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NY Penal Law § 140.25: Burglary in the second degree

Burglary is a crime that is commonly referred to as "breaking and entering." It involves entering a building without permission for the purpose of committing a crime. You will also face this charge if you are in a building lawfully, but then remain there after you should have left. Burglary is different from trespass in that in order for you to be convicted of burglary the prosecutor must show that the purpose for you being on the premises was to commit a crime. Under New York Criminal Law section 140.25, you would have committed the felony of burglary in the second degree if you unlawfully enter a building or unlawfully remain in a building and you or an accomplice:

  1. Are armed with explosives or a deadly weapon,
  2. Injury someone,
  3. Use or threaten to use a dangerous instrument, or
  4. Display a gun

You will also face a charge of burglary in the second degree if the building is a house, apartment, or other type of building where people stay overnight.


John threw a brick into the window of a closed electronics store. He jumped in the window, grabbed a few cameras and started to leave. Harold saw what happened. He yelled at John to stop and chased him. John stopped, turned around and pointed a gun at Harold. Harold stopped and watched John run away. John could be prosecuted for burglary in the second degree. John broke into the electronics store in order to commit the crime of larceny. Because he used a weapon while fleeing, the crime would be classified as burglary in the second degree.

Related Offenses
  1. Criminal trespass in the second degree: New York Penal Law section 140.15
  2. Possession of burglar's tools: New York Penal Law section 140.35

There are several possible defenses to a burglary in the second degree charge. For example, if you are faced with such a charge based on having a deadly weapon, the prosecutor must prove that the weapon was indeed deadly. A knife that is dull, un-serrated, and that has a round tip probably would not be considered to be a deadly weapon. If you face a second degree burglary charge based on causing someone a physical injury, then that person's injury must be severe enough to fit the New York Criminal Law's definition of physical injury.


Burglary in the first degree is a class C felony. The maximum possible sentence is 15 years in prison. Because this crime is also a violent felony, the judge is required to impose a minimum sentence of 3.5 years. The actual length of your prison sentence will depend on factors such as your prior criminal record. If you have no prior felonies then the judge may sentence you to as little 3.5 years in prison. However, if you have been convicted of a felony in the past, the judge will sentence you to at least 7 years in prison and up to 15 years in prison.

New York Penal Law § 140.25: Burglary in the second degree

A person is guilty of burglary in the second degree when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein, and when:

  1. In effecting entry or while in the building or in immediate flight therefrom, he or another participant in the crime:
    1. Is armed with explosives or a deadly weapon; or
    2. Causes physical injury to any person who is not a participant in the crime; or
    3. Uses or threatens the immediate use of a dangerous instrument; or
    4. Displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; or
  2. The building is a dwelling.
Contact the Law Offices of Stephen Bilkis & Associates

Burglary in the second degree is a very serious charge. If you are convicted you will end up in prison and you will spend multiple years away from your family and friends. Because of what is at stake it is important to have experienced representation who understands the defenses to burglary charges. The staff at the Law Offices of Stephen Bilkis & Associates has years of experience successfully defending clients in New York criminal courts who have been charged with felonies and misdemeanors in violation of New York state law and federal law. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: the Bronx, Brooklyn, Long Island, Manhattan, Nassau County, Queens, Staten Island, Suffolk County and Westchester County.

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