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76 Cards in this Set

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Jurisidicition
legal sight of the crime

either conduct or result happened in the state.
Merger
generally no merger in criminal law
(can be charged with conspiracy to commit burglary & burglary)

Exceptions
attempt and solicitation merge into substantive offenses
NY Classification of Crimes
(Felonies)
offenses which death or a prison sentence of more than one year may be imposed
Essential Elements of Crimes
1) Act or Omission
2) Mental States
An Act
any voluntary act or bodily movement

Exceptions:

conduct not product of you own volition (involuntary)

reflexive or convulsive act (ex. epileptic seizure)

conduct performed while unconscious or asleep (ex. sleepwalking)
An Omission
generally no duty to take positive action

exceptions (legal duty to act)

by contract (lifeguard or nurse)

by statue (required to file tax returns)

relationship between parties (parents/child, spouses)

voluntarily assume duty of care and then fail to perform it

when your conduct created the peril
Mental State: Specific Intent
o Solicitation
o Conspiracy
o Attempt
o First Degree Murder
o Assault (one type)
o Larceny
o Embezzlement
o False Pretenses
o Robbery
o Burglary
o Forgery
Mental State: Malice
intent or recklessness

o Common Law Murder
o Arson
Mental State: General Intent
big catch-all category

o example: rape and battery
o every crime not mentioned unless qualifies for strict liability
Mental State (General Tip)
o memorize specific intent crimes, there are only two malice crimes, all other crimes are general intent crimes unless they qualify for strict liability formula
Transferred Intent
o intent to kill intended victim transferred to actual victim
o always two crimes: murder (victim) and attempted murder (intended victim)
o never merge any crimes that have two different victims
Accomplice Liability
• accomplices are liable for the crime itself and all other foreseeable crimes
• a person is not accomplice unless actively involved in crime (presence not sufficient)
Accomplice Liability: New York Distinctions
• accomplices cannot benefit from principals defense that goes to mental state (ex. accomplice cannot benefit if the principal raises an insanity defense at trial)
• accomplice is not absolved even if principal is acquitted, immune or not prosecuted
• a person cannot be convicted solely on uncorroborated testimony of an accomplice (except in police disciplinary hearings)
Accomplice Liability: New York Distinctions (Withdrawal)
Withdrawal is an affirmative defense to accomplice liability for the substantive offense, other than an attempt, if the accomplice:
• voluntarily and completely renounces his criminal purpose
• withdraws prior to commission of the offense; and
• makes a substantial effort to prevent the crime

withdrawal is never a defense to attempt
Solicitation
• asking someone to commit a crime, crime is committed when you ask
• if person agrees to commit crime it becomes a conspiracy and merges
Attempt

(withdrawal is never a defense)
• specific intent to commit crime plus a substantial step beyond mere preparation in the direction of the commissions of crime (more than overt act under conspiracy liability)
Conspiracy: Elements
• an agreement (express or implied by circumstances)
• an intent to agree
• an intent to pursue the unlawful objective (no conspiracy = Timberlake Raids)
Conspiracy: Forseeability
• each conspirator is liable for all crimes of co-conspirator if those crimes were committed in furtherance of the conspiracy and the crimes were foreseeable
Conspiracy: Overt Acts
Majority Rule & New York Rule
o there must be an agreement and overt act (a little bit)

Minority Rule & Common Law
o no overt act requirement. occurs upon agreement
Conspiracy: Impossibility
• impossibility is no defense to conspiracy
Conspiracy: Withdrawal
Withdrawal even if adequate is never enough to withdraw defendant from the conspiracy (formed upon agreement) itself but can withdraw defendant from liability for co-conspirators subsequent/future crimes.
Conspiracy: New York Distinctions
• NY requires an overt act
• Defendant can conspire with undercover police officer (this is sometimes called the unilateral theory of conspiracy). There is no defense to a conspiracy charge based on co-conspirator’s irresponsibility, incapacity or failure to have requisite culpability for a crime.
• Defendant can withdraw from conspiracy if he renounce the conspiracy and prevents the commission of the crime (withdrawal affirmative defense to solicitation & conspiracy)
• A person who merely conspires to commit a crime (does not take part in offenses), not liable for subsequent offenses by co-conspirators
New York Defenses
New York penal law creates two defenses

Defenses
• Once defendant raises them (defenses) the prosecutor must disprove them beyond a reasonable doubt. Includes infancy, self defense, etc.

