NY Crim

Question 1

Knowingly

Answer 1

New York Distinction: In New York, when the term “knowingly” is used in a statute defining an offense in which the aggregate weight of a controlled substance is an element, the defendant’s knowledge of the aggregate weight of the controlled substance is NOT an element of the offense, and so the defendant cannot assert as a defense that he did not know the weight of the substance.

Question 2

NY follows MPC definitions?

-
*
-
-

Answer 2

Yes

1. Purposely
   Defendant acts with the concscious object to cause a certain result.
2. Knowingly or Willfully
   o Defendant is aware or knows of circumstances required by the crime or that a particular result is certain to occur.

3 Recklessly
Defendant acts with conscious disregard of substantial and unjustifiable risk.

4. Negligently
   o Defendant should be aware of a substantial and unjustifiable risk.
   o Standard of care of a reasonable person.
   o Gross negligence – significant departure from the standard of care of a reasonable person.

Question 3

Statute silent re mes rea?

-

-

Answer 3

If the statute is silent about mental state in New York, liability is established if the defendant acted purposely, knowingly, or recklessly

If a statute specifies a mens rea for one element of a crime, you can assume that mens rea standard applies to all of the elements, unless it would be contrary to the statute itself.

Question 4

Mistake of fact

Answer 4

Does it negate the required mens rea?

Question 5

Homicide

• cauase

Answer 5

The killing of another human being. Need but-for and proximate cause.

NY: If two defendants both fire shots, one of which kills a victim and it is impossible to determine which shot was the fatal one, both defendants can be charged as long as they both have the requisite mens rea and are aiding and abetting each other in the shooting.

Question 6

Murder

Answer 6

murder is the unlawful killing of a human being with malice aforethought.

Two types of murder in New York: first degree and second degree

Question 7

First Degree murder (5)

Answer 7

5(police, hire, FM, multiple, terrorism/torture)

Intentional kililing of a police officer or a peace officer, corrections officer, witness, or judge

murder for hire

defendant personally and INTENTIONALLY kills somone other than a co-felon while committting qualifying felonies (BRAKERS)
-burglary, robbery, arson, kidnaping, escape, rape, sexual abuse

Intentional killing of multiple victims

Intentional killing of someone while the defendant is engaged in torture or terrorism

Question 8

Second Degree Murder

Answer 8

Intentionally killing someone

Depraved indifference (NOT heart)

Felony murders (BRAKERS) : but for the UNINTENTIONAL death in the course of a felony. no specific intent requirement. AFFIRMATIVE DEFENSE: (1) did not commit the homicidal act, (2) was unarmed, (3) had reasonable grounds to think co-felons unarmed, and (4) had no reason to believe that conduct would likely cause death.

Question 9

Felony Murder

Answer 9

1st degree if death was intentional

2nd degree if death was unintentional

co-felon deaths are excluded! don’t count

Brakers!

Question 10

Degrees of manslaughter and definitions

4

2

Answer 10

FIRST-Degree Manslaughter (4)

Death caused with intent to inflict serious bodily injury

Intentional killing under “extreme emotional disturbance” (~heat of passion)

Abortion after 24 weeks

Recklessly placing child under grave risk of serious physical injury

SECOND-Degree manslaughter (2)

recklessly causing death of another

intentionally assisting a suicide or abortion where the mother dies

Question 11

Vehicular manslaughter, 3 degrees

Answer 11

a. Vehicular Manslaughter in the Second Degree
Criminally negligent homicide that is caused by operating a motor vehicle under the influence of alcohol or drugs.

b. Vehicular Manslaughter in the First Degree
Requirements for vehicular manslaughter in the second degree are satisfied and you have one of the following six factors:
1. Driving with BAC of .18 or more;
2. Defendant’s driver’s license is suspended or
revoked because of having driven under the influence;
3. Driving after a prior DUI conviction within the past 10 years;
4. Causing the death of 2or more people
5. Driving after a prior conviction of vehicular assault OR
6. Causing the death of a child passenger 15 of age or younger.

c. Aggravated Vehicular Homicide
Meet the requirements for vehicular manslaughter in the second degree plus you must show the driver was driving RECKLESSLY and one of two other things:
 The defendant caused the death of one person and serious bodily injury to at least one other person; or
 There is an aggravating factor for first-degree vehicular manslaughter that is present.

