Essay 1

Question 1

The Elements of Conspiracy:

Answer 1

1. An agreement between two or more people,
2. An intent to agree,
3. An intent to pursue an unlawful objective, and
4. An overt act in furtherance of the conspiracy

Question 2

How is the “Intent to agree” element of conspiracy proven?

Answer 2

It can be inferred from conduct

Question 3

Withdrawal is an affirmative defense to conspiracy if the defendant:

Answer 3

1. Voluntarily and completely renounced his criminal purpose, and
2. Prevented commission of the object crime
3. A withdrawal is not voluntary and complete when it is motivated in whole or in part by a fear of being caught.

Question 4

New York follows the MPC’s “unilateral approach to conspiracy. This means:

Answer 4

That a single defendant may be convicted of conspiracy.

Question 5

In NY, does vicarious liability apply to one who merely conspires and does not participate in committing an underlying offense?

Answer 5

No

Question 6

NY’s Accomplice Liability

Answer 6

In NY, a person is criminally liable for a principal’s conduct when, with the mental culpability required for the offense, he solicits, requests, commands, importunes, or intentionally aids the principal to engage in such conduct.

Question 7

Withdrawal is an affirmative defense to accomplice liability for the substantive offense if the accomplice:

Answer 7

1. Voluntarily and completely renounces his criminal purpose,
2. Withdraws prior to the commission of the offense, and
3. Makes a substantial effort to prevent the crime.

Question 8

NY Felony Murder

Answer 8

A defendant is guilty of murder when he commits an enumerated felony, and in the course of the felony, he or another participant causes the death of a nonparticipant. However if the defendant has a defense to the underlying felony, he has a defense to felony murder.

Question 9

What must a defendant show in an ineffective assistance of counsel case based on not being informed of a plea bargain under federal law?

Answer 9

The defendant must show deficient performance, and a reasonable possibility that the outcome of the plea would have been different with competent advice.

Question 10

Under federal law, an attorney’s failure to notify a defendant of a plea offer can constitute deficient performance if the defendant can show that:

Answer 10

1. Had the plea been communicated, he likely would have accepted, and
2. The plea likely would have been entered without the prosecutor canceling it.

Question 11

In New York, to prevail on an ineffective assistance of counsel claim, a defendant must demonstrate:

Answer 11

1. That the attorney failed to provide “meaningful representation,”
2. That a single error can constitute ineffective assistance, but only when the error is “sufficiently egregious and prejudicial to compromise a defendant’s right to a fair trial,”
3. The absence of any strategic explanation for the attorney’s performance, and
4. If citing ineffective assistance for failure to make a motion, the defendant must prove that the motion had a reasonable chance of succeeding.