CJI2d[NY] Penal Law § 140.25 (2)

The (specify) count is Burglary in the Second Degree.

Under our law, a person is guilty of Burglary in the Second Degree when that person knowingly enters [remains]² unlawfully in a building with the intent to commit a crime therein, and when the building is a dwelling.

The following terms used in that definition have a special meaning:

[NOTE: Add, where appropriate:

In addition to its ordinary meaning, the term BUILDING includes any structure, vehicle or watercraft used for overnight lodging of persons, or used by persons for carrying on business therein, or used as an elementary or secondary school, or an inclosed motor truck, or an inclosed motor truck trailer.³]

[NOTE: Add, where appropriate:

Where a building consists of two or more units separately secured or occupied, each unit shall be deemed both a separate building in itself and a part of the main building.⁴]

A DWELLING is a building which is usually occupied by a person lodging therein at night.⁵

[Note: Add, where appropriate:

Normally, if a building contains a dwelling, a burglary committed in any part of that building is the burglary of a dwelling

However, a building would not be a dwelling if a burglary was committed in an area so remote and inaccessible from the living quarters that the burglar neither came near, nor readily could have come near, to anyone’s living quarters.⁶]

A person enters [remains] UNLAWFULLY in a building when that person has no license or privilege to enter [remain] in that building.⁷ To have no license or privilege to enter [remain] means to have no right, permission or authority to do so.

[NOTE: Add where appropriate:

A person enters a building when that person intrudes within the building, no matter how slightly, with any part of their body.⁸]

[NOTE: Add, where appropriate:

A person who is subject to and knows of an order of protection directing him/her to stay away from a building which he/she knowingly enters, even by invitation or permission, UNLAWFULLY enters that building.⁹]

[NOTE: Add, where appropriate:

A person who, regardless of his or her intent, enters [remains] in or upon premises which are at the time open to the public does so with license and privilege unless he or she defies a lawful order not to enter [remain], personally communicated to him or her by the owner of such premises or other authorized person.¹⁰

[NOTE: Add, where appropriate:

A license or privilege to enter [remain] in a building which is only partly open to the public is not a license or privilege to enter [remain], in that part of the building which is not open to the public.¹¹

A person KNOWINGLY enters [remains] unlawfully in a building when that person is aware that he or she is entering [remaining] in such building without license or privilege to do so.¹²

INTENT means conscious objective or purpose.¹³ Thus, a person has the intent to commit a crime in a building when that person's conscious objective or purpose is to commit a crime in that building.

[NOTE: Add, where appropriate:

It is not enough that a person, who is subject to and knows of an order of protection prohibiting entry into a dwelling, intended to violate the order by entering the building. That person must have intended to violate some other provision of the order or to commit a separate crime therein.¹⁴]

The crime of burglary is separate and distinct from any crime which a person may commit within the building. The crime of burglary is complete when a person knowingly enters [remains] in a building unlawfully and does so with the intent to commit a crime in the building, regardless of whether that person ever commits, or even attempts to commit, any crime in the building.

In order for you to find the defendant guilty of this crime, the People are required to prove from all of the evidence in the case beyond a reasonable doubt each of the following four elements:

1. That on or about (date) , in the county of (County), the defendant, (defendant's name), unlawfully entered [remained] in a building located at (specify) ;

2. That the defendant did so knowingly;

3. That the defendant did so with the intent to commit a crime inside the building;¹⁵ and

4. That the building was a dwelling.¹⁶

If you find the People have proven beyond a reasonable doubt each of those elements, you must find the defendant guilty of this crime.

If you find the People have not proven beyond a reasonable doubt any one or more of those elements, you must find the defendant not guilty of this crime.