Ny Bar Exam - Criminal Law

Front 1

How does a state acquire jurisdiction for a criminal case?

Back 1

if that state is the legal situs i.e. conduct happened there or the result happened there.

Front 2

where does jurisdiction lie for crimes of omission?

Back 2

where the act should have been performed.

Front 3

Does the residence of a criminal defendant grant jurisdiction?

Back 3

no

Front 4

What is the general rule of merger?

Back 4

Generally there is no merger in criminal cases

Front 5

On the MS - what crimes merge?

Back 5

solicitation and attempt merge into the substantive offence (solicitation also merges into an attempt and conspiracy).

Front 6

on the MS, does the crime of conspiracy merge?

Back 6

no. you can be convicted of conspiracy to do something and of doing it.

Front 7

Where there are different victims, can crimes be merged?

Back 7

No - Crimes with different victims cannot be merged.

Front 8

what are the essential elements of a crime?

Back 8

an act and a mental state

Front 9

Which three types of acts do not qualify for criminal liability?

Back 9

(i) conduct that it is not your own volition, e.g. if you are shoved;
(ii) reflexive or convulsive act, such as an epileptic seizure
(iii) an act performed while unconscious or asleep.

Front 10

Omissions - when does a legal duty to act arise?

Back 10

I. By statute - e.g. tax return.
II. By contract - e.g. lifeguard
III. Because of relationship between the parties - e.g. parents
IV. Because of voluntarily assuming a duty of care towards someone else - e.g. voluntary rescuer
V. Where your conduct created a peril

Front 11

What are the four common law mental states for crime?

Back 11

I. Specific intent (qualify for additional defences)
II. Malice (murder and arson)
III. General intent - catch all (e.g. rape and battery).
IV. Strict liability - no intent crimes. any defence that negates intention is irrelevant.

Front 12

What are the specific intent crimes?

Back 12

• Inchoate offences - solicitation, conspiracy and attempt.
• First degree murder - created by statute
• Assault* - i.e. assault as an attempted battery; and not assault as a threat.
• Big common law felonies against property - larceny, embezzlement, false pretences, robbery, burglary and forgery.

Front 13

What are the inchoate offences?

Back 13

solicitation, conspiracy and attempt.

Front 14

What are the malice crimes?

Back 14

Arson & murder

Front 15

what are the general Intent Crimes?

Back 15

All crimes other than specific intent crimes, malice crimes and strict liability crimes. Note: battery is a general intent crime; not strict liability.

Front 16

A attempts to kill B with a gun, but misses and kills C. Does A have the requisite intent to be convicted of murdering C?

Back 16

Yes - Intent is transferred in this case.

Front 17

A attempts to kill B with a gun, but misses and kills C. What crimes will A be convicted of?

Back 17

Attempted murder and murder
No merger here because there were different victims

Front 18

Which crimes are strict liability crimes?

Back 18

If the crime is in the administrative or regulatory or morality area, and you don't see any adverbs such as knowingly, wilfully and intentionally,

Front 19

what mental state is required for strict liabilty crimes?

Back 19

you must be conscious that you are committing a proscribed act -- therefore, insanity and involuntary intoxication are a defence to strict liability crimes.

Front 20

when is the consent of the victim defence to a crime available?

Back 20

almost never.

Front 21

what are accomplices liable for?

Back 21

Accomplices are liable for the crime itself and all other foreseeable crimes.

Front 22

For MS - what must accomplices actually do to face liability?

Back 22

accomplices must actively aid, abet or counsel crime. Mere presence is not sufficient, even if by being present they seem to be consenting to the crime or if failing to call the police

Front 23

in NY - Can an accomplice benefit from a principal's defence that negates mental state?

Back 23

No - (e.g. if person who committed crime was insane, the accomplice is still liable).

Front 24

in NY - can an accomplice be liabile for a crime if principal is acquitted or not prosecuted?

Back 24

Yes - accomplice is not absolved from liability even if principal is acquitted, immune or not prosecuted.

Front 25

Can a person be convicted in New York solely on the testimony of an accomplice?

Back 25

No - a person may not be convicted solely on the uncorroborated testimony of an accomplice.

Front 26

what is the crime of solicitation?

Back 26

asking someone to commit a crime; the crime is complete when you ask them;

Front 27

if D asks another person to commit a crime that is then committed, what charges?

Back 27

conspiracy only - the solicitation merges into the conspiracy.

Front 28

What are the elements of Conspiracy?

Back 28

IF pursuing an UNLAWFUL OBJECT,
(i) agreement, (ii) intent to agree, and (iii) an intent to achieve/pursue the unlawful objective.

