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

Burglary charges in New York are always felonies, split into three degrees. 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 carrying a mandatory minimum of five years and a maximum of twenty-five. Which degree applies turns on where the entry happened, whether anyone was hurt, and whether a weapon was involved.¹

What Counts as Burglary in New York

Burglary is not about breaking in. Under the Penal Law, a person commits burglary by knowingly entering or remaining unlawfully in a building with intent to commit a crime inside. Walking through an unlocked door is enough to satisfy the entry element. Staying past the point where permission ended, with criminal intent, also qualifies. A shopper who hides in a store after closing to steal merchandise has “remained unlawfully.”

The intended crime does not have to be theft. Assault, arson, vandalism, or any other offense will do, and the prosecution does not need to prove the intended crime was actually completed. Intent is what separates burglary from trespassing, and it is the element defense attorneys attack most often.

The Three Degrees

Third-Degree Burglary

Third-degree burglary is the baseline. Knowingly enter or remain unlawfully in any building intending to commit a crime, and you have committed this offense. No weapon, no injury, no dwelling required. It is a Class D felony.²

Second-Degree Burglary

Second-degree burglary is charged when the basic elements are met and at least one aggravating factor is present. The building is a dwelling. Or the defendant was armed with a deadly weapon or explosives. Or someone who was not a participant was physically injured. Or the defendant used or threatened use of a dangerous instrument. Or the defendant displayed what appeared to be a firearm. The dwelling version is by far the most common way this charge is triggered. It is a Class C violent felony.³

First-Degree Burglary

First-degree burglary requires two things together: the building must be a dwelling, and one of the same aggravating factors listed above (weapon, injury, dangerous instrument, or apparent firearm) must be present during entry, while inside, or during flight. That combination is what elevates the charge to a Class B violent felony.⁴

If the defendant displayed what appeared to be a firearm but the weapon was not loaded or capable of firing, that is an affirmative defense the defendant must prove. Even a successful showing does not eliminate the case; it may reduce the degree but would not preclude a conviction for second- or third-degree burglary.⁴

Building and Dwelling: The Definitions That Decide the Degree

Both terms are broader than most people expect. A “building” is not limited to 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. If a building contains separately secured units, each unit counts as its own building for the purpose of the statute.⁵

A “dwelling” is a building where someone usually sleeps at night. Whether the occupant was home at the time is irrelevant. A vacation home that sits empty for weeks still counts if someone regularly lodges there. That definition is what turns many burglary cases into second-degree charges even when the alleged incident sounds like a simple break-in of an empty house.⁵

Penalties and Sentencing

Because second- and first-degree burglary are classified as violent felonies, they carry mandatory determinate prison terms. Probation is generally not available for those degrees. Third-degree burglary is a non-violent felony, so a judge has more sentencing discretion and probation is possible for a first-time offender in an appropriate case.

Third-degree burglary (Class D felony): up to seven years in prison.⁶
Second-degree burglary (Class C violent felony): a mandatory minimum of three and a half years and a maximum of fifteen years.¹
First-degree burglary (Class B violent felony): a mandatory minimum of five years and a maximum of twenty-five years.¹

Post-Release Supervision

After serving a violent-felony prison sentence, the defendant enters a period of post-release supervision with strict conditions. For Class B and Class C violent felonies, that period ranges from two and a half to five years. A violation can send the person back to prison.⁷

Repeat Offender Enhancements

A prior felony conviction raises the floor and ceiling. Sentenced as a second felony offender for a Class C felony, the maximum jumps to at least six years, with the minimum set at half the maximum. For a Class D felony, the maximum is at least four years.⁸

Attempted Burglary and Criminal Trespass

An attempt charge drops the burglary one felony class. Attempted third-degree becomes a Class E felony, attempted second-degree becomes a Class D felony, and attempted first-degree becomes a Class C felony, with penalty ranges shifting accordingly.⁹

Criminal trespass is the misdemeanor cousin. Second-degree criminal trespass applies when a person knowingly enters or remains unlawfully in a dwelling without any requirement of criminal intent inside. It is a Class A misdemeanor with a maximum of one year in jail.¹⁰ Defense attorneys often negotiate burglary charges down to trespass when the intent evidence is thin. The difference between a felony and a misdemeanor reaches into prison exposure, employment, and voting rights.

