Criminal Law

Question 1

Elements of a Crime

Answer 1

In order to be guilty of a crime, the prosecution must prove that the defendant is guilty of all elements of the crime beyond a reasonable doubt. Every crime has four elements:

(1) a physical act (also called the actus reus);
(2) a mens rea or mental state element;
(3) causation; and
(4) concurrence.

The physical act of the defendant must be voluntary. The mens rea element is explicitly stated in the statute for the specific crime in which the defendant is charged.

Causation has two parts:

(a) actual or “but for” causation, AND
(b) proximate cause. Both are required.

Question 2

Actual Causation

Answer 2

Actual causation requires asking if the defendant had not done this physical act, would the crime have occurred.

Question 3

Proximate Causation

Answer 3

Proximate cause has to do with foreseeability, and requires asking was it foreseeable that the injury would have resulted from the defendant’s physical acts. Finally, there needs to be a concurrence of the physical act and the mental state (the mental state and physical act occur at the same time).

Question 4

Mens Rea

Answer 4

Under the New York Penal Law (NYPL), if a crime requires a mental state of intentionally or purposefully, it must be the defendant’s conscious object to engage in the conduct or cause such a result to be guilty of the crime.

Question 5

Assault

Answer 5

Under the New York Penal Law, an assault involves an unlawful touching that causes injury to a person. The injury need not be great, but some injury is required. Assault in the 3rd degree is defined as intentionally causing physical injury. Assault in the 2nd degree is defined as intentionally causing serious physical injury. Assault in the 1st degree is defined as intentionally causing serious physical injury with a weapon.

Question 6

Murder in the 2nd Degree

Answer 6

Murder in the 2nd degree consists of:

(1) killing
(2) a person
(3) either intentionally, with a reckless and depraved heart, or during the commission of an enumerated felony. The three versions of 2nd degree murder are:

(a) an intentional murder that is not 1st degree murder,
(b) a murder that occurs because of extreme recklessness, AND
(c) felony murder.

Question 7

Felony Murder

Answer 7

Under the New York Penal Law, the crime of felony murder arises where a defendant causes the death of a non-participant during the commission of an enumerated felony or during the immediate flight therefrom. The enumerated felonies include arson, burglary, robbery, kidnapping, escape, rape, and sexual assault. The killing must be independent of the felony and it must be a foreseeable result of the felony.

It is important to note that a defendant is NOT liable for the death of a co-felon in New York.

Question 8

Difference Between 1st and 2nd Degree Felony Murder

Answer 8

In 2nd degree felony murder, intent is irrelevant. All that is necessary is that the perpetrator intended to commit the felony and a non-participant was killed.

In 1st degree felony murder, if a defendant intentionally kills a non-participant victim during one of the enumerated felonies, they are guilty of first degree felony murder.

Question 9

Defense to Felony Murder

Answer 9

A defendant has an affirmative defense to felony murder if:

(1) he did not commit or aid in the commission of the homicidal act,
(2) he was not armed,
(3) he had reasonable grounds to believe the other participants were not armed, AND
(4) he had no reason to believe the other participants intended to engage in conduct likely to result in death. This affirmative defense can only be successful for a co-felon that did not commit the actual murder.

Question 10

Burglary Elements

Answer 10

Under the New York Penal Law, Third degree burglary requires:
(1) entry or unlawfully remaining in,

(2) a building,
(3) with the intent to commit a crime therein.

Note that under the common law, the building had to be a dwelling, the entrant had to break-in after dark, and the entrant must have had the intent to commit a felony inside. New York statutory law is therefore considerably broader than the common law definition.

Question 11

2nd Degree Burglary

Answer 11

Second degree burglary requires one of the three following aggravating elements:

(a) the building was a dwelling;
(b) the burglar was armed; or
(c) someone was injured.

Question 12

1st Degree Burglary

Answer 12

First degree burglary requires the following aggravating elements:

(a) the defendant knows he is burglarizing a dwelling AND
(b) either a non-participant is injured or the defendant was armed with a weapon.

Question 13

5th Degree Arson

Answer 13

Under the New York Penal Law, Fifth degree arson is the intentional damage of property of another (without consent of the owner) by intentionally starting a fire or causing an explosion.

Question 14

2nd Degree Arson

Answer 14

Second degree arson is third degree arson plus either:

(a) knowledge that a non-participant is inside OR
(b) setting the fire under circumstances indicating that the presence of a third party is a reasonable possibility.

Question 15

1st Degree Arson

Answer 15

First degree arson is second degree arson plus the use of an incendiary or explosive device.

Question 16

3rd Degree Arson

Answer 16

Third degree arson is intentionally damaging a building by intentionally starting a fire.

Question 17

4th Degree Arson

Answer 17

Fourth degree arson is the reckless burning of a building by intentionally setting fire to it.

An affirmative defense exists to fourth degree arson when the defendant recklessly damages a building by intentionally setting fire to it and the building is owned by him alone. However, this defense is NOT available to one who intentionally sets fire to a building.

