Crim Law - Property Crimes (Habitation Offenses) Flashcards
Property Crimes - Habitation Offenses
Includes BURGLARY ARSON POSSESSION OF CONTRABAND RECEIPT OF STOLEN PROPERTY
BURGLARY (common law)
Breaking and entering the dwelling of another at night with the intent to commit a felony inside
SPECIFIC INTENT CRIME: “intent to commit a felony inside”
“Breaking” - creating or enlarging an opening by at least minimal force
- –INCLUDES: breaking a window, opening a window, opening a door
- –DOES NOT INCLUDE: climbing through an already open window, entering with permission (but if climb through open window, then open a door inside, counts)
- –“CONSTRUCTIVE” BREAKING - Breaking can be “constructive” meaning entry is gained through FRAUD, THREATS or INTIMIDATION”
“Entry” some part of D’s body must enter the building
“Dwelling” A structure where somebody regularly sleeps
“Of Another” you can’t burglarize your own house
“At Night” Self-Explanatory (look for clues “sun having set…”)
“Intent to Commit a Felony Inside” - SPECIFIC INTENT crime (intent to steal, rob, rape, assault, kill etc)
Modern Statutory Changes to Common law BURGLARY
BURGLARY
Many states have eliminated the technical requirements of common law burglary (especially the “breaking” “at night” and “dwelling” elements)
BURGLARY in NY**
THIRD DEGREE:
(1) Entering OR remaining
(2) in a building
(3) unlawfully
(4) with the intent to commit a crime inside (any crime, not just felonies)
- —Note: no re for breaking, dwelling or nighttime
SECOND DEGREE: third plus
(1) building is a dwelling,
(2) a non-participant is injured, or
(3) D carries a weapon
FIRST DEGREE:
D KNOWS he is burglarizing a DWELLING, plus
(1) a non-participant is injured, or
(2) D carries a weapon
(Note: addition of KNOWLEDGE re the dwelling element kicks it up from 2nd to 1st)
ARSON (Common Law)
ARSON is the malicious burning of a building
State of mind: Malice
“BURNING” requires
(1) material wasting (scorching is not enough but CHARRING is [remember “charring enough for charging”)
–what is the difference?
Scorching = mere blackening by smoke or discoloration by heat
Charring = some damage to the fiber of the wood or some combustible material
(2) it must be the building itself that burned (not the carpet, for e.g.)
ARSON in NY**
FOURTH DEGREE:
RECKLESS Burning of a building
THIRD DEGREE:
INTENTIONAL Burning of a Building
SECOND DEGREE
third degree plus, D KNOWS or SHOULD HAVE KNOWN that someone was inside the building
FIRST DEGREE
Second degree, plus an EXPLOSIVE or INCENDIARY DEVICE
Statutory Developments
ARSON
“DWELLING” - traditionally, arson was limited to “dwellings” but most states now extended arson to all buildings (NY*** does this)
“Of Another” - Traditionally, a D could not commit arson on his own property; most states (INCLUDING NY) have eliminated that restriction
POSSESSION OF CONTRABAND
The meaning of “possession” - when a statute criminalizes the possession of contraband (e.g. controlled substances, stolen property, child pornography), POSSESSION MEANS
(a) Control for a period of time long enough to have an opportunity to terminate possession
(b) “CONSTRUCTIVE POSSESSION”- the contraband need not be in the D’s actual possession, so long as it is close enough for him to exercise DOMINION and CONTROL over it (e.g. drug trafficker’s minions put drugs in his closet - he has “constructive possession”)
Mental State: KNOWLEDGE (of the possession AND of the character of the item possessed)
RECEIPT OF STOLEN PROPERTY
Receipt of Stolen Property is
(1) “Receiving possession and control
(2) of stolen personal property
Mental State: KNOWING that the property has been obtained criminally by another party; and
with the INTENT to permanently deprive the owner of his interest in the property
***NY Criminal Possession of Stolen Property
receiving possession and control of stolen property
The property must really be stolen. Property that is RECOVERED or that is USED WITH PERMISSION (e.g. by the police in an undercover sting) is not considered “stolen.”
