Lecture 27 - New York And Multistate Criminal Law Part I

Front 1

What are co-conspirators considered during a BRAKER’S FELONY?

Back 1

NY and most states follow the federal rule in a conspiracy involving felony murder where co-conspirators are criminally culpable for an accidental death occurring during a BRAKER'S FELONY. Death is considered a natural and probable consequence of the violent felony, which each co-conspirator intended to aid and encourage.

Front 2

The crime of conspiracy does not merge into the completed crime. How then is the defendant prosecuted?

Back 2

Thus, the defendant can be convicted and consecutive sentences imposed for the conspiracy and the substantive crime. Also, if the conspirators are found not guilty of the completed crime, they may nevertheless be found guilty of a conspiracy.

Front 3

How is a person guilty of conspiracy?

Back 3

All of the co-conspirators do not have to know each other. A person is guilty of conspiracy when he knows that a person with whom he has conspired has also conspired with others to commit the ongoing crime.

Front 4

Providing goods or services, knowing they will be used for illegal purposes usually does not give rise to a conspiracy involving the seller unless the seller did so with the intent that the crime come about, but how may this intent be referred to as?

Back 4

This intent may be inferred if the defendant had a stake in the outcome of the crime or he charged inflated prices for the goods or the services or where a large percentage of the defendant's business involved criminal activity. Some states (NY) define this conduct as the crime of criminal facilitation.

Front 5

Common law conspiracy had a plurality requirement. Thus, there could be no common law conspiracy (no meeting of the minds) if 1 party was doing what? (3 things)

Back 5

(a) pretending to agree, (b) a government undercover agent, or (c) an infant, someone insane, or someone who was forced to agree (duress).

Front 6

Where 1 of 2 common law co-conspirators was acquitted, then could there be a common law crime of conspiracy?

Back 6

There could be no common law crime of conspiracy.

Front 7

A majority of states (NY) have adopted the Model Penal Code's "unilateral conspiracy doctrine), which defines conspiracy as an agreement BY THE DEFENDANT, but it does not require an agreement by 2 people. Thus, a defendant can be guilty of conspiracy if he agrees even though the other contracting party lacked the intent or mental capacity to agree to the contract. This doctrine requires the DA to prove what 2 things?

Back 7

1. D had the specific intent that a crime be committed and
2. D entered an agreement to bring about the crime.

Front 8

What happens under the Wharton Rule?

Back 8

Under the Wharton Rule, where a crime requires 2 culpable people to cooperate for its commission and the penal law punishes them both (sale of contraband, bigamy, or incest), then there cannot be a conspiracy unless an additional co-conspirator is involved who is not essential for the commission of the crime.

Front 9

What does “Attempt” mean?

Back 9

"Attempt" means to intentionally try to commit a crime, but not to succeed (the means rea for an attempt is intent). A defendant cannot be guilty of attempt through the defendant's criminal negligence or criminal reckless conduct because the mens rea of intent is lacking. Thus, there can be no crime of attempted felony murder or attempted involuntary manslaughter.

Front 10

When is a NY defendant considered guilty of the crime of attempt?

Back 10

A NY defendant is not guilty of the crime of attempt until she is "very near", "dangerously near", or "on the verge of" accomplishing the crime, but the defendant does not have to take the final step necessary to complete the crime. Thus, mere discussions, mere preparation, or even an overt act, which would be sufficient for conspiracy, is not enough in NY for the crime of attempt. It requires some activity beyond mere preparation.

Front 11

How is attempt broadly defined as in the majority of jurisdictions (MBE and federal)?

Back 11

In a majority of jurisdictions (MBE and federal), attempt is broadly defined in terms of the defendant taking a "substantial step" toward the commission of the crime, which step corroborates the defendant's criminal purpose. It shifts the emphasis away from what little remains to be done (the NY approach) to the steps the defendant has already taken.

Front 12

What happens to the case of a crime of attempt if the criminal is successful in committing the intended crime?

Back 12

If the defendant is successful in committing the intended crime, then there can be no crime of attempt since it merges into the completed crime.

Front 13

Can a defendant be convicted of an attempted strict liability crime prohibiting conduct?

Back 13

A defendant can be convicted of an attempted strict liability crime prohibiting conduct. (i.e. attempted statutory rape of an underage person). See the defense of mistake.

Front 14

Where a defendant intends to commit a criminal act, but that crime cannot be accomplished because of facts unknown to the defendant, then can he be held guilty of an attempt to commit that crime?

