Criminal Law Flashcards
Felony
Death or imprisonment >1 year
Misdemeanor
All other crimes not to exceed 1 year in prison
Merger: CL
if a person engaged in conduct constituting both a felony and a misdemeanor, she could be convicted only of the felony. The misdemeanor merged into the felony.
Merger: Majority Rule
Only for attempt + solicitation
Merger: NY Rule
Only for attempt (NOT solicitation)
Defenses: NY
True defenses: prosecution must disprove each element BRD
Affirmative defenses: D must prove by POE
Possession: Act
Long enough for D to have opportunity to terminate possession. Constructive possession = located within area of D’s dominion and control
Possession: Mens Rea
: absent a statutory state of mind requirement, D must only be aware of his possession, not aware of its illegality. Many states add “knowingly” to possession crimes, under which D must know the nature of what he possessed, except that D may not consciously avoid learning true nature.
Specific Intent Crimes
“Andy’s Friends Love Eating Falafel Regularly from Bob’s Special Cart (on 11th) Avenue.”
- Assault
- First Degree Murder
- Larceny
- Embezzlement
- False pretenses
- Robbery
- Forgery
- Burglary
- Solicitation
- Conspiracy
- Attempt
Voluntary Intoxication
Only a defense to specific intent crimes
Unreasonable mistake of fact
Only a defense to specific intent crimes
Malice Crimes
D acts intentionally or with reckless disregard for an obvious or known risk.
- Murder
- Arson
General Intent crimes
“Best Friends Forever, K?”
- Battery
- Forcible rape
- False imprisonment
- Kidnapping
Strict liability crimes
Public welfare offenses (selling alcohol to minor, selling contaminated food); statutory rape; bigamy
New York Mental State: Intent
D’s conscious desire is to accomplish a particular result
New York Mental State: Knowledge
D is aware of what he is doing, and aware that it is practically certain his conduct will cause a certain result
New York Mental State: Recklessness
D is AWARE of a substantial and unjustifiable risk and consciously disregards that risk (satisfies “wanton” requirement)
New York Mental State: Negligence
D should have been aware of a substantial and unjustifiable risk
Transferred Intent
Does not apply to attempts
Battery (CL)
Unlawful application of force to another, resulting in either bodily injury or offensive touching (general intent)
Aggravated Battery (CL)
Deadly weapon, serious bodily harm, battery of child/woman/PO
Assault (CL)
Attempted battery; or the intentional creation other than by mere words of a reasonable fear in the mind of the victim of an imminent bodily harm. Specific intent.
Aggravated Assault
Deadly weapon; intent to rape or maim
NY: Third Degree Assault
Intentionally causing non-serious physical injury
NY: Second Degree Assault
Intentionally causing serious physical injury
NY: First Degree Assault
Intentionally causing serious physical injury + weapon
NY: Menacing
Common law assault
NY: Battery
Not a separate crime
Murder (CL)
Unlawful killing of a human being with malice aforethought. (1) Intent to kill; (2) intent to inflict serious bodily injury; (3) depraved heart murder; (4) intentional commission of a dangerous felony.
NY: First Degree Murder
Intent to kill; D>18, + aggravating factors: V is law enforcement officer in official duties; D committed murder for hire; felony murder where V was intentionally killed; killing witness; killing more than 1 V in same transaction; killing by torture
NY: Second Degree Murder
(1) Intentional killing that does not qualify for first degree murder;
(2) Highly reckless, depraved heart murder, or conduct creating a grave risk of death;
(3) Felony murder, where victim is not a co-felon and is killed unintentionally
Felony Murder: CL
Any killing caused during the commission of, or attempt to commit, a dangerous felony (burglary, arson, rape, robbery, kidnapping, mayhem).
Felony Murder: Proximate Cause Theory
Felons are liable for deaths of innocent victims caused by someone other than the co-felon.
Felony Murder: Redline Theory
No liability if victim is a co-felon
Felony Murder: Agency Theory
The killing must be committed by a felon or his “agent” (i.e., accomplice), with limited exceptions in cases in which the victim was used as a shield or otherwise forced by the felon to occupy a dangerous place.
