Crimes against the Person

Question 1

What are the 2 elements of AND the req’d mental state for CL 1st degree murder?

Answer 1

1st degree murder =

1) Causing the death;
2) of another person

Mental state = “malice aforethought” = the specificintent to kill (premeditation ANDdeliberation)

Question 2

What are 2 special rules for CL “intent to kill” murder?

Answer 2

1) Deadly weapon rule = the intentional use of a deadly weapon creates an INFERENCE of an intent to kill
2) Transferred intent = if a ∆ intends to harm one victim, BUT accidentally harms a DIFFERENT victim instead, the ∆’s intent will TRANSFER from the intended victim to the actual victim

NOTE: Most often applies to (all)homicide, but can also apply to other crimes, such as battery and arson

EXCEPTION: transferred intent does NOT APPLY to attempts, only to crimes w/ “completed harms”

Question 3

What are the 2 elements of AND the req’d mental state for CL 2d degree murder?

Answer 3

2d degree murder =

1) Causing the death;
2) of another person

Mental state = “malice aforethought”, which can be… the intent to inflict serious bodily harm; OR EXTREME recklessness (i.e. reckless indifference to human life a/k/a “depraved heart”)

Question 4

What are the 2 versions of AND the req’d mental state for CL criminal assault?

Answer 4

Version 1 = attempted battery (i.e. a swing/miss)
Version 2 = reasonable apprehension, which reqs…

1) The intentional creation;
2) Other than by mere words;
3) of a reasonable apprehension in the mind of the victim;
4) of imminent bodily harm(i.e. a fake punch)

Mental state = specific intent

Question 5

What are the 3 elements of ANDreq’d mental state for CL criminal battery?

Answer 5

1) Unlawful;
2) Force to another;
3) EITHER bodily injury OR an offensive touching

Mental state = general intent

Question 6

What are the 3 elements of AND the req’d mental state for CL criminal false imprisonment?

Answer 6

1) Unlawful;
2) Confinement of a person;
3) W/out his consent

Mental state = general intent

Question 7

What is CL felony murder AND its 6ltds?

Answer 7

ANY killing caused during the commission of OR attempt to commit a felony

6 ltds =
1) ∆ must be GUILTY (factually, not necessarily charged) of the underlying felony
Defense to felony = defense to felony murder

2) Felony must be inherently dangerous

3) The merger rule: the felony must be INDEPENDENT of the killing
i. e. aggravated assault or battery CANNOT be the underlying crime for felony murder

4) Killing must take place DURING the felonyOR during the immediate flight from the felony

Once ∆ reaches place of temporary safety, the felony ends

5) Death must be foreseeable
6) Victim must NOT be a co-felon

Question 8

What are the 3 vicarious liability theories under CL felony murder?

NOTE: NY Distinctiona

Answer 8

1) “Proximate cause” theory (majority rule) = if one of the co-felons proximately causes the victim’s death, then ALL of the other co-felons will be guilty of felony murder, EVEN IF the actual killing is committed by a 3d party (e.g. a bystander, a police officer, etc)

NY DISTINCTION: this is the approach followed in NY

2) “Agency” theory = felony murder doctrine applies ONLY IF the killing is committed by one of the co-felons

3*) Redline case - criminal liability for felony murder cannot attach when the person killed is one of the co-felons

Question 9

What are the 3 elements of AND the req’d mental state for CL forcible rape?

Answer 9

1) sexual intercourse (ANY type of penetration)
2) w/o the victim’s consent;

3) accomplished by:
(i) force;
(ii) threat of force; OR
(iii) when the victim is unconscious

Mental state = general intent

Question 10

What are 2 types of involuntary manslaughter?

Answer 10

1) A killing committed w/ criminal negligence (i.e. a GROSS deviation from a reasonable std of care)
2) A killing committed during the commission of a crime to which the felony murder doctrine DOES NOT apply (i.e. “unlawful act” OR misdemeanor manslaughter)

Question 11

What are the 2 elements of AND req’d mental state for CL kidnapping?

Answer 11

1) False imprisonment (i.e. unlawful confinement w/o consent);
2) Involves either moving the victimORconcealing the victim in a secret place

Mental state = General intent

Question 12

What are the 2 elements of AND the req’d mental state for CL statutory rape?

NOTE: NY Distinction

Answer 12

1) Sexual intercourse (ANY type of penetration);
2) With someone UNDER the age of consent

Mental state = strict liability w/ no defense (majority rule)

Minority rule = a REASONABLE mistake of age is a defense

NY DISTINCTION: age of consent is 17 (i.e.∆ MUST be at least 21, and the victim 16 or younger)

Question 13

What are the 3 elements of CL voluntary manslaughter?