Back 14

Then he nevertheless can be guilty of an attempt to commit that crime. IF THAT CRIME COULD HAVE BEEN COMMITTED HAD THE CIRCUMSTANCES BEEN HAD THE DEFENDANT BELIEVED THEM TO BE AND WHAT D INTENDED WAS PROHIBITED BY THE PENAL LAW.

Front 15

Where is the focus on?

Back 15

The focus is on the defendant's conduct and whether it would be a crime if the circumstances existed as the defendant believed them to be. (i.e. An attempted illegal abortion in the last trimester of a woman who was not pregnant.)

Front 16

How is factual impossibility different from the defense of legal impossibility?

Back 16

Factual impossibility is much different from the defense of legal impossibility, which arises when the defendant's goal is to perform an act that is not a crime. Legal impossibility is a defense to a crime and its attempt where if the defendant successfully did all that he set out to do, his conduct would not violate the penal law even though he though he was committing a crime.

Front 17

C and R are guilty of endangering I's welfare where a defendant (not necessarily a parent) "knowingly" acts in a manner likely to injure the physical, mental, or moral welfare of a minor (in NY, a child under age 17) and the DA does not have to prove the child was injured. The CRIM K requirement of knowingly simply requires defendant be aware that his conduct could result in harm to a child. What are some examples of this crime?

Back 17

1. Leaving in plain view crack or a loaded gun,
2. Providing alcohol to minors and encouraging them to drink, or
3. Driving while intoxicated with a child in the car.

Front 18

If a NY driver is convicted of a misdemeanor offense of driving while impaired with drugs or alcohol what can they now be guilty of?

Back 18

Any NY driver convicted of a misdemeanor offense of driving while impaired with drugs or alcohol is now guilty of an E Felony if a child under 16 was present in the car.

Front 19

If I, the infant had not died in the fire, could he be charged as C's accomplice for endangering the welfare of a minor?

Back 19

No, because the infant was a member of the class of persons sought to be protected by the penal law.

Front 20

How is arson broken down in the form of guilt?

Back 20

C is guilty of arson as R's accomplice (accessory before the fact) and R is guilty of arson as a principal in the 1st degree.

Front 21

How is arson considered at common law and what is considered a dwelling?

Back 21

At common law, arson was "malicious" (CRIM K) burning a "dwelling" which common law defined as a structure used for overnight habitation, which is the same definition of "dwelling" for common law burglary. No one had to be in the dwelling at the time of the burning. By statute, NY and most jurisdictions have expanded "dwelling" to include a structure, a vehicle, or a watercraft used either for overnight lodging or to carry on a business as well as arson of a motor vehicle.

Front 22

What type of destruction is required in the case of arson?

Back 22

Total destruction of the structure is not required, but it involves more damage than mere blackening by smoke (e.g. There must be some charring or burning.). If the arson proximately causes a death of anyone other than a criminal participant, then a felony murder also occurs.

Front 23

What are NY’s 5 degrees of arson?

Back 23

In NY, the 5 degrees of arson are based on the possibility of people in the structure or the automobile at the time of the arson. NY's arson 1st, 2nd, and 3rd degrees involve intentionally starting a fire with a specific intent to damage a structure or motor vehicle. Arson 5th (NY only) is the intent to damage "personal property" of another by intentionally starting a fire or causing an explosion regardless of whether the defendant also has an interest in that jointly owned property. It is a misdemeanor and thus there can be no felony murder. In NY, Arson 5th used to be the crime of criminal mischief, which is still a crime in NY for causing damage to real or personal property of another, but it is the crime of arson when fire or explosion is used for the destruction.
Arson 4th is to intentionally start a fire or an explosion that RECKLESSLY damages a structure or motor vehicle (F Felony). This is where the defendant was aware of a grave risk that fire could cause damage and he disregarded that grave risk.
Arson 3rd is to intentionally damage a structure or motor vehicle by starting a fire with a specific intent to damage the structure or vehicle.
Arson 2nd is the elements of arson 3rd limited to the use of fire (not explosives) plus someone who is not a participant is present in the structure or the automobile and the defendant knew or should have known of this fact (no one was injured by the fire).
Arson 1st incorporates the elements of Arson 2nd and PIES.
P – there was a pecuniary motive for starting the fire
I – an incendiary device (a Molotov cocktail)
E – explosives were used or
S – someone was seriously injured

Front 24

Example: L, a landscaper raked a pile of leaves next to O's house and intentionally set the leaves on fire aware of the danger. L is guilty of reckless arson, 4th degree if the flames damage O's building. If O's structure is not damaged, could L be charged with attempted arson?

