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162 Cards in this Set
- Front
- Back
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2nd Degree Murder (NY)
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Intent to kill, depraved indifference to human life, or felony murder (unintentional)
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1st Degree Murder (NY)
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Intent to kill + 18 or over + aggravating factor (including intentional felony murder)
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Aggravating factors for murder (NY)
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Police officer, murder for hire, felony (intentional), witness intimidation, or more than 1 person killed
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1st Degree Manslaughter (NY)
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Intent to kill + EED, or intent to cause serious physical injury and not to kill
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2nd Degree Manslaughter (NY)
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An unintentional and reckless killing
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Burden of proof: defenses
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Prosecution must disprove beyond reasonable doubt
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Burden of proof: affirmative defenses
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Defendant must prove by preponderance of evidence
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5 ways to create legal duty
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Statute, contract, status (e.g. parent; spouse), voluntary assumption of care (including start to rescue), creation of peril
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Is an accelarating cause an "actual" case?
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Yes
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Is D responsible for consequences if victim's preexisiting weakness constributes to bad result?
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Yes (eggshell rule) - D responsible for all natural and probable consequences
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Battery (common law) / mental state
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Unalwful application of force to another resulting in bodily injury or offensive touching
General intent |
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Assault (common law) / mental state
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attempted battery OR intentinoal creation other than by mere words of a reasonable apprehension of imminent bodily harm
Specific intent |
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2nd Degree Assault (NY) / mental state
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Intentionally causing serious physical injury to another person
Intent |
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3rd Degree Assault (NY) / mental state
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Intentionally causing non-serious physical injury to another person
Intent |
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1st Degree Assault (NY) / mental state
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Intentionally causing serious physical injury to another person WITH WEAPON
Intent |
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What is NY equivalent of creating reasonable apprehension of imminent bodily harm?
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Menacing
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What is NY equivalent of swing-and-a-miss assault?
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Attempted assault
(Requires intent to assault) |
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Is battery a crime in NY?
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No
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Murder (common law)
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Causing death of another with malice aforethought
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Malice aforethought - 4 types
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Intent to kill, intent to inflict serious bodily injury, reckless indifference to human life ("abandoned and malignant heart"), intentional commission of dangerous felony
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When does year-and-day rule apply?
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Under common law / NOT under NY law
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Felonies that give rise to felony murder in NY
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BRAKES
Burglary, robbery, arson, kidnapping, escape, sexual assault |
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NY's non-slayer defense
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1. D did not kill victim
2. D did not have deadly weapon 3. D had no reason to believe co-felons had deadly weapon 4. D had no reason to believe co-felons intended to do anything resulting in death |
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Must D be found guilty of underlying felony to be convicted of felony murder?
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NY: no, so long as there's sufficient evidence he committed the felony
Elsewhere: yes |
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False imprisonment (common law) / mental state
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Unlawful confinement of a person without his consent
General intent |
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1st Degree Unlawful imprisonment (NY)
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2nd degree + serious risk of physical injury
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1st Degree Unlawful imprisonment (NY)
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Unlawfully restraining someone without their consent and WITH KNOWLEDGE that restraint is unlawful + serious risk of physical injury
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Kidnapping (common law) / mental state
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false imprisonment + moving victim or concealing victim in secret place
General intent |
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2nd degree kidnapping (NY)
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Abducting somone
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1st degree kidnapping (NY)
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Abducting someone +
Ranson; restraint for more than 12 hrs with intent to rape, rob or injure; OR death (which would also give rise to Mur-1 or Mur-2 depending on intent) |
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NY age of consent
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17
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Mental state of forcible rape (common law)
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General intent
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Mental state of statutory rape
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none - strict liability
(Minority: reasonable mistake of age is defense) |
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Larcey (common law)
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Trespassory (wrongful) taking and carrying away of tangible personal property of another with the intent to permanently retain the property
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Can a taking under a claim of right (even if erroneous) work a larceny?
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Never
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Is D guilty of larceny if he takes property without intent to steal, but later decides to steal it?
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Yes (continuous trespass rule)
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Larceny (NY)
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ANY CRIME that would be larceny, embezzlement, false pretences or larceny by trick at common law
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1st degree larceny (NY)
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>$1MM
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2nd degree larceny (NY)
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>$50k
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3rd degree larceny (NY)
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> $3k
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4th degree larceny (NY)
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>$1k
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Petit larceny (NY)
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<$1k
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Is getting property by issuing a bad check considered larceny in NY?
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Yes
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Embezzlement (common law)
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Conversion of personal property of another by a person already in lawful custody of the property + intent to defraud
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Is there embezzlement if D took property but plans to return it?
