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46 Cards in this Set

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NYPL section 1.05
General Purposes
§ 1.05 General purposes.
The general purposes of the provisions of this chapter are:
1. To proscribe conduct which unjustifiably and inexcusably causes or
threatens substantial harm to individual or public interests;
2. To give fair warning of the nature of the conduct proscribed and of
the sentences authorized upon conviction;
3. To define the act or omission and the accompanying mental state
which constitute each offense;
4. To differentiate on reasonable grounds between serious and minor
offenses and to prescribe proportionate penalties therefor;
5. To provide for an appropriate public response to particular
offenses, including consideration of the consequences of the offense for
the victim, including the victim's family, and the community; and
6. To insure the public safety by preventing the commission of
offenses through the deterrent influence of the sentences authorized,
the rehabilitation of those convicted, and their confinement when
required in the interests of public protection.
NYPL section 5.00
Not strictly construed
§ 5.00 Penal law not strictly construed.
The general rule that a penal statute is to be strictly construed does
not apply to this chapter, but the provisions herein must be construed
according to the fair import of their terms to promote justice and
effect the objects of the law.
NYPL section 15.05
Culpability
§ 15.05 Culpability; definitions of culpable mental states.
The following definitions are applicable to this chapter:
1. "Intentionally." A person acts intentionally with respect to a
result or to conduct described by a statute defining an offense when his
conscious objective is to cause such result or to engage in such
conduct.
2. "Knowingly." A person acts knowingly with respect to conduct or to
a circumstance described by a statute defining an offense when he is
aware that his conduct is of such nature or that such circumstance
exists.
3. "Recklessly." A person acts recklessly with respect to a result or
to a circumstance described by a statute defining an offense when he is
aware of and consciously disregards a substantial and unjustifiable risk
that such result will occur or that such circumstance exists. The risk
must be of such nature and degree that disregard thereof constitutes a
gross deviation from the standard of conduct that a reasonable person
would observe in the situation. A person who creates such a risk but is
unaware thereof solely by reason of voluntary intoxication also acts
recklessly with respect thereto.
4. "Criminal negligence." A person acts with criminal negligence with
respect to a result or to a circumstance described by a statute defining
an offense when he fails to perceive a substantial and unjustifiable
risk that such result will occur or that such circumstance exists. The
risk must be of such nature and degree that the failure to perceive it
constitutes a gross deviation from the standard of care that a
reasonable person would observe in the situation.
NYPL section 15.20
Effect of ignorance or mistake upon liability
§ 15.20 Effect of ignorance or mistake upon liability.
1. A person is not relieved of criminal liability for conduct because
he engages in such conduct under a mistaken belief of fact, unless:
(a) Such factual mistake negatives the culpable mental state required
for the commission of an offense; or
(b) The statute defining the offense or a statute related thereto
expressly provides that such factual mistake constitutes a defense or
exemption; or
(c) Such factual mistake is of a kind that supports a defense of
justification as defined in article thirty-five of this chapter.
2. A person is not relieved of criminal liability for conduct because
he engages in such conduct under a mistaken belief that it does not, as
a matter of law, constitute an offense, unless such mistaken belief is
founded upon an official statement of the law contained in (a) a statute
or other enactment, or (b) an administrative order or grant of
permission, or (c) a judicial decision of a state or federal court, or
(d) an interpretation of the statute or law relating to the offense,
officially made or issued by a public servant, agency or body legally
charged or empowered with the responsibility or privilege of
administering, enforcing or interpreting such statute or law.
3. Notwithstanding the use of the term "knowingly" in any provision of
this chapter defining an offense in which the age of a child is an
element thereof, knowledge by the defendant of the age of such child is
not an element of any such offense and it is not, unless expressly so
provided, a defense to a prosecution therefor that the defendant did not
know the age of the child or believed such age to be the same as or
greater than that specified in the statute.
4. Notwithstanding the use of the term "knowingly" in any provision of
this chapter defining an offense in which the aggregate weight of a
controlled substance or marihuana is an element, knowledge by the
defendant of the aggregate weight of such controlled substance or
marihuana is not an element of any such offense and it is not, unless
expressly so provided, a defense to a prosecution therefor that the
defendant did not know the aggregate weight of the controlled substance
or marihuana.
NYPL section 20.00
Criminally liable for conduct of another
§ 20.00 Criminal liability for conduct of another.
When one person engages in conduct which constitutes an offense,
another person is criminally liable for such conduct when, acting with
the mental culpability required for the commission thereof, he solicits,
requests, commands, importunes, or intentionally aids such person to
engage in such conduct.
NYPL section 15.15
Construction of statutes with respect to culpability
§ 15.15 Construction of statutes with respect to culpability
requirements.
1. When the commission of an offense defined in this chapter, or some
element of an offense, requires a particular culpable mental state, such
mental state is ordinarily designated in the statute defining the
offense by use of the terms "intentionally," "knowingly," "recklessly"
or "criminal negligence," or by use of terms, such as "with intent to
defraud" and "knowing it to be false," describing a specific kind of
intent or knowledge. When one and only one of such terms appears in a
statute defining an offense, it is presumed to apply to every element of
the offense unless an intent to limit its application clearly appears.
2. Although no culpable mental state is expressly designated in a
statute defining an offense, a culpable mental state may nevertheless be
required for the commission of such offense, or with respect to some or
all of the material elements thereof, if the proscribed conduct
necessarily involves such culpable mental state. A statute defining a
crime, unless clearly indicating a legislative intent to impose strict
liability, should be construed as defining a crime of mental
culpability. This subdivision applies to offenses defined both in and
outside this chapter.
NYPL section 20.05
Criminal liability for conduct of another; no defense.
§ 20.05 Criminal liability for conduct of another; no defense.
In any prosecution for an offense in which the criminal liability of
the defendant is based upon the conduct of another person pursuant to
section 20.00, it is no defense that:
1. Such other person is not guilty of the offense in question owing to
criminal irresponsibility or other legal incapacity or exemption, or to
unawareness of the criminal nature of the conduct in question or of the
defendant's criminal purpose or to other factors precluding the mental
state required for the commission of the offense in question; or
2. Such other person has not been prosecuted for or convicted of any
offense based upon the conduct in question, or has previously been
acquitted thereof, or has legal immunity from prosecution therefor; or
3. The offense in question, as defined, can be committed only by a
particular class or classes of persons, and the defendant, not belonging
to such class or classes, is for that reason legally incapable of
committing the offense in an individual capacity.
