Ny Bar - Crim Law

Front 1

What are the essential elements of criminal responsibility?

Back 1

1) act or omission(actus reus);
2) mental state (mens rea); and
3) concurrence of act and mental state.
4) Causation

Front 2

What is the actus reus?

Back 2

1) Voluntary bodily movement; or
2) Omission under a legal duty to act.

Front 3

What are 3 typical forms of involuntary acts?

Back 3

1) conduct not the product of one's own volition
2) Reflexive or convulsive acts
3) Acts when unconscious or asleep

Front 4

When can D be held liable for an omission?

Back 4

1) There is a legal duty to act
2) D has knowledge of the facts giving rise to the duty to act; and
3) D has the ability to help

Front 5

What 5 situations can give rise to a DUTY to act?

Back 5

1) Statute
2) Status Relationship
3) Contract
4) Voluntary Assumption of Care
5) Creation of the Peril

Front 6

What are the 4 levels of Common Law (CL) Mental States?

Back 6

1) Specific Intent
2) Malice
3) General Intent
4) Strict Liability

Front 7

What constitutes specific intent?

Back 7

Specific objective or intent to engage in the crime

Front 8

What are the 11 Specific Intent Crimes?

Back 8

BAFFLE SCARF (my really weird mnemonic)

B - Burglary
A - Assault
F - Forgery
F - False Pretenses
L - Larceny
E - Embezzlement
S - Solicitation
C - Conspiracy
A - Attempt
R - Robbery
F - First Degree, Premeditated Murder

Front 9

What constitutes malice?

Back 9

Acts that are intentional or with reckless disregard of an obvious or known risk that a particular harm will result

Front 10

What are the important malice crimes?

Back 10

1) Common law murder
2) Arson

Front 11

What constitutes general intent?

Back 11

General awareness of factors constituting a crime (knowing the actions and circumstances)

Front 12

What are important general intent crimes?

Back 12

Battery
Rape
Kidnapping
False Imprisonment
(crimes against the person)

Front 13

What constitutes Strict liability?

Back 13

One that does not require intent/awareness of all of the factors constituting the crime. (ie, no intent required... just doing the act is enough)

Front 14

What are the 2 strict liability categories?

Back 14

1) Public Welfare Offenses
2) Statutory Rape

Front 15

What is the NY/MPC Standard for mental states?

Back 15

1) Intentionally
2) Knowingly
3) Recklessly
4) Negligently
5) Strict Liability

Front 16

When does a person act knowingly?

Back 16

When a D is aware that his conduct is of a particular nature or knows it is very likely to cause a result.
"willfully" = "knowingly"

** equivalent to common law malice

Front 17

When does a person act intentionally in NY?

Back 17

When D's conscious objective is to engage in certain conduct or cause a certain result.

** purposely = to common law specific intent

Front 18

When does a person act recklessly?

Back 18

When D knows of a substantial and unjustifiable risk and consciously disregards that risk; knowing about that risk, yet not caring

Front 19

When does a person act negligently?

Back 19

When D should have known about a substantial and unjustifiable risk, where such failure is a substantial deviation from the standard of care. (objective standard)
Being stupid

Front 20

What is Actual Causation?

Back 20

But for the D's conduct, would the victim have suffered the injury/died/etc.?

Front 21

What is Proximate Causation?

Back 21

Is the bad result a natural and probable consequence of D's conduct?

Front 22

What is the significance of concurrence?

Back 22

D must have the required mental state when he engaged in the act
(usually comes up in Larceny)

Front 23

Who are the parties to the crime under most modern statutes?

Back 23

1) Principle (person who commits the offense)
2) Accomplice (person who aids or encourages the principal - active involvement)
3) Accessory (person who aids another to escape, knowing he has committed a felony)

Front 24

What is the scope of accomplice liability?

Back 24

He is responsible for:
1) the crimes he committed or encourage the principal to do; and
2) any other foreseeable crimes committed by the principal in the course of committing the crime contemplated

Front 25

What is the liability of an accessory?

