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47 Cards in this Set

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ARREST/SEARCH AND SEIZURE
Under the 4th Amendment, a person has the right to be free from unlawful search and seizures by the government. Police may make a "request for information" anytime except on "whim or caprice," and a "stop and inquire" if they have a "founded suspicion that criminal activity is afoot," and a "stop and frisk" if they have "reasonable suspicion" the defendant has or is committing a crime. However, the stop must not be arbitrary and capricious and the stop must be for a reasonable time. A stop of a vehicle may be conducted properly so long as the police have some reasonable and articulable reason for the stop. The reasonable suspicion required for a valid stop does not have to rise to the level of probable cause to be valid under New York penal law’s sliding scale of authority for seizures (i.e. seizure in New York includes police pursuit). Seizure under the 4th Amendment includes arrests. For an arrest to be proper under the 4th Amendment it must be made pursuant to a warrant unless it is conducted in a public place and the police officer has probable cause. Probable cause arises when facts and circumstances within the officer's knowledge are sufficient to warrant a prudent person to believe a suspect has committed, is committing, or is about to commit a crime (totality of the circumstances indicate the person has committed a crime). Police may act on another officer's good faith determination of probable cause based on observation of facts.

Under New York law, an officer cannot arrest someone in or at their home without an arrest warrant or unless exigent circumstances exist (i.e. if there is an emergency, the police are in hot pursuit of a felon or fear the loss of evanescent evidence). Under these limited circumstances, the Police may enter a home without a warrant because it is necessary to prevent danger to person or property. If these circumstances are absent, an officer may not go to a person's home to arrest them without a warrant. A warrant requires three things: 1) probable cause, 2) signed by a neutral and detached magistrate and 3) specificity as to the things and places to be searched.
SEARCH WARRANT
In order for a search warrant to be valid, there must have been probable cause (information sufficient that a reasonably prudent person would believe that it is likely that evidence of illegality will be found at a particular location) to issue the warrant, the warrant must state with particularity the place to be searched and the item to be seized, and it must be issued by a neutral and detached magistrate. These requirements stem from the 4th Amendment’s right to be free from unreasonable searches and seizures. The 4th Amendment, as applied to the states through the 14th Amendment, protects individuals from unreasonable searches and seizures by the government.

In New York, if the information underlying the affidavit came from an informant, a search warrant must demonstrate (1) the veracity or reliability of the source of information and (2) state the basis for the informant’s information. This stringent standard is called the Aguilar-Spinelli Test. If the police verify the facts through their own inquiry, the Aguilar-Spinelli Test used in New York is satisfied (basis for facts and reliability).

If property is abandoned then the police may search it without a warrant because the owner of the property has relinquished ownership of the property and thereby has no reasonable expectation of privacy in the abandoned property.
SEARCH WARRANT/HOME
Generally, a search warrant must be obtained to search a private home, unless there is a valid exception, such as pursuit of a fleeing felon, evanescent evidence or consent. Consent can only be given by a person with equal access to the premises to be searched. Consent is not valid unless the officer reasonably believes that the person giving consent had authority to grant consent. However, if there were exigent circumstances justifying the warrantless search, then it may be valid (ex. the smell of a rotting, decomposing body from a locked apartment). This qualifies as evanescent evidence because it will disappear quickly.

One other exception is if the police are issued a valid search warrant for a suspect’s home and they search the entire home not realizing that someone besides the person named in the warrant also lives at the address given in the warrant. If the police find illegal items in the unnamed person’s part of the home, the court will admit the evidence regardless of the fact that the second person was not named in the warrant.
SEARCH OF CAR
In New York, the police have a "sliding scale of police authority" to detain people while investigating a crime. The police can stop a Defendant's car, and can briefly detain a Defendant if they had a "reasonable and articulable suspicion" that Defendant had committed, was committing, or is about to commit a crime. Out of a concern for their safety, the police had the right to order Defendant out of the car to conduct a "protective frisk" for weapons (again, with the reasonable belief he was armed), and if based on the patdown of his outer clothing they felt something they reasonably believed to be a weapon, they could reach in and remove it. Once stopped, the police have a right to search Defendant's "wingspan", or the areas into which Defendant could reach to grab a weapon, if they had reason to believe he was armed. This would generally include most areas of the passenger compartment, but not the trunk.

