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57 Cards in this Set

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  • Back
When does a state acquire jurisdiction over a criminal matter?
The state is the legal situs if the conduct or the result happened there. If it is a crime of omission, the legal situs is where the act should have been performed.
Is there merger in American law?
No, with the exceptions of (i) solicitation and (i) attempt
In New York, how are crimes classified?
1. Felony: an offense for which death or a prison sentence of more than a year is imposed.
2. Misdemeanor: offenses other than a traffic infraction for which the prison sentence exceeds 15 days, but cannot be in excess of one year.
3. Violations: offenses, other than traffic infractions, which are punishable by no more than 15 days imprisonment
When may a legal duty to act arise?
1. by statute
2. by contract
3. special relationship between the parties
4. voluntary assumption of a duty and then failure to perform said duty.
5. where your own conduct creates the peril
What are the specific intent crimes?
1. The three inchoate crimes:
a. conspiracy
b. solicitation
c. attempt
2. First Degree Murder
3. Assault (when attempted battery)
4. Common-Law Felonies Against Property:
a. larceny
b. burglary
c. robbery
d. false pretenses
e. embezzlement
f. forgery
What are the malice crimes?
1. common-law murder
2. arson
What is general intent?
1. An awareness of factors constituting a crime; aware that acting in the proscribed way and that any required attendant circumstances exist. Just need awareness that there is a high likelihood they will occur.
2. Can infer general intent merely from doing act, unlike specific intent crimes.
Elements of Conspiracy
1. An agreement
2. An intent to agree
3. intent to pursue unlawful objective
4. Majority rule requires an overt act for liability to attach (NY follows this rule). Minority Rule does not.
Is there a defense of impossibility to conspiracy?
When does liability attach for a co-conspirator's crimes?
if the crimes were committed (i) in furtherance of the conspiracy; and (ii) were forseeable.
When does a conspiracy terminate?
Usually upon completion of the wrongful objective (important because acts and statements of co-conspirators only admissible against a conspirator if done in furtherance of the conspiracy)
Is withdrawal a defense to conspiracy?
1. MBE:
Generally not a defense to conspiracy, but may be a defense to crimes committed in furtherance of the conspiracy, including substantive target crime of the conspiracy. To withdraw, must perform an affirmative act that notifies all members of conspiracy of withdrawal and must be given in time for members to abandon plans. If she has provided assistance as an accomplice, must try to neutralize assistance.
2. New York:
CAN withdraw from a conspiracy if prevent the commission of the crime as well as withdraw from the conspiracy. This is an affirmative defense.
In New York, what is the distinction regarding liability of one conspirator for crimes committed by other conspirators?
There is NO vicarious liability for one who merely conspires and does not participate in committing the offense in question.
Can a single defendant be charged with conspiracy?
1. MBE: requires meeting of minds by two parties so:
a. no conspiracy between a Defendant and a cop
b. no conspiracy between corporation and agent
c. no conspiracy where agreement with person in protected class
d. Traditional view that IF defendant is charged and tried AND ALL OTHERS ACQUITTED, D cannot be convicted
2. New York
New York follows Model Penal Code approach, thus a single defendant may be convicted of conspiracy and no defense based on co-conspirators incapacity or failure to have requisite culpability.
Can a defendant be convicted upon uncorroborated testimony of a co-conspirator?
NOT in New York
What are the degrees of conspiracy in New York
1st: conduct is a class A felony; D over 18 and other is under 16
2nd: conduct is class A felony
5th Degree: conduct in question a felony; OR where D is over 18 and other person is Under 16 and conduct is a crime
6th: done with intent that both will engage in conduct constituting a crime
What constitutes an attempt?
1. Intent; AND
2. a "substantial" step beyond mere preparation (contrast with overt act requirement of conspiracy)
Is abandonment a defense to attempt?
In New York it is an affirmative defense. Must (i) manifest voluntary and complete renunciation; (ii) avoid commission of object crime or take steps to prevent commission of crime.
When can an accomplice be held liable?
For actively aiding, abetting, assisting to a crime. Must be more than mere presence.
NY Distinction: recognizes criminal facilitation where facilitator has knowingly aided the commission of a crime but his culpability does not reach accomplice level.
For what can an accomplice be held liable?
crime itself and all forseeable crimes arising out of transaction.
Is the inability to be the principal a bar to accomplice liability?
No bar.
Who is excluded from accomplice liability?
1. members of protected class
2. necessary parties to a crime not provided for in the statutory definition of crime(ex. if sale of heroin illegal, but does not punish purchaser, not liable as accomplice)
Is withdrawal a defense to accomplice liability?
1. MBE:
Yes if effectively withdraws before crime is committed. Need:
a. repudiation
b. attempt to neutralize if first went beyond mere encouragement
2. New York:
withdrawal is an affirmative defense if there is:
a. voluntary and complete renunciation of crime
b. withdraws prior to commission of offense
c. makes a substantial effort to prevent crime
Can an accomplice benefit from a Principal's defense?
NO in New York.
Can a person be convicted solely on basis of uncorroborated testimony of accomplice?
In New York NO
What are the possible tests for insanity?
1. M'Naughten Rule: at time of conduct, D lacked the ability to know the wrongfulness of his action or to understand the nature and quality of his action.
2. Irresistable Impulse: D lacked capacity for self-control and free choice
3. Durham Rule: D' conduct was product of a mental illness
4. Model Penal Code: D lacked ability to conform his conduct to requirements of law.
at time of conduct, as a result of mental disease or defect, D lacked the capacity to know or appreciate the nature and consequences of such conduct or that such conduct was wrong. (Affirmative Defense in NY).
When is Intoxication a defense?
1. Voluntary - only for specific intent crimes. (note in NY available to show culpable mental state of recklessness)
2. Involuntary - ALL crimes (including strict liability); treated like insanity.
When is Infancy a Defense?
1. Under 7, no criminal liability
2. Under 14, rebuttable presumption against criminal liability
New York:
Defense subject to:
1. 13, 14, 15 may be prosecuted for 2d degree murder
2. 14, 15 - responsible for serious offenses against person or property
When is Self-Defense available as defense?
1. where non-deadly force: victim may use reasonable force any time reasonably believe force is about to be used on him.
2. Deadly Force -
majority rule is that may use deadly force any time reasonably believes deadly force about to be used on him
NY (minority) Rule: requires retreat to wall first if safe, EXCEPT:
1. in dwelling and not initial agressor
2. not when believe burglary or arson about to be attempted
3. Not if victim of rape or robbery, forcible sodomy, or kidnapping
4. police officers have no duty to retreat
When is duress available as defense?
MBE: all crimes except homicide

