NY Criminal Law Flashcards

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1
Q

• Burden of Proof NY Law

A
  • Defense—Prosecution must disprove beyond a reasonable doubt.
  • Affirmative Defenses—Defendant must prove by preponderance of the evidence.
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2
Q

C. Degrees of Crimes in New York: Generally

A

• Strategy: For each crime, memorize one degree, and then guess as to the others.
• Three factors that make a crime more or less serious:
o (1) Weapons;
o (2) Injuries—two levels of seriousness
• (a) Physical injury = substantial pain
• (b) Serious physical injury = permanent, life-threatening or requires long hospitalization
o (3) Quantity

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3
Q

New York Mental States (5 of them)

A

(1) Intentionally (or purposely)—conscious purpose
(2) Knowingly—aware of what he is doing
(3) Recklessly—aware of a substantial and unjustifiable risk, and he consciously disregards that risk.
(4) Negligently—should have known about a substantial and unjustifiable risk.
(5) Strict Liability—No mental state required

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4
Q

New York Mistake Doctrine w/r/t mistake of fact or law

A

• Mistake of fact will be a defense if the mistake negates the required mental state.
o Often a defense for crimes of purpose, knowledge or recklessness.
o Only a reasonable mistake will be a defense for crimes of negligence.
o NOT a defense for strict liability
Mistake of Law
• Mistake of law is NOT a defense.

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5
Q

D. New York Assault

A

• Elements:
o (a) Intentionally [mental state]
o (b) Causing physical injury
o (c) To another person
• Degreees of Assault:
o First Degree = Second degree + weapon
o Second Degree = Intentionally causing serious physical injury
o Third Degree = Intentional causing physical injury
• Battery is NOT separate crime in NY.
o All versions of assault require injury.
o Attempted assault is menacing in NY.

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6
Q
  1. Murder

• Mental state: “malice aforethought” means four things

A

o (a) Intent to kill
o (b) Intent to inflict great bodily harm
o (c) Extreme recklessness [NY: Depraved indifference]
o (d) Felony Murder Rule

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7
Q
  1. Second Degree Murder in NY
A

• (1) Intentional murder (other than first degree murders)
• (2) Highly reckless—called depraved indifference in NY [NY TIP: KNOW THIS!!]
o Key language—“an utter disregard for human life.”
o Generally, act must put more than one person in danger.
o Cannot be used for one-on-one killings, unless it involves:
• (a) brutal torture; or
• (b) abandoning a helpless victim to almost certain death.
• (3) Felony Murder—similar to common law BUT
o Only 6 underlying felonies qualify [BRAKES]
• (i) Burglary
• (ii) Robbery
• (iii) Arson
• (iv) Kidnapping
• (v) Escape
• (vi) Sexual Assault

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8
Q

First degree manslaughter (3 things qualify)

A

• Intentionally causing serious physical injury that results in death; OR
• Extreme Emotional Disturbance (heat of passion)
o An intentional killing committed under the influence of a reasonable extreme emotional disturbance.
o Affirmative defense to Second Degree Murder—Δ must prove EED by a preponderance of the evidence. Knocks it down to Man-1.
• Unjustifiable Abortional Act

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9
Q

Second degree manslaughter

A

• Mental State: Recklessness, i.e., Δ is aware & consciously disregards a substantial, unjustifiable risk of death

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10
Q
  1. Criminally Negligent Homicide
A

• Mental State: Negligence, i.e., Δ should have known a substantial and unjustifiable risk of death.

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11
Q
  1. Other NY Homicide Offenses
A

• Aggravated Homicide—victim is a police officer killed in the line of duty.
• Vehicular Homicide
o (1) DWI—BAC over 0.08%
o (2) Vehicular Man-2 = Death + DWI
o (3) Vehicular Man-1 = Vehicular Man-2 + aggravating factor
• (a) BAC over 0.18%; OR
• (b) Prior DWI Conviction
o (4) Aggravated Vehicular Man = Vehicular Man-1 + reckless driving
o If DWI results in only injury, crime is vehicular assault.

