NY BAR REVIEW criminal law and procedure 2019 Flashcards
1
Q
CRIMINAL PROCEDURE LAW divides NY courts into 2 categories:
A
superior cts, which include sup ct and county ct.
local cts, which include cts, town cts, district cts, NYC criminal ct.
2
Q
violations and misdemeanors generally tried where?
A
local criminal cts
3
Q
felonies are tried where?
A
county ct or sup ct
4
Q
felony may be initiated by filing of information or complaint where?
A
in local criminal ct
5
Q
in order to try a def for a felony, MUST ultimately be prosecuted by what?
A
indictment, filed by GRAND JURY or def’s consent to waive indictment and proceed by superior ct information
6
Q
SUP CT
A
court of general jurisdiction.
can exercise jurisdiction over all criminal proceedings.
exercises criminal jurisdiction over felonies in NYC.
7
Q
county court
A
exist only in 2nd judicial dept outside nyc and long island and in 3rd and 4th judicial dept.
have jurisdiction over all criminal matters, but hear primarily felonies.
8
Q
NYC CRIMINAL CT
A
criminal jurisdiction within city of ny over misdemeanors and violations
9
Q
UNIFORM COURT ACTS
A
district, city , town, and village cts
10
Q
district cts
A
only in nassau and suffolk counties, located in 2nd judicial dept, and city / town / village cts, have jurisdiction over misdemeanors and violations
11
Q
culpable metnal states in which law?
A
PENAL LAW
12
Q
def MUST act intentionally, knowingly, recklessly, or with criminal neg in order to be held ______ for a crime?
A
criminally liable
13
Q
person acts intentionally w respect to what?
A
result or conduct when his conscious objective is to cause such result or engage in such conduct
14
Q
knowingly requires that a person be what?
A
aware that his conduct is of thenature described by theoffense or that a circumstance described by the offense exists
15
Q
person acts recklessly w respect to a result when he is aware of and consciously disregards what?
A
a substl and unjustifiable risk that such result will occur
16
Q
criminal neg requires that a person what?
A
fail to perceive a substl and unjustifiable risk that a certain result will occur
17
Q
person generally NOT relieved of criminal liab for conduct bc he engages in such conduct under mistaken belief of fact unless what?
A
factual mistake negates culpable mental state required for commission of offense or statute defining offense expressly provides that factual mistake constitutes a defense
18
Q
person is generally NOT relieved of criminal liability for conduct bc he engages in conduct under mistaken belief that it does NOT constitute an offense, unless the mistaken belief is what?
A
based upon an official sttmt of the law
19
Q
in any prosecution for an offense, it is an affirmative defense that when the def engaged in the proscribed conduct, he lacked criminal responsibility by reason of what?
A
mental disease or defect.
PENAL LAW
20
Q
lack criminal responsibility by reason of mental disease or defect means that at time of conduct, as a result of mental disease or defect, he lacked what?
A
substl capacity to know or appreciate nature and consequences of conduct OR that such conduct was wrong.
21
Q
lacking a substl capacity to know or appreciate is designed to permit def possessed of mere what?
A
surface knowledge or cognition to be excused and to require that he have some understanding of the legal and moral import of conduct involved if he is to be held criminally responsible.
22
Q
affirmative defense to murder in first and second degree that defendant acted under influence of what?
A
extreme emotional disturbance for which there was a reasonable explanation or excuse
23
Q
extreme emotional disturbance reduces degree of criminal culpability for acts taht would otherwise constitute what?
A
murder.
24
Q
extreme emotional disturbance is NOT defense to which crime?
A
manslaughter, or any other crime
25
the defense of extreme emotional disturbance, if successful, does NOT result in acquittal, but does what?
reduces charge to manslaughter in 1st deg
PENAL LAW
26
extreme emotional disturbance must be supported by proof that def suffered from what?
mental infirmity NOT rising to level of insanity at time of homicide, typically manifested by loss of self control
27
extreme emotional disturbance requires evidence of what?
subjective element that def acted under extreme emotional disturbance, and an objective element, that there was a reasonable explanation or excuse for the emotional disturbance
28
intoxication is NOT a full defense to what?
a criminal charge.
