Criminal Law

Front 1

What crimes still merge? (can't be guilty of both)

Back 1

Solicitation and Attempt.

Solicitation also merges into attepmt - can't be guilty of both.

Conspiracy does not merge.

Front 2

What offenses are specific intent crimes?

Back 2

1) inchoate offenses -- solicitation, attempt, conspiracy

2) 1st degree premeditated murder

3) assault - intent to commit battery

4) crimes against property
a) larceny & robbery
b) burglary
c) forgery
d) false pretense
e) embezzlement

Front 3

What is Malice?

Back 3

Reckless disregard for an obvious or high risk that a particular harmful result will occur.

Front 4

what crimes are malice crimes

Back 4

arson and CL murder.

Front 5

What is a crime with general intent require?

Back 5

Awareness of factors constituting a crime. D is aware that he acted in proscribed way and that attendant circumstances exist.

Need not be certain circumstances exist, but it is sufficient that she is aware of a high likelihood that it will occur

Front 6

What is required to be an accomplice?

Back 6

Aid/encourage principal with the intent that crime encouraged be committed

Knowledge that crime will be committed is not enough.

Front 7

What is the scope of liability of an accomplice

Back 7

Liable for crime itself and for any other crimes committed in the course of committing crimes contemplated, so long as other crimes were PROBABLE and FORSEEABLE

Front 8

Who is not liable as an accomplice?

Back 8

1) members of protected class
2) party necessary for a crime but not included in statute (e.g. selling alcohol to minors, not minor)
3) person who withdraws before crime is UNSTOPPABLE; repudiation is enough if only encouragement was give; if more than mere encouragement, must attempt to neutralize or notify police.

Front 9

What are NYs special rules pertaining to accomplices?

Back 9

1) accomplices cannot benefit from principal's defense that negates mental state,
2) not absolved from liability even if principal was acquitted, immune, or not prosecuted
3) person may not be convicted solely on uncorroborated testimony of accomplice

Front 10

What is solicitation?

Back 10

Inciting, counseling, advising, urging, or commanding another to commit a crime with the INTENT that the person solicited commit the crime

Front 11

Can you be liable for solicitation if crime wasn't committed, or couldn't have been successful?

Back 11

YES

Front 12

Can you renounce or withdraw from a solicitation?

Back 12

No, these are not defenses.

BUT in NY, you can withdrawl from solicitation (and conspiracy) if you
1) volunatrily and completely renounce and
2) prevented commission of crime

Front 13

How does solicitation merge?

Back 13

Can be held liable for solicitation, attempt, conspiracy or Act, but NOT
Solicitation and Act
and not
Solicitation and Attempt

Front 14

What is a conspiracy?

Back 14

Agreement b/w two or more parties to commit a crime.

Generally requires 2 guilty minds, 2 people who intend to commit crime. BUT NOT IN NY. In NY you can conspire with an undercover cop and be guilty!

Front 15

What are the elements of conspiracy?

Back 15

1) agreement b/w 2 people (need not be writte, can be inferred from circumstantial evidence)

2) intent to enter agreement

3) intent, by at least 2 people, to achive objective of agreement

4) overt act (majority rule, including NY) beyond agreement in furtherance of conspiracy. Any act will do.

Front 16

What is the scope of liability for conspiracy?

Back 16

EAch conspirator is liable for all crimes of co-conspirators committed in furtherance of conspiracy that were FORSEEABLE.

Front 17

What is the NY limitation on the scope of liability for a conspiracy?

Back 17

PErson who merely conspires to commit a crime, and does not act, is NOT liable for substantive offenses of others.

Front 18

What are the defenses to conspiracy?

Back 18

1) impossibility is not a defense
2) withdrawal from conspiracy is not a defense (conspiracy is compelete as soon as agreement is made and act is performed; even if he later backs out, tells cop, etc).

Front 19

Can withdrawal be a defense to crimes committed in furtherance of the conspiracy?

Back 19

YES, including the substantive target crime of the conspiracy.

Front 20

What must a conspirator do to withdraw?

Back 20

Perform an AFFIRMATIVE ACT that NOTIFIES all members of the conspiracy of her withdrawal, notice must be given in time to abandon plans and if acted as an accomplice, must neutralize assitance

Front 21

What must a conspirator do to withdraw in NY?

Back 21

1) renounce conspiracy

2) prevent commission of crime

Front 22

What is attempt

Back 22

Act, done with intent to commit a crime, that falls short of committing a crime.

Front 23

What mens rea is required for attempt

Back 23

always specific intent, regardless of mens rea for completed offense.

