Criminal Law

Question 1

FELONY

A felony is a crime punishable by death or by imprisonment for more than one year.

Answer 1

A felony is an offense for which a sentence to a term of imprisonment in excess of one year may be imposed.

Question 2

MISDEMEANOR

A misdemeanor is a crime punishable by imprisonment for less than one year or by a fine only. At common law, crimes not considered felonies were deemed misdemeanors.

Answer 2

Under N.Y. Penal Law Section 10.00, a misdemeanor is an offense other than a traffic violation that is punishable by 15 days to one year. Those offenses punishable by less than 15 days or only a fine, other than traffic infractions, are referred to as violations.

Question 3

ACTUS REUS

Actus reus may be met by either a voluntary act that causes an unlawful result or an omission to act where the defendant is under a legal duty to act.

Answer 3

Under New York Penal Law, actus reus may be satisfied by possession of an item in addition to the traditional forms of actus reus.

Question 4

MENS REA

In order to be guilty, a certain mental state must exist as to the crime.

Mental states are typically classified as intentionally, knowingly, purposely, willfully, and wantonly.

Answer 4

N.Y. Penal Law Section 15.05 uses four mental states: intentionally, knowingly, recklessly, and criminal negligence. The first two, intentionally and knowingly, mirror the MBE.

Recklessly refers to the awareness and conscious disregard of a substantial and unjustifiable risk that a result will occur and must be a gross deviation from the reasonable person standard of conduct.

Criminal negligence is the failure to perceive a substantial and unjustifiable risk. The failure must be a gross deviation from the reasonable person standard of conduct.

Question 5

CRIMINAL HOMICIDE

Homicide is classified as murder in the first degree, murder in the second degree, voluntary manslaughter, and involuntary manslaughter.

Answer 5

New York has five basic levels of homicide. There can be aggravated forms when certain circumstances exist.

Question 6

CRIMINALLY NEGLIGENT HOMICIDE

Answer 6

Criminally negligent homicide causes a death through criminal negligence.

It is aggravated when the death is that of a police or peace officer working in the course of his duties and the actor should have known that the victim was an officer.

Question 7

VEHICULAR MANSLAUGHTER BY DEGREES

Answer 7

A person is guilty of vehicular manslaughter in the second degree when he causes the death of another person by the operation of a vehicle while impaired, or by operating a vessel in violation of the navigation law, a large vehicle containing flammable materials or a snowmobile while intoxicated or impaired and this operation causes the death of another person.

A person is guilty of vehicular manslaughter in the first degree when he commits the crime of vehicular manslaughter in the second degree by operation of a vehicle while impaired and while the defendant’s license is suspended or revoked on the grounds of refusal to submit to a chemical test or for conviction of driving under the influence of drugs or alcohol or causes the death of more than one person or has previously been convicted of a crime under this article of the penal law in New York or another state.

Question 8

MANSLAUGHTER BY DEGREES

Answer 8

SECOND DEGREE

One who commits manslaughter in the second degree recklessly causes the death of another, commits an act of illegal abortion resulting in death, or intentionally causes or aids another to commit suicide.

It becomes aggravated when the death is that of a police or peace officer working in the course of his duties and the actor knew or should have known that the victim was an officer.

FIRST DEGREE

Manslaughter in the first degree is when the defendant, while intending to cause serious physical injury actually causes death, causes death while acting under extreme emotional disturbance (passion or provocation), commits an act of abortion upon a female after 24 weeks of pregnancy and not within any of the allowable abortion exceptions which causes her death, or, being over 18 years of age, commits an act intended to cause physical injury to a person under 11 years of age creating a grave risk of serious physical injury and resulting in death. It becomes aggravated when the death is that of a police or peace officer working in the course of his duties and the actor knew or should have known that the victim was an officer, or an officer is killed with intent while the defendant is under extreme emotional disturbance.

Question 9

MURDER BY DEGREES

Answer 9

SECOND DEGREE

Murder in the second degree is when the actor:

1. with intent to cause death, does in fact cause the death of the target or another under circumstances evincing depraved indifference to human life;
2. engages in conduct that creates a grave risk of death and does in fact cause a death;
3. commits felony murder; or
4. being over 18 years of age, engages in conduct that creates a grave risk of serious physical injury to someone under the age of 11 and in fact causes death.

It becomes aggravated when the death is that of a police officer or peace officer, or employee of a correctional institution working in the course of his duties and the actor knew or should have known that the victim was an officer or correctional employee.

