Essex County Burglary Defense Lawyer
Welcome to Spodek Law Group. Our goal is to give you the information you need to understand what you're actually facing - because a burglary charge in Essex County is nothing like what most people expect it to be.
Most people charged with burglary think they're facing a property crime. Something about breaking in and stealing. A lock they shouldn't have picked, a window they shouldn't have opened, items they shouldn't have taken. The criminal justice equivalent of shoplifting with extra steps. What they don't realize is that New Jersey's burglary statute doesn't require any of that. Doesn't require you to steal anything. Doesn't require you to break anything. Doesn't even require you to complete any crime inside. Burglary under N.J.S.A. 2C:18-2 is an "intent crime" - and prosecutors get to decide what you intended based on what they found in your pockets, what time it was, and whether anyone was home.
And as of October 2024, it got much worse. Governor Murphy signed P.L.2024, c.83 into law - completely restructuring how New Jersey handles residential burglary. That "simple" break-in that used to be a third-degree crime? If it happened at a residence, it's now automatically second-degree. The old law treated homes and businesses the same. The new law treats entering somebody's house like a violent felony. As of October 2024, any burglary of a residence - even walking through an unlocked door - is automatically second-degree with a presumption of prison. The old "third-degree" classification for residential burglary no longer exists.
The October 2024 Law That Changed Everything
Heres the thing about New Jerseys burglary law that nobody is talking about yet. In October 2024, the governor signed legislation creating two entirely new categories of burglary - "home invasion burglary" and "residential burglary." The old statute treated a break-in at a warehouse the same as a break-in at somebodys home. Not anymore.
First-degree home invasion burglary means 10 to 20 years in state prison. Second-degree residential burglary means 5 to 10 years. Third-degree structure burglary - what used to be the default - means 3 to 5 years. The difference between a vacant commercial building and somebodys house is 7 extra years of your life. Thats not a minor distinction. The difference is getting out in your 30s versus getting out in your 40s.
By December 2024 - just two months after the new law passed - prosecutors across New Jersey had already charged 17 people under the new home invasion burglary classification. In Essex County, Acting Prosecutor Theodore N. Stephens II oversees one of the busiest criminal prosecution offices in the state. The law is new. The prosecutions arent waiting. If your charged with burglary involving any residence in Essex County, your facing the new sentencing structure whether you knew about it or not.
OK so let me break down how this actualy works. Under the old law, burglary was second-degree only if you inflicted injury or were armed. Everything else was third-degree - 3 to 5 years, with a presumption of non-incarceration for first-time offenders. Under the new law, ANY residential burglary is second-degree. Dont matter if nobody was hurt. Dont matter if you werent armed. Walk into somebodys house without permission with intent to commit any offense? Second-degree. Presumption of prison. 85% NERA before parole eligibility.
What "Burglary" Actually Means Under New Jersey Law
Think about this for a second. The burglary statute says a person is guilty if they "enter or surreptitiously remain" in a structure without permission, with the purpose to commit an offense inside. Read that again. "Surreptitiously remain." You walked in through an open door during a party, stayed after everyone left, and now your facing second-degree residential burglary. You didnt break in. You just didnt leave.
New Jersey dosent require "breaking" for burglary. The common law requirement of forced entry was eliminated decades ago. You can be charged with burglary for walking through an unlocked door. You can be charged for entering through an open window. You can be charged for surreptitiously remaining somewhere after your permission to be there expired. The "breaking" element that everyone thinks is required? It isnt.
The crime is about unauthorized presence plus intent. But heres were it gets dangerous. Your cell phone, the items in your pockets, the time of day you were arrested - all of it becomes evidence of what you "intended" to do. Prosecutors dont need to prove you committed theft. They just need to argue you planned to. That marijuana in your pocket? Now your trespassing becomes "burglary with intent to commit a drug offense." That screwdriver in your car? "Possession of burglary tools" becomes evidence of intent. The items you carry become the story of what you planned to do.
Everyone thinks burglary charges depend on what you did. In Essex County, burglary charges depend on what prosecutors can argue you intended to do. Intent is proven through circumstantial evidence - the time of day, items in your possession, statements you made to police. The "crime" happens in the prosecutors narrative, not necessarily in reality. And once that narrative is constructed, your fighting against the story they tell, not against what actualy happened.
The Residential vs Structure Distinction
Let that sink in for a moment. Third-degree burglary has a presumption of non-incarceration for first-time offenders. Second-degree residential burglary has a presumption OF incarceration. Same conduct, same building - but call it a "residence" and suddenly prison is the default outcome. The prosecutor wont need to prove you were violent. Doesnt need to prove you were armed. Just needs to prove the building was somebodys home.
The 85% NERA rule makes this even worse. Under the No Early Release Act, persons convicted of second-degree residential burglary must serve at least 85% of there sentence before becoming eligible for parole. Get sentenced to 7 years? Your serving at least 5 years and 11 months before you see a parole board. Thats not discretionary. The requirement is mandatory. The sentencing judge has no authority to waive it. The parole board cant ignore it.
