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Jim Reilly
Jim Reilly, Crim Defense Atty
Category: Criminal Law
Satisfied Customers: 1801
Experience:  CA Atty since 1976, primarily criminal law. 150+ jury trials.
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I live in Connecticut and my question is how is

Customer Question

I live in Connecticut and my question is: how is my son being charged with attempted burglary when he never entered the premises. He was getting in through the window in his friends apt (they had gotten in that way for years) while he thought his friend and his mother were away. He never actually touched the window. He wanted to be alone and didn''t think it was a big deal. However the Mom was home and called the police when she heard someone outside. My son did not identity himself and ran, leaving his backpack nearby which identified him. He left his wallet and cell phone. He is 21 with no prior record and has always been a good kid. Now he is being offered a felony conviction with probation. I am thinking we should go to trial as his friend and others will testify that they had done this for years unknown to the Mom. No one else lives in the premises.
Submitted: 6 years ago.
Category: Criminal Law
Expert:  Samuel II replied 6 years ago.

hi

just because they had done it for years, does not make it any less of a crime. if the owner did not give permission than the facts are the same as established by the CT code. so you might want to consider explaining it to the DA and see if the charge can be dismissed- otherwise the probation is probably the best he can hope for. have your son's lawyer discuss all the facts with the DA. the only affirmative defense to the burglary is if a building is abandoned - that means no one lives there

in perusing the burglary statutes, if your son did not enter the premises then i dont see how it could get a conviction on burglary as the law states "enters and remains with intent to committ a crime. criminal trespassing might be a better charge. have his lawyer work on that

you can read the CT Code on Burglary at this link

good luck to your son

Expert:  Jim Reilly replied 6 years ago.
The fact that your son and his friends have been doing this for years with the consent of a resident of the apartment (who is presumably about the same age and therefore an adult who can give permission), might very well be a defense to this charge. If he is telling the truth about why he tried to enter on this specific occasion, this is a case which should be vigorously defended and not plea bargained unless it is reduced to the lowest form of trespassing discussed below.

Since another person was in the apartment, and if your son was not armed with a weapon, the burglary law with which he is most likely charged is in Chapter 952 of the Connecticut Penal Code:

Sec. 53a-102. Burglary in the second degree: Class C felony.
(a) A person is guilty of burglary in the second degree when such person (1) enters or remains unlawfully in a dwelling at night with intent to commit a crime therein, or (2) enters or remains unlawfully in a dwelling, while a person other than a participant in the crime is actually present in such dwelling, with intent to commit a crime therein.

Note the bold phrases requiring intent to commit a crime. What your son did would be a burglary in Connecticut only if he actually entered the apartment and had intent to commit a crime in there when he did. If he is telling the truth that he did not enter (even sticking his hand through an open window, however, would constitute entry) and did not intend to commit a crime inside the apartment, it was not a burglary.

Even if he didn't actually enter, the DA might try to say it was an attempted burglary because he tried to enter with intent to commit a crime. Once again, however, if he had no intent to commit a crime, it was not an attempted burglary, either.

There are also several forms of criminal trespass in Connecticut, one of which might apply here:

Sec. 53a-108. Criminal trespass in the second degree: Class B misdemeanor. (a) A person is guilty of criminal trespass in the second degree when, knowing that such person is not licensed or privileged to do so, (1) such person enters or remains in a building, or (2) such person enters or remains on public land.
(b) Criminal trespass in the second degree is a class B misdemeanor.


There is, however, an affirmative defense to trespass which applies here if your son and his friends are telling the truth:

Sec. 53a-110. Affirmative defenses to criminal trespass. It shall be an affirmative defense to prosecution for criminal trespass that: ... (3) the actor reasonably believed that the owner of the premises, or a person empowered to license access thereto, would have licensed him to enter or remain, or that he was licensed to do so.

If your son had permission from his friend ("a person empowered to license access thereto") to climb in the window, they have been doing it for years and the friend is willing to confirm that in trial testimony, your son has an affirmative defense and there is no crime of trespass.

Finally, there is a very low level form of trespass which is only an infraction (like getting a traffic ticket):

Sec. 53a-110a. Simple trespass: Infraction. (a) A person is guilty of simple trespass when, knowing that he is not licensed or privileged to do so, he enters any premises without intent to harm any property.
(b) Simple trespass is an infraction.

Assuming again that your son is telling the truth, this is the offense at most for which he should be convicted. Of course, convincing the DA, the court and/or a jury that he is telling the truth is complicated by the fact that he ran and left his backpack behind. However, the fact that his friend is willing to support his affirmative defense (that he had permission to enter the apartment through the window) is very strong evidence that, if believed by a jury, will result in an acquittal.

Everything considered, if the DA is willing to reduce the charge to an infraction trespass with a small fine as punishment, the risk of conviction on a more serious charge would justify pleading guilty to that lesser offense. On these facts, however, there is no way your son should accept even a misdemeanor conviction, much less a felony.

Jim Reilly
Jim Reilly, Crim Defense Atty
Category: Criminal Law
Satisfied Customers: 1801
Experience: CA Atty since 1976, primarily criminal law. 150+ jury trials.
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