NY: Felony Murder
Any killing caused during the commission of, or attempt to commit BRAKES: burglary, robbery, arson, kidnapping, escape, sexual assault. (First degree if V intentionally killed by co-felon, felon; second degree if killing was unintentional)
NY: Felony Murder and Proximate Cause
Vicarious liability applies as long as a co-felon is proximate cause of death
NY: Felony Murder & Non-Slayer Defense
Affirmative defense that:
(1) D not killer; (2) D had no deadly weapon; (3) D had no reason to believe co-felons had deadly weapons; (4) D had no reason to believe his co-felons would do anything likely to result in death
Voluntary Manslaughter (CL)
Intentional killing committed in the heat of passion after adequate provocation
Adequate Provocation
(1) Objectively adequate provocation, as serious assault, witnessing adultery; (2) D was actually provoked; (3) A reasonable person would not yet have cooled off; (4) D did not actually cool off
Imperfect Self Defense
Minority Rule: An unreasonable belief in the need to use deadly force in self-defense will mitigate murder to manslaughter in these jurisdictions (contrast with reasonable self-defense – complete defense to murder)
Involuntary Manslaughter (CL)
Criminal negligence (recklessness under MPC) or during a crime not qualifying for felony murder
NY: First Degree Manslaughter
(1) Intent to cause serious physical injury; Intentional killing with EED defense; abortional act of fetus 24+ weeks and death of mother
NY: EED Defense
Affirmative defense mitigating second degree murder to first degree manslaughter if D can show the killing was committed under the influence of a reasonable and extreme emotional disturbance
NY: Second Degree Manslaughter
Recklessness causes death. (Also abortional act causing death of mother unless justified by statute or assisting suicide w/o duress, deception)
NY: Criminally Negligent Homicide
D should have been aware of substantial and unjustifiable risk of death
NY: Second Degree Vehicle Manslaughter
Causing death while driving drunk
NY: First Degree Vehicular Manslaughter
Causing death while driving drunk, PLUS (1) BAC >.18 OR (2) causing death of more than 1 person
NY: Aggravated Homicide
Victim of homicide is PO killed in line of duty
NY: Aggravated urder
D > 18 causes death of child <14 in cruel and wanton manner
NY: Aggravated Vehicular Homicide
First degree vehicular homicide + reckless driving
False Imprisonment (CL)
Unlawful confinement of a person without consent
NY: Second Degree Unlawful Imprisonment
Unlawfully restraining someone without their consent and w/ knowledge restriction is unlawful
NY: First Degree Unlawful Imprisonment
Second degree + risk of serious physical injury
Kidnapping (CL)
False imprisonment that involves either moving V or concealing V in secret place
Aggravated Kidnapping (CL)
ransom; purpose of committing other crimes; offensive purposes; child-stealing (NOT long period of time)
NY: Second Degree Kidnapping
Abducting someone
NY: First Degree Kidnapping
Abducting someone + ransom OR restraint for 12+ hours with intent to rape, injure, or rob V; OR death of victim
NY: Relationship b/w kidnapping and homicide
Accidental killing –> second degree murder (felony theory); intentional killing –> first degree murder (felony theory)
Affirmative Defense to Kidnapping (NY)
Where victim is a relative and D’s sole purpose was to assume control of victim. Becomes separate crime → Custodial Interference
NY: Custodial Interference (misdemeanor)
–– If a relative of a person under age 16 or an incompetent takes that person from her lawful custodian with the intent to wrongfully hold that person permanently/protracted period.
NY: Custodial Interference (felony)
If a person under age 16 or incompetent is exposed to a risk that endangers her safety or materially impairs her health; or with the intent to permanently remove the victim from the state, the defendant does remove victim from the state.
Forcible Rape (CL)
sexual intercourse without the victim’s consent accomplished by force, OR by threat of force, OR where the victim is unconscious. CL/MPC: no marital rape
Statutory Rape (CL)
sexual intercourse with someone under the age of consent
Mental state:
Majority: STRICT LIABILITY
MPC / Minority: a reasonable mistake of age is a defense
NY age of consent = 17
NY: First Degree Rape
Sexual intercourse with person:
- Less than 11;
- Physically helpless;
- By forcible compulsion; or
- <13, D 18+.
NY: Second Degree Rape
sexual intercourse 18+ with a person <15.
NY: Third Degree Rape
sexual intercourse with a person:
- Incapable of consenting for reason other than being <17;
- Sexual intercourse without consent, for reason other than incapacity to consent (Date Rape, where there is consent leading up to the sexual act but at time of act, lack of consent clearly expressed).
Larceny (CL)
- The trespassory taking and carrying away the tangible personal property of another with the intent to permanently retain the property
Larceny: continuing trespass
- Continuing Trespass: if D wrongfully takes property, but without the intent to steal, he will NOT be guilty of larceny. But if D later forms the intent to steal, the initial trespassory taking is considered to have “continued” and he WILL be guilty of larceny. If the taking was not trespassory (e.g., under a claim of right) then there is no continuing trespass.
Traditionally NOT subjects of larceny
wrongfully obtaining services; realty/fixtures
Modern Larceny Statutes
trend to expand definition of larceny to include services, documents, intangibles, and joint property.
Embezzlement (CL)
Fraudulent conversion of personal property of another by a person already in lawful possession of that property, with the intent to defraud
False Pretenses (CL)
- Obtaining title to the personal property of another by an intentional false statement, with the intent to defraud.
Larceny by Trick (CL)
- If D obtains only custody (not title) as a result of the intentional false statement, the crime is larceny by trick, not false pretenses.
NY: Larceny
Any crime that would be larceny, embezzlement, false pretenses or larceny by trick at common law is considered LARCENY in NY.
