MBE and NY Distinctions (Crim Law) Flashcards
Kidnapping in NY
What are the elements of
1st degree kidnapping?
2nd degree kidnapping?
1st Degree Kidnapping:
Abduction PLUS
Ransom
Restrained victim with intent to inflict physical injury, OR
V dies.
à All other kidnapping is 2nd degree;
à All kidnapping is an enumerated felony
for felony murder.
Burglary in NY
What are the elements of
1st degree burglary?
2nd degree burglary?
3rd degree burglary?
3rd Degree Burglary
B or E or remaining behind inside
ANY structure
ANY time of day or night
With intent to commit ANY crime inside
2nd Degree (3rd degree PLUS ANY of the following):
Structure = Dwelling
Injury to non-criminal, OR
Burglars are armed.
1st Degree
Dwelling AND
Injury to non-criminal, OR
Burglars are Armed
Robbery in NY
What are the elements of
1st degree robbery?
2nd degree robbery?
3rd degree robbery?
3rd Degree Robbery: Forcibly Stealing Property
NO physical Injury and NO firearms
2nd Degree Robbery
3rd Degree + ANY of the following
Aided by Another
Cause Physical Injury (NOT Serious)
Display a Firearm
1st Degree Robbery
Armed with a Deadly Weapon OR
Cause Serious Physical Injury
Homicide:
First Degree Manslaughter
What are the elements of
1st degree manslaughter?
1st Degree Manslaughter (NY):
Kill w/ intent to do bodily harm, or Voluntary manslaughter/provoked Killing (passion); Unjust abortion (BUT very difficult to define)
Homicide: Negligent Homicide
What are the elements of
negligent homicide?
Negligent Homicide (NY): killing resulting from criminal negligence.
Homicide:
Second Degree Murder
What are the elements of
2nd degree murder?
All murder in NY that is NOT 1st degree murder is 2nd degree murder.
3 Kinds of 2nd Degree Murder in NY:
Intent to Kill w/o Special Circumstances
Highly Reckless Murder (speeding)
Felony Murder
Homicide:
Second Degree Manslaughter
What are the elements of
2nd degree manslaughter?
2nd Degree Manslaughter (NY):
killing resulting from recklessness
(NOT highly reckless)
Defenses: Self Defense
What are the 3 exceptions
to the duty to retreat?
3 Exceptions to NYS Duty to
Retreat as Prerequisite for
Use of Deadly Force in Self Defense
Not Out of Home
Not if V of Rape or Robbery
PD has No Duty
Homicide: First Degree Murder
What are the elements of
1st degree murder in NY?
1st Degree Murder in NY (very narrow)
Intentional Killing + Special Circumstance
Special Circumstances Include
Intended V was PD, court or parole officer;
V was killed b/c judge
Witness/family; influence testimony;
Δ committed murder for hire
V intentionally killed as part of burglary, robbery, rape, kidnapping, arson, escape, or 2nd degree murder;
Torture
> 1 person as part of the same criminal plan.
Serial Murder
Defenses: Self-Defense
What is the rule on V’s
use of deadly force
in self-defense?
NYS Requires Retreat for Deadly Force
(Minority Rule)
V may use deadly force if V reasonably believes that deadly force will imminently be used on them, AND
V has retreated to wall, if safe to do so.
No duty to retreat: (1) home; (2) V of rape or robbery, (3) PD
Defenses: Duress
In NY, for what crimes is duress a defense?
In NY duress is an affirmative defense
to ALL crimes (Δ must raise/prove
by a preponderance of the evidence)
Conspiracy
4 NY Distinctions from MBE
4 Important NY Conspiracy Distinctions
Overt Act State: (i) liability, & (ii) overt act.
Unilateral Theory: you can conspire w/ PD
Withdrawal (Δ can withdraw; Must):
Renounce conspiracy
Prevent commission of crime.
Not liable for other conspirators’ subsequent crimes
NY Defenses
Defenses &
Affirmative Defenses
Affirmative Defense: Δ must raise and prove by a preponderance of the evidence.