However, once a Defendant is out of the car, the police cannot open up closed containers in the passenger compartment to search for weapons, nor are they entitled to open Defendant's glove compartment to search for weapons. Such a search is beyond the scope of the police authority.
DEFECTIVE WARRANT
Many states employ the "good faith" exception to the warrant preference rule, under which illegally seized evidence may nonetheless be admissible if the police had a good faith reason to rely on the warrant. However, New York does not recognize the good faith exception. If a warrant is defective, the police in New York may not rely in good faith on it, as is allowed by the U.S. Constitution. New York’s CPL denies police the good faith reliance on a defective warrant and will exclude the fruits of the warrant (the mandated remedy for 4th Amendment illegal search and seizure). Therefore, if the warrant is invalid or if evidence was obtained in violation of the warrant, the evidence seized will be inadmissible, unless one of the recognized exceptions to the warrant preference rule applies.
WARRANTLESS SEARCH EXCEPTIONS
The Fourth Amendment of the Constitution protects citizens against unlawful searches and seizures. When a search or seizure is conducted in violation of a defendant’s constitutional rights, the evidence gathered pursuant to that search normally cannot be entered into evidence against that defendant. Search warrants are normally required in order to lawfully search an individual and seize evidence or weapons. A search will normally be considered unreasonable if it is not conducted pursuant to a validly executed search warrant. However, a police officer may search an individual without a warrant and seize evidence, weapons and contraband if the search falls under one of the warrantless search exceptions. These exceptions are: (1) search incident to a lawful arrest, (2) automobile exception, (3) plain view and plain feel, (4) consent, (5) stop and frisk, (6) extraordinary circumstance plus probable cause (hot pursuit & evanescent evidence).

A police officer may search a person whom he has lawfully arrested by doing a protective pat down for anything which might be a weapon. In New York, a police officer may not seize something unless it feels like a weapon without probable cause under the warrantless exception of a search incident to a lawful arrest. If the suspect is arrested in an automobile, the “wingspan” includes the passenger compartment. The police officer can also search any containers and even concealed spaces where he has reason to believe (i.e., through the “plain feel” of a weapon through a suspect’s pocket) that a weapon or contraband may be found, and may seize any such weapon or contraband. The rationale for this is that one has a lesser reasonable expectation of privacy in one’s automobile. However, once a Defendant is out of the car, the police cannot open up closed containers in the passenger compartment to search for weapons, nor are they entitled to open Defendant's glove compartment to search for weapons. Such a search is beyond the scope of the police authority.
FRUIT OF THE POISONOUS TREE
In order for a defendant to object to the admissibility of evidence, it must first be shown that the defendant has a valid 4th Amendment right. To have a 4th Amendment right, the action to which the defendant is objecting must have been committed by a government agent or a private person acting on behalf of the government, and the defendant must have a reasonable expectation of privacy in the item seized, as well as standing to object to the object’s admission.

Under the exclusionary rule (a court-created rule to help enforce the 4th Amendment), evidence can be suppressed if it was obtained illegally. For example, if it was obtained without a search warrant. Moreover, any "fruits" of the illegal search can also be suppressed, if it is shown that the police did not have an independent source for the secondary evidence (for example, if the police would have discovered the evidence anyway, the evidence will not be considered "fruit").

In New York the police cannot use "good faith" as an excuse, so we would need to find another exception in order to admit the evidence. The exceptions available are: search incident to lawful arrest, automobile exception, plain view and plain feel, consent, stop and frisk, and hot pursuit & evanescent evidence. For example, when executing a valid search warrant, the police may seize items in the "plain view" that are "plainly contraband".
WIRETAP/VIDEO SURVEILLENCE
Generally, a warrant must be issued before the government can place a wiretap on one’s phone or eavesdrop into one’s conversations. Like search warrants, wiretap warrants must be obtained with probable cause and be specific as to the persons and communications which will be tapped. This is governed by the 4th Amendment, through the 14th Amendment. The exception to the rule is that every person must be wary of the "unreliable ear" (the possibility that the person to whom is talking is bugged or that the person will consent to the police’s eavesdropping). The warrant must be issued by a neutral and detached magistrate, on the basis of information giving rise to probable cause. The affidavit on which it is based must establish the reliability and veracity of the person and the basis for his information. In addition, a warrant for video surveillance, wiretaps, or eavesdropping has a heightened requirement. The affidavit must also name the suspects expected to be overheard, describe with particularity the conversations to be targeted; and include a time limit. A wiretap warrant is good for 30 days. Beyond that point, the originally issued warrant is ineffective and the police are conducting an illegal search and the evidence must be excluded. Within 90 days after the termination of the warrant, the party whose conversations were seized must be informed.
SOLICITATION
A person can be found guilty of solicitation if he asks someone to commit a crime. The crime of solicitation is complete when the asking is done. Refusal or legal incapacity of the person asked is not a defense. However, if the solicitor withholds certain facts from the other party so that the solicited acts, under the circumstances as believed by the party solicited, would not be criminal, then a criminal solicitation has not occurred; the solicitor has not incited the other person to commit a crime, but may have committed an attempt through his scheme to have an innocent agent act for him. In NY, solicitation is a separate offense, independent of the substantive crime committed (not necessarily incidental to the commission to the substantive crime)
CONSPIRACY
A person can be found guilty of conspiracy if he (1) sought an agreement with another to (2) work together, with intent to carry out a crime and (3) made some overt act in furtherance of the plan or agreement. Conspiracy requires an agreement to commit an illegal act, and an overt act in furtherance of the conspiracy. New York has adopted the Model Penal Code approach to conspiracy known as the unilateral theory of conspiracy, so that the other party's acquittal does not preclude a conviction for conspiracy. Under this theory, it takes only one guilty mind to conspire. This allows a plaintiff to conspire with a police officer even though no actual agreement or intent to commit the crime exists between the two. As statements made in furtherance of a conspiracy or solicitation, the truth of statements is irrelevant. Just the mere acts of saying the words leaves the declarant open to prosecution and are legally operative.

