Crim

Front 1

Jurisdiction

Back 1

Either where act or result took place

Front 2

Burden of Proof

Back 2

CL/MBE

P must prove elements AND defenses beyond a reasonable doubt.
• Exception: D must prove insanity by a preponderance of the E

Hint 2

NY

• Defenses: P must disprove beyond a reasonable doubt
• Affirmative defenses: D must prove by preponderance of the E

Front 3

Classification (felonies/misdemeanors/infractions)

Back 3

Felonies: punishable by >1 year in prison; misdemeanors: maximum punishment <1 year in prison

Hint 3

Misdemeanors: punishable by 15 days < x < 1 year in prison; violations: less than 15 days (other than traffic infractions)

Front 4

Elements

Back 4

- physical act
- mental state

Front 5

Elements - Physical Act

Back 5

No crime, no act
Act = voluntary body movement
• Exceptions: 1) unconscious movements, including sleepwalking; 2) reflexes or convulsions; 3) when someone else moves D
Omissions  3 requirements:
• 1. Legal duty – imposed by statute (filing tax returns); imposed by K (babysitter); status relationship (either parent-child or spouse-spouse); voluntary assumption of care (start rescue; if you stop and doing so will leave the victim in a worse position  duty to continue); creation of peril by D
• 2. Knowledge of the facts that give rise to the duty (e.g., don’t know if drowning person is spouse)
• 3. Ability to help

Front 6

Elements - Mental State

Back 6

CL

- specific intent
- malice
- general intent
- SL
- mistake of fact
- mistake of law

Hint 6

NY:

- intentionally/purposefully
- knowingly/willfully
- recklessly
- negligently
- SL

Front 7

Elements - Mental State - specific intent

Back 7

Specific intent (usually for property crimes) – crime requires not just desire to act but also desire to achieve a specific result.
• 11 specific intent crimes: assault; 1st degree premeditated murder; larceny; embezzlement; false pretenses; robbery; forgery; burglary; solicitation; conspiracy; attempt

Front 8

Elements - Mental State - malice

Back 8

Malice – D acts intentionally or w/ reckless disregard of an obvious or known risk. 2 crimes: murder, arson

Front 9

Elements - Mental State - general intent

Back 9

General intent (crimes against person) – D need only be generally aware of the factors constituting the crime and need not intend a specific result
• Jury can infer from doing the act
• Lower intent sufficient for crimes against person
• E.g. battery, false imprisonment, kidnapping, forcible rape

Front 10

Elements - Mental State - SL

Back 10

CL

when crime requires act only (no mental state required)
• 2 types: public welfare – regulatory or morality offenses (selling beer to minor) & statutory rape (D’s mistake about age not a defense)

Hint 10

NY

• knowledge of weight of a controlled substance is not an element (D is S/L for weight); only knowledge of nature of substance is required
• speeding

Front 11

Elements - Mental State - mistake of fact

Back 11

CL

Mistake of fact – whether D’s mistake of fact will be a defense depends on mental state required for the crime and whether mistake is reasonable or unreasonable.
• Specific intent – any mistake, even unreasonable = defense;
• general intent – only reasonable mistake = defense;
• strict liability – mistake is never a defense

Hint 11

NY

Mistake of fact – whether D’s mistake of fact will be a defense depends on whether mistake negates required mental state
• Crimes of purpose, knowledge, or recklessness – mistake of fact is often a defense
• Crimes of negligence – only reasonable mistake
• S/L – mistake is never a defense

Front 12

Elements - Mental State - mistake of law

Back 12

Mistake of law – never a defense
• Except 1) if statute specifically makes knowledge of the law an element of the crime; 2) if statute was not published; 3) if statute was declared unconstitutional or decision was overruled; 4) if defendant reasonably relied on official interpretation or advice from someone charged w/ enforcement, administration, or interpretation of the law (does not include lawyer)

Front 13

Causation - Actual Cause

Back 13

Actual causation (“but for”) – if bad result would not have happened but for D’s conduct
• Accelerating cause = actual cause

Front 14

Causation - Proximate Cause

Back 14

Proximate causation (legal cause) – if bad result is a natural and probable consequence of D’s conduct
• Foreseeability of injury and fairness (people should be held liable) are key
• Eggshell victim: D is a proximate cause even if V’s preexisting weakness contributed to bad result (hemophiliac)
• Intervening cause: D is NOT a proximate cause if an unforeseeable intervening act causes bad result (lightning)

Front 15

Concurrence

Back 15

D must have mental state at the same time he engages in the act; most often arising in larceny/burglary

Front 16

Crimes Against Person

Back 16

- assault and battery
- homicide (aggravated and vehicular)
- manslaughter (voluntary and involuntary)
- felony murder

Front 17

Crimes Against Person - assault and battery

Back 17

CL

Battery = 1) unlawful 2) application of force to another 3) resulting in either bodily injury OR offensive touching. Mental state = general intent
Assault  2 versions: 1) attempted battery assault (swing and miss); 2) intentional creation other than by mere words of a reasonable apprehension in V’s mind of imminent bodily harm (fake punch). Mental state = specific intent
Aggravated assault and battery = more serious if 1) weapon is used; 2) V is child (or member of another vulnerable class); 3) intent is to commit a robbery or a rape

