Criminal Law NY Distinctions Flashcards
Eavesdropping
Unlawful wiretapping or mechanical overhearing of a conversation, or intercepting or accessing an electronic communication.
Abandonment of a child
A person legally obligated to care for a child under 14yo deserts the child with intent to abandon.
Affirmative defense: A child 30 days old or less can be abandoned in a safe location if the ∆promptly notifies appropriate persons at the location.
Non-support of a child (2nd and 1st degree)
Person legally obligated to care for a child under 16yo fails to provide support when able to do so OR voluntarily renders himself unable to support the child
1st degree = if this is the second conviction of non-support in 5 years.
Endangering the welfare of a child
(1) person knowingly acts in a manner likely to be injurious to a child under 17yo OR authorizes the child to act in a manner involving substantial risk of danger
OR
(2) Fails to exercise reasonable diligence in controlling the child when legally responsible for the care of a child under 18yo.
Affirmative defense: (1) care in accordance with religious tenents; (2) safe abandonment of a child 30 days old or less.
Unlawful dealing with a child
(1) person knowingly permits a child under 18yo upon premises used for sexual activity or the use of controlled substances
OR
(2) allows access to alcohol to a child under 21yo
OR
(3) tattoos a child under 18yo
OR
(4) sells tobacco to a child under 18yo
Endangering welfare of an incompetent or physically disabled person
a person knowingly acts in a manner likely to be injurious to the welfare of a person unable to care for himself due to physical disability or mental disease or defect.
Endangering welfare of a vulnerable elderly person (2nd and 1st degree)
“Vulnerable elderly person” = 60yo or older who is unable to care for himself due to disease or infirmity associated with advanced age.
A caregiver intentionally or recklessly causes physical injury, negligently causes physical injury by means of a dangerous instrument, or subjects such person to non-consensual sexual contact.
1st Degree = when victim suffers serious injury
Criminal Nuisance (2nd and 1st degree)
2nd degree = (1) knowingly (2) maintaining a premises (3) where persons gather to engage in unlawful conduct OR (1) knowingly or recklessly (2) by unlawful or unreasonable conduct (3) maintain a condition (4) that endangers the health or safety of numerous persons
1st degree = unlawful conduct is the sale of a controlled substance
Harassment (2nd and 1st degree)
2nd degree = with intent to harass, annoy, or alarm
(1) attempt, threaten, or subject another person to physical contact, OR
(2) follow a person in a public place, OR
(3) engage in a course of conduct or repeatedly commit acts which alarm or seriously annoy another and serve no legitimate purpose.
1st degree = ∆ acts intentionally and repeatedly and places the person in reasonable fear of physical injury.
Second-degree aggravated harassment
with intent to harass, annoy, threaten, or alarm another…
(1) communicates with another by telephone or in writing, in a manner likely to annoy or alarm, OR
(2) makes a telephone call with no purpose of legitimate communication, OR
(3) attempts, threatens, or subjects a person to physical contact motivated by the victim’s race, national origin, gender, religion, age, disability, or sexual orientation, OR
(4) causes physical injury to a person or a member of the person’s family or household, OR
(5) commits harassment and has been convicted within the last 10 years of first degree harassment.
First-degree aggravated harassment
Harassment motivated by the victim’s race, national origin, gender, religion, age, disability, or sexual orientation AND
(1) over $50 in damages to religious premises, OR
(2) a pervious conviction of aggravated harassment within 10 years, OR
(3) placement of a swastika or a noose on a building without permission of the owner, OR
(4) setting a cross on fire in public.
Driving while intoxicated
No person may operate a motor vehicle on public highways, private roads, or parking lots while impaired by drugs or alcohol. Person is presumed impaired when her BAC is .08% or higher.
Drivers under 21yo may not operate motor vehicle after consuming any amount of alcohol.
In NY, battery and mayhem are called…
Assault
In NY, common law assault is called…
Menacing
Does “knowingly” apply to the aggregate weight of a controlled substance charge in NY?
No. There is no knowledge requirement for the weight of the controlled substance in NY. ∆cannot defend on the basis that he did not know the aggregate weight of the substance.
Withdrawal from accomplice liability in NY
Requires:
(1) renounce his criminal purpose completely and voluntarily
(2) withdraw from participation in commission of the crime
(3) make a substantial effort to prevent the commission of the crime
Accomplice liability
May be imposed for soliciting, requesting, commanding, urging, or intentionally aiding in the commission of a crime with the mens rea required for commission of the crime.
Proof requires more than testimony of an accomplice. Need corroboration.
Criminal facilitation
If ∆ believes it probable that he is rendering aid to a person who intends to commit a crime by providing that person the means or opportunity to commit the crime AND he in fact aids in commission of a felony.
