Lecture 28 - Ny& Multistate Criminal Law Part Ii

Front 1

Today, most jurisdictions (NY) expand burglary to any crime (felony or misdemeanor) and even assault or battery in any structure day or night. What does the burglary of a dwelling constitute?

Back 1

However, the burglary of a dwelling constitutes a higher degree of burglary and carries a longer jail sentence.

Front 2

In NY, there are just 3 degrees of burglary, what are they?

Back 2

1. Burglary in the 3rd degree, which is to knowingly (CRIM K) enter or remain unlawfully in a building with the intent to commit any crime therein.
2. Burglary 2nd degree requires knowingly entering or remaining unlawfully with the intent to commit any crime therein and it is 1. a structure with DAMP aggravating circumstances or 2. burglary of a "dwelling" without any DAMP aggravating circumstances.
3. Burglary in the 1st degree is the burlary of a dwelling with DAMP aggravated circumstances and while the defendant is in the dwelling or in the immediate therefore, he or another participant engaged in DAMP aggravated activity. See Robbery.

Front 3

What is rape?

Back 3

Rape is nonconsensual sexual penetration through force or threats of force. Intoxication may be a defense to rape if the defendant's intoxication prevented him from knowing that his victim did not consent.

Front 4

What is the rape by another male called?

Back 4

Rape of a male by another male is called the crime of sodomy, but NY now calls it a "criminal sexual act".

Front 5

Strict criminal liability is imposed for a statutory rape even if the victim consents because with statutory rape, such a victim is legally incapable of consenting because the victim is what of 4 things?

Back 5

1. intellectually challenged, but in NY such a crime requires corroboration of the mentally deficient victim’s testimony.
2. physical incapacity where the victim has passed out or is in a coma
3. a NY prisoner who is legally incapable of consenting to sex with a prison guard or
4. under age. In NY, a defendant age 21 or older having sex with someone before her 17th birthday or where someone is over 18 having sex with someone under age 15 unless their age difference was less than 4 years. A NY child under age 11 is incapable of consenting. She is treated just like a physically helpless victim.

Front 6

What can happen at common law and under NY’s penal law in regards to a husband raping a wife?

Back 6

At common law and in NY's penal law, a husband could not be guilty of raping a wife, but NY's Court of Appeals found this spousal exemption violated equal protection of married women because distinguishing between married and unmarried females for the crime of rape lacked a rational basis. See Con Law Equal Protection.

Front 7

What is considered irrelevant and inadmissible to protect the self esteem of all crime victims?

Back 7

NY and FRE seek to protect the self esteem of all crime victims (not just rape victims). Thus, any crime victim's predisposition for sexual activity or her sexual RIP (evidence mnemonic 20 - sexual reputation, prior instances of sexual conduct, or another witness's personal opinion of the victim's sexual appetite) is presumed irrelevant for any purpose. Thus, the fact that a crime victim watched porn or she posted sexually provocative postings on her website is irrelevant and inadmissible.
If the court finds such evidence is relevant in a case, then its probative value must substantially outweigh the harm to the victim.

Front 8

What is admissible and relevant to introduce in a rape charge?

Back 8

It is admissible and relevant to a rape charge to introduce 1. the victim's prior sex with (a) the criminal defendant because prior acts of intimacy with the victim would be relevant to bolster the defendant's claim that the victim consented or (b) sex with a third person to prove that someone else was the source of the victim's injury. 2. the victim's prior inconsistent statement as to who raped her or 3. a NY rape victim's CONVICTION of prostitution (not merely acts of prostitution) within the last 3 years and only if the conviction is relevant to the victim's consent.

Front 9

What occurs under the “prior rape outcry”?

Back 9

Under the "prior rape outcry" rule, the people on its direct case may offer evidence of the victim's prior consistent statement of a rape promptly made to a friend or a family member. It is admissible and relevant to corroborate that a rape occurred and to prevent a jury from being suspicious if the victim failed to promptly go to the police. The victim's "prompt outcry", but not its accompanying details (who did it) is admissible provided (a) the victim will take the stand during the trial and testify and (b) the "outcry" was made at the first suitable opportunity. (i.e. The victim's report to her mother the next morning was admissible, but not if it was made days, weeks, or months later because it was not "prompt".)
If the outcry was made while the victim was still under the influence of the horrible event (i.e. to EMS technicians or to the police), then her entire statement is admissible including the identity of the rapist regardless of whether the victim will testify at the trial because this statement qualifies as a hearsay confession as an excited utterance provided the court finds that her statement was not "testimonial in nature" and thus it would not violate the criminal defendant's 6th amendment right to confrontation.

