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88 Cards in this Set

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Person who commits the illegal act and is liable for the crime
Person who aids or encourages the principal to commit the illegal conduct. Liable for the prinicpal crime if intended to aid/encourage the crime.
Accessory after the Fact
Aids with the escape, knowing the erson committed a felony. This is a less serious crime.
Accomplice Defenses
Withdrawal: Must do so before the crime is unstoppable. For just encouragement, repudiation is suffiicent. For anything more, the accomplice must attempt to neutralize the assistance (notifying police/similar action is sufficient).
For NY: must completely renounce voluntarily and make a substantial effort ot prevent the crime before it is committed
Failure to Act gives rise to liability only if:
1) Specific Duty to Act is imposed by law
2) Defendant knows of the facts giving rise to the duty to act
3) It is reasonably possible to perform the duty
Duty to Rescue
Created By:
1) Contract
2) Statute
3) Relationship between the Parties
4) Voluntary assumption of duty
5) Where your conduct created the peril
Criminal Facilitation (For NY)
1) Knowingly aid in the commission of a crime but culpability isn't at accomplice level
2) Need only believe probably was rendering aid
3) Conduct must have aided commission of the felony
4) May not be convicted on uncorroborated testimony of the person helped
Affirmative Defense: If facilitator takes steps to prevent the felony
Asking someone to commit a crime - merges after the crime is done or agree to do the crime (which would be merging with conspiracy).
For NY:
Withdrawal is an affirmative defense if:
1) Voluntarily and completely renounce and
2) Prevent commission of the crime
Defendant can be convicted just on the testimony of the person solicited
1) Agreement between 2 or more people
2) Intent to enter into the agreement
3) Intent to achieve the objective of the agreement
Conspiracy doesn't merge with the crime. Traditionally there was no conspiracy between a man and wife and if 1 conspirator was acquitted then the other couldn't be found guilty. There is no conspiracy betwween an agent of a corporation and the corporation.
For NY:
You can conspire with a police officer ("unilateral theory of conspiracy) and a conspirator can be convicted without a defense that the co-conspirator was not tried/convicted/etc or was incapable/irresponsible/etc
Conspiracy - Overt Act Requirement
This is the Majority and NY rule. Any little act qualifies as an overt act.
Conspiracy - Co-Conspirator Liability
May be held liable for crimes of co-conspirators if:
1) They were committed in furtherance of the conspiracy and
2) They were foreseeable
For NY:
If you just conspire, you are not guilty of the subsequent co-conspirator crimes
Conspiracy - Defenses
Withdrawal: Doesn't withdraw you from the conspiracy but can withdraw you from liability for further crimes committed by the co-conspirators.
For NY:
For withdrawal, you must:
1) Renounce the Conspiracy and
2) Prevent the commission of the crime altogether
An act done with the intent to commit the crime that falls short of completing that crime.
It requires specific intent and a substantial step, which must be more than mere preparation.
Attempt, like solicitation, merges with the crime when it is committed
Attempt - Defenses
Factual Impossiblity and abandonment are NOT defenses. Legal Impossibility is a defense.
For NY:
Abandonment is an affirmative defense that requires:
1) Voluntary complete renunciation and
2) Avoidance of committing the crime through the abandonment
NY Defenses:
Defense v. Affirmative Defense
Defendant raises the defense and then the prosecution must disprove the defense beyond a reasonable doubt (ex: infancy, self-defense)
Affirmative Defense:
Defendant must raise the affirmative defenses and prove them beyond a preponderance of evidence (ex: duress, insanity, entrapment)
Insanity Defense: M'Naughten Rule
Mental disease/defect causing defendant:
1) Not to know act is wrong or
2) Not to understand the nature and quality of his actions
Insanity Defense: Irresistable Impulse
Because of mental illness/defect, defendant was unable to control his actions or conform his conduct with the law
Insanity Defense: Durham (NH) Rule
Because the crime was committed as a result of a mental illness, the defendant is entitled to an acquittal
Insanity Defense: Model Penal Code
Because of a mental illness/defect, the defendant lacked substantial capacity to
1) Appreciate the criminality of his conduct or
2) Conform his conduct to the requirements of the law
Insanity Defense: NY
As a result of a mental disease or defect, the defendant lacked the capacity to know or appreciate either:
1) The nature and consequence of his conduct or
2) To know such conduct was wrong
In NY, insanity is an affirmative defense and once raised the defendant cannot refuse an examination by the prosecution's psychiatrist on 5th Amendment grounds
Intoxication Defense
Only a defense to specific intent crimes
Treated as insanity - prove the insanity requirements. It is a defense to any kind of intent crime.