The actor must also be 18 years of age at the time of the offense.

FIRST DEGREE

Murder in the first degree is the intentional causing of the death of another:

1. of certain classes of persons, including police officers and peace officers, correctional officers, judges, witnesses (or a witness’s immediate family member), and firefighters and other emergency first responders;
2. in a correctional institution by someone confined there for a term of life or for a sentence of 15 years to life;
3. in a multiple homicide,
4. by murder for hire;
5. in certain felony murders;
6. by persons previously convicted
   of murder;
7. by terrorism murder; and
8. by especially cruel and wanton
   murder, including torture.

Question 10

FELONY MURDER

At common law, felony-murder crimes are:

1. burglary;
2. arson;
3. rape;
4. robbery; and
5. kidnapping.

Answer 10

Felony-murder crimes are:

1. burglary;
2. arson;
3. rape in the first degree;
4. criminal sexual act, sexual abuse,
   or aggravated sexual abuse in the
   first degree;
5. kidnapping;
6. escape in the first or second degree; or
7. robbery.

A defendant cannot be liable for firstdegree felony murder if the victim was
a participant in the crime.

Question 11

BATTERY

Battery is the unlawful application of force to another.

Answer 11

New York incorporates the element of physical touching or injury into the assault offenses.

Question 12

ASSAULT

Assault is putting someone in fear of an immediate battery.

Answer 12

New York Penal Law refers to this conduct as menacing.

An assault occurs when the actor, with intent to cause physical injury to another person, causes such injury to such person or to a third person; recklessly causes physical injury to another person; or, with criminal negligence, causes physical injury to another person by means of a deadly weapon or a dangerous instrument.

FIRST DEGREE

First-degree assault includes:

1. intentional infliction of serious injury by means of a deadly weapon or dangerous instrument;
2. intentional infliction of serious injury resulting from intent to disfigure or disable;
3. unintentional infliction of serious injury resulting from highly reckless conduct; or
4. unintentional infliction of serious injury resulting from the commission of any felony, or the immediate flight therefrom.

SECOND DEGREE

Second-degree assault includes:

1. intentional infliction of serious injury without a deadly weapon;
2. unintentional infliction of serious injury caused by reckless use of a deadly weapon;
3. intentional infliction of a non-serious injury committed to stop one from performing his official duty;
4. intentional infliction of a non-serious injury committed with a deadly weapon;
5. unlawful administration of drugs to an unwilling person that results in unconsciousness or injury;
6. unintentional non-serious injury resulting from any felony other than sex offenses;
7. intentional infliction of nonserious injury while confined in a correctional facility;
8. recklessly caused serious physical injury by a person at least 18 years old who intended to cause physical injury to a child under 11 years old;
9. intentionally causing injury to another person while on school grounds; or
10. intentionally causing physical injury to a person aged sixty-five or over, if the defendant is at least ten years younger.

THIRD DEGREE

Third-degree assault includes:

1. intentional non-serious injury without a deadly weapon;
2. unintentional non-serious injury caused by recklessness; and
3. unintentional non-serious injury caused by criminal negligence with a deadly weapon.

Question 13

RECKLESS ENDANGERMENT

Answer 13

Reckless endangerment consists of putting a person in danger of injury by reckless conduct.

Question 14

HARASSMENT

Answer 14

A person commits harassment in the first degree when he intentionally and repeatedly harasses another person by following such person in public, or when he repeatedly commits acts that cause the victim reasonable fear of physical injury.

Question 15

HAZING

Answer 15

Hazing in the first degree is intentionally or recklessly engaging in conduct which creates a substantial risk of physical injury to another or a third person and which causes that injury in the course of another person’s initiation into affiliation with any organization.

Question 16

MAYHEM

Mayhem requires the intent to maim, disfigure, or dismember.

Answer 16

Mayhem is included in the more serious types of aggravated assault under New York law.

Question 17

STRANGULATION

Answer 17

The New York Penal Law has been amended to add the offenses of “criminal obstruction of breathing or blood circulation” and “strangulation.” The relevant provisions are described below.

CRIMINAL OBSTRUCTION OF BREATHING/BLOOD CIRCULATION

A person is guilty of criminal obstruction of breathing or blood circulation when, with intent to impede the normal breathing or circulation of the blood of another person, he:

1. applies pressure on the throat or neck of such person; or
2. blocks the nose or mouth of such person.