Back 24

No because L had no specific intent to damage the building. L's conduct was reckless. The crime of attempt needs the mens rea of "intent". If L was unaware of the grave risk to O's house when he intentionally lit the leaves on fire and the fire burned down O's house, there would be no arson because the mens rea required for arson was not present (criminal negligence).

Front 25

It was a common law defense if the arson defendant was the owner and no one else had an interest in the structure. NY has the same defense for arson 3rd and 4th degrees provided D's intent in starting the fire was lawful and for arson 3rd, there was no reasonable basis that the fire would harm anyone or would damage another's property. Who have interest in realty here?

Back 25

Here, both the bank and the insurance company had an interest in C's realty and C's intent in starting the fire was not lawful, but larcenous.

Front 26

Problem: As a practical joke, D placed a bowl of flammable liquid in P's stove. Later, P lit the stove. The liquid exploded and the flames charred P's ceiling. If it was done as a joke, is it criminal?

Back 26

Yes because it was reckless conduct causing damage to a dwelling by fire or explosion.

Front 27

Problem: One night, X broke into a dwelling with the intent to steal. To locate the wall safe, X intentionally lit a match, which touched a flammable curtain and the dwelling burned down. Is X guilty of arson?

Back 27

No, there was an intent to commit burglary, but you cannot transfer this intent to a different crime. X lacked the CRIM K mental element to commit arson because X did not intend or desire the fire to damage the dwelling nor did X recklessly cause fire damage because reckless conduct speaks of being aware of a grave risk and consciously disregarding that risk. Since X negligently caused the fire damage, this is not arson. However, he is guilty for the crimes of burglary and attempted larceny. If X could put out the fire on the curtains, but X panicked and fled, now X is guilty of arson for a grave, unjustifiable risk which constituted reckless conduct (in NY, Arson 4th degree).

Front 28

Problem: One night in a blinding snow storm, D, who was was lost in the woods, broke into P's cabin to seek shelter. He built a fire in the fireplace, but because squirrels had built a nest in the chimney, the flames ignited the roof and the house burned down. Is arson considered here?

Back 28

Here, there is no arson because the fire damage to the structure was not done recklessly or intentionally. D was not guilty of burglary even though he broke into a dwelling at night because D did not have the specific intent to commit a crime therein.

Front 29

Problem: In MBE, D wanted everyone out of the 3rd floor in a department store so he could easily steal a diamond and necklace. He started a paper fire in the wastebasket for the purpose of creating a heavy smoke so the people would flee in a panic, but the smoke filled the floor, but there was no damage. Could D be convicted for attempted larceny?

Back 29

No, because it was not his specific intent to burn that structure. Even if D’s conduct was reckless, D could not be convicted for attempt because it requires the mens rea for intent.

Front 30

What is homicide?

Back 30

Homicide is unlawfully causing the death of another living human being. In NY, this includes causing the death of an unborn child if the mother has been pregnant for more than 24 weeks.

Front 31

How is death determined?

Back 31

In NY "death" is determined upon the irreversible cessation of the victim's heartbeat and breathing. Where these functions are artificially maintained by connecting the victim to a respirator when the victim's brain has ceased to function, then if doctors remove the brain dead victim from the respirator, it is not a defense to the homicide defendant that the victim's breathing and heartbeat could have been artificially continued.

Front 32

When do problems of causation arise?

Back 32

Problems of criminal causation arise almost exclusively in homicides. At common law, a homicide victim's death had to occur within 1 year and 1 day in order for death to be considered proximately caused by the defendant's criminal conduct.

Front 33

The prosecutor must prove beyond a reasonable doubt a direct causal relationship (proximate cause) between the defendant's criminal act and the resulting death. What happens if the state is unable to do so?

Back 33

If the state is unable to determine whether the victim died naturally or from the defendant's criminal conduct, then it is has not met the burden of proving the homicide elements beyond a reasonable doubt.

Front 34

Are preexisting causes for defense in death?

Back 34

The fact that a victim would have died from other preexisting causes (the victim was dying from cancer) is not a defense if the defendant's conduct in fact caused the death.

Front 35

What does the federal law provide enhanced punishment for?

