Ny Bar Exam: Criminal Law Distinctions/ Crim Pro

Front 1

4 Key questions for search and seizure governed by 4A

Back 1

1. Was the search/seizure executed by a govt. agent?
2.Was the search or seizure in an area or item protected by 4A?
3. Did a govern agent either A) physically intrude on ap rotected area or item to obtain info or B) violate an individual's REOP?
4.Did the individual subjected to the search have standing to challenge the government agent's conduct?

Front 2

4A expressly protects individuals from unreasonable search and seizures of their

Back 2

-Persons
-Houses
-Papers
-Effects

Front 3

In NY do passengers have the ability to challenge possession of weapons if those weapons are attributed to them?

Back 3

YES -->Common law this is not the case. At Common law passengers do not have a REOP to someone else's vehicle!

Front 4

4 Key Issues of Warrants

Back 4

1. Was the warrant issued by a neutral and detached magistrate?
2.IS the warrant supported by PC and particularity?
3. Did the police officers rely on a defective warrant in good faith?
4.Was the warrant properly executed by the police?

Front 5

What is probable cause?

Back 5

Probable cause requires proof of a fair probability that contraband or evidence of crime will be found in the area searched.

Front 6

What is necessary for police in NY to use informant info to get a search warrant

Back 6

NY uses the Aguilar-Spinelli Test.
-Government must establish
(a) The informant's reliability or veracity and
(b) his or her basis of knowledge
-If informant doesn't release (B) --> this can be established through police aberration that confirms details

Front 7

Does Good Faith exception always work?

Back 7

NO - NY will NEVER recognize the good faith exception to a defective warrant.

Front 8

When does the knock and announce rule not apply?

Back 8

Knock and Announce doesn't apply when an officer REASONABLY believes that doing so would be:
a. futile or
b. dangerous or
c. would inhibit the investigation
(there is no exclusionary rule for knock and announce violations).

Front 9

What are the 8 warrant exceptions?

(ESCAPIST)

Back 9

Exigent Circumstances
Search Incident to Arrest
Consent
Automobile
Plain View
Inventory
Special Needs
Terry Stop and Frisk

Front 10

Search Incident to Arrest in NY

Back 10

Wingspan/ Immediate control --> if the officer wants to search containers within the wingspan, an officer MUST suspect that the arrestee is armed.

Front 11

NY Secured/ Unsecured Arrestees

Back 11

Once the occupant is out of the car, police cannot search containers inside the vehicle to look for weapons or evidence of the crime.

Front 12

Secured v. Unsecured arrestees

Back 12

Onc san officer has secured and arrest (handcuff/in squad car) the officer CAN search arrestee's vehicle ONLY if he believes that the vehicle may contain evidence related to the crime for which the arrest was made.

Front 13

Automobile Exception

Back 13

Justification: Ready Mobility and lesser expectation of privacy in vehicles
Standard: Police officers need PC to believe that contraband or evidence of the crime will be found in car.
-Police can search entire vehicle that they reasonably contain the items they are searching for.

Front 14

Police Pursuit and Seizure in NY

Back 14

Police pursuit is a SEiZURE IN AND OF ITSELF

Front 15

Police Pursuit and Seizure - Common law

Back 15

When being pursued by a police officer an individual is seized only if he submits to the officer's authority by stopping or if the officer physically restrains him.

Front 16

Terry Frisk - what can be seized in NY

Back 16

Officers can seize an item ONLY if it reasonably appears to be a weapon.

Cannot seize contraband,

Front 17

Terry Frisk -w hat can they seize under Common law

Back 17

if officer reasonably believes a weapon is on the person, can seize it.
-If finds contraband without manipulating the object - it can be seized.

Front 18

Special needs - The US Supreme Court Has approved warrantless suspicion less drug tests 3 major categories

Back 18

1. RailRoad Employees following an impact accident
2. Customs Agents responsible for drug interdiction.
3.Public School Children who participate in any extracurricular activity.

