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32 Cards in this Set

  • Front
  • Back
Can a person be guilty of conspiracy once the crime is complete?
Yes, there is no merger of conspiracy into the underlying offense.
What evidence must be used to convict on a conspiracy charge?
More than uncorroborated testimony of a co-conspirator
Withdrawal from solicitation and conspiracy
Affirmative defense, must be pleaded by D and proven by preponderance. Requirements:

1) Voluntarily and completely renounced; and
2) Prevented commission of the object crime
Search incident to a lawful arrest
Police may search one in custody to ensure their safety and to protect evidence from being destroyed.

Distinguish stop and frisk: no "plain feel" rule
If D waives his Miranda rights, requests counsel, and then confesses, was his Miranda waiver valid?
If D is represented by counsel, and gives a knowing and intelligent waiver of his Miranda rights outside counsel's presence, is this valid?
Not if he is known to be represented by counsel in the pending case.

If he is known to be represented by counsel in an UNRELATED case, it's fine
Liability of owner of vehicle for negligence where owner was not driving
Under Vehicle and Traffic Law of NY, vehicle owners are responsible for injuries resulting from negligence in that vehicle

This liability is vicarious, derivative liability as opposed to the liability of a joint or concurrent tortfeasor.

The negligent operator owes the owner implied duty of indemnity
Vehicle owner's indemnification against vehicle operator
Cause of action accrues when owner pays judgment, and the SOL is six years (actions upon contractual obligation).

Under NY General Obligations law, right of indemnity is not extinguished by release, as distinguished from contribution, as it flows from a relationship between the wrongdoer and another.
Statute of limitations in wrongful death actions
2 years from date of decedent's death

Statute is not tolled for failure to appoint legal representative, or when legal representative is infant
Contribution actions against third party where the original plaintiff could not have recovered against that party
For an action for contribution to be maintained, it is necessary that each tortfeasor have breached a duty. Where there is no duty to P, then there can be no liability for contribution.
Possession of obscene articles
Possession of 6 or more identical obscene articles is presumed to be possession with intent to promote the same.

Judicial determination is necessary before obscene materials are to be seized, unless there are exigent circumstances
Is independent negligence of another a superseding intervening cause cutting off D's liability?
D is liable for harm caused by negligence of 3rd persons where such negligence is a foreseeable risk created by D's conduct.

Where the accident occurred solely because of intervening gross negligence, that gross negligence is a superseding intervening cause.
Is a crime or intentional tort a superseding intervening cause?
Yes, if D's negligence created a foreseeable risk that a third person would commit a crime or intentional tort
Intra-family tort immunity
No intra-family immunity of any kind in NY
Limitation on testamentary gifts to charity
Long abolished in NY
Renunciation of bequest
File irrevocable renunciation, notarized, within 9 months of T's death, and separate affidavit that received no consideration
USDA and tenants by the entirety
Properties converted to tenancies in common; each tenant by the entirety now has 1/2 undivided share.

Under USDA pretend that the other died first, and inherit those 1/2 shares accordingly
Simultaneous deaths
Uniform Simultaneous Death Act (USDA): A and B die simultaneously. Under A's will, treat B as predeceased. Under B's will, treat A as predeceased.
Lifetime gifts as advancement of intestate share or legacy
Not presumed; to be treated as advancement, must be proved by writing contemporaneous with the gift, signed by either the donor or the donee, and evidencing the intention to treat it as such.
Revocation: wills and codicils
Revocation of a will revokes all codicils thereto. However, revocation of a codicil does not revoke the original will
Physical act sufficient to revoke
The important thing here is intent to revoke.

Burning, tearing, cutting, canceling, obliterating, mutilating, or other destruction

Crossing out the signature
Questionable as to whether writing "void" or "revoked" works; an essay said it did, lecture said it didn't.
Lapsed gifts: general rule
Testamentary beneficiary must survive the testator in order to take her gift. If the beneficiary predeceases the testator, the gift lapses, unless the anti-lapse statute applies.
New York Anti-Lapse statute
If will makes gift to testator's issue, brother, or sister, and this beneficiary predeceases, the disposition vests in the surviving issue.
Lapse in residuary gift
If the residuary estate is devised to two or more persons and the gift to one of them fails for any reason, the share passes to other residuary beneficiaries in proportion to interests in residue, unless in the scope of the anti-lapse statute.
When beneficiary of specific bequest is entitled to insurance proceeds
Entitled to any insurance proceeds paid AFTER the testator's death for property specifically bequeathed to beneficiary.
Revival of Revoked wills, effect of codicils
Will may be revived by (i) execution of codicil that incorporates by reference the prior will or one or more of its provisions; (ii) later writing with testamentary formalities; or (iii) republication of prior will (which republishes all codicils thereto absent showing of contrary intent)

Note DRR
Revoke, modify, or alter Totten trust by will
must refer to the specific Totten trust in the will, and this requirement is strictly construed
Revocation by implication on grounds of divorce
applies only to gifts from former spouse; bequest to spouse of sibling or offspring is not revoked if after execution of the will the sibling or offspring and spouse divorce.
Gift in will of stock in publicly traded corporation: stock splits and dividends
classified as general legacy absent language indicating contrary intention

Treated as specific bequest in case of stock splits, and all stock acquired due to stock splits is included

Dividends are considered capitalization of accumulated profits and are not included
Dead Man Acts generally
A party or person interested in the event is incompetent to testify to a personal transaction or communication with a deceased, when such testimony is offered against the representative or successors in interest of the deceased.
"Interested" for purpose of Dead Man Act
a person is "interested" if he stands to gain or lose by the judgment or judgment may be used for or against him in a subsequent action; also disqualifies predecessor in interest
New York Dead Man Act
Applicable to civil cases only

Coverage is extended to incompetents

Automobile accident exception: survivor may testify as to facts of negligence, but not the communications with decedent.