When co-conspirators are tried together, one may not be found guilty if the other is acquitted. When tried together, it's an all or nothing proposition. Either both are acquitted or both are convicted. However, when the defendants have separate trials, their guilt or innocence is determined totally independently. It is possible for one to be acquitted while the other is found guilty. Note: Under the NY Penal Law, a person cannot be convicted solely on the testimony of a co-conspirator. The testimony of a co-conspirator must be corroborated.

In NY, renunciation is an affirmative defense to conspiracy. The conspirator must: 1) Voluntarily renounce the conspiracy AND 2) Prevent commission of the object crime. If object crime occurs, the defendant has absolutely no defense to conspiracy. In NY, if the defendant is solely a conspirator and does not participate in the execution of the crime, he is not liable for the substantive offense committed by the co-conspirator.
ACCOMPLICE
A person who aids, counsels, or encourages the principal in committing a crime is also guilty of the crime as an accomplice. In New York, an accomplice is liable for all the acts of his accomplices that were foreseeable. Accomplice liability extends to any crimes foreseeable from the intended crime and the initial crime itself. Liability attaches when an accomplice takes a substantial step in the completion of the crime. New York law looks to see if the accomplice's act was a step in furtherance of the completion of the crime and they look for some overt act. An accomplice may be charged with the robbery because his act of being the ``lookout''. An accomplice may be held liable for the substantive offenses of the person actually committing the crime. Note: Under the NY Penal Law, a person cannot be convicted solely on the testimony of an accomplice. The testimony of an accomplice must be corroborated. In NY, withdrawal is an affirmative defense to accomplice liability. The accomplice must: 1) voluntarily renounce AND 2) Withdraw prior to the crime AND 3) Make an effort to prevent the crime.
CRIMINAL FACILITATION
Criminal facilitation is knowingly aided in the commission of a felony, but does not have the requisite intent to be an accomplice. The elements of criminal facilitation are (1) aiding, abetting of a felony, (2) with knowledge of, but not intent, to commit the felony. A facilitator need only believe that it was probable that he was rendering aid. A facilitator may not be convicted on uncorroborated testimony of the person facilitated. Withdrawal is permissible if the defendant (accused of facilitation) both withdraws and makes a substantial effort to stop the crime.
ATTEMPT
A person is guilty of attempt when, with intent to commit a crime, he takes a "substantial step" toward committing that crime - a step "beyond mere preparation". Factual impossibility (i.e., a gun jamming) does not absolve a defendant of the responsibility to the crime of attempted murder. The affirmative defense of abandonment can be raised if the defendant: 1) renounced and 2) avoided the completion of the crime.
1ST DEGREE MURDER
Under the NY Penal Law, first degree murder is intentional murder with special circumstances. Special circumstances include the killing of a police officer, a witness, a judge, serial murder and other circumstances. Pursuant to the New York State penal statute, intentionally causing the death of a person during one of several enumerated felonies constitutes First Degree murder: Robbery (any degree), Burglary (first or second degree), Kidnapping, Arson, Rape, Sodomy, or Sexual Abuse, Escape or Attempted Murder in the second degree
2ND DEGREE MURDER
Under the NY Penal Law, a person is guilty of murder in the second degree when, with the intent to cause the death of another, he causes such death. There are three forms of second degree murder: (1) intentional murder (other than first degree murder); (2) highly reckless murder; and (3) felony murder. Intentional Murder occurs 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 the defendant: (1) extreme emotional disturbance ("heat of passion"); and (2) aiding a suicide. These defenses mitigate the crime so that defendant may still be prosecuted for manslaughter. Highly reckless murder occurs when, 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 the death of another person. Force directed at the victim but not intended to kill may suffice for conviction. No crime of attempt exists for reckless murder because no intent is involved. The crime of (second degree) felony murder arises where the defendant causes the death of a non-participant during the commission of an enumerated felony or during the immediate flight therefrom. A felony murder is committed when a defendant commits a burglary, robbery, kidnapping, escape of custody, arson, rape or sodomy or sexual abuse. The prosecution must prove the crime beyond a reasonable doubt in order to sustain a guilty verdict. In New York even where the death results from the foreseeable actions of someone other than the defendant or an accomplice the defendant will be held responsible. In addition, transferred intent can apply. The doctrine of transferred intent provides that if one intends to kill one person, and mistakenly kills another instead, the intent to kill the first person is transferred to the act towards the actual victim. Legal impossibility is a defense to 2nd degree murder (person already dead), but you can be found guilty of Attempted Murder 2nd Degree.
1st DEGREE MANSLAUGHTER
Under the NY Penal Law, a person is guilty of manslaughter in the first degree when, with intent to cause serious physical injury to another person, he causes the death of such person. First degree manslaughter requires: (1) Serious bodily harm resulting in death (this crime is similar to MS involuntary manslaughter), or (2) Extreme emotional disturbance (heat of passion – the defendant must raise and prove the affirmative defense of emotional disturbance). (this crime is similar to MS voluntary manslaughter) or (3) Unjustifiable abortional act (where a person performs an abortional act (including giving drugs) upon a female pregnant for more than twenty-four weeks and that act causes death of the female).