Question 12

Criminally Negligent Homicide

Answer 12

o This is a catch-all category in which the defendant, with criminal negligence, causes the death of another person.
o Remember this must be a gross deviation from the standard of care of a reasonable person. Defendant’s negligence would be apparent to anyone who shares the community’s sense of right and wrong.

Question 13

Larceny (IMPORTNANT!)

generally

5

inference

Answer 13

NY’s definition of larceny includes common law larceny, larceny by trick, embezzlement and false pretenses. It also includes extortion.

NY distinguishes among the degrees of larceny based on the value of the stolen property or type of theft offense, FIVE DEGREES:

1st degree: > 1 million

2nd degree, one of three ways: (i) >50,000, (ii) extortion by threat of physical injury, or (iii) abusing position as public servant.

3d degree > 3000

4th Degree, one of four ways: (i) >1000, (ii) public record, credit card, fire arm, car, (iii) theft from victim’s body, or (iv) extortion.

Petit larceny: stealing property of a value of 1000 or less.

Question 14

Forgery

Answer 14

Required mens rea is the intent to defraud, deceive or injure another. Three types:

• 3d degreee- intentionally making, completing or altering a written instrument
• 2d degree- [3d degree] PLUS written instrument is deed, codicil, will, K, assignement, creidt card, public record, prescription
• 1st degree - [3d degree] PLUS if written instrument purports to be money, stamps, stocks, or bonds

Issuing a Bad Check (separate crime): knows not enough funds, payment actually refused. AFFIRMATIVE defense: paid in 10 days!)

Question 15

Robbery (3)

-

-

-

Answer 15

FIRST DEGREE: forcible stealing of property and one of the following FOUR conditions

• a nonparticipant is seriously injured,
• D is armed w a deadly weapon
• D threatens the use of a dangerous instrument
• D displays what appears to be a firearm, EXCEPT that it is an affirmative defense that firearm was unloaded or incapable of inflicting harm

SECOND DEGREE: forcible stealing of property when one of the following FOUR conditions:

• D aided by another
• nonparticipant is injured (cf NOT seriously)
• D displays what appears to be a weapon
• property taken is a motor vehicle

THIRD DEGREE - everything else (forcible stealing)

Question 16

Burglary (Important!)

Answer 16

• Need not occur at nighttime
• There is no requirement that there be a breaking
• TEST: Burglary requires that D knowingly ENTER or REMAIN in a building with the intent to commit a crime.
• The kind of dwelling affects the degree

THIRD degree: catch-all

SECOND degree: DWELLING or armed, threatening, injures nonparticipant, or displays weapons

FIRST degree: DWELLING AND armed, threatens to use dangerous instrument, injures a non-participatn, or display what appears to be a firearm (but TOY GUN affirmative defense!)

Question 17

Arson

Answer 17

• not limited to dwellings (individual property, buildings, cars, boats, etc)
• five elements (intentional prop, reckless building/car, intentional building car, + person, + person + bomb)

FIFTH degree: intentional damage to PROPERTY of another without consent by intentionally starting a fire or causing an explosion

FOURTH degree: RECKLESS damage to a BUILDING/CAR by intentionally starting a fire or causing an explosion. [AFFIRMATIVE DEFENSE: D has proprietary interest in property!]

THIRD degree: INTENTIONAL damage to a BUILDING/CAR by intentionally starting a fire or causing an explosion. [AFFIRMATIVE DEFENSE: all owners consented, sole intent was lawful, AND no reasonable ground for D to believe it was dangerous]

SECOND degree: arson in the third degree is elevated when (i) a nonparticipant is in the BUILDING/CAR, AND (ii) D knows/reason to know of presence.

FIRST degree: second degree arson is elevated to first when an INCENDIARY DEVICE is used.

Question 18

Criminal Possession of Stolen Property

Answer 18

(i) Receiving control of stolen property (ii) knowing that it is stolen, and (iii) intent to permanently deprive owner of property

FIVE degrees:

• 1st > 1mil
• 2nd > 50,000
• 3d > 3000
• 4th [ >1000, credit card, firearm, motor vehicle]
• 5th everything else.

