Crim Law Flashcards
NY 6th Amendment
What is the indelible right to counsel?
6th amend. Indelible Right to Counsel, attaches:
when D is in custody & police are engaging in activity overwhelming to the layperson, and the D requests counsel
at arraignment
on the filing of an accusatory instrument
where there has been any significant judicial activity
Waiver – if actually represented by counsel and known to be represented à only in the presence of attorney
Pre-charge line-ups à no rt. to counsel unless police are aware D is represented by counsel on another matter and D requests his attorney
Warrant
What are the add’l requirements for a wiretapping warrant?
4th amend. search so requires a warrant:
Probable cause
name of persons expected to be overheard
particularly describe conversations to be overheard
must have strictly limited time periods
NY – warrant good for 30 days & w/in 90 days of termination, person must be informed
NY – if convo incriminates 3rd party, admissible if he was not a party to convo and his premises or area of privacy was not invaded by the interception
NY Waiver
Can a child waive his Miranda rights?
Child can waive Miranda rights
Waiver is invalid if police use deception or concealment to keep a parent away from a child
Parent/legal guardian may invoke rt. to counsel on child’s behalf – must be unequivocal
NY Warrant
What other possible warrantless search exists in NY?
Emergency exception:
Police must have reasonable grounds to believe emergency & immediate need for assistance for protection of life or property
Search may not be motivated by intent to arrest or search
Must be reasonable basis to associate emergency w/ area/place searched
NY Waiver
What is the NY Arthur-Hobson Rule?
the length of interrogation and custody are factors in determining voluntariness & confessions
Warrant
What goes in a valid warrant?
Issued on a showing of PC
By a neutral & detached magistrate
Precise on its face – states w/ particularity the place to be searched & the items to be seized
NY Arrests
What are the NY restrictions on searches incident to arrest?
Officer must suspect that the arrested person may be armed to search containers in the wingspan.
Once person removed from car, police may not remove closed containers or bags to look for weapons.
4th Amendment
What is probable cause?
A fair probability that the contraband or evidence will be found in the area searched
Permissible to use hearsay evidence in a PC inquiry
Warrant
What is the test of validity for a warrant based on an informant’s tip?
Totality of the Circumstances – affidavit may be sufficient even though reliability & credibility of the informer or his basis for knowledge is not est.
if only based on informant info – police must corroborate enough evidence to show common sense practical determination that PC exists
NY – Anguilar-Spinelli Test –must set forth the basis of informant’s knowledge, and establish reliability & credibility of the informer
need both prongs so if fails one, need further corroboration
Anon = not credible
Exclusionary Rule
What is the harmless error doctrine?
If illegal evidence erroneously admitted a trial, resulting conviction should be overturned on appeal UNLESS
govt. can show beyond a reasonable doubt that the error was harmless
Denial of rt. to counsel at trial is NEVER just harmless à new trial.
Habeus – if error had substantial & injurious effect of influence in determining the juries verdict should be released
Arrests
When can a police officer make an arrest w/o a warrant?
Police officer may arrest a person without a warrant when he has PC to believe that a felony has been committed by the offender, whether in the officer’s presence or otherwise.
NY – can even arrest for misdemeanor
Exclusionary Rule
What is the good faith reliance doctrine?
If an officer relied on a defective warrrant in good faith then the evidence will be admitted.
3 Exceptions:
unreasonable to rely on underlying affidavit b/c so lacking PC
warrant defective on face
affiant lied/misled magistrate
NY does NOT recognize this à defective warrant = inadmissible evidence
NY Warrants
What is necessary for a valid warrant in NY?
Must be subscribed from issuing judge and must state:
name of issuing court
date of issuance
name of offense charged
name of the D to be arrested or description w/ reasonable certainty if unknown
PO to whom warrant is addressed
direction to arrest D & bring him before the court
NY Property Crimes
What are the degrees of arson?
Do not have to be someone else’s building.
4th = reckless burning (AD = D’s sole property) 3rd = intentional (AD = owner’s consent, fire for lawful purpose, no reason to think it would burn another building) 2nd = intentional & the D knew or should have known someone was inside 1st = 2nd degree + an explosive device
NY Trial Procedures
When can a D waive indictment in NY?
If the crime charged is not punishable by death or life imprisonment à
D can waive indictment by GJ w/ Prosecutor’s approval
Property Crimes
What is malicious mischief?
malicious destruction or damage to the property of another
NY – malice not required – crime is more serious if D is acted intentionally instead of recklessly
3rd - $250
2nd - $1,500
1st – 2nd + use of explosive device
émalice - reckless disregard of a known risk
NY Property Crimes
What is criminal trespass?
3rd – knowingly enters or remains unlawfully in a building or on real estate which is fenced or otherwise enclosed in a way to exclude intruders
2nd – knowingly enters or remains unlawfully in a dwelling
1st – 2nd or 3rd + has or knows another person has explosive or deadly weapon
NY Property Crimes
What are the elements of larceny for a bad check?
Issuing a bad check to obtain property is larceny.
Elements:
put check into circulation
knowing lack of sufficient funds to cover it
w/ intent or belief payment will be refused by the bank
payment is actually refused by the bank
Presumption of intent & knowledge if:
no acct. exists w/ bank
D has insufficient funds on acct. at time of issuance
Affirmative Defense:
D or another makes good on the check w/in 10 days of it being dishonored, or
D was employee acting for his employer
Inchoate Crimes
Conspiracy –Differences in NY & CL
CL Inchoate Crimes
General Chart
