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73 Cards in this Set

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How does NY divide defenses and how do they operate?
1. "Defenses" : P must DISPROVE beyond a reasonable doubt.
2. "Affirmative Defenses": D must prove by a preponderance of the evidence.
What are the 5 NY mental states?
1. Intentionally/purposefully: conscious object to accomplish result.
2. Knowingly: aware of what D is doing.
3. Recklessly: aware of substantial and unjustifiable risk AND consciously disregards.
4. Negligently: should have known behavior was reckless.
5. Strict Liability: no mental state required.
What is the NY Mistake Doctrine and how does it operate for mistakes of fact and mistakes of law?
Mistake of fact will be a defense if it negates the required mental state for the crime.
For crimes of purpose, knowledge, or recklessness, ANY mistake, however unreasonable, is a defense.
For crimes of negligence, ONLY reasonable mistakes are a defense.
For strict liability crimes, mistakes are never a defense.

*Mistake of law in NY is not a defense.
Define assault in NY.
Intentionally causing physical injury to another person.

In NY, there is no separate crime of battery. It's all under the crime of assault. Note: injury is required, therefore "offensive touching" is not assault.
What is required for attempted assault in NY?
It requires that D actually intend to cause physical injury. Merely creating a "reasonable apprehension" is another crime called "menacing".
Does NY follow the year-and-a-day rule for Homicidal acts and subsequent death?
NO. The death may occur at any time, even years, after the homicidal act.
What are the 7 main degrees of homicide in NY?
1. Murder 1
2. Murder 2
3. Man- 1
4. Man - 2
5. CNH - criminally negligent homicide
6. Aggravated Homicide (unintentional killing of a police officer)
7. Vehicular (Homicide and manslaughter)
3 elements for 1st Degree murder in NY are:
1. Intent to kill
2. D is over 18.
3. An aggravating factor is present.
List the 10 aggravating factors under the NY penal code:
1. intentionally killing law enforcement officer while engaged in performing their duty as such (judge, prison officer, peace officer - parole, probation)
2. Killed for witness intimidation.
3. Murder for hire.
4. Killed for than 1 person.
5. intentionally killed during a serious felony.
6. killed while in a state correctional institution on a sentence between 15 and life OR committed the crime having escaping from the state correctional institution where he was serving such a sentence.
7. Repeat murderer.
8. Intentionally torturing a victime before murdering them and enjoying it.
9. Serial Killers
10. Victim killed in furtherance of a terrorist act.
What are the 3 forms of 2nd degree murder in NY?
1. Intent to kill (all 1st degree murder lacking a PLUS factor)
2. Depraved indifference (extreme recklessness.
3. Felony murder
What is "depraved indifference"?
It is a category of 2nd degree murder that results from an act that places more than one person in danger by acts that show "an utter disregard for human life". Usually not applied to one on one killings unless they involve brutal torture or the abandonment of a helpless victim.
What are the 3 felony murder distinctions under NY law?
1. Only applies to the six BRAKES felonies (Burglary, Rape, Arson, Kidnapping, Escape, and Sexual Assault)
2. D does NOT need to be convicted of the underlying felony (just need sufficient evidence he committed the felony).
3. NY has an affirmative "Non-slayer" defense
What are the elements of the affirmative Non Slayer Defense in NY?
1. D didn't actually do the killing.
2. D didn't have a deadly weapon.
3. D had no reason to believe that his co-felons were carrying deadly weapons.
4. D had no reason to believe his co-felons would do anything likely to result in death.
What are the 2 forms of 2nd degree manslaughter?
1. Intent to cause serious physical injury.
2. Intentional killing committed under the influence of a reasonable extreme emotional disturbance. (EED). Defendant must prove the EED by a preponderance of the evidence.
What is the definition and mental state for second degree manslaughter in NY?
Definition: The defendant is AWARE of and CONSCIOUSLY DISREGARDS a substantial and unjustifiable risk of death, resulting in a death.