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No
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False pretenses (common law)
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Obtaining TITLE to personal proeprty by intentional false statement + intent to defraud
False statement cannot be future promise |
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Larceny by trick (common law)
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D obtains custory (but not title) as result of intentional false statement
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Issuing a bad check (NY)
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(i) drawer puts check into circulation (ii) knowing there are insufficient funds (iii) with belief that payment will be refused and (iv) payment is refused
D's "hope" that there will be sufficient funds before payee cashes check is irrelevant |
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Robbery (common law) / mental state
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Larceny from another's person or presence by force or threat of immediate injury
Specific intent to steal |
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1st degree robbery (NY)
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Forcible stealing + victim seriously injured or D uses forearm
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Affirmative defense to 1st degree robbery (NY)
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Gun unloaded / inoperable, reducing robbery to 2nd degree
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2nd degree robbery (NY)
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Focible stealing + one of following
D aided by someone actually present Victim injured Car is stolen |
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3rd degree robbery (NY)
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Forcible stealing
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Forgery / mental state
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Making or altering a writing so that it's false with intent to defraud
Specific intent to defraud |
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If D fraudulently induces a third party to sign a document (e.g. check), is he guity of forgery?
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No
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Possession / mental state
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Control for a period of time long enough to have had opportunity to terminate possession
Knowledge of possession AND character of item possessed |
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Constructive possession
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D not in actual possession, but contraband is close enough for D to exercise dominion and control over it
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Burglary (common law)
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Breaking and entering into the dwelling of another at night with intent to commit felony inside
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1st degree burglary (NY)
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D knows he's burglarizing dwelling + non-participant injured or D carries gun
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2nd degree burglary (NY)
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3rd degree + one of following
Building is dwelling Non-participant injured D carries weapon |
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3rd degree burglary (NY)
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Entering or remaining unlawfuly in a building with intent to commit a crime inside
(no force required) |
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Arson (common law) / mental state
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Malicious burning of a building
Malice |
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1st degree arson (NY)
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2nd degree + use of exposive or incendiary device
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2nd degree arson (NY)
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Intentional burning of a buiding where D knows or should have known there was someone inside
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3rd degree arson (NY)
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Intentional burning of a building
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4th degree arson (NY)
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Reckless burning of a building
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Of what crimes is accomplice liable?
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All substantive offenses of person who commits the crimes unless the accomplice withdraws
This includes crimes he aided/encouraged and all other foreseable crimes that actually happened |
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Accomplice intent (common law)
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Intent that crime be committed
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Accomplice intent (NY)
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Intent to aid principal's conduct and otherwise have mental state required for principal's crimes (need NOT intend that crime be committed)
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Does mere knowledge of crime create accomplice liability?
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No
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Can a person be convicted solely on testimony of his accomplice?
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No
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Withdrawal of encourager (comon law)
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Accomplice must discourage before crime is committed
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Withdrawal of aider (common law)
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Must either neutralize assistance or prevent crime (e.g. notify authorities)
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Withdrawal (NY)
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"Renunciation"
Accomplice must make SUBSTANTIAL EFFORT to prevent commission Affirmative defense |
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Accessory after the fact (common law)
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D helps principal who committed a felony, with knowledge that crime was committed, and with intent to help principal evade arrest
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Soliciation
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Asking someone to commit a crime with intent that crime be committed
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Conspiracy
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Agreement b/w 2 or more people + overt act in furtherance of crime
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Does preparation count as "overt act"?
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Yes
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Is completion of crime necessary for conspiracy?
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No
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Wharton rule
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If 2 or more people necessary for commission of crime (e.g. duel), there's no conspiracy unless MORE than required number entered an agt
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NY approach to conspiracy
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Unilateral - conviction even if there was only 1 D who truly intended to commit crime
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Pinkerton (Vicarious) Liability for conspirators
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In addition to conspiracy, conspirator liable for all crimes committed by co-conspirators that are in furtherance of conspiracy's objective and are foreseeable
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Is there vicarious (Pinkerton) liability in NY?
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Yes, but not if conspirator merely conspires and does not participate
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Attempt
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Required overt act BEYOND mere preparation
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Is impossibility a defense to attempt?
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Factual: no
Legal: yes, but not in NY |
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NY test for attempt
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Dangour proximity - must be very close
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Is withdrawal a defense to inchoate crimes (common law)?
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No
But if D withdraws from conspiracy, he is no lnoger vicariously liable for crimes of co-conspirators committed AFTER withrawal |
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Is withdrawal a defense to inchoate crimes (NY)?
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Only if D completely and voluntarily rensounces solicitation, attempt or conspiracy and renunciation was based on change of heart, not fear of being caught
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What crimes merge on MBE?