Affirmative Defenses
• The defendant raises them (affirmative defenses) and then must be proved by the defendant by a preponderance of the evidence. includes duress, entrapment, insanity, etc
Insanity Defense: M’Naghten Test
at the time of his conduct defendant lacked the ability to known the wrongfulness of his actions or under the nature & quality of his actions
Insanity Defense: Irresistible Impulse
defendant lacked capacity for self-control and choice (control impulses)
Insanity Defense: Durham Rule
defendants conduct was a product (but/for cause) of a mental illness
Insanity Defense: Model Penal Code
o lacked the ability to conform his conduct to requirement of law
o mixes the M’Naghten Test and Irresistible Impulse test
Insanity Defense: New York Distinction
• uses a test very similar to the M’Naghten Test
• more lenient than the M’Naghten rule but not as generous as MPC standard
• a person is not criminally responsible for conduct if, at the time of the conduct, as a result of the mental disease or defect, he lacked capacity to know or appreciate either the nature and consequence of such conduct or that such conduct was wrong
Voluntary Intoxication
o self-induced intoxication (includes addicts & alcoholics)
o defense only to specific intent crimes and no other crimes
Involuntary Intoxication
• Involuntary Intoxication
o someone slips something into your drink
o take medicine at the advice of doctor and do not know its effects
o treated like insanity, it is a defense to all crimes (including strict liability)
Infancy
• under seven year old no criminal liability
• under fourteen year old there is rebuttable presumption of no criminal liability
Self Defense: Non-Deadly Force
a victim may use non-deadly force in self-defense any time that victim reasonably believes that force is about to be used against them
Non-Deadly Force: New York Distinction
A person may use physical force on another to the extent he reasonably believes such force is necessary to defend himself or another force unless:
• with intent to cause physical injury to another, he provoked the use of force
• he was the initial aggressor, or
• use of force is pursuant to an unlawful combat agreement
Self Defense: Deadly Force
a victim may use deadly force any that that victim reasonably believes that deadly force is about to be used against them
Deadly Force: New York Distinction
Victim has a duty to retreat if possible only before using deadly force

Exceptions to Retreat Rules in Retreat Jurisdictions: (retreated not required)
• do not need to retreat in your own home and not initial aggressor
• believes the other person is committing rape, burglary or arson
Self Defense: Defense of Dwelling
o deadly force may never be used solely to defend your property
o deadly force can be used to defend family in home from deadly force
Duress
o under common law duress is a defense to all crime except homicide
o under New York Law duress is an affirmative defense to all crimes
Mistake of Fact
o mistake of fact is only a defense when it negates intention
o mistake of fact is no defense to strict liability, because no intent crimes
Mistake of Fact: Mental States
Specific Intent: Any mistake (reasonable or unreasonable)

Malice and General Intent: Reasonable mistakes only

Strict Liability: Never Applies (no mistakes ever)
Consent
o consent of a victim is almost never a defense (do not choose it as an answer)
o consent is not valid when you do not have the right to consent (statutory rape)
Entrapment
o Very narrow defense. Almost never available because predisposition on part of the defendant to commit the crime negates entrapment defense
o in New York entrapment is an affirmative defense
Specific Intent Defenses
two additional defenses can be used:

o voluntary intoxication
o any mistake of fact (reasonable or unreasonable mistake)
Battery
• a completed assault, an intentional offensive touching
• battery is a general intent crime, never strict liability

mistake as to identity of the victim not a defense
Battery: New York Distinction
• there is no crime of battery is NY, there is only the crime of assault which encompasses common law battery.
Assault
Assault as an Attempted Battery
o I got to hit you, you duck and I miss
o this is a specific intent crime

Assault as a Threat
o I threatened you with bodily harm
o this is a general intent crime
Homicide
• be sure that the victim is a dead human (not dolphin)
• “murder” by itself on multistate is common law murder (malice crime)
• first degree murder is a specific intent crime and can use additional defenses
Common Law Murder
• intent to kill or
• intent to do serious bodily harm
• or engaging in conduct w/ a high risk of death (highly reckless murder)
• or felony murder rule
Voluntary Manslaughter
• there must be passion (the killing during the heat of passion)
• some provoking event (a fight, walking in when spouse cheating)
Involuntary Manslaughter
killings from criminal negligence
o falling asleep while driving and killing a pedestrian

misdemeanor manslaughter
o killing someone when you are committing a misdemeanor or an unenumerated felony (not listed inherently dangerous felonies under the felony murder rule)
First Degree Murder
multistate sometimes labels as First Degree Murder or gives statue to apply to facts
New York Homicide Statue: First Degree Murder
o intentional killing with special circumstances
o examples: killing a police officer, defendant committed murder for hire, victim was intentionally killed by the defendant during the course of one of the following felonies or immediate flight therefrom: Robbery (any degree), Burglary (first or second degree), Kidnapping, Arson, Rape, Sodomy, or Sexual Abuse, Escape or Attempted Murder in the second degree
New York Homicide Statue: Second Degree Murder
o intentional murder (other than first degree murder, w/o special circumstances)
o highly reckless or depraved heart murder
o felony murder
New York Homicide Statue: Felony Murder (qualifies Second Degree)
o applies to all participants. The enumerated felonies are burglary, robbery, arson, kidnapping, first degree rape or sodomy, sexual abuse or aggravated sexual abuse, first and second degree escape
o felony murder applies to all participants (accomplices) and robbery is included in the last of felonies to which felony murder rule applies
o felony murder conviction is possible even if the underlying felony is dismissed (IMPORTANT NY DISTINCTION)
New York Homicide Statue: Intentional Murder
when a person with intent to cause the death of another, causes the death of such person or of a third party

