A burglary happens when a person breaks into or enters a house or other building to commit a crime. Usually, the crime the burglar intends to commit is theft. However, unlawful entry onto a property to commit any crime, such as assault or arson, is also a burglary.
The crime of burglary is often called by other names, such as breaking and entering or housebreaking. However, there may be slight differences between these terms, depending on what the state criminal laws and statutes are.
The Difference Between Burglary and Robbery
Robbery is defined as larceny committed with violence, intimidation, or threat of force. Larceny is defined as the “unlawful taking and carrying away of property belonging to another person, with the intent to permanently deprive that person of their property.” A common example of robbery would be holding a person at knifepoint and demanding that they give up their money, then take it away.
The defining difference between burglary and robbery is that burglary requires breaking and entering onto someone’s property, while robbery does not require breaking and entering into a building. Another difference between the two theft crimes would be that for it to be considered a robbery, a weapon or a threat of a weapon must be used during the crime’s completion. Burglary does not require the use of or threat of a weapon.
Is a Burglary a Felony or a Misdemeanor?
Depending on state laws and the details of the crime committed, burglary can be charged as a misdemeanor or a felony.
In some states, like New York, burglary is always punishable as a felony and is often further broken down into categories called “degrees.” These may range, for instance, from first-degree to third-degree burglary. Usually, first-degree burglary is the most serious type of burglary crime, while second and third-degree burglary charges are less serious.
In New York, the degree breakdown is as follows:
- 1st-degree burglary of a house with a dangerous weapon or injury to a person
- 2nd-degree burglary with a deadly weapon, burglary without a deadly weapon but someone is injured, or burglary of a house
- 3rd-degree general burglary
In other states, burglary is classified as a misdemeanor, which is less serious than a felony crime. Misdemeanors are punishable by a maximum of one year in county jail, while felonies are punishable by a minimum of one year in state prison.
Factors that go into determining how serious a burglary crime is include:
- Whether there were any people present
- Whether any violence or threats of violence were used to commit the burglary
- Whether any property was damaged during the crime
- Whether any weapons were involved in the commission of the crime
- How the person gained entry into the property (for instance, destroying a door versus sneaking in through an open window)
What are the Punishments and Penalties for Burglary?
The biggest factor in determining the punishment for a burglary is whether the conviction was for a misdemeanor or a felony. For misdemeanor burglary convictions, the person may face a shorter sentence in jail (not prison) for up to one year and less severe fines or fees.
Punishments for felony burglary result in prison sentences of longer than one year and heavy criminal fines. For example, in New York, the punishment for felony burglary ranges from a minimum of 7 to a maximum of 25 years in prison.
Again, punishments for burglary crimes often depend on local laws, and these can differ widely from state to state.
If a person is found guilty of burglary, they may face various penalties under state and local criminal laws. Depending on the exact charge, this can include:
- Jail or prison sentences
- Fines or criminal fees
- Restitution to the victim (paying the victim for their loss)
- Mandatory counseling
- Rehabilitation programs
- Other penalties that may be unique to the jurisdiction
The penalty often depends on the person’s prior criminal record. If they are first-time offenders, alternative sentencing options like probation or mandatory counseling may be issued. A jail or prison sentence is more likely to result in repeat offenders.
What Factors Does a Judge Consider When Determining a Burglary Sentence?
When determining a person’s sentence for burglary, a judge will consider:
- Whether a weapon or violence was used in the crime (or threats of harm)
- The person’s previous criminal record
- Whether they are repeat or habitual offenders of burglary
- What type of crime was committed while on the property (or what type of crime they intended to commit)
- Value of the stolen property
- In what type of building the burglary happened (for instance, a home versus an abandoned building)
- The time of day when the burglary happened (some states impose harsher penalties for nighttime burglary as opposed to daytime burglary crimes)
- The mental state of the defendant at the time of the burglary (for instance, if they were intoxicated to the point where they were unable to form the necessary intent to commit burglary).
These factors will all be reviewed to arrive at the most appropriate sentencing given the circumstances.
What is Mandatory Sentencing for Burglary?
In some cases, burglary crimes may fall under mandatory sentencing statutes. “Mandatory sentencing” generally means that the sentences and fines cannot be changed or altered. They typically involve minimum time spent in jail and minimum amounts for fines. A judge may prescribe longer sentences or higher fines, but they cannot go below the minimums.
For instance, a mandatory sentence for misdemeanor burglary might be 3 months in jail and a fine of $2,000 (the exact terms will depend on state laws). In a particular case, a judge may sentence the burglar to a longer term in jail and a larger fine (e.g., one year in jail and a fine of $4,000) but may not sentence the burglar to a shorter term in jail and a smaller fine (e.g., 60 days in jail and a $500 fine).
What is Alternative Sentencing for Burglary?
Sometimes a burglar can avoid jail or prison time through alternative sentencing. Rather than going to jail, the person might be allowed other options, such as:
- A fine with no jail time
- Community service
- Jail time with work release
- Mandatory counseling or rehabilitation
- House arrest
Alternative sentencing is usually only available for certain defendants, such as first-time or juvenile offenders (usually under 18). However, that will always depend on the presiding judge and the circumstances of the case.
Are There Any Defenses Against Burglary Charges?
As with any other type of criminal charge, various defenses may be applied to criminal charges. Defenses can include:
- Lack of intent to commit a crime after entering the property (though the person may then face breaking and entering charges)
- Insanity, temporary or permanent
- Duress (the person was forced to commit the crime under threat of harm by a third party)
Again, these will also depend on state laws and the exact details of the crime. Some defenses don’t completely remove the charge; some serve mainly to reduce the sentence of a charge.
Do I Need a Lawyer for Help If I am Facing Charges for Burglary?
Burglary charges can result in serious criminal penalties and punishments. They can also be somewhat complex, as many elements are involved in proving the crime.
If you are dealing with criminal burglary charges, hiring a criminal defense lawyer in your area may be in your best interests. Your lawyer can explain your legal options and determine what types of defenses might apply in your case. Your lawyer can negotiate with the prosecutor for a downgrade from felony to misdemeanor or a reduced sentence. If negotiations do not result in an agreement, your lawyer can represent you at trial.