Front 19

What is Attenuation

Back 19

Attenuation is the doctrine that allows for the admittance of derivative evidence where ethe passage of time and intervening events purge the taint of the original illegality and restore the D's free will.

Front 20

When do wiretap warrants expire in NY?

Back 20

After 30 Days

Front 21

What are the four major requirements for a valid wiretap warrant?

Back 21

(Screen Telephone Calls Carefully)
S-Suspected Persons
T-Time
C-Crime there must be PC for a spericif crime
C- Conversation: The warrant must describe with particularity the conversations that can be overheard.

Front 22

When does the 6A right to counsel attach? (Common Law)

Back 22

-When D is FORMALLY charged, NOT upon Arrest
+ Applies at all critical stages of the prosecution.

Front 23

NY - Indelible Right to Counsel

Back 23

Provides greater protection than 6A
-attaches at formal charging and whenever there is significant judicial activity before filing of an accusatory instrument such as when D may benefit from counsel.
-If police are aware of D having attorney, must allow D to be present when they question him aout that charge or any other matter.

Front 24

Right to Counsel - 6A

Back 24

-Express Constitutional guarantee
-Attaches after D formally charged NOT upon arrest
-Applies @ all critical stages
-Offense specific --> no protection for uncharged criminal activity.

Front 25

Miranda Doctrine: Re: Interrogation

Back 25

Miranda doctrine define interrogation as any conduct the police KNOW or SHOUDL HAVE kNOWN was likely to elicit an incriminating response.
-DOES NOT apply to incriminating statements made spontaneously.

Front 26

How do you waive your miranda rights?

Back 26

Two Core requirements:
1. Knowingly and intelligently
a. nature of rights and b. the consequences of abandoning them.
2.Voluntary - not the product of coercion

Front 27

NY Parent/Child Rule

Back 27

If police use deception or concealment to keep a parent away from child who is being interrogated, the child's waiver may be deemed invalid.

Front 28

Limitations on evidentiary exclusions applied to Miranda Violations

Back 28

1. Incrim. statements obtained in violation of miranda are inadmissible to prosecutor's case-in-chief BUT can be used to impeach D witness testimony.
2.Failure to give suspect Miranda warnings does NOT require the suppression of physical fruits of incriminating statements if they were voluntary.

Front 29

NY Grand Juries

Back 29

-All felonies require indictments unless D waives requirement.
-indictment must establish all element of the offense and provide reason be cause to believe that the accused committed the offense.

Front 30

NY Rosario Rule

Back 30

Prosecutor must make available to defense any prior written or recorded statements of persons to be called as witnesses that relate to the subject matter of the witnesses' testimony.

Front 31

NY Jury requirement

Back 31

12 person juries for felonies; D can waive requirement and proceed to verdict with 11 jurors participating in deliberations.

Front 32

NY Plea bargaining

Back 32

A trial court must inform a defendant who is not an american citizen of the risk of deportation as a consequence of pleading guilty to a felony.

Front 33

When does jeopardy attach at a jury trial?

Back 33

When the jury is sworn, jeopardy attaches

Front 34

When does jeopardy attach at a bench trial?

Back 34

When the 1st witness is sworn, jeopardy attaches at a bench trial.

Front 35

When does jury attach at a guilty plea?

Back 35

When the court accepts the guilty plea unconditionally, jeopardy attaches.

Front 36

Same Offense Requirement: Double Jeopardy

Back 36

Two offenses are NOT the same offense for double jeopardy if each contains an element that the other does not.

Front 37

NY Double Jeopardy Transactional Test

Back 37

- Use transaction test - D be charged w/ all offenses arising from any single transaction UNLES
1. Offense has sub. different elements
2.each offense contains an element not in other and prevents different harms.
3. one is for criminal possession and the other is for use.
4. Each offense involves harm to a different vctim.