E.g. Insanity, Duress, Entrapment
Defense: once Δ raises, prosecution must disprove beyond a reasonable doubt
E.g. Infancy, Self-Defense
NY Accomplice Liability
In NY, accomplices:
Cannot benefit from Principal’s defense going to mental state (e.g. insanity).
Are not absolved from liability even if Principal is acquitted, immune, or not prosecuted.
BUT, Δ cannot be convicted SOLELY on the uncorroborated testimony of accomplice.
Defenses: Insanity
Standard for Insanity
Defense in NY
NYS insanity rule is more lenient than M’Naughten, but less than MPC.
At the time of conduct, as a result of mental disease or defect, Δ lacked capacity to know or appreciate either:
(1) nature & consequence of such conduct, or (2) that such conduct was wrong.
Affirmative Defense: Δ must raise and prove by a preponderance of the evidence
Homicide
Approach to
Determining Which Homicide Crime To Apply
Did killing occur during the commission of a crime?
If yes, was crime an enumerated dangerous felony? If yes, apply felony murder, if no, apply misdemeanor murder. If no, did Δ intend to kill/inflict serious bodily harm/reckless disregard for life? If no, did Δ act w/criminal negligence? If yes, then crim. neg. hom. or invol. manslaughter. If yes (Δ did intend to kill/inflict S.B.I., or reckless disregard, was there adequate provocation? If yes, vol. mansl. If no, apply murder rules. If intent to kill + specific circumstance (either enumerated or for NY listed), 1st degree murder.
Duty to Act Homicide: omission resulting in death:
C-R-A-P-S: Contract (lifeguard); Relationship (parent); Assumption of duty; Peril (created by D); Statute (health care worker)
Criminally Negligent Homicide: knowledge that conduct creates unreasonable risk of SBI/death
Homicide: Felony Murder
What is NY’s additional defense to felony murder?
NY’s Additional Defense to Felony Murder
Δ did NOT commit or aid in commission of homicidal act
Δ was NOT armed with a deadly weapon
Δ did NOT reasonably believe that co-felons were armed with a deadly weapon.
Δ did NOT reasonably believe that any other participant intended to engage in conduct likely to result in death/serious physical injury.
Defenses: Insanity
Summary of 4 Insanity Rule
Summary of Insanity Rule
M’Naghten: Δ does not know right from wrong.
Irresistible Impulse: impulse that Δ cannot resist
Durham, but for mental illness, Δ would not have done the act.
MPC: combination of M’Naughten and the irresistible impulse rule: (a) appreciate criminality (right from wrong), and (b) resist impulse and conform conduct to law.
C/L Crimes: Property Crimes
Summary Chart of
Elements of Various
Property Crimes
C/L Property Crimes:
Burglary
On the MBE, what are the elements of burglary?
Elements of Burglary:
Breaking
Some force (e.g. even pushing interior door, BUT NOT wide open window) Constructive: maid using key at 3 am
Entering
Dwelling House of Another
Not a Barn
At Night
With Intention of Committing a Felony Inside
Intention must exist at time of B&E
E.g. if you break in for no reason, then once inside decide to commit a felony, that is NOT C/L burglary.
C/L Property Crimes
What are the elements of common law arson?
C/L Arson has 3 Elements
Malicious Burning
requires a material wasting of the fiber of the building;
e.g. burning carpet does NOT count
Of the Dwelling House
NOT a barn or store,
Of another.
C/L Property Crimes:
Extortion
What are the differences between robbery
and extortion?
2 Differences Between Robbery & Extortion
Don’t have to take from V’s presence.
Future harm, or threat of future harm.
Mental States
Chart of Requisite Intent
for Major Crimes
C/L Property Crimes:
Embezzlement
What is embezzlement?
Embezzler always has lawful possession of property, followed by an unlawful conversion.
Does NOT require any carrying away.
Embezzler does NOT have to personally benefit.
C/L Crimes: Robbery
On the MBE what are
the elements of robbery?
