New York Penal Law 140.20: Burglary in the Third Degree

Burglary in the third degree under New York Penal Law section 140.20 is a Class D felony that applies when a person knowingly enters or remains unlawfully in a building with intent to commit a crime inside.¹ It is the least serious of New York’s three burglary degrees, but a conviction still carries up to seven years in prison and consequences that reach into employment, firearms rights, and immigration status long after any sentence ends.

The Three Elements the Prosecution Must Prove

To convict, the prosecution has to prove three things beyond a reasonable doubt: that you entered or remained in a building without authorization, that you knew the entry or presence was unauthorized, and that you intended to commit a crime inside.² Miss any one of the three and the charge fails.

Unlawful Entry or Remaining

A person “enters or remains unlawfully” when they have no license or privilege to be where they are. If a building is open to the public, you have a license to be inside unless the owner or someone authorized has personally told you to leave. A building partly open to the public — a store with an “Employees Only” stockroom, for example — gives you license for the public area only.³

Evidence of unlawful entry commonly includes surveillance footage, forced-entry damage like broken locks or windows, witness testimony, or proof that someone had already told the defendant to stay out.

Knowledge

The prosecution also has to show you knew you weren’t allowed in. A contractor who went to the wrong address and reasonably believed he had permission to be there lacks the “knowingly” element. Courts look at the surrounding circumstances: whether doors were locked, whether no-trespassing signs were posted, whether a security system was bypassed, and whether anyone warned the defendant off before the entry.

Intent to Commit a Crime Inside

This is the element that separates burglary from criminal trespass. Being somewhere you shouldn’t be, without any plan to commit a crime, is trespass. The intended crime can be anything — theft, assault, vandalism, a drug offense. Prosecutors don’t have to prove the crime was actually completed or even name the specific offense in the indictment. They just have to show you had a criminal purpose at the moment of entry or during the time you were unlawfully inside.

Timing matters. If you entered lawfully and formed a criminal plan only after you were already inside a store, the statute isn’t satisfied. Juries are allowed to infer intent from circumstances: what you were carrying, the time of day, your behavior inside, whether any legitimate reason for being there exists, and what you said when confronted.² An unauthorized entry at 3 a.m. through a broken window, combined with gloves and a pry bar, tells a story that doesn’t need a confession.

What Counts as a Building

New York defines “building” much more broadly than everyday usage. Beyond ordinary structures, the definition includes any vehicle or watercraft used for overnight lodging or for conducting business. It specifically covers elementary and secondary schools, enclosed motor trucks, and enclosed truck trailers.³ A food truck parked for the night, a houseboat at a marina, or a locked delivery trailer can all qualify.

When a building contains multiple separately secured or occupied units, like an office complex or a strip mall, each unit counts as its own building. Entering two locked offices in the same hallway can produce two burglary charges, not one.³

One important limit: third-degree burglary covers buildings generally, with no requirement that the building be a dwelling where someone actually lives. That dwelling piece is what pushes a case into the more serious degrees.

How Third-Degree Burglary Differs From the Higher Degrees

Two factors separate the three degrees: whether the building is a dwelling, and whether aggravating circumstances were present during the crime.

Third degree (PL 140.20) is knowingly entering or remaining unlawfully in any building with intent to commit a crime. No dwelling requirement, no aggravating factors needed. Class D felony, up to 7 years.¹
Second degree (PL 140.25) adds either that the building is a dwelling, or that during the entry, while inside, or during flight the defendant or an accomplice was armed, caused physical injury, used or threatened a dangerous instrument, or displayed what appeared to be a firearm. Class C felony, up to 15 years.⁴
First degree (PL 140.30) requires both: the building must be a dwelling and one of the aggravating factors above must apply. Class B felony, up to 25 years.⁵

If no one lives in the building and no weapons or violence are involved, the charge stays at third degree. Breaking into a home automatically bumps it to at least second degree.

Prison, Probation, and Fines

If You Have No Prior Felony

A first-time felony offender faces an indeterminate sentence with a maximum of up to seven years. The minimum period is at least one year and no more than one-third of the maximum. When the court believes incarceration is appropriate but a multi-year sentence would be disproportionate, it can impose a definite sentence of one year or less instead.⁶

Probation is also available. The court can impose a three-, four-, or five-year probation term if it finds that prison isn’t necessary to protect the public and the defendant would benefit from supervision.⁷ Violating a probation condition can send you back for resentencing.

If You Have a Prior Felony

Sentencing hardens considerably for anyone with a prior felony conviction within the past ten years. As a second felony offender for a Class D felony, the indeterminate sentence must be at least four years and no more than seven. The minimum period is fixed at half the maximum the court imposes.⁸ If the court sets the maximum at six years, the minimum is three. Probation and the one-year definite sentence are off the table. Prison is mandatory.