Hint 17

NY

Assault = intentionally causing physical injury to another person.
• Factors that make a crime more or less serious:
• 1) weapon
• 2) injuries (2 levels of seriousness (1) physical injury involving substantial pain (punch); (2) serious physical injury – permanent, life threatening, or requires long hospitalization)
• 3) quantity
Degrees of assault
• 1st degree – 2nd degree + weapon
• 2nd degree – intentionally causing serious physical injury
• 3rd degree – intentionally causing physical injury
• Battery NOT separate crime in NY; all assaults require injury (no “offensive touching” version of assault)
• Attempted assault requires intent to assault; creating reasonable apprehension w/o intent to injure is menacing

Front 18

Crimes Against Person - homicide

Back 18

CL

• C/L year and a day rule: V must die w/I 366 days of homicidal act
• 1) Causing death 2) of any person (fetus must be born) 3) w/ malice aforethought
• Mental state – “malice aforethought” – 1) intent to kill; 2) intent to inflict great bodily harm; 3) extreme recklessness; 4) felony murder
• Deadly weapon rule – intentional use of a deadly weapon creates an inference of intentionally killing
• Transferred intent – if D intents to harm one V, but accidentally harms a different V instead, D’s intent transfers from intended V to actual V. usually guilty of 2 crimes: 1) completed crime against actual V and 2) attempt against intended V. exception: transferred intent only apply to crimes w/ completed harms, NOT to attempt
• 2 degrees of murder
• 1st degree murder – either 1) intentional, which requires (1) intention AND (2) premeditation AND (3) deliberation; or 2) felony murder (killing committed during particular enumerated felony will be 1st degree murder
• 2nd degree murder – all other murders

Hint 18

NY

• NY/majority rule: death can occur at any time; determined by medical examiner
• intent to kill 2 affirmative defenses to mitigate to manslaughter – (1) heat of passion or (2) aiding a suicide)
• extreme recklessness = demonstrating a depraved indifference to human life, a person recklessly engages in conduct that creates a grave risk of death to another person, and thereby causes the death of another person. Force directed at V but not intended to kill may suffice. No crime of attempt for reckless murder b/c no intent is involved.
• 1st degree murder – intentional murder w/ special circumstances 1) mental state; 2) D is at least 18 years old AND 3) 1+ aggravating factor (of 10) - D intentionally killed law enforcement officer engaged in official duties at the time, and D knew or reasonably should have known that V was such; D killed for witness intimidation; Murder for hire; D killed more than one person in same criminal transaction; OR was previously convicted of 1st or 2nd degree murder; D intentionally killed during serious felony robbery (any degree), burglary (1st and 2nd), kidnapping (1st), arson (1st and 2nd), rape (1st), criminal sexual act, sexual abuse, escape, or attempted murder (2nd degree); V was killed b/c he was a judge; D was in custody or had escaped from custody and was serving a life sentence; D committed torture murder; D committed serial murder; V was killed in furtherance of an act of terrorism
• 2nd degree murder: 3 forms – 1) intentional murder (other than 1st degree) – premeditation/deliberation irrelevant in NY; 2) highly reckless murder – “depraved indifference” (making victim dance): utter disregard for human life; act puts more than 1 person in danger; cannot be used for 1-to-1 killings, unless they involve brutal torture or abandoning a helpless V to almost certain death

Front 19

Crimes Against Person - voluntary manslaughter

Back 19

• intentional killing
• committed in the heat of passion
• after adequate provocation (1) would arouse a sudden/intense passion in the mind of an ordinary person; 2) D in fact lost control; 3) no reasonable cooling off period; 4) D did not in fact cool off). Examples: serious assault and battery; finding spouse in bed w/ someone else; NOT words
• OR imperfect self-defense, where either 1) D was at fault in starting the altercation OR 2) D unreasonably but honestly believed in the necessity of deadly self-defense

Hint 19

• NY/majority rule: death can occur at any time; determined by medical examiner
• intent to kill 2 affirmative defenses to mitigate to manslaughter – (1) heat of passion or (2) aiding a suicide)
• extreme recklessness = demonstrating a depraved indifference to human life, a person recklessly engages in conduct that creates a grave risk of death to another person, and thereby causes the death of another person. Force directed at V but not intended to kill may suffice. No crime of attempt for reckless murder b/c no intent is involved.
• 1st degree murder – intentional murder w/ special circumstances 1) mental state; 2) D is at least 18 years old AND 3) 1+ aggravating factor (of 10) - D intentionally killed law enforcement officer engaged in official duties at the time, and D knew or reasonably should have known that V was such; D killed for witness intimidation; Murder for hire; D killed more than one person in same criminal transaction; OR was previously convicted of 1st or 2nd degree murder; D intentionally killed during serious felony robbery (any degree), burglary (1st and 2nd), kidnapping (1st), arson (1st and 2nd), rape (1st), criminal sexual act, sexual abuse, escape, or attempted murder (2nd degree); V was killed b/c he was a judge; D was in custody or had escaped from custody and was serving a life sentence; D committed torture murder; D committed serial murder; V was killed in furtherance of an act of terrorism
• 2nd degree murder: 3 forms – 1) intentional murder (other than 1st degree) – premeditation/deliberation irrelevant in NY; 2) highly reckless murder – “depraved indifference” (making victim dance): utter disregard for human life; act puts more than 1 person in danger; cannot be used for 1-to-1 killings, unless they involve brutal torture or abandoning a helpless V to almost certain death
1st degree manslaughter (3 forms)
• Intent to cause serious physical injury that results in death
• Extreme emotional disturbance (heat of passion) – intentional killing committed under influence of reasonable extreme emotional disturbance. This is an affirmative defense that D must raise and prove.
• Unjustifiable abortional act – D performs abortion of woman >24 weeks pregnant and woman dies
2nd degree manslaughter (3 forms)
• Reckless – D is aware of and consciously disregards a substantial/ unjustifiable risk of death which causes death of another. Intoxication NOT defense
• Abortional act – D commits abortion on woman which causes her death, unless act is justifiable by statute
• Aiding in suicide (if D used duress or deception on V  2nd degree murder)