Front 10

Crime 13: Possession of Stolen Property
If a person who innocently receives stolen property, but later learns it was stolen and does not return the property considered guilty of the crime?

Back 10

The person is not guilty of this crime. In most jursidictions (NY), there is a criminal inference that someone possessing recent stolen property was aware it was stolen.

Front 11

C was guilty of possession of stolen property (the flammable liquid stolen from the farmer) because C did what 3 things?

Back 11

1. CRIM K knew it was stolen when he received it
2. intended to permanently deprive it from the owner and
3. the property was in fact stolen.

Front 12

What happens if the stolen property is recovered by the police or owners?

Back 12

If the stolen property was recovered by police or owner, it is no longer considered "stolen property". Thus, if the thief after being aught cooperates with the police and sells the stolen property to the defendant, then D cannot be convicted for possession of stolen property because it is factually impossible for D to be convicted. However, D is guilty of attempted receipt of stolen property because factual impossibility is not a defense to the crime of attempt.

Front 13

What is larceny?

Back 13

Larceny is wrongfully taking another's personal property with a specific intent to 1. permantly deprive it from the owner, 2. deny the owner its possession for an unreasonable length of time, 3. uses it in a manner that deprives the owner of its value.

Front 14

If a defendant steals stolen property from a thief, is it still larceny?

Back 14

Yes, it is still larceny

Front 15

.
Common law larceny requires TIP. (conjunctive) What does TIP stand for?

Back 15

T - wrongful taking, which requires only the slightest movement of the stolen chattel (no delivery of the chattel by the owner to the defendant)
I - the specific intent to deprive the owner of the property (the intent does not have to benefit the theif).
Larceny cannot be committed by inadvertence, mistake, or negligence.
Intent to temporarily use another's property is not larceny.
Under the continuing trespass theory, a larceny would arise from a temporary use if the borrower changes her mind and either sells, abandons, or keeps the borrowed property depriving the owner thereof.
P - personal property of another.

Front 16

Problem: 2 nights after S seller sold Blackacre to B buyer, S came back and removed an air conditioned window unit and S dug up 4 rose bushes that were given to him by his dead mother. Has S committed TIP larceny?

Back 16

S is not guilty of common law larceny because at common law, it was not larceny to carry away real property such as trees, crops, fences, minerals, or fixtures attached to the realty, which in one continuous act, the thief severed from the property and carried away. However, if this severance by the thief and the carrying away were separated by a period of time or if the new buyer did the severing and then the thief stole the property, then it would constitute TIP larceny of personal property.

Front 17

NY's penal law defines "property" to include what?

Back 17

Real property.

Front 18

If a transaction is to be completed in the owner's presence, then any delivery of the chattel to the defendant transfers only "custody" and not possession. What happens then if that property is carried away by a thief?

Back 18

If that property is then carried away by the thief, it constitutes larceny even though the owner delivered the property to the thief.

Front 19

At common law and NY, but not under the model penal code, if property is jointly owned by 2 or more, then none of the owners can commit larceny or embezzlement of the property. Explain this further.

Back 19

Thus, a partner in a partnership or a co-owner of a car cannot be guilty of larceny because each had a right to possess that property. Thus, the TIP element could not be established and the exclusive remedy is to sue for the tort of conversion. NYAA pg. 347. However, the Model Penal Code defines larceny as stealing property in which another has an interest even if the thief also has an interest in the property.

Front 20

A finder of lost property who knows or can easily determine who knows or could easily discover the owner or a person who receives mis-delivered or over-delivered goods is guilty of what?

Back 20

Of TIP larceny if at the moment of taking possession, he immediately had a larcenous intent to deprive the owner.

Front 21

Can a bailee be guilty of larceny?

Back 21

Generally, no because possession was properly delivered to bailee. If a bailee wrongfully converts those goods while in possession, the crime of embezzlement would arise. Under the “breaking bulk” theory, a bailee has possession of the parcel that is bailed, but not possession of its content. Thus, if the bailee opens the parcel and anything is removed, then TIP larceny occurs.

Front 22

What is larceny by trick?

Back 22

Larceny by trick is where there is no wrongful taking by the thief where the owner delivers possession to the thief (a bailment) where the delivery was induced by the thief's fraudulent misstatements causing the owner to surrender possession and where the thief's intent to permanently deprive the owner of that property.