Mental state: Recklessness

* Examples pointed a gun you know is loaded at another and having it accidentally fire. (note: if two people killed here it's probably depraved indifference, and thus murder 2)
What is the difference b/n Criminally Negligent Homicide and Man-2?
The D SHOULD HAVE KNOWN there was a substantial and unjustifiable risk of death.

Mental State: negligence, not recklessness.
When will a killing be aggravated in NY?
1. When it involves a police officer in the line of duty (and it fails to be Murder 1).

2. Aggravated Vehicular Manslaughter: Vehicular Man-1 + D engages in reckless driving, killing someone.
Define:
DWI:
Vehicular Man-2:
Vehicular Man-1:
Aggravated Vehicular Homicide:
Vehicular Assault:
DWI: over .08 BAC
Vehicular Man-2: Death + DWI
Vehicular Man-1: VM-2 + either BAC over .18 OR prior DWI.
Aggravated Vehicular Homicide: VM-1 + reckless driving.
Vehicular Assault: Any of the above behaviors that results in injury, opposed to a death.
What are the NY confinement offenses?
1. Unlawful Imprisonment

2. Kidnapping
Define the two degrees of Unlawful Imprisonment.
- SECOND DEGREE unlawful imprisonment requires: The UNLAWFUL RESTRAINT of a person WITHOUT CONSENT and with the KNOWLEDGE that the restriction is unlawful.
***makes mistake of law a limited defense***

- FIRST DEGREE: Second degree (above) PLUS a risk of serious physical injury.
Define the two degrees of Kidnapping.
- SECOND DEGREE: ABDUCTING someone.

- FIRST DEGREE: 2nd degree PLUS one of the following:
1. ransom
2. restraint of V for more than 12 hours w/ the INTENT TO RAPE, INJURE, or ROB.
3. The victim DIES.
What are the two possible results when a kidnapping results in a homicide?
Murder 2 if victim is killed accidentally.

Murder 1 if victim is killed intentionally.
What are the elements and mental state for forcible rape in NY?

Statutory Rape in NY?
Elements for forcible rape: SEX without the victim's CONSENT accomplished by FORCE, THREAT OF FORCE, or WHILE VIC is UNCONSCIOUS.

Mental state (forcible rape): General Intent

Elements for Statutory Rape: Sex with someone under the age of 17.

Mental State: strict liabilty.
Define LARCENY in NY
Any crime that would be considered larceny, embezzlement, false pretenses, or larceny by trick at common law.
What are the thresholds for the 5 degrees of Larceny in NY?
1st: more than 1 million.
2nd: more than 50 K.
3rd: more than 3 K
4th: more than 1 K
5th: anything less than 1 K
What are the degrees of robbery in NY?
Third Degree: "Forcible Stealing"

Second Degree: 3rd degree + one of the following (carjacking, vic is injured, D is aided by another D present during robbery)

First Degree: 3rd degree + one of the following (vic SERIOUSLY injured, D uses or displays a gun)
***affirmative defense to get charge reduced to 2nd degree is to prove that the gun was unloaded or inoperable. (same affirmative defense applies to possession of a gun)
What are the two possible results when a robbery results in a homicide?
Murder 2 if victim is killed accidentally.

Murder 1 if victim is killed intentionally.
Compare elements and mental states for FORGERY vs. UTTERING.
FORGERY: making or altering a writing so it's false with the intent to defraud (mental state).

UTTERING: offering a forged instrument as genuine with the intent to defraud (mental state).
What is NY's version of CL malicious mischief and what are the elements?
NY calls this "criminal mischief" and it is defined as "Destroying or damaging someone else's property with the intent to defraud."
What is the mental state and requirements for possession?
Mental state: Knowledge of BOTH the possession AND the character of the item possessed.