Front 20

Crimes Against Person - involuntary manslaughter (CL) /criminal negligent homicide (NY)

Back 20

CL

Killing committed w/ criminal negligence OR misdemeanor manslaughter – non-felony murder killing committed during a crime

Hint 20

NY

• Mental state = negligence  D should have known of a substantial/ unjustifiable risk of death
• Failure to perceive risk insufficient for conviction – D’s conduct must be culpable or morally blameworthy, and death-producing event must be foreseeable
• Morally blameworthy – gross deviation from ordinary standard of care. Simple speeding insufficient.

Front 21

Crimes Against Person - aggravated homicide

Back 21

NY only

Hint 21

NY

Homicide V = cop killed in the line of duty
• “Aggravated” as prefix (e.g. aggravated man-1)

Front 22

Crimes Against Person - vehicular homicide

Back 22

NY only

Hint 22

NY

Death caused by drunk driving
• DWI – blood alcohol content = .08%+ OR impaired by drug on list of controlled substances (if not on list  criminal negligent homicide possible). Refusal to submit to test  license suspension. <21  illegal to drive after drinking ANY quantity of alcohol
• Vehicular Manslaughter 2: Death + DWI (rebuttable presumption)
• Vehicular Manslaughter 1: Vehicular Man-2 + aggravating factor: (i) BAC 0.18+, OR (ii) suspended license for refusal to submit to chemical test (other states count); OR (iii) have previous DWI conviction in past 10 years (other states count); OR (iv) cause serious physical injury to more than 1 person; OR (v) previous conviction of vehicular assault or homicide (other states count) (rebuttable presumption)
• Aggravated Vehicular Man: Vehicular Man-1 + reckless driving (2 deaths sufficient, but NOT required: death of 1 person + serious injury to another enough to qualify) (rebuttable presumption)
Vehicular assault = INJURY ONLY
• 2nd: DWI + results in serious physical injury to another. If intoxicated: rebuttable presumption that person did so as a result of being intoxicated
• 1st: (i) BAC 0.18+, OR (ii) suspended license for refusal to submit to chemical test (other states count); OR (iii) have previous DWI conviction in past 10 years (other states count); OR (iv) cause serious physical injury to more than 1 person; OR (v) have been previously convicted of vehicular assault or homicide (other states count) (rebuttable presumption)
• Aggravated: Vehicular Assault 1 + reckless driving

Front 23

Crimes Against Person - felony murder

Back 23

CL

Any death caused during commission of or attempt to commit a felony; usually unintentional
• Limitations: 1) D is guilty of underlying felony; 2) felony is inherently dangerous; 3) felony is separate from killing itself (merger doctrine); 4) killing occurs during felony or during immediate flight from the felony; 5) killing is in furtherance of the felony; 6) death is foreseeable; 7) V is NOT co-felon
• Vicarious liability: if one co-felon causes the death, all the other co-felons will be guilty of felony murder. This is true even if actual killing is committed by 3rd party, as long as killing is foreseeable and one of the felons is a proximate cause of the death

Hint 23

NY

• BRAKES – 6 underlying felonies – burglary, robbery, arson, kidnapping, escape, sexual assault.
• D need NOT be convicted of underlying felony, as long as there is sufficient E he committed it, even if it is dismissed, D is acquitted, or charge not submitted to jury
defenses
• “non-slayer” defense – limited affirmative defense if D can prove EACH of the following 4 things (burden on D) 1) D did not do the killing or aid in its commission; 2) D did not have a deadly weapon (gun or knife); 3) D had no reason to believe that his co-felons had deadly weapons; 4) D had no reason to believe that his co-felons intended to do anything likely to result in death. (D can still be responsible for the underlying felony)
• Infancy defense – if participant is under 13.

Front 24

Crimes Against Person - Confinement Offenses

Back 24

- false imprisonment
- kidnapping
- custodial interference
- endangering the welfare of a minor

Front 25

Crimes Against Person - Confinement Offenses - false imprisonment

Back 25

1) Unlawful 2) confinement of person 3) w/o person’s consent
Mental state = general intent

Hint 25

NY

Unlawful imprisonment 2nd degree = 1) unlawfully 2) restraining someone 3) w/o their consent AND 4) w/ knowledge that restriction is unlawful ( mistake of law = defense)
1st degree = 2nd degree + risk of serious physical injury

Front 26

Crimes Against Person - Confinement Offenses - kidnapping

Back 26

1) false imprisonment 2) that involves either moving V or concealing V in secret place
Mental state = general intent
Aggravated kidnapping requires: purpose is to collect ransom OR purpose is to commit robbery or rape OR V = child