Front 23

What is the difference between common law TIP larceny and larceny by trick?

Back 23

The difference between common law TIP larceny and larceny by trick is the element of delivery because with larceny by trick there is no wrongful taking.

Front 24

What is larceny by false pretenses?

Back 24

Larceny by false pretenses is where both possession and title are transferred by the owner induced by the thief's fraudulent misrepresentations.

Front 25

What must occur in order to assert larceny by false promises based on a breached contract?

Back 25

To assert larceny by false promises based on a breached contract in which the defendant received money in return for his promise to perform future services or to deliver goods in the future, or to repay the money if it was borrowed, then the prosecutor must prove to a moral certainty that the defendant who breached the contract never had a present intent to perform, deliver, or repay under the contract terms.

Front 26

What is larceny by embezzlement?

Back 26

Where property or money was lawfully delivered to the defendant (no fraudulent misrepresentations), but while it was in the defendant's possession, he stole the money (i.e. an attorney embezzling escrow money. His intent to restore equivalent money or property is no defense to this crime.

Front 27

What doe employees have over employer’s goods?

Back 27

Employees only have custody and not "possession" of their employer's goods. Thus, if an employee steals the employer's goods, it is TIP larceny and not embezzlement.
If an employee receives money or property from a third person to be delivered to the employer then because it was never in employer’s possession, the employee is deemed to possess it and if she steals it, it will not be TIP larceny, but larceny by embezzlement.

Front 28

What is larceny by extortion?

Back 28

Larceny by extortion is where a defendant obtains money or proerty from a victim where the victim's delivery of the property was induced by fear that the defendant would
1. Inflict personal injury on the victim IN THE FUTURE.
2. Inflict immediate property damage.
3. Cause a labor strike.
4. Wrongfully accuse the victim of a crime.
5. Corruptly use the defendant's position as a public official or
6. expose a secret whether true or false that would subject the victim to hatred, contempt, or ridicule.

Front 29

There are 5 types of FLEET larcenies. What does FLEET stand for?

Back 29

F – false pretenses
L – common law larceny (TIP)
E – embezzlement
E – extortion
T – larceny by trick

Front 30

In NY, there are 5 degrees of larceny, what are they?

Back 30

1. petty larceny or less and no proof of value is required
2. grand larceny 4th degree where the value exceeds $1,000
3. grand larceny 3rd degree where the value exceeds $3,000
4. grand larceny exceeds $50,000
5. grand larceny 1st degree exceeds $1 million

Front 31

Are conclusory statements by prosecution witnesses as to value of stolen property sufficient in proving value?

Back 31

Conclusory statements by prosecution witnesses as to the value of stolen property is insufficient to prove its value. Evidence of a purchase price paid a year ago is insufficient to prove the value on the date of the theft exceeded $1,000. Likewise, if the only evidence is book value without proof of the condition of the chattel on the date of the theft.

Front 32

When do a series of petty larcenies become grand larceny?

Back 32

A series of petty larcenies can become grand larceny where the defendant’s intent involved an ongoing scheme to defraud 10 or more people and money collected from more than one victim.

Front 33

In NY, regardless of value, certain stolen property is automatically grand larceny 4th degree. What are theses (8 items)

Back 33

1. Credit cards, 2. Accessory devices, 3. Public documents, 4. Guns, 5. Motor vehicles, 6. Religious scrolls/objects, 7. Any property obtained by extortion, 8. Any property stolen from the person of another

Front 34

What criminal defenses are available?

Back 34

NICE MICE EVADE WASPS.

Front 35

If the evidence produced at trial when viewed in a light favorable to the defendant reasonably and sufficiently supports the existence of the defense requested by the defendant to be charged to the jury, then what shall the judge do?

Back 35

The judge shall charge the jury with that defense.

Front 36

Most criminal law defenses are "AFFIRMATIVE DEFENSES", what are these?

Back 36

Which after the people have proven every element of the crime beyond a reasonable doubt, the defendant has the burden of proving affirmative defenses by a preponderance of the evidence, which requires that the defendant's evidence must be of a convincing quality as to outweigh the people's contrary evidence (51% to 49%).

Front 37

The people have the burden of disproving beyond a reasonable doubt ORDINARY DEFENSES, but only when?

Back 37

When it RAAINS.

Front 38

What have US Supreme Courts held states constitutionally responsible for imposing?

Back 38

The US Supreme Court has held that states can constitutionally impose a higher burden of proof on a defendant for affirmative defenses such as requiring clear and convincing evidence.

