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First Degree Burglary: NY Penal Law 140.30

Burglary in the First Degree, New York Penal Law 140.30, is the most serious and significant degree of Burglary offenses handled by criminal defense attorneys from the boroughs of NYC to the suburban counties, cities and towns of the Hudson Valley. A class “B” violent felony that comes with a substantial risk of state prison and other serious ramifications upon arrest and conviction, whether you find yourself awaiting arraignment in Brooklyn or sentencing in White Plains, a basic understanding of the law and expedient implementation of the right defense cannot be overstated.

Definition and Elements

Like the other degrees of this crime, the legal language for Penal Law 140.30 shares certain elements. However, instead of a mere trespassing coupled with an intent to commit a crime, if while entering, inside of, or leaving a dwelling you or another participant is armed with a deadly weapon (a gun, for example), you are guilty of subsection one of Burglary in the First Degree. According to Penal Law 140.00(3), a “dwelling” is defined as a building where a person lodges at night.

Alternatively, if while entering, inside of or leaving the dwelling you or another participant causes a physical injury (something potentially as “insignificant” as a bloody and red nose) to another person who is not involved in the crime, you are guilty of Burglary in the First Degree pursuant to subsection two. Still more theories, if you or another participant uses or threatens the use of a dangerous instrument (it can be a knife, bookend, umbrella or something dangerous based on the manner in which is used as opposed to its inherent nature) or displays what appears to be a firearm, you have violated subsections three and four respectively.

Penalties and Punishment

When a judge in New York hands down his or her sentence, know that the mandatory minimum term of incarceration you will face is five years “upstate.” Simply, jail and prison are unavoidable. Even worse, the court can sentence you to as long as twenty-five years. All of this assumes not that you have a long criminal history, but that you are a first-time offender.

Example and Hypothetical Scenario

Burglary in the First Degree is perhaps closest to what people think of as a typical home invasion. Perhaps the most common scenario is one or more people unlawfully entering another person’s home armed with a gun. Their intent when unlawfully entering is to steal property. Once inside, they confront the person who lives in the home and threatens them with some kind of weapon in order to escape. This is a classic example of a situation that would run afoul of PL 140.30 and expose the accused to mandatory incarceration upon conviction.

Related Offenses and Collateral Issues

People often conflate the crime of Burglary with the very separate and distinct crime of Robbery. While both charges routinely involve an allegation of theft, the relationship essentially ends there. The same can be said of any other theft related offense such as Petit Larceny or Grand Larceny. While a Robbery invariably includes an allegation of force being used by the perpetrator, Burglary has no such requirement. However, the aggravating circumstances, such as the type of building, weapons and force are what can make the difference between the various degrees.

Outside of the technical elements and related offenses, another consideration is the collateral consequence and ramification of both an arrest and conviction. For example, are you a holder of an H1B visa or green card? Do you work for a public agency such as the Board or Department of Education? What about licensure as a medical professional or oversight by FINRA? Whatever the situation is that you may face, it is essential that you protect your immigration status, hold onto your career or employment and maintain your professional licenses. Otherwise, even if you are exonerated you may find yourself destitute and, when relevant, deported.

Your Case, Your Defense, Your Future

One issue that often arises as an aggravating factor elevating an offense to Burglary in the First Degree is the use of a gun. It is important to note that it is an affirmative defense, and one that you must establish, is that the firearm, gun, rifle, etc. was either not operable or unloaded. Keep in mind, even if your affirmative defense is successful, you can still be convicted for the lesser crimes in the Second and Third Degrees. This statutory defense aside, whether your strategy involves challenging the legal basis for your arrest, the nature of an identification procedure, the evidence linking you to the crime, or mitigation, failure to protect yourself from the onset of the investigation or arrest can, and often will, lead to disastrous outcomes.

Be smart. Be diligent. Be proactive. Contact the criminal lawyers and former Manhattan prosecutors at Saland Law today to best ensure advocacy, experience and knowledge is your best defense.

Call the Criminal Defense Team and former Manhattan prosecutors at (212) 312-7129 or contact us online today to discuss your case and possible defenses.

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