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NY Penal Law § 140.30: Burglary in the First Degree
Burglary in the first degree, NY Penal Law § 140.30, is burglary of a dwelling where you or someone with you is armed with a deadly weapon or explosives, causes physical injury to someone, uses or threatens a dangerous instrument, or displays what appears to be a gun. It is a class B 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 § 140.30 at a glance
| Burglary in the first degree | |
|---|---|
| Statute | NY Penal Law § 140.30 |
| Charge level | Class B violent felony |
| Prison range | 5 to 25 years (determinate) |
| Most common on Long Island | Subdivision 2 (injury) and subdivision 3 (dangerous instrument) |
| Lesser charge | Burglary in the second degree (PL 140.25), class C violent felony |
What NY Penal Law § 140.30 says
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.
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 dwelling.
- You intended to commit a crime inside.
- During entry, inside, or in flight, you or another participant did one of the four things listed.
Penalties for first-degree burglary
| Outcome | What it means |
|---|---|
| Prison | A class B violent felony: a determinate term of 5 to 25 years in state prison, plus post-release supervision. |
| Unloaded or fake gun | An affirmative defense to subdivision 4, though second-degree burglary can still apply. |
| Pleas | Many cases resolve with pleas to lower degrees of burglary. |
| 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 first-degree burglary?
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 first-degree burglary charges show up on Long Island
In the cases we’ve seen over the last two years, PL 140.30 charges come up more often in Nassau County. The most common versions are subdivision 2 (causing physical injury) and subdivision 3 (using or threatening a dangerous instrument).
Like second-degree burglary, many of these cases come out of disputes between people who know each other, including former partners and family members.
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 to a former partner’s home, enters through an unlocked door, and a fight breaks out in which the former partner’s new boyfriend is hurt. The charge is PL 140.30(2). The defense looks at whether the person had a reasonable belief they could enter, what they intended when they went in, and who started the fight.
Defenses to a PL 140.30 charge
- License or privilege. A reasonable belief you were allowed to enter defeats burglary.
- No intent to commit a crime inside. Without it, the case may be trespass and assault, not burglary.
- Self-defense. Injuries during a fight you did not start may be justified.
- Unloaded or inoperable gun. An affirmative defense to subdivision 4.
- Identification. Eyewitness and video identification can be challenged.
Related offenses
- Burglary in the second degree (PL 140.25)
- Burglary in the third degree (PL 140.20)
- Robbery in the first degree (PL 160.15)
- Criminal trespass
NY Penal Law § 140.30: frequently asked questions
What is burglary in the first degree in New York?
Under Penal Law 140.30, it is burglary of a dwelling where you or another participant is armed with a deadly weapon or explosives, causes physical injury, uses or threatens a dangerous instrument, or displays what appears to be a gun. It is a class B violent felony.
What is the sentence for burglary 1st degree?
A conviction as charged carries a determinate state prison term of 5 to 25 years, plus post-release supervision.
What is the difference between burglary 1st and 2nd degree?
Burglary of a dwelling alone is second degree. It becomes first degree when someone is armed, injured, threatened with a dangerous instrument, or shown what appears to be a gun during the burglary of a dwelling.
Can burglary 1st degree be reduced?
Yes. Many cases resolve with pleas to lower degrees of burglary or other charges, depending on the evidence.
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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