Front 39

What does the R from RAAINS stand for?

Back 39

R - The claim of right defense.
This arises when a defendant had a subjective good faith (even mistaken) reasonable belief that the money or property he is accused of stealing was his and he had the right to do so.
In NY, this defense is available only for a wrongful TIP taking larceny or a larceny by embezzlement, where there is no force or threat of force used. It is not available in NY for the crime of robbery or larceny by extortion where force or coercion is an element.

Front 40

What does the first A from RAAINS stand for?

Back 40

A - The alibi defense.
This defense asserts that when the crime occurred, the defendant was somewhere else, and not at the crime scene. The people must prove beyond a reasonable doubt that the defendant committed the crime at the crime scene and that he was not elsewhere when the crime occurred. Essay 5, February 2009 and Essay 2, February 2013.
To establish an alibi, the defendant frequently will introduce a witness to corroborate his alibi.
An alibi witness who is a close friend or relative can be cross examined as to why she did not immediately come forward with her alibi when she knew the defendant was in jail awaiting trial. However, the court must grant a defendant's request to charge the jury that an alibi witness has no duty to volunteer alibi information to the police. The DA can request a jury instruction that an alibi witness's failure to promptly come forward may bear on her credibility.
Most states (NY) mandate that the defendant must give the prosecution timely notice of alibi witnesses. Otherwise, he waives the right to call them. This notice requirement affords the state an opportunity to investigate the alleged alibi and it does not violate a defendant's right to fair trial, due process, or equal protection. The failure to give timely notice of alibi witnesses does not preclude the defendant from taking the stand and giving alibi testimony.
In NY, if the DA serves a demand for alibi witnesses. Within 20 days from the defendant's arraignment, the defendant must provide an alibi list within 8 days, but the court can extend the 8 day period for good cause.

Front 41

What does the second A from RAAINS stand for?

Back 41

A - the agency defense.
When a defendant is approached by an undercover police officer to buy drugs and the defendant temporarily leaves and returns with the drugs, if that defendant is then arrested for selling the drugs, he frequently will assert the agency defense. This defense asserts that the defendant was the buyer's agent and thus can only be convicted of possession of drugs and for criminal facilitation.
A defendant's prior drug sale convictions are admissible to rebut the agency defense.
In determining this issue, the jury considers whether
1. the defendant said nothing to promote the sale
2. the defendant did not make a profit, but a tip is ok.
3. prior to the sale, the drugs were controlled exclusively by someone other than the defendant
4. the sale was initially suggested by the buyer and not by the defendant. and
5. whether the defendant previously sold drugs.

Front 42

What does the I from RAAINS stand for?

Back 42

I - infancy.
In NY and in common law, infancy is a complete criminal defense for an infant under age 7.
If I, the 12 year old infant had lived, in NY he would have been adjudged a juvenile delinquent in the family court since he was between the age of 15 and 7 years old when the crime was committed. A NY youth engaging in criminal conduct who has not reached his 16th birthday on the date of the crime is considered a juvenile delinquent (JDs), and generally is not responsible for his conduct. A JD is tried in the family court where he faces a reduced sentence.
For NY infants, 13 or older when charged FIG with murder or a sexually motivated felony or 14 or 15 year olds who have committed 30 various crimes of violence will be subjected to a more severe sentence in the criminal court and the family court lacks subject matter jurisdiction to hear these cases unless "in the interest of justice", the criminal court transfers it to the family court. These violent youths will be subjected to a more severe jail sentence.
If I had lived, I could not have been found guilty of a crime. Thus, the trial would take place in the family court and if found guilty, I would have been adjuged a JD.
The US Supreme Court has held 1. the burden of proof in a JD prosecution requires proof beyond a reasonable doubt., 2. the juvinel is entitled to the right to counsel, Miranda warnings, the right to confrontation (cross examination), and 4. against unreasonable searches and seizures, but is not constitutionally entitled to a jury trial in the family court because of the court's rehabilitative goals., and 3. it is an 8th Amendment violation against cruel and unusual punishment for the Court to impose on a juvenile (a) the death penalty on someone under age 18 when the homicide was committed, (b) life without the possibility of parole for a non-homicide crime or (c) mandatory life without parole for homicides. Instead, the court should look at the juvenile's character and the circumstances of his involvement in the killing.

Front 43

In NY, how would I, the infant be treated if he was 16, 17, or 18 years old?

