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

Burglary charges in New York are always felonies, divided into three degrees that turn on where the entry happened, whether anyone was hurt, and whether a weapon was involved. Third-degree burglary is a Class D felony punishable by up to seven years in prison. Second-degree burglary is a Class C violent felony carrying three and a half to fifteen years. First-degree burglary is a Class B violent felony with a mandatory five-year minimum and a twenty-five-year maximum. The charge does not require breaking in. It requires entering or remaining in a building without permission while intending to commit a crime inside.

What the Prosecution Has to Prove

Three elements have to come together for any burglary conviction: unlawful entry or remaining, intent to commit a crime inside, and a location that qualifies as a building (or, for the higher degrees, a dwelling). Beyond a reasonable doubt is the standard, and each element gets contested in its own way.

Unlawful entry does not require force. Walking through an unlocked door without authorization is enough. “Remaining unlawfully” catches the person who enters legally, like a customer in a store, and then stays past the point when permission ended with a plan to commit a crime. Hiding in a shop after closing to steal is the textbook version.

Intent is what separates burglary from trespass. The prosecution must show the defendant planned to commit a crime inside at the moment of entry or at the moment of deciding to remain unlawfully. The intended crime does not have to be theft. Assault, arson, or vandalism all qualify, and the intended crime does not have to be completed. Because intent sits inside someone’s head, prosecutors prove it circumstantially: burglary tools, gloves and masks, flight when confronted, prior statements.

Building and Dwelling

Both terms are broader than people expect, and they shape which degree applies.

A “building” under the Penal Law covers more than a traditional structure. It includes any vehicle or watercraft used for overnight lodging, any place used for business, any elementary or secondary school, and enclosed motor trucks or trailers. Separately secured units inside a building each count as their own building.¹

A “dwelling” is a building where someone usually sleeps at night. Whether the occupant was home at the time does not matter. A vacation home sitting empty for weeks still qualifies if someone regularly lodges there. The dwelling line is the single most common trigger that pushes a charge from third-degree up to second-degree.¹

The Three Degrees

Third-Degree Burglary

Third-degree is the baseline. Knowingly enter or remain unlawfully in a building, intending to commit a crime inside. No weapon, no injury, no dwelling required. Walking into an unlocked warehouse at night to steal merchandise is enough. Class D felony.²

Second-Degree Burglary

Second-degree adds one aggravating fact to the third-degree elements. Any one of the following moves the charge up:

The building is a dwelling.
The defendant is armed with a deadly weapon or explosives during entry, while inside, or while fleeing.
Someone who is not a participant suffers physical injury.
The defendant uses or threatens the immediate use of a dangerous instrument.
The defendant displays what appears to be a firearm.

The dwelling version is by far the most common second-degree charge. Class C violent felony.³

First-Degree Burglary

First-degree is the most serious charge. It requires two things together: the building must be a dwelling, and one of the weapon, injury, dangerous-instrument, or firearm-display factors must be present during entry, while inside, or during flight. Second-degree can be triggered by a dwelling alone or by the aggravating factors in a non-dwelling. First-degree needs both the dwelling and the danger.⁴

One wrinkle on the firearm-display factor: if the defendant displayed what appeared to be a firearm but the item was not actually loaded or capable of firing, that is an affirmative defense. The defendant carries the burden of proving it. Winning the point can knock the charge down a degree, but it does not eliminate burglary liability. A conviction for second- or third-degree burglary is still available to the prosecution.⁴

Prison Time and Sentencing

All three degrees are felonies. Second-degree and first-degree burglary are also classified as violent felonies, which activates a determinate-sentence framework with hard minimums.

Third-degree burglary (Class D felony): up to seven years in prison. Because it is not a violent felony, judges have more discretion and may impose probation for first-time offenders in appropriate cases.⁵
Second-degree burglary (Class C violent felony): a mandatory minimum of three and a half years, maximum of fifteen. Probation is generally off the table because a violent-felony conviction requires a determinate prison sentence.⁶
First-degree burglary (Class B violent felony): a mandatory minimum of five years, maximum of twenty-five.⁶

Prison is not the end of the sentence for a violent felony. Post-release supervision follows, running two and a half to five years for Class B and Class C violent felonies. Violating the conditions of that supervision can send a person back to prison.⁷

Prior felonies raise the stakes sharply. A second felony offender faces elevated minimums and maximums. For a Class C felony like second-degree burglary, the maximum rises to at least six years with a minimum set at half the maximum. For a Class D felony like third-degree burglary, the maximum rises to at least four years.⁸

Attempt and the Trespass Alternative

When someone takes a substantial step toward a burglary without completing it, the charge drops one felony class. Attempted third-degree burglary becomes a Class E felony. Attempted second-degree becomes a Class D. Attempted first-degree becomes a Class C.⁹

Criminal trespass is the charge most often used as an alternative. The difference is intent. Trespass requires only that a person knowingly enter or remain in a building or dwelling without permission; no plan to commit a crime inside is needed. Second-degree criminal trespass, which applies to dwellings, is a Class A misdemeanor punishable by up to a year in jail rather than years in state prison.¹⁰ Defense attorneys regularly negotiate burglary charges down to trespass when the proof of criminal intent is thin, and prosecutors sometimes accept the plea rather than risk acquittal at trial. The gap between a felony and a misdemeanor shows up everywhere afterward, from prison time to employment to voting rights.

Common Defenses

Most burglary cases are won or lost on intent and permission. The strongest defenses go straight at those elements.

