Third Degree “Building” under Penal Law 140.00 is broader than most people expect. It reaches any structure, vehicle, or watercraft used for overnight lodging or for carrying on business, along with elementary and secondary schools and enclosed motor trucks or trailers.5New York State Senate. New York Penal Law 140.00 – Criminal Trespass and Burglary Definitions of Terms

Second Degree

Second-degree burglary under Penal Law 140.25 applies when the building is a “dwelling,” or when the accused or an accomplice was armed with a deadly weapon, caused physical injury, used or threatened force with a dangerous instrument, or displayed what appeared to be a firearm.6New York State Senate. New York Penal Law 140.25 – Burglary in the Second Degree It’s a Class C violent felony. The dwelling factor is easy to trigger: in People v. McCray, a Hilton Hotel counted as a dwelling because it was “usually occupied by a person lodging therein at night,” even though the defendant never entered a guest room.7New York State Law Reporting Bureau. People v McCray Seasonal homes and hotel rooms qualify.

First Degree

First-degree burglary under Penal Law 140.30 applies only to dwellings and requires one added aggravator: being armed with explosives or a deadly weapon, causing physical injury, using or threatening force with a dangerous instrument, or displaying what appears to be a firearm.8New York State Senate. New York Penal Law 140.30 – Burglary in the First Degree It’s a Class B violent felony. The statute carries one narrow affirmative defense: where the accusation is that you displayed what appeared to be a firearm, you can try to show it was not actually a loaded weapon capable of firing a shot that could cause death or serious injury.

Prison Time You’re Facing

Penal Law 110.05 drops the attempt one felony class below the completed offense.9New York State Senate. New York Penal Law 110.05 – Attempt to Commit a Crime Punishment That step-down controls both the class and whether the attempt still counts as a violent felony.

A determinate sentence means the judge picks a fixed prison term inside the statutory range, and you serve that term (minus limited good-time credits) plus mandatory post-release supervision. There is no parole board release halfway through.

Prior Felonies Raise the Floor

A prior violent felony pushes the mandatory minimums up sharply under Penal Law 70.04. Attempted first-degree burglary jumps to seven to fifteen years. Attempted second-degree burglary becomes five to seven.12New York State Senate. New York Penal Law 70.04 – Sentence of Imprisonment for Second Violent Felony Offender Those floors are mandatory. A prior non-violent felony triggers the different enhancement in Penal Law 70.06, which raises indeterminate ranges and sets the minimum at half the maximum.13New York State Senate. New York Penal Law 70.06 – Sentence of Imprisonment for Second Felony Offender

Restitution

Under Penal Law 60.27, judges have to consider restitution to the victim, and if they decline to order it they have to say why on the record.14New York State Senate. New York Penal Law 60.27 – Restitution and Reparation Broken doors, damaged locks, and alarm system repairs are the kinds of costs that get ordered paid.

Defenses That Fit an Attempt Charge

Renunciation

Attempt charges carry an affirmative defense the completed crime doesn’t. Under Penal Law 40.10, if you voluntarily and completely abandoned the criminal effort before the burglary was finished, that abandonment is a defense. Voluntarily is the operative word. Backing off because you heard sirens, spotted a camera, or decided to try again next week doesn’t qualify. The statute expressly says renunciation isn’t voluntary when motivated by a belief that detection has become more likely or by a plan to postpone the crime to another time or target.15New York State Senate. New York Penal Law 40.10 – Renunciation If abandonment alone wouldn’t have stopped the crime (say, an accomplice kept going), you must have taken affirmative steps to prevent completion.

Challenging Dangerous Proximity

Because New York requires conduct that came dangerously close to completing the crime, a lot of attempted burglary defenses focus on how many steps still stood between the defendant and actual entry. Driving to a neighborhood, watching a building, or carrying tools may all be preparation rather than attempt. Courts assess the totality of the circumstances, and the more that remained to be done, the stronger the argument.

Lack of Intent

Prosecutors have to prove you meant to enter unlawfully and commit a crime inside. If you were in the area for a legitimate reason, sought shelter, or believed you had permission to be there, the intent element may fail. Intent is usually proved circumstantially, and circumstantial proof can be attacked. Presence near a building at night is not, by itself, evidence you meant to burglarize it.

Identification and Suppression

Where the case turns on eyewitness identification, mistaken-identity challenges are common, especially when the witness saw the person briefly, under stress, or in poor lighting. If a lineup or photo array was suggestive, defense counsel can move to suppress under Criminal Procedure Law 710.30, which requires prosecutors to give pretrial notice of identification evidence they intend to use.16New York State Senate. New York Criminal Procedure Law 710.30 – Motion to Suppress Evidence Physical evidence obtained through an unlawful search can be challenged at a Mapp hearing.

Bail and Release

The degree matters again at arraignment. Under New York’s 2020 bail reform framework, judges can only set bail or remand for “qualifying offenses.” Attempted first-degree burglary qualifies as a violent felony under Penal Law 70.02, so bail or remand is available. Attempted second-degree burglary that involves entry into the living area of a dwelling is also a qualifying offense.17New York State Senate. New York Criminal Procedure Law 530.40 – Application for Recognizance or Bail Attempted third-degree burglary is a non-violent Class E felony, and judges will generally release you on recognizance or non-monetary conditions unless another qualifying-offense category applies.

What a Conviction Follows You Into

Sealing

Criminal Procedure Law 160.59 lets some New York convictions be sealed, but violent felony offenses are excluded.18New York State Senate. New York Criminal Procedure Law 160.59 – Sealing of Certain Convictions Attempted first-degree and attempted second-degree burglary can never be sealed. Only attempted third-degree burglary is potentially eligible, and even then you have to wait at least ten years after completing your sentence, you’re limited to sealing no more than two eligible offenses total (with no more than one felony), and the court weighs your record since the conviction before deciding.

Immigration

For non-citizens, the stakes climb sharply. Under 8 USC 1101, a burglary offense carrying a prison sentence of at least one year is an “aggravated felony.”19Office of the Law Revision Counsel. 8 USC 1101 – Definitions Aggravated felony convictions make a non-citizen deportable and generally bar most forms of relief from removal, including asylum and cancellation. Every level of attempted burglary in New York is a felony with a potential sentence above one year. Anyone without citizenship should have an immigration attorney working alongside criminal defense counsel.

Employment and Housing

New York Correction Law Article 23-A limits employers from automatically rejecting applicants because of a criminal record; they have to weigh factors like time elapsed, the nature of the offense, and its relationship to the job. Hiring barriers still exist in practice, particularly for jobs involving access to homes or businesses. On the housing side, private landlords often run background checks. For federally assisted housing, the only mandatory exclusions are for people convicted of manufacturing methamphetamine on the premises of federally assisted housing and people subject to lifetime sex offender registration.20HUD Exchange. Are Applicants With Felonies Banned From Public Housing or Any Other Housing Funded by HUD Beyond that, local housing authorities set their own criminal-history policies, and outcomes vary by location.