Back 35

Federal law provides enhanced punishment (mandatory 20 years in jail) for drug trafficking where the drug user dies or is seriously injured as a result of using the defendant's drugs.

Front 36

A criminal defendant takes the victim has he finds him, but unlike tort laws doctrine of "avoidable consequences", the crime victim does not have what?

Back 36

To take reasonable steps to lessen her injuries and D is criminally responsible for the results.

Front 37

The degrees of homicide are categorized according to the defendant's mental state at the time the act was committed. In order to obtain a homicide conviction, the DA must establish beyond a reasonable doubt that the defendant proximately caused another's death by FIGS MAN. What does FIGS MAN stand for?

Back 37

All "FIGS" homicides are murder in MBE, but only FIG is murder in NY.
At common law, the 1st two murders in FIGS are murder 1st degree (felony murder or intentional killing) and the last 2 FIGS murders were murder in the 2nd degree. MAN is short for manslaughter (either voluntary or involuntary)

Front 38

What exactly does the F in FIGS MAN stand for?

Back 38

F - felony murder.
Generally, felony murder is an unintended homicide during a dangerous felony either during its attempt, its commission, or in the immediate flight therefrom where the defendant has not reached a place of temporary safety.

Front 39

Under F of FIGS MAN, how are accomplices found?

Back 39

Accomplices are guilty for any deaths caused during the felony since death is a foreseeable proximate result of the underlying dangerous felony.

Front 40

Under F of FIGS MAN, is intent to kill required?

Back 40

"Intent to kill" is not a required element of felony murder. It is replaced with the mens rea to commit the underlying dangerous felony. The intent necessary to sustain the felony murder is transferred from the intent to commit the life threatening felony even though the defendant had no intent to kill. Thus, if the defendant is acquitted of the underlying felony, the felony murder charge cannot stand.

Front 41

Under F of FIGS MAN, how exactly does a felony murder occur?

Back 41

In NY, a felony murder occurs even though the felon did not commit the act that proximately caused the accidental death. However, under the "agency doctrine" (MBE and a majority of states), one of the felons as an agent of the felony must have proximately caused the accidental death for a felony murder to occur.

Front 42

Is death of a felon considered to be felony murder?

Back 42

In most states (NY), death of a felon is not considered to be felony murder.

Front 43

Under F of FIGS MAN, the predicate felonies for felony murder are BRAKERS. What does BRAKERS stand for?

Back 43

B - burglary
R - robbery
A - arson
K - kidnapping
E – escape from police custody after arrest
R - rape
S – criminal sexual act

Front 44

Under F of FIGS MAN, felony murders are not found in a LAB, what does LAB stand for?

Back 44

(e.g. An accidental death during a 1. larceny, 2. an assault, or 3. a battery).

Front 45

Under F of FIGS MAN, death accidentally occurring during an LAB felony or during a dangerous misdemeanor, some states call misdemeanor manslaughter. Is this recognized by NY?

Back 45

However, this is not recognized by the Model Penal Code or NY. However, if death occurs during a misdemeanor under circumstances evidencing the defendant's depraved indifference to human life, it may result in murder.

Front 46

Problem: D was tried for attempted murder and battery. D was acquitted of the attempted murder charge, but convicted for battery. Thereafter, the victim died from the battery. Could D be convicted for felony murder?

Back 46

No because battery is not a predicate felony murder.

Front 47

Under F of FIGS MAN, what happens for double jeopardy purposes?

Back 47

For double jeopardy purposes, the felony and the resulting death are one offense and there cannot be consecutive sentences for the underlying felony and for felony murder. However, if D is convicted of a BRAKERS felony and thereafter the victim dies from the felony, then the defendant can be tried for felony murder.

Front 48

Under F of FIGS MAN, in many jurisdictions (NY), it is an affirmative defense to felony murder to a felon who was not acting alone (he has an accomplice) if he can establish he was simply a CUB. (conjunctive) What does CUB stand for?

Back 48

C - the defendant did not commit, command, or request the fatal act (i.e. he merely acted as a lookout or a getaway driver).
U - D was unarmed with a deadly weapon or with a substance readily capable of causing death.
B - D had no reason to believe that another co-conspirator was armed or intended to engage in conduct likely to result in death.

Front 49

Under F of FIGS MAN, the death penalty is not a per se violation of the 8th Amendment's prohibition against cruel and unusual punishment, but the 8th Amendment is violated by imposing the death penalty in what 5 circumstances?

