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The NY Bar Exam > Criminal Law > Flashcards

Criminal Law Flashcards

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1
Q

Specific Intent Crimes

(Common Law)

A

11 Specific Intent Crimes

**(desire to achieve a specific result) **

  1. First degree murder
  2. Assault
  3. Larceny
  4. Burglary
  5. Robbery
  6. Forgery
  7. Embezzlement
  8. False Pretenses
  9. Solicitation
  10. Conspiracy
  11. Attempt
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2
Q

General Intent Crimes

(Common Law)

A

**Battery **

**Forcible Rape **

**False Imprisonment **

**Kidnapping **

  • D is aware of the factors constituting the crime but need not intend a specific result.
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3
Q

Common Law Malice Crimes

A

**Murder **

**Arson **

  • When a defendant acts intentional or with a reckless disregard of an obvious or known risk
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4
Q

Strict Liability (Common Law)

A

**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. **
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5
Q

Defenses and Affirmative Defenses in New York

A
  • 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
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6
Q

Felonies versus Misdemeanors

A
  • 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.
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7
Q

Physical Acts must be . . .

A

**VOLUNTARY, NOT **

  • Involuntary; or
  • While unconscious; or
  • A reflex/convulsion
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8
Q

Omission

Criminal liability attaches when . . .

A
  1. Legal duty to act (statute, contract such as babysitter/lifeguard, status relationship such as spouse/parent, voluntary assumption of care, or creation of peril).
  2. Knowledge of facts giving rise to a duty;
  3. Ability to help.
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9
Q

New York Mental States

A

Same as MPC

  1. Intent: conscious desire to achieve particular result
  2. Knowledge: D’s awareness of what he is doing, that it will cause a particular result
  3. Recklessness: awareness of substantial and unjustifiable risk; consciously disregards risk
  4. Negligence: should have been aware of substantial and unjustifiable risk
  5. Strict liability: no mental state.
    6.
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10
Q

Actual Causation

A

“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).

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11
Q

Proximate Cause

A

Bad result = natural and probable consequence of D’s conduct, including eggshell victims or those with pre-existing weaknesses.

Excluding: unforeseeable intervening events.

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12
Q

Concurrence

A
  • D must act with requisite mental state at the time of the act (except larceny, intent can arise later).
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13
Q

Common Law Assault

A

**Mental State: Specific Intent **

  1. Attempted battery; or
  2. Intentional creation, other than mere words, of a reasonable apprehension of imminent bodily harm.
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14
Q

Common Law Battery

A

**Mental State: General Intent **

  1. The unlawful application of force;
  2. Resulting in either bodily injury OR offensive touching
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15
Q

**NEW YORK ASSAULT **

A

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

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16
Q

Common Law Murder

A

Causing the death of another with malice aforethought

  1. Intentional killing;
  2. Intent to inflict serious bodily harm
  3. Extreme recklessness/indifference to human life (depraved heart)
  4. Intentional commission of dangerous felony (felony murder)
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17
Q

Felony Murder in New York

A
  • 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).
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18
Q

Felony Murder (Common Law)

A
  • Vicarious liability: all co-felons guilty even if third party responsible
  • Agency theory: felony murder only if co-felon kills
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19
Q

First Degree Murder in New York

A
  1. Intent
  2. 18+
  3. Aggravating factors, such as
    • Police doing their duty;
    • Witness killing;
    • Murder for hire;
    • More than 1 intentionally killed;
    • Intentional felony murder
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20
Q

Second Degree Murder

A
  1. Intent; or
  2. Reckless/depraved indifference; or
  3. 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
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21
Q

Voluntary Manslaughter

(Common Law)

A
  1. Intentional killing;
  2. In the heat of passion;
  3. 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).
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22
Q

First Degree Manslaughter (New York)

A
  1. Intentional killing; under reasonable and extreme emotional disturbance; or
  2. Intent to cause serious physical injury; or
  3. Abortional act 24+ weeks and death of mother

(1) is an affirmative defense to second degree murder.

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23
Q

Second Degree Manslaughter (New York)

A
  1. Recklessness; aware that conduct consciously disregards a substantial and unjustifiable risk.
  2. Abortional act causing death of mother unless justified by statute;
  3. Aiding suicide, unless involving duress or deception (then second degree murder).
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24
Q

Involuntary Manslaughter

(Common Law)

A
  1. During a crime to which felony murder does not apply; or
  2. With criminal negligence (gross deviation from standard of care)
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25
Q
A
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26
Q

Manslaughter in New York (Other)

A

Vehicular Manslaughter

  1. **First Degree: **death while drunk + BAC > 0.18 or more than 1 death
  2. **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.