Infancy Defense
Under 7: no criminal liability
Under 14: rebuttable presumption of no criminal liability
NY Infancy Defense
Ages 13, 14, 15: can be prosecuted for 2nd Degree Murder
Ages 14, 15: responsible for serious offenses against people and property
Otherwise: Defendants committing felonies between 7 and 16 years old are subject exclusively family court jurisdiction.
Non-Deadly Force: Use it if it reasonably appears necessary to protect yourself from imminent use of unlawful force upon you
Deadly Force: Can use it only if:
1) You are without fault
2) You are confronted with "unlawful force" and
3) You are threatened with imminent death or great bodily harm
Self-Defense: Minority/NY Rule
Requires retreat before using deadly force unless:
1) There is an attack on your home (don't have to retreat from your house)
2) The attack occurs while the victim is making a lawful arrest or
3) The assailant is in the process of committing/attempting to commit: kidnapping, forcible rape or sodomy, robbery, burglary, or arson
Defense of a Dwelling
Deadly force may NEVER be used solely to defend property
Can use deadly force against a burglar in your home but cannot set up traps (like spring guns) outside your home to shoot trespassors.
You can use non-deadly force to protect your home.
Duress Defense
Defense if you reasonably believe another person would imminently inflict death or great bodily harm on you or a family member if you didn't commit the crime
This is NOT a defense against homicide
For NY:
Duress is an affirmative defense to ALL crimes, including homicide
Mistake of Fact Defense
Any mistake, reasonable or unreasonable, is a defense to specific intent crimes
Reasonable mistake is a defense to malice and general intent crimes
Mistake is never a defense to a strict liability crime
Consent Defense
This is rarely a defense
It can be a defense for minor assault/battery if:
1) Consent is voluntarily and freely given
2) The party is legally capable of consenting and
3) No fraud was involved in getting the consent
Entrapment Defense
This is rare and narrow: a pre-disposition on the part of the defendant to commit the crime negates the defense
Entrapment Requires:
1) The criminal design originated with law enforcement officers and
2) Defendant was not pre-disposed to commit the crime before contacted by the police
For NY:
Entrapment is an affirmative defense
Unlawful application of force ot another person resulting in either:
1) Bodily Injury or
2) Offensive Touching
Aggravated Battery
In most jurisdictions aggravated battery is a felony and includes:
1) Battery with a deadly weapon
2) Battery resulting in serious bodily harm
3) Battery of a woman, child or police officer
Battery in NY
There is no crime of battery, just the crime of "assault" which includes common law battery
1) Attempt to commit a battery or
2) Intentional creation (not just words) of a reasonable apprehension in teh victim's mind of imminent bodily harm
If the victim is touched, the crime is just battery and not assault.
Aggravated Assault
Assault with a deadly weapon or with the intent to rape or main is treated more severely than simple assault.
Assault in NY
Assault requires the victim to suffer physical injury, otherwise the common law definition is attempted assault
Specific Intent Crimes
First Degree Murder
False Pretenses
Enterprise Liability
At Common Law: Corporations don't have the capacity to commit crimes.
Modern Statutes: Corporations may be held liable for acts performed by:
1) An agent of the corporation acting within the scope of his office or employment or
2) A corporate agent high enough in the hierarchy to presume his acts reflect on corporate policy
Vicarious Liability Offenses
Offenses where a person wihtout personal fault may still be held liable for the criminal conduct of another (usually an employee). Typically these are limited to regulatory crimes and punishment is limited to fines.
Strict Liability
No intent crimes and any defense that negates intention cannot be a defense. Formula to look for in the statute: if the crime is in the administrative, regulatory, or morality area and there are no adverbs like "knowingly, willfully, intentionally, etc" then it's strict liaiblity.
For NY:
Knowledge of the weight of a controlled substance is not an element of the offense; only knowledge of the nature of the substance is required
Exclusions from Accomplice Liability
Members of a protected class
Necessary parties not provided for in the statutory definition of accomplice liability
Necessity Defense
Necessity is a defense if a person reasonably believed that commission of the crime was necessary to avoid an imminent and greater injury to society than that involved in the crime. It is an objective test so a good faith belief is not sufficient.