Back 49

1. on a CUB felony murder defendant in those jurisdictions that do not recognize the CUB defense.
2. an intellectually challenged defendant and the state cannot adopt an arbitrary and rigid IQ score as the sole determining factor on that issue (i.e. In FL, an IQ below 70).
3. for a rape conviction where the rape victim did not die.
4. on an infant who was not 18 when he committed the killing.
5. mandatorily imposing death for every murder or even for certain types of murder because under the 8th Amendment, a jury must be allowed to consider mitigating circumstances.

Front 50

Under F of FIGS MAN, in order for the death penalty to be imposed what 2 things must happen?

Back 50

(a) the victim must die, but there is an exception for crimes against the state such as treason, terrorism, espionage, and crimes involving drug kingpins where the death penalty can be imposed even though no one has died and
(b) there must also exist some additional aggravating circumstances in order for the jury to impose the death penalty.

Front 51

Under F of FIGS MAN, under the 6th Amendment, right to a jury trial, it is the jury and not the judge that must determine beyond a reasonable doubt the presence or absence of aggravating circumstances and whether the death penalty should be imposed. Any factor that would increase defendant’s sentence must be decided by a jury except in what 2 cases?

Back 51

1. Defendant’s prior convictions that may increase the jail sentence yeond the maximum prescribed for the offense or 2. Whether concurrent or consecutive sentences should be imposed.

Front 52

What does the I from FIGS MAN stand for exactly?

Back 52

I - intentional murder
Intentional murder arises where the defendant wanted his victim to die. In MBE, the DA must prove that D with premeditation and deliberation desired to cause the death of another and in fact caused the death of that person or a 3rd person. Usually "deliberation" requires cool reflection to perform the criminal act coupled with a premeditated preconceived deliberate intent to kill.
NY does not require "premeditation and deliberation". It defines murder simply as intentionally killing another. To determine if the killing was intentional the jury looks at the nature and the circumstances of the violent act, what part of the body was assaulted, and whether a weapon was used to determine the defendants intent.
Where a NY or MBE defendant intentionally (not recklessly or negligently) used a deadly weapon and death results, then the jury may infer the defendant intended to kill that person.

Front 53

What does the G from FIGS MAN stand for?

Back 53

G - created a grave risk of death

Front 54

Under G of FIGS MAN, DIM murder is what and occurs when?

Back 54

DIM Murder (Depraved Indifference Murder)
DIM only arises when the defendant's conduct creates a grave risk of death as to approach certainty and he consciously disregards that risk and by doing so displays an utter disregard for the value of human life. Here, the defendant acted not because he intended death, but because he simply did not care whether death resulted.
It is the defendant's depraved indifference evidencing wicked, evil, and inhuman conduct.

Front 55

Under G of FIGS MAN, what are several examples of DIM?

Back 55

(a) randomly firing bullets into a crowd.
(b) letting a lion out of a cage in a crowded zoo.
(c) driving at excessive speeds on a crowded sidewalk without applying the brakes
(d) driving a speed boat through a group of swimmers.
(e) driving in the opposite direction on the highway and playing chicken with oncoming cars.

Front 56

Under G of FIGS MAN, what happens when a defendant fires a gun point blank?

Back 56

When a defendant fires a gun point blank at the victim or the defendant cuts the victim's throat, then the defendant can be indicted for intentional murder, but not for DIM. A one-on-one shooting or knifing can almost never qualify as DIM and the more the defendant shoots or stabs the victim, the clearer is his intent to murder.

Front 57

Under G of FIGS MAN, what does DIM apply to?

Back 57

DIM applies only to a small finite category of cases when the defendant's evil conduct is at least as morally reprehensible as intentional murder. In essence, it requires neither an intent to kill nor an intent to seriously injure.

Front 58

Under G of FIGS MAN, are charges for both intentional murder and DIM common?

Back 58

In NY, charging a defendant with both intentional murder and DIM should be rare and submissions to the jury eve rarer. One of the other, but not both.

Front 59

What does S from FIGS MAN stand for exactly?

Back 59

S - At common law and in MBE, it was murder where the defendant intended to cause serious bodily injury that resulted in death, but in NY this is a voluntary manslaughter 1st degree and is not murder.

Front 60

What does MAN from FIGS MAN stand for?

Back 60

MAN – Manslaughter

Front 61

Under MAN from FIGS MAN, voluntary manslaughter which NY calls 1st degree manslaughter occurs where the defendant does what 2 things?

