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Walking through the doors of the Queens County Criminal Court at 125-01 Queens Blvd is a heavy experience for anyone facing felony charges. If you or someone you love has been charged with burglary, the terminology prosecutors use can be confusing and frightening. One of the most critical distinctions in these cases is whether the state classifies the offense as a violent felony.
Many people assume a burglary is only violent if someone gets hurt. But New York law uses a much broader definition. In many cases, you can be charged with a violent felony even if no weapon was used and no one was present at the time of the incident. Understanding burglary as a violent felony in New York requires examining how the state penal code prioritizes the safety of “dwellings” or homes.
The Legal Definition of Burglary in New York
At its core, burglary involves entering or remaining unlawfully in a building with the intent to commit a crime inside (NY Penal Law § 140.20). While many people associate burglary with theft, the intended crime can be anything from criminal mischief to assault.
The severity of the charge depends on the type of building involved and on whether certain aggravating factors are present. While burglary in the third degree is a non-violent Class D felony, the charges quickly escalate to violent classifications when a home is involved or if a person is injured.
Why Burglary in the Second Degree is a Violent Felony
Burglary in the Second Degree (NY Penal Law § 140.25) is a Class C violent felony. Under New York law, specifically(NY Penal Law § 70.02), this offense is categorized as violent because of the inherent danger the state believes is present when a building is occupied or when a weapon is involved.
You can be charged with this violent felony if you unlawfully enter a building and:
- You or an accomplice is armed with explosives or a deadly weapon
- You cause physical injury to a person who is not part of the crime
- You use or threaten to use a dangerous instrument
- You display what appears to be a firearm
Most importantly for residents in Queens, you can face this violent felony charge simply because the building is a “dwelling.” A dwelling is defined as a building usually occupied by a person lodging there at night (NY Penal Law § 140.00). If you enter an apartment near Flushing Meadows or a house in Astoria with criminal intent, the law automatically treats it as a violent felony, even if the residents were away on vacation.
Burglary in the First Degree: The Most Serious Classification
The highest level of this offense is burglary in the first degree (NY Penal Law § 140.30), which is a Class B violent felony. This charge applies when someone unlawfully enters a dwelling with criminal intent, such as being armed or causing injury, is present.
Because burglary in the first degree combines the invasion of a home with a specific threat of physical harm, it carries some of the harshest penalties in the state. Prosecutors in the Queens District Attorney’s Office take these cases seriously because they involve a direct violation of a person’s most private and secure space.
Mandatory Sentencing for Violent Felonies
The classification of violent changes everything regarding your potential sentence. Unlike non-violent felonies, where a judge might have more discretion to offer probation or a shorter jail term, violent felonies often carry mandatory minimum prison sentences (NY Penal Law § 70.02).
- Class C Violent Felony (Second Degree): This carries a mandatory minimum of 3.5 years in state prison and a maximum of 15 years
- Class B Violent Felony (First Degree): This carries a mandatory minimum of 5 years and a maximum of 25 years in prison
Beyond the initial prison term, a conviction for a violent felony in New York requires a period of post-release supervision. Post-release supervision is a form of parole that remains in effect after you leave prison, and any violation of its terms can result in further incarceration.
Potential Defenses Against Burglary Charges
Every case has a unique set of facts, and my role is to find the weaknesses in the prosecution’s narrative. As a former prosecutor, I know how the state builds these cases and where they often fall short.
Common defense strategies in New York burglary cases may include:
- Lack of Criminal Intent: To be guilty of burglary, you must have intended to commit a crime at the moment you entered the building. If you entered for another reason, the charge might be reduced to simple trespass
- Permission to Enter: If you believed you had a right to be in the building, even if that belief was mistaken, it can be a defense against the unlawful element of the crime
- Challenging the Aggravating Factors: I can review the evidence to determine whether a weapon was actually deadly as defined by law or whether an injury meets the specific legal threshold for physical injury
How I Can Assist You With Your Case
I spent my career serving the public as an Assistant District Attorney and a caseworker for a U.S. Congressman before opening my own practice. I understand the fear and stress that come with a violent felony indictment. When you work with me, I will give you the personal time and attention that a public defender simply cannot provide. I am here to listen to your side of the story and develop a nuanced defense that fits your specific needs.
I will be by your side from the arraignment through every motion, hearing, and trial. My goal is to resolve your case as favorably as possible, whether through a hard-fought negotiation or a jury trial. I offer the compassionate and dedicated advocacy you deserve during this difficult time.
If you or a loved one is facing burglary charges in Queens or anywhere in New York, please call my office at (631) 646-2282 or (971) 385-5582 to set up a free consultation. I am available 24 hours a day, seven days a week, to start fighting for your future.
