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).
