Is Breaking and Entering a Felony?

Last updated on April 3, 2024

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.

Embarking on your legal journey, allow Jason Bassett’s experience to fortify your defense. If you or someone you know has been accused with breaking and entering, whether in connection to trespassing or burglary charges, take the decisive step forward. Contact Jason Bassett to gain an ally in the courtroom and the comprehensive support necessary to challenge the charges head-on. Your defense begins now; reach out to Jason Bassett for a strategic partner in your corner.

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 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 in a building or property that is fenced or otherwise enclosed in a manner designed to exclude intruders. This includes entering a school or a residential building where the person does not have the right to be.
  • 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 an individual knowingly enters or remains unlawfully in a building and knows that it is used for manufacturing or storing explosives. The felony charge is also applicable if the trespass is committed while the individual possesses a firearm, rifle, shotgun, or explosives.

However, if during the unlawful entry, the person is discovered to have taken items from the property, the charges could be elevated to Burglary which is always 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 is based on several factors, including the type of building involved, whether the building is a dwelling, the time of day the crime occurred, if a weapon was involved, and whether or not someone was injured during the incident.

  • 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 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 felony, this involves the elements of Burglary in the Second Degree but occurs when the perpetrator causes serious physical injury to any person who is not a participant in the crime.

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 crime of which someone is convicted, the more severe the possible sentence which can include lengthy terms or incarceration of 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 enters or remains in a building but also does 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.

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.

Legal Defenses Against Breaking and Entering Charges Description
Authorization or Permission Having permission to enter premises is a complete defense. Evidence like messages or emails can support this.
Mistake of Fact Claiming entry under a mistaken belief negates intent for illegal entry, such as entering the wrong building while under the influence.
Ownership or Right to Enter Being the owner or having a legal right to enter, like when locked out of one’s home, can counter charges. Proof of ownership is vital.
Lack of Evidence Contesting weak or inconsistent evidence challenges prosecution’s burden of proof.
Duress or Coercion Being forced to enter against one’s will due to immediate harm can be argued as duress.
No Criminal Intent Demonstrating lack of intent to commit a crime upon entry can counter burglary charges, especially with evidence showing no criminal 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; occurs in a dwelling or under certain other conditions.
  • Criminal Trespass in the Second Degree (Class A Misdemeanor): Up to 1 year in jail; involves a fenced or enclosed property.
  • 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): A maximum of an indeterminate term of 3 to 7 years in prison; involves entering a building unlawfully with intent to commit a crime.
  • Burglary in the Second Degree (Class C Violent Felony): Up to 15 years in prison; involves entering a dwelling, or being armed, causing injury, or threatening with a weapon during the burglary.
  • Burglary in the First Degree (Class B Violent Felony): Up to 25 years in prison; involves entering a dwelling with the same aggravating factors as the second degree but with more severity.

Convicted individuals can also face monetary fines, restitution to the victims, and post-release supervision. Long-term penalties can 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.

Long Island criminal defense attorney Jason Bassett can play a pivotal role in such situations. He brings his legal acumen to the table, providing quality representation and aiming to achieve the most favorable outcome. When faced with the complexities of a breaking and entering charge, whether it’s classified as a misdemeanor or felony, having the right legal counsel is crucial to getting the best possible outcome. Jason Bassett, a skilled Long Island criminal defense attorney, stands ready to offer excellent and comprehensive legal representation. His commitment to justice and his clients’ well-being further drives 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.

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