Is Breaking and Entering a Felony?

Breaking and entering is a term that often conjures images of burglars and masked intruders, but in the eyes of the law, the definition is more nuanced and varies from state to state. In New York, the legal framework surrounding these offenses is particularly detailed, with statutes that closely define what constitutes breaking and entering and how it is distinguished from other property crimes.

In the face of criminal accusations such as breaking and entering, the path to a just resolution hinges on the skill and knowledge of your defense. Jason Bassett, a practiced Long Island criminal defense attorney, provides the high-caliber legal representation essential for those charged with these serious offenses. Whether you’re confronting a felony or misdemeanor, his guidance is pivotal in steering your case toward a favorable outcome.

Experienced attorney Jason Bassett can create a tailored strategy for your defense. If you or someone you know has been accused of breaking and entering, whether in connection with trespassing or burglary charges, take the decisive step forward. Contact Jason Bassett for a free consultation at (631) 259-6060 to gain an ally in the courtroom and the comprehensive support necessary to challenge the charges head-on. 

The Basic Components of Breaking and Entering Charges

In New York, breaking and entering is not a charge in itself but is often associated with the crime of Burglary. Under New York Penal Law, Burglary involves illegally entering a building with the intent to commit a crime inside. The ‘breaking’ aspect refers to the forceful overcoming of resistance, such as breaking a window or kicking down a door, to gain entry. However, the term is somewhat of a misnomer since actual physical “breaking” is not always necessary to constitute a Burglary.

For a charge of Burglary to stick, the prosecution must prove two main components beyond a reasonable doubt: unauthorized entry into a building and intent to commit a crime therein. It’s important to note that the building in question doesn’t necessarily have to be a home; it can be any type of structure, including businesses and sometimes even temporary structures, depending on the circumstances.

Distinctions Between Trespassing and Breaking and Entering

Trespassing and breaking and entering often get lumped together, but are distinct charges in New York law. Criminal Trespass is the unlawful entry into or remaining on a property, including a building or land, without the consent of the owner or lawful authority. It becomes a criminal charge when it involves knowingly entering or remaining unlawfully on premises.

The key difference between Trespassing and Burglary (breaking and entering) in New York is the element of intent. While Trespassing does not necessarily involve intent to commit an additional crime within the property, Burglary does. Essentially, if someone enters a property unlawfully but without the intent to commit a further crime, they may be charged with Trespassing, a lesser offense than burglary.

Legal Interpretations of “Entry” in Criminal Law

Under New York’s criminal law, ‘entry’ has a broad interpretation. It doesn’t require the entire body of the perpetrator to be inside the building. Even a minimal invasion, such as reaching a hand or an instrument through an open window, can constitute entry if it is connected to the intent to commit a crime.

Furthermore, the courts have interpreted ‘entry’ to include instances where an individual gains access to a building through deceit or fraud, not just physical breaking. For example, if someone poses as a utility worker to gain access to a home with the intent to steal, this could be classified as burglary, even though there was no ‘breaking’ in the traditional sense.

The complexities surrounding the definition of breaking and entering, the distinction from trespassing, and the legal interpretations of ‘entry’ in criminal law highlight the importance of understanding New York’s specific legal statutes. For someone facing charges related to these crimes, the nuances of the law can significantly impact the nature of the charges and the potential defenses available.

Breaking and Entering: Misdemeanor or Felony?

In New York State, the legal system does not use the term “breaking and entering” per se, but rather, this concept is included under burglary, trespassing, and related offenses. The severity of these charges can vary greatly, from misdemeanors to felonies, depending on several key factors.

Factors that Determine the Severity of the Charge

The severity of charges in New York is primarily determined by the degree of the offense, which is specified in the New York Penal Law. 

When someone unlawfully enters a building or structure with no intention to steal, they could face a misdemeanor Trespassing charge. A Criminal Trespass charge can vary from a misdemeanor to a felony based on several factors, including the location of the trespass and the circumstances surrounding the offense.

• Third Degree (Class B Misdemeanor): A person is guilty of Criminal Trespass in the Third degree when they knowingly enter or unlawfully remain on property that is fenced/enclosed, on certain school property in specified circumstances, in public housing in violation of posted rules or a personal request to leave, or in a designated railroad right-of-way.
• Second Degree (Class A Misdemeanor): This charge is more serious and involves knowingly entering or remaining in a dwelling, such as someone’s home, without permission. The fact that it involves a dwelling increases the severity of the offense.
• First Degree (Class D Felony): The most serious form of Criminal Trespass occurs when a person knowingly enters or remains unlawfully in a building and, in effecting entry, while inside, or in immediate flight, the person (or another participant) is armed with explosives or a deadly weapon, or possesses a loaded firearm/rifle/shotgun.