29
in any prosecution for an offense, evidence of intoxication of the def may be offered by the def whenever it is relevant to do what?
negate the elemetn of crime charged
30
voluntary intoxication may NOT negate what type of culpable mental state?
reckless
31
there is a fundamental distinction bw an ordinary defense and an affirmative defense
the people have the burden of disproving an ordinary defense beyond a reasonable doubt.
32
ordinary defense
evidence of the defense, which if credited, is sufficient to raise a reasonable doubt.
33
affirmative defense
def has the more demanding burden of establishing such a def by a preponderance of the evidence
34
alibi
NOT an affirmative or exculpatory defense which def has burden of proving.
evidence that will require an acquittal if when all evidence is considered, a reasonable doubt is raised as to def's guilt
35
in order to avoid confusion and ensure that the jury understands that the people MUST always meet their burden of proving that the accused actually committed the crime, an alibi is treated for practical purposes same as what?
statutory defense, even though its not so defined in PENAL LAW.
people have burden of disproving an alibi beyond a reasonable doubt.
36
in any prosecution for an offense, it is an affirmative defense that the def engaged in the proscribed conduct bc he was what?
induced or encouraged to do so by a public servant.
37
inducement or encouragement requires active what?
inducement or encouragement
38
conduct merely affording a person an opportunity to commit an offense does NOT constitute what?
entrapment
39
although an entrapment defense may fail bc of a def's predisposition to commit the offense, if the govt's conduct was so egregious and deprivative as to constitute a violation of the due process clause of the NYS CONSTITUTION, def would be entitled to what?
dismissal of the charges
40
in any prosecution for an offense, justification is what?
a defense
41
conduct that would otherwise constitute an offense is justifiable when the conduct is what?
authorized by law or is necessary as an emergency measure to avoid imminent injury
42
an actor may use physical force ag another person if what?
the actor reasonably believes it necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by such other person
43
he may not do so if he provoked the other person's conduct w intent to cause him what?
physical injury or if he was the initial aggressor and has not effectively withdrawn from the encounter
44
an actor may NOT use deadly physical force unless he reasonably believes that what?
the other person is using or about to use deadly physical force and he cannot retreat w complete safety
45
there is NO duty to retreat if the actor is what?
in his own home and was NOT the initial aggressor
PENAL LAW
46
in determining whether a def acted reasonably in perceiving and defending ag impending harm, the def is permitted introduce evidence of what?
victim's prior acts of violence only if such were known to def at time of incident!
47
in prosecution for an offense, other than an attempt to commit a crime, in which def's guilt depends upon his criminal liab for conduct of another, it is an affirmative def that what?
the def withdrew from participation in such offense prior to commission of offense and made a substl effort to prevent commission of crime
48
what is assault
specific intent to cause physical injury and causing of such injury
49
degrees of assault depend on what?
such factors as whether physical or serious physical injury was caused, whether deadly weapon or dangerous instrument was used, status of victim - police, public servant, children, senior citizens, and actor's mental culpability.
50
assault crimes can involve what types of actions?
intentional, reckless, criminally negligent
51
new assault crimes to the PENAL LAW
vehicular assault.
gang assault.
stalking.
52
what is homicide?
conduct causing death of person under circumstances constituting murder, manslaughter, criminally neglig homicide.
PENAL LAW
53
degrees of homicide depend on what?
how death was caused.
who the victim was.
mental state of the actor.
54
criminal responsibility for homicide
def's actions MUST be sufficiently direct cause of ensuing death
55
intentional murder in 1st deg.
| intentional murder in 2nd deg.
with intent to cause death of another person, caused death of such person or of third person
56
the intent for intentional murder requires what?
conscious objective / purpose to cause particular result, or engage in particular conduct
PENAL LAW
57
person acts w intent to cause death of another when that person's conscious objective / purpose is to what?
cause death of another
PENAL LAW
58
person guilty of murder if he killed another person how?
MODEL PENAL CODE
knowingly, awareness that is practically certain that conduct will cause death
59
in addition to requiring intentional killing, 1st deg murder statute requires what?
that def's conduct include one of numerous separate aggravating factors listed in statute, many of which involve status of victim - police officer, peace officer, correctional facility employee, persons who respond to emergencies, as part of their official duties, witnesses to crime and their immediate family members, judges, officers of the court.