No criminal intent at the time of entry. If the defendant walked in for a lawful reason and only formed criminal intent later, the chain breaks. A shopper who enters a store to browse and then impulsively pockets something has committed larceny, not burglary. The prosecution has to show the intent existed when the threshold was crossed.

Permission to enter. If the defendant was authorized to be in the building, the unlawful element fails. This comes up in shared living arrangements, workplaces, and properties where there is a prior relationship with the occupant. The question becomes whether permission was ever revoked and whether the defendant reasonably believed it still applied.

Mistaken identity. Burglary investigations lean on surveillance footage, witness descriptions, and fingerprint evidence. When identification is thin, the defense challenges whether the prosecution has the right person. Alibi evidence and inconsistent witness accounts are the standard tools.

Suppression of evidence. If police obtained evidence through an unlawful search or an arrest without probable cause, the defense can move to suppress. A successful suppression motion can gut the case even without touching the question of guilt.

Bail and Discovery

Bail turns on degree. Under New York’s current bail laws, judges can set bail or order remand only for qualifying offenses. First-degree burglary, a Class B violent felony, always qualifies. Second-degree burglary qualifies when charged on the weapon, injury, or other violent-felony aggravators. When second-degree is charged solely because the building is a dwelling, it qualifies for bail only if the prosecution alleges the defendant entered the living area of the dwelling.¹¹ Third-degree burglary is not a violent felony and generally is not bail-eligible, so most defendants charged at that level are released pretrial.

Discovery moves fast in New York. Within days of arraignment on an indictment, the prosecution must disclose witness statements, police reports, investigator notes, expert reports, surveillance recordings, and the names and contact information for witnesses with relevant evidence.¹² A defendant who cannot afford counsel is entitled to appointed counsel at arraignment.¹³

Restitution

Courts must consider restitution as part of sentencing. If the victim suffered out-of-pocket losses or the defendant obtained property through the offense, the judge is required to order restitution unless the interests of justice clearly dictate otherwise, and a decision not to order it has to be explained on the record.¹⁴

Restitution covers return of stolen property and compensation for actual out-of-pocket losses. Without the defendant’s consent, the amount is capped at $15,000 for a felony conviction. The court can exceed that cap with the defendant’s agreement or as a condition of probation, and it must make a specific finding of the dollar amount, holding a hearing if needed.¹⁴

Life After a Conviction

Employment and Licensing

A felony burglary conviction creates lasting barriers to employment. Background checks are standard, and industries that require state licensing often disqualify applicants with felony records. New York’s Correction Law Article 23-A requires employers to weigh factors like rehabilitation and time elapsed before denying work based on a conviction, but the practical reality remains difficult, especially in healthcare, finance, and law enforcement.

Housing

Private landlords routinely screen for criminal history, and public housing agencies impose their own rules. The New York City Housing Authority treats applicants convicted of Class A, B, or C felonies as ineligible for six years after completing their sentence (not counting parole or probation), and applicants convicted of Class D or E felonies as ineligible for five years. A first- or second-degree burglary conviction falls in the six-year group. Third-degree falls in the five-year group.¹⁵

Firearms

Federal law permanently prohibits anyone convicted of a crime punishable by more than one year in prison from possessing firearms or ammunition. Every degree of burglary in New York clears that threshold. A violation is a separate federal felony carrying up to ten years in prison, and for someone with three or more prior violent felony convictions, the Armed Career Criminal Act sets a fifteen-year mandatory minimum.¹⁶

Immigration

For non-citizens, a burglary conviction can trigger removal proceedings or bar naturalization. Depending on the degree and circumstances, burglary may be classified as an aggravated felony or a crime involving moral turpitude under federal immigration law. Those consequences are often irreversible after a plea, which is why immigration status should be evaluated before any plea decision.

Record Sealing

New York allows certain convictions to be sealed under CPL 160.59, but the statute excludes violent felony offenses. Second-degree and first-degree burglary are violent felonies under Penal Law 70.02 and cannot be sealed. Third-degree burglary, a non-violent Class D felony, may be eligible for sealing at least ten years after the sentence is imposed or ten years after release from prison, with time incarcerated excluded from the waiting period. No more than two eligible offenses can be sealed total, and only one of those may be a felony.¹⁷

1
New York State Senate. New York Consolidated Laws, Penal Law PEN 140.00
2
New York State Senate. New York Code PEN 140.20 – Burglary in the Third Degree
3
New York State Senate. New York Penal Law 140.25 – Burglary in the Second Degree
4
New York State Senate. New York Code PEN 140.30 – Burglary in the First Degree
5
New York State Senate. New York Code PEN 70.00 – Sentence of Imprisonment for Felony
6
New York State Senate. New York Code PEN 70.02 – Sentence of Imprisonment for Violent Felony Offense
7
New York State Senate. New York Code PEN 70.45 – Post-Release Supervision
8
New York State Senate. New York Code PEN 70.06 – Sentence of Imprisonment for Second Felony Offender
9
New York State Senate. New York Code PEN 110.05 – Attempt Penalties
10
New York State Senate. New York Code PEN 140.15 – Criminal Trespass in the Second Degree
11
New York State Senate. New York Code CPL 510.10 – Securing Order; When Required
12
New York State Senate. New York Code CPL 245.20 – Automatic Discovery
13
NY CourtHelp. Arraignments
14
New York State Senate. New York Code PEN 60.27 – Restitution and Reparation
15
New York City Housing Authority. Appendix B – Ineligibility Dispositions
16
Office of the Law Revision Counsel. 18 USC 922 – Unlawful Acts
17
New York State Senate. New York Code CPL 160.59 – Sealing of Certain Criminal Convictions