Causing the death of another person to protect property is never justified. The defense of necessity is not available if defendant is at fault in creating the situation requiring that he choose between 2 evils.
Necessity v. Duress
Necessity involves the pressure form natural or physical forces while duress involves a human threat.
Mistake of Law Defense
Genearlly Mistake of Law is not a defense unless:
1) The statute proscribing the conduct was not published or made reasonably available prior to the conduct
2) There was reasonable reliance on a statute or judicial decision or
3) In some jurisdictions, there was reasonable reliance on official interpretation and advice
Common law required either disemberment or disablement of a bodily part.
Modern trend is to abolish mayhem as a separate offense and to treat it instead as a form of aggravated battery.
A homicide at common law is murder if it has one of the following factors of malicious intent:
1) Intent to kill
2) Intent to do serious bodily harm
3) Highly reckless or depraved heart murder: engaging in conduct with a substantial likelihood of causing death
4) Felony Murder
Voluntary Manslaughter
Must have an act of passion/provocation that makes a person kill someone else.
The passion/provocation must be sudden and intense and without sufficient time between the provocation and the killing to allow the defendant to cool off and the defefendant must not cool off.
Involuntary Manslaughter
The homicide must be:
1) From criminal negligence (like falling asleep at the wheel) or
2) Misdemeanor manslaughter (while committing a misdemeanor or unenumerated felony)
First Degree Murder
On the multistate, they will label first degree murder as first degree. If it isn't labeled as first degree, then the "murder" is second degree.
They will also give you a set of statutes defining first degree murder that you will apply.
Felony Murder
Any death caused in the commission of, or in an attempt to commit, an enumerated felony is felony murder. Malice is implied from the intent to commit the underlying felony.
Common law only had a few qualifying felonis while modern statutes have more but the applicable felonies remain the inherently dangerous felonies.
Defenses to Felony Murder
1) If the defendant has a defense to the underlying crime then he has a defense to the felony murder
2) The felony must be indpendent to the killing
3) Death must be foreseeable
4) Deaths caused by fleeing from a felony are felony murder, but once a defendant reaches some place of relative safety the deaths caused thereafter are not felony murder
5) Defendant is not liable for the death of a co-felon as a result of resistance to a police officer or arrest
Homicide Year and a Day Rule
Traditionally the death of a victim must occur within one year and one day from the infliction of the injury or wound for the defendant to be liable. Most states no longer have this rule.
For NY:
NY does not follow this rule, the death can occur at any time.
First Degree Murder in NY
The intentional killing with special circumstances. If the defendant is 18 or older he can be sentenced to death (although NY COA said death penatly is unconstitutional).
First Degree Murder in NY - Special Circumstances
1) Intended victim was a police officer, associated with the court/corrections/etc and engaged in official duties at the time of the killing and the defendnat knew or reasonably should have known who the victim was
2) Victim was killed because he was a judge
3) Intended victim was a witness or family member of a witness to a crime and the killing was in retribution or to prevent or influence testimony of the witness
4) Defendant committed murder for hire
5) The victim was intentionally killed by teh defendant during the course of the felonies (or immediate flight from) of: robbery, burglary (1st or 2nd degree), kidnapping, arson, rape, sodomy or sexual abuse, escape, or attempted murder in the 2nd degree
6) At the time of the killing, defendant was in custody or escaped from custody and was serving a life sentence
7) Defendant committed a torture murder
8) Defendant intentionally killed more htan one person as part of the same criminal trasnaction or was previously convicted of murder in the 1st or 2nd degree or an equivalent
9) Defendant committed serial murder
Second Degree Murder in NY
1) Intent to kill without special circumstances
2) Highly reckless or depraved heart
3) Felony murder (includes those listed in the 1st Degree Murder Special Circumstances)
Note: Prosecution cannot accuse the defendant of both the intent to kill and the highly reckless/depraved heart murder - one or the other
Intentional Murder in NY
A person, with the intent to cause the death of another, causes the death of that person or a third party (transferred intent)
Affirmative Defenses:
1) Extreme emotional disturbance ("heat of passion") or
2) Aiding a suicide
Highly Reckless Murder in NY
Person with a depraved indifference to human life recklessly engages in conduct creating a grave risk of death to another person and causing the death of another person. Force directed at the victim but not intended to kill may suffice for conviction.