When killing "in the heat of passion" or "under extreme emotional disturbance", the defendant must show that he killed due to 1) circumstances that would provoke a reasonable person, 2) the defendant was in fact provoked, 3) there was little time between the provocation and the killing such that a reasonable person would not be able to cool off, and 4) defendant in fact did not cool off. Issues as to whether provocation was reasonable are questions of fact for the jury. The jury may consider these issues in deciding whether to convict the defendant of second degree murder or first degree manslaughter (or neither). Extreme emotional disturbance is an affirmative defense. Therefore, unlike a defense (i.e., justification) required to be proved by the prosecution beyond a reasonable doubt, the defense must prove by a fair preponderance of the evidence that defendant was suffering from extreme emotional disturbance at the time of the killing.
2nd DEGREE MANSLAUGHTER
Under the NY Penal Law, second degree manslaughter requires: (1) Reckless (a conscious disregard of a substantial risk which causes the death of another (intoxication is not a defense)); (2) Abortional Act or (3) Aiding in suicide
CRIMINALLY NEGLIGENT HOMICIDE
A person is guilty of criminally negligent homicide when the person fails to perceive a substantial and unjustifiable risk and that failure is a gross deviation from the standard of care that a reasonable, prudent person take in similar circumstances and that conduct causes the death of another. The defendant’s conduct must have been culpable (mere failure to perceive the risk in not enough) and the death producing event foreseeable (i.e. accident while negligently driving a car).
KIDNAPPING
Under the NY Penal Law, Kidnapping occurs when a person abducts another person. Abduction is the restraint of a person with intent to deprive his liberation by secreting or holding him in a place where he is not likely to be found. Kidnapping in the 2nd Degree occurs when you abduct someone. Kidnapping in the first degree (under NY Penal Law) also requires (1) Ransom demand; or (2) Restraint for more than 12 hours with the intent to inflict physical injury or (3) The victim dies.
BURGLARY
One of the enumerated felonies in the penal law is burglary. Under New York Penal Law, burglary requires: 1) entry or unlawfully remaining in, 2) a building, 3) with the intent to commit a crime therein. Note that under common law, the building had to be a dwelling, the entry had to be a break-in, after dark, and the entrant had to have intent to commit a felony. New York Statutory Law is therefore considerably broader than the common law definition. Third degree burglary (under NY Penal Law) arises where the defendant knowingly enters or unlawfully remains behind in a building with the intent to commit a crime therein. Burglary in the second degree (under NY Penal Law) requires one of the three following aggravating elements: 1) the building was a dwelling; 2) the burglar was armed; or 3) someone was injured. First degree burglary (under NY Penal Law) occurs if it is a dwelling and one of the 2nd degree aggravating factors exists. In order to constitute a felony under the felony murder statute, it can be any degree of burglary (for second degree felony murder).
ARSON
At common law, arson was the malicious burning of the dwelling place of another. Dwelling was defined as a place for "overnight" lodging. However, the New York Penal Law has expanded the crime of arson to include buildings, automobiles and motor homes. Third degree arson requires, under the NY Penal Law, the intentional burning of a building or motor vehicle by intentionally setting a fire or causing an explosion. Arson in the second degree consists of 3rd degree arson plus the knowledge someone was inside and would be harmed or circumstances such that a person’s presence is a reasonable possibility (no injury needed). Arson in the first degree consists of the 2nd degree elements plus using an incendiary or explosive device.
ROBBERY
Robbery is the unlawful/trespassory taking or carrying away of property, from the person of another, with the intent to permanently deprive the person of the property by use of force or an apprehension of harm. This offense involves the combination of two other offenses: larceny plus either: criminal mischief, attempted assault or assault. Property must be of the kind subject to larceny, including real property. Taking need not be in the presence of the other person. E.g., assaulting another some distance from the property and then taking the property is robbery. In New York there are three degrees of robbery based on the degree of force exerted. Third degree robbery is the forcible stealing of property. The elements of Second degree robbery are: Elements: (1) defendant is aided by another who is actually present; or (2) defendant or another participant physically injures a non-participant; or (3) there is a threat, whatever its nature, of immediate use of physical force (display of firearm). The elements of First degree robbery are: (1) defendant causes a nonparticipant serious physical injury or (2) defendant is armed or threatens use of a dangerous instrument or displays what appears to be a firearm. Victim must reasonably perceive from defendant's 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 second degree robbery.
LARCENY
The elements of larceny are the taking and carrying away the property of another with intent to permanently deprive. However, for the crime of larceny, the crucial factor regarding whether larceny has been committed is possession of the property not ownership (title). An individual guilty of larceny need only take the property from someone else who has possession and the guilty individual must not be entitled to possession himself.