New York: All crimes, including homicide, but is affirmative defense
Mistake of fact as defense?
unreasonable - only specific intent
reasonable - anything except strict liability crimes.
What is the crime of battery?
An unlawful application of force to the person resulting in offensive touching or bodily injury. (General intent crime)
NEW YORK: no crime called battery. Assault is common-law battery and attempted assault encompasses common-law assault).
Define assault
MBE: attempted battery or intentional creation, other than by mere words, of a reasonable apprehension in the mind of the victim of imminent bodily harm
(Remember, common law assault is called attempted assault in NY)
First Degree Murder
In NY, intentional killing plus an aggravating factor:
1. killing cop or similar officer while that person engaged in official duties
2. killing because judge
3. killing because witness, family of witness etc.
4. murder for hire
5. killing during enumerated felony: robbery of any degree, burglary or first or second degree, first degree kidnapping, arson, rape, sodomy, sexual abuse, escape, or attempted murder in second degree
6. at time of killing was in custody or escaped custody
7. committed torture murder
8. serial murder
9. victim killed in furtherance of terrorism
10. intentionally killed more than one person as part of same criminal transaction
Common Law Murder on MBE:
Requires one of following four intents:
1. to kill
2. to inflict grave bodily harm
3. highly reckless/depraved heart murder
4. felony-murder
Defenses to Felony-Murder on MBE:
1. If D has defense to underlying felony, may also raise this as defense against felony murder.
2. Felony committed was a killing (to qualify must be a felony other than killing)
3. Deaths were not forseeable
4. D had reached place of temporary safety prior to killings
5. Death was that of a co-felon and caused by resistance of police or victim
Defenses to Felony Murder in New York
An accomplice has an affirmative defense to felony murder if:
1. did not commit/aid in homicidal act
2. was not armed with deadly weapon/substance
3. had no reasonable grounds to believe co-felons were so armed
4. had no reason to believe any co-felon intended to engage in conduct likely to cause death
What qualifies as 2d degree murder in New York?
1. Intentional Murder: when person, with intent to cause death of another, causes death of that person or a third party.
a. Affirmative defense (i) extreme emotional disturbance; (ii) aiding in a suicide

