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NY Penal Law § 140.30: Burglary in the first degree

Many people associate burglary with theft. However, while a theft can occur during a burglary, it is not necessary that you actually steal something. Burglary is defined as the unlawful entering of someone’s property with the intent to commit a crime. The crime could be larceny. However, it could also be assault, rape, kidnapping or any other type of criminal offense. There are 3 different burglary offenses in the New York Penal Law. Burglary in the first degree is the most serious. It is different from other types of burglary in that violence or the threat of violence is used, and the premises involved is a home. Under New York Penal Law section 140.30 you could be prosecuted for burglary in the first degree if you enter a dwelling or unlawfully remain in a dwelling with the intent to commit a crime in that dwelling. In addition, you or an accomplice must:

  1. Be armed with explosives or a deadly weapon,
  2. Have caused physical injury to another person
  3. Have used a dangerous instrument,
  4. Have displayed what appears to be a gun or firearm.

Under New York Penal Law section 140.00(3), a dwelling is defined as a building that is typically used by individuals for overnight lodging. In other words, a dwelling is a house or an apartment.


Leonard knocked on William's door. William answered the door and invited Leonard in. Leonard and William have been friends for a long time, but often argued. While at William's house, Leonard and William got into an argument. William ordered Leonard to leave several times. Leonard refused. Leonard then punched William in the face causing him to fall. Leonard kicked William several times. William suffered a black eye and broken ribs. Leonard could be prosecuted for burglary in the first degree. Even though William invited Leonard into his home, William ordered Leonard to leave. Because Leonard refused to leave, he was in William's house unlawfully when he proceeded to injure William.

Related Offenses
  1. Criminal trespass in the first degree: New York Penal Law section 140.17
  2. Possession of burglar's tools: New York Penal Law section 140.35

In order to convict you of burglary in the first degree, the prosecutor must prove that your presence in the dwelling was unlawful. If you were an invited into the dwelling and did not remain there unlawfully, then the prosecutor will have a tough time proving that you committed burglary.


Burglary in the first degree is a class B felony. The maximum possible sentence is 25 years in prison. Because this crime is also a violent felony, the judge is required to impose a minimum sentence of 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 5 years in prison. However, if you have been convicted of a felony in the past, the judge will sentence you to more than 5 years in prison and up to 25 years in prison.

New York Penal Law § 140.30: Burglary in the first degree

A person is guilty of burglary in the first degree when he knowingly enters or remains unlawfully in a dwelling with intent to commit a crime therein, and when, in effecting entry or while in the dwelling 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; except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, could be discharged. Nothing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, burglary in the second degree, burglary in the third degree or any other crime.
Contact the Law Offices of Stephen Bilkis & Associates

Being convicted of burglary in the first degree will have a profound effect on not only you, but also on your family. You will lose your freedom for a significant period of time, and as a result your family will experience both emotional and financial stress. If you are facing a charge of burglary, do not hesitate to contact Stephen Bilkis and Associates to discuss the details of your case. Our staff is familiar with the legal issues related to burglary cases and has years of experience representing clients in the New York criminal court system who have been charged with burglary, robbery, grand larceny, petit larceny, possession of stolen property, and other crimes. 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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