Question 19

Assault*

Answer 19

The common law crimes of battery and mayhem are known as assault under New York law. Thus assault is the unlawful application of force to another person that causes bodily harm OR constitutes an offensive touching.

FIRST-degree assault in New York requires either (i) an INTENT to cause serious injury by
means of a DEADLY WEAPON or dangerous instrument or (ii) CAUSING serious injury with depraved indifference to human life or during the course of committing or attempting to commit a felony.
 All other assaults are second- or third-degree.

SECOND degree: assault + intentionally causes serious injury, prison, school

THIRD degree assault: intentionally or recklessly causes injury

TO SUMMARIZE: 1st deadly weapon or depraved indifference; 2nd serious injury, school, prison; 3d unlawful touching etc.

Question 20

Menacing

Answer 20

Menacing is (i) attempted a assault, or (ii) intentionally placing another in apprehension of imminent bodily harm.

Question 21

Vehicular Assault

Answer 21

Same framework as for Vehicular Manslaughter. The difference is the DEGREE OF HARM (physical harm versus death).

SECOND DEGREE Vehicular assault if driver causes serious phycical injury to another person while operating a vehicle under the influence of alcohol or drugs.

FIRST DEGREE Vehicular Assault
Requirements for vehicular assault in the second degree are satisfied and you have one of the following six factors:
1. Driving with BAC of .18 or more;
2. Defendant’s driver’s license is suspended or
revoked because of having driven under the influence;
3. Driving after a prior DUI conviction within the past 10 years;
4. Causing the death of 2or more people
5. Driving after a prior conviction of vehicular assault or homicide OR
6. Causing the serious physical injury to a child passenger 15 of age or younger.

c. Aggravated Vehicular Assault
Meet the requirements for vehicular assault in the second degree plus you must show the driver was driving RECKLESSLY and there is an aggravating factor for first-degree vehicular manslaughter that is present.

Question 22

Reckless endagerment

Answer 22

First-degree reckless endangerment occurs when the defendant acts with “depraved indifference” to human life, recklessly engaging in conduct that creates a grave risk of DEATH to another person.

Second-degree reckless endangerment occurs when a defendant recklessly engages in conduct that creates a substantial risk of SERIOUS INJURY

Question 23

Larceny (blurbs about component crimes)

Answer 23

Larceny: is the (1) trespassory (2) taking and (3) carrying away (4) of personal property of another (5) with the intent to permanently deprive that person of property (intent to steal)

Larceny by trick: (1) obtaining possession of property owned by another through fraud or deceit (2) with the intent to unlawfully convert, and (3) in fact unlawfully converts.

Embezzlement: fraudulent conversion of the property of another by a person who is in lawful possession. Mens rea is intent to defraud.

False pretenses: false representation of a material fact with the intent to cause victim to pass title to defendant, and title is passed.

Extortion: In New York, extortion is a form of larceny in which property is taken under a threat. The threat need not be imminent and may include a threat of either physical injury or property damage. The property intended to be taken need not be on the victim’s person or in the victim’s presence.

Question 24

Rape

• -

(degrees)

Answer 24

• New York recognizes the crime of rape against both men and women
• Recognizes rape regardless of whether parties are married

FIRST DEGREE (4): sexual intercourse (i) by force; (ii) with a person incapable of consent by reason of physical helplessness; (iii) with a person less than 11 years of age; OR (iv) by a person who 18 or older when the victim is UNDER 13

SECOND DEGREE (2): sexual intercourse (i) by a person over 18 with a person UNDER 15; OR with a person incapable of consent due to mental disability or incapacity.

THIRD DEGREE (3): sexual intercourse (i) with a person 17 years old or older AND incapable of consent; (ii) without consent of the other person by reason other than incapacity to consent; OR (iii) 21 year old with some LESS than 17 years of age.

So, to recap: statutory rape less than: [11, 18-13], [18-15], [21-17]; force is first degree; shifting scales of incapacity to consent.

Question 25

Kidnapping

Answer 25

SECOND DEGREE Kidnapping is the (i) unlawful (ii) confinement of a person (iii) against that person’s will (iv) coupled with either the movement or hiding of that person.

