NY BAR REVIEW 15

Question 1

diminished capacity in NY

Answer 1

The diminished capacity plea is based in the belief that certain people, because of mental impairment or disease, are simply incapable of reaching the mental state required to commit a particular crime.

Question 2

insanity defense in NY

Answer 2

lacked criminal responsibility by
reason of mental disease or defect. If you find that the defendant
has proven that affirmative defense, then you must return a
verdict of not responsible by reason of mental disease or defect
A person lacks criminal responsibility by reason of mental
disease or defect when, at the time of the prohibited conduct, as
a result of mental disease or defect, that person lacked
substantial capacity to know or appreciate either:
1. The nature and consequences of such conduct; or
2. That such conduct was wrong.

Question 3

insanity defense in NY elaborated

Answer 3

the lack of substantial capacity to know or appreciate
must have existed at the time the prohibited conduct was
committed.
Second, the lack of substantial capacity to know or
2
appreciate must have been the result of mental disease or defect.
Third, a lack of substantial capacity to know or appreciate
does not require a lack of total capacity to know or appreciate.
Fourth, the term “know or appreciate” means to have some
understanding; it means more than mere surface knowledge.
Fifth, with respect to the term “wrong,” a person lacks
substantial capacity to know or appreciate that conduct is wrong
if that person, as a result of mental disease or defect, lacked
substantial capacity to know or appreciate either that the conduct
was against the law or that it was against commonly held moral
principles, or both.5

Question 4

insanity - preponderance of the evidence

Answer 4

defendant has the burden of
proving that he/she lacked criminal responsibility by reason of
mental disease or defect and he/she must do so by a
preponderance of the evidence.

Question 5

prove affirmative defense of insanity by preponderance of the evidence

Answer 5

opinions of psychiatric witnesses,
– prior hospitalizations of the defendant,
– hospital and other medical records,
– the nature and manner in which the crime was committed,
–(specify)

Question 6

use of physical force in defense of a person

Answer 6

A person may use physical force if he or she reasonably believes it is necessary to defend himself/ herself or a third party when there is a reasonable belief of imminent use of unlawful physical force

Question 7

justification for use of physical force

Answer 7

Use of physical force when such conduct is required or authorized by law or judicial decree or is performed by a public servant exercising reasonable exercise of official duties, power, functions
Conduct necessary as emergency measure to avoid an imminent public or private injury
Parent/guardian may use physical not deadly force to maintain discipline or promote welfare for the child
Warden or other correctional official may use physical force to maintain discipline and order
A common carrier may use physical force to prevent death or serious physical injury
A physician may use physical force for treatment purposes
A person may use physical force in self-defense, or defense of a third party, premises, or to prevent larceny or in order to effect an arrest or prevent an escape from custody

Question 8

NY SELF DEFENSE LAW

Answer 8

Justification; a defense: Penal Code Section 35.00
Use of physical force generally: Penal Code Section 35.10
Use of physical force in defense of a person: Penal Code Section 35.15
Use of physical force in defense of premises/person during burglary: Penal Code Section 35.20

Question 9

NY SELF DEFENSE CASTLE DOCTRINE

Answer 9

allows individuals to use deadly force to defend their homes against intruders. The key distinction between stand your ground and the castle doctrine is that the castle doctrine designates this justification for people in their homes. The rationale is that your home is “your castle” or safe refuge, and that you should not have to run away from your home when defending it against invaders.

Question 10

NY’s DUTY TO RETREAT

Answer 10

when an individual is under immediate threat of harm, they are required to retreat from the threat as much as possible. Only then, can the individual use force for self defense purposes; the use of deadly force is considered a last resort.

Question 11

contracts by minors

Answer 11

May disaffirm most contracts if disaffirmed within reasonable time after reaching majority; exceptions: (1). certain loans; (2). married infant buying home; (3). providing medical care for self/child; (4). for performing athletic or arts services if court-approved; (5). life insurance if 15 or over; (6). or if veteran or veteran’s spouse

Question 12

minors’ ability to sue

Answer 12

Through guardian or parent, adult spouse, guardian ad litem appointed by court or by infant if over 14

Question 13

minors’ consent to medical treatment

Answer 13

If married, parent, pregnant, or in an emergency

Question 14

juvenile delinquent 1

Answer 14

means a person over seven and less than sixteen years of age, who, having committed an act that would constitute a crime if committed by an adult, (a) is not criminally responsible for such conduct by reason of infancy, or (b) is the defendant in an action ordered removed from a criminal court to the family court pursuant to article seven hundred twenty-five of the criminal procedure law.

Question 15

juvenile delinquent 2

Answer 15

means a person over seven and less than sixteen years of age, or commencing on October first, two thousand eighteen a person over seven and less than seventeen years of age, and commencing October first, two thousand nineteen a person over seven and less than eighteen years of age, who, having committed an act that would constitute a crime, or a violation, where such violation is alleged to have occurred in the same transaction or occurrence of the alleged criminal act, if committed by an adult, (a) is not criminally responsible for such conduct by reason of infancy, or (b) is the defendant in an action ordered removed from a criminal court to the family court pursuant to article seven hundred twenty-five of the criminal procedure law.

Question 16

FEDERAL RULE 50A - Judgment as a Matter of Law.

Answer 16

If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may:

(A) resolve the issue against the party; and

(B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue.

Question 17

murder

Answer 17

is the unlawful killing of another human without justification or valid excuse, especially the unlawful killing of another human being with malice aforethought.

