Criminal Law Flashcards
Specific Intent Crimes
(Common Law)
11 Specific Intent Crimes
**(desire to achieve a specific result) **
- First degree murder
- Assault
- Larceny
- Burglary
- Robbery
- Forgery
- Embezzlement
- False Pretenses
- Solicitation
- Conspiracy
- Attempt
General Intent Crimes
(Common Law)
**Battery **
**Forcible Rape **
**False Imprisonment **
**Kidnapping **
- D is aware of the factors constituting the crime but need not intend a specific result.
Common Law Malice Crimes
**Murder **
**Arson **
- When a defendant acts intentional or with a reckless disregard of an obvious or known risk
Strict Liability (Common Law)
**Statutory Rape **
**Bigamy **
**Public Welfare Offenses **
- No mental state required.
- **NY: Knowledge of weight of controlled substance is not an element; D is strictly liable for weight. **
Defenses and Affirmative Defenses in New York
- A defense is one that the prosecution must disprove BRD (ex. self-defense)
- An affirmative defense is one the defendant must prove by a preponderance of the evidence
Felonies versus Misdemeanors
- Felonies are punishable by more than 1 year in prison or death
- Misdemeanors are punishable by fine and/or imprisonment for less than 1 year.
- NY: “violations” other than traffic offenses are punishable by no more than 15 days imprisonment.
Physical Acts must be . . .
**VOLUNTARY, NOT **
- Involuntary; or
- While unconscious; or
- A reflex/convulsion
Omission
Criminal liability attaches when . . .
- Legal duty to act (statute, contract such as babysitter/lifeguard, status relationship such as spouse/parent, voluntary assumption of care, or creation of peril).
- Knowledge of facts giving rise to a duty;
- Ability to help.
New York Mental States
Same as MPC
- Intent: conscious desire to achieve particular result
- Knowledge: D’s awareness of what he is doing, that it will cause a particular result
- Recklessness: awareness of substantial and unjustifiable risk; consciously disregards risk
- Negligence: should have been aware of substantial and unjustifiable risk
- Strict liability: no mental state.
6.
Actual Causation
“But For” Causation
Cause-in-fact: bad result would not have happened but for defendant’s conduct, except for accelerating causes (hastening death = actual cause).
Proximate Cause
Bad result = natural and probable consequence of D’s conduct, including eggshell victims or those with pre-existing weaknesses.
Excluding: unforeseeable intervening events.
Concurrence
- D must act with requisite mental state at the time of the act (except larceny, intent can arise later).
Common Law Assault
**Mental State: Specific Intent **
- Attempted battery; or
- Intentional creation, other than mere words, of a reasonable apprehension of imminent bodily harm.
Common Law Battery
**Mental State: General Intent **
- The unlawful application of force;
- Resulting in either bodily injury OR offensive touching
**NEW YORK ASSAULT **
NOTE: THERE IS NO CRIME OF BATTERY IN NY
**Intentionally causing physical injury to another. **
Third degree: non-serious physical injury
Second degree: serious injury
First degree: serious injury + use of a weapon
* “reasonable apprehension” = different crime of menacing
Common Law Murder
Causing the death of another with malice aforethought
- Intentional killing;
- Intent to inflict serious bodily harm
- Extreme recklessness/indifference to human life (depraved heart)
- Intentional commission of dangerous felony (felony murder)
Felony Murder in New York
- Available for “BRAKES” felonies: burglary, robbery, arson, kidnapping, escape, sexual assault.
- Proximate cause theory (liability for co-felon’s crime), but
- Victim must not be a co-felon; and
- Killing must be during crime or immediate flight therefrom
- Conviction of felony murder possible even with acquittal of underlying crime.
- Non-Slayer Defense: If D did not kill; had no deadly weapon; and no reason to believe the co-felons had deadly weapons or would result in death. (Affirmative defense).
Felony Murder (Common Law)
- Vicarious liability: all co-felons guilty even if third party responsible
- Agency theory: felony murder only if co-felon kills
First Degree Murder in New York
- Intent
- 18+
- Aggravating factors, such as
- Police doing their duty;
- Witness killing;
- Murder for hire;
- More than 1 intentionally killed;
- Intentional felony murder
Second Degree Murder
- Intent; or
- Reckless/depraved indifference; or
- Felony murder where victim is NOT ce-felon but was killed unintentionally
- Still possible if acquitted of underlying charge;
- BRAKES: burglary, robbery, arson, kidnapping, escape, sexual assault.
