Learn the basics of New York's burglary and criminal trespass laws and their penalties.
By Kat McClain, Attorney · University of Houston Law Center
Updated by Rebecca Pirius, Attorney · Mitchell Hamline School of Law
Like all states, New York makes it a crime to go into a building or onto land belonging to someone else without permission. Such behavior can result in a criminal charge of burglary or criminal trespass. Some burglaries, such as armed burglaries or burglaries of dwellings, can result in very severe penalties.
Burglary and Criminal Trespass in New York
Burglary and criminal trespass share some common elements and legal definitions under New York law. Both crimes involve unlawful entry onto another's property. And penalties for burglary and trespass increase when that property is someone's home or "dwelling." A dwelling refers to any building that's usually occupied for overnight accommodations, such as primary and second residences, hotels, dorm rooms, and even hospitals.
Burglary and criminal trespass differ in several respects as well. Criminal trespass involves entering another's property without permission. A prosecutor must prove additional elements to secure a burglary conviction, including that the defendant "entered a building" (just one type of property) and "intended to commit a crime inside." These elements make the defendant's conduct more culpable than trespass because of the heightened danger to victims, which is reflected in harsher penalties for burglary convictions.
Burglary Crimes in New York
Under New York's Penal Laws, a person commits burglary by unlawfully entering or remaining in a building with the intent to commit any crime (felony or misdemeanor) inside.
Elements of Burglary Crimes
The prosecutor must prove all the elements of a burglary crime listed above beyond a reasonable doubt. Here are some key aspects of what this entails.
Building. Burglary crimes apply only when a defendant enters a "building," not land or other property. Like many other states, New York broadly defines buildings beyond the standard dictionary entry. Buildings include any structure, vehicle, or watercraft used for overnight lodging, for carrying on business, or as an elementary or secondary school; or any enclosed motor truck or trailer.
Enter unlawfully. An offender can unlawfully enter a building in a number of ways. For instance, any unwanted physical intrusion into a building, however slight, is an unlawful entry. This intrusion can be reaching an arm through an open window or pushing open a door and taking a step inside. Being inside a building without permission is also an unlawful entry, as is using intimidation or deception to gain access to a building.
Remain unlawfully. Another way to commit burglary is to remain unlawfully. This scenario means a defendant's initial entrance was lawful but their continuing presence is not. Say a party host decides it's time for everyone to leave, but one of the guests stays hidden in the apartment. They are remaining unlawfully in the building.
Intent to commit a crime inside. In order for a defendant to commit burglary, the defendant must have formed the intent to commit an offense at the time of entry into the building. A burglary occurs as soon as the offender enters the structure with the illicit intent, even if the intended crime or offense never occurs.
Proving intent. How does the prosecutor prove what's going on inside the defendant's head at the time of the crime? The prosecutor could luck out and the defendant might unwittingly admit their intent. For instance, a defendant gets caught trying to pry open a window and tells the cops he "only wanted to steal a few bucks." He's admitted his intent to commit a crime. Typically, the prosecutor will use circ*mstantial evidence to show intent. Say the defendant had a backpack with lighter fluid and matches in it. This evidence could show intent to break in and commit arson.
Elements of Attempted Burglary
If a defendant intended to burglarize a building and took steps towards that goal but didn't complete the offense, the crime is attempted burglary. A prosecutor might file attempted burglary charges if one interpretation of the evidence is that the defendant tried to enter the building but no part of their body physically intruded in the space. Say the defendant lifted a window but saw the owner inside and ran. If no physical intrusion occurred, the crime committed was attempted burglary, not burglary. However, had the defendant reached inside, this action would have completed the "entry" and the crime of burglary.
Note that the defendant's failure to complete their intended crime once inside (such as theft) doesn't make the offense attempted burglary. For this element, it's the intent that counts.
(N.Y. Penal Law §§ 110.00, 140.00, 140.20 (2022).)
Penalties for Burglary in New York
New York divides burglary offenses into three classifications. Harsher penalties apply when the burglary involves a dwelling or serious risk of harm to victims.
Third-Degree Burglary in NY
A person commits burglary in the third degree by knowingly entering or remaining unlawfully in a building with the intent to commit a crime inside. Such an offense is a class D felony and carries up to seven years in prison and a $5,000 fine or double the amount the offender gains from the crime (which is the same fine-related penalty for all levels of burglary).