Back 25

Liable for separate, less serious crime of being an accessory after the fact.

Front 26

What mental state is required to be liable as an accomplice?

Back 26

Most jurisdictions require that the person acted with the intent to encourage the crime.

Front 27

If principal is not prosecuted, can the accomplice still be prosecuted under CL and NY?

Back 27

YES

** In NY, accomplice cannot benefit from principal's defense that negates mental state

Front 28

Under CL, what is necessary for withdrawal by an accomplice to be an effective defense?

Back 28

1) Renunciation if party merely encouraged;
2) Affirmative Attempt to neutralize assistance or notifying the police is required otherwise;

Front 29

Under NY, what is necessary for withdrawal by an accomplice to be an effective defense?

Back 29

Accomplice must make substantial effort to stop the crime from happening even if all he did was encourage the crime in order to withdraw

Front 30

What is the NY Accomplice/Witness Rule?

Back 30

D cannot be convicted of a crime based on uncorroborated testimony of accomplice

Front 31

What are the inchoate crimes?

Back 31

1) Solicitation
2) Conspiracy
3) Attempt

Front 32

What is solicitation?

Back 32

Inciting, counseling, advising, urging, or commanding another to commit a crime, with the specific intent that they do it

**The crime is in the asking

Front 33

Is withdrawal a defense to solicitation?

Back 33

NO

Front 34

Does the crime of solicitation merge under CL?

Back 34

YES; cannot be punished for solicitation & attempt/conspiracy/crime committed

Front 35

What is conspiracy?

Back 35

1) An agreement between two or more people
2) with intent to enter into that agreement
3) with the intent to achieve the objective of the agreement/commit the crime
4) An overt act in furtherance (NY Rule)

Front 36

What is necessary for an agreement in a conspiracy?

Back 36

The parties must agree to accomplish the same objective by mutual action.

CL - actual meeting of two guilty minds, not just pretending to go along with it
NY - unilateral approach that D can be convicted of conspiracy even if just pretending to agree

Front 37

Under CL, What is the effect of acquittal of some conspirators?

Back 37

If all conspirators are acquitted, the last one must be, too.

Front 38

What is Conspirator liability?

Back 38

As general rule, each conspirator is liable for all crimes of co-conspirators in furtherance of the conspiracy IF those crimes were foreseeable

Front 39

Under NY, what is the effect of acquittal of some conspirators?

Back 39

If all conspirators are acquitted, the last one can still be prosecuted

Front 40

Under Common Law, can a person conspire with an undercover police officer?

(As opposed to in NY)

Back 40

Generally No, because only one D intended that the crime be completed.

Front 41

What intent is required for conspiracy?

Back 41

Specific intent to:
1) agree
2) achieve the object of the conspiracy.

Front 42

When does the conspiracy terminate?

Back 42

Upon completion of the wrongful objective.

Front 43

Is withdrawal a defense to conspiracy in CL?

Back 43

NO, there is no withdrawal for inchoate offenses in CL. but may be a defense to crimes in furtherance of the conspiracy and the target crime.

Front 44

Does the merger doctrine apply to conspiracy?

Back 44

NO, there is no merger

Front 45

What is attempt?

Back 45

1) An overt act
2) Done with intent to commit a crime
3) That falls short of completing the crime/gets dangerously close to the commission of the crime

**Dangerous Proximity - Attempt needs something more than overt act needed for conspiracy

Front 46

What is the mental state required for attempt?

Back 46

An attempt always requires a specific intent.

**Regardless of the intent necessary for the completed offense

Front 47

What will constitute an overt act for attempt?

Back 47

D must commit an act beyond mere preparation, as measured by the proximity test or the substantial step test.

Front 48

What is the substantial step test for attempt?

Back 48

For attempt, the act must be a substantial step in a course of conduct planned to culminate in the commission of the crime that strongly corroborates criminal purpose (modern view)

Front 49

Is impossibility of success a defense to attempt?