Back 43

After I's conviction or his plea of guilty in the criminal court, the court must consider whether to adjudge I , a youthful offender (YO). If a criminal defendant is under the age of 19 when the crime occurred and he has no prior felony convictions or YO adjudications, then the court must advices the felony of misdemeanor defendant of his possible eligibility for YO treatment regardless of whether the defendant request it or not and the court must order a pre-sentence YO investigative report. This right cannot be waived by the defendant in his pla bargain, but what many NY DAs are doing in their plea agreement with the defendant is to reserve the right to withdraw the plea if the court grants that defendant YO treatment. By statute, YO treatment can’t be granted for an A felony, for an armed felony unless there are mitigating circumstances where the youth has previously been convicted of a felony, or where he has previously been given YO treatment.
If the court grants the defendant YO treatment,t his conviction is vacated and replaced with a YO adjudication. His criminal record is sealed. The maximum sentence is 4 years and the civil disabilities arising out of a criminal conviction cannot be imposed. (i.e. disqualification from public housing, public office, and public employment).
If the NY defendant 16, 17, or 18 years old is charged with a MISDEMEANOR (a possible punishment of 1 year or less), then if he has never previously been convicted of a crime or previously adjudicated a YO, then he must (the court has no discretion) be afforded YO treatment and the maximum sentence the court can impose is 6 months.

Front 44

Is the mandatory YO defendant entitled to a jury trial as of right?

Back 44

No because the US Supreme Court has held that a defendant has a right to a jury trial only for a "serious crime", which is a crime that may bring an authorized maximum penalty of more than 6 months in jail.
Distinguish the right to a jury trial from a criminal defendant's right to counsel, which requires counsel whenever a defendant is faced with any possible incarceration.

Front 45

What does the C stand for?

Back 45

C – Choice of evils defense (aka necessity)
To invoke the necessity defense, a defendant must be faced with 2 evils. NY adopts the choice of evils defense, but surprisingly calls it the defense of “justification” to “an emergency” where defendant is faced with two evils.
In an emergency, illegal conduct may be justified as a lesser evil to avoid an even greater evil provided the emergency was not caused by the defendant and there was no reasonable opportunity to avoid the harm.

Front 46

What does the S from RAAINS stand for?

Back 46

S - Self-defense (aka justification).
Review the tort of battery and self-defense.
The justification defense is an ordinary defense in NY, but is an affirmative defense in MBE, which arises when a defendant is unlawfully threatened or attacked and the defendant repels the attack, but is then charged with a crime of violence (i.e. a homicide or a criminal battery). Justification is not an available defense for the crime of an unlawful possession of a weapon.
Justification involves force that is otherwise criminal, but which under the circumstances was legal to prevent immediate unlawful force or conduct by another either on the criminal defendant or on a 3rd person.

Front 47

What must be measured to determine if the force used was reasonable?

Back 47

To determine if the force used was reasonable, the dendant's conduct is measured by whether a "reasonable person: would have used similar force under similar circumstances. The reasonableness of the force is determined by the harm the defendant intended to prevent. In NY, a jury should be instructed to consider both the objective and subjective factors to determine if the force was reasonable. Relevant factors may include a defendant's prior life experiences.

Front 48

"DEADLY FORCE" is force that is readily capable of causing death or serious injury. Deadly force is justified (it's not criminal) if the defendant reasonably believed it was necessary to use it. What are the 3 things in which deadly force is justified?

Back 48

1. If the MBE defendant's home was threatened or being unlawfully invaded even though the defendant's physical well-being was not in jeopardy. The defense of habitation is broader in allowing deadly force than it is out on the sidewalk. Since 2005, more than 40 states permit a home resident to kill an intruder by presuming rather than requiring proof of a reasonable fear of death or serious injury. NY limits this right to kill in the home to a burglar (e.g. where the victim unlawfully entered or remained with the intent to commit a crime in the home) even though the intruder did not use deadly force or even threatened deadly force.
2. To prevent or terminate a BRAKERS felony even 1 not life threatening, but NY requires reasonable belief that a life was threatened except to terminate a burglary. or
3. Where the victim was using or about to use deadly force. However, under the model penal code and in a majority of states (NJ and NY), a person who reasonably believes that another is using or about to use deadly force cannot reciprocate with deadly force if he knows that he can retreat with complete safety at no risk to himself or to others.

Front 49

What is the “stand your ground” statute?

