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 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 under NYPL § 140 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, burglary is generally deemed a crime involving moral turpitude (“CIMT”).
In 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 conviction to be deemed to be a CIMT, it is necessary to leave the 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.
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.