Burglary in New Jersey – N.J.SA. 2C:18-2

Burglary is one of the most serious crimes a person can commit. Depending on the severity of the actions, a person can be charged with a second- or third-degree crime and face serious, life-changing consequences. 

Fortunately, regardless of what mistakes led to this, an attorney can help minimize or avoid those consequences. What follows will help understand what it means to be charged with Burglary and how an attorney can help defend against the charges. 

What is Burglary?

Generally speaking, Burglary is the unlawful breaking and entering into the structure of another with the intent to commit a felony or larceny while inside. More specifically, under N.J.S.A. 2C:18-2, there are three ways to commit Burglary in New Jersey.

Entering: To be charged with Burglary by entering, a person must: 

• Enter a facility, structure, or separately secured or occupied portion of a structure
• At a time not open to the public
• Without permission or being allowed to be on the premises
• With the purpose of committing an offense on the premises

Remaining: Burglary based on remaining requires a person to:

• Surreptitiously remain in a facility, structure, or separately secured or occupied portion of a structure
• While knowing that one does not have permission and is not allowed to do so

Trespassing on Utility Company Property: A charge of Burglary based on trespassing on utility company property is met when a person has:

• Trespassed (i.e. entered without permission)
• In or on utility company property
• Where public notice prohibiting trespass is given
• Or where notice is given by conspicuous posting, fencing, or any other enclosure designed to exclude intruders

Penalties and Fines

Burglary in New Jersey is most often charged as a third-degree indictable offense (equivalent to a felony). A conviction means a possible sentence of 3 to 5 years in prison and a $15,000 fine. However, the offense can jump in severity to a second-degree crime if the accused:

• Attempted to inflict or threaten to inflict bodily injury on anyone
• Was armed with or displayed what appears to be explosives or a deadly weapon

Burglary in the second degree carries a sentence of up to 10 years in prison and a $150,000 fine.

Keep in mind that even a simple threat to harm an occupant of the building in question can be enough to turn Burglary in a second-degree crime. This is also true if it appears as if the accused displayed a deadly weapon, regardless of whether or not the weapon was displayed. 

Do not take a Burglary charge lightly! It is crucial to contact an experienced criminal defense attorney who can help protect your legal rights and liberty.

How To Beat A Burglary Charge

The burden of proof falls on the prosecution to provide evidence that one’s actions meet the conditions for Burglary. A skilled defense attorney can work to prevent prosecutors from being able to prove the defendant’s actions meet all the necessary conditions for a conviction. 

This may mean undermining the claim that the defendant did not have permission to be inside the facility or structure at that time. He/she may also defeat the claim that the defendant was inside the structure with the intent to commit a crime. 

Either approach may require getting evidence suppressed (so it cannot be used against the client) or proving that the arrest was unlawful. In many cases, the wisest strategy may be to negotiate with prosecutors ahead of a trial to have the charges reduced to a lesser offense with more mild consequences. 

The Difference Between Burglary, Theft, and Robbery

Burglary, Robbery, and Theft are often used interchangeably by laypeople. However, each is a distinctive crime (with different penalties). Burglary, as mentioned, involves illegal entry into a person’s property with the intent to commit a crime. 

That crime could be Robbery, Theft or something else entirely. In order for actions to amount to Burglary, only the intent for further crimes must exist—actually committing further crimes upon entry is not required. 

Robbery means a person has used force to take items of value (money, jewelry, drugs, etc.) possessed by another person. It is basically a form of theft but requires that the accused threaten, harm, attempt to harm or perform any other act that makes the victim feel that harm is imminent. 

Theft, on the other hand, concerns any instance of taking of a person’s property without the permission of the owner or possessor. This could be simply pickpocketing someone’s wallet or taking an unattended iPhone off a counter while the owner isn’t looking. Theft can also be called Larceny. 

Case Law Analysis

The question of what can be considered a “structure” for the purpose of Burglary was discussed in the NJ Supreme Court case State v. Olivero, 115 A. 3d 1270. The defendants had been caught using tools to break a lock and entered a fenced-in parking lot to steal items of value from a manufacturing facility. Attorneys for the defendants argued that because the items taken were in the parking lot and not the building, their act could not be considered Burglary. 