Front 29

can you have conspiracy between D and a police officer working undercover?

Back 29

No - because both persons need to intend to agree and to intend to commit the unlawful act.

Front 30

When is a conspirator is liable for the crimes of a co-conspirator?

Back 30

Each conspirator is liable for all of the crimes of a co-conspirator if the crimes were committed in furtherance of the conspiracy and were foreseeable.

Front 31

can people be in co-conspirators even if they don't know each other?

Back 31

Yes - Agreement Does NOT have to be expressed.

Front 32

in NY, If people intend to agree, intend to achieve an unlawful objective, and then agree to pursue the unlawful object, what else is required to make them conspirators?

Back 32

There must also be some overt act in furtherance of the conspiracy (any little act will do) (NY & Majority rule)

Front 33

Are people liable for conspiracy even if the unlawful act they agree to is completely impossible?

Back 33

Yes - Impossibility is not a defence to conspiracy.

Front 34

what is the effect of a withdrawl from a conspiracy?

Back 34

if adequate - in MS can never withdraw liability from the conspiracy itself; can ONLY withdraw liability from the crimes of the co-conspirators

Front 35

What is required to withdraw from a conspiracy?

Back 35

(1) Renounce the conspiracy; AND (2) Communicate it to the other co-conspirators in tine for them to reconsider and change their mind.

Front 36

In NY, is it possible to conspire with a police officer?

Back 36

Yes (applying the unilateral approach).

Front 37

In NY, is it possible for a conspirator to escape from liability for a conspiracy?

Back 37

Yes - if: (1) renounce the conspiracy and (2) prevent the commission of the crime.

Front 38

What are the elements of an attempted crime?

Back 38

Attempt = specific intent + a substantial step, beyond mere preparation, in the direction of the commission of the crime

Front 39

Can a person be liable for attempting a crime even if it is impossible to complete?

Back 39

Yes - Impossibility is NO defence to a charge of attempt on the bar exam. One exception: where defendant thinks his act constitutes a crime when in fact it doesn't

Front 40

Who bears the burden of proof for regular criminal defenses & what is the standard?

Back 40

once raised by the defendant, the prosecution must disprove them beyond a reasonable doubt (e.g. infancy and self-defence).

Front 41

Who bears the burden of proof for AFFIRMATIVE criminal defenses & what is the standard?

Back 41

the defendant must raise the defence and defendant must prove by a preponderance of the evidence

Front 42

What are the affrimative criminal defenses?

Back 42

duress, entrapment and insanity.

Front 43

In NY, What must a defendant show to succeed with an insanity defense?

Back 43

At time of his conduct, defendant lacked substantial capacity to know the wrongfulness of his actions or understand the nature and consequences of his action.

Front 44

Insanity is a defense against which categories of crime?

Back 44

All crimes, including strict liability.

Front 45

What are the two types of intoxication for the purposes of criminal defense?

Back 45

voluntary intoxication (i.e. self-induced)
involuntary intoxication (e.g. slip something into your drink without your knowledge). Addicts and alcoholics are voluntarily intoxicated.

Front 46

What crimes is involuntary intoxication a defense to?

Back 46

Involuntary intoxication is a form of insanity, and like insanity it is a defence against all crimes; even to the no intent crimes of strict liability.

Front 47

What crimes is voluntary intoxication a defense to?

Back 47

Only specific intent crimes

Front 48

what is the minumum age for criminal liability?

Back 48

7 - Under 7 no criminal liability;

Front 49

What is the rule for criminal liability for chilren who are over 7?

Back 49

under 14, rebuttable presumption of no criminal liability.

Front 50

when can a person use non-deadly force in self-defense?

Back 50

any time that victim reasonably believes that force is about to be used on him.

Front 51

when can a victim use deadly force in self defense?

Back 51

majority rule - i) when he is without fault, ii) he is confronted with unlawful force and iii) when he reasonably believes that deadly force is about to be used on him.
In NY - must retreat to the wall first

Front 52

What are the three exceptions to NY's duty to retreat before using deadly force in self defense?

Back 52

1. retreat out of your home.
2. victims of a rape or a robbery.
3. Police officers

Front 53

when can an original aggressor use the defence of self-defence?

Back 53

RARE - if he withdraws and communicates the withdrawal to the victim

Front 54

Can deadly force be used solely to defend your dwelling house?

Back 54

NO - Deadly force may NEVER be used solely to defend property.

Front 55

Duress is a defense to which crimes?