SECOND DEGREE

A person is guilty of strangulation in the second degree when he commits the crime of criminal obstruction of breathing or blood circulation and thereby causes stupor, loss of consciousness for any period of time, or any other physical injury or impairment.

FIRST DEGREE

A person is guilty of strangulation in the first degree when he commits the crime of criminal obstruction of breathing or blood circulation and thereby causes serious physical injury.

AFFIRMATIVE DEFENSE

There is an affirmative defense to these offenses if the defendant performed the conduct for a valid medical or dental purpose.

Question 18

FALSE IMPRISONMENT

False imprisonment is the intentional, unlawful confinement of one person by another.

Answer 18

False imprisonment is known as unlawful imprisonment under New York law.

Question 19

KIDNAPPING

At common law, kidnapping consisted of an unlawful restraint of a person’s liberty by force or show of force, so as to send the victim into another country.

Under modern law, it usually suffices that the victim be taken to another location or concealed.

Answer 19

Kidnapping is the restraint of another person with the intent to prevent his liberation by secreting or holding him in a place where he is not likely to be found, or by using or threatening to use deadly force.

FIRST DEGREE

Kidnapping in the first degree is an abduction:

1. with the intent to extract a ransom, or to force a third person to perform or refrain from performing some act;
2. in which the victim is restrained for more than 12 hours with the intent to interfere with a governmental function, commit a sexual offense, accomplish a felony, terrorize the
   victim or a third person, or physically injure the victim; or
3. in which the victim dies during the abduction or before he is returned to safety.

SECOND DEGREE

Kidnapping in the second degree is an
abduction of another person.

Question 20

RAPE

Rape is the act of unlawful sexual intercourse by a male person with a female person without her consent.

Answer 20

FIRST DEGREE

First-degree rape is sexual intercourse by forcible compulsion, with one who is incapable of consenting because of being physically helpless, or who is less than 11 years old or less than 13 years old where the perpetrator is more than 18 years old.

SECOND DEGREE

Second-degree rape consists of a person 18 years or older having intercourse with a person under 15 years of age, or incapable of consenting due to mental disability or incapacitation.

THIRD DEGREE

Third-degree rape is sexual intercourse with someone incapable of consenting or who does not consent for some other reason than being under 17 years old or mental incapacity, or intercourse with someone less than 17 years old where the perpetrator is over 21 years old.

Question 21

LARCENY

Larceny, embezzlement, false pretenses, bad checks, credit card fraud, larceny by trick, and extortion are separate offenses.

Answer 21

N.Y. Penal Law Section 155.05 includes all these activities as “larceny.” It includes the intent to deprive or to appropriate the property to the perpetrator’s use or a third person’s use.
It includes any wrongful taking, obtaining, or withholding of the property, and specifically includes common law larceny, larceny by trick, embezzlement, false pretenses, acquiring lost property, issuing bad checks, false promises, and extortion.

One commits larceny by exercising control over property of another which he knows to have been lost, mislaid, or delivered under a mistake, without taking reasonable measures to return
the property to the owner.

A person is guilty of issuing a bad check if he either utters a check or passes another’s check that is not postdated, knowing he has insufficient funds to cover the check and believing or intending the payment will be refused, and payment is refused.

Larceny by false pretense is the obtaining of property by false promise when, pursuant to a scheme to defraud, a person obtains property of another by an express or implied representation that he or a third person will in the future engage in particular conduct, which
he does not intend to do or does not believe the third person intends to do.

Property is obtained by extortion when a person compels or induces another to deliver the property to that person or a third party under fear of suffering an unlawful injury to person, property or reputation.

Petit larceny is defined as larceny of property with a value of $1,000 or less.

Grand larceny is defined as larceny of property in excess of $1,000 or property that falls into specific categories or removed from the person regardless of value.

Question 22

ROBBERY

Robbery was a common law felony consisting of all the elements of larceny, plus two additional elements:

1. the taking must be from the person or presence of the victim (meaning an area within his control); and
2. the taking must be accomplished either:
   a. by force or violence; or
   b. by intimidation or the threat of violence.

Answer 22

New York defines robbery as a larceny in which the perpetrator uses or threatens the immediate use of physical force to prevent or overcome resistance to the taking of the property or to compel the owner or another person to engage in conduct to further the larceny.

First-degree robbery is when the defendant or another participant forcibly steals property and:

1. causes serious physical injury to any person who is not a participant in the crime;
2. is armed with a deadly weapon;
3. uses or threatens the immediate use of a dangerous instrument; or
4. displays what appears to be a firearm.

