BILL NUMBER:  S6660

 TITLE OF BILL :

An act to amend the penal law, in relation to burglary in the second
degree

 SUMMARY OF PROVISIONS :

Section one amends section 140.25 of the penal law to add a new
subdivision three to burglary in the second degree. Under this new
subdivision a person commits burglary in the second degree when he or
she unlawfully enters a building and the building is a dwelling which
at the time of the commission of the crime is occupied by a person who
is not a participant in the crime.

Section two amends section 70.02 of the penal law to classify
subdivisions one and three of section 140.25 of the penal law as a
violent felony offense.

Section three provides that the bill shall take effect immediately.

 JUSTIFICATION :

Under current law, a person may be convicted of burglary in the second
degree based upon their unlawful entry into a building which is a
              

dwelling. This broad category results in convictions for what are
essentially crimes against property, where the dwelling is unoccupied
and there is no element of violence whatsoever involved. A recent
study found that of all residential burglaries committed in the United
States between 1998 and 2007, only 1.2% involved violence or threats
of violence. However, burglary in the second degree is classified as a
class C violent felony regardless of the circumstances.

Classification as a violent or non-violent felony impacts the type of
sentence that will be imposed. The sentence for a violent felony
consists of a determinate term while a non-violent felony calls for an
indeterminate term. Determinate terms can result in significantly
longer sentences than indeterminate terms because they provide for a
fixed number of years as opposed to a range with a minimum and maximum
term. Also, a determinate term precludes the possibility for parole
while an indeterminate term allows for such a possibility upon
completion of the minimum term of the sentenced range. A violent
felony sentence which is longer and does not offer the opportunity for
parole is not a fitting punishment for a person who has not engaged in
violent behavior.

This is especially true when considering that New York is currently
one of only two states that still treat 16 and 17 year olds as adults
in the criminal justice system. In 2014, burglary in the second degree
made up 12% of all arrests for 16 and 17 year olds. Scientific studies
have proven that the brains of young people continue to develop until
the age of 25 and they do not have the same understanding of the
consequences of their actions as adults. Young people are also far
more susceptible to the influence of others.  Studies have shown that
when young people are processed in the adult system, they have higher
recidivism rates and for committing more serious crimes than their
counterparts in Family Court. Imposing a harsher violent felony
sentence when a young person has not displayed any violent behavior
only serves to compound this problem. This bill corrects this
erroneous classification by providing that when a person commits
burglary in the second degree by entering an unoccupied dwelling, they
will not be charged with a violent felony. Any burglary that is
committed while a dwelling is occupied or includes acts of violence,
the use or threatened use of a weapon, or display of what appears to
be a weapon will still be charged as a violent felony. However, when
burglary is committed as a crime against property, and violence is not
involved, it will be appropriately charged as a non-violent felony. By
correctly classifying burglary crimes, offenders will be held
responsible for their actions and punished accordingly.

 PRIOR LEGISLATIVE HISTORY :

2015-16: A.9732 (Richardson) - Referred to Codes.

 FISCAL IMPACT ON STATE :

None.

 EFFECTIVE DATE :
This act shall take effect immediately.