Back 55

MS - It is a defence to all crimes except homicide.
NY- Duress is an affirmative defence to all crimes, including homicide.

Front 56

for crimes requiring the mental state of specific intent, is mistake of fact a defense?

Back 56

Yes - can be any mistake, reasonable or unreasonable.

Front 57

for crimes requiring the mental state of general intent or malice, is mistake of fact a defense?

Back 57

Yes - Reasonable mistakes only.

Front 58

for strict liability crimes, is mistake of fact a defense?

Back 58

No - Defence only when it negates intention.

Front 59

When is the defense of entrapment available?

Back 59

almost never available because pre-disposition on part of defendant to commit the crime negates entrapment.
Entrapment is an affirmative defence under New York penal law which means that the defendant must raise it and prove by a preponderance of the evidence.

Front 60

What is Battery?

Back 60

a completed assault.
A general intent crime, never strict liability crime.
New York calls battery, “assault”.

Front 61

What is assault?

Back 61

(i) Assault as an attempted battery - like all attempts, is a specific intent crime.
(ii) Assault as a threat - a general intent crime. The elements are intentional creation, other than by mere words, of a reasonable apprehension in the mind of the victim of imminent bodily harm.
New York calls assault, “attempted assault”.

Front 62

what are the additional defences for specific intent crimes?

Back 62

voluntary intoxication and any mistake of fact

Front 63

What makes a homicide a murder?

Back 63

At common law, a homicide is murder if you show one of the following intents: 1. intent to kill, 2. intent to do serious bodily harm, 3. highly reckless murder (high reckless indifference), or 4. felony murder - i.e. if perpetrator kills someone while committing a felony

Front 64

What is voluntary manslaughter?

Back 64

A homicide with passion; it is a killing from passion; it is a provoked killing, usually a fight;

Front 65

What is an involuntary manslaughter?

Back 65

(a) killings from criminal negligence (b) misdemeanour manslaughter - killing someone while committing a misdemeanour or an unenumerated felony

Front 66

What is 1st degree murder in NY?

Back 66

intentional killing with one of the following special circumstances:
1. Intended victim was a police officer engaged in official duties at time of killing and defendant knew or reasonably should have known was a police officer;
2. murder for hire;
3. intentional killing of the victim (a non-participant in the crime), by the defendant or accomplice during the course of (or while fleeing) a robbery, burglary, kidnapping, arson, rape, sodomy, sexual abuse, escape or attempted 2nd degree murder.

Front 67

what is felony murder in NY?

Back 67

a person is guilty of felony murder when he commits an enumerated felony (includes burglary) and in the course of the felony, or in the immediately flight from the felony, he or a co-felon causes the death of a person other than another co-felon

Front 68

What is 2d degree murder in NY?

Back 68

2nd degree murder is either:
1. The intent to kill murder, without the special circumstances;
2. The highly reckless murder (highly reckless indifference);
3. The felony murder.

Front 69

What is 1st degree manslaughter in NY?

Back 69

the intent to do serious bodily injury aka voluntary manslaughter (i.e. killing from passion). Provoked intentional killing.

Front 70

What is 2nd degree manslaughter in NY?

Back 70

reckless killing.

Front 71

What is Negligent homicide in NY?

Back 71

killing from criminal negligence (involuntary manslaughter under common law).

Front 72

What are the 5 Defences to Felony Murder?

Back 72

1. defence to the underlying felony,
2.if the felony is independent of the killing.
3. If the death is not foreseeable.
4. defendant had reached some point of temporary safety
5. death of a co-felon resulting from resistance by the victim or the police

Front 73

What is the additional NY Defence to Felony Murder?

Back 73

Affirmative defense - Defendant must show four things:
1. Defendant did not commit or aid in the commission of the homicidal act.
2. Defendant was not armed with a deadly weapon.
3. Defendant did not reasonably believe that co-felons were armed with a deadly weapon.
4. Defendant did not reasonably believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.

Front 74

What is 2d degree kidnapping?

Back 74

2nd degree kidnapping is abducting somebody.
Abduction is the restraint of a person with intent to prevent his liberation by secreting or holding him in a place where he is not likely to be found.

Front 75

What is 1st degree kidnapping?

Back 75

abducting somebody and also either:
i. For ransom;
ii. Restraining them with intention to inflict physical injury; or
iii. The victim dies.

Front 76

What is larceny?

Back 76

a wrongful taking (i.e. stealing)
AND carrying away (even slightly) of the property of another without his consent with the intent to deprive the owner of the property permanently (or if there is a substantial risk of its loss). Hence this is a specific intent crime.

