Criminal Law Flashcards
Larceny
Stealing
Under common law, Larceny is the taking and carrying away of the tangible personal property of another by trespass with intent to permanently deprive the other of the property.
Elements:
i.- trespassory/ wrongful taking: requires that the defendant obtain control of the property without consent or permission from a person in possession of the property.
ii.- carrying away: any slight movement
iii.-tangible personal property of value: under common law, larceny only applicable to personal property capable of possession and with some value. No: realty, fixtures, services or intangible property.
NY Distinction: the term Property includes money, personal property, real property, computer data, computer programs, evidence of debt, anything else of value, including gas, steam, water, or electricity.
iv.- property of another: the defendant must have taken personal property of someone with a greater possessory right in the property than him.
The person from whom the property is taken must have possession, but need not be the rightful owner.
Possession differs from custody and title.
v.- specific intent to permanently deprive: must have intended at the time of taking to permanently deprive the lawful owner of the property.
Embezzlement
Under common law, Embezzlement is the fraudulent appropriation or conversion of personal property of another by one to whom the owner has untrusted possession.
Elements:
i. - Fraudulent Conversion: requires that the defendant has the specific intent to defraud another. Words associated with this crime: knowingly, designedly and intending to defraud.
ii. - Of personal property of another: property has to be capable of possession and with some value. Under common law, realty, fixtures, and services are not subject to embezzlement.
iii. - By a person in lawful possession of the property: there is no taking and carrying away requirement.
False Pretenses
Under common law, False Pretenses is obtaining title to the property of another by an intentional misrepresentation of fact with specific intent to defraud the original titleholder.
Elements:
i. - Obtaining title: the defendant must obtain actual title to the property for criminal liability to attach. Title to money is implied by possession of such money.
ii. - To the property of another: the property transferred in false pretenses must be the property of another.
iii. - By an intentional misrepresentation of fact: the defendant must have intended to defraud the victim through the use of the false statements. The representation must be false in fact. The false representation must be of a present or past fact, but not a prediction of the future.
iv. - With specific intent to defraud the original titleholder: The misrepresentation must have actually induced the titleholder’s conduct or been a substantial factor in the titleholder’s decision to pass title to the defendant. If the titleholder knows the falsity of the defendant’s statements and still passes ownership to the perpetrator, there is no crime.
Receipt of Stolen Property
Under common law, Receipt of stolen property is the receiving possession and control of the stolen property with knowledge that the property was obtained in a criminal way by another person and with intent to permanently deprive the owner of the property.
Elements:
i. - Receiving possession and control: possession and control can be physical or it can be demonstrated by organizing the delivery of the stolen property or arranging a buyer for the stolen goods.
ii. - Stolen property: property must be stolen in fact.
iii. - Knowledge that property was obtained in a criminal way by another person: defendant must know or have a strong belied or suspicion of the fact.
iv. - Intent to permanently deprive the owner of the property: the recipient must intend to permanently deprive the owner of the stolen goods he is receiving. The intent to deprive must coincide with the receipt of the stolen property.
NY Distinction: A person can be convicted of attempted criminal possession of stolen property. Possession of stolen property does not merge into larceny.
Robbery
Forcible stealing
Under common law, Robbery is the taking and carrying away of the tangible personal property of another by trespass, by force or threats of force, with intent to permanently deprive the other of the property. Robbery requires all the elements of the larceny, plus the additional element of force and threats of force.
Elements:
i.- A trespassory taking and carrying away
ii.- Tangible personal property of value
iii.- property of another
iv.- Specific intent to permanently deprive at the time of the taking
For the robbery, the property must be taken from the victim’s person or from a location reasonably close to the victim.
v.- By force or threats of force: Force must be grater than the force of the victim’s resistance.
A sufficient threat or intimidation is any word, gesture, or action that will create apprehension of immediate danger such that a person will part with his property against his will.
Force or intimidation must be immediately present and must coincide with the actual taking of the property for robbery to exist.
Extortion
Blackmail
Under common law, Extortion is obtaining property of another by written or oral threats of physical harm or other improper threats of harm.
