Criminal Law Ny Distinctions

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NY Classification of Crimes: Felonies and Mistemeanors

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Felonies - offense for which death or a prision sentence of more than one year may be imposed

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NY Accomplice Liability: Withdrawal

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Withdrawal is an affirmative defense to accomplice liability for the substantive offense, other than an attempt, if the accomplice:
(1) voluntarily and completely renounces his criminal purpose
(2) withdraws prior to commission of the offense;and
(3) makes a substantial effort to prevent the crime.

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NY Accomplice Liability: Corroboration

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A person may not be convicted soley upon the uncorroborated testimony of an accomplice, except in police disciplinary hearings.

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NY Solicitation: Withdrawal as a Defense to Solicitation AND Conspiracy

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Withdraw is an affirmative defense to solicitation and conspiracy if defendant:
(1) voluntarily and completely renounced; and
(2) prevented commission of the object crime.
(If object crime does not occure, the D has a defense to the anticipatory crimes only if his efforts prevented the commission of the object crime)

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NY Conspiracy: Unilateral (MPC) Approach

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A single D may be convicted of conspiracy. There is no defense to a conspiracy charged based on co-conspirator's irresponsibility, incapacity or failure to have requisite culpability. You can conspire with a police officer.

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NY Conspiracy: Degrees of Conspiracy

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In NY six degrees of conspiracy exist:
(1) Sixth Degree Conspiracy = 5th degree Solicitation: With the intent that another person engages in conduct constituting a crime, one solicits, requests, commands, imporutnes or otherwise attempts to cause the other person to engage in such criminal conduct
(2) Fifth Degree Conspiracy = 4th Degree Solicitation: Conduct urged is a felony; or where D is over 18, the other person is under 16 years of age and the conduct urged is a crime.
(5) Second Degree Conspiracy = 2nd Degree Solicitation: Conduct urged is a class A felony.

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NY Responsibility and Criminal Capacity: Defenses and Affirmatice Defenses

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Defense - must be disproved by the prosecution beyond a reasonable doubt.
Affirmative Defense - must be raised and proved by the defendant by a preponderance of the evidence

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NY Responsibility and Criminal Capacity: Insanity

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NY insanity (affirmative) defense is more lenient that the M'Naghten rule but not as generous as the MPC standard. A 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 the nature and consequence of such conduct or that such conduct was wrong.

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NY Justification: Non-Deadly Force - Self-Defense

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A person may use physical force on another to the extent he reasonably believes such force is necessary to defend himself or another from the use or imminent use of unlawful force unless:
(1)with intent to cause physical injury to another, he provoked the use or imminent use of such force;
(2) he was the initial aggressor

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NY Justification: Deadly Force - Retreat

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A person may not use deadly force if he can safely retreat.
Retreat is not required if the person:
(1) is in his dwelling and is not the initial aggressor;
(4) believes the other person is committing burglary or arson.

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NY Assualt and Battery: Battery

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There is no crime of "battery" in NY; there is only the crime of "assault" which encompasses common law battery.

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NY Homicide: First Degree Murder

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Note: The NY first degree murder statute can be most simply summarized as "intentional murder with special circumstances."
D must be over 18 and commit murder in one of the following ways:
(1) intended victim was a police officer ... engaged in official duties at the time of the killing and D knew or should have known that the victim was such;
(4) D committed murder for hire;
(5) the victim (a non-participant in the crime), was intentionally killed by the D during the course of one of the following felonies or immeadiate 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;

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NY Homicide: Second Degree Murder

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Three forms of second degree murder exist:
(1) intentional murder (other than first degree murder);
(2) highly reckless murder; and
(3) felony murder.

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NY Homicide: Intentional Murder

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When a person, with intent to cause the death of another, causes the death of such person or of a third party (transferred intent).

Two affirmative defenses can exculpate D:
(1) extreme emotional disturbance ("heat of passion")

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NY Felony Murder: Second Degree Murder: Felony Murder

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Applies to all participants. The enumerated felonies are burglary, robbery, arson, kidnapping, ... .

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NY First Degree Manslaughter: Generally

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(1) Serious bodily harm resulting in death (similar to MS involuntary manslaughter)
(2) Extreme emotional disturbance (heat of passion) D must raise and prove the affirmative defense of emotional disturbance. (similar to MS voluntary manslaughter)

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NY Second Degree Manslaughter: Generally

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(1) Reckless
Conscious disregard of a substantial risk, which causes the death of another person. Intoxication is not a defense.