Manslaughter in NY
Intent to do serious bodily harm
Common law's voluntary manslaughter - requiring provocation/passion
Negligent Homicide in NY
Killings from criminal negligence - common law's involuntary manslaughter
Felony Murder in NY - Special Affirmative Defense
1) Defendant did not himself commit or aid in the commission of the homicidal act
2) Defendant wasn't armed
3) Defendant had reasonable grounds to believe the other people involved were not armed
4) Defendant had no reason to believe anyone intended to engage in conduct likely to result in death
False Imprisonment
The unlawful confinement of a person without his valid consent. Consent is invalidated by: coercion, threats, deception, or incapacity due to mental illness, retardation, or youth
The unlawful confinement of a person involving either:
1) Some movement of the victim or
2) Concealment of the victim in a "secret" place
Kidnapping in NY
If you're engaged in any degree of kidnapping and you klil someone - that qualifies for felony murder
1st Degree Kidnapping:
Abduction and 1) hold for ransom or 2) restrain the victim or 3) the victim dies
All other kidnapping is 2nd degree and simply called abduction.
The unlawful penetration of a woman by a man without her effective consent. The slightest penetration qualifies as rape. Traditionally a husband could not rape his wife, but modernly he can.
Rape in NY
Marital and gender exceptions have been stricken from the statute.
Defendant may not be convicted solely on the testimony of the victim for any sex crime or attempt where lack of consent is an element and such lack of consent results from mental defect or incapacity. Corroborating evidence must tend to:
1) Establish at least an attempt to have intercourse, deviate intercourse, or sexual conduct with the victim and
2) Connect the defendant with teh commission of the offense or attempted offense
However, by statute, NY no longer requies corroboration in cases of forcible rape/sodomy/sexual abuse
Megan's Law in NY
Requires sex offenders to register with the Division of Criminal Justice Services. The law authorizes the release of relevant information concerning the sex offender.
1) A taking by trespass or trick
2) Of tangible personal property of another
3) That is carried away
4) Without consent
5) With an intent to deprive the person of the personal property permanently
Larceny requires intent, so if you believe the property is yours/you have a right to it, then it's not larceny.
Larceny can be committed with lost or mislaid property or property delivered by mistake but not with abandoned property.
In larceny, the defendant gets possession only, not title.
Larceny by Trick
If the victim is tricked by misrepresentation of fact into giving up the mere possession of property, then the crime is larceny by trick
Larceny in NY
4 Common Law Crimes are included in Larceny:
1) Larceny by trespassory taking
2) Larceny by trick
3) False pretenses
4) Embezzlement
By statute, the following are also included:
1) Aquiring lost or mislaid property
2) Issuing a bad check
3) False promise
4) Extortion
5) Embezzlement and
6) Appropriating leased or rented items
Grading of Larceny in NY
Larceny is graded by the value of the property taken and in some situations the manner in which it was acquired.
Class A misdemeanor: petit larceny, any property
Class E felony: grand larceny, 4th Degree:
1) Property valued at over $1000
2) Public Record
3) Secret scientific material
4) Property taken from the person of another but not robbery
5) Property taken by extortion
6) Credit cards
7) Firearms
8) Motor vehcile with value greater than $100
Class D felony, grand larceny, 3rd degree: Property worth more than $3000
Class C felony: grand larceny, 2nd Degree: Property worth more than $50,000 or extortion by fear of:
1) Physical Injury
2) Damage to Property or
3) Defendant's abuse of his powers as a public servant
Class B Felony: grand larceny, 1st degree:
Property worth more than $1,000,000
The fraudulent conversion of personal property of anotehr by a person in lawful possession of that property. This does not require "carrying away" and the embezzler doesn't have to benefit himself. The embezzler must intend to defraud and gets possession only, not title.
False Pretenses
Defendant persuades the conveyance of title by false pretenses. The false pretense/representation must be as to a present or past fact. A future false promise cannot ground liability for false pretense.
Bad Check Legislation in NY
Issuing a bad check is a class B misdemenaor. If the check is used to obtain propety, then it is larceny.