Examples of extortion threats:
i. - inflicting bodily injury or committing a criminal offense.
ii. - accusations of a criminal offense
iii. - exposing a secret tending to subject a person to hatred, contempt, or ridicule, or impair his credit or business reputation.
iv. - taking or withholding action as an official, or causing an official to take or withhold action
v. - bringing about or continuing a strike, boycott, or other collective unofficial action
vi. - testifying or providing information with respect to another’s legal claim or defense
vii. - inflicting any other harm that would benefit the defendant
Burglary
Under common law, Burglary is the breaking and entering into the dwelling of another at night with the specific intent to commit a felony inside.
Elements:
i. - Breaking: is satisfied by either an actual breaking or a constructive breaking. Include: opening a closed but unlocked door or window, further opening a slightly opened door, gaining entry through fraud, intimidation or threats, or any use of force to enlarge a preexisting opening.
ii. - Entering: occurs the moment any part of the defendant’s body crosses into the dwelling of another the opening create by the breaking. The breaking and entering must occur at the same location, but do not need to occur at the same time. The entering must be a trespassory entrance. The use of a tool to gain entry does not satisfy this element unless the tool is employed for the purposes of the underlying felony.
iii. - Dwelling of another: is defined as any enclosure used as a place of habitation that is used regularly for sleeping. Includes a house, tents, mobile homes and huts.
iv. - At night: could only be committed at night, where the people cannot easily be recognized by natural light. Night occurs between sunset and sunrise.
v. - Specific intent to commit a felony inside: must exist at the moment of entry. If the intent is formed after entry, there is no burglary.
NY Distinction: The breaking and entering are merged into one element. The specific intent does not have to be for a felony, but any crime is sufficient. There is no requirement that the burgled location is dwelling, and the at night requirement does not exist in NY.
Arson
Under common law, Arson is the malicious burning of a dwelling of another.
Elements:
i. - Malicious intent: requires that the defendant acted with knowledge or reckless disregard that the dwelling would burn as a result of the defendant’s actions.
ii. - Burning: the damage of the dwelling must be from the fire. The burning does not have to destroy the entire dwelling. There must be some combustion of the dwelling’s structure. The mere smoke dosage is not enough.
iii. - Dwelling: is a place of one’s residence. The modern statutes include as a dwelling the malicious burning of any structure, vehicle, or personal property within the curtilage of the dwelling.
iv. - Of another: must be used by someone other than the defendant.
NY Distinction: the crime of arson includes the burning of building, not only dwelling, and motor vehicle.
Attempt
Under common law, Attempt occurs when the defendant engages in conduct in the direction of committing a crime with the specific intent to commit the crime, but falls shorts of completing the crime.
Elements:
i. - Conduct in the direction of committing a crime: conduct qualifying as the actus reus for attempt is beyond mere preparation to commit the crime. Preparation consists of everything that comes before the actual criminal conduct. Test to determine whether an act is sufficient to support an attempt conviction are as follows:
- proximity to criminal act (tradition test): The traditional test for the existence of an act that would push the conduct from mere preparation to attempt is one of proximity to the criminal act. The closer the defendant is to the time and place of the offense, the more likely a defendant will be found guilty of attempt. Courts stated that the defendant must come dangerously close to completion of the crime. If a defendant has exhausted all necessary steps for preparation, he is guilty of attempt under this traditional rule.
- substantial step (majority rule and MPNY): require a substantial step in the commission of the crime.
ii. - Specific intent to commit the crime: attempt is always a specific intent crime. The mental state is not relevant to the determination of the attempt.
NY Distinction: NYPL, a person is guilty of attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime (no use of substantial steps).
Merger Doctrine: a defendant cannot be convicted of attempt and the substantive crime because of the merger doctrine.
Defenses to Attempt:
i.- Abandonment: Under common law, abandonment is not a defense to attempt. Under the Model Penal Code, abandonment is a defense only if the defendant voluntary abandoned the plan and the defendant completely abandoned the plan.
