Burglary
In New York State, burglary is defined under Article 140 of the the New York Penal Law as unlawfully entering or remaining in a building with the intent to commit a crime therein. The severity of the charge depends on factors such as whether the building is a dwelling, whether weapons or injury are involved, and whether the accused was armed. There are three degrees of burglary, each of which are differently classed felonies.
Burglary in the Third Degree (Class D Felony): Charged when a person knowingly enters or remains unlawfully in a building with intent to commit a crime therein.
Burglary in the Second Degree (Class C Felony): Charged when a person commits burglary in the third degree, but the the building is a dwelling (a place where someone lives), or the accused is armed with a weapon, causes physical injury, threatens another person with a dangerous instrument, or displays what appears to be a firearm.
Burglary in the First Degree (Class B felony): Involves unlawful entry into a dwelling plus one of the following: the person is armed, causes injury; uses/threatens with a dangerous instrument, or; displays what appears to be a gun.
Burglary is oftentimes confused with theft or robbery, yet the legal requirements to prove burglary are very nuanced. To be convicted of any degree of burglary, it must be proven only that a person had a prior intent to commit any crime before entering a building or dwelling unlawfully. It does not matter if the crime intended to be committed was never completed. For example, if a person breaks into a home intending to steal cash but leaves with nothing, they can still be charged and convicted of burglary in the second degree.
The prior intent requirement is oftentimes proved circumstantially by offering indicia evidence such as burglars tools found in possession of the defendant, or digital evidence referencing prior planning.
If the burglary involves stealing property from a. building or dwelling, the actual value of the stolen property is completely irrelevant. In other words, a person is facing the same sentencing range for stealing an expensive laptop as they would for stealing a $1 bill. (Note that the prosecution may, and oftentimes does, take value into account by adding the appropriate larceny charges in addition to burglary).
Minimum and maximum sentences vary greatly based on the class of criminal conviction, prior criminal history, and any aggravating or mitigating factors determined by the Court. Depending on the circumstances of each case, sentences can include fines, post-release supervision, or incarceration. Sometimes the Court has discretion on sentencing, and other times the Court must abide by mandatory minimums. For general guidelines on types of sentencing, sentencing ranges, and classifications of crimes click here.
Our Proven Approach to Burglary Defense
At the Criminal Defense Office of Ricky Shah, we take a comprehensive, fact-driven approach to your defense. Generally, this involves the following steps:
Case Evaluation: We begin by thoroughly reviewing the arrest, evidence, and statements involved. Typically, this involved reaching out directly to the prosecutor assigned to your case to understand their position on your matter, what initial charging/sentencing recommendations they have, and what evidence is currently in their possession. We will be aggressive, persistent, and professional with your assigned prosecutor.
Investigation: Once we’re in possession of the evidence sought to be used against you in Court, we analyze the evidence and evaluate our defense from the perspective of the prosecution. We’ll interview witnesses, review surveillance footage and digital communication, and consult with forensic experts if needed.
Suppression of Unlawful Evidence: If evidence was gathered illegally or if your rights were violated during arrest, we fight to have it suppressed in court. Some examples of previously successful criminal defenses include.
Lack of probable cause: If the arresting officer didn't have a valid reason (probable cause) to stop, search, or arrest, we can challenge the validity of arrest, possibly leading to dismissal of your charges.
Insufficient evidence: The prosecution must prove each element of the charges beyond a reasonable doubt. If the evidence is too weak, unreliable, or missing key elements, the case may be dismissed by the judge or dropped by the prosecutor.
Constitutional violations: The United States Constitution affords everyone in the criminal justice system certain rights that may never be compromised. If a person’s rights were violated, even innocently, any evidence tangentially related to the violation could be suppressed, leading to higher likelihood of dismissal or reduction of charges. Examples of such violations include:
Illegal search or seizure of property. The rules and requirements of when, where, and how the police may search you, your belongings, your residence, or vehicle and retrieve inculpatory evidence is a massive and complex body of law, and it takes an experienced and knowledgable criminal defense attorney to be able to navigate it. The police cannot just search you for whatever reason they feel like. If your rights were violated in this respect, the prosecution will not be able to use any illegally obtained evidence against you, which could lead to suppression of key evidence - which oftentimes can result in a dismissal.
Improper interrogation. Similarly, there is a complex body of law regarding when a police officer can speak to you, where they can speak to you, and under what conditions they can speak to you. If you were illegally “interrogated,” any statements you made to the police can be suppressed, and nothing you said to the police can be used against you in Court.
Procedural errors
Cases can also be dismissed if there are technical or procedural mistakes made by the police or the prosecution at any point in your case. Examples include:
Speedy Trial Violations (CPL § 30.30). Prosecutors have a certain amount of time to state their readiness to proceed to trial. If they are unable to proceed to trial within the statutorily required timeframe, you case can be dismissed.
Discovery Violations: Pursuant to CPL §245, prosecutors are required to turn over all evidence tangentially related to your case within a statutorily required timeframe, and may not state readiness for trial until they’ve done so. Competent defense attorney’s are experts in leveraging these types of procedural requirements to ensure your rights are protected.
Defective Accusatory Instrument: In New York criminal court, the complaint, information, or indictment must meet strict standards. If it's facially insufficient (lacking facts or clarity), it can be dismissed under CPL § 170.30(1)(a). Competent defense attorney’s are experts in understanding the nuances of these standards.
Motion Practice and Trial Preparation: At a certain point in your proceedings, we will argue our legal defense in written notices to the court, known as motions. The prosecution will generally always respond with their own motion, and a judge will eventually render a decision.This is a critical point in your case pendency, and cases can often be won at this stage outright. Sometimes, judges require the defense and the prosecution to orally argue their legal positions in Court, and then render their decision based on those oral arguments. These are known as hearings, and are typically the final step before a case goes to trial if your case is not dismissed on a legal or procedural defect. And of course, we will always be prepared to take your case to trial in front of a judge and jury.