Ny Bar 2007 Criminal Law & Procedure

Front 1

Can you convict someone solely based on accomplice testimony?

Back 1

MBE - sure
NY - NO

Front 2

If the principal in a crime is acquitted, can the accomplice be liable?

Back 2

NY - YES
acquitted, immune, or not prosecuted ok

Front 3

What is the scope of conspirator liability?

Back 3

MBE - liability for all crimes of co-conspirators that are (1) in furtherance and (2) foreseeable
NY - NO liability for co-conspirator's crims if ALL D did was conspire

Front 4

How can you withdraw from a conspiracy?

Back 4

MBE - you CANNOT (but you can withdraw from co-conspirator's crimes)
NY - must (1) PREVENT commission and (2) renounce the conspiracy

Front 5

Can you be convicted of conspiring with a police officer?

Back 5

NY - YES - "unilateral theory"

Front 6

Can you be convicted of conspiracy when all your co-conspirators have been acquitted?

Back 6

MBE - NO
NY - YES

Front 7

What are some NY defenses?

Back 7

self-defense, infancy
prosecution must DISPROVE beyond reasonable doubt

Front 8

What are some NY affirmative defenses?

Back 8

insanity, entrapment, duress
D must prove by a preponderance of evidence

Front 9

What's the M'Naghten insanity test?

Back 9

at time of act, D lacked ability to know wrongfulness of action or to understand nature and quality of act

Front 10

What's the NY insanity defense?

Back 10

at time of act, because of mental disease or defect, D lacked capacity to know or APPRECIATE wrongfulness of action or nature and consequences of actions

Front 11

What is assault?

Back 11

MBE - attempted battery, threat
NY - same as BATTERY

Front 12

What is CL murder?

Back 12

Intent to kill
Intent to inflict serious bodily harm
"depraved heart recklessness"
felony murder - foreseeable, not co-felons

Front 13

What is Murder 1 in NY?

Back 13

Intentional killing (intent to KILL) AND
some special circumstance

Front 14

What is Murder 2 in NY?

Back 14

Intentional killing (no special circumstances)
"Depraved indifference" murder
Felony murder - BRAKES

Front 15

What is the affirmative defense to felony murder in NY?

Back 15

(1) D did not commit or aid in commission of killing
(2) D was not armed
(3) D had no reason to know that any participant was armed
(4) D had no reason to know that any participant would engage in conduct likely to result in death

Front 16

What is Man 1 in NY?

Back 16

Intent to do bodily harm
Passionate killing

Front 17

What is Man 2 in NY?

Back 17

Recklessness

Front 18

What is negligent homicide in NY?

Back 18

Seriously blameworthy conduct AND
Foreseeability that death would result

Front 19

What is CL voluntary manslaughter?

Back 19

Passioned killing

Front 20

What is CL involuntary manslaughter?

Back 20

Criminal negligence
Misdemeanor manslaughter

Front 21

What is 1st Degree Kidnapping in NY?

Back 21

Abduction AND
(1) victim dies
(2) ransom involved
(3) intent to harm victim
otherwise kidnapping 2nd degree

Front 22

What is robbery 1st degree in NY?

Back 22

Forcibly stealing property AND
(1) armed with deadly weapon OR
(2) serious injury caused

Front 23

What is robbery 2nd degree in NY?

Back 23

Forcibly stealing property AND
(1) aided by another
(2) causes physical injury OR
(3) threatens physical force

Front 24

What is CL robbery?

Back 24

Wrongful taking
Carrying away
Without consent
With intent at time of taking to deprive permanently (can change mind)
From the presence
by use of threat or force

Front 25

What is CL larceny?

Back 25

Taking
Carrying away
Without consent
With intent to permanently deprive of property

Front 26

What is CL arson?

Back 26

malicious
burning of a
dwelling
belonging to another

Front 27

What is 3rd degree arson in NY?

Back 27

intentional damage to building
by fire or explosion

Front 28

What is CL burglary?

Back 28

entering
dwelling
at night
with intent to commit a felony therein

Front 29

What is 3rd degree burglary in NY?

Back 29

entering or remaining unlawfully
in a building
with intent to commit a felony therein

Front 30

What is 2nd degree burglary in NY?

Back 30

unlawfully entering or remaining in a building with intent to commit a felony therein AND
(1) dwelling
(2) injury
(3) armed

Front 31

What is 1st degree burglary in NY?

Back 31

basic burglary AND
DWELLING AND
(1) injuryt or
(2) D is armed

Front 32

To what proceedings is the exclusionary rule NOT applicable?

Back 32

(1) grand juries
(2) civil proceedings
(3) parole revocation proceedings

Front 33

When is an attorney required during a lineup?

Back 33

MBE - POST-charge
NY - POST-charge and
PRE-charge when:
(1) D is represented by counsel
(2) D explicitly requests counsel AND
(3) police KNOW that D is represented

Front 34

What is standard for arrest?

Back 34

Probable cause = reasonably prudent person would believe that D is committing (has committed) a crime

Front 35

What is standard in NY for inquiry?

Back 35

founded suspicion that criminal activity is afoot
(1) detention must be short and
(2) must release if D gives explanation

Front 36

What is the standard for stop & frisk?

Back 36

"reasonable suspicion" supported by articulable facts

Front 37

What is the standard for a request for information in NY?

Back 37

any grounds except whim or caprice - running away does NOT give probable cause

Front 38

What is required for a valid search warrant?

Back 38

(1) based on probable cause
(2) stated with particularity the places to be searched and things to be seized
(3) issued by neutral and detached magistrate

Front 39

What is required in NY for a valid search warrant based on informants?

Back 39

Affidavit must
(1) set forth sufficient underlying facts and circumstances of how informant obtained information and
(2) support the reliability and credibility of the informant

Front 40

When does NY's indelible right to counsel attach?

Back 40

(1) when D is in custody and police engage in activity overwhelming to layperson and D requests counsel
(2) at arraignment
(3) upon filing of accusatory statements
(4) when significant judicial activity occurs

Front 41

What is the standard for due process violation in identifications?

Back 41

methods that are
(1) unnecessary and
(2) subjective such that
(3) substantially likely to produce misidentification

Front 42

When can counsel be present in the grand jury room?

Back 42

If the witness has waived immunity

Front 43

When is there a USC right to a jury trial?

Back 43

max sentence (or sentences together) exceed 6 months

Front 44

What is the standard for reversal due to ineffective assistance of counsel in NY?

Back 44

(1) deficient performance by counsel
(2) but-for such deficiency, the RESULT would have been different
NY is slightly more liberal than Supreme Court

Front 45

What must the judge tell the D on the record after announcement of guilty plea?

Back 45

(1) nature of charge
(2) maximum authorized sentence and any minimum sentence
(3) right to plead not guilty and right to trial

Front 46

In NY, can a prosecutor's plea be conditional on a waiver of the D's right to appeal sentencing or pretrial proceedings?

Back 46

YES

Front 47

What is the "same offense" for double jeopardy purposes?

Back 47

MBE - NOT same if two crimes each require and element that the other does not
NY - all crimes arising from single criminal TRANSACTION must be charged together - except if V dies in a battery case, can be charged with murder

Front 48

What are some crimes that are larceny by statute in NY?

Back 48

issuing a bad check to purchase property
extortion
embezzlement
false promises

Front 49

Does the police need probable cause to arrest you to fingerprint you or interrogate you?

Back 49

YES

Front 50

What is NOT considered testimonial for Miranda purposes?

Back 50

Blood or urine samples
Fingerprinting
Breathalyzer
Walking the line (for drunkies)