PL 140.30 · Article 140
Burglary in the First Degree
This offense requires knowing unlawful entry or remaining in a dwelling with intent to commit a crime inside, plus at least one listed circumstance involving the person accused or another participant during entry, presence inside, or immediate flight. The firearm-display alternative has a specific affirmative defense concerning whether the weapon was loaded and capable of discharging the specified dangerous shot, but that defense does not bar prosecution or conviction for the other crimes identified in the statute.
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Text us immediately · (845) 290-2492Definition under New York law
PL 140.30 · Original statutory wording; excerpts must be read together with the full section.
§ 140.30 Burglary in the first degree. A person is guilty of burglary in the first degree when he knowingly enters or remains unlawfully in a dwelling with intent to commit a crime therein, and when, in effecting entry or while in the dwelling or in immediate flight therefrom, he or another participant in the crime: 1. Is armed with explosives or a deadly weapon; or 2. Causes physical injury to any person who is not a participant in the crime; or 3. Uses or threatens the immediate use of a dangerous instrument; or 4. Displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, could be discharged. Nothing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, burglary in the second degree, burglary in the third degree or any other crime. Burglary in the first degree is a class B felony.Read the full section at the New York State SenateIn everyday language
This offense requires knowing unlawful entry or remaining in a dwelling with intent to commit a crime inside, plus at least one listed circumstance involving the person accused or another participant during entry, presence inside, or immediate flight. The firearm-display alternative has a specific affirmative defense concerning whether the weapon was loaded and capable of discharging the specified dangerous shot, but that defense does not bar prosecution or conviction for the other crimes identified in the statute.
At a criminal trial, the prosecutor must prove every element of the charged subsection and that you committed the offense beyond a reasonable doubt. An accusation is not proof of guilt. Where the statute provides alternatives, the prosecutor need not prove every alternative; the charged theory matters. Affirmative defenses may have different proof rules.
CPL § 70.20What the prosecutor must prove
- The prosecutor must prove every required element of the applicable alternative beyond a reasonable doubt.
- The person accused knowingly entered or remained unlawfully in a dwelling with intent to commit a crime inside. Entry and remaining are alternatives.
- During entry, presence in the dwelling, or immediate flight, the person accused or another participant was armed with explosives or a deadly weapon; caused physical injury to a nonparticipant; used or threatened immediate use of a dangerous instrument; or displayed what appeared to be a pistol, revolver, rifle, shotgun, machine gun, or other firearm.
- The four aggravating circumstances are alternatives, not cumulative requirements; a dwelling is required for every route.
- For the firearm-display alternative, the statute provides an affirmative defense that the displayed firearm was not a loaded weapon capable of discharging a shot readily capable of causing death or other serious physical injury. This does not create a defense to, or preclude conviction for, second-degree burglary, third-degree burglary, or another crime.
Defenses that commonly apply
- What evidence establishes that the location was a dwelling and that the person accused knowingly entered or remained unlawfully with intent to commit a crime inside?
- What evidence establishes a listed aggravating circumstance, its required timing, and the involvement of the person accused or another participant, including nonparticipant status for any injured person?
- If the charge rests on firearm display, what evidence shows whether the firearm was loaded and capable of discharging a shot readily capable of causing death or other serious physical injury?
Penalties and collateral consequences
A Class B Felony carries a maximum sentence of up to 25 years and a fine of up to $5,000.
Common questions about your defense
Can an unloaded firearm support a defense to first-degree burglary?
For the firearm-display alternative, the statute provides an affirmative defense if the firearm was not a loaded weapon capable of discharging a shot readily capable of causing death or other serious physical injury. Evidence about the weapon's condition may support that defense, but it does not negate a separate qualifying alternative or bar prosecution or conviction for second-degree burglary, third-degree burglary, or another crime. The prosecutor must prove the charged offense's required elements beyond a reasonable doubt, and the affirmative defense is a separate issue.
Why is starting a defense early imperative?
An early defense is imperative to protect your rights and preserve evidence that may disappear. Keep court papers, messages, footage, and witness information without deleting or altering anything. Counsel can review court dates and applicable deadlines, request evidence, and begin preparing your defense immediately.
How does an experienced lawyer help build the best possible defense?
Your lawyer checks the exact subsection, compares its requirements with the evidence, and listens to your account. Depending on the charge, counsel may investigate identification, intent, witness reliability, and possible problems with searches, statements, or testing. Working together on an early strategy is imperative to pursue the best possible outcome in your circumstances; no outcome is guaranteed.
Does an arrest or police report prove the charge?
No. A police report is part of the case, not a finding of guilt. Your lawyer can compare its claims with video, records, and witnesses and assess whether admissible evidence meets each applicable requirement.
Can the charge be dismissed or reduced?
That depends on the evidence, the charged subsection, and procedural rules. Challenging evidence, filing motions, negotiating a legally available resolution, or preparing for trial may be appropriate. No lawyer can promise dismissal, reduction, or acquittal.
Every case turns on its own facts. The information on this page is general, not legal advice.
Related charges
PL 140.25 · Class C Felony
PL 140.10 · Class B Misdemeanor
PL 140.15 · Class A Misdemeanor
PL 140.17 · Class D Felony
PL 140.05 · Violation
PL 140.35 · Class A Misdemeanor
PL 140.20 · Class D Felony