NY Penal Law 140: Elements of Burglary and Trespass

NY Penal Law 140: Burglary & Trespass Concepts

License and Privilege

Under New York Penal Law 140.00, a person “enters or remains unlawfully” on a property when they do so without license or privilege.

• A license or privilege to be on a premises can only be granted by the owner or the owner's agent (someone authorized to act on behalf of the owner).
• The prosecution must prove beyond a reasonable doubt that the defendant lacked the license or privilege to be there.
• Public areas like hallways, lobbies, and corridors are generally considered places with license and privilege unless there are signs, barriers, or other indicators restricting access (e.g., storerooms, offices, or signs like “Employees Only”).
• Any event that requires a ticket for admission, such as a concert, is not considered a public place. A defendant who enters without a ticket or gains admittance through deception or intimidation enters without a valid license or privilege.
• Police officers, firefighters, EMTs, and other emergency personnel have a license and privilege to enter a premises in the performance of their duties, regardless of the owner's consent.
• If a defendant is charged with trespassing on unused or unimproved land, they are not guilty unless a notice against trespassing is conspicuously posted or communicated. The mens rea (mental state) for trespass is “knowingly.”

A burglary or trespass charge must be based on a theory of either unlawful entry or unlawful remaining; it cannot be based on both.

• Unlawful Entry: The charge is based on the defendant going onto the premises without license or privilege. For example, a defendant enters a store after it has closed to the public.
• Unlawful Remaining: The charge is based on the defendant entering the premises with license or privilege but remaining after that license or privilege has been terminated. For example, a defendant enters a store while it is open but stays on the premises after the store has closed.

Key Definitions: Building, Dwelling, and Entry

PL 140.00: “Building”

A structure is considered a “building” if it meets the following criteria:

• It is a constructed edifice.
• It has walls and a roof.
• It is designed to stand permanently.
• It serves a useful purpose.

Examples of buildings include mausoleums, houseboats, vans used for business or lodging, and even an uncompleted house not yet ready for occupancy.

PL 140.00: “Dwelling”

A “dwelling” is typically a house or apartment but can include other places where a person lodges. Burglaries of dwellings are usually considered more serious than burglaries of other buildings (compare Burglary in the Second Degree with Burglary in the Third Degree). A dwelling does not lose its character as such if it is temporarily unoccupied.

Note: Under the old common law, a burglary could only occur at night. Today, under current New York law, most burglaries occur during the day, and the time of day is not a defining element for the basic offense.

PL 140.00: “Entry”

The “entry” element of a burglary or trespass offense is satisfied when the defendant intrudes within a building or dwelling, no matter how slightly, with any part of their body or any instrument. This is a change from the old common law, which required a “breaking and entering.” There is no requirement of a “breaking” under current law.

• If an instrument is used to effect the entry, it is called a constructive entry.