FIRST DEGREE. Second degree kidnapping is ELEVATED to first degree on any of the following factors (4):

• demand for ransom
• compelling third party to act in a certain way
• if abducted person dies
• restraint of person for more than 12 hours WITH intent to inflict injury, advance felony, interfere with PD or gov’t

Question 26

Unlawful Imprisonment

-

-

Answer 26

SECOND DEGREE unlawful imprisonment is the (i) unlawful (ii) confinement of a person (iii) without consent.

FIRST DEGREE. Second degree is ELEVATED to the first degree when the victim is exposed to RISK OF SERIOUS PHYSICAL INJURY

NB - difference with kidnapping is no moving/hiding

Question 27

1. Eavesdropping
2. Crimes against children, including abandonment, non-support, and endangerment
3. Endangerment crimes against incompetent, physically disabled, or vulnerable elderly people [6 all tolled]

Answer 27

Eavesdropping: general intent crime. D must unlawfully engage in wiretapping or mechanical overhearing or intercepting. [NEED technology]

Crimes against kids, elderly (6): ABANDONMENT OF A CHILD (under 14, specific intent); NONSUPPORT OF A CHILD (under 16, need legal obligation to support); ENDANGERING THE WELFARE OF A CHILD (knowingly acts in manner injurious, under 17, reasonable diligence when responsible for kid); UNLAWFULLY DEALING WITH A CHILD (under 18, knowingly sells cigs, booze, tats); ENDANGERING THE WELFARE OF AN INCOMPETENT OR PHYSICALLY DISABLED PERSON (knowing acts in manner likely to be injurious, when victim unable to care for himself); and ENDANGERING THE WELFARE OF A VULNERABLE ELDERLY PERSON (over 60, and unable to care for himself, against caregiver).

Question 28

Other crimes:

4. Criminal nuisance
5. Harassment
6. DWI

Answer 28

Criminal nuisance: knowingly maintain premisses with unlawful conduct OR maintain condition endangering health/safety of numerous persons.

Harassment: [Intent to annoy/alarm] + [physical contact or following, repeated acts], first degree if reasonable fear of injury

Aggravated harassment:
Second degree includes THREATS
First degree: motivated by race, gender, etc.: cross burning, swastica,

DWI: no operating car while impaired. Person is PRESUMED impaired if BAC over .08. Under 21, not a drop!

Question 29

Solicitation

d

*

Answer 29

-the enticing, encouraging, OR advising of another person
-to commit a crime
-with the intent that the person commit the crime
(SPECIFIC INTENT!)

AFFIRMATIVE DEFENSE: renunciation is defense to solicitation, but must be (i) voluntary and complete, and (ii) D successfully prevents the commission of the crime.

Solicitation generally does NOT merge (unless necsessarily incidental, eg bribe)

Question 30

Corroboration

Answer 30

Evidence of accomplice is INSUFFICIENT without corroboration. Accomplice is person who can reasonably be considered to be a participant in the crime.

Question 31

Conspiracy

Answer 31

(i) An agreement (ii) between two or more persons (iii) to accomplish an unlawful purpose (iv) with the intent to accomplish that purpose.
AND
an overt act by ANY coconspirator.

NY follows the MPC in allowing for UNILATERAL CONSPIRACIES. Other person can be cop under cover.

LIABILITY FOR coconspirators’ acts: In New York, co-conspirators are NOT vicariously liable for UNPLANNED crimes committed by co-conspirators. To be liable for the crimes of co-conspirators, a defendant would have to meet the requirements of ACCOMPLICE LIABILITY.

AFFIRMATIVE DEFENSE TO CONSPIRACY: WITHDRAWAL: simple withdrawal is not enough. Defendant must show that he made a SUBSTANTIAL EFFORT to prevent the commission of the conspiratorial plan.

(corroboration point)

Question 32

Attempt

Answer 32

D has (i) specific intent to commit the crime and (ii) takes a substantial step towards its commission.

In NY, D’s conduct needs TO BE VERY CLOSE TO THE ACCOMPLISHMENT of the crime to constitute a substantial step.

NB: Specific intent crime!