Back 49

Factual impossibility is not. (eg, couldn't rob someone because they had no money)

Legal impossibility is a defense. (eg, it isn't a crime to do what D intended).

Front 50

Is abandonment a defense to attempt?

Back 50

NO, Abandonment is not a defense if D had the intent and did the dangerous proximity act.

Front 51

Does the merger doctrine apply for attempt under NY or CL?

Back 51

YES, attempt merges with the completed crime.

**In NY, Solicitation and Conspiracy do not merge!

Front 52

What are the defenses negating criminal capacity?

Back 52

1) Insanity
2) Intoxication
3) Infancy

Front 53

What are the tests used to determine whether D was so mentally ill (due to Mental Disease or Defect - MDoD) as to be acquitted?

Back 53

1) M'Naghten Rule
2) Irresistible impulse test
3) Durham test
4) MPC Test

Front 54

What is the M'Naghten rule for insanity?

Back 54

D is not responsible if, as result of MDoD, D didn't know the act was wrong or didn't understand the nature and quality of his actions

Front 55

What is the irresistible impulse test?

Back 55

D is unable to control his actions nor unable to conform his conduct to law due to MDoD

Front 56

What is the Durham test for insanity?

Back 56

D's Criminal Act is the product of the MDoD

**This is always wrong answer

Front 57

What is the MPC test for insanity?

Back 57

D lacked the substantial capacity to either appreciate the criminality of his conduct or conform his conduct to the requirements of law

Front 58

What is the NY test for Insanity?

Back 58

D must lack the substantial capacity to know or appreciate either the nature and consequences of his conduct OR that his conduct was wrong

**Combo of M'Naghten and MPC

Front 59

Who bears the burden of proof on sanity?

Back 59

D must raise the issue of insanity. Affirmative defense, so D bears the burden of proving his disabilities

**In NY, all D's are presumed sane

Front 60

What is the defense of involuntary intoxication?

Back 60

Defense to all crimes - intoxication against your will or without your knowledge

Front 61

What is the defense of voluntary intoxication?

Back 61

Defense to specific intent crimes IF intoxication prevents D from forming required intent; someone drunk on their own volition

NY: can be a defense to crimes of intent or knowledge if intoxication negates it; NOT recklessness or negligence

Front 62

What is the CL rule regarding the defense of infancy?

Back 62

If D is under the age of 7, no responsibility
If D is under the age of 14, there is a rebuttable presumption against criminal responsibility
If D is 14+, considered adult

Front 63

What is the NY rule regarding the defense of infancy?

Back 63

If D is 13, can be prosecuted for 2nd D Murder
If D is 14/15, can be prosecuted for serious crimes against property
If D is 16+, can be prosecuted for anything

Front 64

What are the 5 common Justification Defenses?

Back 64

1) Self Defense
2) Duress
3) Entrapment
4) Mistake of Law
5) Mistake of Fact

Front 65

What are the 3 factors for determining use of force for self-defense?

Back 65

1) Degree of force used (deadly or non-deadly?)
2) Immediacy of Threat
3) D's Status as an Aggressor

Front 66

When may a person use non-deadly force?

Back 66

If reasonably necessary to protect against an immediate use of unlawful force against himself

Front 67

Is there a duty to retreat under CL?

Back 67

NO

Front 68

Is there a duty to retreat under NY?

Back 68

YES, You must retreat if you can in complete safety, unless you are in your own home or if you were the initial aggressor

Front 69

When may a person use deadly force in NY or CL?

Back 69

If it is reasonably necessary to protect against an immediate use of unlawful force against you +
1) The imminent threat MUST be a threat of death or serious injury
2) MUST be without fault /not start the fight or withdraw from initial aggressor status if you did start the fight
3) In NY, Retreat if you can! In CL, you don't have to retreat

Front 70

When may the aggressor of the fight use self-defense?

Back 70

Only if:
1) He effectively withdraws from the altercation and communicates desire to do so; or
2) Victim suddenly escalate a minor fight into a deadly altercation and he has no chance to withdraw

Front 71

What is the defense of Duress?

