Many people believed that karma finally caught up to notorious ex-athlete O.J. Simpson, when, in 2008, he was convicted of burglary in Nevada. [1] Simpson and his compadres allegedly burst into a Las Vegas hotel room to seize sports memorabilia which Simpson said belonged to him. If this event had happened in New York, Simpson would probably have been guilty of something, but as outlined below, burglary charges would probably have not held up in court.

Burglary is a serious charge in The Empire State with serious direct and collateral consequences. Lengthy prison terms are the norm, even if the defendant has no criminal record. Furthermore, when most landlords, employers, and others see “burglary,” they have visions of extremely violent Simpsonesque intrusions and home invasions.

A Rochester criminal attorney has the professional tools to reduce or eliminate these negative consequences. Even if the defendant is morally guilty, there is often a legal defense to these charges. An attorney can leverage that defense and obtain a positive result, like a complete dismissal of charges, a not-guilty verdict at trial, or a plea to a lesser included offense.

Elements of the Offense

According to Article 140 of the New York Penal Law, burglary is essentially unlawfully entering into or remaining on the property with the intent to commit a crime. [2]

There are three levels of burglary:

  • First Degree: This offense is often related to violating a restraining order. These orders usually prohibit people from being in certain places, such as a person’s office.
  • Second Degree: These charges are appropriate if the structure was a dwelling or used as a dwelling, even if no one was home then. Additionally, the defendant injured someone or displayed a firearm or another dangerous weapon immediately before, during, or immediately after the burglary.
  • Third Degree: This offense is exactly like second-degree burglary, except that two aggravating circumstances are present (firearm, dangerous weapon, or injury).

Aggressive New York prosecutors normally press the most serious charges that the facts could possibly support. Sometimes, this zeal works in favor of Rochester criminal attorneys, especially when it comes to defending these charges in court.

Possible Defenses and Rochester Criminal Attorneys

Frequently, burglary is a spur-of-the-moment crime that often involves alcohol. The defendant, who is drinking, makes a poor choice, often at the behest of “friends.” Normally, voluntary intoxication is not a defense to criminal activity. But burglary is a specific intent crime. The defendant must intend both the conduct (illegal entry) and the result (a separate crime). Scientifically and legally, intoxicated individuals do not have the capacity to formulate such a complex thought process.

If the separate crime was theft, property ownership could also be a defense. That’s why Simpson might not have been guilty of burglary in New York. The defendant must have legitimate, outright ownership instead of a claim to ownership or a superior right of possession.

Finally, proving a weapon enhancement is often a problem for prosecutors. If the defendant used a firearm, the gun must have been loaded and in firing condition. If the defendant used a baseball bat, golf club, or another object which could be a weapon, the defendant must brandish this object and probably threaten to use it. Merely displaying it is insufficient.

Count on a Thorough Attorney

Serious burglary charges do not always hold up in court. For a free consultation with an experienced Rochester criminal attorney, contact the Law Office of Frank Ciardi. Convenient payment plans are available.




The information in this blog is provided for general informational purposes only and should not be used as a substitute for legal counsel on any subject matter.

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