Requires that the D had control over the item long enough to have the opportunity to terminate the possession.
Give 4 examples of NY possession offenses and any presumptions/defenses available under NY statutory law.
1. Criminal Possession of CONTROLLED SUBSTANCES (CPCS).
2. Criminal Possession of a FIREARM (in NY, gun must be loaded and operable).
3. Criminal Possession of STOLEN PROPERTY (property must actually be stolen - if not, then you can only be charged with attempt).
4. Criminal Possession of a FORGED INSTRUMENT: P doesn't need to prove what D was going to/ planned to do with the instrument.
What are the 3 degrees of BURGLARY in NY?
THIRD: Entering or REMAINING unlawfully in a building with the intent to commit a crime inside.

SECOND: 3rd + one of the following (it's a dwelling, non-participant is injured, D carries a weapon).

FIRST DEGREE: D KNOWS he's burglarizing a dwelling + one of the following (non-participant is injured, D carries a weapon).
Relationship between Burglary and Homicide?
If victim is killed accidentally then it's murder 2.

If victim is killed intentionally during a first or second degree burglary then it's Murder 1
What are the 4 degrees of ARSON in NY?
FOURTH: Reckless burning of a building.
THIRD: Intentional burning of a building.

SECOND: Above two degrees + the D KNOWS OR SHOULD HAVE KNOWN that someone was inside the building.
FIRST: 2nd degree + an explosive device.
Relationship between Burglary and Homicide?
Accidental: second degree murder

Intentional during a 1st or 2nd degree arson: first degree murder
What is the difference b/n CL and NY mental states required for accomplice liability?
At CL, the mental state is the intent that the crime be committed.

In NY, the accomplice need not specifically intend that the crime be committed, it's enough that the accomplice intend to AID the principal's CONDUCT. This means that it's possible in NY to be an accomplice to a negligent/reckless crime.

***Think about drag racing.
What is "criminal facilitation" in NY?
When facilitator "knowingly aided" in the commission of a crime, but culpability doesn't reach accomplice level. The facilitator only needs to believe it's probable that he's rendering aid. The aid must have aided in the commission of the object felony and the facilitator can't be convicted on the UNCORROBORATED testimony of the person he facilitated.

It's an affirmative defense for a facilitator who can show he took steps to prevent the felony.
What is required in NY to WITHDRAW from a crime so as to not be considered an accomplice?
"Renunciation" is required: Accomplice MUST make a substantial effort to prevent the commission of the crime (meaning the accomplice must go to the police if their efforts fail to prevent the likely occurrence of the crime.)

D must prove renunciation by a preponderance (affirmative defense in NY)
What is the NY term for "accessory after the fact" and what is required?
The term is "hindering prosecution" and it requires the accessory to knowingly assist the principal who committed the felony in avoiding arrest or conviction.
What are the inchoate crimes and mental states for each?
Solicitation (specific)
Conspiracy (specific)
Attempt (specific)
In what two ways does conspiracy differ from the CL in NY?
1. NY uses the unilateral approach: At CL you needed at least two guilty minds to agree to commit a crime plus an overt act in furtherance. In NY, a D may be guilty of a conspiracy even when the other parties were acquitted or pretending to agree.

2. In NY, there is NO VICARIOUS liability for other crimes committed by co-conspirators.
What is the test for Attempt?
The DANGEROUS PROXIMITY TEST (i.e. conduct that comes dangerously close to the commission of a crime)
What crimes can't you ATTEMPT?
You can't attempt UNINTENTIONAL CRIMES:
Therefore, you can't be charged with crimes requiring reckless or negligent mental states. You also cannot attempt Felony-murder.
What crimes can you attempt?
Malice, general intent, and strict liability crimes, but only if the D SPECIFICALLY intends to commit the crime.
What is required to prove withdrawal, abandonment, or renunciation by a solicitor, co-conspirator, or attempter (opposed to what is required by an accomplice who aid/encourages)?
In NY, withdrawal is a defense only if the D VOLUNTARILY and COMPLETELY renounces solicitation, conspiracy, or attempt AND the renunciation is based upon a "change of heart" and not based upon a fear of failing or being caught.
What are the merger rules for inchoate offenses in NY?
Attempt: Merges