The affirmative defense referenced above is not a defense to any other degree of arson besides fourth degree arson.

Question 18

Larceny

Answer 18

Under the New York Penal Law, larceny is the trespassory taking away of the personal property of another with the intent to permanently deprive them of that property.

In New York, larceny encompasses all forms of common law larceny, including embezzlement, larceny by trick, and false pretenses.

A complete defense to larceny is that the taking is under a claim of right (i.e. the property actually belongs to the person taking it).

Question 19

Embezzlement

Answer 19

Embezzlement is the taking of property of another by a person with lawful possession who is in a position of trust.

Question 20

Larceny by Trick

Answer 20

Larceny by trick is obtaining possession (NOT title) of property as a result of a false statement.

Question 21

False Pretenses

Answer 21

False pretenses is obtaining title of personal property of another by an intentional false statement with the intent to defraud (the false statement must be of a past or present event, not a future promise).

Question 22

3rd Degree Robbery

Answer 22

Third degree robbery is the unlawful taking of property from the person of another by force.

Question 23

2nd Degree Robbery

Answer 23

Second degree robbery is third degree robbery plus one of the following:

(a) the defendant is aided by another person actually present;
(b) the victim is injured; or
(c) an automobile is stolen.

Question 24

1st Degree Robbery

Answer 24

A defendant is guilty of first degree robbery if during a robbery:

(a) the defendant uses or displays a firearm, OR
(b) the victim is seriously injured.

A good faith claim of right (that the property actually belongs to the person taking it) is NOT a defense to a robbery prosecution.

Question 25

Criminal Possession of Stolen Property

Answer 25

Under the New York Penal Law, one is guilty of criminal possession of stolen property if he or she knowingly possesses stolen property. The mental state requires knowledge of possession AND knowledge that the property is stolen.

Question 26

Accomplice

Answer 26

An accomplice is one who renders aid, encouragement, or help to another with the intent that such aid or encouragement will help another to commit a crime or further the commission of a crime.

An accomplice is liable to the full extent to which the principal (the person who actually committed the crime) is liable and for all crimes committed by the principal which are foreseeable. It is irrelevant whether the accomplice actually committed the crime.

In New York, an accomplice can be convicted of the crime of criminal facilitation even if the principal is acquitted or not prosecuted.

Question 27

Accomplice Testimony

Answer 27

An accomplice may not be convicted solely on the testimony of another party to the crime. In order to convict the accomplice, the testimony of the other perpetrator/criminal must be sufficiently corroborated by other evidence, including circumstantial evidence.

Question 28

Attempt

Answer 28

Under the New York Penal Law, a party is guilty of attempt when he has the intent to complete the crime AND comes dangerously close to committing the actual crime. Mere preparation is NOT enough. Withdrawal is an affirmative defense to an attempt crime.

A party can only withdraw if:

(1) he voluntarily and completely renounces the crime AND
(2) the renunciation is the result of a change of heart, not fear of getting caught. If mere abandonment is insufficient to accomplish avoidance of the crime, the defendant must take affirmative steps to prevent the commission of the crime.

Question 29

Conspiracy

Answer 29

Under the New York Penal Law, conspiracy is a specific intent crime and it does not merge with the substantive offense. The elements of conspiracy are:

(1) an agreement, (2) intent to agree, (3) intent to pursue an unlawful objective, AND (4) an overt act in furtherance of the conspiracy. The crime is complete the moment there is an agreement and an overt act.

Therefore, in order to withdraw and avoid liability for the conspiracy, the defendant must voluntarily renounce the crime AND prevent commission of the crime.

Under the common law, a co- conspirator is vicariously liable for all other crimes committed by the co- conspirators in furtherance of the conspiracy. In New York, however, a co-conspirator is NOT vicariously liable for the crimes of its co- conspirators.

Question 30

Unilateral Theory of Conspiracy

Answer 30

It is not necessary that the other co-conspirator be found guilty as an accomplice or even that the other person had the intent to achieve the unlawful objective (ex: an undercover police officer). This is called the unilateral theory of conspiracy.

However, a defendant may not be convicted of conspiracy solely on the uncorroborated testimony of a co-conspirator. There must be some other evidence, including circumstantial evidence, to corroborate the co-conspirator’s testimony.

Question 31

Self-Defense

Answer 31

Self-defense is a justification of an otherwise unlawful act. In New York, self defense is an ordinary defense, not an affirmative defense. The general rule is that a person can use non-deadly force in self defense if the force is reasonably necessary to prevent against an imminent use of unlawful force against the person.

To use deadly force, there must be an imminent threat of serious injury or death. Deadly force is NEVER justified when used solely for the protection of property.

Under New York law, one has a duty to retreat before using deadly force when he safely can do so, unless

(a) he is in his home, OR
(b) the party using deadly force is a police officer. In addition, a person may NOT use deadly force if he was the initial aggressor or provoker who had the intent to cause injury, unless he:

(1) withdraws from the fight AND
(2) communicates it to other person.