Robbery = larceny + assault
Larceny
Δ must take something from V or from V’s presence (presence is widely drawn)
Assault = Violence or Threat of Violence
Any small amount of violence is enough
Yanking necklace (BUT NOT picking pocket)
Threat of present imminent harm to V or V’s companion (“your $ or your wife!”)
C/L Property Crimes:
Larceny
What are the elements of
larceny (stealing)?
Larceny is a specific intent crime; 4 elements:
Unlawful Taking (minimal carrying-away motion, even 6”)
Personal property of another
Without his consent (consent must be voluntary)
With the intent to permanently deprive the owner of his property (this intent must exist at the time of the taking)
If you believe property is yours – mistake of fact – that is a defense to C/L larceny.
Continuing Trespass: if taken with wrongful state of mind, but decision to keep property is made later (e.g. joyride, then riders decide to keep).
C/L Property Crimes:
False Pretenses
What is false pretenses?
False Pretenses: Δ persuades owner of property to convey title by false pretenses
False pretense must be as to a present or past fact; a false promise to do something in the FUTURE is NOT false pretenses.
Must also take title, not just possession. Just possession = larceny by trick.
Homicide: Felony Murder
On the MBE, what are the
5 defenses to felony murder?
On the MBE, 5 defenses to felony murder:
Δ has defense to underlying felony
Death is not independent of the felony.
Death was unforeseeable.
Δ was no longer fleeing; reached a point of temporary safety.
Δ is not liable for death of co-felon, as a result of his resistance to (1) PD, or (2) V
[Agency Theory: only deaths caused by D or co-felon (agent) qualify.]
C/L Property Crimes
What are the 3
C/L property crimes?
3 C/L Property Crimes:
Larceny (basically stealing)
Embezzlement (lawful possession followed by an illegal conversion)
False Pretenses (conveyance of title under false representation of past or present fact).
All are specific intent: defenses include ANY mistake of fact negating intent AND voluntary intoxication.
Forgery: make/alter w/intent to defraud
Uttering: offer forged instrument w/intent to defraud
Larceny by Trick: victim consents to possession b/c of misrepresentation (“If you give me the $20, I’ll give it to Joe.”
Homicide: Felony Murder
What is felony murder?
Felony Murder Is
Any death caused in the commission of, or attempt to commit, a felony.
Inherently dangerous felonies qualify (e.g. burglary, arson, rape, robbery)
Sex Crimes
Rape & Statutory Rape
Summary of Rape and Sex Crimes
Slightest penetration completes crime.
Statutory Rape: strict liability
Insanity/involuntary intoxication ARE defenses,
Consent/ANY mistake of fact are NOT defenses
Homicide: C/L Murder
What are the 4 intents for C/L (2nd Degree) murder?
C/L Murder: Malice Crime
4 Intents for C/L (2nd Degree) Murder:
Intent to Kill
Intent to do Serious Bodily Harm
Highly Reckless Murder (e.g. 120 mph on Overlook Rd.)
Felony Murder (intent to commit felony; causing death while committing felony)
Homicide:
Involuntary Manslaughter
What is involuntary manslaughter?
Misdemeanor manslaughter?
Involuntary Manslaughter: killing from criminal negligence
Misdemeanor Manslaughter: killing V while committing (i) misdemeanor, or (ii) unenumerated felony.
Defenses: Specific Intent Crimes
What are the 2 additional
defenses available for specific intent crimes?
2 Additional Defenses
for Specific Intent Crimes
Voluntary Intoxication
Unreasonable Mistake of Fact
These are IN ADDITION to the other defenses which are available for ALL crimes
Also, remember that if a statute is intended to protect members of a limited class from exploitation, this presumptively makes members of that class immune from all criminal liability for that crime.
Homicide:
Voluntary Manslaughter
What are the requirements for voluntary manslaughter?
Voluntary Manslaughter: (sudden and intense provocation)
4 Requirements:
Adequate Provoking Event, AND
No Time to Cool Off, AND
Did NOT Cool Off (passion), AND
Δ kills.
C/L Crimes: Battery
Definition
Battery: a completed assault
C/L Crimes: Homicide
What are the 4 general categories of homicide
for the MBE?
