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NY Bar 2014 > Criminal > Flashcards

Criminal Flashcards

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1
Q

Only case of merger?

A

Solicitation/Attempt and completed crime merge.

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2
Q

Multiple punishments for same crime?

A

2+ statutorily defined offenses

specifically intended by legislature to carry separate punishments, even when they are from the same crime.

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3
Q

Elements of Omission Crime

A

(1) Legal duty to act (statute, contract, status relationship, voluntary assumption of care; creation of peril)
(2) Knowledge of facts giving rise to duty
(3) Reasonably possible to perform duty

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4
Q

MR: Specific intent
NY - “Intent”
[desire to act and achieve specific result]

A

Assault, murder 1;
Larceny, Embezzlement, false pretenses, robbery, forgery, Burglary
Solicitation, conspiracy, attempt

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5
Q

MR: Malice
NY - “Recklessness”
[Intentional OR reckless disregard of obvious risk]

A

Murder, arson

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6
Q

MR: General intent
NY - “Negligence”
[Generally aware of factors - no intent for specific result]

A

Battery, forcible rape, false imprisonment, kidnapping

“fails to be aware of a substantial and unjustifiable risk”

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7
Q

MR: Strict

[No mental state]

A

Public welfare, statutory rape

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8
Q

NY mens rea levels

A

Intent: Desire to achieve
Knowledge: Practically certain result
Recklessness: Consciously disregards known risk
Negligence: Should have been aware

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9
Q

Causation?

A

Actual (but for)
AND
Proximate (no intervening cause)

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10
Q

Concurrence?

A

Has mental state at same time as act

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11
Q

Battery - CL

A

Unlawful application of force to another
Resulting in injury or offensive touching
MR: General intent

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12
Q

Assault - CL

A

Attempted battery
OR
Intentional creation of reasonable apprehension
MR: Specific intent

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13
Q

Assault - NY

A

Intentionally causing physical injury to another

offensive touching not enough

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14
Q

Attempted assault - NY

A

“Intent” to cause injury.

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15
Q

Menacing - NY

A

Creation of reasonable apprehension

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16
Q

Degrees of assault - NY

A

1st - with weapon
* 2nd - Intentionally causing SERIOUS physical injury
3rd - NON-serious injury

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17
Q

Homicide - until when can death occur?

A

CL (old): 1y+1d

NY and MAJ: any time!

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18
Q

Murder - elements

A

Causing death with malice aforethought.

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19
Q

“Malice aforethought” as MR for murder?

A

Intent to kill
Intent to inflict serious bodily harm
Extreme recklessness / indifference to human life
Intentional inherently dangerous felony

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20
Q

“Intent to kill”

A

Weapon = inference of intent

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21
Q

Transferred intent to kill - limitation?

A

Only for completed crime (no attempted murder if victim doesn’t die)

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22
Q

“Intentional inherently dangerous felony” - limits?

A 
Guilty of felony.
Felony independent of killing (no merger, not battery)
During felony or immediate flight
Foreseeability!
Victim not co-felon
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23
Q

Is escape an inherently dangerous felony?

A

Only in NY.

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24
Q

Co-felons

A

All guilty by vicarious liability. Even when 3rd party bystander kills.

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25
Q

NY non-slayer defense - conditions

A

Did not kill
Had no deadly weapon
Had no reason to believe co-felon had deadly weapon
Had no reason to believe co-felons would do anything resulting in death

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26
Q

Murder - degrees - majority

A

1st - premeditation + deliberation

2nd - everything else

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27
Q

Murder - degrees - NY

A

1st - Intent to kill + >18 + Aggravating factor (killed cop, murder for hire, felony murder + intentional killing, witness intimidation, multiple victims)
2nd - Intentional killing OR highly reckless murder OR felony murder (with intention to kill, no co-felon)

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28
Q

“Highly reckless murder” (2nd NY)

A

Demonstrating depraved indifference to human life, recklessly engages in conduct that creates a grave risk of death and thereby causes death of another

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29
Q

Voluntary manslaughter - CL

A

Intentional killing
in the heat of passion
with adequate provocation

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30
Q

“Adequate provocation” for CL manslaughter?

