BILL NUMBER: S875

SPONSOR: BAILEY
 
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 subdivi-
sion 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 partic-
ipant 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.

 
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 dwell-
ing. 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 riot a fitting
punishment fora 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 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. Howev-
er, when burglary is committed as a crime against property, and violence
is not involved, it will be appropriately charged as a non-violent felo-
ny. By correctly classifying burglary crimes, offenders will be held
responsible for their actions and punished accordingly.

 
PRIOR LEGISLATIVE HISTORY:

2021-22: Referred to Codes

2023-24: Referred to Codes

 
FISCAL IMPACT ON STATE:

None.

 
EFFECTIVE DATE:
Immediately.