Second-degree robbery is when the defendant forcibly steals property and:

1. is aided by another person actually present at the crime; or
2. he or another participant causes physical injury to a nonparticipant or displays what appears to be a firearm.

Question 23

RECEIVING STOLEN PROPERTY

Receiving stolen property is when a person receives stolen property known to be stolen with the intent to permanently deprive the owner.

Answer 23

Criminal possession of stolen property includes the same activities defined as receiving stolen property under the MBE.

Question 24

FORGERY

Forgery is a fraudulent making of a false writing with apparent legal significance with the intent to make wrongful use of the forged document.

Answer 24

Forgery in the first degree occurs when one falsely makes, completes, or alters a written instrument that is or purports to be part of an issue of money, stamps, stocks, bonds, or securities, with intent to defraud.

Forgery in the second degree occurs when one falsely makes, completes, or alters a written instrument which is a deed, will, codicil, contract, credit card, public record, written instrument created by the government, or prescription, or part of an issue of tokens, public transportation transfers, certificates, or other articles manufactured and designed for use as symbols of value usable in place of money for the purchase of property or services, with intent to defraud.

Forgery in the third degree occurs when one falsely makes, completes, or alters a written instrument, with intent to defraud.

Question 25

BURGLARY

The common law crime of burglary consisted of the breaking and entering of the dwelling house of another in the nighttime with the intent to commit a felony therein.

Answer 25

N.Y. Penal Law Section 140.20 defines burglary as knowingly entering or remaining in a building with the intent to commit a crime therein. New York follows the modern trend that expands burglary to any entering (not only at night) and does not limit it to the entering into the dwelling house; the entry into any building will qualify as burglary.

A person commits a first-degree burglary when he knowingly enters or remains unlawfully in a dwelling with intent to commit a crime therein and, in effecting entry or while in the dwelling or immediate flight therefrom, he or another participant:

1. is armed with explosives or a deadly weapon;
2. causes injury to a nonparticipant;
3. uses or threatens the immediate use of a dangerous instrument; or
4. displays what appears to be a firearm.

A person commits a second-degree burglary when he knowingly enters or remains unlawfully in a building with the intent to commit a crime therein, and:

1. is armed with explosives or a deadly weapon;
2. causes injury to a nonparticipant;
3. uses or threatens the immediate use of a dangerous instrument;
4. displays what appears to be a firearm; or
5. the building is a dwelling.

A person commits a third-degree burglary when he knowingly enters or remains unlawfully in a building with the intent to commit a crime therein.

Question 26

CRIMINAL TRESPASS

Answer 26

A person is guilty of criminal trespass in the first degree when he knowingly enters or unlawfully remains in a building possessing, or knowing that his partner possesses, an explosive, deadly
weapon, or firearm plus ammunition.

A person is guilty of criminal trespass
in the second degree when he knowingly enters or remains unlawfully in a
dwelling; or if he is a person required
to register as a sex offender and enters
or remains in a school building knowing
that the victim of the offense attends or
formerly attended the school.

A person is guilty of criminal trespass in the third degree when he knowingly enters or remains unlawfully in a building or upon real property that is fenced in or otherwise designed to exclude intruders, or in an elementary or secondary school, children’s overnight camp, or public housing project in violation of posted rules or of a communicated request of an authority to leave the premises, or where the property consists of a right-of-way or yard of a railroad or rapid transit railroad which has been designated and conspicuously posted as a no-trespass railroad zone.

Question 27

CRIMINAL MISCHIEF

Answer 27

A person is guilty of criminal mischief if he intentionally damages another’s property when he has no right to do so and no reasonable ground to believe he has such a right.

Criminal mischief in the first degree involves damage to another’s property by means of an explosive.

Question 28

CRIMINAL TAMPERING

Answer 28

A person is guilty of first-degree criminal tampering when, with intent to cause a substantial interruption or impairment of a service to the public, he damages or tampers with property of a utility and thereby causes substantial interruption.

Second-degree criminal tampering is committed when, having no right to do so or any reasonable ground to believe he has a right, a defendant tampers with or makes connection with property of a utility.

Third-degree criminal tampering is tampering with the property of another with intent to cause substantial inconvenience to him or to a third person.

Question 29

ARSON

At common law, the crime of arson consisted of the malicious burning of the dwelling of another.

Answer 29

N.Y. Penal Law Article 150 defines arson as the damaging of another’s property by fire or explosion. New York law does require an intentional burning. The level of intent required
depends on the degree of the crime.