NY law incorporates four common law crimes against property: (1) larceny by trespassory taking; (2) larceny by trick (same definition as MS); (3) false pretenses (same definition as MS); and (4) embezzlement (same definition as MS). By statute, the following acts are larceny: (1) acquiring lost or mislaid property; (2) issuing a bad check; (3) false promise; (4) extortion (same definition as MS); (5) embezzlement; and (6) appropriating leased or rented items.

Larceny is graded by the value of the property taken and in some instance by the manner in which acquired. Class A misdemeanor, petit larceny: any property (under $1,000). Class E felony, grand larceny, fourth degree: (1) property valued at over $1,000; (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; and (8) a motor vehicle with a value greater than $100. 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) defendant's abuse of his powers as public servant. Class B felony, grand larceny, first degree: property worth more than $1,000,000.
LARCENY BY FALSE PRETENSES
In New York, according to the New York penal law, an indictment for larceny generally requires showing 1) a trespassory taking, 2) and carrying away, 3) of property of another 4) with intent to steal. Larceny by False Pretenses is a crime whereby a person obtains title to property falsely based on an intentional misrepresentation of present or past fact. Under the crime of larceny by false promise, a person can wrongfully obtain possession of property under similar means
EXTORTION
Extortion involves the threatening of an individual with future violence or threat of violence to property if the individual does not pay a certain amount of money. Extortion consists of (1) intent to take property from another, and (2) with the threat of future harm.
ISSUING A BAD CHECK
The elements of any crime are an act, or actus reus; the requisite mental state, or mens rea; the concurrence of the two and harm. Under New York criminal law, issuing a bad check consists of knowingly issuing a check when there are insufficient funds to cover it. The requisite intent for issuing a bad check is specific intent. Specific intent indicates that the defendant had the intent to achieve the prohibited behavior, which in this case, is issuing a check which is not covered by sufficient funds. It is enough that Defendant knew there were insufficient funds in the account when he wrote the check to Plaintiff. Merely hoping that he would have enough money to cover it by the time Plaintiff cashed it does not undermine the intent he exhibited by knowingly writing a check on an account that did contain adequate funds.
RESISTING ARREST
Under New York law, a suspect, in almost all cases, may not use force to evade an arrest, even if such arrest is illegal. This is known as the "no sock" rule. To be convicted of resisting arrest, the following elements must be present: (1) resisting a lawful arrest by (2) someone who the defendant knows is a police officer
ASSAULT
Under common law, assault is a specific intent crime which means that one must have the intent to perform a certain objective in order to be guilty, rather than just the intent to commit the act required under the general intent crimes. New York's crime of assault is more like common law battery. The New York Penal Law states that an assault occurs when one causes a harmful or offensive contact. However, there must be some form of physical injury. Mere petty shoves are not sufficient. The injury need not be great, but some injury is required. In NY, attempted assault is the equivalent of common law assault. Another crime in NY similar to attempted assault is menacing which is intentionally placing or attempting to place another in fear of imminent serious physical injury.
INTENT TO DISTRIBUTE
When the word “knowingly” is used in a penal statute for controlled substances, it is normally construed to mean knowledge only of the possession of the substance, not of the weight. More generally, a court can look to the words of the statute to determine the scope of the word “knowingly” in the statute. “Knowingly” does not require that Defendant know the actual weight of cocaine in his bag, only that he knew he was in possession of cocaine.
CRIMINAL POSSESSION OF STOLEN PROPERTY
The elements of criminal possession are knowingly possessing stolen property, with the intent to use it for the benefit of oneself or persons other than the owner. However, possession of stolen property is not a strict liability crime. The prosecution must prove beyond a reasonable doubt all the elements of criminal possession. Accomplice liability may apply if there is evidence that links the person to the underlying crime.
CRIMINAL POSSESSION OF STOLEN PROPERTY
The elements of criminal possession are knowingly possessing stolen property, with the intent to use it for the benefit of oneself or persons other than the owner. However, possession of stolen property is not a strict liability crime. The prosecution must prove beyond a reasonable doubt all the elements of criminal possession. Accomplice liability may apply if there is evidence that links the person to the underlying crime.
FORGERY
Forgery occurs when an individual signs someone else’s name in order to commit a fraud. Common law forgery is creating a false document with apparent legal significance with intent to defraud (i.e. a deed, but a forged Thomas Jefferson letter is not forgery since it has no legal significance)
LINEUPS
The privilege against self-incrimination of the Fifth Amendment, as applied to the states through the Fourteenth Amendment, bars a state from compelling a person to provide evidence of a testimonial or communicative nature. Evidence is testimonial or communicative when it reveals a person's subjective knowledge or thought processes. Under the 5th Amendment, a person in custody is entitled to Miranda warnings (right to remain silent and right to counsel) before being interrogated. This applies to testimony and conduct that can be construed as testimony. However, lineups do not fall under the category of testimony. Certain things like blood tests, finger prints, voices, and identifications fall outside the 5th Amendment. The right to counsel under the 5th Amendment does not apply to pre-charge lineups because lineups are not considered interrogatory in nature as they are not likely to elicit a verbal response from the defendant. Therefore, a suspect in custody after an arrest may not refuse participation in a lineup.