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12
Q

B. New York Confinement Offenses

A
  1. Unlawful Imprisonment
  2. Kidnapping
    Custodial Interference
    Endangering the Welfare of a Minor
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13
Q
  1. Unlawful Imprisonment: degree of crime and def?
A

• Second Degree
o (1) Unlawfully
o (2) Restraining someone;
o (3) Without their consent; AND
o (4) With knowledge that the restriction is unlawful
• First Degree = Second degree, plus a risk of serious physical injury.

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14
Q
  1. Kidnapping: degree of crime and def?
A

• Second Degree: abducting someone.
• First Degree: Second degree kidnapping plus one of the following:
o (1) Ransom;
o (2) Restraining of the victim for > 12 hours with intent to rape, injure, or rob the victim, or
o (3) Death of the victim.
• Affirmative Defense: Victim was a relative, and ∆’s sole purpose was to assume control of the victim.
• Kidnapping and Homicide:
o (1) Victim is killed accidentally: Murder Two (felony murder).
o (2) Victim is killed intentionally during a kidnapping of the first degree: Murder One.

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15
Q

Custodial Interference: level of crime and def?

A

• Misdemeanor Elements:
o Relative of a person who is < 16 years old or an incompetent;
o Takes that person from her lawful custodian;
o With the intent to wrongfully hold that person permanently or for a protracted period.
• Felony = Misdemeanor + ONE of the following:
o Person under < 16 or incompetent is exposed to a risk that endangers her safety or materially impairs her health; OR
o ∆ removed or intended to remove that person from the state.
• Affirmative Defense if crime is based on the “removal from the state” provision—victim had been abandoned or the taking was to protect the victim from abuse or mistreatment.

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16
Q

Endangering the Welfare of a Minor

A

• Child = <17 yrs old
• Elements: ∆
o (1) Knowingly acts in a manner that will likely physically, mentally, or morally injure the child;
o (2) Authorizes the child to engage in a dangerous occupation; OR
o (3) Being legally charged with the child’s care or custody and failing to exercise reasonable diligence in the control of that child to prevent her from abuse, neglect or juvenile delinquency.

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17
Q
  1. Statutory Rape
A

• NY RULE: Age of consent is 17.

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18
Q
  1. NY Rape or Criminal Sexual Act – 3 degrees
A

o First Degree = Sex with any person who is: (1) < 11 years old; (ii) Physically helpless; OR (iii) by forcible compulsion.
o Second Degree = Person ≥ 18 has sex with someone < 14 to whom he is not married.
o Third Degree = (1) Sex with a person who is incapable of consenting other than because of age and to whom he is not married; OR (2) ∆ is ≥ 21 and has intercourse with someone less than 17 to whom he is not married.

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19
Q
  1. NY Sexual Misconduct def
A
  • (1) ∆ has sex with a person ≥ 14, but < 17;
  • (2) Sex with another person without consent;
  • (3) Engages in deviant intercourse with another person without her consent; OR
  • (4) Sex with an animal or dead body.
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20
Q

NY Corroboration Rule for sexual assault

A

• NY does not require corroboration to convict for forcible rape, criminal sexual act or sexual abuse.
• ∆ may NOT be convicted solely on the testimony of the victim for any sex crime or attempt, where lack of consent is an element and such lack of consent results from mental defect or incapacitation. Corroborating evidence must tend to:
o (1) Establish at least an attempt to have intercourse, deviant intercourse, or sexual contact with the victim; and
o (2) Connect ∆ with the commission of the offense or attempted offense.

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21
Q

B. New York Theft Cases – 1. Larceny - def and degrees

A
•	Any crime that would be larceny, embezzlement, false pretenses, or larceny by trick at common law is considered larceny in NY.
•	Issuing a bad check is a misdemeanor. Using the bad check to obtain property makes it larceny.
•	Degrees of Larceny:
o	First degree: >$1M
o	Second degree: >$50K
o	Third degree: >$3K
o	Fourth degree: ≥ $1K
o	Petit larceny: Lesser amounts
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22
Q

B. New York Theft Cases – 2. Robbery degrees

A

• Third Degree—forcible stealing
• Second Degree = forcible stealing + ONE of the following
o (1) Δ is aided by another actually present;
o (2) victim is injured; or
o (3) a car is stolen.
• First Degree = Forcible stealing + ONE of the following:
o (1) Victim is seriously injured; or
o (2) Δ uses or displays a weapon
• Affirmative Defense—if Δ can prove the gun was unloaded or inoperable, then robbery-2.