D must intend to perform an act and obtain result that if achieved would constitute a crime.

Front 24

What are the elements of attempt?

Back 24

1) specific intent mens rea

2) over tact - D must commit an overt act beyond mere preparation for offense. Much more susbstantial act than for conspiracy.

Front 25

What tests are used to determine whether an act was sufficient to constitute attempt?

Back 25

1) proximate cause/dangerously close

and

2) substantial step test

Front 26

What are defenses to attempt

Back 26

1) impossibility of succes (legal impossibility is a defense; not factual impossibility)

2) Abandonment is not a defense. IF D had attempt to commit over act, she is guilty, despite fact that she changed mind and abandoned plan before intended crime was completed

BUT in NY, abandonement IS an affirmative defense to attempt. D must manifest voluntary and complete renunciation of his actions and avoid the commission fo the object crime by abandoning the criminal effort.

Front 27

Does attempt merge

Back 27

yes, D cannot be found guilty of attempt and completed crime.

Front 28

In a criminal case, what standard is used to judge all elements of a crime?

Back 28

beyond a reasonable doubt

Front 29

What is the distinction b/w affirmative defenses and defenses in NY?

Back 29

1) Defenses - once D raises defense, State must disporve it beyond a reasonable doubt (self-defense, infancy)

2) affirmative defenses - D must raise this type of defense and prove it by a preponderance of the evidence (duress, entrapment, insanity).

Front 30

What categories of defenses are there?

Back 30

!) negating criminal capacity

2) exculpation and justification

Front 31

What defenses negate criminal capacity?

Back 31

Insanity

intoxication (voluntary and involuntary)

infancy

Front 32

what defenses serve as exculpation, justifications?

Back 32

1. self-defense
2. defense of others
3. defense of dwelling
4. duress
5. mistake/ignorance of fact
6. consent (to rape)
7. entrapment (crime originated with law enfrocemetn, D does not have predisposition to crime, very narrow)
8. mistake of law not a defense except if statute is not published, or reasonable reliance on judicial opinion

IN NY, JUSTIFICATIONS ARE DEFENSES, NOT AFFIRMATIVE DEFENSES

note - IN NY, ENTRAPEMENT IS ALSO AN AFFIRMATIVE DEFENSE.

Front 33

What crimes is insanity a defense to?

Back 33

all crimes, including specific intent.

Front 34

What are the tests used for insanity?

Back 34

1) M'Naghten test - D lacked ability to know wrongfulness of his actions or understand nature/quality of his actions.
--D does not know right from wrong---

2) irressistible impulse test - D was unable to control his actions or conform his conduct
---An impulse, D can't resist---

3) Durham (NH) rule - D's conduct was a product of mental illness (broader)
----But for illness, D would not have done act

4) MPC - D lacked substantial capacity to either a) appreciate criminality of conduct, or b) conform his conduct to the law.(combo of M'naghten and irressistible impulse.

Front 35

What test does ny use for insanity

Back 35

one similar to m'naghten test, but more lenient (less lenient than MPC).

Person is not criminally responsible for conduct if, at the time of the conduct, as a result of mental disease or defect, he lacked capacity to know or appreciate either
1) the nature and consequence of his conduct
2) that such conduct was wrong.

Once raised, D may not refuse to submit to an examination by prosecution's psychiatrist on 5A grounds.

No such thing as diminished capacity in ny.

Front 36

When can intoxication be used as a defense

Back 36

whenever it negates one of the elements of a crime.

Front 37

What is voluntary intoxication?

Back 37

intentional taking, w/o duress, of any substance known to be intoxicating.

Front 38

when is voluntary intoxication a defense

Back 38

only to specific intent/knowledge crimes if intoxication prevented D from formulating necessary intent.

IN NY- DEFENSE TO PROVE CUPABLE MENTAL STATE OF RECKLESSNESS

Front 39

What is involuntary intoxication

Back 39

results form taking intoxicating substance w/o knowledge of its nature under direct duress imposed by another or pursuant to medical advice while unaware of intoxicating effects

Front 40

what crimes is involuntary intoxication a defense

Back 40

all crimes, including SL.

Front 41

What is the Defense of Defense of others?

Back 41

D has right to defend others if D reasonably believes person assisted has a legal right to use force in his own defense.

No special relationship needed b/w D and person defended.

Front 42

What is the rule for defense of a dwelling?

Back 42

1) non-deadly force may be used to prevent/terminate what is reasonably regarded as an unlawful entry/attack of D's dwelling.