A

Objectively adequate for sudden/intense reaction
Subjectively provoked
Objectively - no time to cool off
Subjectively - did not cool off
*NY - see 1st manslaiughter / Extreme Emotional Disturbance

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31
Q

Involuntary manslaughter - CL

A

Killing with criminal negligence
OR
Killing during crime (other than felony murder)

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32
Q

Manslaughter 1 - NY

A

Intentional killing under influence of reasonable and extreme emotional disturbance
(like CL voluntary manslaughter)
OR
Intent to cause serious physical injury

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33
Q

Manslaughter 2 - NY

A

Recklessness

aware of and consciously disregards substantial and unjustifiable risk of death

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34
Q

Criminally negligent homicide - NY

A

Criminal negligence

like CL involuntary manslaughter

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35
Q

Aggravated homicide - NY

A

Police officer /

>18 kills <14 in cruel/wanton manner

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36
Q

Felony murder in NY - intentional/accidental distinction:

A

Intentional - Murder 1
Accidental - Murder 2
[Can convict even if acquitted of underlying felony, so long as there is evidence of the felony!]

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37
Q

List of all homicide crimes in NY

A 
Aggravated homicide
Murder 1 (intent + aggravation)
Murder 2 (intent)
Man 1 (Intent + EED / intent to injure)
Man 2 (recklessness)
Criminal negligence homicide
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38
Q

False imprisonment - CL

A

Unlawful confinement of person without consent
which interferes substantially with victim’s liberty (no alternative routes).
MR - general intent

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39
Q

Unlawful imprisonment - NY

A

2nd - unlawful restraining without consent
MR: Knowledge that unlawful [legal mistake is a defense!]

1st - same plus risk of serious injury

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40
Q

Kidnapping - CL

A

False imprisonment + moving the victim or concealing in secret place
MR: General intent

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41
Q

Kidnapping - NY

A

2nd - abducting

1st - plus ransom OR >12hr restraint with intent to rape/injure/rob OR death of victim

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42
Q

Forcible rape

A

Sexual intercourse w/o consent
by force / threat of force / when unconscious
MR: General intent

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43
Q

Statutory rape - MR distinction?

A

NY, majority: strict

MPC: except reasonable mistake

44
Q

Larceny - CL

A

Trespassory taking and carrying away
the personal property of another
with intent to permanently retain property
(TTCPAIP)

45
Q

Larceny + intent to return

A

Defense!

46
Q

Erroneous takings rule in larceny

A

Under claim of right - even erroneous —- not larceny!

47
Q

Concurrence rule.

EXCL Continuing trespass in larceny

A

** Exception to concurrence rule if he decides to steal while in unlawful possession

48
Q

Embezzlement - CL

A 
Fraudulent conversion 
of personal property of another 
when already in LAWFUL POSSESSION
MR: specific intent to defraud
"Possession" - authority to exercise discretion, not mere custody
49
Q

False pretenses - CL

A

Obtaining TITLE to another’s property
by intentional FALSE STATEMENT
MR: Intent to defraud

50
Q

Larceny by trick - CL

A

Obtains CUSTODY by intentional FALSE STATEMENT

not ownership, that would be false pretenses

51
Q

Robbery - CL

A

Taking
of personal property
from another’s person/presence
by force or threat of immediate injury (not begging, lying)
MR:with intent to permanently deprive
(not pickpocket)
(not written threat, blackmail, extortion)

52
Q

Forgery - CL

A

Making/altering a writing
so that it is false
MR: with intent to defraud

53
Q

Theft crimes in NY

A

Only larceny and robbery (larceny is a catch-all)

54
Q

Larceny NY degrees

A 
1st -- $1m
2nd -- $50k or extortion involving physical injury
* 3rd -- $3k or ATM
4th -- $1k, public records, etc.
"Petit" - any
55
Q

Larceny NY includes these crimes

A

Everything except robbery:
Larceny by trespassory taking, embezzlement, false pretenses, larceny by trick, issuing bad check to obtain property, extortion?

56
Q

Robbery - NY - degrees

A

3rd - forcible stealing
2nd - ?aided by another / victim injured / car stolen / unloaded firearm
1st - ? victim seriously injured / uses or displays loaded firearm

57
Q

Burglary - CL

NARROW

A

Breaking and entering (not open window, not with permission)
dwelling of another (someone regularly sleeps there)
at night
with intent to commit felony inside
MR: Specific intent when entering (not after he is inside already!)