Back 49

FL and about 20 states have adopted "stand your ground" statutes applying not only inside the home, but out on the street allowing the use of deadly force if the defendant reasonably believed, even mistakenly he was in imminent danger of being killed or seriously injured and in these states, there is no duty to retreat.

Front 50

In the majority of states, there is no duty to retreat before using deadly force in what 4 instances?

Back 50

1. if the defendant was inside her home and was not the initial aggressor.
2. if the defendant was a police officer
3. if the defendant reasonably believed deadly force was necessary to prevent or terminate a homicide or a BRAKERS crime.
4. if the defendant is threatened with a gun since a safe escape is not an alternative when faced with a gun. An attempt to retreat from a pointed firearm invites almost certain death.

Front 51

An initial aggressor may not assert the defense of justification unless what 2 things happen?

Back 51

1. the non-deadly initial aggressor (using his fists) was met with deadly force and was unable to safely retreat or 2. the initial aggressor withdrew expressly or impliedly indicating the fight was over and the other party continued the aggression.

Front 52

A criminal defendant asserting self-defense may introduce at the trial evidence of the victim's prior violent RAT. What does RAT stand for?

Back 52

R - violent reputation
A - prior violent acts
T - the victim's prior threats to injure or kill the defendant

Front 53

Provided the defendant was aware of RAT, in NY and MBE, it i relevant and admissible to show the defendant's what 3 things things?

Back 53

1. fear of the victim motivated the defendant's violent conduct, 2. reasonable belief that the victim was going to attack the defendant, and 3. the defendant's use of force was reasonable under the RAT circumstances.

Front 54

NY does not permit evidence of the victim's violent reputation or prior violent acts (RAT), unless they were known to the defendant. What does FRE allow?

Back 54

FRE allows such evidence even if the defendant was unaware of these facts because it is relevant on the issue of who was the initial aggressor.

Front 55

Are threats to harm or kill the defendant made by the victim even if the defendant was unaware of these threats admissible in MBE and NY?

Back 55

Likewise, threats to harm or kill the defendant made by the victim even if the defendant was unaware of these threats are admissible in MBE and NY on the issue of the victim's state of mind and whether the victim was the initial aggressor because it is probable that the victim acted on his intended threats.

Front 56

When a criminal defendant opens the door by offering evidence of the victim's RAT, then the prosecutor can respond by offering evidence of what 2 things?

Back 56

(a) the same RAT character traits of the criminal defendant that the defendant first introduced against the victim or (b) in homicide cases, evidence of the victim's good character trait for peacefulness and non-violence to rebut the defendant's evidence that the victim was the initial aggressor.

Front 57

All of the other criminal law defenses except for RAINS are affirmative defenses, which the defendant must prove who?

Back 57

By a preponderance of the evidence.

Front 58

What is entrapment?

Back 58

Entrapment most ferquently arises in clandestant crimes (prostitution,illegal gambling, child pornography, bribery of a public official, or the sale of contraband) where the police must go under cover to gather evidence of such crimes. If the police solicit a defendant, frequently the defendant will raise the entrapment defense.

Front 59

Entrapment arises where law enforcement unfairly (due process) how (4 things)

Back 59

1. originate the criminal idea
2. propose it to the defendant
3. actively encourage it and
4. the defendant if left alone, would not have committed that crime.

Front 60

What must happen with the government during entrapment?

Back 60

The government's inducement must be active. Entrapment is not merely affording a defendant an opportunity to commit a crime.

Front 61

Entrapment has 2 elements, what are they?

Back 61

1. the government's conduct of inducing and encouraging the defendant to act criminally. It involves substantial persistent persuasion by the government, which creates a substantial risk that a crime would be committed by someone who is not inclined to commit it AND 2. when the defendant was approached, he was not predisposed to commit the crime.

Front 62

What is a hybrid defense under entrapment?

Back 62

Entrapment is a hybrid defense because defendant has burden of proving #1 and prosecution has burden of proving #2 on people’s direct case.

Front 63

May defeat burden from what 3 things?

Back 63

a) defendant’s curse of criminal conduct similar to the current charge,
b) the defendant’s willingness to commit the crime by evidence of his rapid response to government inducement or
c) defendant’s existing intent to commit the crime.

Front 64

What happens during entrapment with prior evidence of similar convictions?

Back 64

Thus, evidence of the defendant's similar prior convictions and prior similar uncharged acts are admissible to disprove the defendant's entrapment claim that he was not criminally predisposed to commit the crime until contacted by the police.

Front 65

What is the burden of the defendant?