FIRST DEGREE

A person is guilty of first-degree arson when he intentionally damages a building or motor vehicle by causing an explosion or a fire and when such explosion or fire is caused by an incendiary device propelled, thrown, or placed inside or near such building or motor vehicle; when such explosion or fire is caused by an explosive; or when such explosion or fire causes serious physical injury to another person other than a participant, or the explosion or fire was caused with the expectation or receipt of financial advantage by the actor; and the defendant knows of the presence or the reasonable possibility of the presence of a nonparticipant in the building or vehicle.

A person commits second-degree arson when he intentionally damages a building or motor vehicle by starting a fire; a nonparticipant is in the building or motor vehicle at the time; and the defendant knows of the presence or reasonable possibility of his presence therein.

A person commits third-degree arson when he intentionally damages a building or motor vehicle by starting a fire or causing an explosion.

It is an affirmative defense that the defendant alone had a possessory or proprietary interest therein, or that all others interested had consented to his conduct, that his sole intent was to destroy or damage the property for a lawful purpose, and that he had no reasonable ground to believe that his conduct might endanger the life, safety, or property of another.

A person commits fourth-degree arson when he recklessly damages a building or motor vehicle by intentionally starting a fire or causing an explosion. It is an affirmative defense that no other person had a possessory or proprietary interest therein.

A person is guilty of fifth-degree arson when he intentionally damages property of another without consent of the owner by intentionally starting a fire or causing an explosion.

Question 30

CONTROLLED SUBSTANCES

Answer 30

A person is guilty of possession of a controlled substance in the first degree when he knowingly possesses eight ounces or more of a narcotic drug or more than 5,760 mg of methadone.

A person is guilty of possession of a controlled substance in the second degree when he knowingly possesses four ounces or more of a narcotic drug or methamphetamine, 10 g of a stimulant, 25 mg or more of LSD, 25 mg of a
hallucinogen, 25 g of a hallucinogenic
substance, or 2,880 mg of methadone.

A person is guilty of criminal sale of a controlled substance in the first degree when he knowingly and unlawfully sells two or more ounces of a narcotic drug.

A person is guilty of criminal sale of a controlled substance in the second degree when he knowingly and unlawfully sells a half ounce or more of a narcotic drug or methamphetamine.

Question 31

EAVESDROPPING

Answer 31

A person is guilty of eavesdropping when he unlawfully engages in wiretapping, mechanical overhearing of a conversation, or intercepting or accessing of an electronic communication.

Question 32

OFFENSES AGAINST CHILDREN & THE DISABLED

Answer 32

A parent or guardian of a child less than 14 years old is guilty of abandonment of the child when he deserts the child in any place with the intent to wholly abandon the child.

A person is guilty of endangering the welfare of a child when:

1. he knowingly acts in a manner likely to be injurious to the physical, mental, or moral welfare of a child less than 17 years old or directs or authorizes such child to engage in an occupation involving a substantial risk of danger to his life or health; or
2. being a parent, guardian, or other person legally charged with the care or custody of a child less than 18 years old, he fails or refuses to exercise reasonable diligence in the control of such child to prevent him from becoming an “abused child,” a “neglected child,” a “juvenile delinquent,” or a “person in need of supervision.”

A person is guilty of endangering the welfare of an incompetent or physically disabled person when he knowingly acts in a manner likely to be injurious to the physical, mental, or moral welfare of a person who is unable to care for himself or herself because of physical disability, mental disease, or defect.

Question 33

CRIMINAL POSSESSION OF A WEAPON

Answer 33

A person is guilty of criminal possession of a weapon in the first degree when such person possesses any explosive substance with intent to use the same unlawfully against the person or property of another; or possesses 10 or more firearms.

A person is guilty of criminal possession of a weapon in the second degree when he possesses a machine gun, loaded firearm, or disguised gun, with intent to use the weapon unlawfully against another, or such person possesses five or more firearms.

Question 34

CONSPIRACY

The majority rule is that an overt act in furtherance of the conspiracy (by any one of the conspirators) is required for conspiracy liability.

This prevailing view reflects a change from the traditional common law rule, which had no such requirement (the agreement itself constituted the crime).

Where a conspirator does not have the sufficient mens rea for liability as an accomplice, the Pinkerton doctrine provides that each conspirator is liable for the crimes of all the other co-conspirators where the crimes were both:

1. a foreseeable outgrowth of the conspiracy; and
2. committed in furtherance of the conspiratorial goal.