NYPL section 125.00
Homicide defined
§ 125.00 Homicide defined.
Homicide means conduct which causes the death of a person or an unborn
child with which a female has been pregnant for more than twenty-four
weeks under circumstances constituting murder, manslaughter in the first
degree, manslaughter in the second degree, criminally negligent
homicide, abortion in the first degree or self-abortion in the first
degree.
NYPL section 125.10
Criminally negligent homicide
§ 125.10 Criminally negligent homicide.
A person is guilty of criminally negligent homicide when, with
criminal negligence, he causes the death of another person.
Criminally negligent homicide is a class E felony.
NYPL section 125.11
Aggravated criminally negligent homicide
§ 125.11 Aggravated criminally negligent homicide.
A person is guilty of aggravated criminally negligent homicide when,
with criminal negligence, he or she causes the death of a police officer
or peace officer where such officer was in the course of performing his
or her official duties and the defendant knew or reasonably should have
known that such victim was a police officer or peace officer.
Aggravated criminally negligent homicide is a class C felony.
NYPL section 125.12
Vehicular manslaughter in the second degree.
§ 125.12 Vehicular manslaughter in the second degree.
A person is guilty of vehicular manslaughter in the second degree when
he or she causes the death of another person, and either:
(1) operates a motor vehicle in violation of subdivision two, three or
four of section eleven hundred ninety-two of the vehicle and traffic law
or operates a vessel or public vessel in violation of paragraph (b),
(c), (d) or (e) of subdivision two of section forty-nine-a of the
navigation law, and as a result of such intoxication or impairment by
the use of a drug, operates such motor vehicle, vessel or public vessel
in a manner that causes the death of such other person, or
(2) operates a motor vehicle with a gross vehicle weight rating of
more than eighteen thousand pounds which contains flammable gas,
radioactive materials or explosives in violation of subdivision one of
section eleven hundred ninety-two of the vehicle and traffic law, and
such flammable gas, radioactive materials or explosives is the cause of
such death, and as a result of such intoxication or impairment by the
use of a drug, operates such motor vehicle in a manner that causes the
death of such other person, or
(3) operates a snowmobile in violation of paragraph (b), (c) or (d) of
subdivision one of section 25.24 of the parks, recreation and historic
preservation law or operates an all terrain vehicle as defined in
paragraph (a) of subdivision one of section twenty-two hundred
eighty-one of the vehicle and traffic law in violation of subdivision
two, three, or four of section eleven hundred ninety-two of the vehicle
and traffic law, and as a result of such intoxication or impairment by
the use of a drug, operates such snowmobile or all terrain vehicle in a
manner that causes the death of such other person.
If it is established that the person operating such motor vehicle,
vessel, public vessel, snowmobile or all terrain vehicle caused such
death while unlawfully intoxicated or impaired by the use of a drug,
then there shall be a rebuttable presumption that, as a result of such
intoxication or impairment by the use of a drug, such person operated
the motor vehicle, vessel, public vessel, snowmobile or all terrain
vehicle in a manner that caused such death, as required by this section.
Vehicular manslaughter in the second degree is a class D felony.
NYPL 125.13
Vehicular manslaughter in the first degree.
§ 125.13 Vehicular manslaughter in the first degree.
A person is guilty of vehicular manslaughter in the first degree when
he or she:
(1) commits the crime of vehicular manslaughter in the second degree
as defined in section 125.12, and
(2) commits such crime while knowing or having reason to know that:
(a) his or her license or his or her privilege of operating a motor
vehicle in another state or his or her privilege of obtaining a license
to operate a motor vehicle in another state is suspended or revoked and
such suspension or revocation is based upon a conviction in such other
state for an offense which would, if committed in this state, constitute
a violation of any of the provisions of section eleven hundred
ninety-two of the vehicle and traffic law; or (b) his or her license or
his or her privilege of operating a motor vehicle in the state or his or
her privilege of obtaining a license issued by the commissioner of motor
vehicles is suspended or revoked and such suspension or revocation is
based upon either a refusal to submit to a chemical test pursuant to
section eleven hundred ninety-four of the vehicle and traffic law or
following a conviction for a violation of any of the provisions of
section eleven hundred ninety-two of the vehicle and traffic law.
If it is established that the person operating such motor vehicle
caused such death while unlawfully intoxicated or impaired by the use of
a drug, then there shall be a rebuttable presumption that, as a result
of such intoxication or impairment by the use of a drug, such person
operated the motor vehicle in a manner that caused such death, as
required by this section.
Vehicular manslaughter in the first degree is a class C felony.
NYPL 125.15
Manslaughter in the second degree.
§ 125.15 Manslaughter in the second degree.
A person is guilty of manslaughter in the second degree when:
1. He recklessly causes the death of another person; or
2. He commits upon a female an abortional act which causes her death,
unless such abortional act is justifiable pursuant to subdivision three
of section 125.05; or
3. He intentionally causes or aids another person to commit suicide.
Manslaughter in the second degree is a class C felony.
NYPL 125.20
Manslaughter in the first degree.
§ 125.20 Manslaughter in the first degree.
A person is guilty of manslaughter in the first degree when:
1. With intent to cause serious physical injury to another person, he
causes the death of such person or of a third person; or
2. With intent to cause the death of another person, he causes the
death of such person or of a third person under circumstances which do
not constitute murder because he acts under the influence of extreme
emotional disturbance, as defined in paragraph (a) of subdivision one of
section 125.25. The fact that homicide was committed under the influence
of extreme emotional disturbance constitutes a mitigating circumstance
reducing murder to manslaughter in the first degree and need not be
proved in any prosecution initiated under this subdivision; or
3. He commits upon a female pregnant for more than twenty-four weeks
an abortional act which causes her death, unless such abortional act is
justifiable pursuant to subdivision three of section 125.05; or
4. Being eighteen years old or more and with intent to cause physical
injury to a person less than eleven years old, the defendant recklessly
engages in conduct which creates a grave risk of serious physical injury
to such person and thereby causes the death of such person.
Manslaughter in the first degree is a class B felony.
NYPL 125.21
Aggravated manslaughter in the second degree.
§ 125.21 Aggravated manslaughter in the second degree.
