Inchoate (Incomplete) Offenses

Question 1

What is the definition of solicitation

Answer 1

Asking someone to commit a crime with the intent of the crime be committed

Question 2

What is the definition of conspiracy?

Answer 2

An agreement between 2 or more people to commit a crime plus an OVERT ACT (any act) in furtherance of that crime

Question 3

In the absence of speech or written agreement, what can service proof of agreement between co-conspirators?

Answer 3

Acting in concert toward a common goal

Question 4

Does New York use the bilateral or unilateral rule for conspiracy?

Answer 4

New York uses the unilateral approach. Even if co-conspirators are acquitted or are pretending to agree.

Question 5

At common law, if all but one co-conspirator is acquitted, made the last remaining man be convicted?

Answer 5

No. Due the bilateral approach.

Question 6

With respect to conspiracy, New York follows the Wharton rule, which holds?

Answer 6

When 2 or more people are required for the commission of the substantive offense, the conspiracy must have more parties to it that are necessary for the crime about which they are conspiring. This is the law in New York.

Question 7

The New York, is there vicarious liability for co-conspirators for additional crimes committed in furtherance of the conspiracy’s objective if those additional crimes are foreseeable?

Answer 7

No, New York does not use vicarious liability for one who MERELY CONSPIRES and DOES NOT participate in the additional crime committed by a co-conspirator.

Question 8

This factual impossibility defense to conspiracy?

Answer 8

No

Question 9

Under New York law, what is the act requirement for the crime of attempt?

Answer 9

Strict to proseuctor = PROXIMITY TEST =conduct that gets DANGEROUSLY CLOSE to the commission of the crime

Question 10

Under common law, what is the act requirement for the crime of attempt

Answer 10

Generous to proseuctor = conduct that constitutes a substantial step toward the commission of the crime, provided conduct STRONGLY CORROBORATES criminal purpose

Question 11

Can you be accused of attempt of involuntary crimes?

Answer 11

No. That is completely impossible. There is no attempt version of negligence crimes or involuntary crimes or recklessness crimes..

Question 12

Is factual impossibility a defense to attempt?

Answer 12

No, never

Question 13

When is legal impossibility defense to attempt: 1. Under New York law?
2. Under common law?

Answer 13

1. Under New York law, legal impossibility is NOT a defense to attempt.
2. Under common law, legal impossibility is a defense to attempt.
   (Attempting to steal your own umbrella)

Question 14

Under common law, is withdrawal a defense to inchoate offenses?

Answer 14

Under common law, withdrawal is only effective for future crimes of co-conspirators. Withdrawal is otherwise ineffective for inchoate offenses.

Question 15

How do you withdraw for inchoate offenses under New York law? 2 elements?

Answer 15

RENUNCIATION:

1. Defendant renounces criminal purpose prior to the commission of the offense and makes a SINCERE and SUCCESSFUL effort to PREVENT the commission of the offense, and
2. The renunciation is COMPLETE and VOLUNTARY, based on a genuine “change of heart”

Question 16

Which to inchoate crimes merge with the completed crime on the MBE?

Answer 16

Solicitation and attempt

Question 17

In New York, which inchoate crimes merge with the underlying offense?

Answer 17

Only attempt. Unlike common law, New York does not merge solicitation into the underlying offense.

Question 18

When there is a large conspiracy and several sub conspiracies, when may members of the sub conspiracies be held liable for each other’s crimes that are foreseeable and in furtherance of the larger scheme?

Answer 18

All co-conspirators liable for each other’s crimes and a “CHAIN relationship”
members of sub conspiracies are not liable for the crimes of other sub conspiracy criminals, to the extent they are unrelated “HUB AND SPOKE relationship”

Question 19

Of a crime whose mens rea is negligence or whose mens rea is recklessness?

Answer 19

No. Attempt requires the specific intent to commit the underlying crime.

Question 20

At common law, is abandonment defense to attempt?

Answer 20

At common law, abandonment is not a defense if the defendant had the intent and committed an overt act.

Question 21

Under New York law, when is withdrawal an affirmative defense to solicitation and conspiracy (2 elements)?

Answer 21

1. RENUNCIATION that is voluntary and complete, and

2. Defendant PREVENTED commission of the crime

Question 22

Second-degree solicitation and second-degree conspiracy both require what level of crime?

Answer 22

Class A felony

Question 23

Under New York conspiracy law, is there vicarious liability for one who merely conspires and does not participate in committed the crime?

Answer 23

No. Merely conspiring and not participating is insufficient for crimes committed I other conspirators.

Question 24

In New York, what is the affirmative defense to attempt?

Answer 24

Abandonment: it requires a voluntary and complete renunciation and that the defendant avoided the commission of the crime by abandoning the effort.