Hint 26

NY

2nd degree = abducting someone (includes hiding in secret place)
1st degree = 2nd degree + 1 of the following: intent to compel 3rd person to pay ransom OR restraint of V for 12+ hrs w/ intent to rape/rob/injure V or advance a felony OR death of V during abduction or before safe return
Kidnapping and homicide
• If V is killed accidentally  murder 2 (felony murder)
• If V is killed intentionally during 1st degree kidnapping  murder 1
Affirmative defense
V = relative; D’s sole purpose was to assume control of V

Front 27

Crimes Against Person - Confinement Offenses - custodial interference

Back 27

NY only

Hint 27

Misdemeanor if relative of V (under 16 or incompetent) takes V from lawful custodian w/ intent to wrongfully hold person permanently or for protracted period
Felony if V (under 16 or incompetent) is exposed to risk that endangers her safety or materially impairs her health, or if D, w/ intent to remove V from state, does so.
Affirmative defense: if crime was based on removal from state provision and either 1) V had been abandoned or 2) the taking was to protect V from abuse or mistreatment

Front 28

Crimes Against Person - Endangering the Welfare of a Minor

Back 28

NY only

Hint 28

<17
• Knowingly acts in a manner that will likely physically, mentally, or morally injure child; OR
• Authorizes child to engage in a dangerous occupation; OR
• Being legally charged w/ care or custody of a child (under 18), fails to exercise reasonable diligence in control of child to prevent her from being abused, neglected, a juvenile delinquent, or a person in need of supervision

Front 29

Crimes Against Person - Sex Offenses - forcible rape

Back 29

1) sex 2) w/o victim’s consent 3) accomplished a) by force OR b) by threat of force OR c) when V is unconscious or incapable of consent
Mental state = general intent

Hint 29

NY

• 1st degree: w/ any other person who is: (i) under 11; (ii) physically helpless; OR (iii) by forcible compulsion
• 2nd degree: 18+ has sex w/ another person <14 to whom he is not married
• 3rd degree: (i) sex w/ a person who is incapable of consenting other than b/c of age OR (ii) person 21 or older w/ someone less than 17 to whom he is not married
• Sexual misconduct: (i) sex w/ person 14-16, (ii) sex w/ another person w/o consent; (iii) engages in deviate sex w/o other’s consent; OR (iv) sex w/ animal or dead body
• Corroboration: D may NOT be convicted solely on the testimony of the V for any sex crime, or attempt, where lack of consent is an element and such lack of consent results from mental defect or incapacity; NO corroboration needed in cases of forcible rape, criminal sexual act, or sexual abuse

Front 30

Crimes Against Person - Sex Offenses - statutory rape

Back 30

1) sex 2) w/ someone under the age of consent
Mental state  majority: SL; MPC/minority: reasonable mistake of age = defense

Hint 30

NY

Cannot consent if under 17 OR mentally defective /incapacitated OR physically helpless

Front 31

Crimes Against Property - Theft Offenses

Back 31

- larceny
- embezzlement
- false pretenses
- larceny by trick
- robbery
- forgery
- uttering
- malicious mischief

Front 32

Crimes Against Property - Theft Offenses - larceny

Back 32

CL

1) Trespassory (wrongful or w/o permission) 2) taking and carrying away (property must be moved) of 3) personal property 4) of another (if D validly possesses property, he can’t be guilty of larceny for taking it, even if he doesn’t own it; can be guilty of larceny for taking his own property, if someone else had valid possession of it) 5) with intent to steal (specific intent to permanently deprive when D took the property; if D intends to give the property back, or erroneously thinks property is his, taking NOT larceny)
• Erroneous takings rule – taking under claim of right is never larceny
• Continuing trespass – if D wrongfully takes property W/O intent to steal, not guilty of larceny. BUT if D later forms intent to steal, initial trespassory taking is considered to have continued  guilty of larceny

Hint 32

NY

• Includes any crime that would be larceny by trespassory taking, embezzlement, false pretenses, or larceny by trick at C/L. includes real property, computer programs/data.
• By statute, larceny = (i) issuing a bad check; (ii) acquiring lost or mislaid property; (iii) false promise; (iv) extortion; (v) embezzlement; (vi) appropriating leased or rented items
Degrees of Grand Larceny
• 1st degree: >$1M—Class B felony
• 2nd degree: >$500K—Class C felony OR: extortion by fear of: (i) physical abuse, (ii) damage to property; OR (iii) D’s abuse of her powers as public servant
• 3rd degree: >$3K—Class D felony
• 4th degree: >$1K—Class E felony
• Petit larceny: lesser amounts—Class A misdemeanor
• Civil Liability: adult or guardian of child who takes property of merchant—full retail value + penalty up to $500
• If D converts goods of which he has lawful possession  guilty of larceny
• Affirmative defense to larceny if D appropriated property under claim of right made in good faith

Front 33

Crimes Against Property - Theft Offenses - embezzlement

Back 33

Elements: 1) conversion 2) of personal property 3) of another 4) by a person already in lawful possession of that property 5) w/ intent to defraud
Mental state = intent to defraud
• If D intends to give exact property back in exact form, no intent to defraud ($ is NOT fungible)
v. larceny: D must already have lawful possession of the property before a taking can be considered embezzlement
possession v. custody: possession is more than custody; requires authority to exercise some discretion over property; usually high level employees embezzle, but low level employees commit larceny b/c they have no discretion