Answer 34

A conspiracy is formed only when one conspirator has committed an overt act in furtherance of the conspiracy.

It is not a defense to conspiracy that one or more of the defendant’s coconspirators could not be found guilty based on the co conspirator’s criminal irresponsibility, legal incapacity or exemption, unawareness of the criminal nature of conspiracy or underlying conduct, or other factors precluding the mental state required for the crime.

There are six degrees of criminal conspiracy in New York, based upon the seriousness of the underlying offense and the age of each co-conspirator:

1. First-Degree: conduct to be performed is a class A felony, defendant is over 18, and coconspirator is under 16.
2. Second-Degree: conduct to be performed is a class A felony.
3. Third-Degree: conduct to be performed is a class B or class C felony, defendant is over 18, and co-conspirator is under 16.
4. Fourth-Degree: conduct to be performed is (a) a class B or class C felony;
   (b) a felony where defendant is over 18 and co conspirator is under 16; or
   (c) a felony of money laundering in the third degree.
5. Fifth-Degree: conduct to be performed is (a) a felony; or (b) a crime where defendant is over 18 and co-conspirator is under 16.
6. Sixth-Degree: conduct to be performed is a crime.

New York has rejected the Pinkerton
doctrine.

Question 35

SOLICITATION

Solicitation merges with the target felony upon completion of crime.

Answer 35

A person is not guilty of criminal solicitation when his solicitation is conduct that is necessarily incidental to the commission of the crime solicited. The person will instead be found guilty of the separate crime solicited. New York has five degrees of solicitation, based upon the seriousness of the underlying offense and the age of each co-conspirator:

1. First-Degree: conduct solicited is a class A felony, defendant is over 18, and co-conspirator is under 16.
2. Second-Degree: conduct solicited is a class A felony.
3. Third-Degree: conduct solicited is a felony, defendant is over 18, and co-conspirator is under 16.
4. Fourth-Degree: conduct solicited is (a) a felony; or (b) a crime where defendant is over 18 and co-conspirator is under 16.
5. Fifth-Degree: conduct solicited is a crime. Solicitation is a separate offense from the underlying crime.

Question 36

CRIMINAL FACILITATION

Answer 36

Criminal facilitation is a form of accessory liability in which the defendant knows he is aiding the commission of a crime but with no specific intention to bring about, participate in, or profit from the crime.

A party is guilty of criminal facilitation when:

1. he believes it is probable that he is rendering aid;
2. he renders aid to one who intends to commit a crime;
3. he provides that person with the means or opportunity to commit the crime;
4. his acts do in fact render aid; and
5. the crime committed is a felony.

The defendant may be convicted of criminal facilitation even when the principal is tried and acquitted or has not or cannot be tried. The defendant may not be convicted solely on the principal’s testimony; additional corroborating evidence is required.

Question 37

RENUNCIATION

Withdrawal may be a valid defense where an accomplice makes a timely repudiation and takes sufficient steps to neutralize any assistance or material he has provided before the commission of the crime.

Abandonment was not a defense to attempt at common law. Under the Model Penal Code, a voluntary and complete abandonment is an affirmative defense.

Withdrawal is not a defense to solicitation.

At common law, withdrawal was not a defense to conspiracy.

Under the Model Penal Code, withdrawal is an affirmative defense to conspiracy if, under circumstances manifesting complete and voluntary renunciation of a criminal purpose, the defendant thwarts the crime.

Answer 37

In a prosecution for a crime other than attempt in which the defendant is charged as an accessory, it is an affirmative defense that the defendant voluntarily and completely renounced his participation prior to commission, and made a substantial effort to prevent the commission of the crime.

In a prosecution for criminal facilitation, it is an affirmative defense that the defendant made a substantial effort to prevent the commission of the crime prior to its commission.

In a prosecution for attempt, it is an affirmative defense that, under circumstances manifesting a voluntary and complete renunciation of his criminal purpose, the defendant avoided the commission of the crime attempted by abandoning his criminal effort and, if mere abandonment was insufficient to accomplish such avoidance, by taking further and affirmative steps which prevented the commission thereof.

In a prosecution for criminal solicitation or conspiracy for a crime not
actually committed, it is an affirmative
defense that the defendant voluntarily
and completely renounced the crime
and prevented its commission.
“Voluntary and complete” renunciation
does not include renunciation because the
defendant believes he is at an increased
risk of being detected or apprehended or
that circumstances have made the crime
more difficult, or a decision to postpone
the conduct or alter the objective.