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Solicitation and attempt
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What crimes merge in NY?
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Just attempt
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Requirements for insanity defense
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D had mental disease or defect that rendered him insane under one of 3 tests
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M'Naughten test
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D did not know his act was wrong or did not understand nature of act (cognitive)
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Irresistible Impulse Test
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D was unable to control his actions or was unable to conform his conduct to law (volitional)
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MPC insanity test
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D lacked substantial capacity to either appreciate criminality of conduct or conform conduct to requirements of law (cognitive and volitional)
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NY insanity test
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D lackes substantial capacity to either understand nature of act or appreciate wrongfulness of conduct
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When is voluntary intoxication a defense?
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MBE: specific intent crimes only
NY: intent and knowledge crimes, if intoxication prevented D from forming requisite state of mind |
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Infancy rules (common law)
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Rule of sevens
Under 7: no prosecution Under 14: rebuttable presumption against prosecution 14+: prosecution allowed |
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Infancy rules (NY)
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Under 13: prosecution as adult not allowed
13: prosecution as adult allowed for Mur-2 14 or 15: prosecution as adult allowed for serious crimes against person or property 16+: prosecution as adult for any crime allowed |
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When is mistake of fact a defense (common law)?
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Specific intent: any mistake
General intent or malice: reasonable mistake SL: never a defense |
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When is mistake of fact a defense (NY)?
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Whenever mistake negats required mental state
But for crimes of negligence, reasonable mistake only |
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When is mistake of law a defense (common law and NY)?
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Generally never, unless statute makes knowledge of the LAW an element
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Initial aggressor rule (NY)
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D cannot use deadly force if he's initial aggressor unless he withdrew from fight and communicated withdrawal
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Initial aggressor rule (common law)
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D cannot use deadly force if he's initial aggressor unless he withdrew from fight and communicated withdrawal OR victim suddenly escalated non-deadly fight to deadly fight
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Is retreat required before use of deadly force?
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MBE: no
NY: yes, unless D cannot retreat in complete safety or is in his home |
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Is mistake about need to use deadly force a defense?
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Reasonable mistake: Yes
Unreasonable mistake: No |
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Entrapment
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D must show criminal design originated with government and D was not predisposed to commit the crime (heavy burden if D has criminal record)
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Requirements for 4A to apply
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Gov't agent + reasonable expectation of privacy
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Reasonable expectation of privacy: explicitly protected areas
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Persons
Homes (including hotel rooms and curtilage) Papers Effects |
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Test for reasonable expectation of privacy
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D had actual or subjective expectation of privacy in areas searched, and the expectation is one that society recognizes as reasonable
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Areas NOT proteted by 4A
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Patty Achieved A Glorious Victory Over Her Opponent
Paint scrapings off car Account records held by bank Airspace Garbage left at curb Voice exemplars Odors (from car or luggage) Handwriting exemplars Open fields |
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Do you have standing to challenge search if you're an overnight guest?
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Yes, as to areas you can be expected to have access
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Do you have standing to challenge search if you're solely on premises to conduct business?
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Never
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When do passengers have standing to challenge search of car?
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If passenger has reasonable expetaction of privacy in areas searched (e.g. passenger's coat, but not under driver's seat)
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Test for whether warrant satisfies 4A
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Supported by probable cause, particularity, issued by neutral and detached magistrate
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Probable cause (majority)
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Proof of "fair probability" that contraband or evidence of crime will be found in area searched, based on preponderance of evidence
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Anonymous informant's tips allowed for PC (majority)?
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Yes
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Probable cause (NY)
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Anguilar-Spinelli: gov't must establish informant's basis of knowledge and veracity or reliability
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Anonymous informant's tips allowed for PC (NY)?
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No
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Requirements for proper exection of warrant
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Officers comply with warrant's terms and limitations and with knock-and-announce rule
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When do police not have to comply with knock-and-announce?
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When doing so would be futile, dangerous, or would inhibit investigation
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What are the exceptions that allow admission of evidence obtained in a warrantless search?