The statute for Burglary notes that any area that has been “adapted for carrying on business” is considered a structure for purposes of the offense. The parking lot, in this case, was used to store items of value that could not or should not be kept inside the walled facility. This is part of the reason the parking lot needed to be locked to deny entry to the public during non-business hours. 

As such, the NJ Supreme Court concluded that a parking lot, in this case, is considered to have been adapted for use of a business and thus part of the “structure” that was entered without permission. This affirmed that the defendants did, in fact, commit Burglary. 

Consequences for a First Offense

Many criminal offenses in New Jersey carry a presumption of non-incarceration for a first offense. This means that, barring some extreme circumstances, a first-time offender can expect a sentence of probation rather than prison. Third-degree Burglary carries such a presumption. 

However, this can be misleading as Burglary is often charged alongside other crimes, such as Theft, Robbery, or Vandalism (also called Criminal Mischief). As such, while a first offense of any one of those crimes may not lead to jail time, the judge may see the combination of offenses as demanding some form of serious penalty. 

As such, even a first-time offender with no criminal record should consult with a skilled attorney before pleading guilty to Burglary. 

Consequences for Juveniles

Youthful offenders (under 18) who commit Burglary can face serious consequences. Those charged with third-degree Burglary can face up to 2 years in detention. For second-degree Burglary, the penalty is up to 3 years in detention. 

Detention is not always the ideal method of rehabilitation for a young person. While Family Court judges who handle juvenile cases understand that, it is still imperative that one hire an experienced criminal defense attorney. 

The right attorney can minimize the chances of a conviction. Further, if the child is convicted of either Burglary or a lesser offense, the attorney can work with the judge to ensure a penalty that meets considers the emotional, medical, and developmental needs of the child. 

Enrolling in NJ Diversionary Programs

A person charged with third-degree Burglary in New Jersey should consult with an attorney to see if he/she qualifies for a diversionary program. These programs, such as Pre-Trial Intervention, can help a person avoid both a conviction for the crime and jail time. 

Those who are accepted into diversionary programs will be assigned a program that may include probation, drug testing, counseling and more. If the person successfully completes the diversionary program, then the charges will be dropped.

If the Burglary was committed to satisfy a drug habit, the person may be able to enroll in Drug Court. This program is intended to keep a person out of prison in order to help focus on rehabilitation and recovery from the addiction. To enroll the person must plead guilty to the addiction-motivated charge(s). Unlike PTI and other diversionary programs, however, the charges will not be dropped at the conclusion of the program.

Each diversionary program has a different set of requirements. Even if one technically qualifies, admission into NJ diversionary programs is limited and not all who apply will be accepted. It is recommended that a person consults with an attorney to determine the chances of being able to enter a diversionary program for Burglary. 

Expunging A Burglary Conviction

A person convicted for Burglary in NJ can potentially have the offense scrubbed from his/her criminal record. Burglary is among the indictable offenses (felonies) eligible for expungement. However, the person must meet all other requirements before filing a petition to have the record expunged. 

New Jersey will only grant expungements to those who have one (or no) indictable offenses on his/her criminal record. Burglary is an indictable offense, which means if the person has been convicted of another indictable offense, such as fourth-degree theft, in an unrelated case, then he/she will not be eligible for an expungement. 

The key there is “unrelated;” if the indictable offense was committed as part of the Burglary, then the person may still be able to apply. 

If the person has a conviction for a disqualifying offense, however, such as Robbery, then he/she will not be able to have the record cleared. 

For those that are eligible, the person must wait 6 years after he/she has satisfied the conditions of sentencing (i.e. completed prison and parole terms, as well as paid and fines). Even a person who is eligible to apply may not have his/her petition approved by a judge, or the petition could be challenged by a county prosecutor. 

For these reasons and more, a person should first consult with an attorney for help in filing a petition for expungement. An attorney can help ensure the paperwork is complete and presents the client’s case in the best possible light. If the petition is challenged, the attorney can attend a hearing and present arguments with the best possible chance of winning an expungement. 

Frequently Asked Questions

Who Should I Contact?

If you or a loved one was charged with Burglary or any other serious criminal offense in New Jersey, contact the attorneys at Rosenblum Law today. Our skilled criminal defense attorneys have helped people in many difficult legal situations. We can defend your constitutional rights, fight to keep you out of jail and do what we can to have the charges dismissed or reduced. E-mail or call us today at 888-815-3649.