Burglary Charges in New York Are Felonies — Every Degree of Them

New York prosecutes burglary aggressively, and even a first-degree charge can land you in state prison for 25 years. If you or someone you care about has been arrested for burglary in NYC, you need a criminal defense attorney who knows how the DA's office builds these cases and exactly where they can be challenged.

What New York Law Actually Requires to Prove Burglary

Burglary in New York is not just about breaking and entering. Under New York Penal Law, the prosecution must prove two things: that you entered or remained in a building unlawfully, and that you did so with intent to commit a crime inside. That intent element is where many of these cases fall apart — and where I focus my defense.

 

New York defines three degrees of burglary, all felonies:

 

  • Third-degree burglary (PL § 140.20): Unlawful entry into any building with intent to commit a crime. A Class D felony carrying up to 7 years.
  • Second-degree burglary (PL § 140.25): Third-degree burglary plus an aggravating factor — the building is a dwelling, or a participant is armed, causes injury, or displays what appears to be a firearm. A Class C felony carrying up to 15 years.
  • First-degree burglary (PL § 140.30): Same as second-degree, but the building is a dwelling and an additional aggravating factor is present. A Class B felony carrying up to 25 years.

 

The dwelling enhancement is the single biggest sentence driver in burglary cases. Whether the location qualifies as a dwelling — and whether the prosecution can actually prove it — is often the first question I examine.

How the Prosecution Builds a Burglary Case

Understanding how these cases are constructed tells you where they can be dismantled. Prosecutors typically rely on a combination of surveillance footage, witness identification, physical evidence from the scene, and statements made at or after arrest. In New York City, that means NYPD body cam footage, building security systems, and cell phone location data all enter the picture quickly.

 

The intent element is rarely caught on camera. Prosecutors infer it from circumstantial evidence — what you were carrying, where you were found, what was taken or disturbed. That inference is not proof, and I treat it as the contested question it is. I also scrutinize every statement my client allegedly made. Anything obtained without proper Miranda warnings, or after an unlawful stop, is suppressible — and suppressing a confession or admission can collapse a case the DA thought was airtight.

Defense Strategies I Use in Burglary Cases

No two burglary cases are identical, but the viable defenses tend to cluster around a few core arguments. After 30 years of trying criminal cases in New York, I know which arguments hold weight in front of a jury and which ones the DA has seen a hundred times.

 

Defenses I evaluate in every burglary case:

 

  • Lack of criminal intent: Presence in a building — even unlawful presence — is not burglary without proof of intent to commit a crime inside. If that intent cannot be established beyond a reasonable doubt, the charge fails.
  • Lawful right to enter: If my client had permission to be in the building, the unlawful entry element disappears. This is more common than prosecutors acknowledge, particularly in domestic and landlord-tenant situations.
  • Mistaken identity: Eyewitness misidentification is one of the leading causes of wrongful conviction. I examine identification procedures carefully and challenge any lineup or show-up that didn't follow proper protocols.
  • Suppression of evidence: If police conducted an unlawful search, seized evidence without a valid warrant, or obtained statements in violation of my client's rights, I move to suppress before trial.
  • Challenging the dwelling classification: In second and first-degree cases, whether the location qualifies as a dwelling under New York law is a legal question — not a given. I contest it when the facts support doing so.

Why Experience With New York Courts Gives You an Advantage

I have been practicing criminal defense in New York for more than 30 years. In that time, I have built working relationships with the clerks, judges, and prosecutors who handle felony cases in Manhattan, Brooklyn, Queens, the Bronx, and Staten Island. That familiarity matters in ways that don't show up on a law firm's website — it shapes how I read a room, how I negotiate, and when I take a case to trial instead of settling for a plea that doesn't serve my client.

 

I am also an adjunct professor at New York University and St. John's University, and a published author in the New York Law Journal. I bring that same analytical rigor to every case I take. Because I am a solo practitioner who handles only criminal defense, you speak directly with me — not a paralegal, not a junior associate. When you call, I answer.

Frequently Asked Questions About Burglary Charges in New York

  • Is burglary a felony in New York?
    Yes, every degree of burglary in New York is a felony. Third-degree burglary is a Class D felony, second-degree is a Class C felony, and first-degree burglary is a Class B felony. There is no misdemeanor burglary charge under New York law.
  • What is the difference between burglary and trespassing in New York?
    The distinction is intent. Criminal trespass involves unlawfully entering or remaining in a building without permission. Burglary adds the element of intent to commit a crime once inside. That intent element is what elevates the charge from a misdemeanor to a felony — and it is also what makes burglary charges defensible when the prosecution cannot prove it.
  • Can a burglary charge be reduced or dismissed?
    Yes. Depending on the evidence, charges can be reduced — for example, from second-degree burglary to criminal trespass — or dismissed outright through suppression motions, grand jury challenges, or trial acquittals. The strength of the prosecution's evidence and the specific facts of your case determine which outcomes are realistic.
  • Do I need a lawyer before my arraignment?
    Yes, and the sooner the better. What you say — or don't say — between arrest and arraignment can significantly affect your case. Having counsel before you appear in court means someone is already working to challenge bail arguments, review the charges, and identify early weaknesses in the prosecution's case.

Facing a Burglary Charge in New York? Call Me Directly.

A burglary conviction carries mandatory felony time, a permanent criminal record, and consequences that follow you long after you've served your sentence. The earlier I get involved, the more options we have. I represent clients across Manhattan, Brooklyn, Queens, the Bronx, Staten Island, and surrounding counties — and I am available to take your call now.