- Non-slayer defense
Voluntary Manslaughter
(Common Law)
- Intentional killing;
- In the heat of passion;
- Upon adequate provocation
- Assault & battery;
- Witnessing adultery
- Objective + subjective elements (D actually provoked, should have been provoked, did not have time to cool, did not actually cool).
First Degree Manslaughter (New York)
- Intentional killing; under reasonable and extreme emotional disturbance; or
- Intent to cause serious physical injury; or
- Abortional act 24+ weeks and death of mother
(1) is an affirmative defense to second degree murder.
Second Degree Manslaughter (New York)
- Recklessness; aware that conduct consciously disregards a substantial and unjustifiable risk.
- Abortional act causing death of mother unless justified by statute;
- Aiding suicide, unless involving duress or deception (then second degree murder).
Involuntary Manslaughter
(Common Law)
- During a crime to which felony murder does not apply; or
- With criminal negligence (gross deviation from standard of care)
Manslaughter in New York (Other)
Vehicular Manslaughter
- **First Degree: **death while drunk + BAC > 0.18 or more than 1 death
- **Second Degree: **death while drunk
**Criminally Negligent Homicide: **negligence (should have been aware of the risk of death).
**Aggravated homicide: **applies to all types of homicide if victim is police on duty.
**Aggravated murder: **D 18+ kills V<14 cruelly, wantonly
**Aggravated vehicular homicide: **First degree vehicular manslaughter + reckless driving.
False Imprisonment
(Common Law and New York)
- Common law: the unlawful confinement of a person without his consent (general intent).
- New York: “unlawful imprisonment”
- **First Degree: **unlawfully restraining someone without consent, with knowledge that the restiction is unlawful and risk of serious injury.
- **Second Degree: **unlawfully restraining someone without their consent with knowledge the restriction is unlawful.
Kidnapping
(Common Law and New York)
Common law: false imprisonment and moving victim or concealing in a secret place.
New York:
- **First degree: abducting someone, and **
- **Ransom, **
- **Restraint > 12 hours with intent to rape/injure/rob; or **
- **Death of Victim **
- **Second degree: abducting someone **
Forcible Rape
- Sexual intercourse without victim’s consent, by:
- Force;
- Threat of force; or
- when victim is unconscious
(General intent)
Statutory Rape
- Sexual intercourse with someone under the age of consent
- Age of consent is 17 in NY
- 21 +, victim 16 or younger in NY
- Mental state = strict liability (majority/NY)
**MPC/minority rule: mistake of age, if reasonable, is a defense. **
Larceny
(Common Law)
**Trespassory Taking and Carrying Away the Personal Property of Another with the Intent to Permanently Retain the Property. **
Specific intent
- taking under a claim of right is not larceny
- continuing trespass created by later on forming intent to deprive owner permanently (exception to concurrence).
Embezzlement
(Common Law)
- Conversion of personal property of another by a person already in lawful possession of that property with the intent to defraud.
- Possession > custody
- Authority to exercise discretion over property (e.g., trustee)
- **Specific intent to defraud **(n/a if you intend to return, but must return same items).
False Pretenses
- Obtaining title to the personal property of another by an intentional false statement with the intent to defraud.
- Title = ownership
- Present or past event, not future promise
- Specific intent crime
Larceny by Tick
(Common Law)
- Obtaining CUSTODY (not ownership/title) of the personal property of another by an intentional false statement
- Past/present, not future, promise
Common Law Forgery
- Making or altering a writing so that it is false with the specific intent to defraud
Robbery
(Common Law)
- A larceny from a person’s person/presence by force or threat of immediate force.
- Specific intent to steal
- Force must be sufficient to overcome resistance.
- E.g., purse snatching from arm, but not pick-pocketing
Robbery
(New York)
THIRD DEGREE.
- Forcible stealing (use/threatened use of immediate force).
SECOND DEGREE
- Forcible stealing + aided by a person actually present, or injury to the victim, or car is stolen, First Degree & can prove the firearm was unloaded.
**FIRST DEGREE **
- Forcible stealing + victim is seriously injured, or use/display of loaded firearm (burden on D to show not loaded, knocks to second degree).
Larceny
(New York)
- Any crime that is, at common law, larceny, embezzlement, false pretenses, or larceny by trick:
- Degrees
- 1st = > 1,000,000
- 2nd = > 50,000
- 3rd = > 3,000
- 4th = > 1,000
- Petit = < 1,000
Burglary
(New York and Common Law)
- Breaking and entering the dwelling of another at night with the intent to commit a felony inside. Specific intent crime.
- Breaking is creating/enlarging an opening with minimal force.
- **New York **
- **Third Degree: **No dwelling/nighttime requirement, and can be done by remaining inside; crime need not be a felony.