- 1st Degree: more than $1million
- 2nd Degree: more than $50,000
- 3rd Degree: more than $3000
- 4th Degree: more than $1000
- Petit Larceny: lesser amounts
Robbery (CL)
Larceny from another’s person/presence by force/threat of immediate injury to victim/family with intent to permanently deprive him of it.
NY: Third Degree Robbery
Forcible stealing
NY: Second Degree Robbery
Forcible stealing, + D aided by someone actually present; V is injured; or car is stolen
NY: First Degree Robbery
Forcible stealing, + V is seriously injured, or D uses and displays a firearm (but second degree if D can prove gun was unloaded/inoperable)
Forgery (CL)
Making or altering a writing (w/ legal significance) so that it is false (not merely inaccurate).
Receipt of Stolen Property (CL)
receiving possession and control of “stolen” personal property, known to have been obtained criminally, by another person, with intent to permanently deprive the owner of his interest in it. Property must be stolen at the time D receives it.
IF THE POLICE HAVE ALREADY RECOVERED AND USE WITH OWNER’S PERMISSION, it is not stolen and D cannot be convicted of receipt of stolen property (only attempt). Same in NY.
Burglary (CL)
breaking and entering the dwelling of another at night with the intent to commit a felony inside
NY: Third Degree Burglary
Entering or remaining unlawfully in a building with the intent to commit a crime inside
NY: Second Degree Burglary
third degree burglary, plus one of the following:
- building is a dwelling
- a non-participant is injured
- D carries a weapon
NY: First Degree Burglary
D knows that he is burglarizing a dwelling, plus one of the following:
- a non-participant is injured
- D carries a weapon
Arson (CL)
Malicious burning of a dwelling of another, resulting in material wasting (e.g., charring) of the building itself. MOST STATES have expanded dwelling to be any building, and most states allow arson prosecution if you burn your own building
NY: 4th Degree Arson
Reckless burning of a building
NY: 3rd Degree Arson
Intentional burning of a building. It is arson to burn down a building of one’s own for insurance proceeds.
NY: 2nd Degree Arson
Third degree arson + knew or should have known someone inside
NY: 1st Degree Arson
2nd degree + explosive / incendiary device
Accomplice Liability
Act: aids or encourages the principal
Mens Rea: Intent that the crime be committed
NY: Accomplice Liability
the accomplice need not specifically intend that the crime be committed. It is enough if the accomplice specifically intends to aid the principal’s conduct, and otherwise has the mental state required for the principal’s crime. This means it is possible in NY to be an accomplice to negligence or recklessness crime.
Accomplice Liability: Withdrawal
i. Encourager: an accomplice who only “encouraged” the principal may withdraw simply by discouraging the crime before it is committed
Aider: an accomplice who actually helped the principal must either neutralize the assistance or prevent the crime from happening, including notifying authorities
Accomplice Liability: NY Renunciation
- Accomplice must make a substantial effort to prevent the commission of the crime
- Renunciation is an affirmative defense (i.e. burden is on D)
Accessory After the Fact
D must help a principal who has committed a felony, with knowledge that the crime has ben committed, and intent to help the principal avoid arrest/conviction.
NY Approach to Conspiracy
Unilateral Approach
Wharton Rule
No Pinkerton Liability
Attempt: CL and NY
Conduct that gets very close to the commission of the crime (sometimes called the “dangerous proximity” test)
Attempt: Majority / MPC
Substantial step strongly corroborating criminal purpose
Attempt: Mental state
always requires specific intent. You cannot attempt unintentional crimes. You cannot transfer your attempt.
Factual impossibility
Exists where impossible to complete crime b/c of physical or factual condition unknown to D. This is never a defense to attempt.
Legal Impossibility
a. Exists where it is impossible to complete the crime because of some legal circumstances or status that prevents the underlying crime from taking place. This is a defense to attempt in most jurs/at CL but NOT in NY
M’Naghten Test
D did not know his act was wrong, or did not understand the nature of his act
MPC Test
D lacked substantial capacity to appreciate the criminality of his conduct, or conform his conduct with the law
Insanity in NY
D must show he lacked substantial capacity to understand the nature of his act or appreciate the wrongfulness of his conduct
NY: Voluntary Intoxication
Can be defense to INTENT and KNOWLEDGE crimes but not recklessness, negligence, or strict liability
Infancy: CL
Rule of 7s.
- D > 7 no prosecution
- D 7–14 rebuttable presumption against
- D 14+ prosecution OK
Infancy: NY
D <13 - only juvenile delinquency
D 13 = allowed for second degree murder
D 14-15: serious crimes against person/property
D 16+ any crimes
Reasonable mistake of fact
Defense to specific intent, malice, or general intent crimes
Unreasonable mistake of fact
Only to specific intent crimes
NY: Unreasonable mistake of fact
Defense to purpose, knowledge, recklessness crimes (not negligence, strict liability)
NY: Reasonable mistake of fact
Negligence + purpose/knowledge/reckleness
Mistake of Law
NOT a defense unless statute makes knowledge of the LAW as an element of the crime