Front 34

Crimes Against Property - Theft Offenses - false pretenses

Back 34

CL

Elements: 1) obtaining title to 2) personal property of another 3) by intentional false statement (past or present event, not future promise) 4) w/ intent to defraud
v. larceny: D gets title, not just possession (check = present event: implied statement that there is $ in account)

Hint 34

NY

Issuing a Bad Check = class B misdemeanor; if check is used to obtain property  larceny;
Elements: 1) Person as drawer or agent puts a check into circulation; 2) Knowing that he does not have sufficient funds to cover it; 3) W/ intent or belief that payment will be refused by the drawee; AND 4) Payment is refused by the drawee
• Also committed: when D does not draw the check but passes it as a transfer for purposes other than collection
• Presumption: knowledge and intent presumed if: (i) no account exists w/ drawee OR (ii) has insufficient funds on account at the time of issuance and presentation
Affirmative defense if: (i) D or another makes good on check w/in 10 days of being dishonored; OR (ii) D was an employee acting at direction of his employer and not for his own benefit
• Look for commercial paper issue

Front 35

Crimes Against Property - Theft Offenses - larceny by trick

Back 35

D obtains only possession (not title) as a result of intentional false statement

Front 36

Crimes Against Property - Theft Offenses - robbery

Back 36

CL

Elements: 1) larceny 2) from another’s person or presence (includes V’s vicinity or V’s house while V is in it) 3) by force (sufficient to overcome resistance  picking pocket = larceny; snatching chain = robbery) or threat of immediate injury (future injury = extortion – obtaining property by means of threats to do harm or to expose information; threat of embarrassment = blackmail).
• If V gives up property for another reason, not robbery, but possibly attempted robbery
Mental state: intent to steal (specific intent)

Hint 36

NY

Larceny + criminal mischief, attempted assault, or assault
• Taking need NOT be in presence of another person (e.g. assault some distance from property, later take property)
• 3rd degree: forcible stealing of property
• 2nd degree: forcible stealing, PLUS one of the following:
D is aided by another actually present; OR V is injured physically by D; OR there is a threat, whatever its nature, of immediate use of physical force; OR car is stolen (carjacking)
• 1st Degree: forcible stealing, PLUS one of the following: Victim is seriously injured physically; OR D uses or displays firearm; V must reasonably perceive from the D’s actions that a gun is present—words alone are NOT enough.
• Affirmative defense: if D can prove that the gun was unloaded or inoperable, crime is reduced to 2nd degree
• Robbery and homicide: If the victim is killed accidentally: Murder 2 (felony murder); If the victim is killed intentionally: Murder 1

Front 37

Crimes Against Property - Theft Offenses - forgery

Back 37

Elements: 1) making or altering 2) a writing 3) so it is false
Mental state: intent to defraud

Front 38

Crimes Against Property - Theft Offenses - uttering

Back 38

Elements: 1) offering as genuine 2) a forged instrument
Mental state: intent to defraud

Front 39

Crimes Against Property - Theft Offenses - malicious mischief (CL) /criminal mischief (NY)

Back 39

Elements: 1) destroying or damaging someone else’s property
Mental state: intent to defraud

Hint 39

malice is not required; more serious if D acted intentionally rather than recklessly
• 3rd degree: damage is $250+
• 2nd degree: damage is $1,500+
• 1st degree: use of explosive
• Criminal tampering: w/o reasonable belief in a right to do so, a person tampers w/ another’s property w/ the intent to cause substantial inconvenience OR regardless of intent, tampers w property of a utility company

Front 40

Crimes Against Property - Possession Offenses

Back 40

Act = possession
• Requirements: 1) control for a period of time long enough to have a 2) opportunity to terminate the possession
• Constructive Possession – contraband need not be in D’s actual possession, so long as it is close enough for D to exercise dominion and control over it.
Mental state = knowledge (of possession AND of character of item possessed)

Front 41

Crimes Against Property - Possession Offenses - Receipt of Stolen Property

Back 41

Elements: 1) receiving possession AND control 2) of stolen property (must be stolen at time D receives it – if D receives it when police had recovered it and used it w/ owner’s permission, the item is no longer stolen and D is not guilty of receipt) 3) known to have been obtained in a manner constituting a crime 4) by another person 5) w/ intent to permanently deprive owner of his interest in it
• If D intended to receive property believing it to be stolen, could be guilty of attempted receipt.

Hint 41

NY examples:

• Drugs – criminal possession of a controlled substance
• Firearms – criminal possession of a weapon (gun must be loaded and operable; statutory presumption: presence of gun in car creates presumption that all occupants in car possessed gun)
• Stolen property - criminal possession of stolen property (Property must really be stolen; property that is abandoned or used w/ permission is not considered stolen. Presumptions: Knowingly possessing stolen property raises a presumption that D has intent to benefit himself/other. Pawnbroker or other dealer in property is presumed to know that property is stolen if he fails to make reasonable inquiry of the person from whom he obtained the property
• NO MERGER: possession and larceny do NOT merge
• UTTERING: (i) offering as genuine (ii) a forged instrument (iii) w/ intent to defraud (NO MERGER w/ forgery)

