The Elements of Burglary (New York Pena Law 140.20, 140.25 & 140.30): Defining “Dwelling” & Your Criminal Defense

In non legal terms, it is very easy to look at Burglary in New York (New York Penal Law sections 140.20, 140.25 and 140.30) as trespassing in a building that you entered or remained in with the purpose or goal of committing any type of crime. Although there are significant nuances and elements differentiating the degrees of Burglary that should be discussed with your New York criminal defense attorney, it is critical to understand the law of Burglary in New York because there are vast differences in the potential punishment amongst the three degrees of this crime.

One of the significant differences, for example, between a charge of Burglary in the Third Degree (NY PL 140.20) and Burglary in the Second Degree (NY PL 140.30), is that the building entered is a “dwelling.” If your conduct is the same, but instead of an office building you enter a dwelling, the crime will be “bumped up” to the Second Degree Burglary. If this occurs, the mere fact that you entered a “dwelling” will raise the potential sentence from a maximum of seven years in prison to a maximum potential sentence of fifteen years with a mandatory minimum of three and one half years. Knowing the ramifications, this entry will take a step back and lightly dissect how a “dwelling” is defined.

According to New York Penal Law section 140.00(3), a “dwelling” is a “building which is usually occupied by a person lodging therein at night.” Seems straight forward, right? Well, is a garage part of a dwelling? What if you enter an office room in a hospital to steal? Is that hospital considered a dwelling?

The answer to the above questions are found throughout the legal decisions involving Burglary. In People v. Harris, 19 A.D.3d 171 (1st Dept. 2005), the Appellate Court upheld the defendant’s conviction for Burglary in the Second Degree (New York Penal Law 140.25), where the defendant entered a hospital, went behind a cubicle and stole property. The court found that the cubicle area was “unmistakably a nonpublic area even though it was not locked or otherwise secured.” Additionally, and on point with this entry, the Court further ruled that “[t]he hospital was a dwelling for purposes of [B]urglary in the [S]econd [D]egree because it was a building containing rooms occupied by patients overnight notwithstanding that portions of the hospital were open to the public and that the executive suite was not used for lodging.” In other words, even though the defendant entered an area of the hospital that was commercial in nature, that same hospital had rooms attached or a part of it. Therefore, the building was considered a “dwelling” even though the defendant never entered the bedroom/hospital bed parts.

The Harris decision is not the only case addressing this issue. In People v. Rivera, 301 A.D.2d 787 (3rd Dept. 2003), another Appellate Court upheld a conviction for Burglary in the Second Degree where the defendant entered a screened in porch that was attached to the home. Because the home was clearly a “dwelling,” the attached screened in porch was legally part of that overall “dwelling” structure.

Even if a person is not home at the time of the Burglary, it does not meant that a Burglary has not been committed. In fact, the Court of Appeals has gone as far as to find that a house that belonged to a man who died just prior to the Burglary constituted a dwelling even though clearly he no longer lived there. The Court held that the “structure was a one-family residence that was fully furnished with working utilities and could have been occupied overnight. [The dead man’s] property was still in the house, including food in the refrigerator. Further, it is undisputed that the house was ordinarily occupied overnight by the [dead man] before his death.” People v. Barney, 99 N.Y.2d 367 (2003)

For further information on the varying crimes and degrees of Burglary in New York, follow the highlighted links above. Additional information on Burglary and other crimes including legal statutes, case law and newsworthy decisions can be found on the New York Criminal Lawyer Blog.

A criminal defense firm founded by two former Manhattan prosecutors, the New York criminal defense attorneys at Saland Law PC represent the accused throughout the New York City area.

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