Question 38

DEFENSES GENERALLY

Answer 38

An affirmative defense must be proved 
by the defendant by a preponderance 
of the evidence. All other defenses, 
once raised by the defendant, must be 
disproved by the prosecution beyond 
a reasonable doubt.
Other defenses include “ordinary” 
defenses, whereby the defendant attempts to negate an allegation rather 
than establish a positive fact. Ordinary 
defenses include (but are not limited 
to) infancy, justification, and the defense of mistaken belief founded upon 
an official statement of law.

Question 39

INSANITY DEFENSE

The MBE sets forth multiple tests to 
determine if someone is legally insane 
and therefore not liable for his criminal 
act. These tests are:
1. the M’Naghten test; 
2. the irresistible impulse test; 
3. the Durham (or New Hampshire) 
rule; and 
4. the Model Penal Code (“substantial capacity”) test.

Kaplan (2014-04-04). New York / New Jersey Combo Bar Review eBook (Page 709). . Kindle Edition.

Answer 39

New York is a M’Naghten test jurisdiction. It is an affirmative defense that,
when the defendant engaged in the
proscribed conduct, he lacked criminal
responsibility by reason of mental disease or defect, meaning that he lacked
substantial capacity to appreciate the
nature and consequences of the conduct or that such conduct was wrong.

Kaplan (2014-04-04). New York / New Jersey Combo Bar Review eBook (Page 709). . Kindle Edition.

Question 40

DIMINISHED CAPACITY

A defense of diminished capacity claims
that, as a result of a mental defect, the
defendant did not have a state of mind
that is an element of the offense.

Answer 40

New York does not recognize the defense
of diminished capacity; however, evidence
of some forms of diminished capacity
(e.g., intoxication) may be introduced to
negate an element of the offense charged.

Question 41

DURESS

The defense of duress justifies 
criminal conduct where the defendant 
reasonably believed that the only 
way to avoid unlawful threats of great 
bodily harm or imminent death was to 
engage in unlawful conduct.

Duress is not an available defense
to murder.

Answer 41

The affirmative defense of duress in 
New York follows the Model Penal 
Code standard, which does not require 
that the threat to the defendant be of 
death or great bodily harm. 
N.Y. Penal Law Section 40.00 allows 
the duress defense where the threat 
is that of imminent unlawful physical 
force that a person of reasonable firmness would be unable to resist.
The defense is not available if the defendant intentionally or recklessly put herself 
in a situation where it was probable that 
she would be subjected to duress.

Duress is available as a defense to all
crimes, including homicide.

Question 42

SELF-DEFENSE

If a person has a reasonable belief that he is in imminent danger of 
unlawful bodily harm, he may use that 
amount of force in self-defense that is 
reasonably necessary to prevent such 
harm, unless he is the initial aggressor. The force must be proportional to 
the initial attack and the initial attack 
must be wrongful. Deadly force is 
that which threatens death or serious 
bodily harm. Deadly force can only be 
used in self-defense in response to an 
attack that threatens death or serious 
bodily injury. Non-deadly force is that 
which threatens only bodily harm.

Kaplan (2014-04-04). New York / New Jersey Combo Bar Review eBook (Page 710). . Kindle Edition.

Answer 42

N.Y. Penal Law Section 35.15 allows 
the use of force when a person reasonably believes that someone is about to 
use imminent unlawful physical force 
against him or another person. 
A person is not justified in using 
physical force:
1. when the assailant’s conduct was provoked by the actor himself with intent 
to cause physical injury to another;
2. the actor was the initial aggressor; or 
3. the force involved is the product 
of a combat by agreement not 
specifically authorized by law.

New York law requires retreat, if it can
be done safely, before deadly force can
be used. There are exceptions to the
retreat doctrine: deadly force can be
used to stop a kidnapping, forcible rape,
forcible sodomy, or robbery, even where
the perpetrator is not threatening deadly
force; deadly force can be used where
an intruder is committing a burglary inside a dwelling; and someone in control
of an occupied building may use deadly
force to prevent an arson or burglary.
New York law does not differentiate between self-defense and defense of others.

Question 43

INFANCY

At common law, a complete defense 
due to incapacity existed for children 
under seven years of age. Children 
between the ages of seven and 14 were 
rebuttably presumed to lack criminal capacity. Children over age 14 were held 
responsible as adults.