Under the 6th Amendment, a person has a right to counsel after being charged with a crime. Therefore, the 6th Amendment mandates that a person has a right to counsel at a post-charge lineup. However, a person does not have a 6th Amendment right to counsel at a pre-charge lineup because the 6th Amendment right has not yet attached. Under the New York penal law, New York provides for an indelible right to counsel under the 6th Amendment which attaches in four cases: (1) person is in custody, and the police are conducting activity “overwhelming to a lay person” and the person requests counsel; OR (2) at arraignment; OR (3) upon filing of an accusatory instrument (a formal charge); OR (4) when there has been any significant judicial activity

Under the Due Process Clause of the 14th Amendment, a lineup is conducted in accordance with due process rights so long as it was not unduly suggestive (i.e. two months after the robbery and witness shown only one picture) or prejudicial (i.e. has the likelihood of misidentification). If the pre-court identification procedure was unnecessarily suggestive, the court would have to exclude both that and the in-court identification even if defendant’s counsel had waived the right to challenge it on other grounds. An exception to that general rule, however, is that if the witness had an independent source of identifying the defendant.

In NY, one exception to the right to counsel in an investigatory lineup is when (1) Police are aware that the defendant is represented by counsel on another charge; AND (2) defendant explicitly requests an attorney. Here, police must notify counsel and give him reasonable time to appear before the lineup.
RIGHT TO COUNSEL/MIRANDA
The privilege against self-incrimination of the Fifth Amendment, as applied to the states through the Fourteenth Amendment, bars a state from compelling a person to provide evidence of a testimonial or communicative nature. Evidence is testimonial or communicative when it reveals a person's subjective knowledge or thought processes. A defendant is entitled to exercise his 5th Amendment privilege and remain silent whenever there is a chance of making a damaging or incriminating statement. The Miranda warning apprises the witness of the fact that they have the right to remain silent, to contact an attorney, that an attorney will be provided for them if they can't afford one, and that anything they do or say can be used against them in court. The 5th amendment also holds that a person in custody has a right to counsel when interrogations take place. Miranda is triggered when there is custodial interrogation. Custody occurs when a reasonable person believes he is not free to leave. The police also must be engaging in questioning on conduct that would likely elicit a response. The 5th amendment was designed to protect from an elicited confession by someone who is in a custodial interrogation setting whom is at a disadvantage. A person may waive his 5th amendment rights. The waiver by defendant must be knowing, voluntary, and unambiguous. Note: In a criminal case, a jury may not draw an adverse inference based on a defendant's exercise of his 5th Amendment privilege.

Under the 6th Amendment of the U.S. Constitution, criminal defendants have a right to counsel. The 6th Amendment right to counsel attaches when a person is charged with a crime. The right is offense-specific. New York affords greater protection to defendants than the Federal Constitution. Under the New York Criminal Procedure Law (NYCPL), the defendant has an indelible right to counsel. A defendant cannot waive his right without the presence of a lawyer once the indelible right to counsel has attached. New York provides this “indelible” right to counsel in 4 cases: (1) person is in custody, and the police are conducting activity “overwhelming to a lay person” and the person requests counsel; OR (2) at arraignment; OR (3) upon filing of an accusatory instrument (a formal charge); OR (4) when there has been any significant judicial activity. In New York, the Arthur Hobson rule dictates that once the police know or could have known that the defendant is represented in the current case by an attorney, waiver of his right to counsel is only effective if made in the presence of the attorney. Therefore, once any of these conditions are met, in New York, a person cannot waive his right to have his attorney in a criminal proceeding if the attorney is not present. However, if the defendant is represented by counsel in an unrelated case, the police may question the defendant once they have informed him of his Miranda rights (the Hobson rule does not apply here).

