“Burglary” is a legal term with a specific definition. In most states, including New York, burglary does not automatically imply theft. In fact, burglary is a crime that involves being in a building with the intent to commit a crime. Many people who are not police or lawyers confuse robbery with burglary, or assume that they are both theft crimes. The Queens, NY criminal defense attorneys at Sullivan and Galleshaw are about to set the record straight and explain what exactly burglary is. If you have been charged with burglary, robbery, or a theft crime in New York City, talk to one of our attorneys today.
What is Burglary in New York?
Burglary, in the old common law definition is “the breaking and entering into the dwelling place of another, at night, with the intent to commit a felony therein.” That means that you needed to enter with force, the building needed to be a home where people live, it needed to be nighttime, and you needed to have the intent to commit any felony inside the house.
Today’s definition is much more modernized, and actually includes more conduct. Article 140 of the New York Penal Law defines “Burglary and related offenses,” and in those related offenses includes:
- Trespass,
- Criminal trespass,
- Possession of burglary tools, and
- Unlawful possession of radio devices.
Listing burglary next to these crimes shows that New York really intends to keep burglary separate from robbery and theft – which are all grouped together under NY Penal Law Part 3 – Offenses Involving Theft. 
Burglary under NY Penal Law has three grades: first degree (§ 140.30), second degree (§ 140.25), and third degree (§ 140.20). These all have the same definition, but the degree is enhanced based on other circumstances surrounding the basic burglary conduct. The basic crime of burglary is when “[a person] knowingly enters or remains unlawfully in a building with the intent to commit a crime therein.” Note that this covers the intent to commit any crime (not just a felony), has no time of day requirement, and does not require that you break into the building. This is automatically broader than the classical definition.
The third degree version of burglary is the lightest offense of the three, and has no extra circumstances required. That means being in any building, unlawfully, with the intent to commit any crime is automatically third degree burglary.
For second degree burglary, there are extra conditions. First, if the building is a “dwelling,” then it is second degree burglary. A “dwelling” is “a building which is usually occupied by a person lodging therein at night,” according to NY Penal Law § 140.00. That means a building where someone usually sleeps at night, so it would include any house or apartment. Alternatively, second degree burglary occurs when the person enters the building (or flees from the building) while:
- Armed with a weapon or explosive;
- Causing injury;
- Using or threatening to use a “dangerous instrument”; or
- Displaying a firearm (or what appears to be a firearm).
While a burglary is a second degree burglary when the building is a dwelling or when one of those circumstances is present, first degree burglary is when the building is a dwelling and one of those circumstances is present. This means that you cannot commit first degree burglary in a building that is not a dwelling, and you cannot commit first degree burglary in a dwelling unless you are armed, cause injury, threaten someone, or display a firearm.
Why is Burglary Different from Theft?
To be clear, burglary requires that you have the intent to commit a crime inside the building. It does not require that you actually commit the crime, at all – just that you formed the intent. 
Since burglary requires the intent to commit another crime, one of the most popular crimes that is committed alongside burglary is theft. This is how burglary gets associated with theft so strongly. In many cases, the crime that the burglar intends to commit is theft – but not necessarily.
The stigma associated with burglary that equates it with robbery is unfair. By New York’s definition of burglary, you can commit the crime without hurting anyone or entering a house. To commit robbery, you have to use violence or force to steal directly from another person. While the lowest forms of robbery and burglary are both class D felonies, equating the two might be unjustified.
Burglary Attorney in New York City
If you or a loved one has been charged with burglary, or any other crime in New York City, hire an attorney who can help you fight the case. The lawyers at Sullivan and Galleshaw understand when burglary charges are appropriate, and when they are unfair. For a free consultation on your case, call us today at (800) 730-0135.