NYC Burglary Lawyer

A burglary lawyer in NYC defends a charge that does not require stealing anything. Under New York Penal Law article 140, burglary is entering or remaining unlawfully in a building with intent to commit any crime inside, and the top two degrees are violent felonies carrying mandatory prison.

That definition surprises most people charged with it. Burglary in New York is a trespass crime with an intent element attached, not a theft crime. Nothing has to be taken, nothing has to be broken, and there is no requirement that anyone be home.

Cedeño Law Group, PLLC defends felony and misdemeanor charges in the criminal courts of Manhattan, Brooklyn, Queens, the Bronx, and Staten Island. Founding partner Peter L. Cedeño began his career as an Assistant District Attorney in the Kings County District Attorney’s Office. This page is part of our NYC criminal defense practice.

What Is Burglary Under New York Law?

Unlawful presence plus criminal intent. Every degree of burglary requires that a person knowingly enter or remain unlawfully in a building with intent to commit a crime therein. Penal Law § 140.00 defines entering or remaining unlawfully as being somewhere the person is not licensed or privileged to be.

Two elements do the work, and the prosecution must prove both. The presence must be unlawful, meaning without license or privilege. And at the moment of the unlawful entry or the unlawful remaining, the person must have intended to commit some crime inside.

Intent is almost never proven directly. It is built from circumstances: the hour, the point of entry, what the person was carrying, what they said, and what they did once inside. That is precisely why intent is the element most often defeated, because an inference is not the same as proof.

Timing matters too. The intent must exist at the moment the presence becomes unlawful, either at entry or at the point the person unlawfully remains. Someone who entered lawfully and formed a criminal intent later has not necessarily committed burglary, which is a distinction that decides cases involving stores, offices, and shared residences.

What Are the Three Degrees of Burglary in New York?

Three degrees, escalating by what was entered and what the person had or did. The building type distinguishes the base offense, and weapons, injury, or the display of what appears to be a firearm raise the degree.

• Burglary in the third degree (§ 140.20): knowingly entering or remaining unlawfully in a building with intent to commit a crime inside. A Class D felony.
• Burglary in the second degree (§ 140.25): the same conduct where the building is a dwelling, or where the person or a participant is armed with explosives or a deadly weapon, causes physical injury to a non-participant, uses or threatens a dangerous instrument, or displays what appears to be a firearm. A Class C felony.
• Burglary in the first degree (§ 140.30): the same aggravating circumstances where the building entered is a dwelling. A Class B felony.

Notice how much turns on the word dwelling. Entering an unoccupied commercial building is a Class D felony. Entering an apartment is a Class C felony, three classes higher, on otherwise identical conduct. Whether a given space qualifies is a genuine issue in many NYC cases.

How Much Prison Time Does a Burglary Charge Carry in NYC?

Substantially more for the top two degrees. Burglary in the first degree is a Class B violent felony carrying a determinate sentence of five to twenty-five years. Burglary in the second degree is a Class C violent felony carrying three and a half to fifteen years. Both carry mandatory prison on conviction.

Burglary in the third degree sits in a different world. As a Class D non-violent felony it carries an indeterminate sentence with a maximum of seven years, and it does not carry a mandatory prison term, so probation, a split sentence, and other non-incarceratory dispositions remain available to the court.

That gap is the single most consequential fact in a New York burglary case. Moving a charge from second degree to third degree does not merely shorten a sentence, it removes the mandatory minimum entirely and puts every alternative disposition back on the table. Prior felony convictions change these ranges upward, sometimes dramatically.

What Happens After a Burglary Arrest in New York City?

Arraignment within roughly 24 hours, then a felony track. Burglary is charged as a felony in every degree, so the case begins in the criminal court of the borough where the offense allegedly occurred and proceeds toward grand jury presentation unless it is resolved or reduced first.

Because burglary in the first and second degrees are qualifying offenses, monetary bail is available in a way it is not for most charges, so the arraignment argument matters more here than in a typical misdemeanor case. Employment, housing, family ties in the borough, and any treatment history are what a court weighs on release.

The window before grand jury action is also the most productive period in the case. Evidence that undermines the intent element, or that shows the client had license to be where they were, is worth presenting to the prosecutor while charging decisions are still open. Once an indictment is voted, the same material is far less likely to change the top count.

Is Burglary a Violent Felony in New York?

The first two degrees are. Penal Law § 70.02 designates burglary in the first degree as a Class B violent felony offense and burglary in the second degree as a Class C violent felony offense. Burglary in the third degree is not a violent felony.

The violent felony designation carries consequences well beyond the sentence length. It triggers determinate sentencing rather than indeterminate, mandatory post-release supervision, and a different bail analysis, since qualifying offenses are among the charges for which a New York court may still set monetary bail.

It also follows a person permanently. A violent felony conviction affects predicate sentencing on any future case, and it is excluded from the automatic sealing available for many other convictions. Our NYC burglary lawyers treat the violent felony line as the primary objective in negotiation, because crossing back over it changes a client’s life more than any number of months.

Do You Have to Steal Anything to Be Convicted of Burglary?

No. The statute requires intent to commit a crime therein, not a completed theft. A person who enters unlawfully intending to commit assault, criminal mischief, or any other offense has committed burglary even if nothing is taken and the intended crime never happens.

This is why burglary charges appear in cases that have nothing to do with property. A person who forces their way into an ex-partner’s apartment during a dispute can be charged with burglary in the second degree, because the apartment is a dwelling and the intended crime inside was the confrontation.

Those cases frequently arrive alongside a family court proceeding, and the two dockets interact. Our family law related criminal defense attorneys handle burglary charges that grow out of a domestic dispute or an alleged order of protection violation, where a plea entered to resolve the criminal case can decide a custody case months later.