- Second Degree: **Third degree burglary + dwelling **or **non-participant is injured **or **carrying weapon.
- First Degree: Third degree burglary + knowledge that it is a dwelling + either non-participant injury, **or **carrying a weapon.
Arson
(Common Law and New York)
- Common Law: Malicious burning of a building.
- State of mind = malice
- Burning = “material wasting” (charring, not scorching. Must be the building itself that burns).
- At common law the building must have been a dwelling of another but most states have eliminated this.
- **New York **
- **Fourth degree: **reckless burning of a building
- **Third degree: **intentional burning of a building
- **Second degree: **third degree arson + knows/should know someone is inside
- **First degree: **second degree arson + use of explosive/incendiary device
Possession
Control for long enough to have opportunity to terminate possession.
Constructive possession = close enough for D to exercise dominion and control over contraband.
Receipt of Stolen Property
(Common Law and New York)
**Receiving possession & control of stolen personal property. Requires: **
- **Knowledge that property is stolen; **
- **Intent to permanently deprive. **
**In NY property must actually be stolen. **If recovered by the police and used in a sting operation it is not stolen (but can be charged with attempt).
Accomplice Liability
- Aiding or encouraging the principal of a crime, with the intent that the crime be committed.
- For crimes requiring recklessness/negligence, requires intentional conduct that aids principal and the same mental state of recklessness/negligence for commission of crime.
- Mere presence is insufficient;
- Mere knowledge is insufficient (but = criminal facilitation in NY)
Vicarious Accomplice Liability
- Accomplice is guilty of all crimes that he aids or encourages, &
- All other foreseeable crimes committed along with aided crime.
Withdrawal from Accomplice Liability
- Encourager must repudiate encouragement before crime
- Aider must neutralize assistance or otherwise prevent the crime, as by notifying the authorities.
- **In New York, you must make a substantial effort to prevent the crime (affirmative defense). **
Accessory After the Fact
- Often charged with obstruction of justice / harboring a fugitive / hindering prosecution.
- Lesser than accomplice liability.
- Consists of aiding a principal who has committed a felony, with the knowledge that a crime has been committed and intent to help the principal avoid arrest/conviction.
Enterprise Liability
- Corporation and agent can be held criminally liable when the agent acts on behalf of the corporation and within the scope of his office.
- For regulatory offenses involving public safety, agents can be liable if they stnd in “responsible relationship” to the situation creating the public danger.
Solicitation
(New York and Common Law)
- Asking someone to commit a crime with the intent that the crime be committed. Crime complete after the asking.
- Merges with the completed offense at common law **(but not in New York). **
Conspiracy
(Common Law and New York)
**Impossibility is not a defense (unless legal impossibility) **
**AGREEMENT to commit a crime, **
**- and - **
OVERT ACT in furtherance of crime
(mere preparation insufficient)
Mental State:
- Intent to agree; and
- Intent to commit the crime
Special Rules_ _
- Bilateral Conspiracy: At Common Law, no one-person conspiracy. If all parties acquitted, the last D cannot be convicted.
- Unilateral Conspiracy: New York/MPC approach, one guilty mind okay. No acquittal if other Ds are not guilty/incompetent to enter into.
- **Wharton Rule (followed in New York): **Need more parties to the conspiracy than are necessary to commit the crime (e.g., dueling).
- **Vicarious (“Pinkerton) Liability (NOT followed in New York): **A co-conspirator can be liable for other crimes, not agreed to, committed by the other conspirators, if those crimes were committed in furtherance of the conspiracy’s objective & were foreseeable.
**Attempt **
**(New York & MPC) **
OVERT ACT BEYOND MERE PREPARATION.
- **NY: **“Dangerously close” to commission of the crime
- **Majority/MPC: **“Substantial step” that strongly corroborates criminal purpose.
This is a specific intent crime. **Cannot apply to recklessness/negligence crimes or to felony murder. **
**Withdrawing Attempt? **
- Generally not a defense
- But in NY, abandonment = affirmative defense if defendant completely and voluntarily renounces, and as a result does not commit underlying crime.
Withdrawal from Conspiracy
(Common law)
- Generally not a defense, but can be a defense to vicarious liability if he clearly leaves the conspiracy and other crimes committed after.
New York: Withdrawal from Inchoate Crimes
- **Solicitation/conspiracy: **affirmative defense if D completely and voluntarily withdraws and prevents the commission of the crime.
- **Attempt: **affirmative defense if defendant completely and voluntarily renounces and as a result does not commit a crime.
Merger of Inchoate Crimes
(Common law and New York)
- **Common Law: **attempt/solicitation merge; conspiracy does NOT.