A person is guilty of aggravated manslaughter in the second degree
when he or she recklessly causes the death of a police officer or peace
officer where such officer was in the course of performing his or her
official duties and the defendant knew or reasonably should have known
that such victim was a police officer or peace officer.
Aggravated manslaughter in the second degree is a class C felony.
NYPL 125.22
Aggravated manslaughter in the first degree.
§ 125.22 Aggravated manslaughter in the first degree.
A person is guilty of aggravated manslaughter in the first degree
when:
1. with intent to cause serious physical injury to a police officer or
peace officer, where such officer was in the course of performing his or
her official duties and the defendant knew or reasonably should have
known that such victim was a police officer or a peace officer, he or
she causes the death of such officer or another police officer or peace
officer; or
2. with intent to cause the death of a police officer or peace
officer, where such officer was in the course of performing his or her
official duties and the defendant knew or reasonably should have known
that such victim was a police officer or peace officer, he or she causes
the death of such officer or another police officer or peace officer
under circumstances which do not constitute murder because he or she
acts under the influence of extreme emotional disturbance, as defined in
paragraph (a) of subdivision one of section 125.25. The fact that
homicide was committed under the influence of extreme emotional
disturbance constitutes a mitigating circumstance reducing murder to
aggravated manslaughter in the first degree or manslaughter in the first
degree and need not be proved in any prosecution initiated under this
subdivision.
Aggravated manslaughter in the first degree is a class B felony.
NYPL 125.25
Murder in the second degree
§ 125.25 Murder in the second degree.
A person is guilty of murder in the second degree when:
1. With intent to cause the death of another person, he causes the
death of such person or of a third person; except that in any
prosecution under this subdivision, it is an affirmative defense that:
(a) The defendant acted under the influence of extreme emotional
disturbance for which there was a reasonable explanation or excuse, the
reasonableness of which is to be determined from the viewpoint of a
person in the defendant's situation under the circumstances as the
defendant believed them to be. Nothing contained in this paragraph shall
constitute a defense to a prosecution for, or preclude a conviction of,
manslaughter in the first degree or any other crime; or
(b) The defendant's conduct consisted of causing or aiding, without
the use of duress or deception, another person to commit suicide.
Nothing contained in this paragraph shall constitute a defense to a
prosecution for, or preclude a conviction of, manslaughter in the second
degree or any other crime; or
2. Under circumstances evincing a depraved indifference to human life,
he recklessly engages in conduct which creates a grave risk of death to
another person, and thereby causes the death of another person; or
3. Acting either alone or with one or more other persons, he commits
or attempts to commit robbery, burglary, kidnapping, arson, rape in the
first degree, criminal sexual act in the first degree, sexual abuse in
the first degree, aggravated sexual abuse, escape in the first degree,
or escape in the second degree, and, in the course of and in furtherance
of such crime or of immediate flight therefrom, he, or another
participant, if there be any, causes the death of a person other than
one of the participants; except that in any prosecution under this
subdivision, in which the defendant was not the only participant in the
underlying crime, it is an affirmative defense that the defendant:
(a) Did not commit the homicidal act or in any way solicit, request,
command, importune, cause or aid the commission thereof; and
(b) Was not armed with a deadly weapon, or any instrument, article or
substance readily capable of causing death or serious physical injury
and of a sort not ordinarily carried in public places by law-abiding
persons; and
(c) Had no reasonable ground to believe that any other participant was
armed with such a weapon, instrument, article or substance; and
(d) Had no reasonable ground to believe that any other participant
intended to engage in conduct likely to result in death or serious
physical injury; or
4. Under circumstances evincing a depraved indifference to human life,
and being eighteen years old or more the defendant recklessly engages in
conduct which creates a grave risk of serious physical injury or death
to another person less than eleven years old and thereby causes the
death of such person; or
5. Being eighteen years old or more, while in the course of committing
rape in the first, second or third degree, criminal sexual act in the
first, second or third degree, sexual abuse in the first degree,
aggravated sexual abuse in the first, second, third or fourth degree, or
incest as defined in section 255.25 of this chapter, against a person
less than fourteen years old, he or she intentionally causes the death
of such person.
Murder in the second degree is a class A-I felony.
NYPL 125.26
Aggravated murder
§ 125.26 Aggravated murder.
A person is guilty of aggravated murder when:
1. With intent to cause the death of another person, he or she causes
the death of such person, or of a third person who was a person
described in subparagraph (i), (ii) or (iii) of paragraph (a) of this
subdivision engaged at the time of the killing in the course of
performing his or her official duties; and
(a) Either:
(i) the intended victim was a police officer as defined in subdivision
thirty-four of section 1.20 of the criminal procedure law who was at the
time of the killing engaged in the course of performing his or her
official duties, and the defendant knew or reasonably should have known
that the victim was a police officer; or
(ii) the intended victim was a peace officer as defined in paragraph a
of subdivision twenty-one, subdivision twenty-three, twenty-four or
sixty-two (employees of the division for youth) of section 2.10 of the
criminal procedure law who was at the time of the killing engaged in the
course of performing his or her official duties, and the defendant knew
or reasonably should have known that the victim was such a uniformed
court officer, parole officer, probation officer, or employee of the
division for youth; or
(iii) the intended victim was an employee of a state correctional
institution or was an employee of a local correctional facility as
defined in subdivision two of section forty of the correction law, who
was at the time of the killing engaged in the course of performing his
or her official duties, and the defendant knew or reasonably should have
known that the victim was an employee of a state correctional
institution or a local correctional facility; and
(b) The defendant was more than eighteen years old at the time of the
commission of the crime.
2. In any prosecution under subdivision one of this section, it is an
affirmative defense that:
(a) The defendant acted under the influence of extreme emotional
disturbance for which there was a reasonable explanation or excuse, the
reasonableness of which is to be determined from the viewpoint of a
person in the defendant's situation under the circumstances as the
defendant believed them to be. Nothing contained in this paragraph shall
constitute a defense to a prosecution for, or preclude a conviction of,
aggravated manslaughter in the first degree, manslaughter in the first
degree or any other crime except murder in the second degree; or
(b) The defendant's conduct consisted of causing or aiding, without
the use of duress or deception, another person to commit suicide.
Nothing contained in this paragraph shall constitute a defense to a
prosecution for, or preclude a conviction of, aggravated manslaughter in
the second degree, manslaughter in the second degree or any other crime
except murder in the second degree.
Aggravated murder is a class A-I felony.