Question 33

Defenses in general , BOP

Answer 33

Ds bear BOP on affirmative defenses by a preponderance of the evidence

Question 34

Accomplice Liability

Answer 34

Both the principal and accomplice can be charged with a crime

PRINCIPAL: the person whose acts or omissions form the actus reus of the crime;

ACCOMPLICE: one who (i) assists OR encourages the crime AND (ii) provides that assistance with the intention of aiding or encouraging the crime. (specific intent!). In NY, this first prong can be satisfied by soliciting, requesting, commanding, urging, or intentionally aiding in the commission of a crime

AFFIRMATIVE DEFENSE: WITHDRAWAL, requires three actions, the accomplice must (i) RENOUNCE his criminal purpose completely and voluntarily, (ii) WITHDRAW from participation PRIOR to the crime, and (iii) make a SUBSTANTIAL EFFORT TO PREVENT the commission of the crime.

NB: after-crime support does not give rise to liability for crime; but for separate offense: OBSTRUCTION.
(nb: corroboration)

Question 35

Defenses: Insanity

Answer 35

Affirmative defense of insanity is available if (3):

(i) As a result of a mental defect or disorder
(ii) Defendant lacked the “substantial capacity” to know or appreciate (iii) EITHER the nature and consequences off such conduct OR that such conduct was wrong.

Question 36

Defenses: Intoxication

Answer 36

Voluntary or involuntary?

voluntary intoxication may be a defense to a SPECIFIC INTENT crime where it prevents the defendant from forming the relevant intent. NOT a defense to GENERAL INTENT crimes (malice, recklessness, negligence)

Involuntary intoxication is a defense to any crime where the intoxication serves to negate
an element of the crime. MUST show that the intoxication occurred either: (i) without knowledge of the intoxicating nature of the substance; OR
(ii) under duress.

Question 37

Defenses: Infancy

Answer 37

A person less than 16 is not criminally responsible unless:
o 13-, 14-, and 15-year-olds can be charged with SECOND DEGREE MURDER in New York.
o 14- and 15-year-olds can be charged with SERIOUS CRIMES (BRAKERS).

Question 38

Defenses: Self-Defense

Answer 38

A defendant can use deadly force only if the defendant REASONABLY BELIEVES deadly force is about to be used against him and he cannot RETREAT without complete safety as to himself and others.
Thus, New York requires retreat where possible but there is no duty to retreat in one’s HOME. (Castle doctrine)

Deadly force includes force that is likely to cause serious bodily injury.

Question 39

Defenses: Apprehending a Fleeing Felon?

Answer 39

Non-police may NOT use deadly force to apprehend a fleeing felon.

Question 40

Defenses: Defense of property

*

Answer 40

o General rule is you can use non-deadly force, not deadly force.
o NY allows DEADLY force to prevent arson

Question 41

Defenses: Duress

Answer 41

Affirmative defense where (i) TP’s unlawful threat causes (ii) D to reasonably believe that the only way to avoid (iii) death or serous bodily injury to himself or another is to violate the law.

Allowable affirmative defense against murder.

Question 42

Defenses: Necessity

Answer 42

If natural forces cause D to commit a crime, D may be justified under the doctrine of necessity.

Question 43

Defenses: Entrapmetn

Answer 43

When law enforcement induced D to commit crime. New York follows the objective approach of the MPC, which requires that (i) Government official or agent to induce or encourage the crime while (ii) employing methods or persuasion that create a SUBSTANTIAL RISK that the crime will be committed by persons other than those who are ready to commit it (OBJECTIVE!) .

Question 44

NY Distinction Crim Pro: Fleeing creates PC?

Answer 44

New York Distinction: The police are free to approach someone, but if the individual flees when a police officer approaches, that alone does not create probable cause to arrest

Question 45

NY Distinction Crim Pro: SILA

Answer 45

NY: The police cannot search containers within an arrestee’s wingspan unless the police suspect that the person is armed and dangerous.

CF: wingspan including in container!

Question 46

NY Distinction Crim Pro: Plain view and obscenity

Answer 46

New York Distinction: Police cannot seize materials in plain view on the basis of obscenity without a warrant. (I guess it’s not always true that you know it when you see it.)

Question 47

NY Distinction Crim Pro: Consent to blood test

Answer 47

Any individual who operates a motor vehicle is DEEMED to have consented to blood, breath, urine, or saliva tests for drugs and alcohol if police officer has REASONABLE GROUNDS to believe that the individual was operating a motor vehicle while intoxicated.

