NYS Penal Law

Penal Law

New York State Consolidated Laws

Article 140 - NY Penal Law

BURGLARY - Required Elements

The crime of Burglary has three degrees, all are felonies.
As with other crimes, first degree is the most serious.

Burglary 1st Degree - Class B Felony
Burglary 2nd Degree - Class C Felony
Burglary 3rd Degree - Class D Felony
The following is a list of the minimum required crime elements for Burglary:
♦ Person knowingly enters or remains unlawfully (and)
♦ Building (and)
♦ Intent to commit crime therein.

Is 'breaking and entering' into the building necessary? NO
Opening an unlocked door or climbing through an open window is sufficient.

Must the crime therein be a larceny (theft)? NO
It can apply to any crime, such as criminal mischief or assault.

Additional elements that can increase the severity of the crime of Burglary.
♦ The building is a dwelling or
♦ Person or another participant is armed with explosives or a deadly weapon or
♦ Person or another participant causes physical injury or
♦ Person or another participant uses or threatens use of dangerous instrument or
♦ Person or another participant displays what appears to be firearm.

What is considered a 'building' as related to Burglary? (Penal Law Article 140.00)
"Building,"  in  addition  to  its  ordinary meaning, includes any
structure, vehicle or watercraft used for overnight lodging of  persons,
or  used  by  persons  for  carrying  on business therein, or used as an
elementary or secondary school,  or  an  inclosed  motor  truck,  or  an
inclosed  motor  truck trailer. Where a building consists of two or more
units separately secured or occupied, each unit shall be deemed  both  a
separate building in itself and a part of the main building.
What is a 'dwelling' (Penal Law Article 140.00)
"Dwelling" means a building which is usually occupied by a person
lodging therein at night.

What is 'enter or remain unlawfully' (Penal Law Article 140.00)
"Enter or remain unlawfully." A person "enters or remains
unlawfully" in or upon premises when he is not licensed or privileged to
do so. A person who, regardless of his intent, enters or remains in or
upon premises which are at the time open to the public does so with
license and privilege unless he defies a lawful order not to enter or
remain, personally communicated to him by the owner of such premises or
other authorized person. A license or privilege to enter or remain in a
building which is only partly open to the public is not a license or
privilege to enter or remain in that part of the building which is not
open to the public. A person who enters or remains upon unimproved and
apparently unused land, which is neither fenced nor otherwise enclosed
in a manner designed to exclude intruders, does so with license and
privilege unless notice against trespass is personally communicated to
him by the owner of such land or other authorized person, or unless such
notice is given by posting in a conspicuous manner. A person who enters
or remains in or about a school building without written permission from
someone authorized to issue such permission or without a legitimate
reason which includes a relationship involving custody of or
responsibility for a pupil or student enrolled in the school or without
legitimate business or a purpose relating to the operation of the school
does so without license and privilege.

What is 'intentionally' (Penal Law Article 15.05)
A person acts intentionally with respect to a result or to conduct 
described by a statute defining an offense when his conscious objective
is to cause such result or to engage in such conduct.

When is it considered 'night' (Penal Law Article 140.00)
"Night" means the period between thirty minutes after sunset and
thirty minutes before sunrise.

What is a 'physical injury' (Penal Law Article 10.00)
"Physical injury" means impairment of physical condition or
substantial pain.

What is a deadly weapon' (Penal Law Article 10.00)
"Deadly weapon" means any loaded weapon from which a shot, readily
capable of producing death or other serious physical injury, may be
discharged, or a switchblade knife, gravity knife, pilum ballistic
knife, metal knuckle knife, dagger, billy, blackjack, plastic knuckles,
or metal knuckles.

What is a 'dangerous instrument' (Penal Law Article 10.00)
"Dangerous instrument" means any instrument, article or substance,
including a "vehicle" as that term is defined in this section, which,
under the circumstances in which it is used, attempted to be used or
threatened to be used, is readily capable of causing death or other
serious physical injury.

What is a 'firearm' (Penal Law Article 265.00)
"Firearm" means (a) any pistol or revolver; or (b) a shotgun having
one or more barrels less than eighteen inches in length; or (c) a rifle
having one or more barrels less than sixteen inches in length; or (d)
any weapon made from a shotgun or rifle whether by alteration,
modification, or otherwise if such weapon as altered, modified, or
otherwise has an overall length of less than twenty-six inches; or (e)
an assault weapon. For the purpose of this subdivision the length of the
barrel on a shotgun or rifle shall be determined by measuring the
distance between the muzzle and the face of the bolt, breech, or
breechlock when closed and when the shotgun or rifle is cocked; the
overall length of a weapon made from a shotgun or rifle is the distance
between the extreme ends of the weapon measured along a line parallel to
the center line of the bore. Firearm does not include an antique

What is a 'felony' (Penal Law Article 10.00)
"Felony" means an offense  for  which  a  sentence  to  a  term  of
imprisonment in excess of one year may be imposed.

Burglary Question:
Two persons enter the garage area of a closed service station at night without
the permission of the owner. They entered the garage through a closed unlocked
window in the rear of the building. While therein they remove several tools 
valued at over $1,000.00

Which of the following best describes the crime committed?
A - Burglary 1st degree
B - Burglary 2nd degree
C - Burglary 3rd degree
D - Not a Burglary because they did not break in.

Find the answer...

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