Burglary turns on intent at the time of the unlawful entry or unlawful remaining: the person must intend to commit a crime inside. Taking property can be evidence of that intent, but no theft is required; burglary in New York is always charged as a felony. Under these circumstances, the initial act of breaking and entering is assumed and incorporated into the more serious Burglary charge. Convictions for felonies typically lead to longer sentences, and those convicted will serve their time in a state or federal prison rather than a local jail.

The classification of Burglary into degrees in New York depends on whether the location is a dwelling and the presence of aggravating factors such as weapons, physical injury, use of a dangerous instrument, or displaying what appears to be a firearm. Time of day is not an element under current statutes.

• A Dwelling: This is a building usually occupied by a person lodging there at night, and burglary of a dwelling is generally treated more severely.
• Weapons and Injury: Possession of a weapon during the offense or causing physical harm to another person significantly increases the gravity of the offense.

Burglary in New York is prosecuted as a felony, which is a serious offense and is categorized into three degrees:

• Burglary in the Third Degree (Penal Law § 140.20): A Class D felony, it involves entering or remaining unlawfully in a building with intent to commit a crime.
• Burglary in the Second Degree (Penal Law § 140.25): A Class C felony, which includes the elements of Burglary in the Third Degree, but also occurs in a dwelling or involves the perpetrator carrying a weapon, displaying what appears to be a firearm, causing physical injury to any person who is not a participant in the crime, or using or threatening the immediate use of a dangerous instrument.
• Burglary in the First Degree (Penal Law § 140.30): A Class B violent felony that requires a dwelling and, in effecting entry/while inside/in flight, one of the following: armed with explosives or a deadly weapon; causes physical injury to a non-participant; uses or threatens immediate use of a dangerous instrument; or displays what appears to be a firearm.

Being convicted of either a misdemeanor or a felony has profound consequences for the accused. A criminal record can make it more difficult to find employment and can disqualify someone from a host of legal privileges, ranging from professional licenses and certifications to public housing or higher education financial aid. The more serious a crime of which someone is convicted, the more severe the possible sentence, which can include lengthy terms or incarceration, or probation.

The Role of Intent in Classification of the Offense

Intent plays a crucial role in classifying a Burglary offense in New York. The law requires that the individual not only unlawfully enter or remain in a building but also do so with the intent to commit a crime therein. If the prosecution cannot prove intent to commit an additional crime, the individual may face lesser charges, which might be a misdemeanor depending on the specific circumstances.

Long Island Criminal Defense Attorney – Law Offices of Jason Bassett, P.C.

Legal Defenses Against Breaking and Entering Charges

There are several legal defenses available against breaking and entering charges, which hinge upon the absence of intent, authorization, or mistake. Here are some potential defenses:

• Authorization or Permission: If you had permission to enter the building or structure, this could be a complete defense against breaking and entering charges. For example, if a friend allowed you to stay at their place or if a business owner provided you with an access code, you have not committed a crime. Evidence of authorization can be demonstrated through messages, emails, or any communication from the property owner.
• Mistake of Fact: You might claim that you entered the building under a mistaken belief that you were allowed to be there. For instance, if you were under the influence and entered a building mistakenly believing it was your own, you could argue a lack of intent to commit an illegal entry.
• Ownership or Right to Enter: If you are the owner of the property, or you have a legal right to enter, then breaking and entering charges are not applicable. This situation might occur if you had to force entry into your own home after being locked out. Proof of ownership or residency, such as a deed or a lease agreement, would be crucial in this defense.
• Lack of Evidence: The prosecution must prove that you entered the building without authorization. If the evidence is weak, inconsistent, or circumstantial, you may argue that the prosecution has not met the burden of proof required for a conviction.
• Duress or Coercion: If someone forced you to break and enter against your will, you could argue that you acted under duress. This defense would require you to show that you had a reasonable fear of immediate harm if you did not comply.
• No Criminal Intent: For a conviction on burglary charges, which are commonly felonies, the prosecution must be proof of criminal intent at the time of entry. If you can show that you had no intention to commit a crime once inside, you may be able to counter the charges.

It’s important to note that a breaking and entering conviction can have significant repercussions on your life, affecting not just your finances due to fines but also potentially impacting your employment and reputation. To mitigate these consequences or to fight for an acquittal, it is advisable to seek the assistance of a criminal defense lawyer. A skilled attorney can assess the case, gather evidence, and develop a strong defense strategy tailored to your specific situation.

Defense	Description	Key Evidence
Authorization or Permission	Entry was made with permission from the property owner.	Messages, emails, or statements showing consent.
Mistake of Fact	The defendant believed they had the right to enter.	Evidence showing confusion or mistaken belief.
Ownership or Right to Enter	The defendant owns or legally occupies the property.	Deed, lease, or proof of residency.
Lack of Evidence	The prosecution cannot prove unauthorized entry.	Inconsistent testimony or missing proof.
Duress or Coercion	The defendant was forced to enter under threat.	Witness statements or proof of threat.
No Criminal Intent	There was no plan to commit a crime once inside.	Lack of stolen items or evidence of intent.