Question 48

NY Distinction Crim Pro: GF re warrant

Answer 48

No good faith exception in New York

CF: Good faith exception: If police officers act in good faith on a warrant that later turns out to be invalid, can still use evidence obtained from it unless no reaosnble officer would rely… etc.

Question 49

NY Distinction Crim Pro: Right to Counsel Broader

Answer 49

New York Distinction: The New York Court of Appeals protects the INDELIBLE right to counsel:

• commencement of formal proceedings
• at INVESTIGATORY line ups, but only when already represented on another charge AND D request atty
• significant judicial activity INCLUDING grand jury

Question 50

NY Distinction Crim Pro: Brady Material

Answer 50

New York Distinction: Prosecution must disclose:
o All statements of a prosecution witness related to the witness’s trial testimony
o Statements D and co-defs, and if POSSIBLE SUPPRESSIBLE must be within 15 days!

Question 51

Right to jury trial

waiver?

Answer 51

6 mos, no aggregation

must be voluntary, knowing and intelligent in OPEN court

NO waiving jury trial for first-degree murder.

Question 52

Size of juries

Answer 52

In FELONY trials in NY, there must be 12 jurors and up to 4 alternates. The defendant may waive the right to a 12-person jury and proceed with 11 jurors. In non-felony trials, there must 6 jurors and up to two alternates.

Question 53

Accepting guilty pleas

Answer 53

Think COP, crawford

Question 54

Sliding scale of police authority

Answer 54

Sliding scale:

Level 1 request for info (any credible reason, NOT whim)
Level 2 more pointed question (founded suspicion)
Level 3 Terry stop (RS)
Level 4 Arrest (PC)

Question 55

Speedy trial

Answer 55

6A, 14A, & STA: BALANCING test if violation

Also, in NY: Time periods are as follows:
o Felony: 6 mos
o Class A Misdemeanor: 90 days days 
o Class B Misdemeanor: 60 days 
o Violation: 30 days

Remedy dismiss with prejudice!

Question 56

Confrontation Clause

Answer 56

6A

Defendants are entitled to CONFRONT cross-examine the witnesses against them. The prosecution may not admit out-of-court statements by a witness that are testimonial unless the witness is UNAVAILABLE and the defendant had a prior opportunity to CROSS-EXAMINE those witnesses.

Ask: TESTIMONIAL? (DNA test is not)

Bruton rule: admission of non-testifying codefendant violates 6A

Question 57

Double Jeopardy

NY*

Answer 57

When a defendant is acquitted or convicted he may not be re-prosecuted for the same offense.

BLOCKBURGER test, which looks to see if each provision requires proof of an element that the other does not. Under Blockburger, double jeopardy bars successive prosecutions for greater and lesser included offenses EXCEPT: Prosecution for the greater offense can follow a conviction for a lesser offense if despite the exercise of due diligence by the government, the facts necessary to prove the greater crime are not discovered before the first trial.

NY DISTINCTION: Crimes arising out of a single transaction must be tried together or it will violate double jeopardy unless:
1 Each offense has different elements;
2 One concerns possession and the other use; or
3 each offense involves death of different victims

When does jeopardy attach?
When jury is impaneled and sworn OR, in bench trials, when the first witness is sworn.

Question 58

Model answer, self-defense

Answer 58

The issue is whether a defendant can successfully raise the affirmative defense of justification based on an imminent threat of harm. Self defense is a justification defense that allows a non-aggressor to use only as much reasonable force as is required to defend against the imminent attack of another. New York permits the use of deadly force in self defense when the defendant reasonably believes deadly force is about to be used against him and he cannot retreat with complete safety. Deadly force includes force that is likely to cause serious bodily injury.

NB-
definition of deadly force
calling it a justification defense

Question 59

Model answer, which defenses can be raised?

this is a GREAT model of intro ¶, then no element defeats, then SECOND ¶ re specific defense.

MESSAGE: GET BASIC!

Answer 59

NB: defenses question, raise (failed to demonstrate elements!)

The issue is whether Ron and Sam have any defenses to the crime of attempted assault. In order to defend against a crime, a criminal defendant can seek to demonstrate to a jury that the prosecution failed to demonstrate every element of the crime beyond a reasonable doubt. In the alternative, a defendant may raise an affirmative defense whereby the defendant proffers an excuse for having committed such crime, and establish that defense by a preponderance of the evidence.