Conspiracy: Doesn't merge

Solicitation: Doesn't merge. **Conduct that's "necessarily incidental" to the commission of a crime is not solicitation (recieving a bribe), however soliciting a minor to commit a crime is not "necessarily incidental" to the crime of "endangering the welfare of a minor" and thus will not be merged.
What are the 3 capacity defenses?
Acronym: I, I, I

Insanity
Intoxication
Infancy
What's required to show insanity in NY?
Defendant must show (affirmative defense) that:
1. D had a mental disease or defect (med diagnosis alone insufficient)

AND

2. D "lacked the substantial capacity" to either: 1. understand the "nature" of his act OR 2. appreciate the "wrongfulness" of his conduct.
How does INTOXICATION operate in NY?
If involuntary, then it's treated as insanity and you apply the insanity test in NY.

If Voluntary, then it may be a defense to intent crimes and knowledge crimes IF the intoxication prevented the D from forming the required intent.

Voluntary intoxication is NOT A DEFENSE to recklessness, negligence, or strict liability crimes.
What are the rules for Infancy and corresponding ages?
Under 13: all criminal prosecutions go to juvenile delinquency in family court.

13-15: Crim prosecution as an adult allowed for second degree murder.

14 or 15: Crim prosecution as an adult allowed for serious offenses against person/property.

16 or older: Crim prosecution as an adult permitted for ANY crime.

Except for above offenses: minors b/n 7-16 are prosecuted in family court as juvenile delinquents for other misdemeanors/felonies.
What is the Aggressor Rule and how is it different in NY?
The aggressor rule states that the initial aggressor may not use deadly force in a fight unless: the aggressor communicates their withdrawal from the fight OR the victim suddenly escalates a non-deadly fight to a deadly fight.

****In NY, the initial aggressor MUST WITHDRAW before resorting to deadly self-defense, even if the other party suddenly escalates the non-deadly fight into a deadly fight.
What is the Retreat Rule and how is it different in NY?
The majority rule is that a D is not required to retreat before using deadly force in self-defense (provided they're not the initial aggressor).

However, in NY RETREAT IS REQUIRED UNLESS the D cannot retreat in complete safety or the D is in their own home (castle exception)
What about the mistaken need to use self defense?
If mistake is reasonable? Then it's still a valid defense.

If mistake is unreasonable? Then in NY, an intentional killing based on an unreasonable belief in the need to use self defense will be voluntary manslaughter, not murder. (The majority rule is that it's not a defense at all if belief is unreasonable).
When may deadly force be used to prevent a crime in NY?
When the felony risks human life or to prevent a rape, robbery, arson, kidnapping, or burglary; retreat not required.
What are the rules on using force to resist arrest in NY?
Force may NOT be used to resist arrest in NY, even an unlawful one, unless the arresting officer uses EXCESSIVE force.
What is the Necessity defense in NY?
The necessity (or choice of evils) defense may be asserted when the D can show that the harm avoided was greater than the harm caused.

***Difference from CL: In NY, Necessity defense is available for HOMICIDE.
What is the Duress defense in NY?
It's an affirmative defense whereby the D asserts that he was forced to commit the crime under threat of death or serious bodily injury.

***Difference from CL: In NY, Duress defense is available for HOMICIDE.
How does entrapment operate in NY and why is it generally a very narrow defense?
It's an affirmative defense.

D must show that the criminal design originated with the gov and that D wasn't predisposed to commit the crime.

*Narrow because courts always find a predisposition.
How does NY "classify" crimes and offenses?
Offenses:
"Traffic Infractions": designated under vehicle and traffice law
"Offenses": other than traffic infractions punishable by no more than 15 days imprisonment.

