New York Penal Law § 140.30 – Burglary in the First Degree

Burglary in the First Degree is New York’s most serious burglary offense, which imposes harsh penalties on those who commit a burglary of a dwelling while possessing a deadly weapon. It is also considered Burglary in the 1st Degree if the defendant causes physical injury to another person or threatens to use a weapon while engaging in a burglary. Burglary in the First Degree is a Class B felony.

Before a judge or jury can convict anyone of Burglary in the First Degree, the government must prove each element of the offense beyond a reasonable doubt.

• The defendant unlawfully entered or remained in a dwelling;
• The defendant knew they were not authorized to enter or remain in the building;
• The defendant did so with the intent to commit a crime inside the building; and
• One or more of the following applies:
• The defendant was armed with a deadly weapon or explosives;
• The defendant caused physical injury to another person who was not a co-defendant;
• The defendant threatened or used a dangerous instrument; or
• The defendant displayed something that appeared to be a gun.

In this context, a dwelling is any structure or vehicle, including a boat, that is fit for overnight accommodation.

Examples of Burglary in the First Degree include the following:

• A person commits a burglary of a home while armed with a gun;
• A person who is unarmed upon entering another’s home grabs a knife from the kitchen upon hearing the resident wake up; and
• A person breaks into another’s house to steal jewelry and threatens to shoot the homeowner if they don’t open the safe.

Often, prosecutors bring Burglary in the First Degree charges along with one or more of the following:

• Trespass – NY Penal Law § 140.05
• Criminal Trespass in the Third Degree – NY Penal Law § 140.10
• Criminal Trespass in the Second Degree – NY Penal Law § 140.15
• Criminal Trespass in the First Degree – NY Penal Law § 140.17
• Burglary in the Second Degree – NY Penal Law § 140.25
• Burglary in the First Degree – NY Penal Law § 140.30
• Possession of Burglar’s Tools – NY Penal Law § 140.35

There are several defenses to Burglary in the First Degree that can either reduce your sentencing exposure or result in the prosecution withdrawing the case against you or the jury returning a “not guilty” verdict. The most common defenses include the following:

• Insufficient evidence that you intended to commit a crime while inside the dwelling;
• The structure you entered was not a dwelling;
• The object you possessed, while it looked like a functioning gun, was not “readily capable of producing death or other serious physical injury”; or
• The allegations against you were fabricated or exaggerated.

Burglary in the First Degree is a Class B felony. In New York, Class B felony offenses carry a maximum sentence of up to 25 years in jail and a fine of up to $30,000.

If you were recently arrested and charged with a burglary crime, the dedicated New York criminal defense attorneys at Tilem & Associates, P.C. are here to help. For more than 25 years, we’ve been aggressively defending the rights and freedoms of clients charged with serious felony offenses. We are immediately available to meet with you to get started working on a compelling defense to the charges you face. To learn more, and to schedule a free consultation today, call 877-377-8666. You can also reach us through our online contact form.