Long Island Burglary and Robbery Defense Attorney:
Whether you or a family member has been charged with a form of burglary or robbery, you will likely have many questions about what these charges entail, if there is a defense against them, and what penalties they may have. Having this information will let you understand how serious these charges can be and why it is so important to defend against them.
What are the Burglary Tiers?
Like many crimes in New York, the state laws divide burglary into a variety of tiers, with first degree being the most serious tier and holding a greater penalty.
Burglary in the Third Degree
Under New York Law, burglary in the third degree is a class D felony and can carry a sentence from one to seven years in prison as well as various fines or other penalties. A person commits burglary when he or she knowingly enters a building with the intent to commit a crime or remains unlawfully in a building with the intent to commit a crime. Though the person charged may be caught before actually committing an additional crime, all the law requires is that there isintent
to commit a crime once they enter, not that the intended crime is actually complete or even in progress.
Burglary in the Second Degree
Second Degree Burglary is a class C felony, and is similar in many ways to third degree burglary. Not only must the person charged knowingly enter or remain unlawfully in a building with the intent to commit a crime, there are other factors that will move a charge up the tier to second degree burglary. If the building entered is a dwelling, an individual will be charged with second degree burglary. The charge may also be upgraded if the person enters any other type of building with a deadly weapon or explosives, threatens or uses a dangerous instrument, displays what appears to be a gun or firearm, or causes physical injury to someone who is not helping to commit the crime. This charge carries a potential penalty of one to twenty-five years in prison.
Burglary in the First Degree
First degree burglary builds on the elements of the lower tiers. If someone has entered or remained unlawfully in a dwelling with the intent to commit a crime, the charge may be upgraded to first degree burglary if other factors may have occurred: if the person charged is armed with a deadly weapon, threatens or actually uses a dangerous instrument, displaying a gun or other firearm, or causes physical injury to anyone who is not a participant in the crime. This class B felony carries a potential sentence of one to twenty-five years in prison.
What about Trespass?
Closely related to burglary is the crime of trespass. Broadly, this is the act of knowingly entering or remaining unlawfully upon premises. Like burglary, this crime has multiple tiers.
Criminal Trespass in the Third Degree
Third degree trespass requires knowingly entering or remaining unlawfully in a building or other real property where the property is fenced in, serves as a school or children’s overnight camp, is a public housing project, or is a railroad yard. This is a class B misdemeanor and carries a penalty of up to 90 days in jail.
Criminal Trespass in the Second Degree
Second degree criminal trespass occurs when the person entering or remaining unlawfully in a dwelling where they are required to maintain registration under Article 6(c) of the Correction Law and are a level two or level three offender. This class A misdemeanor carries a potential sentence of one yer in prison.
Criminal Trespass in the First Degree
A person may be charged with criminal trespass for entering or remaining unlawfully in a building and possessing an explosive or deadly weapon, knowing a participant in the trespass possesses an explosive or deadly weapon, possesses a firearm, rifle or shotgun and has access to ammunition for that weapon, or knows that another participant possesses such a weapon and has the ammunition for that weapon. This crime could lead to one to seven years in prison.
What are the Tiers? (First, Second and Third Degree Robbery)
Just like burglary, the statutes for robbery are also tiered according to their severity. Though all of these crimes are considered felonies, the potential penalty could be a longer time in prison or a greater fine depending upon the tier of the crime.
Robbery in the Third Degree
Third degree robbery is considered a class D felony, with a potential punishment of up to seven years in prison. For someone to be charged with robbery in the third degree, they must forcibly steal property. For more complete info about this offense, please see our article NY PENAL § 160.05 Robbery in the Third Degree.
Robbery in the Second Degree
Like third degree robbery, second degree robbery requires the forcible stealing of property and requires that the person charged has either been aided by another person to commit the robbery, if the person charged causes physical injury to a person not involved in the robbery during the robbery, if the person charged displays a gun or something appearing to be a gun during the robbery or if the property stolen is a motor vehicle. Second degree robbery is a class C felony and a violent felony. This carries a mandatory minimum punishment of three and a half years and has a potential maximum sentence of fifteen years in prison.
Robbery in the First Degree
First degree robbery also involves forcibly stealing property, but a charge may be upgraded to this tier if certain factors are present during the robbery or fleeing the scene of the robbery. If the person charged causes serious physical injury to someone not involved in the robbery, is armed with a deadly weapon, or displays a gun or what appears to be a gun. This violent class B felony has a mandatory minimum punishment of five years and could have an additional
How do Tiers Work?