PENAL LAW
60
rule of transferred intent is incorporated in what?
in each of intentional homicide crimes
61
where resulting death is of 3rd person who wasn't def's intended victim, def may nonetheless be held to same level of what?
criminal liab as if intended victim were killed
62
murder in 2nd deg includes which type of murder?
depraved indifference , which occurs when under the circumstances evincing a depraved indiff to human life, one recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes death of another person
63
depraved indiff has been judicially defined as what?
a culpable mental state
64
felony murder / 2nd deg murder occurs if
| what?
during or in immediate flight from commission or attempted commission of statutorily specified felony - robbery, burglary, kidnapping, arson, rape, escape, a participant in crime causes death of person other than a participant
65
each participant in the crime, irrespective of whether they caused the death, may be guilty of what?
felony murder under the circumstances
66
1st deg manslaughter occurs when?
with intent to cause serious physical injury to another person, def causes death of such person or of 3rd person or with intent to cause death of another person, cause death of such person or of a 3rd person under the influence of extreme emotional disturbance
PENAL LAW
67
2nd deg manslaughter
person recklessly causes death of another
68
recklessly
culpable mental state.
person engages in conduct which creates or contributes to a substl and unjusticifiable risk that a result will orccur or a circumstance defined by statute exists and when that person is aware of adn consciously disregards that risk
69
reckless manslaughter is aggravated to 2nd deg murder when?
grave risk of death is evident under circumstances evincing a depraved indiff to human life
70
criminally neg homicide
with criminal neg he causes death of another
71
criminal neg
engages in conduct which creates or contributes to substl and unjustifiable risk that a result will orccur or a circumstance defined by statute exists, and when that person fails to perceive that risk in a situation where the offender has a legal duty of awareness
72
element of every sex offense
sexual act was committed w/o victim's consent
73
lack of consent results from what?
forcible compulsion or incapacity ofvictim to consent.
PENAL LAW
74
person deemed incapable of consent when?
he is less than 17 years of age, mentally disabled or incapacitated, physically helpless, in the care and custody of dept of corrections and community supervision , hospital, and actor is an employee of the dept or hospital
75
guilty of trespass when?
he knowingly enters or remains unlawfully in or upon premises
PENAL LAW
76
burglary
person knowingly enter or remain unlawfully in a bldg w intent to commit a crime therein
PENAL LAW
77
burglary degrees determined how?
whether bldg was a dwelling and whether a participant possessed or used a deadly weapon or instrument or caused physical injury to a non participant
PENAL LAW
78
larceny
w intent to deprive another of property, he wrongfully takes prop from owner thereof
79
deg of larceny determined how?
value of stolen prop
80
robbery
forcible stealing.
in course of committing a larceny, person uses or threatens the immediate use of physical force upon another person. use or threat of force MUST be for purpose of preventing or overcoming resistance to taking of property or for purpose of compelling another to deliver up the prop
81
for the purpose
required that def intend one of the alternatives, rather than that the force used have one of the alternative effects
82
criminal solicitation
w intent that another engage in criminal conduct, he solicits, requests, commands, importunes, attempts to cause such other person to engage in such conduct.
communication to another to commit a crime.
no resulting action by person being solicited is necessary.
83
conspiracy
w intent that conduct constituting crime be performed, he agrees w one or more persons to engage in or cause performance of such conduct.
84
conviction of conspiracy - whats essential?
proof of overt act committed by one of the conspirators in furtherance of conspiracy.
PENAL LAW
85
overt act
independent act that tends to carry out conspiracy
86
unilateral theory of conspiracy
def may convicted of conspiracy even though the illicit agreement is w a party who is not criminally liable due to lack of intent - undercover police officer, or other impediments - acquittal of alleged co conspirator
PENAL LAW
87
attempt to commit a crime
with intent to commit a crime, he engages in conduct which tends to effect commission of such crime.
UNLIKE the model penal code, PENAL LAW requires intent to commit particular crime
88
if specific intent to commit crime inconsistent w required mental culpability of crime, we do or do not recognize an attempt?
NOT
89
person can or cannot be charged w an attempt to commit 2nd deg/reckless manslaughter or depraved indiff murder, or felony murder, or reckless/criminally neg assault.