What Counts as a Building or a Dwelling?

More than you would expect. Penal Law § 140.00 defines a building to include any structure, vehicle, or watercraft used for overnight lodging, used by persons for carrying on business, or used as an elementary or secondary school. A dwelling is a building usually occupied by a person lodging in it at night.

The definitions create real litigation. Whether a particular structure was in use as a dwelling at the time, whether a mixed-use building’s commercial portion counts, and whether a vacant or under-renovation apartment still qualifies are all arguable, and the answer moves the case between felony classes.

Unlawful presence is equally contestable in New York City, where entry is often lawful at the outset. A person who walks into a store during business hours, or into a lobby they have a key to, has entered with license. The prosecution then has to prove the license was revoked or exceeded, which is a different and often weaker case than an alleged break-in.

What Are the Defenses to a Burglary Charge in NYC?

Intent and license are the usual battlegrounds. Because burglary requires both unlawful presence and intent to commit a crime inside, defeating either element defeats the charge, and neither is typically proven by direct evidence.

Defenses that carry real weight in New York burglary cases include:

• License or privilege to enter: a lease, a key, a shared residence, prior permission, or a space open to the public at the time.
• No intent to commit a crime inside: presence explained by something other than a criminal purpose, which is decisive because intent must exist at the time of the unlawful entry or remaining.
• Misidentification: common in cases built on brief observations, surveillance footage of poor quality, or a showup conducted shortly after the report.
• Suppression: where a stop, search, statement, or identification procedure violated the client’s rights, the evidence it produced can be excluded.
• The unloaded firearm affirmative defense: under § 140.30, that what was displayed was not a loaded weapon capable of causing death or serious physical injury, which is an affirmative defense to that subdivision.
• The building was not a dwelling: which reduces a first degree charge to second, or a second degree charge to third.

Where a weapon allegation drives the degree, the weapon charge itself is usually litigated in parallel, and our gun and weapon charge attorneys handle those counts on search and seizure grounds.

What Is Criminal Trespass and How Is It Different?

Trespass is burglary without the criminal intent. The trespass offenses in article 140 punish unlawful presence alone, so they are the natural reduction when the prosecution can prove a person was somewhere they should not have been but cannot prove what they intended to do there.

The trespass ladder runs:

• Trespass (§ 140.05): knowingly entering or remaining unlawfully on premises. A violation, not a crime.
• Criminal trespass in the third degree (§ 140.10): unlawful presence in fenced or enclosed property, a school, public housing, or a railroad right of way. A Class B misdemeanor.
• Criminal trespass in the second degree (§ 140.15): unlawful presence in a dwelling. A Class A misdemeanor.
• Criminal trespass in the first degree (§ 140.17): unlawful presence in a building while armed with an explosive, a deadly weapon, or a firearm with accessible ammunition. A Class D felony.

A reduction from burglary in the second degree to criminal trespass in the second degree takes a case from a Class C violent felony with a mandatory prison minimum to a Class A misdemeanor. Building the record that supports that reduction is usually where a burglary defense is actually won.

What Is Possession of Burglar’s Tools?

A companion charge under § 140.35. It covers possessing any tool or article adapted, designed, or commonly used for forcible entry or physical taking, under circumstances showing an intent that it be used that way. It is a Class A misdemeanor.

The statute reaches ordinary objects. Screwdrivers, pry bars, gloves, and magnets are not contraband, so the entire charge rests on the circumstances the prosecution says show criminal intent, which is contestable in most cases. A tradesperson, a locksmith, or anyone with an ordinary reason to carry tools has a real answer to the charge.

It is frequently charged alongside a burglary count, and sometimes it is what remains after the burglary count fails. A person acquitted or with the felony dismissed can still face this misdemeanor, so it deserves attention rather than being treated as an afterthought.

How Do Our NYC Burglary Lawyers Defend These Cases?

By attacking the intent element and the degree. Our NYC burglary lawyers work from the premise that most burglary cases are not won on whether the client was present, but on what the prosecution can prove about why.

The work begins at arraignment, where the violent felony designation drives the bail argument and the early posture of the case. Discovery is demanded and the People’s compliance tested, since the surveillance footage, the 911 recording, the property records, and the identification paperwork frequently contain the material that undermines the charge. Where a stop, a search, a statement, or an identification procedure is vulnerable, suppression is litigated.

Negotiation runs against that record with a specific objective: get the charge below the violent felony line. Where the case will not resolve acceptably, it is tried by counsel who prepared for trial from the first appearance. Where a conviction has already happened, our criminal appeals attorneys review the record for issues preserved at trial.

Why Choose Peter L. Cedeño for a NYC Burglary Case?

He has built these cases from the other side. Peter L. Cedeño served as an Assistant District Attorney in the Kings County District Attorney’s Office before entering private practice, and was admitted in New York in 1994.

Mr. Cedeño is a graduate of Pace University School of Law and is admitted in New York and in the United States District Courts for the Southern and Eastern Districts of New York. Knowing how a prosecutor evaluates an intent case, and what makes one worth reducing, is directly useful in a charge where intent is the contested element.

Contact a NYC Burglary Lawyer

A burglary charge in New York City is a felony from the first day, and for the top two degrees it carries mandatory prison. The degree is far more negotiable early in the case than after positions have hardened.

Cedeño Law Group, PLLC is located at 111 Broadway, Suite 811, New York, NY 10006, and defends clients throughout New York City and the surrounding counties. Contact our NYC burglary lawyers before speaking with police or prosecutors about your case.

Attorney Advertising. Prior results do not guarantee a similar outcome. Updated 2026. This page reflects New York Penal Law article 140 and § 70.02 as in effect in 2026. It is general information, not legal advice for any individual case or situation.