NY BAR REVIEW 22 Flashcards
exculpation
justification is a defense, NOT an affirmative defense
self defense, nondeadly force
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
deadly force, retreat
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
resisting arrest
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
duress
affirmative defense to all crimes, including homicide
entrapment
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
affirmative defense
entrapment is an affirmative defense. if def raises entrapment, prosecution may introduce evidence of def’s past criminal acts in its direct case
battery
NONE in NY.
assault
in NY, encompasses common law battery.
victim suffered physical injury, impairment of physical condition or substl pain.
attempted assault
exists in NY, equivalent to common law assault
1st deg assault
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
serious physical injury
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
menacing
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
harassment
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
intentional murder
a person, w intent to cause death of another, causes death of such person or of a 3rd party, transferred intent.
2 affirmative defenses to intentional murder
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
highly reckless murder
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.
depraved indiff to human life are fact specific and depend on def’s mental state
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.
one who acts w conscious intent to cause serious injury, and succeeds in doing so, is guilty only of?
manslaughter
depraved indiff murder is one committed in what?
utter disregard for value of human life and one that reflects wickedness, evil, inhumanity, as manifested by brutal heinous and despicable acts.
depraved indiff murder can also occur when a def acting w intent not to kill but to what?
harm, engages in torture or brutal, prolonged and ultimately fatal course of conduct ag particularly vulnerable victim
one on one shooting or knifing resulting in death is virtually never what?
depraved indiff murder
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?
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.
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?
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