58
Q

Burglary - NY

BROAD

A 
Entering/remaining
in building
unlawfully
with intent to commit any crime inside
[no concurrence, no breaking, no dwelling, no nighttime, any crime not just felony]
59
Q

Burglary - NY - degrees

A

3rd - (above)
2nd - dwelling / injury / weapon
1st - Perp knows it is a dwelling PLUS injured / weapon

60
Q

Arson - CL

A

Malicious burning of building (material wasting of building itself, not just scorching, not just contents)
MR: Malice

61
Q

Arson - NY - degrees

A

4th - Reckless damage by intentionally starting fire
3rd - Intentional damage
2nd - Intentional + knows or should know someone is inside or reasonably possible
1st - all that plus incendiary/explosive

62
Q

Possession of contraband

A

Possession = control for period sufficient for opportunity to terminate control
Constructive possession = close enough to exercise dominion + control
MR: Knowledge of possession and character of item

63
Q

Receipt of stolen property

A

Receiving possession and control
of stolen personal property
MR: Knowledge that object was OBTAINED CRIMINALLY with intent to permanently deprive owner of interest.
[CHECK STATUS WHEN RECEIVED, IF ALREADY RECOVERED BY POLICE, MAYBE WE ONLY HAVE AN ATTEMPT]

64
Q

Criminal possession of stolen property - NY

A

Must realy be stolen

65
Q

MR for accomplice liability - NY/MBE

A

MBE: intent that crime be committed - NOT INCLUDING negligence/recklessness
NY: intent to aid perp’s conduct AND mental state for crime - INCLUDES negligence and recklessness!

66
Q

Mere knowledge = accomplice?

A

MBE: No.
NY: Knowledge = crime of “criminal facilitation” (doesn’t reach accomplice level)

67
Q

Accomplice withdrawal defense - NY/MBE

A

MBE
Encourager - repudiates before crime committed
Aider - must neutralize or prevent crime (call cops)

NY [requires more effort]
Renunciation + withraws prior to commission + substantial effort to prevent

68
Q

Accessory after the fact

A

Can be convicted of “accessory” crime, not principal crime.
Helps perp
with knowledge of crime
with intent to help AVOID ARREST/CONVICTION
NY - “hindering prosecution”
(There is also an “accessory before the crime” who is not a principal if not present at the crime itself)

69
Q

Inchoate offenses?

A

Solicitation
Conspiracy
Attempt

70
Q

Solicitation - elements

A 
Asking someone to commit crime
with intent that it be committed
MR: Specific intent
[Not necessary to complete crime]
[NY has 5 degrees re ages and whether crime is a felony]
71
Q

Conspiracy - elements

A

Agreement and overt act [anything, even preparatory]
in furtherance of crime
MR: Specific intent:
(1) for agreement - “concert of action” +
(2) Accomplish objectives of conspiracy
[NY has 6 degrees re ages and type of crime]

72
Q

How many guilty minds for conspiracy?

A

CL: Bilateral - 2!

NY/MPC: Unilateral - only 1 - even when others are acquitted or undercover cops

73
Q

Conspiracy - when crime itself needs >1

A

NY: Need n+1

“Wharton rule”

74
Q

Vicarious liability for co-conspirator crimes?

A

Furtherance of conspiracy objectives;
foreseeable results;
[NY non-participating co-conspiror not liable]

75
Q

Attempt - elements?

A

Overt act beyond preparation (much more than conspiracy)
CL/NY - “dangerously close”
MPC/maj: substantial step towards commission, which strongly corroborates crim. Purpose
MR: Intent to commit crime! (Recklessness, negligence, felony murder - not enough!!)

76
Q

Attempt - factual impossibility defense?

A

Not a defense

77
Q

Attempt - legal impossibility defense?

[When completion of intended acts would not produce crime, but perp thought he would – “shooting stuffed deer”]

A

CL: Defense!
NY: Not a defense

78
Q

Inchoate withdrawal defense - NY/MBE

A

** MBE: Usually not a defence. Elements are fulfilled early. Might relieve vicarious liability for co-conspirators’ actions but not for crime of conspiracy.
NY: Only completely renounced + prevented commission!

79
Q

Merger rule for solicitation - NY/MBE

A

MBE: Merges
NY: Doesn’t merge!