2. Highly Reckless Murder: demonstrating a depraved indifference to human life, person recklessly engages in conduct creating grave risk of death to another person. (note, no crime of attempt here since no intent and cannot be charged with both this and intentional murder)

3. Felony-Murder: all participants in a felony may be convicted of felony murder
What is voluntary manslaughter on MBE:
1. killing from passion or provoked killing
What is first degree manslaughter in NY?
1. serious bodily harm resulting in death
2. extreme emotional disturbance
3. unjustifiable abortional act
What is involuntary manslaughter on MBE:
1. killing from criminal negligence
2. killing during un-enumerated felony or misdemeanor
What is 2d Degree Manslaughter in NY:
1. aiding in a suicide
2. reckless disregard for substantial risk that causes death of another person
3. abortional act where person commits upon female, which causes death, unless such act is justifiable by statute
What is criminally negligent homicide in NY?
once causes death of another by failure to perceive substantial and unjustifiable risk of death (usually negligent driving of autos)
Death producing event must have been forseeable and D's conduct culpable
What degrees of kidnapping qualify for felony murder in NY?
ANY degree!
What is First Degree Kidnapping, which qualifies for first degree murder?
when person abducts another with intent to obtain ransom or force person to refrain from acting OR
where restrains victim for more than 12 hours with intent to inflict physical injury, sexual violation, abuse, interfere with government function OR victim dies during abduction or before safe return
What is second-degree kidnapping?
abducting someone else
Define larceny for MBE:
wrongful taking in which D takes or carries away the property of another, without consent, and with intent to deprive that person permanantly of interest in property.
Larceny in NY
NY law incorporates four common law crimes against property:
1. larceny by trespassory taking
2. larceny by trick
3. false pretenses
4. embezzlement
By statute, following are considered larceny:
1. acquiring lost or mislaid property
2. issuing a bad check
3. false promise
4. extortion
5. embezzlement
6. appropriating leased or rented items
Larceny graded by value of property taken.

Cass D feleny -worth more than $3000
Class C, wroth more than $50,000 or extortion by fear of physical injury, damage to property, abuse of powers as public servant
Define embezzlement.
when someone with lawful possession engages in illegal conversion
Define false pretenses.
person persuades another to convey title under false pretenses, which must be as to PAST OR PRESENT FACTS, NOT TO FUTURE.
Robbery Defined.
Larceny plus assault, with assaultive element being the taking from a person, or in his presence, either by violence or putting in fear of imminent harm.
Degrees of Robbery in New York
First Degree: causes serious physical injury of nonparticipant or armed with deadly weapon
Second Degree: forcible stealing PLUS any of the following: (i) aided by another; (ii) causes physical injury; (iii) displays firearm or other threat of force
Third Degree: forcible stealing with no physical injury and no deadly weapons
Define extortion
Threat of future harm as blackmail.
Common law burglary
unlawful entry into a habitation that requires either a physical or constructive breaking, at night, with intent to commit a felony therein that existing at time of breaking
New York Burglary
First Degree: must be a dwelling AND burglar can EITHER be armed or injure nonparticipant

Second Degree: any of the following (i) dwelling house; (ii) injury to nonparticipant; (iii) burglar armed

Third Degree: knowingly entering or remaining unlawfully in a building with intent to commit felony therein.
Common law arson
the malicious burning of the dwelling house of another. Requires material wasting of the fiber of building by fire.
NY Distinctions: Arson
Fourth Degree: reckessly damaging building or motor vehicle by intentionally starting fire or explosion

Third Degree: Intentionally damages a building or motor vehicle by intentionally starting fire or explosion
Second: intentionally damaging a building or motor vehicle by intentionally starting fire with knowledge that nonparticipant is in building or circumstances are such that reasonable possibility that person in there.
1st degree: same as second, except using incendiary or explosive device.