2) deadly force can be used only to prevent a violent entry made with intent to commit a PERSONAL attack on an inhabitant or to prevent an entry to commit a FELONY inside

Front 43

What is the right to self-defense

Back 43

1) Non deadly force - victim may use such nondeadly force as REASONABLY APPEARS NECESSARY to protect herself from IMMINENT USE OF unlawful force upon her. NO DUTY TO RETREAT!

2) Deady force (majority) - person may use deadly force if she
a) is without fault and is
b) confroted with unlawful force, and
c) is threatened with imminent death or great bodily harm

No duty to retreat before using deadly force.

Front 44

What is the minority rule/rule in NY regarding the use of deadly force in self defense?

Back 44

victim must retreat if can safely do so UNLESS
1) attack occurs in victim's home
2) attack occurs while victim is making a lawful arrest (cops)
3) assailant is in the proces of raping/robbing the victim.

Front 45

what is the rule for self-defense if victim was intital aggressor?

Back 45

can't use self-defense if initial aggressor, UNLESS
1) withdraws, AND
2) stops and communicates withdrawal to original victim

Front 46

What is duress?

Back 46

D does act b/c he reasonably believed that another person would imminently inflict death or great bodily harm upon him/his family if he did not commit a crime

Front 47

what crimes is duress a defense to on the MBE?

Back 47

duress is a defense to all crimes except Homicide.

Front 48

what crimes is duress a defense to on the NY?

Back 48

all crimes, including homicide.

D must raise this type of defense (AFFIRMATIVE DEFENSE) and prove it by preponderance of the evidence.

Front 49

What are the offenses against the person?

Back 49

1) assault
2)battery
3)homicide
4)kidnapping
5)sex offenses

Front 50

what is battery

Back 50

completed assault (general intent crime, never SL).

if there's a touching, its a battery.

note - IN NY, THERE IS NO CRIME OF BATTERY. JUST ASSAULT WHICH ENCOMPASSES CL BATTERY. (AND THEN, ATTEMPTED ASSAULT, IS CL ASSAULT)

Front 51

what is an assault

Back 51

1) attempt - to commit a battery (so specific intent crime)

2) threat - intentional creation, other than by mere words, of a reasonable apprehension in the mind of a victim of imminent bodily harm (general intent crime)

Front 52

What categories exist for CL homicide?

Back 52

1) murder
2) voluntary manslaughter
3) involuntary manslaughter

Front 53

What is murder

Back 53

unlawful killing of a human being with MALICE AFORETHOUGHT
1) intent to kill
b) intent to inflict great bodily harm
3) reckless indifference to an unjustifiably high risk to human life
4) intent to commit a felony murder

Front 54

what is voluntary manslaughter

Back 54

killing that would be murder, but for the existence of ADEQUATE PROVOCATION.

1) provocation that would arouse sudden and intense passion in the mind of an ordinary person, causing him to lose control

2) D was, in fact, provoked

3) there was not sufficient time b/w provocaiton and killing for passion of reasonable person to cool

4) D did not, in fact, cool off b/w provocation and killing.

So, heat of passion is not a defense to murder, but may mitigate from murder to voluntary manslaughter

Front 55

what is involuntary manslaughter

Back 55

A killing is involuntary manslaughter if it was committed

1) With criminal negligence (D was grossly negligent) or

2)During the commission of an unlawful act (misdemeanor or felony not included w/I felony murder rule)

Front 56

what are ny's categories for homicide?

Back 56

1) 1st degree murder
2) 2nd degree murder
3) manslaughter in 1st degree
4) manslaughter in 2nd degree
5) negligent homicide

Front 57

What is NY - 1st degree murder?

Back 57

very narrow - intentional killing plus special circumstances

special circumstances include
1) intended victim was cop (court officer, parole officer, probation officer, employee of division of youth or corrections facility) engaged in official duties at time of killing and D knew, or should have known, that victim was such

2) that victim was killed b/c he was a judge
3)intended victim was a witness/family member of witness to crime and killing was done to exact retribution for/prevent/influence testimony of witness
4) D committed murder for hire
5) victim was intentionally killed by D during course of felonies or immediate flight therefrom - robbery/burglary 1st or 2nd/kidnapping/arson.rape/sodomy/sexualabuse/escape/attempted murder in 2nd degree
6)D was in custody or had escaped custody and was serving life sentence at time of killing
7)D commited a torture murder
8)D intentionally killed more than one person as part of same criminal transaction or was previously convicted by murder in 1st or 2nd degree,
9)D was a serial murderer
10)victim was killed in furtherance of an act of terrorism.

Front 58

What is NY - 2nd degree murder?