Question 60

Model answer, attempt

Answer 60

Very close to constitute attempt

Here, although defendants clearly had the intent to commit an assault, they may be successful in arguing that running towards Joe was, in and of itself, insufficient to effect the commission of the crime. Under New York law, the requirement that a defendant engage in conduct that tends to effect the commission of the crime means that the defendant’s conduct must come ‘very near’ or ‘dangerously near’ consummation of the crime. Here, defendants may be successful in convincing a jury that their action of running, in and of itself, was insufficient to come close to harming Joe.

Question 61

Model answer, age defense

Answer 61

Absent being able to convince a jury their actions were insufficient to make up the crime of attempted assault, Defendants may raise their age as an affirmative defense to the crime. Under New York Penal Law, persons less than 16 years of age are not criminally responsible for certain crimes. However, there are exceptions to the rule for violent crimes. Juveniles ages 14 or 15 are criminally responsible for attempted assault. Here, Ron and Sam were aged 15, and thus, their age alone will not preclude them from being convicted of attempt to commit assault.

Question 62

Model answer conspiracy

Answer 62

Under New York law, the crime of conspiracy requires an agreement to commit an unlawful purpose, with the intent to accomplish that purpose, and the performance of an overt act in furtherance of that purpose. The overt act of any conspirator may be attributable to the other co-conspirators to establish the offense of conspiracy.

Question 63

Solicitation model answer

Answer 63

Add merger!

The issue is whether Mark’s actions constitute the crime of solicitation. Solicitation is the enticing, encouraging or advising of another to commit a crime, with the intent that the person commits that crime. In New York, criminal solicitation does not merge with the completed crime unless the solicitation is necessarily incidental to that crime. That is, a person may be charged with both solicitation and the completed crime.

Question 64

Texts of 4A, 5A and 6A

Answer 64

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.[

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.[1]

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence

Question 65

Model answer, 4A cars and arrests

Answer 65

Under the Fourth Amendment right to be free from unreasonable government searches and seizures, a police officer is permitted to stop a vehicle upon a REASONABLE SUSPICION that detainees are or were involved in criminal activity. This standard requires that there be more than a vague suspicion, but less than probable cause, and need not be based on a police officer’s personal knowledge. Instead, reasonable suspicion can be based on, amongst other things, a police bulletin.

In order to arrest an individual, a police officer is required to have probable cause that the suspect is committing or has committed a criminal offense. Facts supporting probable cause may come from personal observations, evidence seized during stops based on reasonable suspicion, or discovered in plain view. Any item in public view may be seized without a warrant, since there is no expectation of privacy in things exposed to the public.

Question 66

Model answer, confrontation clause

The issue is whether Detective’s testimony concerning a deceased witness’s observation violates a Defendant’s Sixth Amendment right to confront witnesses against him, and whether a hearsay exception exists to admit the testimony.

Always pair with hearsay

Answer 66

The Sixth Amendment guarantees an accused the right to encounter adverse witnesses and cross-examine those witnesses in a face-to-face confrontation. Under limited circumstances, face-to-face confrontation is excused when there is an important public policy reason for doing so, and the reliability of the testimony is otherwise assured or when the witness’s unavailability is demonstrated to be the fault of the defendant. In addition, the right to confront a witness will be deemed satisfied if defense counsel had a prior opportunity to cross-examine the witness at an earlier hearing. Otherwise, hearsay testimony from a third party is not permitted.

Additionally, the Sixth Amendment is limited to statements which are testimonial in nature. Out-of-court statements by witnesses that are “testimonial” are barred under the Confrontation Clause, unless the witnesses are unavailable and the defendant had a prior opportunity to cross-examine those witnesses, regardless of whether such statements are deemed reliable by the court. Out-of-court testimonial statements are not barred by the Confrontation Clause when they are used for a purpose other than establishing the truth of the matter asserted (i.e., when they are not used for a hearsay purpose). A statement is considered “testimonial” if the declarant would reasonably expect it to be used in a prosecution.