1) A person as drawer or agent puts a check into circulation
2) Knowing that he does not have sufficient funds to cover it
3) With the intent or belief that payment will be refused by the drawee and
4) Paymetn is refused by the drawee
The crime is also committed when the defendant does not draw the check but passes it as a transfer for purposes other than the collection under circumstances above.
Presumption: Knowledge and intent of the drawer are presumed if:
1) No account exists with the drawee or
2) He has insufficient funds on account at the itme of issuance and presentation (Check must be presented within 30 days of issuance)
Bad Check Affirmative Defense in NY
Exists if:
1) Defendant or another person makes good the check within 10 days of it being dishonored or
2) The defendant was an employee acting at the direction of his employer not for his own benefit
Larceny + Assault
Elements turning larceny into robbery:
1) From the person or his presence
2) Against his will either by violence or
3) By putting the person in fear (can also fear for someone you're with)
Robbery in NY
3rd Degree: Forcibly stealing property, no physical injury or firearms
2nd Degree: 3rd degree plus one of the following:
1) Aided by someone else
2) Physical Injury or
3) Display of a firearm or other threat
1st Degree: Armed with a deadly weapon and cause serious physical injury
Receipt of Stolen Property
Receiving possession and control of "stolen" personal property known to have been obtained in a manner constituing a criminal offense by another person with the intent to permanently deprive the owner of his interest in it
Person possesses the property when it is put in a locaiton desiganted by her or she arranges a sale for the thief to a 3rd person.
The property must be stolen at the time the defendant receives it and the defendant must know it is stolen.
Receipt of Stolen Property in NY
Defendant can be convicted of attempted criminal possession of stolen property. Impossibility due to attendant circumstances is not a defense. Corroboration is not necessary unless the witness and defendant were accomplices. Possession and larceny do not merge.
NY presumptions:
1) Knowingly possessing stolen property raises a presumption that the defendnat has the intent to benefit himself or another
2) A pawnbroker or other dealer in property is presumed to know property is stolen if he fails to make a reasonable inquiry of the person from whom he obtained the property
Making or altering a writing with apparent legal significance so that it is false with the intent to defraud
Criminal Posession of a Forged Instrument - NY
The use or possession for use of a forged instrument with fraudulent intent. It does not merge with forgery.
Malicious Mischief
Malicious destruction of or damage to the property of another
Criminal Mischief in NY
Malice is not required. The crime is more serious if the defendant acted intentionally rather than recklessly. The amount of damage to the property is considered: $250 is 3rd Degree and $1,500 is 2nd Degree. Use of an explosive further aggravates the offense to 1st Degree.
Criminal Tampering in NY
Without reasonable belief in a right to do so, a person tampers with another's property with intent to cause substantial inconvenience, or regardless of intent, tampers with property of a utility company.
Differences from robbery:
1) Don't have to take anything from the person or his presence and
2) Threats are of future harm and not imminent harm
1) A break in, either actual or constructive (by threat or fraud). Can go through a open door/window and not be a breaking, but if you open an internal closed door it is a brekaing.
2) And entering (whenver you cross the boundary of another house)
3) Of a dwelling
4) At night
5) With the intent to commit a felony inside at the time of the break in and entering
Burglary in NY
Burglary includes remaining unlawfully as well as entry, does not have to be at night and does not limit "intent" to commission of a felony but any crime and except for grading purposes the building does not have to be a dwelling.
3rd Degree: Breaking or entering or remaining inside any kind of structure at any time of day wiht the intent to commit any crime inside
2nd Degree: If it's:
1) A dwelling house or
2) There was injury to a non-participant or
3) The burglar was armed
1st Degree: It must be a dwelling house plus either armed or injury to a non-participant
The malicious burning of the dwelling house of another.
It only applies to fires, not explosions or smoke damage.
It requires a materiual wasting of the fiber of the building by a fire - mere blackening by smoke or discoloration is not sufficient but charring is sufficient
Dwelling house, not commercial building
Arson in NY
3rd Degree: Intentionally damaging a building or motor vehicle by intentionally startin ga fire or causing an explosion
2nd Degree: Intentionally damaging a building or motor vehicle by intentionally starting a fire with knowledge that a non-participant is present in the building or motor vehicle or circumstances are such that a person's presence is a reasonable possibility. The non-participant need not be injured.
1st Degree: Same as 2nd Degree but defendnat causes an explosion or fire by incendiary or explosive device