NYPL 125.27
Murder in the first degree
§ 125.27 Murder in the first degree.
A person is guilty of murder in the first degree when:
1. With intent to cause the death of another person, he causes the
death of such person or of a third person; and
(a) Either:
(i) the intended victim was a police officer as defined in subdivision
34 of section 1.20 of the criminal procedure law who was at the time of
the killing engaged in the course of performing his official duties, and
the defendant knew or reasonably should have known that the intended
victim was a police officer; or
(ii) the intended victim was a peace officer as defined in paragraph a
of subdivision twenty-one, subdivision twenty-three, twenty-four or
sixty-two (employees of the division for youth) of section 2.10 of the
criminal procedure law who was at the time of the killing engaged in the
course of performing his official duties, and the defendant knew or
reasonably should have known that the intended victim was such a
uniformed court officer, parole officer, probation officer, or employee
of the division for youth; or
(iii) the intended victim was an employee of a state correctional
institution or was an employee of a local correctional facility as
defined in subdivision two of section forty of the correction law, who
was at the time of the killing engaged in the course of performing his
official duties, and the defendant knew or reasonably should have known
that the intended victim was an employee of a state correctional
institution or a local correctional facility; or
(iv) at the time of the commission of the killing, the defendant was
confined in a state correctional institution or was otherwise in custody
upon a sentence for the term of his natural life, or upon a sentence
commuted to one of natural life, or upon a sentence for an indeterminate
term the minimum of which was at least fifteen years and the maximum of
which was natural life, or at the time of the commission of the killing,
the defendant had escaped from such confinement or custody while serving
such a sentence and had not yet been returned to such confinement or
custody; or
(v) the intended victim was a witness to a crime committed on a prior
occasion and the death was caused for the purpose of preventing the
intended victim's testimony in any criminal action or proceeding whether
or not such action or proceeding had been commenced, or the intended
victim had previously testified in a criminal action or proceeding and
the killing was committed for the purpose of exacting retribution for
such prior testimony, or the intended victim was an immediate family
member of a witness to a crime committed on a prior occasion and the
killing was committed for the purpose of preventing or influencing the
testimony of such witness, or the intended victim was an immediate
family member of a witness who had previously testified in a criminal
action or proceeding and the killing was committed for the purpose of
exacting retribution upon such witness for such prior testimony. As used
in this subparagraph "immediate family member" means a husband, wife,
father, mother, daughter, son, brother, sister, stepparent, grandparent,
stepchild or grandchild; or
(vi) the defendant committed the killing or procured commission of the
killing pursuant to an agreement with a person other than the intended
victim to commit the same for the receipt, or in expectation of the
receipt, of anything of pecuniary value from a party to the agreement or
from a person other than the intended victim acting at the direction of
a party to such agreement; or
(vii) the victim was killed while the defendant was in the course of
committing or attempting to commit and in furtherance of robbery,
burglary in the first degree or second degree, kidnapping in the first
degree, arson in the first degree or second degree, rape in the first
degree, criminal sexual act in the first degree, sexual abuse in the
first degree, aggravated sexual abuse in the first degree or escape in
the first degree, or in the course of and furtherance of immediate
flight after committing or attempting to commit any such crime or in the
course of and furtherance of immediate flight after attempting to commit
the crime of murder in the second degree; provided however, the victim
is not a participant in one of the aforementioned crimes and, provided
further that, unless the defendant's criminal liability under this
subparagraph is based upon the defendant having commanded another person
to cause the death of the victim or intended victim pursuant to section
20.00 of this chapter, this subparagraph shall not apply where the
defendant's criminal liability is based upon the conduct of another
pursuant to section 20.00 of this chapter; or
(viii) as part of the same criminal transaction, the defendant, with
intent to cause serious physical injury to or the death of an additional
person or persons, causes the death of an additional person or persons;
provided, however, the victim is not a participant in the criminal
transaction; or
(ix) prior to committing the killing, the defendant had been convicted
of murder as defined in this section or section 125.25 of this article,
or had been convicted in another jurisdiction of an offense which, if
committed in this state, would constitute a violation of either of such
sections; or
(x) the defendant acted in an especially cruel and wanton manner
pursuant to a course of conduct intended to inflict and inflicting
torture upon the victim prior to the victim's death. As used in this
subparagraph, "torture" means the intentional and depraved infliction of
extreme physical pain; "depraved" means the defendant relished the
infliction of extreme physical pain upon the victim evidencing
debasement or perversion or that the defendant evidenced a sense of
pleasure in the infliction of extreme physical pain; or
(xi) the defendant intentionally caused the death of two or more
additional persons within the state in separate criminal transactions
within a period of twenty-four months when committed in a similar
fashion or pursuant to a common scheme or plan; or
(xii) the intended victim was a judge as defined in subdivision
twenty-three of section 1.20 of the criminal procedure law and the
defendant killed such victim because such victim was, at the time of the
killing, a judge; or
(xiii) the victim was killed in furtherance of an act of terrorism, as
defined in paragraph (b) of subdivision one of section 490.05 of this
chapter; and
(b) The defendant was more than eighteen years old at the time of the
commission of the crime.
2. In any prosecution under subdivision one, it is an affirmative
defense that:
(a) The defendant acted under the influence of extreme emotional
disturbance for which there was a reasonable explanation or excuse, the
reasonableness of which is to be determined from the viewpoint of a
person in the defendant's situation under the circumstances as the
defendant believed them to be. Nothing contained in this paragraph shall
constitute a defense to a prosecution for, or preclude a conviction of,
manslaughter in the first degree or any other crime except murder in the
second degree; or
(b) The defendant's conduct consisted of causing or aiding, without
the use of duress or deception, another person to commit suicide.
Nothing contained in this paragraph shall constitute a defense to a
prosecution for, or preclude a conviction of, manslaughter in the second
degree or any other crime except murder in the second degree.
Murder in the first degree is a class A-I felony.
NYPL 130.00
Sex offenses; definitions of terms.
§ 130.00 Sex offenses; definitions of terms.
The following definitions are applicable to this article:
1. "Sexual intercourse" has its ordinary meaning and occurs upon any
penetration, however slight.
2. (a) "Oral sexual conduct" means conduct between persons consisting
of contact between the mouth and the penis, the mouth and the anus, or
the mouth and the vulva or vagina.