Back 71

It is a defense to a crime other than a homicide that the D reasonably believed that another person would imminently inflict death or great bodily harm upon him or a member of his family.

**NY Affirmative Defense, can be used as defense to Homicide

Front 72

What is the defense of Entrapment?

Back 72

Unfair temptation when the criminal design originated with the police & D was not predisposed to commit the crime

Front 73

When is Mistake of Law a Defense?

Back 73

Never a defense unless statute specifically makes knowledge of the law an element of the offense

Ignorance of the Law is NOT an excuse

Front 74

When is Mistake of Fact a defense?

Back 74

Relevant to criminal liability only if it shows that D lacked the state of mind required for the crime.

**mistake need only be a reasonable one for non-specific intent crimes

**NY: it is a defense only if it negates the required mental state

Front 75

What is CL Battery?

Back 75

1) Unlawful application of force to the person of another,
2) resulting in either bodily injury or an offensive touching.

** Need not be intentional and need not be directly applied

Front 76

What is CL Assault?

Back 76

Either
1) an attempt to commit a battery, or
2) the intentional creation other than by mere words of a reasonable apprehension in the mind of the victim of immediate bodily harm

Front 77

What is NY Assault and its 3 degrees?

Back 77

Intentional injuring another person
1st D -> serious physical injury with a weapon
2nd D -> serious physical injury
3rd D -> physical injury

Front 78

What are the 3 CL categories of homicide?

Back 78

1) Murder
2) Voluntary Manslaughter
3) Involuntary Manslaughter

Front 79

What is Murder?

Back 79

The unlawful killing with malice aforethought.

Front 80

What constitutes malice aforethought? (4 mental states)

Back 80

1) Intent to kill;
2) Intent to inflict great bodily injury;
3) Extreme Recklessness / Reckless indifference to an unjustifiably high risk to human life / Abandoned and Malignant Heart; or
4) Felony Murder - Intent to commit a felony

Front 81

What is CL voluntary manslaughter?

Back 81

An intentional killing committed after adequate provocation

Front 82

What are the 4 elements of adequate provocation?

Back 82

1) Aroused sudden & intense passion in the mind of an ordinary person
2) D actually provoked
3) No cooling off period
4) D must not have, in fact, cooled off

Front 83

What is CL involuntary manslaughter?

Back 83

A killing committed with criminal negligence OR a killing committed during a crime (misdemeanor)

Front 84

What are the 2 types of NY Homicide?

Back 84

1) Intentional Killings
2) Unintentional Killings

Front 85

What are the 3 levels of intentional killings in NY?

Back 85

1) 1st Degree Murder
2) 2nd Degree Murder
3) 1st Degree Manslaughter

Front 86

What are the 3 forms of NY 2nd Degree Murder?

Back 86

1) Intentional Murder
2) Highly Reckless/Depraved Indifference Murder (unintentional)
3) Felony Murder

Front 87

What are the special circumstances used to bump up the charge to 1st D Murder in NY?

Back 87

1) Murder of a police officer
2) Witness intimidation
3) Murder for hire
4) During a serious felony
5) Judge
6) Torture Murder
7) In escape from a life sentence
8) Serial Killer
9) Terrorist Acts

Front 88

What is (intentional) 1st Degree manslaughter in NY?

Back 88

Extreme emotional disturbance; intentional killing committed under the influence of a reasonably extreme emotional disturbance

Front 89

What are the 4 levels of unintentional killings in NY?

Back 89

1) Depraved Indifference Murder/Highly Reckless Murder
2) 1st D Manslaughter
3) Basic Recklessness
4) Criminally Negligent Homicide

Front 90

What is Depraved Indifference Murder?

Back 90

Extreme Recklessness, utter disregard for human life from multiple people exposed to risk of death OR unintentional killing in a particularly brutal way

Front 91

What is (unintentional) 1st D Manslaughter in NY?

Back 91

Intent to cause serious physical injury that actually kills another

Front 92

What is Criminally Negligent Homicide?

