Regardless of the degree, Burglary in New York (NY Penal Law sections 140.20, 140.25 and 140.30) requires that at the time you unlawfully enter or remain in a building you also have a simultaneous intent to commit a particular crime. Well, not really…This entry deals with the question of what the prosecution must prove regarding an accused burglar’s criminal intent and whether or not they must prove the intent to commit a specific crime.
The Court of Appeals, New York’s highest court, has addressed this issue in the past and answered it in a clear and decisive way. Prosecutors do not need to establish the particular crime that the accused intended to commit when he or she either unlawfully entered or remained in the building. The Court went as far as asserting that “[h]ad the Legislature intended [that the prosecution prove a specific crime] it could easily in revising the Penal Law have inserted the word ‘specified’ or the word ‘particular’ between ‘a”‘ and ‘crime.'” People v. Mackey, 49 N.Y.2d 274 (1980)
Simply put, while the prosecution can circumstantially or directly establish that the accused intended to commit a particular crime (maybe you were caught with jewelry of a home owner and, therefore, it is clear that you intended to commit a larceny inside the home), it need not do so. If they were required to do so on each and every case, “the trial of a [B]urglary indictment becomes an exercise in hairsplitting.” People v. Mackey
For additional information on the crime and laws governing Burglary in New York, please follow the highlighted link to Crotty Saland PC’s website and Burglary section. Further information as to the definition of “dwelling” in the context of Burglary in the Second and First Degrees may be found on the respective link. Other penal law statutes, legal decisions and cases in the news can be found on the New York Criminal Lawyer Blog.
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