Interviewer: Are burglaries always felonies?
Stuart: Burglaries are always felonies, correct.
Interviewer: What are some potential penalties for someone charged with burglary?
Stuart: If the burglary is of a dwelling, meaning somebody’s house, that is a very broad definition. For example, somebody has a garage attached to their house.
Somebody breaks into that garage and steals a bicycle. But he or she never goes in the house, never does anything with the house. He is charged with the burglary of a dwelling, and that is a violent felony.
Violent felonies have minimum mandatory sentences. In New York, the minimum mandatory sentencing for a violent burglary for a house, which is a “B” violent felony, is 3-1/2 years. The maximum is 15 years.
What that means, in essence, is, without some plea bargain or disposition worked out, the minimum the judge has to sentence you by law is at least 3-1/2 years in jail.
Interviewer: Are the judge’s hands tied even if there are mitigating circumstances? If there is a conviction, does the judge really have no choice but to sentence a person to at least 3-1/2 years?
Stuart: Yes. They do have some discretion with regards to a program beforehand, or they have discretion trying to put pressure on the district attorney to change the plea bargain. But once you are convicted or once that state has a “B” violent felony, they cannot change it.
Interviewer: Why is a burglary considered a violent felony even if no one is present or hurt?
Stuart: That is a good question. Frequently, there are certain felonies where they say the potential of somebody getting hurt is so great that we are going to define these as violent felonies, even if nobody does get hurt.
If you break into a warehouse late at night or even during the day when somebody is there, that is not a violent felony. This is because it is more unlikely somebody will get hurt; or that somebody is going to be there. Basically, somebody should be safe in their castle, their home.
But suppose you break into somebody’s house when they are not there because you know they are away. They go every year for one month to Florida, and you break in during that one month because you live down the block and you know them. Well, it is still a violent felony. It is really protection almost.
Interviewer: Are there different levels of burglary of a dwelling? Does the level change at all if someone is home, versus not?
Stuart: No. The only way burglaries of a dwelling become different is depending on whether somebody is injured, or whether you have a gun or an explosive device.
The minimum just standard burglary where you break into a house any time or any place, as long as it is a house or a kind of a dwelling, it is a “C” violent felony.