Common Defenses

Most burglary cases turn on intent or permission.

No criminal intent at the time of entry. If the defendant entered lawfully and only formed criminal intent later, the required link between entry and intent breaks. A person who enters a store to shop, then impulsively pockets merchandise, may have committed larceny but did not commit burglary. Timing matters, and it creates real space for defense.

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 tied to a prior or ongoing relationship. The question becomes whether permission was revoked or whether the defendant reasonably believed it still applied.

Mistaken identity. Burglary investigations lean on surveillance footage, witness descriptions, and fingerprint evidence. Thin identification opens the door to alibi evidence and cross-examination on inconsistent statements.

Suppression of evidence. Evidence obtained through an unlawful search or an arrest without probable cause can be suppressed on pretrial motion. If the court excludes key evidence, the remaining case may not hold together, and this can be the fastest route to dismissal.

Bail and Pretrial Release

Under New York’s bail statute, judges can only set bail or order remand for “qualifying offenses.” First-degree burglary always qualifies as a Class B violent felony. Second-degree burglary qualifies when the charge is based on weapons, injury, or the other violent-felony aggravating factors. When second-degree burglary 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. Third-degree burglary is not a violent felony and generally is not bail-eligible, so most defendants at that level are released pretrial without posting bail.¹¹

Restitution

New York courts must consider restitution as part of the sentence. 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 any refusal must be explained on the record. Restitution covers return of stolen property and actual out-of-pocket losses. Without the defendant’s consent, the amount is capped at $15,000 for a felony. The court can exceed that cap with the defendant’s agreement or as a condition of probation, and must make a specific finding on the dollar amount, holding a hearing if needed.¹²

Collateral Consequences

Employment and Licensing

A felony record shows up on background checks and disqualifies applicants from many state-licensed fields. Correction Law Article 23-A requires employers to weigh factors like rehabilitation and time elapsed since the offense before denying employment based on a conviction, but in practice fields like healthcare, finance, and law enforcement remain difficult to enter with a burglary conviction.

Housing

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 (excluding parole or probation), and applicants convicted of Class D or E felonies as ineligible for five years. First- or second-degree burglary triggers the six-year exclusion; third-degree burglary triggers the five-year exclusion.¹³ Private landlords run their own screens.

Firearms

Federal law permanently bars anyone convicted of a crime punishable by more than one year in prison from possessing firearms or ammunition. Every degree of New York burglary crosses that threshold. A violation is a separate federal felony carrying up to ten years. For someone with three or more prior violent felony convictions, the Armed Career Criminal Act sets a mandatory minimum of fifteen years.¹⁴

Immigration

For non-citizens, a burglary conviction can trigger deportation or bar naturalization. Burglary may be classified as an aggravated felony or a crime involving moral turpitude under federal immigration law, depending on the degree and circumstances. The consequences of a guilty plea are often irreversible, so immigration status should be evaluated before any plea.

Record Sealing

CPL 160.59 allows sealing of certain criminal records, but it excludes violent felony offenses. Second-degree and first-degree burglary are both classified as violent felonies under Penal Law 70.02 and cannot be sealed. Third-degree burglary, a non-violent Class D felony, may be eligible at least ten years after sentencing or, if the defendant served prison time, ten years after release, with incarceration time excluded from the waiting period. A defendant can seal no more than two eligible offenses total, only one of which may be a felony.¹⁵

1
New York State Senate. New York Code PEN 70.02 – Sentence of Imprisonment for Violent Felony Offense
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 Consolidated Laws, Penal Law PEN 140.00
6
New York State Senate. New York Code PEN 70.00 – Sentence of Imprisonment for Felony
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 PEN 60.27 – Restitution and Reparation
13
New York City Housing Authority. Appendix B – Ineligibility Dispositions
14
Office of the Law Revision Counsel. 18 USC 922 – Unlawful Acts
15
New York State Senate. New York Code CPL 160.59 – Sealing of Certain Criminal Convictions