CANNOT
90
criminal facilitation
a person believes it probable that heis rendering aid to a person who intends to commit a crime, engages in conduct that provides another person the means or opportunity for commission of a crime and that in fact aids such person in commission of crime
91
while knowingly aiding commission of crime, facilitator does not necessarily possess what?
mental culpability required for commission of crime and is therefore NOT within statutory definition of an accomplice
92
police officer is allowed to arrest a person for a crime, felony, misdemeanor as opposed to an offense without a warrant, where officer has what - to believe that person committed crime, whether or not in his presence?
probable cause
93
evaluating propriety of encounters initiated by police officers - if pol off seeks to simply request info from individual, the request MUST be supported by what?
an objective, credible reason, not necessarily indicative of criminality
94
common law right of inquiry is activated by founded suspicion that what?
criminality is afoot. permits great intrusion.
95
where pol off has reasonable suspicion that particular person was involved in a crime, officer is authorized to what?
forcibly stop and detain the person
96
where pol off has probable cause to believe that person committed crime, what is authorized?
arrest
97
differences bw federal law and NY law on what constitutes an unlawful what of citizen?
seizure
98
seizure - federal law
requires either physical force or if no physical force, submission to assertion of authority.
99
NYS CONSTITUTION does NOT require that indiv be physically restrained or submit to show of authority beforefinding a what?
seizure
100
test for seizure
whether reasonable person would have believed under the circumstances that the officer's conduct was a significant limitation on his freedom
101
state and fed constitutions, protective pat down exception to the warrant requirement authorizes what?
limited search of lawfully detained suspects to determine whether a weapon is present
102
federal law permits warrantless seizure of contraband detected how?
through police officer's touch during terry pat down
103
NY LAW - scope of intrusion authorized during a pat down is limited to what?
what is necessary to ascertaining presence of WEAPONS
104
NY law narrowly limits scope of intrusion authorization when?
during pat down to whats necessary to ascertaining presence of weapons
105
local criminal court, may, upon application of police officer or district atty, issue what?
arrest warrant directing officer to search designated premises, vehicle, person for purpose of seizing designated prop and delivering it to ct which issued warrant or directing officer to search designated premises for purpose of arresting person who is subject of arrest or bench warrant where designated premises is dwelling of 3rd person who's not subject of arrest warrant
106
personal prop subject to seizure pursuant to search warrant if there's reasonable cause to believe that it is what?
stolen.
unlawfully possessed.
has been used or is possessed for purpose of being used, to commit or conceal commission of an offense.
constitutes evidence or tends to demonstrate that an offense was committed.
107
search warrant MUST direct search of what?
designated or described place or vehicle or person, or any person in place or vehicle
108
application for search warrant may be made how?
in writing or orally subject to certain requirements
109
application MUST contain what?
name of ct and name of title of applicant for search warrant.
sttmt that there's reasonable cause to believe that prop may be found in designated place, vehicle, person, reasonable cause to believe that person who is subject to warrant may be found in designated premises.
allegations of fact supporting such sttmt based upon personal knowledge of applicant or based upon info or belief. if factual allegations are based upon info and belief, source of such info and grounds for such belief Must be stated.
110
FEDERAL RULE - informer
undisclosed informant's tip may be sufficient to support a search warrant if under totality of circumstances there is probable cause supporting the warrant.
111
NY COURT OF APPEALS - informer
application for search warrant MUST demonstrate veracity / reliability of source of info and basis of informant's knowledge
112
for a warrantless emergency search, search MUST NOT be what?
primarily motivated by intent to arrest and seize evidence
113
where police have reason to believe that vehicle MAY contain evidence related to crime for which occupant was arrested or that weapon MAY be discovered or means of escape thwarted, may contemporaneously what?
search passenger compartment and any closed containers found therein
114
constitutional right to counsel attached INDELIBLY in 2 situations:
when formal judicial proceedings begin whether or not def has actually retained / requested atty.
uncharged individuals who have retained a lawyer in matter at issue/ while in custody, requested a lawyer
115
what is indelible attachment of right to counsel?
individual cannot be questioned in absence of counsel
116
once the indelible right to counsel attached, def in custody CANNOT what?
be interrogated in absence of counsel on ANY matter, whether related or unrelated to subject of representation
117
once an atty enters the proceeding, a def in custody CANNOT what?
waive his right to counsel in absence of counsel
118
how does one resolve the question of voluntariness of def's admission/confession?
pre trial hearing does so
119
if sttmt is NOT suppressed, def is permitted to what?
relitigate issue at trial
120
NYS CONSTITUTION- sttmt given subsequent to arrest in one's home, which was predicated on probable cause but without warrant or exigent circumstances MUST be what?
suppressed, absent attenuation.
| FEDERAL LAW is to the contrary
121
testimony about a prior id of a def by photograph is admissible or not?