NY Test for insanity
(1) as a result of a mental disease or defect
(2) defendant lacked the substantial capacity to know or appreciate
(3) either the nature and consequences of the conduct OR that the conduct was wrong.
(basically M’Naghten test)
Infancy in NY (ages at which you can be charged with crimes)
Person less than 16 is NOT liable as an adult UNLESS:
13 to 15 = can be charged with 2nd degree murder
14 to 15 = can be charged with serious crimes (kidnapping, arson, assault, manslaughter, rape, aggravated sexual abuse, burglary, robbery, attempted murder).
No mens rea in statute
Requires purposely, knowingly, or recklessly.
First-degree murder in NY
(1) Intentional killing of (a) police officer, (b) peace officer, (c) judge.
(2) Murder for hire
(3) intentional felony murder (“BRAKERS” = Burglary, Robbery, Arson, Kidnapping, Escape, Rape, Sexual abuse).
(4) Intentional killing of multiple victims
(5) intentional killing of someone by torture of terrorism.
Second-degree murder in NY
(1) Intentionally killing someone
(2) depraved indifference killing
(3) unintentional felony murder (“BRAKERS” = Burglary, Robbery, Arson, Kidnapping, Escape, Rape, Sexual abuse). Affirmative defense if (a) did not commit the act, (b) was unarmed, (c) reasonably believed participants were unarmed AND (d) had no reason to believe participants intended to engage in conduct likely to cause death.
First-degree manslaughter in NY
(1) death caused with intent to inflict serious bodily injury
(2) intentional killing under extreme emotional disturbance / heat of passion
(3) abortion after 24 weeks
(4) recklessly placing a child in grave risk of serious injury that results in death.
Second-degree manslaughter in NY
(1) recklessly causing death of another
(2) intentionally assisting suicide or abortion where mother dies
Homicide with vehicles in NY (three kinds)
(1) vehicular manslaughter in second-degree
(2) vehicular manslaughter in first-degree
(3) aggravated vehicular homicide
Vehicular manslaughter in second-degree
Criminally negligent homicide that is caused by operating a motor vehicle under the influence of alcohol or drugs.
Vehicular manslaughter in first-degree
Second-degree vehicular manslaughter + one of six factors:
(1) BAC of .18 or more
(2) Suspended or revoked drivers license due to DUI
(3) driving after DUI conviction within past 10 years
(4) Killed two or more people
(5) Driving after prior conviction of vehicular assault OR
(6) Causing death of child passenger 15yo or younger
Aggravated vehicular homicide
Second-degree vehicular manslaughter + driver was reckless + (a) ∆ killed one person and seriously injured at least one other person OR (b) aggravating factor from first-degree vehicular manslaughter:
(1) BAC of .18 or more
(2) Suspended or revoked drivers license due to DUI
(3) driving after DUI conviction within past 10 years
(4) Killed two or more people
(5) Driving after prior conviction of vehicular assault OR
(6) Causing death of child passenger 15yo or younger
Criminally negligent homicide in NY
Catch-all category in which the defendant, with criminal negligence (gross deviation from reasonable standard of care), causes the death of another person
5 degrees of larceny
First degree = $1M or more Second degree = (a) $50,000 or more OR (b) Extortion by threat of future injury OR (c) ∆ abuses position as public servant Third degree = $3,000 or more Fourth degree - $1,000 or more Petit larcney = $1,000 or less
First-degree manslaughter in NY
(1) death caused with intent to inflict serious bodily injury
(2) intentional killing under extreme emotional disturbance / heat of passion
(3) abortion after 24 weeks
(4) recklessly placing a child in grave risk of serious injury that results in death.
Second-degree manslaughter in NY
(1) recklessly causing death of another
(2) intentionally assisting suicide or abortion where mother dies
Third degree robbery (NY)
All other kinds of robbery (residual)
Burglary (NY)
Third degree = Knowingly enter or remain in a building with the intent to commit a crime. No requirement for night or breaking. Doesn’t need to be a dwelling.
Second degree = One of two conditions:
(1) burglary involved explosive or deadly weapon, using or threatening use of a dangerous weapon, or displaying a firearm, OR
(2) building was a dwelling
First Degree = (Both conditions present) Must be a dwelling + armed; Threatens to use a dangerous instrument; Injures a non-participant; or displays what appears to be a firearm
Affirmative defense = firearm was unloaded or incapable of causing death or serious bodily injury.
First-degree assault in NY
(i) an intent to cause serious injury by means of a deadly weapon or dangerous instrument OR
(ii) causing serious injury with depraved indifference to human life or during the course of committing or attempting to commit a felony.