4 General Categories of Murder on MBE:
1st Degree Murder (statutory; not in C/L, so unlikely on MBE)
Common Law/2nd Degree Murder (on MBE “murder” means 2nd Degree Murder)
Manslaughter (Voluntary/Involuntary)
Felony Murder
Defenses: Consent/Entrapment
Consent: almost NEVER a valid defense.
Entrapment: almost NEVER valid defense, b/c predisposition of Δ to commit crime negates entrapment.
C/L Crimes: Assault
What are the 2
theories of assault?
Assault as Attempted Battery
Specific Intent (like all attempts) E.g. Δ swings at V, but misses
Assault as Threat
General Intent
Defenses: Deadly Force
Who and When?
Deadly Force in Self Defense: (1) w/o fault, (2) confronted w/force, (3) threatened w/death or serious bodily harm
Can NEVER be used SOLELY to defend a dwelling (e.g. spring guns that shoot invaders when no one is home).
Can ONLY be used by the original aggressor
If he withdraws (runs for the door), &
Turns full face to original V and clearly communicates withdrawal to V.
CAN be used for defense of others
Defenses: Mistake of Fact
When is mistake of
fact a defense?
Depends on requisite intent for the crime:
Specific Intent: ANY MISTAKE, reasonable or unreasonable.
Malice/General Intent: Reasonable Mistakes ONLY
Strict Liability: NEVER
Defenses: Deadly Force
What is deadly force?
Deadly force is
ANY force that results in death.
Defenses: Duress
MBE: What crimes qualify for the defense of duress?
On the MBE, duress is a defense to all crimes EXCEPT homicide.
Defenses: Intoxication
Voluntary & Involuntary
Voluntary Intoxication (all self-induced, including addicts and alcoholics)
IS a defense to specific intent crimes, BUT
IS NOT a defense to any other kind of crime.
Involuntary Intoxication (form of insanity, includes physical force, or slip in drink)
Defense to ALL crimes (including strict liability; like insanity)
Defenses: Self Defense
When can a V use deadly force? Non-deadly force?
Non-Deadly Force
V reasonably believes that force will imminently be used on them.
Deadly Force
V reasonably believes that deadly force will imminently be used on them and is w/o fault.
If there is a retreat rule –> applies to both deadly and non-deadly force.
Defenses: Insanity
What are the 4
tests for insanity?
4 Tests for Insanity
M’Naughten: at time of conduct, Δ had mental disease that caused him not to (i) know wrongfulness, or (ii) understand nature & quality
Irresistible Impulse: b/c of mental illness, Δ lacked capacity to control actions/conform them to law.
Durham Rule: Δ’s conduct is the product of mental illness
MP Code: Δ lacked ability to conform conduct to the requirements of law.
Defenses: Infancy
At what age can a Δ claim infancy as a defense?
Infancy:
Under 7: NO criminal liability
Under 14: rebuttable presumption of NO criminal liability
Inchoate Offenses
What are the two
elements of attempt?
Attempt (Specific Intent)
Substantial Step
Beyond mere preparation
w/ Intent to Commit Crime
Defenses: Insanity
For what crimes can
a Δ claim insanity?
Insanity is a defense to ALL crimes,
including strict liability crimes
Inchoate Offenses
Defenses to Conspiracy
Impossibility is never a defense.
On the MBE
Withdrawal, even if adequate, does NOT withdraw Δ from liability for conspiracy itself.
Withdrawal OK for other conspirators’ subsequent crimes.
Defenses: Impossibility
(Factual & Legal)
Factual impossibility: NEVER a defense
I.e. impossible for Δ to accomplish crime
E.g. smoking oregano cigarette thinking it’s pot
Legal impossibility: defense if conduct was not a crime, even if Δ thought it was
Inchoate Offenses
Solicitation
Solicitation: asking someone to commit a crime
Crime ends as soon as you make the ask.
Once person agrees: conspiracy (merges)
Inchoate Offenses
What are the elements
of conspiracy?