(b) "Anal sexual conduct" means conduct between persons consisting of
contact between the penis and anus.
3. "Sexual contact" means any touching of the sexual or other intimate
parts of a person not married to the actor for the purpose of gratifying
sexual desire of either party. It includes the touching of the actor by
the victim, as well as the touching of the victim by the actor, whether
directly or through clothing.
4. For the purposes of this article "married" means the existence of
the relationship between the actor and the victim as spouses which is
recognized by law at the time the actor commits an offense proscribed by
this article against the victim.
5. "Mentally disabled" means that a person suffers from a mental
disease or defect which renders him or her incapable of appraising the
nature of his or her conduct.
6. "Mentally incapacitated" means that a person is rendered
temporarily incapable of appraising or controlling his conduct owing to
the influence of a narcotic or intoxicating substance administered to
him without his consent, or to any other act committed upon him without
his consent.
7. "Physically helpless" means that a person is unconscious or for any
other reason is physically unable to communicate unwillingness to an
act.
8. "Forcible compulsion" means to compel by either:
a. use of physical force; or
b. a threat, express or implied, which places a person in fear of
immediate death or physical injury to himself, herself or another
person, or in fear that he, she or another person will immediately be
kidnapped.
9. "Foreign object" means any instrument or article which, when
inserted in the vagina, urethra, penis or rectum, is capable of causing
physical injury.
10. "Sexual conduct" means sexual intercourse, oral sexual conduct,
anal sexual conduct, aggravated sexual contact, or sexual contact.
11. "Aggravated sexual contact" means inserting, other than for a
valid medical purpose, a foreign object in the vagina, urethra, penis or
rectum of a child, thereby causing physical injury to such child.
12. "Health care provider" means any person who is, or is required to
be, licensed or registered or holds himself or herself out to be
licensed or registered, or provides services as if he or she were
licensed or registered in the profession of medicine, chiropractic,
dentistry or podiatry under any of the following: article one hundred
thirty-one, one hundred thirty-two, one hundred thirty-three, or one
hundred forty-one of the education law.
13. "Mental health care provider" shall mean a licensed physician,
licensed psychologist, registered professional nurse, licensed clinical
social worker or a licensed master social worker under the supervision
of a physician, psychologist or licensed clinical social worker.
NYPL section 130.05
Sex offenses lack of consent
§ 130.05 Sex offenses; lack of consent.
1. Whether or not specifically stated, it is an element of every
offense defined in this article that the sexual act was committed
without consent of the victim.
2. Lack of consent results from:
(a) Forcible compulsion; or
(b) Incapacity to consent; or
(c) Where the offense charged is sexual abuse or forcible touching,
any circumstances, in addition to forcible compulsion or incapacity to
consent, in which the victim does not expressly or impliedly acquiesce
in the actor's conduct; or
(d) Where the offense charged is rape in the third degree as defined
in subdivision three of section 130.25, or criminal sexual act in the
third degree as defined in subdivision three of section 130.40, in
addition to forcible compulsion, circumstances under which, at the time
of the act of intercourse, oral sexual conduct or anal sexual conduct,
the victim clearly expressed that he or she did not consent to engage in
such act, and a reasonable person in the actor's situation would have
understood such person's words and acts as an expression of lack of
consent to such act under all the circumstances.
3. A person is deemed incapable of consent when he or she is:
(a) less than seventeen years old; or
(b) mentally disabled; or
(c) mentally incapacitated; or
(d) physically helpless; or
(e) committed to the care and custody of the state department of
correctional services or a hospital, as such term is defined in
subdivision two of section four hundred of the correction law, and the
actor is an employee, not married to such person, who knows or
reasonably should know that such person is committed to the care and
custody of such department or hospital. For purposes of this paragraph,
"employee" means (i) an employee of the state department of correctional
services who performs professional duties in a state correctional
facility consisting of providing custody, medical or mental health
services, counseling services, educational programs, or vocational
training for inmates;
(ii) an employee of the division of parole who performs professional
duties in a state correctional facility and who provides institutional
parole services pursuant to section two hundred fifty-nine-e of the
executive law; or
(iii) an employee of the office of mental health who performs
professional duties in a state correctional facility or hospital, as
such term is defined in subdivision two of section four hundred of the
correction law, consisting of providing custody, or medical or mental
health services for such inmates; or
(f) committed to the care and custody of a local correctional
facility, as such term is defined in subdivision two of section forty of
the correction law, and the actor is an employee, not married to such
person, who knows or reasonably should know that such person is
committed to the care and custody of such facility. For purposes of this
paragraph, "employee" means an employee of the local correctional
facility where the person is committed who performs professional duties
consisting of providing custody, medical or mental health services,
counseling services, educational services, or vocational training for
inmates; or
(g) committed to or placed with the office of children and family
services and in residential care, and the actor is an employee, not
married to such person, who knows or reasonably should know that such
person is committed to or placed with such office of children and family
services and in residential care. For purposes of this paragraph,
"employee" means an employee of the office of children and family
services or of a residential facility who performs duties consisting of
providing custody, medical or mental health services, counseling
services, educational services, or vocational training for persons
committed to or placed with the office of children and family services
and in residential care; or
(h) a client or patient and the actor is a health care provider or
mental health care provider charged with rape in the third degree as
defined in section 130.25, criminal sexual act in the third degree as
defined in section 130.40, aggravated sexual abuse in the fourth degree
as defined in section 130.65-a, or sexual abuse in the third degree as
defined in section 130.55, and the act of sexual conduct occurs during a
treatment session, consultation, interview, or examination.
NYPL section 130.10
§ 130.10 Sex offenses; limitation; defenses.
1. In any prosecution under this article in which the victim's lack of
consent is based solely upon his or her incapacity to consent because he
or she was mentally disabled, mentally incapacitated or physically
helpless, it is an affirmative defense that the defendant, at the time
he or she engaged in the conduct constituting the offense, did not know
of the facts or conditions responsible for such incapacity to consent.
2. Conduct performed for a valid medical or mental health care purpose
shall not constitute a violation of any section of this article in which
incapacity to consent is based on the circumstances set forth in
paragraph (h) of subdivision three of section 130.05 of this article.