Back 92

D should have been aware of what he was doing

Front 93

What is Basic Recklessness?

Back 93

Conscious disregard of a substantial risk, which causes the death of another person

Front 94

What is CL Felony Murder?

Back 94

Any death caused during the commission of or attempt to commit a felony

Front 95

What are the 6 limitations to CL Felony Murder?

Back 95

1) D must be guilty of the underlying felony
2) Felony must be "inherently dangerous"
3) Felony must be separate from the killing itself (Independent Felonious Purpose Rule)
4) Killing must be during the felony OR during immediate flight after
5) Death must be foreseeable
6) Dead person cannot be one of the felons

Front 96

What is NY Felony Murder? (list 6 felonies)

Back 96

Murder committed during 6 felonies:
1) Burglary
2) Robbery
3) Kidnapping
4) Arson
5) Rape or sexual abuse
6) Escape

Front 97

What is CL False Imprisonment?

Back 97

1) unlawful confinement of a person
2) without his valid consent

Front 98

What is CL Kidnapping?

Back 98

The false imprisonment that involves moving the victim or concealing the victim in a secret place

Front 99

What is NY Kidnapping and its 1st D?

Back 99

Abduction of someone

1st Degree -> ransom, restraint with intent to injure, OR if victim dies during the event

Front 100

What are the basic theft crimes?

Back 100

1) Larceny
2) Embezzlement
3) False Pretenses

Front 101

What is CL Larceny?

Back 101

The trespassory taking
and carrying away
of personal property
of another with the intent to permanently deprive the owner of property

Front 102

Is taking under a claim of right considered larceny?

Back 102

NO

Front 103

What is CL Embezzlement?

Back 103

The fraudulent conversion
of personal property of another
by a person already in lawful possession of that property

Front 104

What is CL False Pretenses?

Back 104

Obtaining title
to the personal property of another
by an intentional false statement
with the intent to defraud

Front 105

What is Larceny by Trick?

Back 105

If the victim is tricked into giving up possession of something, not title

Front 106

The only basic theft crime in NY is what?

Back 106

Larceny, measured by amount of money stolen!
3rd D - $30,000

Front 107

What are the Violent Theft Crimes?

Back 107

1) Robbery
2) Extortion

Front 108

What is CL Robbery?

Back 108

Taking of property from another's presence by force or threat of force with intent to steal

Larceny from another's person or presence by force or threat of immediate injury

Front 109

What is CL Extortion?

Back 109

Robbery where the threat is a future injury

Blackmail - when the threat is of embarrassment

Front 110

What is NY Robbery and its 3 degrees?

Back 110

The forceable stealing of property

3rd D - basic
2nd D - aided by another actually present OR victim is injured OR property stolen is a car
1st D - seriously injuring the victim OR using a LOADED FIREARM

Front 111

What are the crimes against Habitation?

Back 111

1) Burglary
2) Arson

Front 112

What is receipt of stolen property?

Back 112

1) Receiving possession and control;
2) Of "stolen" personal property;
3) Known to have been obtained in a manner constituting a criminal offense;
4) By another person;
5) With the intent to permanently deprive the owner of his interest in it.

**Note, intent and act must be concurrent (eg, you must know it's stolen when you take it.)

Front 113

What is forgery?

Back 113

1) Making or altering (by drafting, adding, deleting);
2) A writing with apparent legal significance;
3) So that it is false; (i.e., representing that it is something that it is not)
4) With intent to defraud.

**No one need actually be defrauded. If 3rd person is caused to sign but doesn't realize he's signing, it's forgery. If he realizes he's signing it, it's not forgery.

Front 114

What is possession of stolen property?

Back 114

Receiving stolen property and knowingly possessing it

Front 115

What is uttering?

Back 115

Offering a forged instrument with intent to defraud

Front 116

What is CL Burglary?