The various tiers for crimes in New York allow the State to charge someone with not only the maximum possible penalty for their crime but also lesser crimes. For instance, someone who committed burglary in the first degree could also face charges for second and third degree, as well as various degrees of criminal trespass. During sentencing, however, the court will only sentence for the highest tiered charge, with the other charges “merging” together, rather than adding cumulatively to make a higher maximum possible sentence.
What do the Terms Mean?
Like many laws, there are certain terms that have specific legal meaning, and these terms are often the difference between two different tiers of burglary or robbery. Understanding these terms can mean understanding what has caused a charge to be upgraded to a more serious charge or why certain actions do not qualify for a certain tier.
Physical Injury and Serious Physical Injury
For robbery charges, the severity of the injury to the victim can mean the difference between first or second degree robbery. New York defines a physical injury as an “impairment of physical condition or substantial pain.” However, a serious physical injury is not simply pain. Instead, this is a risk of death or even actual death. This may also include injuries that will cause poor health, the loss or impairment of an organ or other body part, or lasting disfigurement. Though this may not always be the case, typically, a physical injury is temporary, while a serious physical injury is much longer-lasting, if not permanent.
A deadly weapon is a weapon designed to do serious harm to an individual. Though this may include guns or other firearms, it is not limited to just those weapons. Knives and even brass or plastic knuckles can qualify as a deadly weapon.
Building and Dwelling
A building may be any structure, as well as a vehicle, watercraft, enclosed motor truck or truck trailer. If there are two or more separate structures on a single lot or if multiple occupants divide the property, as in an apartment, these divisions are considered separate buildings. A dwelling is a building in which a person usually stays overnight.
What is Attempt?
For burglary as well as robbery, it is possible to be charged with the attempt to commit a crime. Attempt may be a significant step toward the commission of a crime. The crime does not need to be completed for attempt to apply, and even mere preparation may be enough for someone to be charged with an attempted crime. For instance, if a person enters a bank with a gun but never follows through with demanding money from a teller, that person could still be charged with attempted robbery.
How is Sentencing for Burglary and Robbery Impacted?
There are certain factors that can affect sentencing for felony, causing someone to receive a higher or lower sentence. If someone has a prior charge for a crime in the last ten years, a court may be more likely to issue a harsher sentence, particularly if that crime was a violent felony. Also, felonies in New York can have a “three strikes” rule, where two or more felonies in a person’s past can allow a judge to label that person as a persistent felony offender and sentence that person to life in prison. Mitigating factors like a clean criminal history, personal references, or affirmative defenses to the crime can lessen a sentence.
Though some crimes carry a mandatory minimum sentence, judges do have some flexibility for other charges. Sentences may be mitigated with the completion of community service or drug treatment programs, for instance.
What about Juveniles and Youthful Offenders?
If someone is 16 years old or younger, that person may be charged as an adult for very serious crimes, but may still be charged in juvenile court, with the same guidelines as felony convictions. Those under the age of 9 may receive a “youthful offender treatment” where they may be sentenced, but do not carry a record of the conviction of a crime.
What to Do after a Charge?
If you or someone you love has been charged with burglary, robbery or criminal trespass, the first thing you should do is consult with an attorney. Even a conviction of a misdemeanor can impact a person’s future. As convictions are part of the public record, future employers may uncover these convictions in a background check. These crimes can also impact a person’s immigration status, impacting whether an immigrant may remain in the country or qualify for citizenship.
Getting an attorney immediately helps the person charged to begin preparing a defense. This can help to prevent improper interrogation techniques, ensure that the police are conducting proper suspect photo arrays, and compile evidence while it and witnesses’ memories are still fresh. Attorneys can also represent you or your loved one at bail hearings to determine possible release and to ultimately begin the process of advocating on you or your loved one’s behalf.
If you have been arrested for assault in Nassau, Suffolk or Queens County, call Scott J. Limmer without delay
You can contact Scott by phone at 516-742-2300 to speak to him immediately. He is available 24 hours a day, 7 days a week, year-round and your initial consultation is free.
Nassau County Criminal Law Office
200 Old Country Road Suite 2 S Mineola, NY 11501 Telephone: 516-742-2300
Queens County Criminal Law Office
80-02 Kew Gardens Road Suite 300 Kew Gardens, NY 11415 Telephone: 718-742-6300