In court, the NY indelible right to counsel can be overridden by the need for uninfluenced testimony while the defendant takes the stand. Thus, the court does have discretion to limit attorney client discussions during short recesses in order to prevent improper coaching. However, denial of access to one's attorney overnight in the middle of a criminal trial has been held a violation of the right to counsel.
IN-COURT IDENTIFICATION-INDEPENDENT
According to New York Criminal Procedure Law (NYCPL), an in-court identification is admissible if the witness identified the defendant in court based on his previous knowledge which is trustworthy and obtained by him in previous transactions, even if the line-up identification is tainted. Normally, all fruits from unlawfully obtained evidence are regarded as "poisoned" by the former violation and must be excluded. However, in the case of a line-up, there is an exception that applies here. When the witness recognized the suspected person from observations independently from the former line-up, his in-court identification can be based on this independent source and thus must not be excluded. Such in-court identification is regarded as independent evidence and will not be excluded.
INSANITY DEFENSE
New York's insanity defense is based on a combination of two rules: the M'Naghten rule and the Model Penal Code ("MPC") test. The M'Naghten rule states that a defendant is entitled to acquittal only if he had a mental disease or defect that caused him to either: (i) not know that his act would be wrong, or (ii) not understand the nature and quality of his actions. Under the MPC test, a defendant is insane if he had a mental disease or defect, and, as a result, lacked the substantial capacity to either: (i) appreciate the criminality of his conduct, or (ii) conform his conduct to the requirements of law. In New York, a person is not criminally responsible for conduct if, at the time of the conduct, as a result of his mental illness, he is unable to appreciate the nature and consequences of his conduct, or that his conduct is wrong. Under New York Penal Law, insanity is an affirmative defense. All affirmative defenses must be raised by the defendant and proved by a preponderance of the evidence. The prosecution need not produce any evidence of an affirmative defense. However, the prosecution does bear the burden of proving each element of the crime beyond a reasonable doubt, including the mens rea (level of intent). If the burden of proof is wrongly placed on the defendant, it is a violation of due process. Furthermore, the defendant must give the prosecution advance notice of an insanity defense (30 days from “not-guilty” plea).