MPC abandonment defense cannot be used if the reason the defendant abandoned the crime was: in response to knowledge or suspicion of a police investigation; a reaction to a change in circumstances that made the crime harder to commit; a mere postponement of the criminal conduct.
NY Distinction: Abandonment is an affirmative defense to attempt; to use this defense, the defendant must have: manifestly renounced his actions; avoided commission of the substantive crime; if necessary, taken affirmative steps to prevent the substantive crime from occurring.
ii.- Impossibility:
- Legal impossibility (valid defense): occurs when the defendant believes he is committing a crime, but the act is actually legal. This is a valid defense to attempt.
- Factual (inherent) impossibility (not a valid defense): occurs when the defendant intends to commit an actual crime, but the means employed to effectuate the crime are impossible. This is not a valid defense to attempt.
Jurisdiction
Jurisdiction is the authority of a body to create substantive criminal law, and includes the ability of a court to enforce the criminal laws.
Where jurisdiction is not controlled by statute, it’s generally determined by two factors:
- location situs of the criminal conduct: bestows jurisdiction over the defendant. And for the crimes of omission, jurisdiction lies where the act should have been performed.
- location of the result of the criminal conduct: bestows jurisdiction over a defendant.
- jurisidction for violation of a Federal criminal statutes: the federal court system has jurisdiction over any violations of federal criminal statutes.
NY Distinction:
NY has jurisdiction over all persons and criminal acts that occurs in NY, including criminals fleeing from NY.
The term criminal acts includes: any element of a criminal offense; attempted crimes; conspiracies and solicitations.
NY has jurisdiction over acts that occur outside of NY state when: 1.- the result of the offense occurs in NY; 2.- the statute was intended to prevent the specific criminal effect from occurring in NY; 3.- there was an attempt to commit the crime in NY; or, 4.- there was a conspiracy to commit a crime in NY.
Jurisdiction
NY Distinctions
NY Distinction:
NY has jurisdiction over all persons and criminal acts that occurs in NY, including criminals fleeing from NY.
The term criminal acts includes: any element of a criminal offense; attempted crimes; conspiracies and solicitations.
NY has jurisdiction over acts that occur outside of NY state when: 1.- the result of the offense occurs in NY; 2.- the statute was intended to prevent the specific criminal effect from occurring in NY; 3.- there was an attempt to commit the crime in NY; or, 4.- there was a conspiracy to commit a crime in NY.
Classification of Crimes
Under common law, crimes are classified as either felonies or misdemeanors.
a.- Felony: Under common law, felonies are punishable by death or imprisonment for more than one year. Crimes such as: murder, manslaughter, rape, sodomy, mayhem, robbery, larceny, arson, and burglary.
b.- Misdemeanors: Under common law, all crimes that are not listed above as a felony are characterized as a misdemeanor; are punishable by imprisonment for less than one year or by a fine.
NY Distinction: Under NYPL,
- an Offense is conduct for which a sentence of imprisonment or a fine is provided by a NY law, a local law or ordinance, or any other rule or regulation.
- a Violation is defined as any offense, other than a traffic infraction, that is punishable by no more than 15 days imprisonment.
- a Misdemeanor is an offense, other than a traffic infraction, for which maximum potential imprisonment exceeds 15 days, but no more than one year.
- a Felony is an offense that is punishable by death or imprisonment for more than one year.
- a Crime is any misdemeanor or felony
- a Violation is not a crime.
Classification of Crimes
NY Distinctions
NY Distinction: Under NYPL,
- an Offense is conduct for which a sentence of imprisonment or a fine is provided by a NY law, a local law or ordinance, or any other rule or regulation.
- a Violation is defined as any offense, other than a traffic infraction, that is punishable by no more than 15 days imprisonment.
- a Misdemeanor is an offense, other than a traffic infraction, for which maximum potential imprisonment exceeds 15 days, but no more than one year.
- a Felony is an offense that is punishable by death or imprisonment for more than one year.
- a Crime is any misdemeanor or felony
- a Violation is not a crime.
The Merge Doctrine
Common Law Rule
If a person engaged in a felony and a misdemeanor, the lesser crime would effectively merge into the greater crime so that the accused would be charged only with the felony.