3. In any prosecution for the crime of rape in the third degree as
defined in section 130.25, criminal sexual act in the third degree as
defined in section 130.40, aggravated sexual abuse in the fourth degree
as defined in section 130.65-a, or sexual abuse in the third degree as
defined in section 130.55 in which incapacity to consent is based on the
circumstances set forth in paragraph (h) of subdivision three of section
130.05 of this article it shall be an affirmative defense that the
client or patient consented to such conduct charged after having been
expressly advised by the health care or mental health care provider that
such conduct was not performed for a valid medical purpose.
4. In any prosecution under this article in which the victim's lack of
consent is based solely on his or her incapacity to consent because he
or she was less than seventeen years old, mentally disabled, or a client
or patient and the actor is a health care provider, it shall be a
defense that the defendant was married to the victim as defined in
subdivision four of section 130.00 of this article.
NYPL section 130.20
Sexual misconduct
§ 130.20 Sexual misconduct.
A person is guilty of sexual misconduct when:
1. He or she engages in sexual intercourse with another person without
such person's consent; or
2. He or she engages in oral sexual conduct or anal sexual conduct
with another person without such person's consent; or
3. He or she engages in sexual conduct with an animal or a dead human
body.
Sexual misconduct is a class A misdemeanor.
NYPL 130.25
Rape in the third degree.
§ 130.25 Rape in the third degree.
A person is guilty of rape in the third degree when:
1. He or she engages in sexual intercourse with another person who is
incapable of consent by reason of some factor other than being less than
seventeen years old;
2. Being twenty-one years old or more, he or she engages in sexual
intercourse with another person less than seventeen years old; or
3. He or she engages in sexual intercourse with another person without
such person's consent where such lack of consent is by reason of some
factor other than incapacity to consent.
Rape in the third degree is a class E felony.
NYPL § 130.40
Criminal sexual act in the third degree.
§ 130.40 Criminal sexual act in the third degree.
A person is guilty of criminal sexual act in the third degree when:
1. He or she engages in oral sexual conduct or anal sexual conduct
with a person who is incapable of consent by reason of some factor other
than being less than seventeen years old;
2. Being twenty-one years old or more, he or she engages in oral
sexual conduct or anal sexual conduct with a person less than seventeen
years old; or
3. He or she engages in oral sexual conduct or anal sexual conduct
with another person without such person's consent where such lack of
consent is by reason of some factor other than incapacity to consent.
Criminal sexual act in the third degree is a class E felony.
NYPL § 130.45
Criminal sexual act in the second degree.
§ 130.45 Criminal sexual act in the second degree.
A person is guilty of criminal sexual act in the second degree when:
1. being eighteen years old or more, he or she engages in oral sexual
conduct or anal sexual conduct with another person less than fifteen
years old; or
2. he or she engages in oral sexual conduct or anal sexual conduct
with another person who is incapable of consent by reason of being
mentally disabled or mentally incapacitated.
It shall be an affirmative defense to the crime of criminal sexual act
in the second degree as defined in subdivision one of this section that
the defendant was less than four years older than the victim at the time
of the act.
Criminal sexual act in the second degree is a class D felony.
NYPL section 130.50
Criminal sexual act in the first degree.
§ 130.50 Criminal sexual act in the first degree.
A person is guilty of criminal sexual act in the first degree when he
or she engages in oral sexual conduct or anal sexual conduct with
another person:
1. By forcible compulsion; or
2. Who is incapable of consent by reason of being physically helpless;
or
3. Who is less than eleven years old; or
4. Who is less than thirteen years old and the actor is eighteen years
old or more.
Criminal sexual act in the first degree is a class B felony.
NYPL § 130.52
Forcible touching.
§ 130.52 Forcible touching.
A person is guilty of forcible touching when such person
intentionally, and for no legitimate purpose, forcibly touches the
sexual or other intimate parts of another person for the purpose of
degrading or abusing such person; or for the purpose of gratifying the
actor's sexual desire.
For the purposes of this section, forcible touching includes
squeezing, grabbing or pinching.
Forcible touching is a class A misdemeanor.
NYPL § 130.65
Sexual abuse in the first degree.
§ 130.65 Sexual abuse in the first degree.
A person is guilty of sexual abuse in the first degree when he or she
subjects another person to sexual contact:
1. By forcible compulsion; or
2. When the other person is incapable of consent by reason of being
physically helpless; or
3. When the other person is less than eleven years old.
Sexual abuse in the first degree is a class D felony.
§ 130.70
Aggravated sexual abuse in the first degree.
§ 130.70 Aggravated sexual abuse in the first degree.
1. A person is guilty of aggravated sexual abuse in the first degree
when he inserts a foreign object in the vagina, urethra, penis or rectum
of another person causing physical injury to such person:
(a) By forcible compulsion; or
(b) When the other person is incapable of consent by reason of being
physically helpless; or
(c) When the other person is less than eleven years old.
2. Conduct performed for a valid medical purpose does not violate the
provisions of this section.
Aggravated sexual abuse in the first degree is a class B felony.
NYPL § 130.90
Facilitating a sex offense with a controlled substance.
§ 130.90 Facilitating a sex offense with a controlled substance.
A person is guilty of facilitating a sex offense with a controlled
substance when he or she:
1. knowingly and unlawfully possesses a controlled substance or any
preparation, compound, mixture or substance that requires a prescription
to obtain and administers such substance or preparation, compound,
mixture or substance that requires a prescription to obtain to another
person without such person's consent and with intent to commit against
such person conduct constituting a felony defined in this article; and
2. commits or attempts to commit such conduct constituting a felony
defined in this article.
Facilitating a sex offense with a controlled substance is a class D
felony.
NYPL § 25.00
Defenses; burden of proof.
§ 25.00 Defenses; burden of proof.
1. When a "defense," other than an "affirmative defense," defined by
statute is raised at a trial, the people have the burden of disproving
such defense beyond a reasonable doubt.
2. When a defense declared by statute to be an "affirmative defense"
is raised at a trial, the defendant has the burden of establishing such
defense by a preponderance of the evidence.
NYPL § 35.00
Justification; a defense.
§ 35.00 Justification; a defense.
In any prosecution for an offense, justification, as defined in
sections 35.05 through 35.30, is a defense.
NYPL § 35.05
Justification; generally.
§ 35.05 Justification; generally.
