NYS Penal Law Burglary: Degrees, Tools, and Federal Exposure

Burglary under the New York State Penal Law is defined in Article 140 and split into three degrees, with sentences running from a few years in state prison up to 25 years depending on the type of building entered and what happened during the break-in. First- and second-degree burglary are classified as violent felonies, which means a conviction carries a mandatory minimum prison term that a judge cannot waive. A separate misdemeanor charge, possession of burglar’s tools, often appears alongside these counts.

What Makes a Break-In a Burglary

Every burglary charge in New York shares the same core elements: knowingly entering or remaining unlawfully in a building, with intent to commit a crime inside. The degree depends on the type of building and whether anything made the entry more dangerous.

Three definitions in PL 140.00 do most of the heavy lifting. A “building” is broader than it sounds: it covers any structure, vehicle, or watercraft used for overnight lodging or for carrying on business, plus elementary and secondary schools and enclosed motor trucks or truck trailers.¹ Each separately secured or occupied unit inside a larger structure counts as its own building, so entering two apartments in one complex can support two burglary counts.

A “dwelling” is a building where someone usually sleeps at night.¹ Whether anyone was home at the time is irrelevant; a vacation house still qualifies during the owner’s absence. “Enter or remain unlawfully” means being in a place without a license or privilege to be there. The “remain” piece catches a customer who hides until after closing or wanders into a restricted area of an otherwise public building.

The intended crime does not have to actually happen. Walking into a warehouse planning to steal satisfies the statute even if the person is caught at the threshold.

Burglary in the Third Degree (PL 140.20)

Third-degree burglary is the baseline. A person commits it by knowingly entering or remaining unlawfully in a building with intent to commit a crime inside.² It applies to any building, not only commercial ones, though dwelling cases almost always get charged at the second degree because the dwelling itself elevates the charge.

Third-degree burglary is a Class D felony carrying up to seven years in state prison.³ Because it is not a violent felony, judges have more discretion. Depending on the defendant’s record, probation or a shorter sentence can be available.

Burglary in the Second Degree (PL 140.25)

Second-degree burglary adds danger or a dwelling to the equation. The most common trigger is simply that the building entered is a dwelling.⁴ Breaking into a home to commit any crime inside is automatically second-degree burglary, whether or not anyone was there.

When the building is not a dwelling, the charge still reaches second degree if, during the entry, while inside, or during the immediate flight, the person or an accomplice:

Is armed with explosives or a deadly weapon
Causes physical injury to someone who was not involved in the crime
Uses or threatens the immediate use of a dangerous instrument
Displays what appears to be a firearm

The last factor reaches realistic-looking fake guns. A real, functioning weapon is not required.⁴

Second-degree burglary is a Class C violent felony. It carries up to 15 years in state prison with a mandatory minimum of three and a half years.⁵ Probation is not an option.

Burglary in the First Degree (PL 140.30)

First-degree burglary is the most serious property offense in the Penal Law, and it applies only to dwellings. The elements are the same as second-degree burglary of a dwelling, but with at least one of the four aggravating factors listed above present during the entry, the time inside, or the immediate escape.⁶

For the displayed-firearm factor, the statute provides an affirmative defense: the defendant can argue that the weapon was not loaded and not capable of firing a shot that could cause death or serious injury. That shifts the burden to the defense. If it fails, the full Class B violent felony conviction stands.

First-degree burglary carries up to 25 years in state prison and a mandatory minimum of five years.⁵ Probation is unavailable. A judge has discretion within the five-to-25-year range, but the floor is non-negotiable.

Possession of Burglar’s Tools (PL 140.35)

This charge targets preparation rather than the entry itself. A person commits the offense by possessing any tool designed or commonly used for forcing entry into a building or committing larceny by a physical taking, under circumstances evincing an intent to use it that way.⁷ Lockpicks, slim jims, and similar equipment are classic examples, though context matters more than the object. A locksmith on a service call is fine; the same tools outside a closed jewelry store at 3 a.m. are not.

The offense is a Class A misdemeanor with a maximum sentence of 364 days in local jail.⁸ New York set that ceiling at 364 days rather than a full year to avoid certain immigration consequences that attach at the one-year mark.

