Quote:
Originally Posted by stormgal
In New York State, isn't it legal for a pistol permit holder to shoot at a burglar in order to stop a burglary?
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Interesting question and it Depends is the short answer
While Article 35 says:
2. A person in possession or control of any premises, or a person
licensed or privileged to be thereon or therein, may use physical force
upon another person when he or she reasonably believes such to be
necessary to prevent or terminate what he or she reasonably believes to
be the commission or attempted commission by such other person of a
criminal trespass upon such premises. Such person may use any degree of
physical force, other than deadly physical force, which he or she
reasonably believes to be necessary for such purpose, and may use deadly
physical force in order to prevent or terminate the commission or
attempted commission of arson, as prescribed in subdivision one, or in
the course of a burglary or attempted burglary, as prescribed in
subdivision three.
So while we all thought we can shoot a burglar , we were later taught that the term burglary has many different aspects that follow and not all can use lethal force
There are differences within that category of burglary and some allow lethal force while others can get you in a heap of trouble .
Burglary is the catch all for entering a premise unlawfully, but it takes in robbery , rape , kidnapping and other very serious crimes.
Some crimes like those above can use lethal force ,others not
Can an elderly friend in your house caught stealing a piece of jewelry from your bedroom on her way out , be shot ? You better not ….but that is burglary .
But if she beats you , or pulls a weapon or forcibly tries to take that jewelry ,well that is now robbery and your reaction can include lethal force .
Yet in both cases being in your premise and committing a crime falls under burglary.
So burglary is more like a catchall for a lot of different actions by a perp which may include robbery .
Except for if a person is under a reasonable belief that the attacker is attempting to commit or is committing a forcible rape, robbery, kidnapping or forcible criminal sexual act you may very well be in trouble legally and or civilly for shooting someone .
The difference between just burglary and more serious robbery is interesting
burglary is defined under Penal Law Article 140. There are three different degrees: third degree (D non-violent felony), second degree (C violent felony) and first degree (B violent felony). A burglary must involve an entry into a building and an intent to commit a crime upon such entry. Whether the building is a home, or if the defendant is armed, injures a victim, or displays a weapon will change the degree of the offense.
Note that a burglary may be committed even when there is no physical breaking and entering. For example, someone who is invited into a home can still be charged with burglary if, after they’ve been in the home, they then remain unlawfully while intending to commit a crime.
Burglary also doesn’t necessarily involve theft. Many believe that the crime occurs when the perpetrator takes property after entering illegally. However, if the perpetrator intends to commit any crime – whether a theft, a sex crime, an assault, or any other type of crime – it can still be charged as a burglary.
Finally, burglary may be charged even if the intended theft or assault doesn’t occur.
What matters is that the perpetrator intended to commit a crime after entering or remaining in the premises unlawfully.
For example, if a perpetrator enters a home unlawfully with intent to steal property, but he/she is scared off before stealing anything, the perpetrator can still be charged with burglary.
Robbery is defined under Penal Law Article 160. As with burglary, there are three different degrees: third degree (D non-violent felony), second degree (C violent felony) and first degree (B violent felony).
Robbery is a face-to-face confrontation between the perpetrator and the victim. In involves instilling fear in and/or force against a victim before, during, or after the commission of a property crime.
Third degree robbery is the catch-all for when any property is forcibly stolen from a victim.
Second degree robbery occurs when a perpetrator is aided by another person. It also occurs when a victim is physically injured, if a weapon is displayed, or if the property stolen is a vehicle.
By comparison, first degree robbery is a much more grievous crime. It involves serious physical injury to a victim, or the use of a deadly weapon or dangerous instrument.
It is up to the DA . To define each situation.
In New York, you have the right to protect yourself - and your home.
One of the more defining parts of New York’s castle doctrine law is the duty to retreat. This means if a person sees someone in their yard or on their property who is perceived to be a threat, the person has a duty to retreat first if they can do so safely. However, if a person is inside of their home, that does not apply.
New York law does not impose a duty to retreat in your own home if you are not the initial aggressor or if a person is under a reasonable belief that the attacker is attempting to commit or is committing a forcible rape, robbery, kidnapping or forcible criminal sexual act.
As any attorney who handles self defense cases can tell you , each case stands on its own .
There are rarely black and white situations in the eyes of the law , just different shades of grey.
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