BURGLARY IN NEW YORK
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.
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 carries a penalty from 1 to 15
years of imprisonment, while third degree burglary offenses carry a sentence
up to seven years.
A conviction for burglary can have extremely serious immigration consequences.
First, it could constitute an aggravated felony conviction, crime of violence,
if a sentence of at least 1 year is imposed. In addition, a conviction
for burglary generally constitutes a crime involving moral turpitude (“CIMT”).
U.S. v. Velasquez, 2006 U.S. App. LEXIS 13665 (3d Cir. 2006) (unpub’d), the Court
held that attempted burglary it is an Aggravated Felony under N.Y. Penal
Law §§140.25 and 110.00.
A burglary conviction will not be classified as an aggravated felony, crime
of violence, if a sentence of less than 365 days was imposed. To avoid
for a burglary conviction to be classified as a CIMT, it is necessary
to leave record of conviction vague as to what was the underlying crime
intended, or specify in that record an underlying offense that is NOT a CIMT.
BURGLARY IN NEW JERSEY
In New Jersey, burglary is a second degree offense, if
- the actor purposely, knowingly or recklessly inflicts, attempts to inflict
or threatens to inflict bodily injury on anyone; or
- The actor is armed with or displays what appear to be explosives or a deadly weapon.
Otherwise, is crime in the third degree.
If a term of imprisonment of at least one year is imposed, and the record
of conviction establishes unlawful entry into a dwelling, a conviction
for burglary in New Jersey would probably be deemed a “crime of
violence” AF; further, if a term of imprisonment of at least one
year is imposed and record of conviction establishes unlawful entry into
a dwelling (see Taylor v. U.S., 495 U.S. 575 (1990)), it would probably
also be deemed a “burglary” AF.
In addition, a conviction for burglary would be considered a CIMT if record
of conviction establishes that the offense intended to be committed was
a Crime Involving Moral Turpitude.
If you have been charged with burglary, speak to an experienced
criminal immigration attorney