1. Unlawful Presence and Criminal Intent Define the Charge
Under New York Penal Law § 140.20, burglary requires knowing unlawful entry or remaining in a building with intent to commit a crime there. Forced entry and completed theft are unnecessary. Both elements must be proved.
Permission Depends on the Area and Circumstances
Penal Law § 140.00 defines unlawful presence by the absence of a license or privilege. A store open to the public generally permits customers to enter, regardless of their undisclosed intentions. That permission does not cover restricted rooms, and a lawful, personally communicated order can revoke access.
Where criminal intent is missing, unlawful presence may instead implicate criminal trespass law. The scope and timing of permission matter.
Intent Must Coincide with Unlawful Presence
An intent formed only after lawful entry does not automatically establish burglary. The charge may still apply if the person subsequently remains unlawfully with the required intent. Messages, conduct, and access records can help establish that sequence. The prosecution bears the burden of proof beyond a reasonable doubt.
2. Property Use and Aggravating Facts Determine the Degree
Penal Law §§ 140.20, 140.25, and 140.30 establish three felony degrees. Dwelling status and specified aggravating conduct can increase the charge.
Three Burglary Degrees Have Different Requirements
| Charge | Key Requirement | Classification |
|---|---|---|
| Third degree | Unlawful presence in a building with criminal intent | Class D felony |
| Second degree | Burglary of a dwelling or qualifying aggravating conduct | Class C felony |
| First degree | Burglary of a dwelling plus qualifying aggravating conduct | Class B felony |
Third degree
- Key RequirementUnlawful presence in a building with criminal intent
- ClassificationClass D felony
Second degree
- Key RequirementBurglary of a dwelling or qualifying aggravating conduct
- ClassificationClass C felony
First degree
- Key RequirementBurglary of a dwelling plus qualifying aggravating conduct
- ClassificationClass B felony
Aggravating circumstances include specified weapons, injury to a nonparticipant, use or threatened immediate use of a dangerous instrument, and display of an apparent firearm. Specific statutory conditions and a limited affirmative defense concerning certain displayed firearms may matter.
Dwelling Status Depends on Overnight Use
Section 140.00 defines a dwelling as a building usually occupied by someone lodging there at night. A resident need not be home during the alleged offense. Residential use and separately secured units may affect classification.
Burglary and Larceny Address Different Conduct
Under Penal Law § 155.05, larceny concerns wrongfully taking, obtaining, or withholding property with the required intent. Burglary focuses on unlawful presence and intent to commit a crime inside; no property need be taken. Both charges can arise from one incident. See burglary and larceny defense for the broader distinction.
3. Nassau and Suffolk Have Different Initial Court Routes
Both counties apply state burglary law, but different local courts handle initial proceedings. Adult felony trials generally proceed in County Court. Police investigate; county District Attorneys prosecute.
Nassau County Proceedings
Nassau County District Court in Hempstead handles felony arraignments and preliminary proceedings. Nassau County Court in Mineola handles felony trials. Follow the court named on the appearance notice.
Suffolk County Proceedings
Suffolk District Court serves Babylon, Brookhaven, Huntington, Islip, and Smithtown; its First District criminal term is in Central Islip. Riverhead, Southampton, Southold, East Hampton, and Shelter Island use Town or Village Justice Courts for initial proceedings. Adult felony cases generally reach Suffolk County Court in Riverhead after indictment.
Locating Dates and Documents
Keep the felony complaint, appearance notices, release order, and indictment if filed. WebCrims displays future dates in selected criminal courts but excludes some records, including sealed cases. Court clerks confirm schedules; discovery governs prosecution evidence.
4. Arraignment and Grand Jury Proceedings Require Separate Decisions
A felony complaint may lead to arraignment, custody determinations, a preliminary hearing, and grand jury action. Each stage involves distinct rights and deadlines. Preliminary hearings differ from grand jury proceedings.
Counsel and Custody after Arraignment
CPL § 180.10 requires the court to provide the felony complaint and explain the right to counsel and a prompt preliminary hearing, which may be waived. Counsel may be assigned to defendants who cannot afford representation.
Under CPL § 180.80, a defendant held on an unresolved felony complaint may apply for release on recognizance after more than 120 hours, or 144 hours if a weekend or legal holiday intervenes, without timely disposition or commencement of a hearing. Qualifying grand jury action, defendant-caused delay, and good cause may prevent release. Release does not dismiss charges.
Written Notice for Grand Jury Testimony
CPL § 190.50 allows a person facing a grand jury charge to request testimony by serving written notice on the District Attorney before indictment. Defendants arraigned on a pending felony complaint generally receive notice and a reasonable opportunity to testify when that charge goes to a grand jury.
Testimony requires a waiver of immunity and permits prosecutorial questioning. Review the allegations before making that decision. Separate criminal defense and trials issues may arise later.
Initial Discovery and Exceptions
CPL § 245.10 generally requires initial discovery within 20 calendar days of arraignment for defendants in custody, or 35 days for those not in custody. Exceptionally voluminous recordings, statutory extensions, and protective orders can affect timing. Article 245 covers police reports, relevant statements, video, and other discoverable material.
5. Original Records Help Test the Accusation
Permission, timing, and identity often turn on documents created before an arrest. Preserve original files and their dates, avoid editing material, and do not seek to influence witnesses or coordinate accounts.
Records Establishing Access
Messages granting entry, leases, work instructions, keys, access logs, and receipts may explain why someone was present. Keep complete conversations and timestamps. A prior invitation does not necessarily authorize access to restricted areas or continued presence after permission ends.
Video and Witness Evidence
Recordings may establish entry points, movements, or mistaken identification. Footage may be overwritten, so preserve original files lawfully. Note potential witnesses without attempting to shape their recollections.
Searches, Statements, and Legal Rights
The federal Fourth Amendment and New York Constitution Article I, § 12 restrict unreasonable searches and seizures. CPL Article 710 permits motions to suppress qualifying evidence; disputed police conduct does not automatically dismiss a case.
A defendant may seek counsel before answering investigative questions. A burglary defense review can examine unlawful presence, intent, and the evidence supporting the charged degree without treating an arrest as proof of guilt.
26 Oct, 2026