Second-Degree Burglary in NY
An offender faces second-degree burglary penalties by unlawfully entering or remaining in a dwelling with the intent to commit a crime. Second-degree burglary charges also apply when the crime involves a building and the offender or an accomplice does any of the following:
- possesses an explosive or deadly weapon
- causes physical injury to any person who is not a participant in the crime
- uses or threatens the immediate use of a dangerous instrument, or
- displays what appears to be some type of gun or another firearm.
Burglary in the second degree constitutes a class C felony, whereby a guilty party can receive up to 15 years in prison and a fine.
First-Degree Burglary in NY
A defendant commits burglary in the first degree when the offense involves a dwelling and the defendant:
- is armed with explosives or a deadly weapon
- causes physical injury to any person who is not a participant in the crime
- uses or threatens the immediate use of a dangerous instrument, or
- displays what appears to be some type of gun or another firearm.
The law classifies this crime as a class B felony, which carries up to 25 years in prison and a fine.
Penalties for Attempted Burglary and Possession of Burglary Tools in New York
Depending on the circ*mstances of the crime, a defendant could end up with a conviction for attempted burglary or possession of burglary tools.
Attempted burglary. A defendant convicted of attempted burglary will face penalties of one felony class lower than the completed offense. So attempted burglary of the first degree will be a class C felony, attempted burglary of the second degree is a class D felony, and attempted burglary of the third degree is a class E felony.
Possession of burglar tools. A person commits the crime of possession of burglar's tools by possessing any tool or equipment adapted, designed, or commonly used to commit theft or a forcible entry. Most tools that can be used to commit theft or burglary—such as screwdrivers, bolt cutters, and lock picks—have legitimate uses as well. To prove possession is a crime, the prosecution must show the person intended for the tool to be used to commit or facilitate a theft or forcible entry. Such an offense constitutes a class A misdemeanor, punishable by up to 364 days in jail and a fine of up to $1,000.
(N.Y. Penal Law §§ 70.00, 70.15, 80.00, 80.05, 110.10, 140.00, 140.20, 140.25, 140.30, 140.35 (2022).)
Criminal Trespass in New York
Criminal trespass is a less serious crime than burglary but also easier for the prosecutor to prove. Trespass also protects more property than burglary, covering buildings, dwellings, and real property.
A person commits criminal trespass by entering onto another's property without permission from the owner or authorized user. Unlike burglary, this offense does not require an intent to commit a crime upon entry, as the unlawful entry itself constitutes the wrongdoing.
Penalties for Criminal Trespass in New York
New York punishes criminal trespass under four offense levels, each with increasing severity.
Criminal Trespass Violation in NY
A trespass that doesn't involve any of the additional factors listed below constitutes a violation, punishable by up to 15 days in jail and a $250 fine.
Third-Degree Criminal Trespass in NY
A person commits third-degree criminal trespass by knowingly entering or remaining unlawfully in a grade school or in a building on real property that is fenced or otherwise enclosed or used as a public housing project. Such an offense constitutes a class B misdemeanor, which subjects the trespasser to up to three months in jail and a $500 fine.
Second-Degree Criminal Trespass in NY
The crime of second-degree criminal trespass, a class A misdemeanor, occurs when a person knowingly enters or remains unlawfully in a dwelling. It's also second-degree criminal trespass for a registered sex offender to enter school grounds knowing their victim attends the school. The law punishes class A misdemeanors with up to 364 days in jail and a $1,000 fine.
First-Degree Criminal Trespass in NY
A person commits first-degree criminal trespass by entering a building without permission and being armed or knowing another participant in the crime is armed. Such an offense constitutes a class D felony and carries up to seven years in prison and a fine.
(N.Y. Penal Law §§ 70.00, 70.15, 80.00, 80.05, 140.05, 140.10, 140.15, 140.17 (2022).)
Talk to a Lawyer
A criminal conviction for burglary or trespass can have serious consequences, including incarceration time, fines, and a criminal record, which can make it hard to obtain a job, get a professional license, or rent an apartment. If you are charged with any crime in New York, contact a local criminal defense attorney. An experienced attorney can tell you what to expect in court and how to protect your rights and present the strongest possible defense.