Question 67

Hearsay model answer

Answer 67

There is also an issue of whether the statements can be considered hearsay. Hearsay is an out-of-court statement offered for the truth of the matter asserted. Hearsay is normally inadmissible, unless an exception applies. There is an exception for an “excited utterance” when a person, during or soon after perceiving an exciting or intense event, says something about that event. Here, an excited utterance exception may apply. The statement by Watchman was an out-of-court statement that is now being offered to prove that Bookkeeper committed the arson. The arson was an exciting event and Watchman “exclaimed” his statement; there is no reason to believe that he would be lying right after this event happened, and thus it can be admitted under the hearsay exception as well.

Question 68

Model answer, effective assistance of counsel

Answer 68

The Sixth Amendment provides a constitutional right to effective assistance of counsel in all felony cases, and applies at all critical stages of a prosecution. It attaches automatically when a defendant is indicted with formal charges and continues through the sentencing stage of trial. In addition, New York provides accused individuals an “indelible” right to counsel that offers greater protection than the Sixth Amendment. This additional protection applies at several stages of a criminal investigation, including trial.

Question 69

Model answer, larceny-extortion

Answer 69

In New York, extortion is a form of larceny in which property is taken under a threat. The threat need not be imminent and may include a threat of either physical injury or property damage. The property intended to be taken need not be on the victim’s person or in the victim’s presence.

Question 70

Model answer, issuing bad chekc

Answer 70

Under New York law, a person is guilty of issuing a bad check when she issues a check with knowledge that there are insufficient funds to cover the check, believes that payment of the check will be refused, and payment is, in fact, refused.

Question 71

Dealing with a Brady disclosure problem

Answer 71

(1) (a) The first issue is whether the district attorney prosecuting the robbery case had a duty to disclose the bartender’s statement to Dusty’s attorney.
(b) The second issue is whether the district attorney’s failure to disclose the bartender’s exculpatory statement warrants the overturning of Dusty’s conviction for robbery.
(c) The third issue is whether Dusty can have his conviction for robbery overturned based on an ineffective assistance of counsel claim under the Sixth Amendment.

Question 72

Model answer, going through the elements

KEY!!!!!

BASICS, go through actus reus, mens rea, and caustion (but for AND prox cause)

Answer 72

A person is guilty of manslaughter in the first degree when, with intent to cause serious physical injury to another person, he causes the death of such person or of a third person. In general, the elements of any crime include the actus reus (the physical, unlawful act), the mens rea (the mental state), and causation. The prosecution must prove each of these elements beyond a reasonable doubt. For manslaughter in the first degree, the physical act is causing physical injury and the death of another person. The requisite intent is to cause serious physical injury to another person. The prosecution must show that the defendant’s act caused the victim’s death, meaning the defendant’s actions were the actual and probable cause of the victim’s death. If the victim would not have died “but for” the defendant’s act, then the defendant’s act is an actual cause of the death. Proximate cause focuses on whether it was foreseeable that the defendant’s acts would result in the victim’s death. A defendant’s conduct is deemed to be foreseeable if death is the natural and probable result of the conduct.

Question 73

Model answer, voluntary intoxication

Answer 73

Voluntary intoxication is a defense to specific intent crimes if it prevents the formation of the required intent. Manslaughter in the first degree is a specific intent crime, the intent being to cause serious physical injury to another person. Here, Dusty could argue his voluntary intoxication as a defense to his forming the specific intent required for manslaughter in the first degree. The facts state that bartender told Dusty he would not serve Dusty any more alcohol because Dusty was intoxicated. Thus, Dusty was still intoxicated when he encountered Metz, as the encounter was only a few minutes after Dusty had left Ben’s Bar. To properly assert the defense of voluntary intoxication, Dusty can testify and present evidence to show that his intoxication prevented him from forming the intent to cause serious physical injury. If Dusty presents this defense to the specific intent and it is successful, he will likely be charged with a lesser crime, such as manslaughter in the second degree.

Question 74

NY grand jury, apply rules of evidence???

Answer 74

YES! in New York, as you might already know, we are bound to follow the rules of evidence, and only legally admissible evidence is permitted before the grand jury.

Also, under New York law, evidence in grand jury indictments must be legally sufficient, meaning that the evidence must be that which would be admissible in a regular court proceeding. Circumstantial evidence may sustain an indictment.