Crimes:
"Misdemeanors": Offenses other than traffic infractions where punishment exceeds 15 days but is less than one year.
"Felonies": Offenses where death or imprisonment of more than 1 year may be imposed.
Is the knowledge of the weight of a controlled substance an element of an offense?
NO. Defendant is strictly liable for the weight of the controlled substance. The knowledge of the nature/character of the substance is all that is required. I.e. "I didn't realize I had a kilo of coke; I thought it was less than a gram" is not a defense.
When is an accomplice NOT absolved of liability in NY?
An accomplice is not absolved by:
- Defenses of the principal.
- Failure of the state to prosecute the principal; OR
- If the offense is defined so that the accomplice couldn't commit the offense in an individual capacity.
Can a principal be convicted based solely on the uncorroborated testimony of an accomplice?
NO. Exception: police disciplinary hearings.
What are the 5 degrees of solicitation?
FIFTH Degree: with the INTENT that another person engage in CRIMINAL CONDUCT one solicits or otherwise attempts to cause the person to do so.

FOURTH: The conduct urged is a felony OR the solicitor is over 18 and the other person is under 16 and the conduct urged is a crime.

THIRD: D is over 18 and other is under 16 and conduct urged is a FELONY.

SECOND: The conduct urged is a Class A felony.

FIRST: D over 18 and other is under 16 and the conduct urged is a Class A felony.
May a person be convicted based solely on the testimony of the person solicited?
YES. Unless the person solicited is an accomplice.
What are the 6 degrees of criminal conspiracy in NY?
SIXTH: same as fifth degree solicitation (INTENT that another person engage in CRIMINAL CONDUCT)

FIFTH: same as fourth degree solicit. (The conduct urged is a felony OR the solicitor is over 18 and the other person is under 16 and the conduct urged is a crime.)

FOURTH: Conduct is class B or C felony; OR D over 18 and other person under 16 and conduct urged is a felony.

THIRD: D is over 18 and other is under 16 and conduct urged is a class B or C FELONY.

SECOND: The conduct urged is a Class A felony.

FIRST: D over 18 and other is under 16 and the conduct urged is a Class A felony.
Degrees of ATTEMPT compared to completed crime in NY.
Generally, attempt is graded ONE STEP BELOW the completed crime.

EXCEPTION: ATTEMPTED MURDER IN THE FIRST DEGREE and CRIMINAL POSSESSION OR SALE OF A CONTROLLED SUBSTANCE is classified as a grade A-1 felony which is = to the substantive offense.
How does the NY insanity test compare to M'Naughten and the MPC tests?
It is more lenient than the M'Naughten and not as generous as the MPC standard.

It is an affirmative defense in NY AND
once the D raises this defense he CANNOT refuse to submit to psychiatric examination by the prosecutor's psychiatrist on Fifth Amendment grounds.
Does NY recognize the defense of diminished capacity to show D didn't have the required mental state for the crime charged?
NO. NY doesn't recognize the defense for either specific intent or general intent crimes.
When can the defendant use voluntary intoxication as a defense?
Only to prove he acted recklessly rather than intentionally.
What is self defense in NY?
It is called "Justification" and it is a defense, not an affirmative defense.
A person may use nondeadly force in NY to the extent D reasonably believes the force is necessary to defend themself (or another) from the use or imminent use of unlawful force UNLESS: (3 situations)
1. with the INTENT to cause physical injury, the D PROVOKED the initial aggressor to use or imminent use of force.

2. D was the INITIAL AGGRESSOR

3. Use or imminent use of force is pursuant to an unlawful COMBAT AGREEMENT.
D may not use deadly force if he can safely retreat. What are the FOUR situations in which RETREAT IS NOT REQUIRED?
1. D in dwelling and not the initial aggressor (note: the doorway of an apartment is not in the dwelling and the duty to retreat applies)

2. D is a PEACE OFFICER, or acting under the direction of a peace officer.

3. D believes the other is committing/attempting to commit forcible rape, kidnapping, forcible crim sex act, or robbery; OR

4. D believes the other is committing burglary.
Is Duress an affirmative defense and what crimes does it apply to?
An affirmative defense that applies to ALL crimes (including homicide)