But theres an escape hatch that nobody talks about. The law provides a specific exception: if the defense can prove by a preponderance of the evidence that the defendant reasonably believed no one was present in the home, the mandatory 85% parole disqualifier may not apply. Your belief about occupancy determines whether you serve 4 years or 8 years for the same conduct. But this defense only works if your attorney builds the record during investigation. You cant prove what you believed months later at trial. The evidence of your belief has to exist before the prosecution locks in there theory.
What counts as a "residence" matters enormously under the new law. A house is obviously residential. So is an apartment, a dorm room, a hotel room. But what about an attached garage? Under the statute, structures attached to a dwelling count as part of the dwelling. A detached shed might fall under the older third-degree classification - but prosecutors will argue otherwise. Every ambiguity gets resolved against you unless you fight it.
How Prosecutors Construct Intent
Look at what happens when your arrested near a residential building. The prosecutor reviews the police report and inventories everything in your possession. Cash? Evidence you planned to flee after stealing. Tools? Evidence you planned to break in. Drugs? Evidence you planned to commit a drug offense. A ski mask? Evidence of consciousness of guilt. Every item becomes a data point in the story of your intent.
Heres somthing else to understand. The time of arrest matters. Nighttime entry carries different implications than daytime entry - even though the statute doesnt explicitly distinguish between them. Prosecutors argue that nighttime presence shows consciousness of guilt, that you chose darkness because you knew what you were doing was wrong. The clock on the arrest report becomes evidence of your mental state.
Statements you made to police become the cornerstone of the intent narrative. "I was just looking for somewhere to sleep" becomes admission that you knew you werent supposed to be there. "I thought my friend lived here" becomes evidence of fabrication when no friend is identified. "I didnt take anything" becomes evidence that you were interrupted before completing your plan. Everything you say gets filtered through the assumption that you intended to commit a crime. The words that sound innocent to you become admissions in the prosecutors mouth.
This is why the first thing any defense attorney tells you is to stop talking. Not because you have something to hide. Because every word you speak becomes raw material for constructing the intent narrative. Prosecutors never needed a confession. They need statements they can reframe as circumstantial evidence of purpose. And you will provide those statements if you talk without counsel.
The Cascade of Consequences
One residential burglary conviction triggers consequences far beyond prison. Pretrial Intervention - New Jerseys diversion program for first-time offenders - now carries a "presumption against" eligibility for second-degree residential burglary. Unless the prosecutor consents, PTI is off the table. The program that could have resolved your case without a conviction? Probably not available.
The October 2024 law also amended the juvenile waiver statute. Teenagers charged with residential burglary or home invasion can now be transferred from family court to adult criminal court. A 16-year-old who walks into the wrong house faces adult prosecution, adult sentencing, and a permanant adult criminal record. The "juvenile" label wont protect you from the new burglary classifications.
Professional license revocation follows conviction. Nursing licenses. Real estate licenses. Teaching certificates. The Division of Consumer Affairs reviews criminal convictions before issuing or renewing professional licenses. A residential burglary conviction - a "property crime" in common understanding - destroys careers that have nothing to do with property. The licensing board couldnt care less that you didnt hurt anyone. They care that you have a felony.
Immigration consequences cascade from any burglary conviction. Even lawful permanent residents face deportation proceedings for "crimes involving moral turpitude." A residential burglary conviction qualifies. It makes no difference if youve lived in the country for 30 years. Doesnt matter if your children are American citizens. The immigration consequences are automatic and often permanent. Your "property crime" can end your life in America.
Housing denials. Employment rejections. Credit problems. Child custody challenges. The criminal case is just the begining of your problems. Every background check for the rest of your life pulls up the same conviction. Every landlord sees the same record. Every employer asks the same questions. The conviction becomes permanant in ways the statute never mentions.
The Only Defense That Matters
The NERA escape hatch - proving you believed no one was home - only works if your attorney builds that defense during investigation. Once trial starts, the record is set. Every day you wait is evidence you cant recover.
Think about what that defense requires. You need evidence of your mental state at the time of entry. Text messages showing you thought the house was vacant. Witnesses who heard you say the owners were away. Patterns of behavior showing you only entered buildings you believed were empty. This evidence has to be gathered, preserved, and organized before the prosecution locks in there version of events. Waiting destroys the defense.
Constitutional challenges matter in burglary cases. The Fourth Amendment protects against unreasonable searches. If police entered the building without a warrant, if they searched you without probable cause, if they exceeded the scope of a consent search - the evidence might be suppressed. No evidence of intent, no burglary conviction. The items that "proved" your purpose? Gone. The statements you made? Suppressed. This isnt a technicality. This is constitutional law doing what its suposed to do.
The attorney Todd Spodek and the team at Spodek Law Group understand how Essex County prosecution works. They know the difference between a case the prosecutor will push to trial and a case where negotiations matter. They understand the new October 2024 law and its implications for sentencing. More importantly, they understand that the defense has to start now - not after arraignment, not after discovery, now. The intent narrative gets built from the moment of arrest. The counter-narrative has to start immediately.