Front 42

Crimes Against Property - Habitation Offenses

Back 42

- burglary
- criminal trespass
- arson

Front 43

Crimes Against Property - Habitation Offenses - burglary

Back 43

CL

Elements: 1) breaking (creating or enlarging an opening by force – includes breaking window, opening window, opening door; does not include climbing through open window, entering w/ permission) and 2) entering (some part of D’s body must enter building) 3) the dwelling (a structure where someone regularly sleeps – not business/school) 4) of another (can’t burglarize your own home) 5) at night 6) w/ intent to commit a felony inside (specific intent, which must be present at time of entry; later acquired intent insufficient)
• Many states have eliminated technical requirements (breaking, at night, dwelling)

Hint 43

NY

Includes remaining unlawfully, as well as entry
Incorporates the element of breaking and entering
Does not limit the intent to the commission of a felony; rather, intent to commit any crime
Except as an element for grading purposes, does not require a building to be a dwelling
Does not require the act to be committed at night
• 3rd degree:
(1) knowingly entering or remaining (2) unlawfully (3) in a building (4) w/ the intent to commit a crime inside
• 2nd degree: 3rd degree + one of the following:
Building is a dwelling, OR Non-participant is injured by D, OR
D carries a weapon
• 1st degree:: D knows that he is burglarizing a dwelling (includes motor vehicles), PLUS: Non-participant is injured; OR D carries a weapon
Affirmative defense: If display of firearm is part of charge, D can show that the instrument was not a weapon or that the weapon was NOT loaded
• Burglary and homicide:
If victim is killed accidentally: Murder 2 (felony murder)
If victim is killed intentionally during 1st or 2nd degree burglary: Murder 1

Front 44

Crimes Against Property - Habitation Offenses - criminal trespass

Back 44

NY only

Hint 44

• 3rd degree: knowingly enters or remains unlawfully in a building or upon real estate which is fenced or otherwise enclosed in a manner designed to exclude intruders
• 2nd degree: knowingly enters or remains unlawfully in a dwelling
• 1st degree: knowingly enters or remains unlawfully in a building and possesses or knows that another participant has an explosive or deadly weapon

Front 45

Crimes Against Property - Habitation Offenses - arson

Back 45

CL

Elements 1) malicious burning (material wasting/charring of a structure – some part of building must actually be burned; blackening by smoke/discoloration/scorching is insufficient) 2) of a building (most states +MBE extend arson to all buildings, including D’s own property)
Mental state = malice (intent/reckless disregard of known risk)

Hint 45

NY

• 4th degree: reckless burning of a building or motor vehicle
• Affirmative defense: if D has sole possessory or proprietary interest in the property
• 3rd degree: intentional burning of a building or motor vehicle
• Affirmative defense: (i) all persons w/ possessory or proprietary interests in the property consented; (ii) D’s intent was to cause damage for a lawful purpose; AND (iii) D had no reasonable ground to fear for safety of another person or to fear damage to another building or motor vehicle
• 2nd degree: 3rd degree, when D knows or should have known that someone was inside building/motor vehicle + circumstances are such that a person’s presence therein is reasonable probability (nonparticipant need not be injured)
• 1st degree: 2nd degree, plus an explosive/incendiary device
• Arson and homicide:
If victim is killed accidentally: Murder 2 (felony murder)
If victim is killed intentionally during 1st or 2nd degree arson: Murder 1

Front 46

Accomplice Liability

Back 46

Principal = person who commits crime
Accomplice = person who helps
Act = aiding/encouraging principal
Mental state = w/ intent that crime be committed

Hint 46

NY

accomplice need not specifically intend that crime be committed. Enough if accomplice intends to aid principal’s conduct, and otherwise has mental state required for principal’s crime. possible to be an accomplice to a negligent or reckless crime.

Front 47

Accomplice Liability - Scope

Back 47

Rule: accomplice is guilty of: all crimes he aided or encouraged; AND all other foreseeable crimes committed along w/ the aided crime
• Unprosecuted principal: If principal is not prosecuted or has an individual defense, accomplice can STILL be GUILTY
• Persons who are not accomplices:
Mere presence does not make someone an accomplice; Must actually help; Mere knowledge does not make someone an accomplice; Must actually intend to aid or encourage
• Members of the protected class: victim of the crime cannot be an accomplice (i.e. statutory rape)
• Withdrawal:
Encourager: An accomplice who only encouraged principal may withdraw by discouraging crime (before it is committed)
Aider: An accomplice who actually helped principal must either neutralize the assistance or prevent the crime from happening (including notifying police)

Hint 47

NY

• cannot be convicted solely upon uncorroborated testimony of an accomplice, except in police disciplinary hearings
• mere knowledge can make someone guilty of lesser crime of CRIMINAL FACILITATION: knowingly aiding in commission or probable commission of crime
Facilitator has knowingly aided in the commission of a crime but his culpability does not reach accomplice level; Facilitator need only believe that is was probable that he was rendering aid; Conduct alleged must have aided in the commission of the object felony; AND Facilitator may not be convicted on uncorroborated testimony of the person facilitated;
Affirmative defense: facilitator takes steps to prevent felony
• Withdrawal: “renunciation” - affirmative defense (burden on D) to accomplice liability for the substantive offense, OTHER THAN attempt if: 1) Accomplice voluntarily and completely renounces his criminal purpose; 2) Withdraws prior to commission of the offense; AND Must make a substantial effort to prevent the crime

Front 48

Accomplice Liability - accessory after the fact (CL) / hindering prosecution (NY)

