NY BAR REVIEW 14 Flashcards
1st Degree ROBBERY
defendant CAUSES nonparticipant SERIOUS PHYSICAL INJURY or defendant is ARMED or THREATENS USE of dangerous instrument or displays what appears to be a firearm.
Victim must REASONABLY PERCEIVE from defendant’s actions that GUN is present, NOT words alone.
AFFIRMATIVE DEFENSE to first degree robbery
alleged firearm displayed is NOT loaded–> becomes 2nd DEGREE ROBBERY
possession
KNOWINGLY possessing stolen property raises presumption that defendant has INTENT to BENEFIT HIMSELF or ANOTHER.
Pawnbroker or other dealer in property is PRESUMED to KNOW property is stolen if fails to make REASONABLE INQUIRY of person from whom obtained property. RECEIPT OF STOLEN PROPERTY
criminal possession of a weapon
knowingly possessing loaded firearm outside home or place of business or with intent to use it unlawfully against another
2nd DEGREE CRIMINAL TRESPASS
knowingly entering or remaining unlawfully in a dwelling
Wrongful birth
NONE in NY
intended beneficiary of economic transactions
attorney’s duty runs only to client who has retained him.
only client can sue attorney for malpractice.
tort recovery
NY constitution provides - right of action to recover damages for injuries resulting in death shall NOT be abrogated and amount recoverable shall NOT be subject to statutory limit
local government versus home rule
legislature can act in relation to property, affairs, government of local government ONLY by GENERAL LAW or SPECIAL LAW.
request of 2 THIRDS legislature or its CEO, concurred by MAJORITY of members, OR
certificate of NECESSITY from governor, reciting EMERGENCY situation, concurred by 2 THIRDS of legislature.
NO need for local consent if
concern of legislature is a matter of state and local interest
periodic tenancy
termination
NOTICE OF TERMINATION from landlord to tenant AT LEAST 30 DAYS IN NYC OR AT LEAST ONE MONTH OUTSIDE NYC, before expiration of term.
OUTSIDE NYC, NO NOTICE required if definite term has been set forth.
receipt of stolen property
criminal possession of stolen property–> KNOWINGLY possessing stolen property with intent to benefit self or another or to IMPEDE owner’s recovery of property.
Defendant can be convicted of ATTEMPTED criminal possession of stolen property also.
IMPOSSIBILITY due to attendant circumstances is NOT a defense.
stealing stolen property is
criminal possession of stolen property
ROBBERY
2 offenses COMBINED
larceny and either of 3:
1. criminal mischief
2. attempted assault
3. assault
Property MUST be of kind subject to larceny, INCLUDES REAL PROPERTY!
TAKING need NOT be in presence of other person.
CAN assault another some distance from property, then take the property and it shall be considered ROBBERY.
THREATS IN ROBBERY =
FORCE IN ROBBERY
larceny
civil liability
civil liability imposed on adult or emancipated minor parents, legal guardians of minor who commits larceny against property of a merchant.
Obligation to repay FULL RETAIL VALUE of merchandise if NOT recovered in merchantable condition and up to $500.
valuing property
where property CANT satisfactorily be ascertained, it is deemed LESS than $250.
other property valued at MARKET VALUE AT TIME OF TAKING.
RETAIL price governs if object stolen from a store.
3rd DEGREE CRIMINAL TRESPASS
knowing entering or remaining unlawfully in a building or real estate that is fenced or enclosed in manner designed to exclude intruders.
local government
STANDING TO CHALLENGE
if no violation to local government home rule, NO standing to challenge constitutionality of statute affecting its power, for the local government.
public school
NY CONSTITUTION - legislature MUST provide for maintenance AND support of system of FREE COMMON SCHOOLS available to ALL children in the state
parochial schools
NY CONSTITUTION
specific PROHIBITION against state aid to parochial schools
HOUSING
government function
NY CONSTITUTION
housing is proper function of government.
legislature MAY provide for LOW INCOME housing and nursing home accommodations, for clearance, re-planning, reconstruction, rehabilitation of standard and unsanitary areas, recreational and other facilities incidental thereto.
Provisions RESTRICTING use of public funds to benefit private parties
respondeat superior
punitive damages recoverable in action against employer for tort of employee IF employer grossly negligent in hiring or allowing employee to continue work.
employee entrusted with general management of business OR employer authorized or ratified tortious act.
automobile owner for driver
PERMISSIVE USE STATUTE
Owner NOT vicariously liable for intentionally tortious operation by driver.
Registration is prima facie evidence of ownership. Proof of ownership raises rebuttable presumption that driver used and operated vehicle with owner’s consent and permission AND NOT necessary that person to whom owner granted permission ACTUALLY OPERATED VEHICLE, MERE PRESENCE is SUFFICIENT.
