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.