Back 61

1. Intentionally committed murder, but the defendant's intent arose under circumstances of extreme emotional disturbance or in the heat of passion caused by anger, jealousy, or grief. or
2. In NY, but not in MBE, manslaughter 1st degree also arises where the defendant intends to commit serious bodily injury that results in death.

Front 62

Under F of FIGS MAN, what is considered involuntary manslaughter?

Back 62

Involuntary Manslaughter, which NY calls 2nd degree manslaughter is where the defendant is aware of a SUBSTANTIAL RISK of death, but not a "grave risk" of death required for DIM and despite this knowledge, the defendant proceeds to act and recklessly causes the death of another (stealing the snow plow hypo, or driving 80 mph while drunk in a car with bad brakes and bad tires.

Front 63

Under MAN of FIGS MAN, what does DIM’s conduct get classified as? What does manslaughter get characterized as?

Back 63

The defendant's conduct when classified as a DIM murder is where the degree of risk approaches a certainty of death. With manslaughter, the reckless conduct presents only a "substantial risk" of death.

Front 64

Under MAN of FIGS MAN, criminal negligent homicide requires that the defendant must have created or contributed to the substantial risk of death and not merely failed to perceive the substantial risk created by others. ("Speed plus" running a stop sign, drag racing, or alcohol or drugs.) What are some examples?

Back 64

1. when a child is killed while playing with a parent's loaded gun negligently left in the home
2. a hunter negligently kills another hunter
3. a person who points a gun at another in jest and it accidentally discharges.

Front 65

Under MAN of FIGS MAN, when a homicide occurs, look to see if the defendant intended the killing. If it was an intentional killing, it is murder unless HIS. What does HIS stand for?

Back 65

H - it was committed in the heat of passion or under an extreme emotional disturbance (see next lecture).
I - insanity or infancy of the killer and
S - self-defense or defense of others (justification), but if excessive justifiable force was used (imperfect self-defense), but it was done in the heat of passion or under extreme emotional disturbance, then it would be a voluntary manslaughter and not murder.

Front 66

D was indicted in NY for murder that occurred 16 years ago. Is D's prosecution barred by the s/l?

Back 66

No since murder does not have a s/l.

Front 67

At D's trial, could the DA ask the court to charge the jury on manslaughter?

Back 67

No, because the 5 year felony s/l bars that claim. However, if it was defense counsel that requested the manslaughter charge, then this would waive the s/l defense.

Front 68

What is the crime of larceny?

Back 68

The crime of larceny is taking the property of another with a specific intent to permanently deprive the owner of that property. The crime of robbery is larceny by the use or threatened use of immediate force (intimidation) posing an immediate danger to the victim. It requires the crime of assault or battery plus a simultaneous larceny from the victim's person or in his presence.

Front 69

Is larceny a lesser crime of robbery?

Back 69

Larceny is a lesser included crime of robbery because it is impossible to commit robbery without also committing a larceny.

Front 70

When does larceny become robbery?

Back 70

If force is not used in the initial larceny, but force or intimidation is used to prevent or overcome resistance to the taking, then it becomes a robbery.

Front 71

Problem: D entered a bank and at gunpoint, took money from a teller. D deliberately failed to make a quick getaway hoping to be arrested so that he would be returned to prison and treated for his drug abuse. Is D guilty of robbery?

Back 71

No, even though D committed and knowingly engaged in the actus reus of using force to take money (satisfying general intent), D did not intend to permanently deprive the bank of its money. Thus, the prosecutor could not satisfy the specific intent element of robbery.

Front 72

What are the 3 degrees of robbery based on?

Back 72

In NY, the 3 degrees of robbery are based on the foreseeable danger of personal injury to the victim.

Front 73

What does robbery of the 3rd degree include?

Back 73

Robbery in the 3rd degree is larceny coupled with a threatened use of immediate physical force on a person (if it was not immediate, then it would be larceny by extortion). A NY robber who acts alone does not cause injury, possesses no weapon. and does not pretend to possess a weapon, commits robbery 3rd degree.

Front 74

Robbery 2nd degree includes robbery 3rd degree plus what 4 things?