Answer 43

Generally, a person under 16 may 
raise the defense of infancy. However, 
that defense cannot be raised by persons aged 13, 14, or 15 when charged 
with murder in the second degree 
or by persons aged 14 or 15 when 
charged with violent felonies.
With respect to these offenses, an 
individual under the age of 16 may be 
considered criminally responsible and 
the presumption is that he will be tried 
in the adult court system as a juvenile 
offender. These cases, however, may 
be removed to family court and the 
child would then be tried as a juvenile 
delinquent on these “designated felonies” which carry alternate sentencing 
guidelines under the Family Court Act.

An individual 16 or older but younger
than 19 with no prior felony conviction
may be sentenced as a youthful offender in the criminal courts. Thus, the
individual’s records will not be treated as
criminal convictions for purposes of public employment or licensed professions.

Question 44

NECESSITY DEFENSE

Reasonable force is justified to avoid imminent injury resulting from natural forces,
or where an individual reasonably believes that his criminal conduct is necessary to avoid a greater harm than would
result from compliance with the law.

Answer 44

N.Y. Penal Law Section 35.05 refers to

the necessity defense as justification.

Question 45

USE OF FORCE TO RESIST UNLAWFUL ARREST

A defendant may use reasonable nondeadly force to resist an unlawful arrest.

Answer 45

N.Y. Penal Law Section 35.27 does
not allow the use of force to resist any
arrest when it is reasonably apparent
that the person attempting the arrest is
a police officer or peace officer.

Question 46

ENTRAPMENT

The defense of entrapment exists 
where the criminal act is the product 
of creative activity originating with 
law enforcement officials, and the 
defendant is in no way predisposed to 
commit the crime.

Answer 46

Entrapment is an affirmative defense 
that the defendant engaged in the proscribed conduct because he was actively induced or encouraged to do so 
by a public servant seeking to obtain 
evidence against him for purpose of 
criminal prosecution, and the methods 
used to obtain such evidence were 
such as to create a substantial risk 
that the offense would be committed 
by a person not otherwise disposed to 
commit it. Conduct merely affording a 
person an opportunity to commit an offense does not constitute entrapment.

If the defendant raises the defense of
entrapment, the prosecution may present evidence of the defendant’s predisposition to commit crimes on rebuttal.

Generally, evidence of uncharged 
crimes or prior bad acts may not be 
admitted to demonstrate the defendant’s criminal propensities. However, 
such evidence is admissible to rebut 
an entrapment defense.

Question 47

MISTAKE OF FACT

Mistake of fact is a defense where
it negates the existence of a mental
state required to establish a material
element of the crime.

Answer 47

N.Y. Penal Law Section 15.20 expands the definition to those situations 
where the statute specifically allows 
for the mistake as a defense or where 
the mistake would support the defense 
of justification under Section 35.05.

Question 48

MISTAKE OF LAW

Generally, where the defendant is 
unaware that his acts are criminally 
proscribed, such ignorance of the law 
is no defense. 
Mistake of law is a valid defense 
where a statute proscribing the defendant’s conduct has not been reasonably made available, or where the 
defendant has reasonably relied on a 
statute or judicial decision that is later 
overruled or declared unconstitutional.
Mistake of law is also a valid defense 
where a defendant relies in good faith 
upon an erroneous official statement 
of law contained in an administrative 
order or in an official interpretation by 
a public officer or department.
Where some element of a crime involves knowledge or awareness by the 
defendant, a mistake of law as to this 
element may provide a valid defense.

Answer 48

N.Y. Penal Law Section 15.20 includes
an additional exception to the common
law prohibition against a mistake of
law defense where there is an administrative order or grant of permission.

Question 49

CORPORATE CRIMINAL LIABILITY

Under modern statutes, unlike at common law, a corporation can be held
criminally liable for strict liability crimes
committed by an agent of the corporation acting on its behalf within the
scope of employment.
Under the “superior agent” rule, corporate liability is limited to situations in
which the criminal conduct is performed or participated in by corporate
agents of such authority as to imply
that their actions reflect the policy of
the corporate body.

Answer 49

Under N.Y. Penal Law Section 20.20,
a corporation can be liable for the omission to perform a specific duty imposed
upon it by law. A corporation can also
be found criminally liable if the conduct
was authorized, solicited, requested,
commanded, or recklessly tolerated by
the board of directors or high managerial agent acting within the scope of
employment. Criminal liability may also
attach to the conduct of an agent acting
within the scope of his employment
when the offense is a misdemeanor or
violation, is clearly defined by statute
as intended to impose corporate criminal liability, or is any offense under New
York’s environmental conservation law.