80
Q

Merger rule for attempt - NY/MBE

A

Always merges

81
Q

Merger rule for conspiracy - NY/MBE

A

NEVER merges

82
Q

Insanity defense - general requirement

[Need to know the following separate tests]

A

Must have “mental disease of defect”

83
Q

Insanity defense - M’Naughten

A

“DOESN’T KNOW RIGHT FROM WRONG”
Cognitive:
Didn’t know action was WRONG
Didn’t understand NATURE of conduct

84
Q

Insanity defense - irresistable impulse

A

Unable to control actions, or conform actions to law

85
Q

Insanity defense - Durham / New Hampshire

A

“BUT FOR ILLNESS, WOULDN’T HAVE COMMITTED”
Broad!
Crime was product of mental illness

86
Q

Insanity defense - MPC

A

“COMBINATION M’NAUGHTEN + IRRESISTABLE”
(COGNITIVE + VOLITIONAL)
As a result of mental disease/defect:
Lacked substantial capacity to either
(a) Appreciate the criminality of conduct [M’Naughten]
OR
(b) conform to requirement of law [Irresistable impulse]

87
Q

Insanity defense - NY

A

Lacked substantial capacity to know and appreciate EITHER

(a) nature and consequences of conduct
(b) that conduct was wrong

88
Q

Voluntary intoxication - defense to which MR?

A

CL/MBE: Specific intent only

NY: “Intent” “Knowledge”

89
Q

Infancy defense - CL

A

14+ - prosecution allowed

90
Q

Infancy defense - NY

A

<13 Juvie prosecution only
13 Adult for Murder 2
14-15 Adult for serious crimes against person or property
16+ Adult for any crime

91
Q

Mistake defense?

A

Mistake of law - NEVER unless knowledge of law is element

Only mistake of fact

92
Q

CL mistake of fact

A

REASONABLE MISTAKE IS DEFENSE FOR EVERYTHING EXCEPT STRICT
Specific intent - any mistake of fact
Malice, general intent - reasonable mistake only
Strict liability - no defense

93
Q

NY mistake of fact

A

WHEN REQUIRED MENTAL STATE IS NEGATED
REASONABLE MISTAKE IS DEFENSE FOR EVERYTHING EXCEPT STRICT
Intent/knowledge/recklessness - any mistake
Negligence - reasonable mistake only
Strict - no defense

94
Q

Self defense - use of non-deadly force

A

Reasonably necessary
to protect against immediate use
of unlawful force
NY: Not if he provoked)

95
Q

Self defense - use of deadly force

A

Faces imminent threat

of death of serious injury

96
Q

Initial aggressor use of deadly force in self defense?

A

No defense.
EXC1: withdraws and “communicates withdrawal”
EXC2: victim escalates non-deadly fight to deadly fight (+NY withdraws as well)

97
Q

Retreat required before use of deadly force?

A

MBE: Not required.
NY: Yes EXCEPT if he cannot retreat in complete safety / at home (castle exception) / officer / believes person is committed kidnapping, rape, burglury.

98
Q

Mistake re need to use force?

A

Reasonable mistake - defense.
Unreasonable:
NY/maj. - no defense.
MPC - mitigates liability - “imperfect self defense”

99
Q

Use of force to prevent crime

A

Non-deadly - to prevent “serious breach of peace”

Deadly - “to prevent felony risking human life”

100
Q

Defense of others

A

Resonable belief that other person has legal right to his own defense.
“Reasonable appearance”

101
Q

Deadly force in defense of property?

A

No, except:
In dwelling +
tumultuous entry +
reasonable belief that necessary to prevent personal attack [not really defense of property anymore]

102
Q

Non-deadly force to resist arrest

A

Maj. - to resist unlwaful arrest

NY - only to resist excessive force

103
Q

“Necessity defense”

A

Reasonable belief that force necessary to prevent greater harm.
Objective test only! Good faith belief NOT sufficient.
Doesn’t apply:
(a) Deadly force in protecting property
(b) Defendant at fault in creating “choice of evils situation”

104
Q

Civilian making arrest?

A

Non-deadly force
if crime actually committed
person has reasonable grounds to believe he was the perp.
Deadly force - only if actually guilty (not just belief)

105
Q

Duress defense?

A 
Coerced
by threat of imminent death / serious injury
to himself of close family
MBE - not for homicide.
NY - defense for homicide!
106
Q

Entrapment defense?

A

[NOT USUALLY GOOD DEFENSE ON MBE]
Criminal design originated with government
AND
D not predisposed to commit (eg. no crim record)

NY Bar 2014 (18 decks)

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