Back 74

(a) the property taken by force of threat of force was a motor vehicle (a carjacking).
(b) the defendant was aided by an accomplice who was present.
(c) the defendant displayed (touch, sound, or sight) what appeared to be a firearm. (e.g. the robbery victim must perceive an item to be a gun.) Thus, a defendant's statement that he had a gun was insufficient. or
(d) the defendant caused physical injury to a non-participant. Example: If D and Y robbed O or D alone mugs O (physical injury) or D displays what appeared to be a firearm (that was unloaded, inoperable, or was not in fact a firearm), then it is robbery 2nd degree.

Front 75

Robbery 1st degree involves the predicate of forceable stealing from a person together with DAMS (disjunctive) aggravated circumstances during the robbery or the immediate flight from the robbery. What does DAMS stand for?

Back 75

D - displays through sound, sight, or feel what could be perceived reasonably by the victim as a firearm.
"Displaying" a firearm is an element for both first and second degree robbery, but in NY, when a defendant is charged with either robbery or burglary in the 1st degree for displaying a firearm, then the defendant can reduce the charge to the 2nd degree by proving that the displayed gun was unloaded, inoperable, or was not a gun.
A - the defendant does not display, use, or threaten the use of a weapon, but he was in fact armed with a deadly weapon capable of producing death or serious injury (i.e. a gun or a knife, but not a BB gun). This element is infrequent unless the defendant is immediately apprehended and found to be armed.
M - the defendant menaced the victim by using and not just displaying a dangerous instrument readily capable of causing serious injury or death, but the defendant's use of his fist or his teeth is not considered using a dangerous instrument.
S - causes serious physical injury to a non-participant during the robbery or in the immediate flight from the crime scene.

Front 76

DAMS aggravated circumstances also applies to what?

Back 76

To burglary in the 2nd degree (a "structure") and to burglary 1st degree (a "dwelling") except only a physical injury and not a serious injury is required. Thus, for burglary DAMS becomes DAMP (physical injury).

Front 77

Problem: D handed a bank teller a note, “I have a gun. Give me the money or I’ll shoot.” D was arrested 4 months later. Is D guilty of robbery 1st degree?

Back 77

No because the people could not prove that D was armed and he never displayed (sight, touch, sound) a gun. He did not menace the teller with a dangerous instrument and he did not cause serious injury. It was only robbery 3rd degree.

Front 78

Kidnapping combines what 3 things?

Back 78

1. criminal assault and/or battery
2. a false imprisonment and
3. an abduction (movement of the victim) by force or threat of force.

Front 79

When the forced movement and restriction of the victim is incidental, simultaneous, and inseparable from another crime (robbery, battery, or rape), and the imprisonment is only brief, then the crime of kidnapping merges into the underlying crime. But where does the merger doctrine not apply?

Back 79

However, the merger doctrine would not apply where the victim was forced to go on a 2 hour drive or an 18 mile drive after an assault, rape, or robbery.

Front 80

What is the merger doctrine intended for?

Back 80

Merger doctrine is intending to convict for a kidnapping based on a brief asportation (movement) and restraint, which was an integral part of another crime.

Front 81

In NY, there are just 2 degrees of kidnapping, what are they? (2 things)

Back 81

1. kidnapping in the 2nd degree where the defendant abducts another or
2. kidnapping in the 1st degree

Front 82

Where does kidnapping in the 1st degree occur? (3 things)

Back 82

(a) the restraint exceeds 12 hours
(b) the victim dies unintentionally during the abduction or before she returns to safety or
(c) the kidnapper's intent was to compel a 3rd person to pay money to perform and act or to refrain from acting.

Front 83

When can a parent be charged for kidnapping?

Back 83

Although parents have a right to control their children's movements, a parent can be charged with kidnapping his child when he used his child as a shield from the police.

Front 84

What does NY call criminal assault?

Back 84

When the vagrant threatened to break the farmer's legs, this was a criminal assault, which NY calls the crime of menacing.

Front 85

Similar to the tort of assault, it arises where the defendant has the present immediate ability to do so and does 1 of what 2 things?

Back 85

(a) attempts of battery or
(b) intends to cause apprehension of an immediate serious injury or death.

Front 86

A criminal assault requires what 3 things?

Back 86

1. a specific intent to scare the victim
2. the victim's fear or apprehension of a battery and
3. an overt act by the defendant swinging a fist or displaying a gun, but not just a mean look that causes reasonable apprehension of immediate bodily injury.

Front 87

What is criminal battery?

Back 87

Criminal battery is an assault that results in harmful bodily injury or offensive contact. At common law, no physical injury was required.

