Breaking and Entering in the Nighttime with Intent to Commit a Felony

The crime of breaking and entering in the nighttime with intent to commit a felony is governed by M.G.L. ch. 266 §16. In order to be convicted for this offense, the prosecution must prove beyond a reasonable doubt that an individual engaged in the following conduct:

  • The defendant broke into a building, ship, vessel or vehicle that belonged to another person
  • The defendant entered the building, ship, vessel or vehicle
  • The defendant did so with the intent to commit a felony
  • This event took place during the nighttime

Massachusetts courts have published extensive opinions explaining what specific conduct is and is not sufficient to satisfy the elements of this crime. Breaking is defined as exerting physical force, even if slight, to remove an object for the purpose of entry. Examples of breaking include the following:

  • Going through an open window that is not intended for use as an entrance is a breaking;
  • An entry has been committed once any part of the body [i.e., hand, finger, leg] enters into the threshold of the home after a breaking;
  • Removing a loose plank that is not fixed to the threshold is not a breaking;
  • The intent to commit a felony must be present at the time of the breaking; proof of intent to commit a misdemeanor [such as a trespass] is insufficient. It is not necessary for the Commonwealth to prove any specific felony just that the defendant intended to commit any felony.

Relative to the definition of “nighttime” the law is that it begins one hour after sunset and ends one hour before sunrise the next day.

All of these elements must be proved beyond a reasonable doubt. There are also situations in which it is not necessary for the defendant to do the actual breaking; a defendant can be convicted if he or she assisted the individual who effected the break.

Relative to intent to steal, the judge instructs the jury that when an individual breaks into a place in the nighttime the jury can infer an intent to steal unless there is evidence to the contrary.

If I Am Charged With This Crime Should I Have An Attorney?

Yes. Anytime there is a potential to be convicted of a crime, a defendant should appear in court with an attorney. Even if a defendant believes that he or she will be convicted, it is important to have an attorney to achieve the best possible disposition.

In order to successfully defend against this charge, you need an attorney like Kathleen M. McCarthy, an experienced Massachusetts criminal defense lawyer on your side. Attorney McCarthy has handled these types of cases for over twenty years.

Penalties For Breaking And Entering In The Nighttime With Intent To Commit A Felony

If you are convicted for committing this crime you can be sentenced to serve up to twenty years in the state prison or up to 2 1/2 years in the house of correction. A conviction for this felony can also have collateral consequences and serve as an underlying felony offense for more serious charges in the state and federal courts. Convictions on these types of crimes usually carry stiff sentences.

If you are charged with this felony, do not take it lightly. In addition to fighting the case in the courtroom, Attorney McCarthy can engage in negotiations which may result in the reduction of the charge to lesser included or perhaps an outright dismissal. A successful outcome requires the services of a prepared, experienced and dedicated attorney like Kathleen M. McCarthy. Do not hesitate and call now so that she can start to work on your case.

Case Results » Breaking And Entering In The Nighttime With Intent To Commit A Felony
  • Client Facing Charges of Breaking and Entering into a Building in the Nighttime with Intent to Commit A Felony [M.G.L. ch. 266 Section 16], Illegal Possession of Marijuana Over 2 Ounces [M.G.L. ch. 94C Section 34], and Trespass [M.G.L. ch. 266 Section 120], To Be Dismissed

    The police were alerted to the fact that a number of youths were congregating in a house that was under construction. A caller supplied the police with the license plate number of a vehicle that was parked near the property. Upon arrival, the police located one of the recent high school graduates who admitted to having been inside the structure and a backpack that the police alleged, appeared to have been recently dropped." Based on information received from the scene the police tracked the defendant down at his home. He was arrested and charged with the above crimes.

    Based on the police report, our office filed a motion to dismiss based on the fact that the unfinished structure did not constitute a building.  After discussing the case with the District Attorney's Office and providing the client's impressive background, including his high school activities, the District Attorney's Office agreed to dismiss the case provided the defendant satisfied certain conditions. The defendant did NOT have to admit to sufficient facts or plead guilty. The defendant and his family left the courtroom very relieved that the case would not impact the defendant's future educational and employment opportunities.

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  • Client Avoids Conviction And Mandatory Sentence On Felony Firearm Case

    According to the police report, the police responded to an auto body shop on a report of a man with a gun. Upon their arrival, an officer observed an employee of the shop pointing at a man claiming that he had pointed a gun at him. A police officer claimed that he saw the gunman walk away from a parked white truck and ordered other officers to pull the truck over. Officers searched the truck and found a loaded firearm in the glove compartment. The driver, defendant, was charged with illegally carrying a firearm and possession of ammunition. If convicted, the defendant faced a mandatory sentence of eighteen months in jail on the firearm and an on and after sentence on the ammunition count.

    Attorney McCarthy filed a number of pre-trial motions including a motion to suppress statements and a motion to suppress evidence. On the day of trial Attorney McCarthy was prepared to fight the charges. The District Attorney's Office proposed a disposition whereby the felony firearm charged would be reduced to a misdemeanor possession charge and the defendant would avoid the possibility of any conviction and NO jail time. Ultimately, the case was continued for two years and the client did not have to pay any fees, did not have to report to probation and could move to another state. As long as the defendant does not get rearrested the case will be dismissed.

  • Judge Allows Attorney McCarthy's Motion To Dismiss Felony Count Of Open And Gross Lewdness

    The police report alleged that the defendant "mooned" a resident assistant after being denied access to a college dormitory. The defendant was arrested and charged with the felony offense of open and gross lewdness.

    Attorney McCarthy filed a motion to dismiss arguing that the facts, as alleged by the government, did not constitute open and gross lewdness. She also argued that since no individual had been charged with this offense based on this type of conduct in Massachusetts in the past, the charge must be dismissed because the statute was unconstitutionally vague and violated the due process clause of the Fourteenth Amendment to the United States Constitution and Article 12 of the Massachusetts Declaration of Rights of her client. Following a hearing the judge allowed the motion to dismiss.