NY BAR REVIEW 22

Question 1

exculpation

Answer 1

justification is a defense, NOT an affirmative defense

Question 2

self defense, nondeadly force

Answer 2

person may use physical force on another to the extent he reasonably believes such force is necessary to defend himself or another from use or imminent use of unlawful force unless-
with intent to cause physical injury to another, provoked use or imminent use of such force, was initial aggressor, or use or imminent use of force is pursuant to an unlawful combat agreement

Question 3

deadly force, retreat

Answer 3

person may NOT use deadly force if can safely retreat. retreat is NOT required if person is in his dwelling and is not the initial aggressor, doorway of an apt doesnt function as in dwelling and duty to retreat DOES apply. is a peace officer or acts under peace officer’s direction.
believes other person is committing or attempting kidnapping, forcible rape, forcible criminal sexual act, or robbery. or
believes other person is committing a burglary

Question 4

resisting arrest

Answer 4

person may NOT use physical force to resist arrest made by police officer, whether authorized or unauthorized, when reasonably appears that he is a police officer. purpose is to prevent disputes over validity of arrests and doesnt prevent person from using reasonable force to protect self from police officer who is using excessive physical force to effectuate an arrest

Question 5

duress

Answer 5

affirmative defense to all crimes, including homicide

Question 6

entrapment

Answer 6

def is entitled to it, if reasonable view of evidence supports the charge, even if def’s testimony is inconsistent and he denies crime charged

Question 7

affirmative defense

Answer 7

entrapment is an affirmative defense. if def raises entrapment, prosecution may introduce evidence of def’s past criminal acts in its direct case

Question 8

battery

Answer 8

NONE in NY.

Question 9

assault

Answer 9

in NY, encompasses common law battery.

victim suffered physical injury, impairment of physical condition or substl pain.

Question 10

attempted assault

Answer 10

exists in NY, equivalent to common law assault

Question 11

1st deg assault

Answer 11

causes serious physical injury to another person with deadly weapon or dangerous instrument w intent to do so.
seriously and permanently disfigures another person or permanently destroys, amputates, disables a body part of the person , w intent to do so.
under circumstances evincing depraved indifference to human life, recklessly engages in conduct that creates a grave risk of death to another person and thereby causes serious physical injury to that person,
OR
during commission or attempted commission of a felony or flight therefrom, he or another participant in felony causes serious physical injury to nonparticipant

Question 12

serious physical injury

Answer 12

physical injury that creates a substl risk of death, or causes death or serious disfigurement, protracted impairment of health, or protracted loss or impairment of any bodily organ

Question 13

menacing

Answer 13

when a person, by physical menace, intentionally places or attempts to place another person in fear of death, imminent serious physical injury, or physical injury

Question 14

harassment

Answer 14

a person, w intent to harass, annoy, or alarm, strikes,shoves, kicks, or makes physical contact w another person, or attempts or threatens to do so. follows a person in or about a public place, or engages in a course of conduct or repeatedly commits acts that alarm or seriously annoy another person with no legitimate purpose

Question 15

intentional murder

Answer 15

a person, w intent to cause death of another, causes death of such person or of a 3rd party, transferred intent.

Question 16

2 affirmative defenses to intentional murder

Answer 16

can exculpate the def-
extreme emotional disturbance / heat of passion.
aiding a suicide.
these mitigate the crime so that the def may still be prosecuted for manslaughter

Question 17

highly reckless murder

Answer 17

depraved indifference to human life, person recklessly engages in conduct that creates grave risk of death to another person, and thereby causes death of another. force directed at victim but not intended to kill may suffice for conviction. no crime of attempt exists for reckless murder bc no intent is involved.

Question 18

depraved indiff to human life are fact specific and depend on def’s mental state

Answer 18

depraved indiff murder is NOT a lesser degree of intentional murder.
one who intends to cause serious physical injury doesnt commit depraved indiff murder bc intended victim dies.

Question 19

one who acts w conscious intent to cause serious injury, and succeeds in doing so, is guilty only of?

Answer 19

manslaughter

Question 20

depraved indiff murder is one committed in what?

Answer 20

utter disregard for value of human life and one that reflects wickedness, evil, inhumanity, as manifested by brutal heinous and despicable acts.

Question 21

depraved indiff murder can also occur when a def acting w intent not to kill but to what?

Answer 21

harm, engages in torture or brutal, prolonged and ultimately fatal course of conduct ag particularly vulnerable victim

Question 22

one on one shooting or knifing resulting in death is virtually never what?

Answer 22

depraved indiff murder

Question 23

although intoxicated driving cases generally are not thought of as depraved indiff cases, particularly egregious circumstances may support this charge. ct of appeals has affirmed cases in which jury found what?

Answer 23

the def recklessly engaged in conduct that created a grave risk of death to others, despite intoxication.
def, blood alcohol concentration of 0.28, drove at high speed on wrong side of road for 2.5 miles, disregarded signage and alter from other motorists and ultimately caused 2 deaths.

Question 24

twin count indictments where intentional and depraved murder is charged should be rare, and twin count submissions to jury should be even rarer. prosecutors should generally make a choice at outset whether to pursue what?

Answer 24

intentional or depraved indiff murder, and when they do not, the judge should act as a gatekeeper and generally permit only 1 of the counts to go to the jury

Question 25

1st deg murder statute

Answer 25

intentional murder w special circumstances

Question 26

NY COURT OF APPEALS ON DEATH PENALTY STATUTE

Answer 26

unconstitutional

Question 27

first deg murder - def over 18 yrs of age and commit murder in 1 of these ways:

Answer 27

1. intended victim is police officer, court officer, parole officer, probation officer, employee of division of youth, first responder, corrections employee, engaged in official duties at time of killing, and def knew or reasonably should have known that victim was such.

Question 28

first deg murder - def over 18 yrs of age and commit murder in 1 of these ways:

Answer 28

2. victim was killed bc was a judge

Question 29

first deg murder - def over 18 yrs of age and commit murder in 1 of these ways:

Answer 29

3. intended victim was a witness or family member of witness to crime and killing committed to exact retribution for or prevent or influence testimony of witness

Question 30

first deg murder - def over 18 yrs of age and commit murder in 1 of these ways:

Answer 30

4. def committed murder for hire

Question 31

first deg murder - def over 18 yrs of age and commit murder in 1 of these ways:

Answer 31

5. victim, nonparticipant in crime, was intentionally killed by def during course of one of felonies below or immediate flight therefrom:
robbery
burglary (1st or 2nd)
kidnapping (1st)
arson (1st or2nd)
rape (1st)
criminal sexual act
sexual abuse
escape
attempted murder (2nd)

Question 32

first deg murder - def over 18 yrs of age and commit murder in 1 of these ways:

Answer 32

6. at time of killing, def was in custody or escaped custody and was serving a life sentence

Question 33

first deg murder - def over 18 yrs of age and commit murder in 1 of these ways:

Answer 33

7. def committed torture murder

Question 34

first deg murder - def over 18 yrs of age and commit murder in 1 of these ways:

Answer 34

8. def intentionally killed more than 1 person as part of same criminal transaction or was previously convicted of murder in 1st or 2nd or another equivalent law

Question 35

first deg murder - def over 18 yrs of age and commit murder in 1 of these ways:

Answer 35

9. def committed serial murder

Question 36

first deg murder - def over 18 yrs of age and commit murder in 1 of these ways:

Answer 36

10. victim was killed in furtherance of terrorism act