Front 88

NY calls a criminal battery a "criminal assault" and it requires proof of 1. some impairment of the victim's physical condition or 2. substantial pain, which is more than slight or trivial pain, but it does not have to be severe or intense. Here, the jury should consider what 3 things?

Back 88

(a) the type of injury inflicted
(b) the victim's description of the pain and
(c) the defendant's motive for inflicting the pain.

Front 89

A NY battery falling short of a physical injury such as petty slaps, punches, shoves, kicking, or spitting delivered out of meanness or hostility, is called what in NY?

Back 89

NY calls harassment, which is not a crime, but a small violation.

Front 90

If D's harassment was motivated by bigotry (race, religion, gender, or national origin), then what is it called?

Back 90

It is called aggravated harassment, which is a class A misdemeanor, punishable by one year in jail.

Front 91

If a battery results in death, then the MBE crime is considered what?

Back 91

Misdemeanor manslaughter unless death resulted in an aggravated battery, which would be an MBE FIGS murder. Aggravated battery is committed with a dangerous or deadly weapon or a battery coupled with a felonious intent to commit a BRAKERS crime, in NY this is called assault in the 1st degree.

Front 92

What does the crime of burglary seek to keep out?

Back 92

This crime seeks to keep out uninvited intruders. Neither I nor R were guilty of burglary of C's paint store because C had given them permission to enter.

Front 93

If a defendant is invited into the dwelling does burglary exist?

Back 93

There is no burglary even though the defendant entered with the specific intent to enter therein.

Front 94

What is criminal trespass?

Back 94

Criminal trespass is to knowingly enter or remain unlawfully on realty. However, burglary is the general intent crime of criminal trespass coupled with the specific intent to commit a crime therein (i.e. to steal).

Front 95

What does common law burglary require?

Back 95

Common law burglary required an unauthorized "breaking and entering" at night into another's "dwelling" with the specific intent to commit a felony therein.

Front 96

What does “breaking” involve?

Back 96

"Breaking" (which NY does not require) involves exerting force to remove a barrier in order to enter the dwelling. For example, breaking or lifting a window, or pushing open a locked or unlocked door.

Front 97

What happens if the common law entry occurred during the day?

Back 97

If the common law entry occurred during the day, then the intruder was charged with criminal trespass plus the felony intended within the dwelling (or its attempt. The required breaking can occur after the defendant has entered the dwelling. Thus, if the defendant entered the dwelling through a wide open door, there is no breaking, but if he opens a closed bedroom door with the intent to commit a felony therein, then a burglary occurs.

Front 98

What is “entering”?

Back 98

"Entering" is where any part of the defendant's body enters the premises (the defendant crosses the vertical plane).

Front 99

What happens if the consent to enter was obtained by fraud?

Back 99

If the consent to enter was obtained by fraud, it constitutes a constructive breaking and entering and a burglary occurs because an intruder intending criminal conduct who breaks the barrier with a lie is no less dangerous to the inhabitants of the dwelling.

Front 100

What is burglary a crime against?

Back 100

Burglary is a crime against habitation. Thus, the defendant can be convicted for both burglary and the crime attempted or committed within the dwelling.

Front 101

Can a spouse with co-title to the realty be guilty of burglary?

Back 101

A spouse with a co-title to the realty can be guilty of burglary where the other spouse is given exclusive possession of the realty.

Front 102

At common law, it was not burglary to break an enter with an intent to commit assault or battery, but it was common law burglary if the intended crime was committed with what?

Back 102

Larceny.

Front 103

One night, D defendant went to C’s house to collect money C owed to D. D opened C’s unlocked front door (a breaking) and entered. When D did not find C at home, D became angry and took C’s valuable painting out. In MBE is defendant guilt of:
Burglary?

Back 103

No, because when D entered, there was no intent to commit a felony therein.

Front 104

One night, D defendant went to C’s house to collect money C owed to D. D opened C’s unlocked front door (a breaking) and entered. When D did not find C at home, D became angry and took C’s valuable painting out. In MBE is defendant guilt of:

Arson?

Back 104

No, because in MBE, the burning of chattel is not arson (but n NY, it is Arson 5th Degree).

Front 105

One night, D defendant went to C’s house to collect money C owed to D. D opened C’s unlocked front door (a breaking) and entered. When D did not find C at home, D became angry and took C’s valuable painting out. In MBE is defendant guilt of:
Larceny?

Back 105

Yes, because D’s intent was to permanently deprive C of the chattel and there was a wrongful taking with this intent. TIP.