Aggravated vehicular homicide
Second-degree vehicular manslaughter + driver was reckless + (a) ∆ killed one person and seriously injured at least one other person OR (b) aggravating factor from first-degree vehicular manslaughter:
(1) BAC of .18 or more
(2) Suspended or revoked drivers license due to DUI
(3) driving after DUI conviction within past 10 years
(4) Killed two or more people
(5) Driving after prior conviction of vehicular assault OR
(6) Causing death of child passenger 15yo or younger
Second-degree reckless endangerment
∆ recklessly engages in conduct that creates a substantial risk of serious physical injury to another person.
First degree robbery (NY)
(1) Non-participant was seriously injured
(2) ∆ is armed with deadly weapon
(3) ∆ threatens use of deadly weapon, OR
(4) ∆ displays what appears to be like a firearm
affirmative defense = firearm was unloaded or incapable of causing serious injury or death.
Third-degree Rape (NY)
(1) Sex with individual 17yo or less and incapable of consent
(2) Sex without consent by reason OTHER THAN incapacity to consent,
(3) Sex with individual less than 17yo if ∆is over 21yo
First-degree kidnapping (NY)
(1) intent to compel payment or ransom
(2) compelling person to engage or refrain from particular conduct
(3) restraint of abducted person for more than 12 hours with intent to inflict physical injury, torture, commit a felony, or interfere with government or political function.
Second-degree kidnapping (NY)
Same as common law:
(1) unlawful
(2) confinement of a person
(3) against that person’s will
(4) coupled with movement or hiding of the person
Second-degree false imprisonment (NY)
Same as common law:
(1) unlawful
(2) confinement of a person
(3) without consent.
First-degree false imprisonment (NY)
Must expose victim to risk of serious physical injury + common law requirements:
(1) unlawful
(2) confinement of a person
(3) without consent.
Second-degree reckless endangerment
∆ recklessly engages in conduct that creates a substantial risk of serious physical injury to another person.
First-degree Rape (NY)
(1) sexual intercourse by force or with an individual incapable of consent
(2) Sex with individual under 11yo
(3) sex with individual under 13yo if ∆ is 18 or older
Second-degree arson
(1) intentional damage to a building or motor vehicle
(2) by intentionally starting a fire or causing an explosion
[i.e., third-degree]+
(3) a non-participant is in the building or vehicle, AND
(4) ∆ knows or had reason to know of the non-participant’s presence
First-degree arson
Second-degree (intentional damage by intentional starting of a fire when another is present and ∆ knows or should have known of the other person’s presence.) +
(1) use of incendiary device (bomb), OR
(2) injures non-participant, OR
(3) caused for financial gain
First-degree kidnapping
(1) intent to compel payment or ransom
(2) compelling person to engage or refrain from particular conduct
(3) restraint of abducted person for more than 12 hours with intent to inflict physical injury, torture, commit a felony, or interfere with government or political function.
Conspiracy (NY)
(1) Agreement
(2) Unilateral conspiracy = CAN be conspiracy even when other is feigning agreement or lacks capacity –MPC approach
(3) to accomplish an unlawful purpose
(4) with intent to accomplish that person
(5) overt act in furtherance of conspiracy
Withdrawal = allowed if ∆ made a substantial effort to prevent commission of the plan.
Second-degree false imprisonment (NY)
Same as common law:
(1) unlawful
(2) confinement of a person
(3) without consent.
First-degree false imprisonment (NY)
Must expose victim to risk of serious physical injury + common law requirements:
(1) unlawful
(2) confinement of a person
(3) without consent.
Merger (NY)
CAN charge ∆ with underlying crime + (1) solicitation OR (2) conspiracy. Cannot charge with both attempt and underlying crime.
Accomplice liability (NY)
(1) Assists or encourages the crime AND
(2) intends for assistance to aid or encouraging the crime.
Withdrawal: (Less rigorous than common law)
(1) renounce criminal purpose
(2) withdrawal from participation prior to commission of crime
(3) make a substantial effort to prevent commission of crime.
Cannot convict solely on testimony from accomplice unless corroborated.
Self defense (NY)
Same as common law: ∆ must be resisting immediate or imminent harm to himself. Can only use reasonable force (proportional). Cannot be the initial aggressor. Deadly force only if (1) reasonably necessary to (2) prevent death, serious injury, or commission of serious felony.
Duty to retreat UNLESS in home or curtilage.
First-degree arson
Second-degree + use of incendiary device (bomb)
Solicitation (NY)
Same elements as common law.
(1) enticing, encouraging, OR advising of another
(2) to commit a crime
(3) with intent that the other person commit the crime
BUT renunciation is defense! Elements:
(1) voluntary and complete renunciation
(2) ∆ successfully prevents commission of the crime.