Back 58

1) intential murder w/o special circumstances
2) highly reckeless 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 to antoher person)
3) felony murder

Front 59

What affirmative defenses exist for intentional murder in NY?

Back 59

1) extreme emotional disturbance - i.e. heat of passion

2) aiding a suicide

these defenses mitigate crime so that D may still be prosecuted for manslaughter

Front 60

What is NY - 1st degree Manslaughter

Back 60

1) serious bodily harm resulting in death

2) extreme emotional disturbance (heat of passion) - D must raise and prove affirmative defense of emotional disturbance

3) unjustifiable abortion act - person performs aboriton upon womam more than 24 months pregnant, and act causes death of woman

Front 61

What is NY - 2nd degree murder?

Back 61

1) reckless murder (conscious disregard of a substantial risk, which causes death of another person)

Intoxication is not a defense.

2) where person commits abortion act on woman which causes her death, unless such act is justifiable by statute.

3) aiding in suicide - D used duress or deception on the victim, then the crime qualifies as second degree murder

Front 62

What is NY - criminally negligent homicide?

Back 62

where one causes death of another due to failure to perceive substantial and unjustifiable risk of death. D's conduct must have been culpable (failure to perceive risk is not enough) and death producing event forseeable.

Generally applies to negligently driving automobiles.

Front 63

In NY, can you charge both intentional murder and depraved indifference?

Back 63

no, must be one or the other.

Front 64

What is required for Felony Murder (that is felonies inherently dangerous - burglary, arson, rape sodomy)?

Back 64

1) D must be guilty of underlying felony (any defenses to that felony apply to felony murder)

NOTE - IN NY, FELONY MURDER CONVICTION IS POSSIBLE EVEN IF UNDERLYING FELONY IS DISMISSED, D IS ACQUITTED, OR CHARGE IS NOT SUBMITTED TO JURY WHERE THERE IS SUFFICIENT EVIDENCE TO SUPPORT CONCLUSION THAT D COMMITTED CRIME

2) felony must be distinct from killing itself

3) deaths must be forseeable result of felony (min: felony is malum in se)

4) deaths caused while fleeing from felony are murder, but once D reaches a point of temporary safety (his home, etc), no more felony murder.

4) D is usually not liable for the death of a co-felon b/c of resistance of victim/cop

Front 65

What are NY's affirmative defenses to felony murder

Back 65

1) D did not commit/aid in commission of murder AND

2) D was not armed with a deadly weapon, AND

3) D had no reasonable belief that any participant was armed with a deadly weapon, AND

4) D had no reason to believe anyone intended to engage in conduct likely to result in deat.

D must raise as an affirmative defense, and prove all four by a preponderance of the evidence.

Front 66

What is first degree kidnapping in NY

Back 66

Abducting someone and

1) intent to compel person to pay ransom, OR

2) restraint of victim for more than 12 hours with intent to inflict physical injury or sexual violation abuse, accomplish or advance a felony, terrorize victim or 3rd person or interfere with performance of govt./political function, and

3) the victim dies during abduction or before safe return. Deaths is presumed eventually.

Front 67

What is second degree kidnapping in ny

Back 67

abducting someone

Front 68

are there any affirmative defenses to kidnapping

Back 68

yes - where victim's is relative and D's sole purpose is to assume control of the vicitm.

Front 69

What are the requirements for rape?

Back 69

1) unlawful carnal knowledge without effective consent.

NOTE -
1) prosecutors must prove lack of consent in prima facie case
2) slightest penetration completes crime of rape
3) Lack of Consent requires
a) actual force, or
b) threats of great and immediate bodily harm,
c) victim is incapable of consent due to intoxication, mental condition or uncsciousness, or 4) victim is fraudulently lead to believe act is not intercourse.

Front 70

What is statutory rape?

Back 70

a SL crime. consent of victim is no defense. mistake of fact (age) is no defense.

Front 71

What is larceny?

Back 71

1) requires wrongful taking (obtaining control, slightest movement of property will do)

2) and carrying away

3) of tangible personal property (no realty/services/intangible instruments, e.g. stocks)

4) of another with possession

5) by trespass (w/o consent or w/ consent due to fraud)

6) with intent to permanently deprive owner's interest in property.

NOTE - if D treats property in a way that substantially subjects it to loss, that is enough.

BUT taking property with a belief that it is yours, is not enough.

Larcenists get possession only, not title

Front 72

What is larceny by trick?

Back 72

Use fraud to get possession.

[not title, thats false pretenses]

Front 73

What is embezzlement?