- **New York: **solicitation & conspiracy do not merge (attempt does).
Insanity
(M’Naghten v. MPC v. New York)
- M’Naghten: Defendant shows either, (a) did not know his conduct was wrong; or (b) did not undertand the nature of his conduct.
- MPC: Defendant shows he lacked substantial capacity to (a) appreciate the criminality of his conduct or (b) conform his conduct to the requirements of the law.
- **New York: **Defendant must prove she lacked substantial capacity to know or appreciate either (a) the nature and consequences of his conduct; or (b) that his conduct was wrong.
- Notice must be given within 30 days of “not guilty” plea.
Incompetency
- Whether, at the time of trial, D can understand the nature of the proceedings against him; and assist his lawyer in the preparation of his defense.
Voluntary Intoxication Defense
- Can be a defense to specific intent crimes (assault, pre-meditated murder, false pretenses, embezzlement, larceny, forgery, robbery, burglary, attempt, conspiracy, solicitation).
- Not a defense to malice, general intent, or strict liability crimes.
- New York:
- Knowledge and intent crimes, defense available.
- Not recklessness, negligence, strict liability
Infancy
(Common Law & NY)
- Common law rule of sevens: <7, no prosecution; >14, rebuttal presumption against; 14+, prosecution allowed.
- **Infancy in NY: **
- **<13 **only juvenile proceedings
- **13 **adult criminal prosecution okay for second degree murder
- **14–15 **adult criminal prosecution only for serious crimes on person/property
- **16+ **adult criminal prosecution allowed for any crime.
Mistake of Fact
(New York & Common Law)
- **Common Law: **A reasonable mistake is a defense to general intent, specific intent, and malice crimes (but not strict liability).
- An unreasonable mistake is only a defense to specific intent crimes.
- **New York: **Mistake of fact defense only if it negates the required mental state.
- Unreasonable mistake: defense to intent/knowledge/ recklessness;
- Reasonable: negligence
- No mistake: strict liability
Mistake of Law
**Not a defense unless statute calls for knowledge of criminality **
Use of Non-Deadly Force
- Must be reasonably necessary to protect against an immediate use of unlawful force against oneself or another.
Use of Deadly Force
+
Retreat Rule
- Deadly force may be used to protect against imminent threat of death **or serious bodily harm, **BUT
- If Initial Aggressor
- Majority Rule: can’t use if started physical fight, unless (a) WITHDRAWS & COMMUNICATES WITHDRAWAL, or (b) VICTIM SUDDENLY ESCALATES non-deadly to deadly
- **New York: Must withdraw even if sudden escalation **
- Retreat Rule
- **Majority Rule: **No retreat
- **New York: **Retreat unless can’t in complete safety or D is in his HOME. Stairway/alcove in front of home is NOT home; still must retreat further.
- If Initial Aggressor
Mistake and Reasonableness about Lawful Force
- A reasonable mistake is a complete defense.
- An unreasonable mistake
- NY/majority rule: no defense
- Minority/MPC rule:“imperfect self defense” can mitigate (e.g. to manslaughter).
Use of Force to Prevent Crime
- Nondeadly force: OK if reasonably necessary to prevent a serious breach of the peace
- Deadly: only to prevent felony risking human life.
Defense of Property
- Deadly force may not be used, unless the property is your dwelling, and:
- 1) Intruder gains entry violently, and
- 2) Deadly force reasonably believed to be necessary to prevent a personal attack on self or another in the dwelling
Resisting Arrest
- Majority rule: may use non-deadly force to resist unlawful arrest
- NY: no force unless P.O. uses excessive force
Deadly Force by Law Enforcement
- When reasonable under the circumstances, to prevent fleeing felon from threatening serious bodily harm or death to others and deadly force is necessary to prevent his escape.
Necessity
- Conduct, otherwise criminal, can be justified if D reasonably believes the conduct is necessary to prevent greater harm. But N/A where:
- D causes person’s death to protect property; or
- D is at fault in creating the danger
Duress
- If D is coerced to commit crime b/c of threat from another of death or serious injury to himself or close family member.
**Majority: defense N/A to homicide crimes **
**New York: defense applicable to any crime including homicide **
Entrapment
- Criminal design originated with gov’t; and
- Defendant not pre-disposed to commit the crime
New York: entrapment is aff. defense. Prosecution may introduce prior criminal acts in its direct case to rebut.
Reckless Endangerment (NY)
First degree: D recklessly engages in conduct that creates grave risk of death to another person
Second degree: D recklessly engages in conduct that creates a substantial risk of serious physical injury to another.