ADMISSIBLE provided photographic id was conducted pursuant to a blind procedure
122
what is a blind procedure
one whereby police conducting arrayodnt know which person is suspect or where suspect is in thearray
123
police failure to follow blind procedures may result in what?
preclusion of photo id as evidence in chief, but WONT by itself require suppression of in court id.
124
suppression is warranted any time that photo id is what?
unconstitutionally suggestive
125
corporeal
showup.
| lineup.
126
showup ids are strongly disfavored, but are permissible if what?
exigent circumstances require immediate id or in absence of exigent circumstances, when theyre spatially and temporally proximate to commission of crime and not unduly suggestive
127
testimony re id made at pre trial lineup is properly admitted UNLESS:
shown that procedure was unduly suggestive
128
the people have the initial burden of showing reasonableness of police conduct in pre trial id procedure but def bears what?
ultimate burden of proving that the procedure was unduly suggestive
129
evidence of unduly suggestive police arranged pre trial id proceeding MUST be what?
excluded at trial as matter of state, not federal, constl law
130
in court id may be permitted notwithstanding unduly suggestive what?
pre trial id procedure.
| only if people can demonstrate that source indep of pre trial id procedure exists for witness' in court id
131
witness who's able to make in court id that he observed a perpetrator commit a crime and based on a present recollections def is perpetrator is permitted to what?
testify that he subsequently id'd the def in properly conducted lineup or photographic id.
132
if witness is unable to make in court id based on present recollection, witness' prior id in a properly conducted lineup or photographic id may be established by whom?
3rd party witness
133
under CPLR, testimony of prior id and photographic evidence constitute what?
evidence in chief
134
after a crim action is commenced, def is entitled to what?
speedy trial
135
the people are required to be ready and announce readiness for trial within what?
prescribed time frame
136
time period for readiness varies w what?
severity of offense and some offenses are excluded form statute
137
failure of prosecution to be ready within statutory period may require that action be what?
dismissed or that an incarcerated def be released from custody
138
factors when the rt to speedy trial has been violated:
extent of delay.
reason for delay.
nature of underlying charge.
whether or not there is indication that the defense has been impaired by reason of the delay
139
due process violation in event prosecution is NOT initiated when?
timely
140
def MUST show that the govt caused delay in order to obtain what?
tactical advantage and actual prejudice resulted
141
where delay is great enough, there needbe neither ___ nor ____ of prejudice to the def
proof.
| fact.
142
double jeopardy
grants def protection ag second prosecution for same offense after acquittal or conviction
143
a person may NOT be twice
prosecuted for same offense
144
double jeopardy prohibits what?
prosecution of same person twice under same statute for same act
145
test to be applied to determine whether there are 2 offenses or only one is whether:
each provision requires proof of fact which other doesnt
146
def charged by felony complaint is permitted to what?
testify on own behalf in grand jury and to have lawyer present.
147
decision whether to hear other witnesses on behalf of def rests with whom?
grand jury
148
every witness in grand jury proceeding MUST give any evidence legally requested, regardless of what?
any protest or belief on ones part that it may tend to incriminate oneself
149
witness who testifies in grand jury is granted immunity, unless what?
witness agrees to waive immunity or testimony is NOT responsive to question and is gratuitously given or volunterred w knowledge that is NOT responsive
150
waiver of immunity may be a precondition to what?
testifying for certain witnesses (target, or witness for the target)
151
if one receives immunity in grand jury or at trial automatically receives what?
transactional immunity as opposed to use immunity
152
what is transactional immunity?
protects witness from prosecution for offense involved
153
what is use immunity ?
protects witness ag govts use of his immunized testimony in prosecution of witness, except in subsequent prosecution for perjury or giving false sttmt
154
def may NOT be convicted of offense upon testimony of accomplice unsupported by what ?
corroborative evidence tending to connect def w commission of offense
