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NY Penal Law § 140.25: Burglary in the Second Degree
Burglary in the second degree, NY Penal Law § 140.25, is burglary of a dwelling (a place where someone lives), or burglary of any building where someone is armed, injured, threatened with a dangerous instrument, or shown what looks like a gun. It does not require a break-in or a theft. It is a class C violent felony. Richard Hochhauser of Hochhauser Criminal & DWI Defense, PLLC is a former Long Island prosecutor who defends burglary charges in Nassau County and Suffolk County courts.
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NY Penal Law § 140.25 at a glance
| Burglary in the second degree | |
|---|---|
| Statute | NY Penal Law § 140.25 |
| Charge level | Class C violent felony |
| Prison range | 3½ to 15 years (determinate) |
| Most common on Long Island | Subdivision 2: the building is a dwelling |
| Lesser charge | Burglary in the third degree (PL 140.20), class D felony |
What NY Penal Law § 140.25 says
A person is guilty of burglary in the second degree when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein, and when:
1. In effecting entry or while in the building or in immediate flight therefrom, he or another participant in the crime: (a) Is armed with explosives or a deadly weapon; or (b) Causes physical injury to any person who is not a participant in the crime; or (c) Uses or threatens the immediate use of a dangerous instrument; or (d) Displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; or
2. The building is a dwelling.
Burglary in the second degree is a class C felony.
Source: New York State Senate, official text. Read the full section, including any later amendments, before relying on it.
What the prosecutor has to prove
- You knowingly entered or remained unlawfully in a building.
- You intended to commit a crime inside.
- The building was a dwelling (a place usually occupied overnight), or one of the aggravating facts in subdivision 1 applied.
Penalties for second-degree burglary
| Outcome | What it means |
|---|---|
| Prison | A class C violent felony: a determinate term of 3½ to 15 years in state prison, plus post-release supervision. |
| Pleas | Many cases resolve with a plea to a lower degree, often burglary in the third degree or criminal trespass, which opens up non-prison sentences. |
| Youthful offender | People charged when young may be eligible for youthful offender treatment. |
| Other consequences | A violent felony record, restitution and immigration consequences. |
New York’s sentencing law for class B and C violent felonies is scheduled to change on September 1, 2027. Sentences for offenses before that date follow the current determinate-sentence rules.
Charged with burglary of a home?
Call before your next court date. Consultations are free, in person at our Hempstead office or by video call or phone call. We answer 24/7.
How second-degree burglary charges show up on Long Island
In about two years of Nassau County and Suffolk County arraignment records, about 62 people were arraigned on PL 140.25, nearly three quarters of them in Nassau County.
Almost all of them, about 53, were charged under subdivision 2, burglary of a dwelling. We often see these charges come out of family and relationship disputes, where someone returns to a home they used to share, or is barred from it by an order of protection.
In Nassau County, arrests are arraigned at the Nassau County District Court, 99 Main Street, Hempstead, NY 11550, across the street from our office. Felony cases that are indicted move to Nassau County Court, 262 Old Country Road, Mineola, NY 11501. In Suffolk County, arraignments are held at the Suffolk County District Court, First District, 400 Carleton Avenue, Central Islip, NY 11722. Indicted felony cases go to Suffolk County Court, Arthur M. Cromarty Criminal Court Complex, 210 Center Drive, Riverhead, NY 11901.
An example
After a breakup, a person goes back into an apartment they used to share to collect belongings and takes a television the other person says is theirs. Police charge PL 140.25(2), burglary of a dwelling. The defense focuses on whether the person reasonably believed they still had a right to enter, and whether they intended to commit a crime or believed the property was theirs.
Defenses to a PL 140.25 charge
- License or privilege to enter. Former residents, family members and people with keys may have had a right, or a reasonable belief they had a right, to be there.
- No intent to commit a crime. Without it, the most the facts may support is criminal trespass.
- Not a “dwelling.” Garages, sheds and vacant or commercial buildings may not qualify.
- Identification. Many burglary cases rely on video or forensic evidence that can be challenged.
Related offenses
- Burglary in the third degree (PL 140.20)
- Criminal trespass (PL 140.10 to 140.17)
- Burglary in the first degree (PL 140.30), class B violent felony
- Criminal contempt (violating an order of protection)
NY Penal Law § 140.25: frequently asked questions
What is burglary in the second degree in New York?
Under Penal Law 140.25, it is entering or remaining unlawfully in a building with intent to commit a crime, when the building is a dwelling or when someone is armed, injured, threatened with a dangerous instrument or shown what looks like a gun. It is a class C violent felony.
What is the sentence for burglary 2nd degree?
A conviction as charged carries a determinate state prison term of 3½ to 15 years. Many cases are resolved with a plea to a lesser charge.
Can you be charged with burglary for entering your own home?
It depends. If an order of protection or a change in who lives there means you no longer had a right to enter, a burglary charge is possible. Whether you reasonably believed you had a right to be there is often the key issue.
Can burglary 2nd degree be reduced?
Yes, often to burglary in the third degree or criminal trespass, depending on the evidence of intent and whether the building was a dwelling.
How much does a lawyer cost for this charge?
Hochhauser Criminal & DWI Defense, PLLC charges a flat fee, quoted after your free consultation, so you know the cost up front.
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This is general information about New York law, not legal advice about your case. Laws change, and the right defense depends on the facts. Prior results do not guarantee a similar outcome.
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