Q: Is it considered Burglary 2nd violent felon if the person was given the key by the home owner to be able to enter?
The home owner admits in the deposition they did that the person was given the key by the home owner and the key was where the home owner told the person to leave the key when they where done working for the day. The home owner had left for the day. Nobody was in the home when the crime was commited. Is it considered burglary 2nd violent felon if the home owner gave the person a key to enter the home?
A:
You can argue the defendant was invited into the home, but that is no excuse for any crime he committed therein.
Burglary in NY is (1) entering the premises of another (2) with the INTENT of committing a CRIME THEREIN
So the evidentiary burden is on the prosecution to prove beyond a reasonable doubt that (1) when the defendant opened the house with the key (physical act) he was (2) INTENT on committing a crime in the house (guilty mind) . - NOTE: NY Law does not require a theft or conversion nor does it require the place to be a dwelling or that the entry occurred at night (these are elements in some other states) BUT LIKE MOST CRIMES IT REQUIRES A GUILTY ACT AND A GUILTY MIND; If the defendant can create a reasonable doubt over either, a jury must acquit.
IF D has not had a grand jury or felony hearing yet hire a lawyer before that.,
Hope this helps.
Call if you need some free guidance; I do lots of criminal law.
Aubrey
(914) 912-1555
AG3LAW.COM
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