Elements of Conspiracy:
Intentional Agreement to Pursue UNLAWFUL Objective (specific intent)
Implied/express;
Parties don’t have to know each other
C/L: at least 2 actual conspirators (no PD)
Overt Act (MBE): mere preparation
showing up at location
If all other conspirators are found not guilty, be careful, because there would be no one to conspire with
Inchoate Offenses
What are the 3
Inchoate offenses?
The 3 Inchoate Offenses
Solicitation
Conspiracy
Attempt
Inchoate Offenses
Conspiracy
Conspiracy is an agreement between multiple persons to commit a crime.
Specific intent to enter into the agreement with specific intent to commit the crime
There is NO MERGER: can be convicted of both conspiracy and underlying offense.
Each conspirator is liable for all foreseeable crimes committed in furtherance.
Wharton Crimes: if crime requires 2 people (adultery), then conspiracy requires 3 conspirators.
Mental States:
What is the formula for
strict liability crimes?
Formula for strict liability:
Crime is (1) administrative, (2) regulatory, (3) morality areas. No adverbs in definition (knowingly, recklessly, intentionally)
Any defense that negates intent is irrelevant
Consent of the V is never a good answer.
Accomplice Liability:
What is a criminal accomplice liable for?
Accomplice (aids or encourages the crime) is liable for:
Crime Itself
All other foreseeable crimes
Inability to be principal NOT a bar to accomplice liability.
BUT mere knowledge is not enough; must have a stake in the venture
Exclusions: (1) member of protected class; (2) withdraw (repudiate/neutralize)
Mental States:
What are the
general intent crimes?
Most crimes are general intent. If liability
doesn’t require some specific objective for the act (specific intent),
is not murder or arson, and
doesn’t fit formula for specific intent (admin./regulatory/moral + no adverbs),
Then the crime is likely general intent.
Mental States:
What is transferred intent?
Δ liable when she intends the harm that is caused, although the harm is actually imposed on a different V or object
Δ is often both guilty of crime and attempt against original V.
Mental States:
What are the 4 common
law mental states?
4 Mental States at Common Law:
Specific Intent (act w/ particular objective)
Malice: (murder and arson)
General Intent: awareness of acting in proscribed manner (inferred from act)
Strict Liability: intent irrelevant
Mental States:
What are the malice crimes?
There are only 2 Malice Crimes:
Murder
Arson
Omission Liability:
What are 5 circumstances where failure to act can lead to criminal liability?
5 Circumstances where there IS a legal duty to act (omission liability):
Statute (file tax returns
Contract (life guard/nurse)
Relation Between Parties (spouse/parent)
Voluntary Assumption of Duty to Care (start rescue mission, then abandon)
Your conduct created the peril.
Mental States:
What are the specific
Intent crimes?
Specific Intent Crimes:
All 3 inchoate (solicitation, conspiracy, and attempt)
1st Degree Murder (ONLY)
Assault (as an attempted battery)
C/L Felonies Against Property:
Larceny
Embezzlement
False Pretenses
Robbery
Burglary
Forgery
Merger:
What is merger?
Merger: when lesser crime merges into the greater crime, so that completion of the greater crime means that you CANNOT be convicted of the lesser crime.
R You CANNOT be convicted of attempted murder if you are successful: the attempt merges into the actual murder.
R You CAN be convicted of conspiracy to commit murder and of murder of you plan to, and actually do, kill your victim.
Acts:
What 3 bodily movements do NOT qualify
for criminal liability?
3 Bodily Movements that do NOT qualify for criminal liability:
Not a product of own volition (pushed)
Reflexive/Convulsive Act (seizure)
Unconscious/Asleep (sleep walking)
Jurisdiction:
How does court get jurisdiction in criminal case?
Two Ways Jurisdiction is Bestowed on a Court in a Criminal Case:
Conduct/Omission
Result
R E.g. bullet fired from NJ into NY
Merger
Which 2 substantive
crimes DO merge into
the substantive offense?
2 Crimes that Do Merge
into the Substantive Offense:
Solicitation (asking someone to commit a crime).
Attempt
B/c they merge, a defense to solicitation/attempt is “I did it!”