Front 38

4 Exceptions to double jeopardy rule that permit retrial

Back 38

1. Hung jury
2. A mistrial for manifest necessity
3.Successful Appeal
4.A breach of the plea by the defendant

Front 39

IN NY can 5A privilege be asserted at a grand jury proceeding?

Back 39

NO

Front 40

JX over ACts in NY State

Back 40

A person may be convicted if the cnduct that occured w/in NY is sufficient to establish:

1. An element of the Offense

2. An attempt to commit the offense OR

3. A conspiracy or crim soliciation to commit hte offense or otherwise etablish the complicity of at least one of teh persons liable therefor.

Front 41

JX over acts outside of NY

Back 41

Person may beconvicted for conduct outside of NY if:

1. Offiense commited was ar esult offense and reulst occured w/in NY

2.Statute defining the offense is designed to prevent theoccurence of a particular effect in the state and ocnduct ocnstituted the offense commited was perofmred w/ having that intent in NY.

3. THe offense cmmited was a conspiracy to commit a crime w/in NY and an overt act in furtherance of the conspiracy occured in NY.

Front 42

What constitutes seizure in NY?

Back 42

Police pursuit is a seizure

Front 43

Requirements for Warrant for Arrest in NY

Back 43

Must be subscribed by an iussing judge and must state or contain:

1. Name of issuing court

2. Date of issuance of the warrant.

3 The name or title of an offense charged

4. The name of the defendant to be arrested or description w/ reasonable certainity if unknown.

5. The police offcers to who warrant addressed

6. DIrection that the police officer and defendant and bring him before issuing court.

Front 44

Warrantless arrests by private persons IN NY

Back 44

A private person may make a warrantless arrest when:

1 a felony has in fact been committed by the offender or;

2. any crime has in fact been committed by the offender in the presence of the arresting private person.

Front 45

Automatic Standing in NY

Back 45

-Co-Ds traveling in a vehcile are permitted automatic standing to challenge charges of criminal possession of a weaponw hich arise soley bc of the presumption of possession attributed to all passengers when weapons are found in a vehicle.

Front 46

Dial-a-warrant in NY

Back 46

Can get a warrant via phone or email -->judge still makes officer swear under oath

Front 47

Arthur-Hobson Rule (NY)

Back 47

NY has specifically ruled that the length of interrogation and custody are factors in detemring voluntariness of confessions.

Front 48

No right to counsel in NY when:

Back 48

INvestigatory lineups excep when police are aware that D is represented by cousnel on anotehr charge and D requests counsel

Front 49

Grand jury requirements in NY

Back 49

Consist of 16-23 people. 12 votes needed to indict. A citien can waive indictment for a crime, but only if:

1. he is being held for grand jury action

2. The crime is punishable other than by death or life imprisonment.

3. The district attorney consents.

Front 50

Speedy Trial Requirments for NY

Back 50

Felony -6 Months

Misdemeanor - 90 days

B Misdemeanor - 60 days

VIolation -30 Days

Exclusion of time periods:

1. Reasonable delay resulting from other proceedings.

2. Continuance

3. Absence of the defendant, if the D's absence cause the delay.

4. Reasonable delay caused by the joinder of co-defendant.

5. delay caused by d's detention in anotehr JX.

6.Delay caused by exceptional circumstances

Front 51

Specific INtent Crimes

Back 51

1. Solicitation

2. Attempt

3.Conspiracy

4. 1D premed murder

5. Assault

6. Larceny and Robbery

7. Burglary

8. Forgery

9. False Pretenses

10. Embezzlement

Front 52

General Intent Crimes

Back 52

1. battery

2. Rape

3. Kidnapping

4. False imprisonment

Front 53

Malice Crimes

Back 53

1. Common Law murder

2. Arson

Front 54

Strict Liability Crimes

Back 54

1. Statutory Rape

2. Selling Liquor to Minors

3. Bigamy (some jurisdictions)

Front 55

Effect of acquittal of some conspirators

Back 55

Under traditinonal view: acquittal of all persons who d have conspired with precludes cnviction of remaining d.