Question 18

harassment in the first degree

Answer 18

when they intentionally and repeatedly harass another person. This includes following that person in, or around, public places or by course of conduct or repeatedly committing acts which places the victim in reasonable fear of physical injury.

Question 19

harrassment

Answer 19

intentionally targeting someone else with behavior that is meant to alarm, annoy, torment or terrorize them

Question 20

harrassment in the second degree

Answer 20

with intent to harass, annoy or alarm another person in or about public places; they engage in conduct or repeatedly commit acts which alarm or seriously annoy the victim and serve no legitimate purpose.

Question 21

menacing - felony or misdemeanor?

Answer 21

1st Degree Menacing: This is a class E felony punishable by up to 4 years in prison.

2nd Degree Menacing: This is a class A misdemeanor punishable by up to 1 year in prison.

3rd Degree Menacing: This is a class B misdemeanor punishable by up to 3 months in prison.

Question 22

1st DEGREE MENACING

Answer 22

Commits 2nd degree menacing; and
Has been previously convicted of 2nd degree menacing or menacing a police officer or a peace officer within the last 10 years.

Question 23

2ND DEGREE MENACING

Answer 23

ntentionally places or attempts to place another person in reasonable fear of injury or death by displaying a deadly weapon or instrument; or
Repeatedly following or engaging in repeated conduct to intentionally place or attempt to place another person in reasonable fear of injury or death; or
Commits the crime of menacing in the 3rd degree in violation of a protective or other court order.

Question 24

3RD DEGREE MENACING

Answer 24

A person is guilty of 3rd degree menacing when he or she intentionally places or attempts to place another person in fear of death or imminent physical injury.

Question 25

defenses to 1st DEGREE MURDER

Answer 25

Extreme emotional disturbance
Assisted suicide without the use of duress or deception
Mental disease or defect
Infancy (for persons under 18 years of age)
Self-defense
Defense of another person

Question 26

FIRST DEGREE MURDER PENALTY/SENTENCE

Answer 26

class A-I felony and is subject to one of the following sentences:

Death;
Life imprisonment without parole; or
Imprisonment for a term of 20 to 25 years.
Although the statute lists the death penalty as a possible sentence, its use has been in question after certain appeals court cases, making the alternative sentences more likely outcomes.

Question 27

INTENTIONAL MURDER IN NY

Answer 27

intentional murder is elevated to first-degree murder when someone 18 or older, intending to cause the death of another person, actually causes the death of that person or a third person and any one of several aggravating factors is present. Those factors address:

The identity of the intended victim (police officers, certain peace officers, correctional employees, judges, witnesses);
The circumstances in which the murder was committed (while the defendant was serving a life sentence, during the commission of a specified felony (“felony murder”), for hire, accompanied by torture, in furtherance of a terrorist act); or
The nature of the killing(s).

Question 28

FELONY MURDER

Answer 28

cases where the victim is killed in the course and in furtherance of, or immediate flight from, certain specific crimes which include:

Robbery;
Some degrees of burglary;
Kidnapping;
Arson;
Rape; and
Sexual abuse.
must have personally caused the victim's death or commanded another to do so

Question 29

NY’S 2nd degree murder

Answer 29

with the intent to cause the death of another person, he or she causes the death of such person or a third person;
under circumstances demonstrating a “depraved indifference to human life,” the defendant “recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person”;
acting alone or in concert with others, the defendant commits or attempts to commit a specified felony (including robbery, burglary, kidnapping, arson, rape, and sexual abuse) and, in the course of and in furtherance of such crime or of immediate flight therefrom, he or she causes the death of a non-participant;
under circumstances demonstrating a “depraved indifference to human life,” a defendant 18 years old or more “recklessly engages in conduct which creates a grave risk of serious physical injury or death” to a person less than 11 years old and causes the death of such person; or
while in the course of committing a specified crime such as rape, a criminal sexual act or sexual abuse, a defendant 18 years old or more intentionally causes the death of a person less than 14 years old.

Question 30

depraved indifference murder

Answer 30

is a form of reckless homicide. To convict a defendant for second-degree depraved indifference murder, the prosecution must prove - in addition to the defendant’s creation of a “grave risk of death” to another person - two distinct mens reas, or mental states: recklessness, and a “depraved indifference to human life.” Convictions for depraved indifference murder have become increasingly rare, and often involve conduct creating danger to a group of people rather than a single individual.

Question 31

2nd degree felony murder

Answer 31

equires only the defendant’s intent to commit one of the predicate felonies.
being an accomplice of the actual killer.

Question 32

accomplice v. conspirator

Answer 32

When an individual takes on an active role in the planning of a crime, the crime may instead be one of conspiracy. A conspirator agrees with others to commit a future crime, while an accomplice assists, in some way, in the actual commission of a crime. Furthermore, unlike accomplices to a crime, conspirators can be guilty even if their plan is not completed.

Question 33

accomplice examples

Answer 33

Serving as the getaway driver in a bank robbery.
Turning off the alarm system of a jewelry store in which you work, knowing that it will be robbed later that evening.
Loaning a handgun to someone who you know is planning to commit a crime.
Directing a vehicle to a dead-end street where you know an armed carjacker is waiting.

Question 34

accomplice elements

Answer 34

when one individual commits a crime, another person is criminally liable for that same conduct when the person, “solicits, requests, commands, importunes, or intentionally aids,” another person in criminal conduct. Found at Section 200.00 of the New York Penal Code, criminal liability for the conduct of another or accomplice liability in New York means as the accomplice, you can be charged for the same crime as the actual actor.