NY BAR REVIEW 14

Question 1

1st Degree ROBBERY

Answer 1

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.

Question 2

AFFIRMATIVE DEFENSE to first degree robbery

Answer 2

alleged firearm displayed is NOT loaded–> becomes 2nd DEGREE ROBBERY

Question 3

possession

Answer 3

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

Question 4

criminal possession of a weapon

Answer 4

knowingly possessing loaded firearm outside home or place of business or with intent to use it unlawfully against another

Question 5

2nd DEGREE CRIMINAL TRESPASS

Answer 5

knowingly entering or remaining unlawfully in a dwelling

Question 6

Wrongful birth

Answer 6

NONE in NY

Question 7

intended beneficiary of economic transactions

Answer 7

attorney’s duty runs only to client who has retained him.

only client can sue attorney for malpractice.

Question 8

tort recovery

Answer 8

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

Question 9

local government versus home rule

Answer 9

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.

Question 10

NO need for local consent if

Answer 10

concern of legislature is a matter of state and local interest

Question 11

periodic tenancy

termination

Answer 11

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.

Question 12

receipt of stolen property

Answer 12

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.

Question 13

stealing stolen property is

Answer 13

criminal possession of stolen property

Question 14

ROBBERY

Answer 14

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.

Question 15

THREATS IN ROBBERY =

Answer 15

FORCE IN ROBBERY

Question 16

larceny

civil liability

Answer 16

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.

Question 17

valuing property

Answer 17

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.

Question 18

3rd DEGREE CRIMINAL TRESPASS

Answer 18

knowing entering or remaining unlawfully in a building or real estate that is fenced or enclosed in manner designed to exclude intruders.

Question 19

local government

STANDING TO CHALLENGE

Answer 19

if no violation to local government home rule, NO standing to challenge constitutionality of statute affecting its power, for the local government.

Question 20

public school

Answer 20

NY CONSTITUTION - legislature MUST provide for maintenance AND support of system of FREE COMMON SCHOOLS available to ALL children in the state

Question 21

parochial schools

Answer 21

NY CONSTITUTION

specific PROHIBITION against state aid to parochial schools

Question 22

HOUSING

government function

Answer 22

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

Question 23

respondeat superior

Answer 23

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.

Question 24

automobile owner for driver

Answer 24

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.

Question 25

parent for child

Answer 25

parents liable up to 5 THOUSAND for willful and intentional property tort of minor child, over 10 YEARS OLD.
duty of parent to protect third party from FORESEEABLE harm resulting form infant child’s improvident use of dangerous instrument, where the use is subject to parent’s control.
Even when infant is unrelated to defendant.
Defendant parent may be found DIRECTLY liable to third party under theory of NEGLIGENT ENTRUSTMENT.

Question 26

Tavernkeeper

Answer 26

NY DRAMSHOP provision
Vendor who has unlawfully supplied intoxicated vendee with alcohol is LIABLE to third parties injured by intoxicated vendee.
This includes selling to visibly intoxicated person as well as person actually or apparently UNDER 21.

Question 27

Criminal possession of a firearm

Answer 27

knowingly possessing any firearm.
possession may be constructive.
actual physical control need NOT be proven when weapon is located in area within dominion and control of defendant

Question 28

FIRST DEGREE CRIMINAL TRESPASS

Answer 28

knowingly entering or remaining unlawfully in a building and possessing or knowing another participant has explosive or deadly weapon

Question 29

automobile owner for driver

Answer 29

FEDERAL STATUTE preempts NY
allowing rental or lease companies to be considered OWNERS for purposes of PERMISSIBLE USE STATUTE. rental and lease companies only held LIABLE if negligent or criminal wrongdoing on part of company