Consequences of a Breaking and Entering Conviction

In New York, Criminal Trespass and Burglary are offenses with penalties that increase based on the severity of the crime. Criminal Trespass can range from a violation to a felony, while Burglary is always a felony, but the possible penalties increase as the degree does.

Criminal Trespass Penalties in New York:

• Trespass (Violation): Not considered a crime; up to 15 days in jail.
• Criminal Trespass in the Third Degree (Class B Misdemeanor): Up to 3 months in jail; covers fenced/enclosed property, specified school/public-housing circumstances, or posted railroad zones.
• Criminal Trespass in the Second Degree (Class A Misdemeanor): Up to 364 days in jail; this offense applies to entering or remaining unlawfully in a dwelling (and to a specific sex-offender/school scenario).
• Criminal Trespass in the First Degree (Class D Felony): A maximum of an indeterminate sentence of 3 to 7 years in prison; involves entering or remaining in a building unlawfully with explosives or a deadly weapon.

Burglary Penalties in New York:

• Burglary in the Third Degree (Class D Felony): Punishable by up to 7 years (non-violent felony); exact indeterminate range is set under Penal Law § 70.00, and courts may impose probation where authorized.
• Burglary in the Second Degree (Class C Violent Felony): Determinate sentence of 3½ to 15 years. Elements include a dwelling or, in a non-dwelling, aggravators such as being armed, causing physical injury, using a dangerous instrument, or displaying what appears to be a firearm.
• Burglary in the First Degree (Class B Violent Felony): Determinate sentence of 5 to 25 years. Requires a dwelling plus one of the listed aggravators (weapon, physical injury, dangerous instrument, or display of a firearm).

Convicted individuals can also face monetary fines, restitution to the victims, and post-release supervision. Long-term penalties can include a criminal record, a loss of certain civil rights (like the right to vote while incarcerated), and the potential for increased minimum sentences for future convictions.

The Impact of a Felony Record on Future Opportunities

The repercussions of a felony record reach far beyond the criminal justice system. The stigma of a felony conviction can have profound impacts on future opportunities, including:

• Employment: Many employers are hesitant to hire individuals with a felony record, which can severely limit job prospects.
• Housing: Convicted felons may face challenges when trying to rent or buy a home, as landlords and housing authorities often conduct background checks.
• Education: Access to certain educational programs and financial aid can be restricted for those with a felony conviction.
• Professional Licenses: Obtaining professional licenses can be more difficult or impossible in some fields with a felony record.
• Immigration Status: For non-citizens, a felony conviction can lead to deportation proceedings and inadmissibility for re-entry into the United States.

The consequences of a breaking and entering conviction in New York are severe and far-reaching. They make clear the importance of high-quality legal representation, which is needed to defend against these charges and protect against long-term effects on one’s life.

Juveniles and Breaking & Entering: Youthful‑Offender Treatment on Long Island

Juvenile “breaking and entering” on Long Island is usually charged as burglary or criminal trespass under New York law. For example, knowingly entering or remaining unlawfully in a building with the intent to commit a crime is burglary in the third degree, a class D felony. Burglary becomes second-degree, a class C felony, when the building is a dwelling or when aggravating factors apply, such as causing physical injury, being armed with or displaying a weapon, or using a dangerous instrument.

If your child is 16 or 17 and accused of a felony, the case starts in the Youth Part before a judge trained in Family Court matters. Many cases can be transferred to Family Court, where the youth is treated as a juvenile delinquent and receives services rather than adult penalties. This is part of New York’s Raise the Age system. 

Youthful offender treatment is different. It applies in criminal court and can be granted to eligible youths who were at least 16 and under 19 at the time of the offense. If granted, the conviction is replaced with a youthful offender finding, the record is sealed, and the youth avoids a permanent criminal record. It is discretionary and determined at sentencing in the interest of justice. 

Navigating the Justice System with Skilled Defense from Long Island Criminal Defense Attorney Jason Bassett

Long Island criminal defense attorney Jason Bassett brings his legal acumen to the table, providing quality representation and aiming to achieve the most favorable outcome for his clients. When faced with a breaking and entering charge, whether it’s classified as a misdemeanor or felony, Jason Bassett stands ready to offer experienced and comprehensive legal representation. His commitment to justice and his clients’ well-being further drive him to give each case the attention and dedication it deserves.

Don’t navigate these dangerous legal waters alone. Reach out to Jason Bassett for a consultation to explore your options and develop a strategy tailored to your unique situation. Secure the legal support you need to address your charges effectively. Contact Jason Bassett today at (631) 259-6060 and take the first step towards not only getting the best legal defense but also towards getting your life back.