Overview: The End of “Third-Degree” House Burglary

Prior to late 2024, entering a home to commit an offense was typically charged as standard Burglary (Third-Degree), punishable by 3 to 5 years in prison, unless a weapon or injury was involved.

That is no longer the case. The new law (S3006/A4299), effective immediately, splits residential burglary into two specific, more severe crimes: Home Invasion Burglary and Residential Burglary. Both carry presumed prison time and strict parole ineligibility.

1. Home Invasion Burglary (First-Degree)

This is now one of the most serious crimes in the New Jersey Criminal Code. You can be charged with this if you enter a home to commit an offense and, during the incident, you:

• Inflict, attempt to inflict, or threaten bodily injury; OR

• Are armed with (or display what appears to be) a deadly weapon.

The Penalties:

• 10 to 20 Years in State Prison.

• NERA Applies: You must serve 85% of the sentence before becoming eligible for parole (No Early Release Act).

• Strict Liability: It does not matter if the weapon was a “fake” gun or if the injury was minor; the First-Degree charge still applies.

2. Residential Burglary (Second-Degree)

This charge applies to any unauthorized entry into a dwelling to commit an offense, even if no one is hurt and no weapon is present.

The Penalties:

• 5 to 10 Years in State Prison.

• Presumption of Incarceration: Unlike the old Third-Degree laws, first-time offenders are now presumed to face prison time rather than probation.

• NERA Applicability: Under the new statute, the 85% parole bar applies unless the defense can prove you reasonably believed no one was home (see Defenses below).

Potential Defenses Against These Charges

Because the penalties are now so severe, “cutting a deal” is often not the starting point. We must aggressively attack the State’s ability to prove the specific elements of these new crimes.

1. The “Mere Trespass” Defense (Lack of Intent)

To prove Burglary, the State must prove you entered with the purpose to commit an offense (like theft or assault) inside.

• Argument: If you entered a home to sleep because you were homeless, or to retrieve your own property, you are guilty of Criminal Trespass (Fourth-Degree), not Home Invasion. This difference can save you decades in prison.

2. The “Empty Home” Affirmative Defense (Avoiding NERA)

For Second-Degree Residential Burglary, the law provides a specific “escape hatch” regarding the 85% parole bar.

• Argument: If we can prove by a preponderance of the evidence that you reasonably believed no one was present in the home, the mandatory 85% parole disqualifier may not apply. This is critical for reducing actual time served.

3. Claim of Right / License to Enter

• Argument: You cannot burgle a home you have permission to be in. If you had a key, were a prior guest, or the owner’s “do not enter” instructions were ambiguous, we can move to dismiss the charge. This is common in domestic disputes where one party is accused of “breaking in” to their own former residence.

4. Challenging the “Weapon” Definition

For First-Degree Home Invasion, the State often overreaches by classifying non-lethal items (like a heavy flashlight or tool) as “deadly weapons.”

• Argument: If the object was not possessed for an unlawful purpose and was not used as a weapon, the charge should be downgraded from First-Degree to Second-Degree.

Frequently Asked Questions (FAQs)

• I’m a juvenile. Can I be charged as an adult under this law?
  • Yes. One of the most aggressive parts of this new legislation is that it expands the ability for prosecutors to “waive” juveniles to adult court. If a juvenile is 15 or older and charged with First-Degree Home Invasion, the State will likely move to try them as an adult, exposing them to the full 10-20 year sentence.
• Can I get Pre-Trial Intervention (PTI) for this?
  • It is highly unlikely.

    • Home Invasion (1st Degree): PTI is generally barred by statute.

    • Residential Burglary (2nd Degree): You are technically eligible, but because there is now a “presumption of incarceration,” gaining admission into PTI requires compelling reasons and often the prosecutor’s consent, which is rarely given for home invasions under the new directive.

• What if I didn’t steal anything?
  • You can still be convicted. The crime of burglary is complete the moment you enter with the intent to commit a crime. The State does not need to prove you actually succeeded in stealing anything or hurting anyone—only that you intended to.
• Does this law apply to detached garages or sheds?
  • The statute specifies “residential dwelling.” Generally, a garage attached to the house counts as the dwelling. A detached shed may technically fall under the older Burglary statute (Third-Degree) rather than the new “Residential Burglary” statute, depending on how the structure is used. We would litigate this distinction heavily.

Why You Need a Certified Criminal Trial Attorney

These new laws have removed much of the discretion judges used to have. The mandatory minimums mean your lawyer cannot just “ask for leniency”—they must be able to fight the evidence at trial.

Brett M. Rosen, Esq. is Certified by the Supreme Court of New Jersey as a Criminal Trial Attorney. He understands the nuances of the new S3006/A4299 statute and knows how to build a defense that protects your future.

Schedule Your Case Review Now at 908-312-0368

Disclaimer: Attorney Advertising. The information presented here is for general informational purposes only regarding the 2024/2025 updates to New Jersey criminal law (Statute S3006/A4299). This does not constitute legal advice or create an attorney-client relationship. Every case is unique, and prior results do not guarantee a similar outcome. No aspect of this advertisement has been approved by the Supreme Court of New Jersey.