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NY Kidnapping: First Degree Kidnapping

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(Any degree Kidnapping qualifies for felony murder)

(First degree kidnapping qualifies for first degree murder)

When a person abducts another:
(1) with the intent to compel third person to pay ransom or to act or refrain from acting;or
(2) he restrains the victim for more than twelve hours with intent to inflict physical injury ... ; or
(3) the victim dies during the abduction or before safe return.

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NY Kidnapping: Second Degree Kidnapping

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Abducting someone

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NY Sex Offenses: First Degree Rape of Sodomy

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(First Degree Rape or Sodomy qualifies for first degree murder or felony murder)

Committed when any person engages in sexual intercourse or deviate sexual intercourse with any other person:
(3) by forcible compulsion.

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NY Sex Offenses: Corroboration

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D 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 attempt to have intercourse, deviate intercourse, or sexual contact with the victim; and
(2) connect the D with the commission of the offense or attempted offense.
However, by staute, NY no longer requires corroboration in cases of forcible rape, sodomy, or sexual abuse.

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NY Property Offenses: Larceny

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NY law incorporates four common law crimes against property"
(1) larceny by trespassory taking;

By statute, the following acts are larceny:
(2) issuing a bad check;

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NY Property Offenses: Degrees of Larceny

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Larceny is graded by the value of the property taken and in some instances by the manner in which acquired.

Class D Felony, grand larceny, third degree: property worth more than $3,000.

Class C Felony, grand larceny, second degree: property worth more than $50,000 or extortion by fear of:
(1) physical injury;
(2) damage to property; or
(3) defendants abuse of his powers as a public servant.

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NY False Pretenses: Bad Check Legislation

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Note: If tested, most likely there will be a Commercial Paper issues as well.

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NY Robbery: First Degree Robbery

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(Any degree of robbery qualifies for first degree murder or felony murder)

Elements:
(1) defendant causes a nonparticipant serious physical injury; or
(2) D is armed or threatens use of a dangerous instument or displays what appears to be a firearm. Victim must reasonably perceive from D actions that a gun is present; words alone are not enough.

Affirmative Defense exists where alleged firearm displayed is not loaded, but only reduces the crime to a second degree robbery.

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NY Robbery: Second Degree Robbery

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(Any degree of robbery qualifies for First Degree Murder or Felony Murder)

Elements:
(1) D is aided by another who is actually present; or
(2) D or another participant physically injures a non-participant; or
(3) there is a threat, whatever its nature, or immediate use of physical force (display or firearm)

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NY Robbery: third degree robbery

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forcibly stealing property.

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NY Burglary: In General

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(Any degree qualifies for felony murder)

Distinctions from common law burglary:
(1) includes remaining unlawfully, as well as entry;
(2) incorporates the element of breaking into entering;
(3) does not limit the "intent" to the commision of a felony, but embraces an intent to commit any crime;
(4) except as an element for grading purposes, does not require a building to be a dwelling; and
(5) does not require the act to be committed at night.

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NY Burglary: Third Degree Burglary

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(Any Degree of Burglary qualifies for Felony Murder)

elements:
(1) knowingly entering or remaining unlawfully;
(2) in a building; and
(3)with the intent to commit a crime therein.

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NY Burglary: Second Degree Burglary

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(Any Degree of Robbery qualifies for felony murder)

(Second degree burglary qualifies for first degree murder)

Third degree burglary aggravated by:
(1) the building being a dwelling;
(2) D injuring a non-participant; or
(3) the D being armed.

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NY Burglary: First Degree Burgary

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(Any Degree of Robbery qualifies for felony murder)

(Second degree burglary qualifies for first degree murder)

Burglary of a dwelling (including motor vehicles) with any of the aggravating factors of second degree burglary.
If display of a firearm is part of the charge, D has an affirmative defense if he can show that the instrument was not a weapon or the weapon was not loaded.

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NY Arson: Third Degree

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(Any degree of arson qualifies for felony murder)

elments:
(1) intentionally damaging a building or motor vehicle,
(2) by intentionally starting a fire or causing an explosion.

Affirmative defense exists if:
(1) all persons with possessory or proprietary interest in the property consented; and
(2) the D's intent was to cause damage for a lawful purpose; and
(3) the D had no reasonable ground to fear for the safety of another person or to fear damage to another building or motor vehicle.

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NY Arson: Second Degree

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(Any degree of arson qualifies for felony murder)

Elements:
(1) intentionally damaging a building or motor vehicle
(2) by intentionally starting a fire,
(3) with knowledge that a nonparticipant is present in the building or motor vehicle or circumstances are such that a person's presence is a reasonable possibility. The nonparticipant need not be injured.