Unless otherwise limited by the ensuing provisions of this article
defining justifiable use of physical force, conduct which would
otherwise constitute an offense is justifiable and not criminal when:
1. Such conduct is required or authorized by law or by a judicial
decree, or is performed by a public servant in the reasonable exercise
of his official powers, duties or functions; or
2. Such conduct is necessary as an emergency measure to avoid an
imminent public or private injury which is about to occur by reason of a
situation occasioned or developed through no fault of the actor, and
which is of such gravity that, according to ordinary standards of
intelligence and morality, the desirability and urgency of avoiding such
injury clearly outweigh the desirability of avoiding the injury sought
to be prevented by the statute defining the offense in issue. The
necessity and justifiability of such conduct may not rest upon
considerations pertaining only to the morality and advisability of the
statute, either in its general application or with respect to its
application to a particular class of cases arising thereunder. Whenever
evidence relating to the defense of justification under this subdivision
is offered by the defendant, the court shall rule as a matter of law
whether the claimed facts and circumstances would, if established,
constitute a defense.
NYPL § 35.10
Justification; use of physical force generally.
§ 35.10 Justification; use of physical force generally.
The use of physical force upon another person which would otherwise
constitute an offense is justifiable and not criminal under any of the
following circumstances:
1. A parent, guardian or other person entrusted with the care and
supervision of a person under the age of twenty-one or an incompetent
person, and a teacher or other person entrusted with the care and
supervision of a person under the age of twenty-one for a special
purpose, may use physical force, but not deadly physical force, upon
such person when and to the extent that he reasonably believes it
necessary to maintain discipline or to promote the welfare of such
person.
2. A warden or other authorized official of a jail, prison or
correctional institution may, in order to maintain order and discipline,
use such physical force as is authorized by the correction law.
3. A person responsible for the maintenance of order in a common
carrier of passengers, or a person acting under his direction, may use
physical force when and to the extent that he reasonably believes it
necessary to maintain order, but he may use deadly physical force only
when he reasonably believes it necessary to prevent death or serious
physical injury.
4. A person acting under a reasonable belief that another person is
about to commit suicide or to inflict serious physical injury upon
himself may use physical force upon such person to the extent that he
reasonably believes it necessary to thwart such result.
5. A duly licensed physician, or a person acting under a physician's
direction, may use physical force for the purpose of administering a
recognized form of treatment which he or she reasonably believes to be
adapted to promoting the physical or mental health of the patient if (a)
the treatment is administered with the consent of the patient or, if the
patient is under the age of eighteen years or an incompetent person,
with the consent of the parent, guardian or other person entrusted with
the patient's care and supervision, or (b) the treatment is administered
in an emergency when the physician reasonably believes that no one
competent to consent can be consulted and that a reasonable person,
wishing to safeguard the welfare of the patient, would consent.
6. A person may, pursuant to the ensuing provisions of this article,
use physical force upon another person in self-defense or defense of a
third person, or in defense of premises, or in order to prevent larceny
of or criminal mischief to property, or in order to effect an arrest or
prevent an escape from custody. Whenever a person is authorized by any
such provision to use deadly physical force in any given circumstance,
nothing contained in any other such provision may be deemed to negate or
qualify such authorization.
NYPL § 35.15
Justification; use of physical force in defense of a person.
§ 35.15 Justification; use of physical force in defense of a person.
1. A person may, subject to the provisions of subdivision two, use
physical force upon another person when and to the extent he or she
reasonably believes such to be necessary to defend himself, herself or a
third person from what he or she reasonably believes to be the use or
imminent use of unlawful physical force by such other person, unless:
(a) The latter's conduct was provoked by the actor with intent to
cause physical injury to another person; or
(b) The actor was the initial aggressor; except that in such case the
use of physical force is nevertheless justifiable if the actor has
withdrawn from the encounter and effectively communicated such
withdrawal to such other person but the latter persists in continuing
the incident by the use or threatened imminent use of unlawful physical
force; or
(c) The physical force involved is the product of a combat by
agreement not specifically authorized by law.
2. A person may not use deadly physical force upon another person
under circumstances specified in subdivision one unless:
(a) The actor reasonably believes that such other person is using or
about to use deadly physical force. Even in such case, however, the
actor may not use deadly physical force if he or she knows that with
complete personal safety, to oneself and others he or she may avoid the
necessity of so doing by retreating; except that the actor is under no
duty to retreat if he or she is:
(i) in his or her dwelling and not the initial aggressor; or
(ii) a police officer or peace officer or a person assisting a police
officer or a peace officer at the latter's direction, acting pursuant to
section 35.30; or
(b) He or she reasonably believes that such other person is committing
or attempting to commit a kidnapping, forcible rape, forcible criminal
sexual act or robbery; or
(c) He or she reasonably believes that such other person is committing
or attempting to commit a burglary, and the circumstances are such that
the use of deadly physical force is authorized by subdivision three of
section 35.20.
NYPL § 35.20
Justification; use of physical force in defense of premises and
in defense of a person in the course of burglary.
§ 35.20 Justification; use of physical force in defense of premises and
in defense of a person in the course of burglary.
1. Any person may use physical force upon another person when he or
she reasonably believes such to be necessary to prevent or terminate
what he or she reasonably believes to be the commission or attempted
commission by such other person of a crime involving damage to premises.
Such person may use any degree of physical force, other than deadly
physical force, which he or she reasonably believes to be necessary for
such purpose, and may use deadly physical force if he or she reasonably
believes such to be necessary to prevent or terminate the commission or
attempted commission of arson.
2. A person in possession or control of any premises, or a person
licensed or privileged to be thereon or therein, may use physical force
upon another person when he or she reasonably believes such to be
necessary to prevent or terminate what he or she reasonably believes to
be the commission or attempted commission by such other person of a
criminal trespass upon such premises. Such person may use any degree of
physical force, other than deadly physical force, which he or she
reasonably believes to be necessary for such purpose, and may use deadly
physical force in order to prevent or terminate the commission or
attempted commission of arson, as prescribed in subdivision one, or in
the course of a burglary or attempted burglary, as prescribed in
subdivision three.
3. A person in possession or control of, or licensed or privileged to
be in, a dwelling or an occupied building, who reasonably believes that
another person is committing or attempting to commit a burglary of such
dwelling or building, may use deadly physical force upon such other
person when he or she reasonably believes such to be necessary to
prevent or terminate the commission or attempted commission of such
burglary.
