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88 Cards in this Set

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What crimes still merge? (can't be guilty of both)
Solicitation and Attempt.

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

Conspiracy does not merge.
What offenses are specific intent crimes?
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
What is Malice?
Reckless disregard for an obvious or high risk that a particular harmful result will occur.
what crimes are malice crimes
arson and CL murder.
What is a crime with general intent require?
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
What is required to be an accomplice?
Aid/encourage principal with the intent that crime encouraged be committed

Knowledge that crime will be committed is not enough.
What is the scope of liability of an accomplice
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
Who is not liable as an accomplice?
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.
What are NYs special rules pertaining to accomplices?
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
What is solicitation?
Inciting, counseling, advising, urging, or commanding another to commit a crime with the INTENT that the person solicited commit the crime
Can you be liable for solicitation if crime wasn't committed, or couldn't have been successful?
Can you renounce or withdraw from a solicitation?
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
How does solicitation merge?
Can be held liable for solicitation, attempt, conspiracy or Act, but NOT
Solicitation and Act
and not
Solicitation and Attempt
What is a conspiracy?
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!
What are the elements of conspiracy?
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.
What is the scope of liability for conspiracy?
EAch conspirator is liable for all crimes of co-conspirators committed in furtherance of conspiracy that were FORSEEABLE.
What is the NY limitation on the scope of liability for a conspiracy?
PErson who merely conspires to commit a crime, and does not act, is NOT liable for substantive offenses of others.
What are the defenses to conspiracy?
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).
Can withdrawal be a defense to crimes committed in furtherance of the conspiracy?
YES, including the substantive target crime of the conspiracy.
What must a conspirator do to withdraw?
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
What must a conspirator do to withdraw in NY?
1) renounce conspiracy

2) prevent commission of crime
What is attempt
Act, done with intent to commit a crime, that falls short of committing a crime.
What mens rea is required for attempt
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.
What are the elements of attempt?
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.
What tests are used to determine whether an act was sufficient to constitute attempt?
1) proximate cause/dangerously close


2) substantial step test
What are defenses to attempt
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.
Does attempt merge
yes, D cannot be found guilty of attempt and completed crime.
In a criminal case, what standard is used to judge all elements of a crime?
beyond a reasonable doubt
What is the distinction b/w affirmative defenses and defenses in NY?
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).
What categories of defenses are there?
!) negating criminal capacity

2) exculpation and justification
What defenses negate criminal capacity?

intoxication (voluntary and involuntary)

what defenses serve as exculpation, justifications?
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


What crimes is insanity a defense to?
all crimes, including specific intent.
What are the tests used for insanity?
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.
What test does ny use for insanity
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.
When can intoxication be used as a defense
whenever it negates one of the elements of a crime.
What is voluntary intoxication?
intentional taking, w/o duress, of any substance known to be intoxicating.
when is voluntary intoxication a defense
only to specific intent/knowledge crimes if intoxication prevented D from formulating necessary intent.

What is involuntary intoxication
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
what crimes is involuntary intoxication a defense
all crimes, including SL.
What is the Defense of Defense of others?
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.
What is the rule for defense of a dwelling?
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
What is the right to self-defense
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.
What is the minority rule/rule in NY regarding the use of deadly force in self defense?
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.
what is the rule for self-defense if victim was intital aggressor?
can't use self-defense if initial aggressor, UNLESS
1) withdraws, AND
2) stops and communicates withdrawal to original victim
What is duress?
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
what crimes is duress a defense to on the MBE?
duress is a defense to all crimes except Homicide.
what crimes is duress a defense to on the NY?
all crimes, including homicide.

D must raise this type of defense (AFFIRMATIVE DEFENSE) and prove it by preponderance of the evidence.
What are the offenses against the person?
1) assault
5)sex offenses
what is battery
completed assault (general intent crime, never SL).

if there's a touching, its a battery.

what is an assault
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)
What categories exist for CL homicide?
1) murder
2) voluntary manslaughter
3) involuntary manslaughter
What is murder
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
what is voluntary manslaughter
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
what is involuntary manslaughter
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)
what are ny's categories for homicide?
1) 1st degree murder
2) 2nd degree murder
3) manslaughter in 1st degree
4) manslaughter in 2nd degree
5) negligent homicide
What is NY - 1st degree murder?
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.
What is NY - 2nd degree murder?
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
What affirmative defenses exist for intentional murder in NY?
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
What is NY - 1st degree Manslaughter
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
What is NY - 2nd degree murder?
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
What is NY - criminally negligent homicide?
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.
In NY, can you charge both intentional murder and depraved indifference?
no, must be one or the other.
What is required for Felony Murder (that is felonies inherently dangerous - burglary, arson, rape sodomy)?
1) D must be guilty of underlying felony (any defenses to that felony apply to felony murder)


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
What are NY's affirmative defenses to felony murder
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.
What is first degree kidnapping in NY
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.
What is second degree kidnapping in ny
abducting someone
are there any affirmative defenses to kidnapping
yes - where victim's is relative and D's sole purpose is to assume control of the vicitm.
What are the requirements for rape?
1) unlawful carnal knowledge without effective consent.

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.
What is statutory rape?
a SL crime. consent of victim is no defense. mistake of fact (age) is no defense.
What is larceny?
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
What is larceny by trick?
Use fraud to get possession.

[not title, thats false pretenses]
What is embezzlement?
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.
What is false pretenses?
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.
What is Extortion?
1. Obtaining property
2. by means of threat to do harm or to expose information (blackmail)

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.
What is robbery?
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


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

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
What constitutes Larceny in NY
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.
what acts are larceny in ny
1. acquiring lost or mislaid property
2. issuing a bad check
3. false promise
4. extortion
5. embezzelement
6. appropriating leased or rented items.
what is robbery in ny
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.
NY Rule - What is first degree robbery?
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.
NY Rule - What is Second degree robbery?
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)
NY Rule - What is Third degree robbery?
forcibly stealing property (no physicla injury, nor firearms.
What is CL Burglary
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.
What is burglary in NY, how is it distinct.
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.
NY - What is third degree burglary?
1) knowingly entering or remaining unlawfully
2) in a building
3) with intent to commit a crime therein
NY - what is second degree burglary?
third degree is aggravated to second degree by
1) the building being a dwelling
2) D injured a nonparticipant
3) D is armed
NY - what is first degree burglary?
1) burglary of a dwelling (includes cars) AND any of the aggravating factors of second degree burglary (nonparticipant injured or burglar was armed)
What is arson?
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