Back 116

1) A breaking (creating or enlarging an opening by at least minimal force, fraud, or intimidation);
2) And entering (placing any portion of the body or any instrument used to commit the crime into the structure);
3) Of a dwelling (a structure used with regularity for sleeping purposes, even if used for other purposes such as conducting a business);
4) Of another (ownership is irrelevant; occupancy by someone other than defendant is all that is required);
5) At nighttime;
6) With the intent to commit a felony inside (felony need not be carried out to constitute burglary)

Front 117

When must the intent to commit a felony be present for burglary under CL?

Back 117

At the time of entry.

Front 118

What is CL Arson?

Back 118

1) The malicious (i.e., intentional or with reckless disregard of an obvious risk);
2) Burning (requiring some damage to the structure caused by fire);
3) Of the dwelling;
4) Of another.

**Charring of wallpaper is considered arson, but not smoke damage

**MBE Q's often assume that arson extends to structures other than dwellings.

Front 119

Will an explosion constitute arson?

Back 119

NO, the damage must be caused by fire

Front 120

What is NY Burglary and its 3 degrees?

Back 120

3rd D -> entering or remaining unlawfully in a building with intent to commit a crime inside
**May be at night, may be a dwelling, no concurrence problem, any crime is OK

2nd D -> someone gets injured that didn't participate in the burglary OR weapon OR if it is a dwelling

1st D -> D must KNOW he is burglarizing a dwelling AND injury OR weapon

Front 121

What is NY Arson? (4 degrees)

Back 121

4th D -> reckless burning of a structure

3rd D -> intentional burning of a structure

2nd D -> intentional burning if D KNEW or should have known someone was inside

1st D -> 2nd D & an explosive or incendiary device is used

Front 122

When does an accomplice have an affirmative defense to felony murder?

Back 122

if:
(1) he did not commit or aid in the commission of the homicidal act;
(2) he was not armed with a deadly weapon or substance;
(3) he had no reasonable grounds to believe others were armed with deadly weapons or substances; and
(4) he had no reason to believe any participant intended to engage in conduct likely to result in death.

Front 123

In NY, if your co-conspirator is a police officer, can you still be guilty of conspiracy if all elements are met?

Back 123

YES. Even though he is a police officer and arguably cannot agree to the conspiracy, NY holds that lack of intent or capacity on the part of the co-conspirator is no defense to the charge. Especially when the sole co-conspirator is a police officer

Front 124

Which insanity defense is this?

D is not responsible if, as a result of mental disease or defect, D did not know the act was wrong or did not understand the nature and quality of his actions

Back 124

M'Naghten Test

Front 125

Which insanity defense is this?

D lacked the substantial capacity to know or appreciate either the nature and consequences of his conduct OR that his conduct was wrong

Back 125

NY Test

Front 126

Which insanity defense is this?

The Criminal Act is the product of mental disease or defect

Back 126

Durham Test

Front 127

Which insanity defense is this?

D is unable to control his actions or conform his conduct to law due to mental disease or defect

Back 127

Irresistible Impulse Test

Front 128

Which insanity defense is this?

D lacked the substantial capacity to either appreciate the criminality of his conduct or conform his conduct to the requirements of law

Back 128

MPC Test

Front 129

Under NY Law, can D be guilty of conspiracy when the co-conspirator is a police officer?

Back 129

YES. Lack of intent or capacity on the part of a co-conspirator is no defense to the charge of conspiracy, especially including when the sole conspirator is a police officer

Front 130

What kind of defense is entrapment?

Back 130

Affirmative defense

Front 131

Can you withdraw from inchoate offenses under CL?

Back 131

NO, but if you try, you are no longer vicariously responsible for crimes committed as part of a conspiracy

Front 132

Can you withdraw from inchoate offenses under NY law?

Back 132

YES, but it is very hard. Only by renunciation if you voluntarily and completely renounce it and prevent the crime from happening

Front 133

What do Factual and Legal Impossibility relate to?

Back 133

Attempt

Front 134

What situation arises when it is impossible to commit a crime because of circumstances beyond your control?

Back 134

Factual Impossibility

Front 135

What situation arises when what D thought he was doing was not even illegal?

Back 135

Legal Impossibility