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27
Q

False Imprisonment

(Common Law and New York)

A
  • Common law: the unlawful confinement of a person without his consent (general intent).
  • New York: “unlawful imprisonment”
  1. **First Degree: **unlawfully restraining someone without consent, with knowledge that the restiction is unlawful and risk of serious injury.
  2. **Second Degree: **unlawfully restraining someone without their consent with knowledge the restriction is unlawful.
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28
Q

Kidnapping

(Common Law and New York)

A

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 **
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29
Q

Forcible Rape

A
  • Sexual intercourse without victim’s consent, by:
    • Force;
    • Threat of force; or
    • when victim is unconscious

(General intent)

30
Q

Statutory Rape

A
  • 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. **

31
Q

Larceny

(Common Law)

A

**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).
32
Q

Embezzlement

(Common Law)

A
  • 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).
33
Q

False Pretenses

A
  • 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
34
Q

Larceny by Tick

(Common Law)

A
  • Obtaining CUSTODY (not ownership/title) of the personal property of another by an intentional false statement
    • Past/present, not future, promise
35
Q

Common Law Forgery

A
  • Making or altering a writing so that it is false with the specific intent to defraud
36
Q

Robbery

(Common Law)

A
  • 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
37
Q

Robbery

(New York)

A

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).
38
Q

Larceny

(New York)

A
  • 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
39
Q

Burglary

(New York and Common Law)

A
  • 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.
40
Q

Arson

(Common Law and New York)

A
  • 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
41
Q

Possession

A

Control for long enough to have opportunity to terminate possession.

Constructive possession = close enough for D to exercise dominion and control over contraband.

42
Q

Receipt of Stolen Property

(Common Law and New York)

A

**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).

43
Q

Accomplice Liability

A
  • 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)
44
Q

Vicarious Accomplice Liability

A
  • Accomplice is guilty of all crimes that he aids or encourages, &
  • All other foreseeable crimes committed along with aided crime.
45
Q

Withdrawal from Accomplice Liability

A
  • 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). **
46
Q

Accessory After the Fact

A
  • 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.
47
Q

Enterprise Liability

A
  • 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.
48
Q

Solicitation

(New York and Common Law)

A
  • 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). **
49
Q

Conspiracy

(Common Law and New York)

A

**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:

  1. Intent to agree; and
  2. 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.
50
Q

**Attempt **

**(New York & MPC) **

A

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. **

51
Q

**Withdrawing Attempt? **

A
  • 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.
52
Q

Withdrawal from Conspiracy

(Common law)

A
  • Generally not a defense, but can be a defense to vicarious liability if he clearly leaves the conspiracy and other crimes committed after.
53
Q

New York: Withdrawal from Inchoate Crimes

A
  • **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.
54
Q

Merger of Inchoate Crimes

(Common law and New York)

A
  • **Common Law: **attempt/solicitation merge; conspiracy does NOT.
  • **New York: **solicitation & conspiracy do not merge (attempt does).
55
Q

Insanity

(M’Naghten v. MPC v. New York)

A
  • 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.
56
Q

Incompetency

A
  • 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.
57
Q

Voluntary Intoxication Defense

A
  • 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
58
Q

Infancy

(Common Law & NY)

A
  • 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.
59
Q

Mistake of Fact

(New York & Common Law)

A
  • **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
60
Q

Mistake of Law

A

**Not a defense unless statute calls for knowledge of criminality **

61
Q

Use of Non-Deadly Force

A
  • Must be reasonably necessary to protect against an immediate use of unlawful force against oneself or another.
62
Q

Use of Deadly Force

+

Retreat Rule

A
  • 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.
63
Q

Mistake and Reasonableness about Lawful Force

A
  • 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).
64
Q

Use of Force to Prevent Crime

A
  • Nondeadly force: OK if reasonably necessary to prevent a serious breach of the peace
  • Deadly: only to prevent felony risking human life.
65
Q

Defense of Property

A
  • 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
66
Q

Resisting Arrest

A
  • Majority rule: may use non-deadly force to resist unlawful arrest
  • NY: no force unless P.O. uses excessive force
67
Q

Deadly Force by Law Enforcement

A
  • 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.
68
Q

Necessity

A
  • 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
69
Q

Duress

A
  • 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 **

70
Q

Entrapment

A
  1. Criminal design originated with gov’t; and
  2. 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.

71
Q

Reckless Endangerment (NY)

A

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.

The NY Bar Exam (15 decks)

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