Back 48

“obstruction of justice” or “harboring a fugitive”
Elements: D must: (1) assist a principal who has committed a felony; (2) with knowledge that the crime has been committed; AND (3) with the intent to help principal avoid arrest or conviction

Front 49

Inchoate Offenses

Back 49

- solicitation
- conspiracy
- attempt
- withdrawal/renunciation/abandonment
- merger

Front 50

Inchoate Offenses - solicitation

Back 50

CL

Elements: 1) asking someone to commit a crime 2) w/ intent that crime be committed
Mental state = specific intent (underlying crime need not be specific intent crime)
• Completion unnecessary – crime is in the asking – doesn’t matter whether the other person agrees or whether crime is completed
• Withdrawal and renunciation NOT defense

Hint 50

NY

solicitation is a separate offense, independent of the substantive crime committed—5 degrees of solicitation
• Can be convicted upon the testimony of the person solicited; no corroboration needed. BUT if person solicited is accomplice  need corroboration.
Affirmative defense: withdrawal, provided that 1) accomplice voluntarily and completely renounces his criminal purpose and 2) prevented commission of the object crime

Front 51

Inchoate Offenses - conspiracy

Back 51

CL

Elements: 1) Agreement btwn 2+ people to commit a crime + 2) overt act (any act of preparation – minimal requirement – bank times on internet) in furtherance of the crime
Mental state = specific intent to accomplish conspiracy’s objective
• Completion unnecessary – crime is in agreement/
overt act
• NO 1-person conspiracies – there must be at least 2 guilty minds, and both must actually agree to accomplish the conspiracy’s objectives – undercover cop can’t “agree” and someone pretending to agree can’t “agree.” If all parties to an agreement are acquitted, last remaining D cannot be convicted. If D is the only one charged and tried, D can still be convicted.
• Vicarious liability – D will be liable for other crimes committed by his co-conspirators, so long as those crimes 1) were in furtherance of the conspiracy’s objective and 2) were foreseeable
• Withdrawal – not a defense b/c conspiracy is complete as soon as agreement is made + act in furtherance is performed.

Hint 51

NY

6 degrees of conspiracy
• Can’t be convicted upon uncorroborated testimony of a co-conspirator
• YES 1-person conspiracy - under unilateral approach, D may be guilty of conspiracy even if the other parties were acquitted or were just pretending to agree (cop)
• No vicarious liability for crimes committed by co-conspirators if one merely conspires and does not participate in committing the offense
• Affirmative defense: withdrawal, if accomplice voluntarily and completely renounces his criminal purpose AND prevents commission of the object crime

Front 52

Inchoate Offenses - attempt

Back 52

CL

Merges w/ completed crime
• Overt act (more substantial than required for conspiracy)  MPC/majority definition: conduct that is a substantial step towards the crime and strongly corroborative of criminal purpose (pro-prosecution)
• Mental state = specific intent to commit the crime, even if the crime attempted is not a specific intent crime; can attempt malice, general intent, or SL crimes (only if D specifically intends to commit the crime), BUT can’t attempt unintentional crimes (reckless, negligent, felony murder)
• Impossibility–factual (impossible to complete crime b/c of some circumstance beyond D’s control; test: if factual circumstances were as D believed them to be, would he be guilty of a crime?; NO defense to attempt) or legal (impossible to complete crime b/c what D was trying to do was not illegal; YES defense to attempt)
• Abandonment – MBE - not a defense if D had intent and committed an overt act before intended crime was completed

Hint 52

NY

• Overt act = conduct that gets dangerously close to the commission of the crime; beyond mere preparation
• Abandonment = affirmative defense if D manifests voluntary and complete renunciation of his actions and avoids the commission of the object crime by abandoning the criminal effort

Front 53

Inchoate Offenses - withdrawal/renunciation/abandonment

Back 53

CL

NOT a defense.
• Once D withdraws from a conspiracy, he will still be guilty of conspiracy, but will not be vicariously liable for crimes committed by his co-conspirators after he left conspiracy

Hint 53

NY

YES defense (NY and MPC) if
• D voluntarily and completely renounces solicitation, conspiracy, or attempt AND renunciation is based on a change of heart, not a fear of failing or being caught

Front 54

Inchoate Offenses - merger

Back 54

CL

D can be convicted of multiple crimes for the same conduct
• Lesser included offenses – necessarily part of greater offense b/c every element of lesser offense is also an element of greater offense (larceny/robbery YES v. larceny/burglary NO). can only be found guilty of one.
• Inchoate offenses – attempt (merger); conspiracy (NO merger); solicitation (merger)

Hint 54

NY

Solicitation (no merger)

Front 55

Defenses

Back 55

- insanity
- intoxication
- infancy
- self-defense
- duress
- entrapment

Front 56

Defenses - insanity

Back 56

CL

• First requirement: D must have a mental disease or defect
• Then, 3 different tests used to gauge whether disease renders D legally insane:
• M’Naughten Test: If D either: Did not know his act was wrong; OR did not understand the nature of the act
• Irresistible Impulse Test: if D either: Was unable to control his actions; OR Was unable to conform conduct to law
• MPC Test: if D lacked the substantial capacity to either: Appreciate the criminality of his conduct; OR Conform his conduct to the law
• V. incompetency: insanity  issue is whether D was insane when crime was committed (yes  D is not guilty); incompetency  issue is whether D is insane at the time of the trial (yes  trial adjourned until D is competent)