Back 65

The burden is on the defendant to show that he was entraped into committing the crime and the burden then shifts to the government to demonstrate that the defendant was predisposed to commit that crime.

Front 66

How have courts shifted emphasis away from element #1?

Back 66

The courts have shifted the emphasis away from element #1 (the misconduct of the police) by holding that if the defendant was predisposed to commit the crime (element #2), then the government's inducement will not be considered entrapment unless their conduct was "outrageous".

Front 67

What is the defense of vagueness and over-breadth of penal statutes?

Back 67

Vagueness and over-breadth are closely interrelated with 1st Amendment protection, but these defenses are not limited solely to 1st Amendment issues. They may apply to any criminal or civil statute. (i.e. A total ban on all late term abortions was found overly broad. The statute should have been more narrowly drawn to allow late term abortions for a mother's health or to save her life.)

Front 68

How does a vauge penal statute violate due process?

Back 68

A vague penal statute violates due process because it fails to give a person of ordinary intelligence fair notice of what is a crime. A person should not have to guess at the meaning of a statute. (i.e. Making a crime "to loiter" without apparent reason.)

Front 69

A vague statute also invites what?

Back 69

Arbitrary and discriminatory enforcement by the police.

Front 70

What is a bill of attainder?

Back 70

The 2 bill of attainder clauses in the US Constitution prohibit 1. Congress and 2. state and local legislatures from enacting laws that inflict civil or criminal punishment on named individuals or on groups without any judicial trial. It is a law that legilslatively determines guilt and inflicts criminal or civil punishment without a trial. (i.e. A law prohibiting any member of the Communist Party from becoming a lawyer or a member of the U.S. military was found by the US Supreme Court to punish and not to regulate.) (i.e. A law providing that any city official that was found guilty by a majority vote of the city council would forfeit a year's salary, be imprisoned for 6 months and be removed from office.)

Front 71

What is the defense of duress?

Back 71

This defense arises when a defendant is faced with an immediate threat of death or serious injury and chooses to commit a crime instead of suffering the consequences of the threat. A defendant acts under duress when through no fault of his own, he is faced with immediate death or serious injury to himself or to a 3rd person unless he agrees to commit a crime.

Front 72

A defendant forced to commit a crime out of fear must show what 2 things?

Back 72

1. he did not intentionally or recklessly place himself in a position that it was probable he would be forced to choose criminal conduct (i.e. A co-conspirator who gets cold feet and wants to back out of the crime, but is then forced to participate.) and 2. he had no reasonable alternative, but to break the law. (e.g. he could not escape or seek assistance from the police).

Front 73

When is duress (coercion) not an available defense?

Back 73

Duress (coercion) is an available defense to all crimes except in MBE, it cannot be asserted for an intentional murder or its attempt, but in NY, duress is available for all crimes including an intentional murder.

Front 74

What is ex post facto laws (EPF)?

Back 74

In order to raise the EPF defense on a new criminal law, that law must apply to crimes occurring before the law's enactment. EPF prohibits the government from enacting laws that retroactively affect criminal activity after that criminal act occurred. The 2 EPF clauses in the Constitution prohibit congress and state legislatures from retroactively altering the definition of a crime or increasing the punishment for a defendant's criminal conduct that occurred before the law became effective. To determine an EPF violation, the court looks at the date of the crime and at the subsequent date the law became effective (not the earlier date when the law was first passed by the legislature).

Front 75

Retroactive penal laws violate what?

Back 75

ex post facto if those laws are PIED.

Front 76

What does PIED stand for?

Back 76

P - the new law made past conduct a crime, which at the time the crime occurred was not a crime.
I - the new law increased the punishment for a prior crime. (i.e. A retroactive death penalty or enacting longer mandatory sentences, than were imposed on the date the crime was committed).
E - changing the rules of evidence for a prior crime by making it easier to convict the defendant. For example: (a) abolishing the accomplice corroboration requirement for a conviction, (b) eliminating the spousal testimonial privilege (see lecture 35), or (c) reducing the number of jurors required for a conviction (from 12-11).
D - a new law eliminating defenses, which defenses existed on the date of the crime. For example, retroactively eliminating the CUB defense for felony murder.
If a criminal s/l has expired for a defendant's criminal conduct, the state cannot retroactively revive it because it would violate EPF. However, if the criminal s/l has not yet expired for a defendant's prior crime, then it can be lengthened or abolished by the legislature. Once it has expired, it becomes absolute amnesty for criminal defendant.

