Burglary: Elements, Structure vs Dwelling, and Grading (2C:18-2)

Burglary Defined — 2C:18-2

Under 2C:18-2(a), a person commits burglary who, with purpose to commit an offense therein, either:

1. Enters a structure, or a separately secured portion of a structure, unless licensed to do so; OR
2. Surreptitiously remains in a structure, knowing they are not licensed or privileged to remain.

Three elements must be proved beyond a reasonable doubt:

1. Unlawful entry or remaining — the defendant entered without permission, or stayed after permission ended.
2. Structure — the entry was into a 'structure' as defined by 2C:18-1.
3. Purpose to commit an offense inside — at the time of entry or remaining, the defendant had the conscious purpose to commit an offense (theft, assault, criminal mischief, etc.) inside.

The target offense need not be completed. The burglary is complete at the moment of unlawful entry with criminal purpose. If the defendant enters a store at night intending to steal, but flees empty-handed when the alarm sounds, the burglary is already complete — the completed theft is a separate charge.

The Two Definitions You Must Know — 2C:18-1

The grading of burglary hinges on the type of structure entered. Title 2C draws a clear line between dwellings and other structures.

Structure — 2C:18-1

A structure is any building, room, ship, vessel, vehicle, or enclosure that is capable of sheltering people or property. This is deliberately broad: a store, a warehouse, an office, a parked van, a shed, a fenced lot — all structures.

Dwelling — 2C:18-1

A dwelling is a structure that is adapted for overnight accommodation of people, and is used by people as a place to sleep — whether or not a person is actually inside at the time of the burglary.

Key nuances:

• A house, apartment, condominium, hotel/motel room, dormitory room, and even a tent or RV used for sleeping are dwellings.
• A structure being temporarily unoccupied (the owners are on vacation) does not lose its dwelling character. It is still a dwelling.
• A commercial building with no sleeping accommodations — a store, a bank, an office — is a structure but not a dwelling.
• A garage attached to a house is generally part of the dwelling; a detached garage used only for vehicles is a non-dwelling structure.

This distinction drives grading — and is the single most-tested burglary concept on the LEE.

Grading — 2C:18-2(b)

Burglary is graded in two tiers based on structure type and aggravating factors.

2nd-Degree Burglary (5-10 years)

Burglary is a 2nd-degree crime if any of the following is true:

1. The burglar purposely, knowingly, or recklessly inflicts, attempts to inflict, or threatens to inflict bodily injury on anyone during the course of the burglary; OR
2. The burglar is armed with or displays what appears to be explosives, a deadly weapon, or a firearm; OR
3. The structure entered is a dwelling — regardless of whether anyone was home or a weapon was carried.

The dwelling rule is the most frequently tested. If a defendant unlawfully enters a house at 2 a.m. with purpose to steal, the burglary is 2nd degree simply because a house is a dwelling. No weapon, no injury, no one home — still 2nd degree.

3rd-Degree Burglary (3-5 years)

Burglary is a 3rd-degree crime in all other cases — meaning the structure was a non-dwelling (store, warehouse, office, shed) and the defendant was not armed, did not injure or threaten anyone, and did not carry or display a weapon.

The 'Purpose to Commit an Offense' Element

The State must prove the defendant entered (or remained) with the purpose to commit an offense inside. This element is almost always circumstantial — the jury infers purpose from conduct.

Common circumstantial evidence of purpose:

• Time of entry (2 a.m. through a window) suggests stealth and criminal purpose.
• Possession of burglary tools (pry bar, mask, gloves, flashlight).
• Flight when discovered.
• Lack of lawful reason to be there.

If the defendant unlawfully entered without proof of purpose to commit an offense inside, the charge is the lesser offense of criminal trespass (2C:18-3) — a 4th-degree crime or disorderly persons offense, not burglary. The dividing line: burglary requires purpose to commit an offense inside; trespass does not.

Worked Examples

Example A: A defendant pries open the back door of a single-family home at 1 a.m. with purpose to steal electronics. The home is a dwelling. Burglary of a dwelling = 2nd degree, 5-10 years. No weapon needed; no injury needed; the dwelling classification alone controls.

Example B: A defendant unlawfully enters a closed furniture warehouse at night with purpose to steal furniture. The warehouse is a structure but not a dwelling (no sleeping accommodation). No weapon, no injury. Burglary of a non-dwelling structure = 3rd degree, 3-5 years.

Example C: Same warehouse, but the defendant is carrying a loaded handgun. The armed-burglary escalation triggers: 2nd degree, 5-10 years — even though the structure is not a dwelling.