Back 73

1. Fraudulent conversion (dealing with property in manner inconsistent with arrangement by which D has possession)

2. Of personal property

3. of another

4. By person in lawful possession of that property.

So, possession is lawful, conversion is not.

Doesn't require carrying away; nor a benefit to self.

Embezzler gets possesion only, not title.

Front 74

What is false pretenses?

Back 74

1. obtaining title
2. to personal property of another by
3. an intentional false statement of PAST OR EXISTING (present) fact
4 with intent to defraud the other.

(E.g. D persuades owner of property to convey title)

NOTE - a misrepresentation as to what will happen in the future, is extortion.

Front 75

What is Extortion?

Back 75

1. Obtaining property
2. by means of threat to do harm or to expose information (blackmail)

NOTE
1. doesn't require taking anything from person/presence
2. threats of future harm, not imminent
3. in some states crime is completed when threats are made. No need to obtain property.

Front 76

What is robbery?

Back 76

1. All elements of larceny
a. wrongful taking
b. of personal property
c. from the other person's person or presence (including anywhere in his vicinity)
d. with intent to permanently deprive him of it

PLUS

2)By force OR threat of immediate force or physical injury to victim/family/another person in presence.

NOTES
1. imminent harm, not future harm
2. violence=taking necklace off someone, not pick pocket
3. presence is braodly drawn and will include tying X up in barn and taking things from his house

Front 77

What constitutes Larceny in NY

Back 77

1. larceny by trespassory taking
2. larceny by trick
3. false pretenses
4. embezzlement

includes real property and computer data and programs

NOTE - in ny it is an affirmative defense to larceny that D appropriated property under a claim of right made in good faith.

Front 78

what acts are larceny in ny

Back 78

1. acquiring lost or mislaid property
2. issuing a bad check
3. false promise
4. extortion
5. embezzelement
6. appropriating leased or rented items.

Front 79

what is robbery in ny

Back 79

involves larceny plus either criminal mischief, attempted assault, or assault.

property must be of the kind subject to larceny, including real proeprty. taking need not be in the presence of the other person (you can assault someone some distance from property, then take property.

Front 80

NY Rule - What is first degree robbery?

Back 80

1) D causes a nonparticipant serious physical injury, or

2) D is armed or threatens use of a dangerous instrument or displays what appears to be a firearm. Victim must reasonably perceive from the D's actions that gun is present (words are not enough)

NOTE - affirmative defense exists if alleged firearm displayed is not loaded, but this only reduces crime to 2nd degree robbery.

Front 81

NY Rule - What is Second degree robbery?

Back 81

1) D is aided by another who is actually present

2) D or another participant physically injures a nonparticipant.

3) there is a threat, whatever its nature, of immediate use of physical force (e.g. display of firearm)

Front 82

NY Rule - What is Third degree robbery?

Back 82

forcibly stealing property (no physicla injury, nor firearms.

Front 83

What is CL Burglary

Back 83

1) requires a breaking (either actual, involving some force, however slight; or constructive through threats or fraud)

2) and an entering

3) of a dwelling house (Structure used for sleeping purposes - not commercial or barn)

4) of another

5) at nighttime

6) with intent to commit a felony inside.

*To be burglary, felony need not be carried out.

**Actual breaking -- an open door/window is ont enough; but opening an interior door (dining/kitchen) is breaking.

Front 84

What is burglary in NY, how is it distinct.

Back 84

1) includes remaining unlawfully as well as entry
2) incorporates elemtn of breaking into entering
3) does not limit "intent" to commission of a felony, but embraces intent to commit any crime
4) except as an element for grading purposes, does not require a building to be a dwelling,
5) does not require the act to be committed at night.

Front 85

NY - What is third degree burglary?

Back 85

1) knowingly entering or remaining unlawfully
2) in a building
3) with intent to commit a crime therein

Front 86

NY - what is second degree burglary?

Back 86

third degree is aggravated to second degree by
1) the building being a dwelling
2) D injured a nonparticipant
3) D is armed

Front 87

NY - what is first degree burglary?

Back 87

1) burglary of a dwelling (includes cars) AND any of the aggravating factors of second degree burglary (nonparticipant injured or burglar was armed)

Front 88

What is arson?

Back 88

1) malicious (intentional or with reckless disregard of an obvious risk

2) burning (requires some damage to structure caused by fire).
a) only applies to burnings/fires not explosions or smoke/water damage unless causes fire
b) does not require destruction/significant change, charring is sufficient (blackening by smoke or discoloration by heat/scorching is not)
c)must be a material waswting of a fiber of building, not carpet, but building itself

3) of a dwelling