-In some jx, conviction of one D is allowed to stand when alleged-co-conspirot is aquitted in seaarate trial.

-If other parties are not apprehended or prosecuted D can still be convicted

Front 56

M'Nagthen Rule

Back 56

D is entitled to acquittal if:

1. Disease of the mind

2. causd a defect of reason

3. such that the D lacked the ability at the time of his actions to eitehr know the wrongfulness of his actions or understand the nature and quality of his actions.

SHorthand: D didn't know right from wrong or does not understand his actions

Front 57

Irresitable impluse test

Back 57

-D is entitled to acquittal only if because of a mental illness, he was unable to control his actions or conform his conduct to the law.

AN impluse that d cannot resist

Front 58

Durham or NH Test

Back 58

- D is entitled to acquittal if crime was product of his mental illness. This if ollowed only in NH

But for mental illness, D would not have done the act

Front 59

MPC Test for insanity

Back 59

-D is entitled to acquittal if he has a mental disease or defect and as a result he lacked sub capacity to either

1. Appreciate the crimminality

2. conform his conduct to requirements of the law.

Combination of M'Nagthen and irresitable impulse

Front 60

Voluntary Manslaughter

Back 60

Killing that would be murder but for the existence of adequate provcation:

1. It was provocation that would arouse sudden and intense passion

2. D was in fact provoked

3. There was not sufficient time btwn provocaitona nd killing for passions of a reasonable person to cool

4. D in fact did not cool off btwn the provocationa nd the killing.

Front 61

Larceny

Back 61

1/ A taking

2. ANd carrying away

3. of tangible personal property

4. of another

5. by trespass

6. with intentto permantly deprive that person of her interest in the property

Front 62

Embezzlement

Back 62

1. The fradulent

2. Conversion

3. of personal property

4. of another

5. b a perso in lawful possession of that property

Front 63

False pretenses

Back 63

1. Obtaining title

2. Personal property of another

3. by an intentional false statement of a past or existing fact.

4. with intent to defraud the other.

Front 64

Robbery

Back 64

1. A taking

2. of personal property of another

3. from the other's person or presence

4. by force or thereats of immediate death or physical injury

5. with the intent to permanently deprive him of it.

Front 65

Evidentary Search and seizure analysis

Back 65

1. Does D have 4A right concencing palce or thing in which d had a REOP

2.Did government have a valid warrant?

3. If the police did not have a valid warrant did they make a valid warrantless search and seizure.

Front 66

Search of third-party premises permissible

Back 66

A warrant may be obtained to serach premises belogning to nonsuspects as long as tehre is probable cause to believe that evidence will be found there.

Front 67

Auto search incident to arrest

Back 67

1. the arrestee is unsecuted and still may gain access to the interiror of the vehicle.

2. the police reasonably believe that evidence of the offense for which the person was arrested may be found in the vehicle.

Front 68

Does failure to give miranda violate 5th or 6th Amend right?

Back 68

-Failure to give warnings violates a 5A right to be free from compelled self-incrimination NOT a right to counsel.

Front 69

When is right to councsel available in misdemeanor cases?

Back 69

ONLY when imprisonment is actually imposed.

-if receive no imprisionment for misdemeanor, your right to cousnel has NOT been violated.

Front 70

Exceptions permitting retrial

Back 70

1. Hung jury

2. Trial discontinued and d reprosecuted where manifest necessity/ termination not consisting of acquittal on the merits.

3. Dbreahc of plea bargain

4. retry D who has succesfully appealed a conviction -->based on weight of evidence.

Front 71

Separate sovereign rule

Back 71

Separate sovereigns CAN try a defendant for the same offense. Attachment does not matter if there are two separate sovereigns.

-This means that a person may be tried by two states for the same offense or by a state and the federal govenrent