Conspiracy (NY)
(1) Agreement
(2) Unilateral conspiracy = CAN be conspiracy even when other is feigning agreement or lacks capacity –MPC approach
(3) to accomplish an unlawful purpose
(4) with intent to accomplish that person
(5) overt act in furtherance of conspiracy
Withdrawal = allowed if ∆ made a substantial effort to prevent commission of the plan.
Conspirator liability (NY)
No vicarious liability for unplanned crimes of co-conspirators. Must meet requirements for accomplice liability.
Conviction requires more than testimony of co-conspirator. Need corroboration.
Attempt (NY)
(1) specific intent to commit the crime (same as common law)
(2) ∆ engages in conduct that is very near the accomplishment of the intended crime.
Merger (NY)
CAN charge ∆ with underlying crime + (1) solicitation OR (2) conspiracy. Cannot charge with both attempt and underlying crime.
Accomplice liability (NY)
(1) Assists or encourages the crime AND
(2) intends for assistance to aid or encouraging the crime.
Withdrawal: (Less rigorous than common law)
(1) renounce criminal purpose
(2) withdrawal from participation prior to commission of crime
(3) make a substantial effort to prevent commission of crime.
Self defense (NY)
Same as common law: ∆ must be resisting immediate or imminent harm to himself. Can only use reasonable force (proportional). Cannot be the initial aggressor. Deadly force only if (1) reasonably necessary to (2) prevent death, serious injury, or commission of serious felony.
Duty to retreat UNLESS in home or curtilage.
Defense of property (NY)
Cannot use deadly force UNLESS to prevent arson.
Duress (NY)
(1) third-party’s threat cases
(2) ∆ to reasonably believe that only way to avoid
(3) death or serious bodily injury to himself or another is to violate the law.
NY allows use as defense to murder.
Entrapment (NY)
MPC approach:
(1) government agent induced or encouraged the crime
(2) by employing methods or persuasion that create a substantial risk (objective standard) that the crime will be committed by persons other than those ready to commit it.
Second-degree rape (NY)
(1) sexual intercourse with person less than 15yo and ∆is 18yo or older
(2) person incapable of consent due to mental disability or incapacity
Can a joint-owner of property commit larceny or embezzlement against the other joint-owner?
No. ∆ cannot be charged with larceny or embezzlement for misappropriating assets in which he has an ownership interest.
What level of mens rea is required for accomplice liability.
Defendant have KNOWLEDGE as to what kind of activity he is participating in, but not necessarily mens rea of specific intent to engage in that activity.
How many degrees of arson are there?
4 degrees
What is 4th-degree arson?
(1) reckless damage to a building or motor vehicle
(2) by intentionally setting a fire or causing an explosion
Affirmative defense = no person other than he has possessory or proprietary interest in the building or motor vehicle
What is 3rd-degree arson?
(1) intentional damage to a building or motor vehicle
(2) by intentionally starting a fire or causing an explosion
Affirmative defense:
(1) all persons with interest in the building consented
(2) ∆s’ sole intent was to destroy or damage property lawfully, AND
(3) no reasonable ground for ∆ to believe his conduct endangered person or property of another
What is the affirmative defense to unintentional felony murder in NY?
∆…
(i) did not commit or assist in the homicidal act,
(ii) were not themselves armed,
(iii) had no reasonable grounds to believe the other participant was armed, AND
(iv) had no reasonable ground to know any other participant intended to engage in conduct likely resulting in death.
What is the withdrawal standard for conspiracy in NY?
Substantial effort to prevent commission of the plan.
Common law = withdrawal is not a defense to conspiracy
What is the withdrawal standard for accomplice liability in NY?
(1) renounce criminal purpose completely and voluntarily
(2) withdrawal from participation prior to commission of crime
(3) make a substantial effort to prevent commission of crime.
Common law:
(1) repudiate prior aid
(2) do all that tis possible to countermand prior assistance
(3) do so before chain of events is in motion and becomes unstoppable
What is the renunciation standard for solicitation in NY?
(1) renunciation is voluntary and complete
(2) ∆ successfully prevents commission of the crime
What are the elements of issuing a bad check?
(1) utters or passes a check knowing that the drawer does not have sufficient funds to cover the check
(2) intends or believes that payment will be refused by drawee
(3) payment is in fact refused
Affirmative defense: payment in full made within 10 days o refusal of payment.
What is third-degree forgery?
(1) Intentionally making, completing, or altering a written instrument,
(2) with legal significance
(3) with intent to defraud, deceive, or injury another
What is second-degree forgery?
Third-degree forgery + written instrument purports to be a deed, will, codicil, contract, assignment, commercial instrument, credit card, public report, prescription, or toke for purchase of transportation or other property or services.
What is first-degree forgery?
Third-degree forgery + written instrument purposes to be money, stamps, securities, stocks, or bonds.