Answer 13

1) Intentional killing;
2) Heat of passion;
3) Adequate provocation

Provocation needs to be OBJECTIVELY adequate (e.g. serious assault or battery; presently witnessed adultery; normally NOT words)

Factors:

(i) ∆ was actually provoked (a subjective consideration) (ii) ∆ did not have time to “cool off”
(iii) ∆ did not ACTUALLY cool off b/t the provocation and the killing

Question 14

In NY, what is 2d degree unlawful imprisonment (as well as 1st degree)?

Answer 14

2d degree unlawful imprisonment=

1) Unlawful;
2) Restraining someone;
3) W/out their consent; AND
4) W/ knowledge that restriction is unlawful

1st degree unlawful imprisonment =

1) 2d degree unlawful imprisonment; AND
2) Risk of serious physical injury

Question 15

In NY, when is a homicide crime elevated to “aggravated”?

Answer 15

1) when the victim of the homicide is a police officer killed in the line of duty, the offense can be…

(i) Aggravated Murder
(ii) Aggravated Man 1
(iii) Aggravated Man 2
(iv) Aggravated Crim. Negl. Homicide

2) When the ∆, over the age of 18, causes the death of a child UNDER the age of 14 in an especially cruel and wonton manner = aggrevated murder

Question 16

In NY, what is 2d degree criminal assault (along with 1st and 3d)?

Answer 16

1st degree assault =

1) 2d degree assault; AND
2) Weapon

2d degree assault =

1) Intentionally causing;
2) Serious physical injury

3d degree assault =

1) Intentionally causing;
2) Non-serious physical injury

NOTE:
1) All versions of assault in NY req INJURY (there is no “offensive touching”)

2) Attempted assault reqs intent to assault
3) Menacing: Merely creating a “reasonable apprehension” (w/o intent to actually injury) is NOT assault (this is a separate crime, “menacing”)
4) Battery is NOT a separate crime in NY!!

Question 17

In NY, what are the ONLY 6 felonies that can give rise to felony murder?

Answer 17

“B-R-A-K-E-S”

1) Burglary
2) Robbery
3) Arson
4) Kidnapping
5) Escape
6) Sexual assault

Question 18

In NY, what is criminally negl. homicide?

Answer 18

∆ SHOULD have been aware of a substantial and unjustifiable risk of death

Mental state = Criminal negl.

Question 19

In NY, what are the 4 elements for the “non-slayer” defenseto felony murder?

Answer 19

NY provides a ltd affirmative defense to felony murder IF the ∆ can prove…

1) Did not kill the victim;
2) Did not have a deadly weapon;
3) No reason to believe that his co-felons had a deadly weapon; AND
4) No reason to believe that his co-felons intended to do anything that was likely to result in death

Question 20

In NY, what is 2d degree kidnapping (as well as 1st degree)?

Answer 20

2d degree kidnapping =abducting someone

1st degree kidnapping=

1) 2d degree kidnapping; AND
2) One of the following:

(i) Ransom;
(ii) Restraint for more than 12 hrs w/ intent to rape/injure/rob; OR
(iii) Death of the victim

NOTE:

1) If the victim is killed ACCIDENTALLY, it’s 2d degree felony murder
2) If the victim is killed INTENTIONALLY, it’s 1st degree felony murder

Question 21

In NY, what is 1st degree manslaughter (along w/ 2d degree manslaughter)?

Answer 21

1st degree manslaughter =

1) Extreme Emotional Disturbance (EED) manslaughter; OR Is an intentional killing committed under the influence of a reasonable and extreme emotional distrubance

NOTE: EED manslaughter is an affirmative defense to Murder 2, which ∆ must prove by a perponderance of the evidence

2)An intent to cause serious physical injury

2d degree manslaughter =

∆ is AWARE of and CONSIOUSLY disregards a substantial and unjustifiable risk of death

Mental state = recklessness

Question 22

In NY, what are the various types of homicides?

Answer 22

1) Murder 1
2) Murder 2
3) Manslaughter 1
4) Manslaughter 2
5) Criminally Negligent Homicide

Question 23

In NY, what is 1st degree murder (along with 2d degree murder)?

Answer 23

1st degree murder = a ≥ 18 yr old ∆ who…

1) intentionally kills w/ aggrevating factor [(i) victim is an on-duty cop; (ii) ∆ is murdering for hire; (iii) killing for witness intimidation; (iii) ≥ 1 victim is same criminal trxn]; OR

NOTE: premeditation and deliberation are IRRELEVANT in NY

2) commits felony murder where victim was intentionally killed

2d degree murder = a ∆ of ANY age who…

1) intentionally kills w/o aggravating factor; OR
2) commits highly-reckless killing demonstrating depraved indifference to human life (w/ more than one victim); OR

NOTE: If just ONE victim, you need torture

3) commits felony murder where a non-co-felon victim is unintentionally killed

Question 24

What is the Year-and-a-Day Rule?

NOTE: NY Distinction

Answer 24

It’s a MINORITY rule that states that death MUST occur w/in a year + a day of the homicidal act

NY DISTINCTION: NY does NOT follow the Yr + a day rule; death may occur at ANY time