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ESCAPIST
Exigent circumstances, search incident to arrest, consent, automobile, plain view, inventory, special needs, Terry stops/frisks |
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3 types of exigent circumstances evidence
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Evanescant evidence; hot pursuit / in plain view; emergency aid
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Requirements for search incident to arrest
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Arrest is lawful; search is contemporaneous
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Scope of search incident to arrest
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Wingspan, without regard to offense for which arrest was made
NY: to search containers w/in wingspan, police must suspect D is armed |
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Scope of search incident to arrest: autos
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If arrestee is secured, officer can search car only if he has reason to believe it contains evidence relating to crime for which arrest was made
NY: once occupant is OUT of car, police CANNOT search closed containers or bags within the car to search for weapons or evidence of crime |
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Requirements for auto search exception
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Police have PC that contraband or evidence of crime will be found in car
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Scope of auto search exception
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Entire vehicle, including any packages therein that could reasonably contain items for which there was PC
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Plain view exception requirements
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Lawful access to place, lawful access to item, criminality is immediately apparent
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Inventory search exception requirements
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Regulations governing inventory search are reasonable, search complies with regulations and conducted in good faith
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When is random drug testing allowed, and under what exception
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Special needs:
1. RR employees after accident 2. Customs agents responsible for drug itnerdiction 3. Public school children who participate in any extra curricular activities |
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Who has 4A rights at border searches?
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No one
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Wiretapping requirements
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Screen Telephone Calls Carefully: warrant must name
Suspected persons Crime (must be PC that crime was committed) Conversations to be overheard Time |
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When does an arrest occur
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When police take someone into custody against her will for prosecution or interrogation
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When do you need an arrest warrant?
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In arrestee's home (absent emergency) and in home of 3rd party (also need search warrant), but NOT in public places
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3 constitutional challenges to exclude confessions
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14A due process
6A right to counsel 5A Miranda doctrine NY: Indelible Right to Counsel under 6A of STATE constitution |
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14A DP challenge to exclude confession
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Must show confession was involuntary - the result of police coercion that overbears the suspect's will
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6A Right to Counsel objection to exclude confession
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Must show that an incriminating statement was deliberately elicited by police, adn that D did not knowingly, intelligently and voluntarily waive his right to counsel.
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When does 6A right to counsel attach?
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When D is formally chaged, NOT upon arrest.
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Does 6A right to counsel apply to all interrogation, or just that related to charges filed against D?
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Just related to charges filed against D
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When does NY Indelible Right to Counsel attach?
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Wheneer there is significant judicial activity, or activitiy overwhelming to an ordinary person before filing of an accusatory instrument, where D would benefit from presence of counsel
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In NY, if police know D has counsel, what can they question him about without presence of attorney?
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Nothing -- neither charge nor any other matter
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When are Miranda warnings necessary?
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Attaches on custody + interrogation
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What is "custody" for Miranda purposes?
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Suspect is in custody when atmosphere, viewed objectively, is characterized by polce domination and coercion such that perp's freedom of actino is limited in a significant way
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What is "interrogation" for Miranda purposes?
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Any conduct police know or should know is likely to elicit an incriminating response
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Requirements for valid Miranda waiver
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Knowing and intelligent, and voluntary
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Must Miranda waiver be express?
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No
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When do you have a right to counsel, and under what amendments, at pre-trial IDs?
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ONLY a 6A right at line-ups and show-ups that take place after formal charging
NY: right to counsel at line-ups conducted BEFORE formal charging if you are aware you have counsel and request counsel |
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When does pre-trial ID violate 14A DP?
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When it's so unnecessarily suggestive that it created a substantial likelihood of irreperable misidentification
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What is Brady rule?
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Prosecution must disclose to D all material exculpatory evidence
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Number of jurors required at criminal trial by Constitution / unanimity requirement
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6
Must be unanimous, unless trial has 12 person jury |
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Number of jurors required at criminal trial by NY / unanimity requirement
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12 (unless D waives to 11)
Must be unanimous |
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Test for ineffective assistance of counsel challenge
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D must prove (i) counsel's performance was deficient and (ii) but for deficiency, outcome would have been different
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When does double jeopardy attach?
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Jury trial --> when jury is sworn
Bench trial --> when first witness sworn Guilty plea --> when court accepts D's plea unconditionally |
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Does double jeopardy apply to civil proceedings?
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No
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Same offense requirement (federal)
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2 offenses are NOT the same if each contains an element the other does not
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Same offense requirement (NY)
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Transactional test - D must be charged with all offenses arising from single transaction unless
1. They have substantially different elements 2. Each contains an element not in the other AND they vindicate different harms 3. One is for criminal possession, the other for use, or 4. Each involved harm to a different victim |
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Are federal and state the "same sovereign"?
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No
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Are two states the "same soverign"?
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No
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Are state and local the same soverign?
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Yes
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Exceptions to double jeopardy - 4
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Hung jury
Mistrial for manifest necessity Successful appeal, unless reversal based on insufficiency of evidence presented at trial by prosecution Breach of plea agt by D |
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Who can assert 5A privilege at a trial?
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Anyone
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Can 5A be asserted at a grand jury proceeding?
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NY: no
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