4. As used in this section, the following terms have the following
meanings:
(a) The terms "premises," "building" and "dwelling" have the meanings
prescribed in section 140.00;
(b) Persons "licensed or privileged" to be in buildings or upon other
premises include, but are not limited to:
(i) police officers or peace officers acting in the performance of
their duties; and
(ii) security personnel or employees of nuclear powered electric
generating facilities located within the state who are employed as part
of any security plan approved by the federal operating license agencies
acting in the performance of their duties at such generating facilities.
For purposes of this subparagraph, the term "nuclear powered electric
generating facility" shall mean a facility that generates electricity
using nuclear power for sale, directly or indirectly, to the public,
including the land upon which the facility is located and the safety and
security zones as defined under federal regulations.
NYPL § 40.00
Duress.
§ 40.00 Duress.
1. In any prosecution for an offense, it is an affirmative defense
that the defendant engaged in the proscribed conduct because he was
coerced to do so by the use or threatened imminent use of unlawful
physical force upon him or a third person, which force or threatened
force a person of reasonable firmness in his situation would have been
unable to resist.
2. The defense of duress as defined in subdivision one of this section
is not available when a person intentionally or recklessly places
himself in a situation in which it is probable that he will be subjected
to duress.
NYPL § 40.10
Renunciation.
§ 40.10 Renunciation.
1. In any prosecution for an offense, other than an attempt to commit
a crime, in which the defendant's guilt depends upon his criminal
liability for the conduct of another person pursuant to section 20.00,
it is an affirmative defense that, under circumstances manifesting a
voluntary and complete renunciation of his criminal purpose, the
defendant withdrew from participation in such offense prior to the
commission thereof and made a substantial effort to prevent the
commission thereof.
2. In any prosecution for criminal facilitation pursuant to article
one hundred fifteen, it is an affirmative defense that, prior to the
commission of the felony which he facilitated, the defendant made a
substantial effort to prevent the commission of such felony.
3. In any prosecution pursuant to section 110.00 for an attempt to
commit a crime, it is an affirmative defense that, under circumstances
manifesting a voluntary and complete renunciation of his criminal
purpose, the defendant avoided the commission of the crime attempted by
abandoning his criminal effort and, if mere abandonment was insufficient
to accomplish such avoidance, by taking further and affirmative steps
which prevented the commission thereof.
4. In any prosecution for criminal solicitation pursuant to article
one hundred or for conspiracy pursuant to article one hundred five in
which the crime solicited or the crime contemplated by the conspiracy
was not in fact committed, it is an affirmative defense that, under
circumstances manifesting a voluntary and complete renunciation of his
criminal purpose, the defendant prevented the commission of such crime.
5. A renunciation is not "voluntary and complete" within the meaning
of this section if it is motivated in whole or in part by (a) a belief
that circumstances exist which increase the probability of detection or
apprehension of the defendant or another participant in the criminal
enterprise, or which render more difficult the accomplishment of the
criminal purpose, or (b) a decision to postpone the criminal conduct
until another time or to transfer the criminal effort to another victim
or another but similar objective.
NYPL § 40.15
Mental disease or defect.
§ 40.15 Mental disease or defect.
In any prosecution for an offense, it is an affirmative defense that
when the defendant engaged in the proscribed conduct, he lacked criminal
responsibility by reason of mental disease or defect. Such lack of
criminal responsibility means that at the time of such conduct, as a
result of mental disease or defect, he lacked substantial capacity to
know or appreciate either:
1. The nature and consequences of such conduct; or
2. That such conduct was wrong.
NYPL 10.00 (10)
Serious physical injury
10. "Serious physical injury" means physical injury which creates a
substantial risk of death, or which causes death or serious and
protracted disfigurement, protracted impairment of health or protracted
loss or impairment of the function of any bodily organ.
11. "Deadly physical force" means physical force which, under the
circumstances in which it is used, is readily capable of causing death
or other serious physical injury.
NYPL § 110.10
Attempt to commit a crime; no defense.
§ 110.10 Attempt to commit a crime; no defense.
If the conduct in which a person engages otherwise constitutes an
attempt to commit a crime pursuant to section 110.00, it is no defense
to a prosecution for such attempt that the crime charged to have been
attempted was, under the attendant circumstances, factually or legally
impossible of commission, if such crime could have been committed had
the attendant circumstances been as such person believed them to be.
NYPL § 110.05
Attempt to commit a crime; punishment.
§ 110.05 Attempt to commit a crime; punishment.
An attempt to commit a crime is a:
1. Class A-I felony when the crime attempted is the A-I felony of
murder in the first degree, criminal possession of a controlled sub-
stance in the first degree, criminal sale of a controlled substance in
the first degree, criminal possession of a chemical or biological weapon
in the first degree or criminal use of a chemical or biological weapon
in the first degree;
2. Class A-II felony when the crime attempted is a class A-II felony;
3. Class B felony when the crime attempted is a class A-I felony
except as provided in subdivision one hereof;
4. Class C felony when the crime attempted is a class B felony;
5. Class D felony when the crime attempted is a class C felony;
6. Class E felony when the crime attempted is a class D felony;
7. Class A misdemeanor when the crime attempted is a class E felony;
8. Class B misdemeanor when the crime attempted is a misdemeanor.
NYPL § 110.10
Attempt to commit a crime; no defense.
§ 110.10 Attempt to commit a crime; no defense.
If the conduct in which a person engages otherwise constitutes an
attempt to commit a crime pursuant to section 110.00, it is no defense
to a prosecution for such attempt that the crime charged to have been
attempted was, under the attendant circumstances, factually or legally
impossible of commission, if such crime could have been committed had
the attendant circumstances been as such person believed them to be.
NYPL section 40.10 (3)
Renunciation
3. In any prosecution pursuant to section 110.00 for an attempt to
commit a crime, it is an affirmative defense that, under circumstances
manifesting a voluntary and complete renunciation of his criminal
purpose, the defendant avoided the commission of the crime attempted by
abandoning his criminal effort and, if mere abandonment was insufficient
to accomplish such avoidance, by taking further and affirmative steps
which prevented the commission thereof.
NYPL section 40.10 (5)
Renunciation
5. A renunciation is not "voluntary and complete" within the meaning
of this section if it is motivated in whole or in part by (a) a belief
that circumstances exist which increase the probability of detection or
apprehension of the defendant or another participant in the criminal
enterprise, or which render more difficult the accomplishment of the
criminal purpose, or (b) a decision to postpone the criminal conduct
until another time or to transfer the criminal effort to another victim
or another but similar objective.