Front 77

Does a court's decision retroactively abolishing the year and 1 day causation in homicide cases violate the EPF?

Back 77

No because EPF applies only to legislative acts and not judicial decisions.

Front 78

EPF does not apply to civil or regulatory sanctions imposed for a defendant's prior crimes or past conduct. For example, a new law (a) making a past crime a new basis for deportation, (b) disqualifying a prior felon from obtaining a professional license, (c) requiring all prior sex offenders to register under the Sex Offender Act or (d) statutorily extending the length of a stay away protection order from 5 years to 8 years even for crimes committed before statute’s enactment because its intent was to provide greater protection for victims and not to punish defendants. Why did these not violate EPF?

Back 78

This did not violate EPF because it was regulatory in nature to promote public safety and it was not intended as criminal punishment.

Front 79

What is a withdrawal from a crime (aka Renunciation of the Criminal Purpose)?

Back 79

This defense requires proof that the defendant voluntarily abandoned the criminal plan prior to its commission. This defense will not be successful if the defendant discontinue the criminal plan where circumstances arose that increased the defendant's chance of getting caught or completing the crime successfully.

Front 80

What happens during a withdrawal of a crime when the defendant has accomplices?

Back 80

When the defendant has accomplices, then she must effectively announce her withdrawal to all accomplices in time for them to effectively also abandon the crime. NY further requires that the withdrawing defendant to make a "substantial effort" to prevent the crime's commission. For example, notify the police or the intended victim.

Front 81

Is the defense of a withdrawal form a crime available for the anticipatory crimes of conspiracy?

Back 81

In MBE and in a majority of states, this defense is not available for the anticipatory crimes of conspiracy (once an overt act has occurred), attempt (once a substantial step has been taken), solicitation or facilitation, but a renunciation is an effective defense for any post withdrawal crimes committed by other co-conspirators.

Front 82

Does NY allow renunciation of anticipatory crimes of solicitation, attempt, or conspiracy?

Back 82

NY follows the model penal code and allows renunciation of anticipatory crimes of solicitation, attempt, or conspiracy provided the defendant thwarts (prevents) the commission of that crime by accomplices.

Front 83

What must the defendant do to renounce a NY criminal facilitation?

Back 83

To renounce a NY criminal facilitation, the defendant must make a substantial effort to prevent the crime's commission.

Front 84

What is considered a Mistake of Fact or Mistake of Law?

Back 84

A defendant's mistake of fact is a criminal defense if the mistake negates the CRIM K mens rea required to commit the crime. However, if the defendant would be guilty of another crime based on his mistake of fact, then the defendant can be convicted of that crime.

Front 85

What a mistake in the identity of the victim, is this a defense for the defendant?

Back 85

A mistake in the identity of the victim is no defense to the defendant.

Front 86

Is mistake of fact a defense for the defendant?

Back 86

Mistake of fact is not a defense when the defendant mistakenly thought he was committing a less serious type of crime.

Front 87

Problem: D saw P walk out of a restaurant. Defendant mistakenly thought P was wearing D’s coat. D followed P home and waited for P to go out. Then D opened an unlocked window to go in and get her got. She discovered it was not her coat, but decided to take it anyway. Is D guilty of
1. larceny?

Back 87

Yes, TIP.

Front 88

Problem: D saw P walk out of a restaurant. Defendant mistakenly thought P was wearing D’s coat. D followed P home and waited for P to go out. Then D opened an unlocked window to go in and get her got. She discovered it was not her coat, but decided to take it anyway. Is D guilty of
2. Burglary?

Back 88

No because D did not break and enter P’s dwelling at night with specific intent to commit a crime therein. Her mistake of fact negated that intent.

Front 89

Are strict liability crimes excused by the defendant’s mistake of fact?

Back 89

Strict liability crimes are not excused by he defendant's mistake of fact (i.e. Selling liquor to a minor or statutory rape of a consenting minor or mental incompetent, but about 1/3 of the states permit this defense in rape statutes.)

Front 90

What is a mistake of fact defense?

Back 90

Mistake of fact is a defense to the crime of attempt to commit a strict liability crime if the defendant's mistake negates the element of intent that is required for the crime of attempt.

Front 91

IN NY, where D is charged with statutory rape of an intellectually challenged person or a physically helpless person, what is the defense?

Back 91

It is a defense that D was not aware of the victim's incapacity.
Mistake of fact is a defense to the crime of statutory rape of a mentally deficient person providing the defendant was not aware of defendant’s incapacity. (NY).