The ten-year lookback excludes time spent incarcerated, so the actual calendar window can stretch well beyond a decade.⁸

Financial Penalties

New York allows a fine equal to double the amount the defendant gained from the crime. Every felony conviction also triggers a mandatory surcharge of $300 and a crime victim assistance fee of $25.⁹ The court can also order restitution for property damage or stolen items.

What a Conviction Costs Beyond the Sentence

Firearms

Federal law prohibits anyone convicted of a crime punishable by more than one year in prison from possessing firearms or ammunition. Because third-degree burglary carries up to seven years, a conviction triggers the ban nationwide.¹⁰ It is a lifetime prohibition under federal law, and violating it is a separate federal felony.

Employment

A felony record creates immediate barriers in the job market. Private employers routinely run background checks, and a burglary conviction raises obvious concerns for any role involving access to property, cash, or security clearances. Federal government positions are not automatically closed, but agencies consider the nature of the offense, the time elapsed, and evidence of rehabilitation.

New York offers a Certificate of Relief from Disabilities that can remove mandatory legal bars to employment or professional licensing. You’re eligible if you have no more than one felony conviction, and you can apply through the Department of Corrections and Community Supervision either during supervision or after completing your sentence. The certificate doesn’t erase the conviction. It restores your right to be considered rather than automatically disqualified.

Immigration

For non-citizens, a third-degree burglary conviction can trigger removal proceedings. A burglary with a sentence of one year or more can be classified as an aggravated felony under federal immigration law, which carries mandatory removal and very limited relief. Even short of that threshold, burglary may qualify as a crime involving moral turpitude, which can make a non-citizen deportable or inadmissible depending on when the conviction occurred relative to admission to the United States. If you are not a U.S. citizen, immigration consequences belong at the center of your defense strategy, not at the margin.

Defenses That Commonly Work

Because the charge requires three specific elements, the defense usually attacks whichever one is weakest in the prosecution’s case.

No Criminal Intent

This is the most frequently contested piece. If you entered the building for a legitimate reason, such as to retrieve belongings, find a restroom, or seek shelter, and had no plan to commit a crime once inside, the intent element fails. The defense doesn’t have to prove the innocent purpose. The prosecution has to prove the criminal one beyond a reasonable doubt. That burden can be hard to meet when presence inside the building is the only real evidence and no crime was actually committed.

License or Privilege to Enter

If you had permission to be in the building, the unlawful entry element collapses. This comes up when someone enters during business hours, when there was an invitation from a resident or employee, or when the defendant reasonably believed authorization existed. The question is whether a reasonable person in your position would have believed they were allowed to be there.

Voluntary Intoxication

Burglary is a specific-intent crime, so evidence of severe intoxication can negate intent. The bar is high. You have to show you were so impaired that forming a deliberate criminal plan was impossible. General drunkenness, poor judgment, or confusion isn’t enough, and evidence of organized action like bringing tools or targeting a specific location undermines the defense quickly.

Misidentification

When the case relies on witness identification or low-quality surveillance footage, the defense may challenge whether the defendant was the person who entered at all. Burglaries often happen at night in poor lighting, and witnesses often have limited chances to see the perpetrator clearly.

Reducing a Third-Degree Burglary to Trespass

Most third-degree burglary cases never reach trial. Defense attorneys commonly negotiate a reduction to criminal trespass, a misdemeanor rather than a felony. That reduction eliminates the most damaging collateral consequences: the federal firearms ban, the aggravated felony risk for immigration purposes, and the harshest employment barriers. Leverage in these negotiations usually comes down to how strong the prosecution’s intent evidence is. A case where someone was found inside a building but nothing was taken and no tools were recovered is a very different negotiation from one with surveillance footage of goods going out a window.

1
New York State Senate. New York Penal Law 140.20 – Burglary in the Third Degree
2
New York State Unified Court System. New York Penal Law 140.20 – Burglary in the Third Degree
3
New York State Senate. New York Penal Code 140.00 – Criminal Trespass and Burglary; Definitions of Terms
4
New York State Senate. New York Penal Law 140.25 – Burglary in the Second Degree
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New York State Senate. New York Penal Law 140.30 – Burglary in the First Degree
6
New York State Senate. New York Penal Law 70.00 – Sentence of Imprisonment for Felony
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New York State Senate. New York Penal Law 65.00 – Sentence of Probation
8
New York State Senate. New York Penal Law 70.06 – Sentence of Imprisonment for Second Felony Offender
9
New York State Senate. New York Penal Law 60.35 – Mandatory Surcharge, Sex Offender Registration Fee, DNA Databank Fee, Supplemental Sex Offender Victim Fee and Crime Victim Assistance Fee
10
Office of the Law Revision Counsel. 18 USC 922 – Unlawful Acts