Burglary and Breaking-In

What are the offenses and what is the difference between them?

The law distinguishes between two separate offenses:

Burglary: unauthorized entry into a building used for residence or worship, whether using violence or not, and whether by breaking a window, opening a door with a key, entering through a chimney, or through any other opening.

Breaking in: unauthorized entry into a building not used for residence or worship, such as a shop, warehouse, or business.

The definitions set out in sections 405-407 of the Penal Law are very broad: even a person who inserts only part of his body into a building is considered to have “entered”; even entry by trickery or in conspiracy with someone inside the building constitutes burglary. A person's home is his fortress, and any intrusion into it without permission is perceived as a serious violation.

Sentencing framework

• The offense: entry into a place of residence or worship with intent to commit theft or a felony (section 406(a)); maximum penalty: 5 years' imprisonment
• The offense: breaking into a place of residence or worship with intent to commit theft or a felony (section 406(b)); maximum penalty: 7 years' imprisonment
• The offense: breaking into a building that is not a residence with intent to commit theft (section 407(a)); maximum penalty: 5 years' imprisonment
• The offense: breaking into a building that is not a residence and where theft was committed (Section 407(b)); maximum penalty: 7 years' imprisonment
• The offense: committing any of the offenses while carrying a firearm or a cold weapon (Section 408); maximum penalty: double the prescribed punishment
• The offense: possession of burglary tools without a reasonable explanation (Section 409); maximum penalty: 3 years' imprisonment
• The offense: suspicious circumstances indicating intent to break in (Section 410); maximum penalty: 5 years' imprisonment

Suspicious circumstances indicating intent to break in, Section 410

Even someone who has not yet broken in, but is found in circumstances raising suspicion of intent to break in, is exposed to up to 5 years' imprisonment. The circumstances listed in the section are: carrying a weapon or dangerous tool with intent to enter a building; possessing a burglary tool with intent to commit a felony; having a masked or disguised face with intent to commit theft; being found in a building and taking measures to conceal one's presence.

Possession of burglary tools

Section 409 constitutes a preventive offense: a person found in possession of tools used for burglary, and who has no reasonable explanation for their presence, is liable to 3 years' imprisonment. There is no need for the break-in to actually be carried out.

What does the court examine?

When hearing the offense, the court attaches great importance to the defendant's intent, the purpose of the entry, the manner in which it was carried out, and the means used. Therefore, the version given in the investigation, the way the intent is presented, and the possibility of challenging the element of intent are the points around which the entire struggle is conducted. In burglary cases, additional offenses usually accompany them: theft, possession of a weapon, damage to property. Multiple charges increase the overall exposure.

Legal representation in burglary and breaking-and-entering cases

Israel Arama, a former member of the Tel Aviv District Attorney's Office, represents suspects and defendants in serious property offenses. At almost every stage of the criminal proceeding, there is potential to reduce the charge, challenge the element of intent, or identify flaws in the investigation. Early representation is what determines whether an indictment will be filed and what it will contain. Contact us for an initial consultation without obligation before giving a statement.