Modern Rule
There is no merger in criminal law, with the following exceptions:
- Solicitation (asking someone to commit a crime): solicitation merges into the substantive offense, including attempt and conspiracy. A person who is charged with solicitation and the substantive crime cannot be convicted of both under the merge rule.
- Attempt: attempt merges into the substantive offense, but does not merge into conspiracy.
Elements of crime
A conviction of a crime requires proof of a physical act or omission to act, a certain mental state, and concurrence of the physical act or omission and mental state. And some crimes also require causation.
a.- Actus Reus: Under common law, the acts reuse is any voluntary physical act or failure to act when a legal duty is imposed.
- Voluntary Physical Act: the criminal conduct must be product of the defendant’s own volition. There is no liability for involuntary actions neither reflexive or convulsive acts. (driving car and suffer an epileptic seizure).
A person who acts under threat or duress satisfies this requirement.
- Omission: Failure to Act (when a legal duty is imposed): in certain situations, a defendant may be found guilty of a crime for inaction/ failure to act, if the following three elements are satisfied: 1.- the law has imposed a specific legal duty to act; 2.- the defendant has knowledge of facts giving rise to the duty to act; and, 3.- it is reasonably possible for the defendant to perform the duty.
- Creating a Legal Duty to Act: There is no legal duty to act. However, a legal duty to act can arise in the following limited situations: a statute may impose a specific legal duty to act; a legal duty to act may arise from a contractual agreement; a special relationship between the parties may create a legal duty to act; voluntary assumption of care creates a duty to act; creation of the peril results in a legal duty to act.
b.- Mens Rea: Under common law, mens era is the mental state required to show that the prohibited act or omission was committed with a guilty mind; strict liability crimes do not require a mens rea.
There are four broad categories of mens era under common law:
- Specific Intent Crimes: Under common law, SIC requires that the defendant performed the actus reus with the specific objective of achieving a prohibited result. Such as, larceny, embezzlement, robbery, solicitation, conspiracy, burglary…
- Malice Crimes: Under common law, MC requires that the defendant recklessly disregarded an obvious or known risk that a particularly harmful result would occur. Such as, murder or arson.
- General Intent Crimes: Under common law, a GIC requires only that the defendant had awareness of the act, not that he had the intent to commit the crime, which can be inferred from the act itself.
The defendant must be aware or has a great likelihood that he is acting in a prohibited manner and that the circumstances required by the crime are present. Virtually every crime is a crime of general intent unless another mental state is required.
- Strict Liability Crimes: Under common law, a SLC does not require that the defendant had a requisite intent or mental state when the act was committed. Here, the defendant’s mental state is irrelevant.
Are seen most often as related to public welfare, regulatory offenses, and administrative crimes.
- Mental States Under the Model Penal Code (is not a source of law): MPC does not distinguish between crimes of specific and general intent. The MPC uses four different categories to distinguish among the various mental states, including:
i.- acting purposely (and intentionally): when defendant’s conscious objective was to engage in specific conduct or to cause a specific result.
NY Distinction: intentionally is defined as when a person’s conscious objective is to cause such result or to engage in such conduct.
ii.- acting knowingly (and willfully): when the defendant was aware that his conduct would necessarily or very likely cause a result.
NY Distinction: knowingly is specifically defined as when a person is aware that his conduct is of such nature or that such circumstance exists.
iii.- recklessly (and wantonly): when the defendant was aware of, and consciously disregarded, a substantial or unjustifiable risk that the circumstances exist or that criminal result would occur.
NY Distinction: recklessly is defined as when a person is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists; the risk mud constitute a gross deviation from the standard of conduct that a reasonable person would observe in the situation.
iv.- negligently: when the defendant failed to be aware of a substantial and unjustifiable risk that circumstances existed or that a criminal result would occur. It requires a substantial deviation from the standard of care.
NY Distinction: criminal negligence is defined as when a person fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists; the risk must constitute a gross deviation from the standard of care that a reasonable person would observe in the situation.