Unlike the "irresistible impulse" test (that defendant was unable to resist his impulse to do wrong), in New York, a defendant may be found not guilty by reason of mental disease or defect if he shows (1) that he could not discern right from wrong, i.e., understand the wrongfulness of his actions; or (2) that he did not understand the harmfulness of his conduct.
DURESS
Duress is a defense in New York to any crime, including homicide. Duress means that the defendant was under such emotional pressure and control that he acted in a way against his will and his crime was justified in these circumstances. A defendant in a criminal trial has the right to present evidence of any affirmative defenses to the crime charged. Once the defendant presents this affirmative defense, the prosecution still has the burden beyond a reasonable doubt to disprove the defense and prove all elements of the crime.
SELF-DEFENSE
The general rule is that a person can use reasonable force to protect himself and others against unlawful acts. Self-defense is a justification of an otherwise unlawful act. To have this defense, a defendant must show that he reasonably believed that force was about to be used on him and that the amount of force he used was reasonable. To use deadly force, there must be danger of serious injury or threat of life about to be used against him or others. The rule in New York is that a person may use deadly force to protect himself, if he is in immediate danger of death or grievous bodily harm, unless (1) he provoked the use or imminent use of such force, (2) he was the initial aggressor, or (3) the force is due to an unlawful combat agreement. Furthermore, self-defense is only available for current and immediate danger, instead of future danger. Under the New York Criminal Procedure Law (NYCPL), a person may not deadly force if he can safely retreat. However, the person has no obligation to safely retreat in situations if it is in one's dwelling or the person believes the other person is committing or attempting kidnapping, rape, sodomy or robbery or committing burglary or arson.
ENTRAPMENT
Entrapment is an affirmative defense that is available to a defendant who would not have committed a crime, were it not for the efforts of police to induce the defendant into commission of that crime. The defendant must show by a preponderance of evidence that he was in fact entrapped. To succeed with that defense, the defendant must prove that 1) the police created the “criminal environment” and 2) the defendant was not “predisposed” to commit the crime.
INFANCY
In New York a person who commits a crime who is of an infant age gets “special” treatment. If you are between the ages of 7 to 16, you are subject to family court jurisdiction as juvenile delinquent for a misdemeanor or felony. However, there are two exceptions. If you are between the ages of 13 to 15, you may be prosecuted for 2nd degree murder, and if you are between the ages of 14 to 15, you may be responsible for serious offenses against persons or property. An infant in New York is entitled to be questioned with a parent present at the parent or child's request. A parent or guardian is deemed to be a youth's advisor. If the request(s) are denied, subsequent confessions by the infant are inadmissible. In New York, a 14 year old may be indicted as an adult and tried as an adult and indicted as an accomplice for crimes committed.
DEFENSE OF JUSTIFICATION
Defense of justification can only exist in New York if a citizen has a privilege to commit the act. Ignorance of the criminal law is no justification. Some types of justification are self-defense or provocation.
ALIBI
Defendants have the burden of proving affirmative defenses only. Prosecutors in a criminal case must prove every element of the crime beyond a reasonable doubt. They must also prove that defendant was, in deed, the one who committed the crime. Defendants have this right under the Due Process Clause of the U.S. Constitution, as incorporated by the 14th Amendment to the Constitution. An alibi goes to an essential element of the crime. Therefore, the prosecution must disprove the alibi beyond a reasonable doubt. A jury charge incorrectly placing this burden of proof on the defendant is reversible error, giving grounds for a mistrial. Within 20 days of arraignment, prosecutor may serve defendant with demand for the alibi defense, and defendant has 8 days to answer.
DISCOVERY/ROSARIO DISCLOSURE
Under the New York Criminal Procedure Law (NYCPL), upon request by the defendant, the prosecutor in a criminal case must turn over certain relevant evidence to the defense. Under these Rosario disclosures, the prosecutor is obligated to turn over materials such as the defendant's and co-defendant's confessions, pictures to be used at trial and pre-court identifications intended to be admitted at trial. This also includes past grand jury testimony, any reports (scientific or medical) the prosecution has in its possession, along with other materials including the prior statement of a prosecution witness made to any law enforcement official to be used at trial. The purpose of this rule is so that the defense can have an opportunity to cross examine a prosecution witness through his prior statements. This rule extends to all statements that the prosecutor has as well as any statements he could obtain through reasonable efforts. This would include statements in possession of law enforcement officials. The absence of the prosecutor to turn over Rosario material constitutes reversible error
MISTRIAL
A Judge should grant a mistrial if a juror visits the crime scene on his own initiative, does not limit his deliberations to evidence presented at trial, deliberates prior to the close of the evidence and/or deliberates with fellow jurors prior to the closing arguments and instructions.
INEFFECTIVE ASSISTANCE OF COUNSEL
Under the federal Strickland test, the standard for ineffective assistance of counsel is quite high. The defendant must prove either total deprivation of counsel, or such egregious faults as clear bias or protracted absence at trial. A lawyer may make any decision that can be described as conscious and strategic. Moreover, a defendant must prove that but for the ineffective assistance of counsel, the case might have come out differently. While the rules might be more defendant-friendly under the New York Constitution, the recent ruling with respect to the Rosario disclosures suggests that New York courts have become less tolerant of procedural grounds for reversal when the result of the case would not have changed.
PEREMPTORY CHALLENGES
Under federal constitutional law, the racial motivation of a prosecutor in making a peremptory challenge is deemed to be state action for the purposes of the Fourteenth Amendment’s Equal Protection Clause. Therefore, racially motivated use of peremptory strikes is subject to strict scrutiny. The prosecutor can be made to explain peremptory challenges so long as there are a reasonable inference that they are being used in a discriminatory manner. If so, the government must prove that it has acted in a racially motivated fashion for reasons narrowly tailored to a compelling governmental interest. The government bears the burden of proof once a facial case of discrimination has been made.
GRAND JURY/INDICTMENT
A grand jury is a group of citizens convened in a criminal case to consider the prosecutor's evidence and determine whether probable cause exists to prosecute a suspect for a crime. Under the NYCPLR, grand juries may indict when: (1) The evidence establishes all of the elements of the crime; (2) The evidence before it is legally sufficient to establish that the accused committed the offense; AND (3) the evidence establishes reasonable cause to believe that the accused committed the crime. Therefore, to indict, there must be testimony or evidence as to each element of each charged crime. If the evidence is insufficient, the indictment cannot be supported and should be dismissed on motion.

A grand jury is not a proceeding governed by rules of trial. It simply is convened to determine whether there is sufficient probable cause to go forward with the case. Since it is not a final determination of guilt or innocence, the rules are more lax than at trial. However, under the CPLR a prosecutor is required to instruct the grand jury as to all elements of the charged offense and as to complete but not mitigating defenses under CPLR. Failure to do so is grounds for dismissal of the indictment. Self-defense is a complete defense to assault and justification by reason of self-defense would negate the essential elements which the prosecution is required to prove by legally sufficient evidence.