Hint 56

NY

Test: If D lacked substantial capacity to either: Understand the nature and consequences of his act; OR Appreciate the wrongfulness of his conduct;
• Burden of proof: affirmative defense - D needs to prove by preponderance of the evidence; CANNOT refuse to submit to P psychiatrist on 5th Amendment grounds

Front 57

Defenses - intoxication

Back 57

CL

Involuntary intoxication:
• Can be a defense to ANY crime
• Treated like a mental illness, so apply insanity tests
Voluntary intoxication:
• can be a defense to specific intent crimes, if the intoxication prevents D from forming specific intent
• NOT defense to malice, general intent, or SL crimes

Hint 57

NY

• OK for intent and knowledge crimes, if intoxication prevents D from forming the required intent
• NO defense to recklessness, negligence, or SL.
• Depraved indifference: can be, but depends on situation; subject to litigation; a jury question.
• Aggravated vehicular homicide: created to cover these situations where people get really drunk and kill someone

Front 58

Defenses - infancy

Back 58

CL

• If age is <7: prosecution is NOT allowed
• If age is 7-14: rebuttable presumption against prosecution
• If age is 14+: prosecution allowed

Hint 58

NY

• between 7-16: family court jurisdiction UNLESS:
• If age is <13: criminal prosecution as an adult not allowed; only juvenile delinquency proceedings in family court
• If age is 13: criminal prosecution as an adult allowed for 2nd degree murder
• If age is 14-15: criminal prosecution as an adult allowed for serious crimes against persons or property + Murder-2
• If age is 16+: criminal prosecution as an adult is allowed for any crime

Front 59

Defenses - self-defense

Back 59

CL

D may use non-deadly force in S-D if it is:
(1) Reasonably necessary
(2) To protect against an imminent use
(3) Of unlawful force against himself
• Distinguish between deadly and non-deadly force: (Shoves and punches: no; Guns and knives: yes)
D may use deadly force in SD, if
(i) he is w/o fault;
(ii) he is confronted w/ unlawful force;
(iii) he is facing imminent threat of death or serious injury
• 2 complications:
• 1) Aggressor Rule: D may NOT use deadly force if he is the initial aggressor, BUT aggressor may regain right to use deadly SD if: 1) Aggressor withdraws from the fight AND communicates that withdrawal to the other person; OR
V suddenly escalates a non-deadly fight into a deadly fight
• 2) retreat rule: some states: D required to retreat before using deadly force, but majority rule: retreat not required.
Reasonableness/mistake
• Reasonable mistake  can still claim S-D
• Unreasonable mistake  no S-D, though minority/MPC view: imperfect S-D: intentional killing, based on an unreasonable belief in the need to use S-D will be voluntary manslaughter, not murder
Use of force to prevent a crime:
• Non-Deadly force: may be used if necessary to prevent a crime
• Deadly force: may only be used to prevent a felony risking human life
Defense of others:
• D may use force and deadly force to protect others just the same as he could use it to defend himself
Defense of property:
• General rule: NO deadly force used to defend property
• Burglary rule: deadly force may be used to prevent a burglary, if the D is inside his own home
Resisting arrest: if D knows or reasonably should know that the person performing the arrest is a police officer:
• Majority rule: if the arrest is unlawful, then the D may use non-deadly force to resist the arresting officer
Necessity defense (“choice of evils”):
• Defense if D reasonably believed that the conduct was necessary to prevent a greater harm
• Exception: NO defense to homicide

Hint 59

NY

D may use non-deadly force, under CL rule, unless
• W/ the intent to cause physical injury to another, he provoked the use or imminent use of such force OR
• He was the initial aggressor; OR
• He use or imminent use of force is pursuant to an unlawful combat agreement
• Aggressor rule: initial aggressor must withdraw before resorting to deadly self-defense, even if the other party suddenly escalates a non-deadly fight into a deadly fight
• Retreat rule: retreat required unless: D cannot retreat in complete safety; D is in his home (“castle exception”) and not the initial aggressor—DOORWAY is NOT considered home, and retreat does apply; D is a police officer or acting under officer direction; D believes other person is committing or attempting kidnapping, rape, or robbery; OR believes other person is committing burglary
• NY & CL – no S-D for unreasonable mistake
• Use of force to prevent a crime: deadly force may be used to prevent a rape, robbery (including 3rd degree unarmed), arson, kidnapping, or burglary, and retreat is not required
• Resisting arrest: if D knows or reasonably should know that person performing arrest is a police officer: force may not be used to resist an arrest, even an unlawful one, unless the arresting officer uses excessive force
• Necessity: harm avoided must be greater than harm caused, but necessity CAN be a defense to homicide

Front 60

Defenses - duress

Back 60

CL

Defense if the D was forced to commit a crime under a threat of serious physical injury
• Exception: NO defense to homicide

Hint 60

NY

• Duress CAN be defense to homicide; burden on D to make this affirmative defense by preponderance of the E

Front 61

Defenses - entrapment

Back 61

CL

if govt. unfairly tempted the D to commit the crime, he may claim entrapment. ONLY IF:
• Criminal design originated with the government; AND
• The D was not predisposed to commit the crime
• Affirmative defense: D must prove by preponderance of the E; P may introduce E of D’s past criminal acts in its direct case

Hint 61

NY

• D entitled to entrapment if a reasonable view of the evidence supports the charge, even if the D’s testimony is inconsistent and he denies the crime charged