Queens Trespass and Burglary Lawyer

Burglary is a very misunderstood crime.  Most people associate burglary with stealing, and it usually does involve stealing.  The actual definition of burglary, though, usually involves the entry into someone’s house with the intent to commit a crime.  Many times, that crime is theft, but it does not have to be.

Burglary is actually much closer to crimes like trespass and criminal trespass.  New York has a few different levels of these crimes, so it may be difficult to figure out which crime covers which conduct.  Hopefully this guide will help you understand your charges.

What’s the Difference Between Trespass and Criminal Trespass?

Trespass and criminal trespass are crimes that involve violating someone’s right to property.  Here, property refers to land and buildings, as opposed to the property involved in theft crimes, which involve property such as possessions and cash.

Trespass is defined in N.Y. Penal Law § 140.05, and is simply unlawfully entering or remaining in a place.  That means going onto someone’s property without permission, or staying there after having been kicked-out.  This is merely a “violation” in New York, and similar to a traffic ticket, rather than a full-fledged crime.

Criminal trespass, on the other hand, falls into three different degrees.  Third degree criminal trespass is a class B misdemeanor, second degree is a class A misdemeanor, and first degree is a class D felony.  The conduct that makes a “trespass” into “criminal trespass” varies, but usually involves some extra element of defiance, where the defendant understood they were not allowed, but entered or stayed there anyway.

For a third degree criminal trespass, the defendant must enter or stay unlawfully on property when any of the following occurs:

• The place is fenced-in to keep out intruders
• The place is a children’s daytime or overnight camp
• The building is a school, and the defendant has been asked to leave by staff
• The place is a public housing project with posted rules
• The place is a public housing project and the defendant has been personally asked to leave
• The place is part of a train route or railyard with “no-trespassing” signs posted

For a second degree criminal trespass, there must be one of these features:

• The place is a dwelling – which means a place that someone usually stays overnight, like a house, apartment, dorm room, etc.
• The defendant is a registered sex offender, and enters or stays on the property of a school.  There are exceptions for this when the defendant is in fact a student, a parent of a student, is invited to the school for an event, or the defendant is there to vote at his or her designated polling place

Criminal trespass in the first degree is the most serious form, and must include one of the following elements:

• A defendant possesses a deadly weapon
• A defendant possessed a gun and ammunition for that gun
• A defendant knows another participant has a weapon or gun with ammunition

How is Burglary Different from Trespass?

Burglary is worse than criminal trespass, but very similar.  While criminal trespass is when someone enters onto or remains on property, burglary is the same conduct, plus the intent to commit a crime on the property.  Because this added element is “the intent to commit a crime,” it does not mean that the defendant needs to actually commit the crime; they can even change their mind after entry, and still be convicted of burglary.  The intended crime does not have to be theft, but could also be assault, rape, murder, or any other crime.

Because of this extra criminal element, burglary is a harder offense to prove, but also has more serious penalties.  Burglary in the third degree is a class D felony – which was the same classification as first degree criminal trespass.  Second degree burglary is a class C felony, and first degree burglary is a class B felony.

A similar crime is possession of burglar’s tools.  This is not a part of the offense of “burglary,” but includes any possession of tools like lock picks, screwdrivers, and crowbars with circumstances that show they intend to use them.  Possession of burglar’s tools can help demonstrate to police or a jury that the defendant intended to commit a crime.  This is a class A misdemeanor.

Third degree burglary is the basic burglary crime of entering or remaining in a place with the intent to commit a crime.  This is increased to second degree burglary if a weapon is used or threatened, or the place is a dwelling.  First degree burglary requires the same kind of things as first degree criminal trespass – that the defendant or a participant in the burglary had weapons.

Our Queens Burglary and Trespass Attorneys Can Help if You’ve Been Arrested

If you have been charged with trespass, criminal trespass or burglary of any degree in Queens, you should contact an experienced criminal defense attorney who can help you with your charges.  Sullivan and Galleshaw, LLP is a law firm that practices criminal defense in Queens, and other parts of New York.  For a free consultation, call (800) 730-0135.