Trespass as a Lesser Charge

Burglary requires intent to commit a crime inside. Criminal trespass does not. That distinction gives defense attorneys room to negotiate a burglary count down to a trespass offense, which carries lighter penalties and, in some forms, is only a violation rather than a crime.⁹ The trespass ladder runs from a basic violation up to a Class D felony when the person was carrying explosives, a deadly weapon, or a loaded firearm.¹⁰

Post-Release Supervision

Prison is not the end of the sentence for a violent felony. Every determinate sentence for a Class B or C violent felony carries a period of post-release supervision between two and a half and five years.¹¹ Violating supervision terms can send the person back to prison. A 10-year first-degree burglary sentence can mean up to 15 years of combined incarceration and supervised release.

Consequences Beyond the Sentence

The ripple effects of a burglary conviction often outlast the sentence.

Firearms. Any felony burglary conviction permanently bars firearm and ammunition possession under federal law. 18 U.S.C. § 922(g) prohibits possession by anyone convicted of a crime punishable by more than one year of imprisonment.¹² All three degrees of New York burglary clear that threshold, so a conviction triggers a lifetime ban, and violating it is a separate federal felony.

Immigration. For a non-citizen, a felony burglary conviction can qualify as an aggravated felony when the court imposes a sentence of one year or more. That permanently bars the person from establishing good moral character for naturalization.¹³ Even convictions below that threshold can be treated as crimes involving moral turpitude, which can trigger deportation or block visa applications.¹⁴ This is why the 364-day misdemeanor ceiling matters so much in plea negotiations.

Professional licensing. A felony conviction can disqualify a person from regulated work. FINRA imposes a statutory disqualification on anyone convicted of any felony for 10 years from the date of conviction, blocking association with a member firm absent special approval.¹⁵ Similar bars reach law enforcement, healthcare, education, and legal work, and most licensing boards retain discretion to deny or revoke credentials based on felony convictions.

International travel. A burglary conviction can block entry into other countries. Canada treats people with criminal records as potentially inadmissible, though a person may eventually qualify through deemed rehabilitation or an individual rehabilitation application after enough time has passed since the sentence was completed.¹⁶

When Burglary Becomes a Federal Case

Most burglaries stay in state court, but two categories draw federal jurisdiction. Breaking into a federally insured bank, credit union, or savings institution falls under 18 U.S.C. § 2113.¹⁷ Entering a DEA-registered facility such as a pharmacy or lab with intent to steal controlled substances triggers 18 U.S.C. § 2118 when the replacement cost of the drugs is $500 or more, the person crossed state lines, or someone was killed or seriously injured. The base penalty is up to 20 years, rising to 25 if a dangerous weapon is used and up to life if someone dies.¹⁸

1
New York State Senate. New York Penal Law 140.00 – Criminal Trespass and Burglary Definitions of Terms
2
New York State Senate. New York Penal Code 140.20 – Burglary in the Third Degree
3
New York State Senate. New York Penal Law 70.00 – Sentence of Imprisonment for Felony
4
New York State Senate. New York Penal Code 140.25 – Burglary in the Second Degree
5
New York State Senate. New York Penal Law 70.02 – Sentence of Imprisonment for a Violent Felony Offense
6
New York State Senate. New York Penal Law 140.30 – Burglary in the First Degree
7
New York State Senate. New York Penal Code 140.35 – Possession of Burglars Tools
8
New York State Senate. New York Penal Law 70.15 – Sentences of Imprisonment for Misdemeanors
9
New York State Senate. New York Penal Law 140.05 – Trespass
10
New York State Senate. New York Penal Law 140.17 – Criminal Trespass in the First Degree
11
New York State Senate. New York Penal Law 70.45 – Determinate Sentence Post-Release Supervision
12
Office of the Law Revision Counsel. 18 USC 922 – Unlawful Acts
13
U.S. Citizenship and Immigration Services. Chapter 4 – Permanent Bars to Good Moral Character
14
U.S. Citizenship and Immigration Services. Chapter 5 – Conditional Bars for Acts in Statutory Period
15
FINRA. General Information on Statutory Disqualification and FINRA Eligibility Proceedings
16
Government of Canada. Overcome Criminal Convictions
17
Office of the Law Revision Counsel. 18 U.S. Code 2113 – Bank Robbery and Incidental Crimes
18
Office of the Law Revision Counsel. 18 USC 2118 – Robberies and Burglaries Involving Controlled Substances