Front 77

What is embezzlement?

Back 77

embezzler always has lawful possession (e.g. a trustee engaging in unlawful conversion). The embezzler does not have to benefit herself. The embezzler gets possession only, not title.
There is no need for carrying away.

Front 78

What is false pretenses?

Back 78

The defendant persuades the owner of property to convey title by false pretence (or representation) relating to a present or past fact. A false promise to do something in the future does not ground liability for false pretences.

Front 79

What is Robbery?

Back 79

Robbery: = Larceny + Assault.
To be robbery the defendant must take from the person or his presence ("presence" is defined broadly, against his will either by violence (e.g. any small amount of violence) or by putting in fear (a threat of imminent harm;
-- future harm relates to extortion).

Front 80

What are the degrees of robbery & their elements?

Back 80

3rd degree: Forcible stealing of property. No physical injury and no firearms.
2nd degree: aggravating factor, i.e. either (1) Aided by another; (2) Caused physical injury; or (3) Threat of immediate use of physical force (e.g. display of firearm).
1st degree: EITHER armed with a deadly weapon OR caused serious physical injury.

Front 81

What is the difference between extortion and robbery?

Back 81

Extortion is blackmail. There are only two distinctions between extortion and robbery: 1. to be extortion, you don't need to take anything from his person or his presence; 2. the threats are of future harm.

Front 82

What are the elements of Common law Burglary?

Back 82

A break in -- either actual involving some force however slight, or it can be constructive (i.e. by threats or fraud). if the person pushes open an interior door, there is a break-in.
• Entering: occurs whenever any part of defendant's body enters the house.
• Must be a dwelling house; cannot be a commercial dwelling.
• Must be at night.
• Must have intent to commit a felony inside;

Front 83

What are the degrees of NY burglary?

Back 83

3rd degree: Breaking or entering or remaining behind inside; any structure; any time of day; in the intent to commit any type of crime inside.
2nd degree: 3rd degree + any of the following aggravating factors: (1) A dwelling; (2) Injury to a non-participant; or (3) Armed.
1st degree: Has to be a dwelling and either of the other 2 aggravating factors (i.e. injury to non-participant or armed).

Front 84

What is CL arson?

Back 84

The malicious burning of the dwelling house of another.
there must be a material wasting of the fibre of the building by fire.

Front 85

What is arson in NY & degrees?

Back 85

New York Rule: Burning, explosions, water damage, smoke damage, to any structure whether owned by defendant or not.
3rd degree: Intentionally damaging, building or motor vehicle, by fire or explosion.
2nd degree: 3rd degree (but only fire, not explosion) + knowing or that there is reasonable possibility a nonparticipant is present (doesn't have to be injured).
1st degree: 2nd degree + fire or explosion using incendiary or explosive device.

Front 86

What amount of damage to a building is required for common law arson?

Back 86

"Burning" is required, but this does not require significant dmaage to the building. a charring of the combustible material is sufficient.

Front 87

If a prosecutor makes a plea bargain with a D and the D pleads guilty, but then intervening circumstances make it clear that the crime was worse than first beleived, and the P increases the sentence recommendation, what is D's recourse?

Back 87

D can appeal the sentence, because a defendant who agrees to a plea bargain has a right to have it kept. The court will either specifically enforce the bargain or will give D the opportunity to withdraw his plea.

Front 88

Can prosecutors threaten to lay more charges against a D if he refuses to negotiate a plea agreement?

Back 88

Yes - as long as there is some legal basis for bringing additional charges.
The state has the power to drive a hard bargain in plea negotiations.

Front 89

If D makes a plea bargain and pleads guilty but tells the court that he is really innocent, can the court accept his plea?

Back 89

Yes - as long as it is voluntary and intelligent. There is no constitutional requirement of an admission of guilt for imposition of a criminal penalty

Front 90

If D is on trial for a crime, the jury has been called and jeopardy has attached, but then the case is dismissed on a technicality, can he be tried again for the same crime?

Back 90

Yes. Double jeopardy doesnt bar two trials - it only bars retrial after acquittal on the merits.

Front 91

If a person commits a crime in state A, which has victims in State B, and is tried in state A and acquitted, can he then be tried in state B for teh same crime?

Back 91

Yes - double jeopardy does not apply to trials by separate sovereigns.

Front 92

when does jeopardy attach in a jury trial?

Back 92

at the impaneling and swearing in of the jury.

Front 93

when does jeopardy attach in a bench trial?

Back 93

when the first witness is sworn