Two affirmative defenses can exculpate the defendant
• extreme emotional disturbance (heat of passion) and
• aiding suicide
New York Homicide Statue: Highly Reckless Murder
• 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 death
• force directed at victim but not intended to kill may suffice for conviction
• no crime of attempt exists for reckless murder because no intent is involved
New York Homicide Statue: First Degree Manslaughter
o serious bodily harm resulting in death
o extreme emotional disturbance (heat of passion)
New York Homicide Statue: Second Degree Manslaughter
o reckless killing. Conscious disregard of a substantial risk, which causes the death of another person. Intoxication is not a defense
New York Homicide Statue: New York Distinction
The Court of Appeals has consistently disapproved of prosecutors when charging of Second Degree Murder the tendency of charging intent to kill and highly recklessness. As a matter of law, cannot be charged with depraved indifference and intent to kill. This should be considered error and the depraved indifference charge cannot be upheld.
Defense to Felony Murder
• defense to underlying felony
• felony must be independent of the killing
• the deaths must be foreseeable defenses caused when feeling from felony is felony murder (but not felony murder when reach the point of temporary safety)
• defendant not liable for death of a co-felon as result of resistance of victim or police
Defense to Felony Murder: New York Distinction
An accomplice has an affirmative defense to felony murder (need all elements).

This rule is called the Special Accomplice Defense. Still responsible for felony.

• he did not commit or aid in the commission of the homicidal act
• he was no armed
• he had reasonable grounds to believe other people were not armed
• had no reason to believe people engage in conduct resulting in death
Kidnapping in New York
any kidnapping qualifies for felony murder
First Degree Kidnapping in New York
abduction plus
o ransom
o or restraint with intent to commit physical injury
o or victim dies

Second Degree Kidnapping = abducting someone
Rape
the slightest penetration complete crime of rape
Statutory Rape
• strict liability
• consent of victim or mistake of fact (age) no defense
Rape: New York Distinctions
First Degree Rape Or Sodomy is committed when any person engages in sexual intercourse or deviate sexual intercourse with any other person who is:

• less than 11 years old or
• is physically helpless or
• by forcible compulsion

Defendant may not be convicted solely on the testimony of the victim for any sex crime where lack of consent is an element & such lack of consent results from mental defect or incapacity. Corroboration is not required in forcible rape, sodomy or sexual abuse
Larceny
• taking by trespass or trick (wrongful taking/stealing)
• carrying away of personal property (slight carrying away will qualify)
• without consent (including consent by fear or fraud)
• with intention at taking to deprive owner permanently of his property
• Cannot be convicted of larceny and robbery. Larceny is a lesser included offense of robbery because it consists entirely of some, but not all, the elements of the greater crime. Larceny has all the elements of robbery except force or intimidation.
Larceny: New York Distinctions
NY law incorporates four common law crimes against property into larceny
• larceny by trespassory taking
• larceny by trick
• false pretenses
• embezzlement

New York allows prosecution of defendants age 14 or 15 who are responsible for serious offenses against person or property. They need not be brought up on juvenile delinquency charges in Family Court. In New York a defendant who is 13, 14, 15 years old may be prosecuted for second degree murder.

Issuing a bad check is an act of larceny

Larceny is graded by the value of the property taken
• Class D felony, grand larceny, third degree is property > 3,000
• Class C felony, grand larceny, second degree is property > 50,000
Embezzlement
• lawful possession and then illegal conversion
• embezzler does not need to benefit herself
• embezzler has possession but not title
False Pretenses
• D persuades owner to convey title by false pretenses (misrepresentation)
• false representation must be to present fact or past fact, not to future false promise
Robbery
• larceny plus assault (all elements of larceny included)
• must take property from person or presence by force
• force is violence or threat of imminent harm (not threat of future harm)
• ex: picking a pocket is larceny, yanking a necklace is robbery
Robbery: New York Distinctions
Third Degree – Forcibly Stealing Property
o no physical injury
o no firearms

Second Degree – Third Degree plus one of aggravating factors
o person aided by another person
o or causes injury
o or display firearm or other threat

First Degree
o armed with deadly weapon
o causes SERIOUS physical injury
Extortion
extortion is blackmail

Difference from Robbery
o do not have to take anything from person or presence
o threat of future harm (not of imminent harm like robbery)
Burglary
• a breaking (actual from force or constructive by threat of fraud)
• entering
• dwelling of another
• at night
• with intent to commit a felony inside (must exist at time of breaking)
Burglarly: New York Distinctions
Third Degree
o breaking or entering or remaining behind inside
o any structure, any time of day, with intent to commit any crime inside

Second Degree (if any of the following is true)
o dwelling house
o injury to non-participant
o burglar was armed

First Degree
o has to be a dwelling
o and must be armed or injured a non participant
Arson
• malicious burning of a dwelling (house) of another
• only applies to fires not explosions
• must be material wasting of the house (at least charring required)
Arson: New York Distinctions
burning, explosions, etc of any structure

Third Degree Arson
o intentionally damaging a building or motor vehicle
o by intentionally starting a fire or causing an explosion

Second Degree
o Third Degree plus knowledge that nonparticpant is present or person’s presence is a reasonable possibility (participant need not be injured)

First Degree
o Second degree except D uses incendiary or explosive device