New York Penal Law � 140, states that a person enters or remains on a premises “unlawfully” when he or she “is not licensed or privileged to do so”; the entry need not be forcible in nature. Immigrants that are charged with burglary face deportation proceedings, and need to hire an experienced immigration attorney.
New York has three degrees of burglary: first, second and third degree. The possible sentences for a first degree burglary conviction range from one to 25 years. Second degree burglary is subject to a one to 15 year sentence, and judges can set any third degree burglary sentence up to seven years.
Under New York Penal Law � 140.30 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 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:
� Is armed with explosives or a deadly weapon; or;
� Causes physical injury to any person who is not a participant in the crime; or
� Uses or threatens the immediate use of a dangerous instrument; or
� 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 and it is considered an aggravated felony under federal immigration laws.