N.Y. PEN Law § 140.30

§ 140.30 Burglary in the first degree.\n A person is guilty of burglary in the first degree when he knowingly\nenters or remains unlawfully in a dwelling with intent to commit a crime\ntherein, and when, in effecting entry or while in the dwelling or in\nimmediate flight therefrom, he or another participant in the crime:\n 1. Is armed with explosives or a deadly weapon; or\n 2. Causes physical injury to any person who is not a participant in\nthe crime; or\n 3. Uses or threatens the immediate use of a dangerous instrument; or\n 4. Displays what appears to be a pistol, revolver, rifle, shotgun,\nmachine gun or other firearm; except that in any prosecution under this\nsubdivision, it is an affirmative defense that such pistol, revolver,\nrifle, shotgun, machine gun or other firearm was not a loaded weapon\nfrom which a shot, readily capable of producing death or other serious\nphysical injury, could be discharged. Nothing contained in this\nsubdivision shall constitute a defense to a prosecution for, or preclude\na conviction of, burglary in the second degree, burglary in the third\ndegree or any other crime.\n Burglary in the first degree is a class B felony.\n