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23
Q

• Robbery and Homicide in NY:

A

o Victim is killed accidentally: murder two

o Victim is killed intentionally: murder one

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24
Q
  1. Uttering (def of crime)
A
  • (a) Offering as genuine
  • (b) A forged instrument
  • (c) Mental state: with intent to defraud
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26
Q

NY Corroboration Rule for sexual assault

A

• NY does not require corroboration to convict for forcible rape, criminal sexual act or sexual abuse.
• ∆ may NOT be convicted solely on the testimony of the victim for any sex crime or attempt, where lack of consent is an element and such lack of consent results from mental defect or incapacitation. Corroborating evidence must tend to:
o (1) Establish at least an attempt to have intercourse, deviant intercourse, or sexual contact with the victim; and
o (2) Connect ∆ with the commission of the offense or attempted offense.

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26
Q

B. New York Theft Cases – 1. Larceny - def and degrees

A
•	Any crime that would be larceny, embezzlement, false pretenses, or larceny by trick at common law is considered larceny in NY.
•	Issuing a bad check is a misdemeanor. Using the bad check to obtain property makes it larceny.
•	Degrees of Larceny:
o	First degree: >$1M
o	Second degree: >$50K
o	Third degree: >$3K
o	Fourth degree: ≥ $1K
o	Petit larceny: Lesser amounts
27
Q

B. New York Theft Cases – 2. Robbery degrees

A

• Third Degree—forcible stealing
• Second Degree = forcible stealing + ONE of the following
o (1) Δ is aided by another actually present;
o (2) victim is injured; or
o (3) a car is stolen.
• First Degree = Forcible stealing + ONE of the following:
o (1) Victim is seriously injured; or
o (2) Δ uses or displays a weapon
• Affirmative Defense—if Δ can prove the gun was unloaded or inoperable, then robbery-2.

28
Q

• Robbery and Homicide in NY:

A

o Victim is killed accidentally: murder two

o Victim is killed intentionally: murder one

29
Q

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A

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30
Q

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31
Q

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32
Q
  1. Malicious Mischief (def of crime)
A
  • (a) Destroying or damaging someone else’s property
  • (b) Mental State: with intent to defraud
  • NY: This crime is called criminal mischief.
33
Q

The Act: “Possession” def

A
  • (1) Control
  • (2) Opportunity to terminate possession.
  • Constructive possession—Δ is close enough to exercise dominion and control over the contraband.
34
Q

Examples of NY possession offenses

A

• Criminal Possession of a Controlled Substance
o NY RULE: Knowledge of weight of a controlled substance is NOT an element.
• Criminal Possession of a Weapon
o Statutory presumption—presence of a gun in a vehicle creates a presumption that all occupants of the vehicle possessed the gun.
• Criminal Possession of Stolen Property
o Property must be stolen. Not abandoned or used with permission (e.g. police sting).
• Criminal Possession of a Forged Instrument (Uttering)

35
Q
  1. New York Burglary (def, degree, homicide)
A

• Third Degree
o (1) Entering or remaining
o (2) Unlawfully
o (3) In a building
o (4) with the intent to commit a crime inside.
• Second Degree = Third Degree, plus one of the following:
o (1) Building is a dwelling;
o (2) A non-participant is injured; OR
o (3) Δ carries a weapon.
• First Degree = Δ knows that burglarizing a dwelling, plus one of the following:
o (1) A non-participant is injured; OR
o (2) Δ carries a weapon.
• Burglary and Homicide in NY
o Victim is killed accidentally: murder two (felony murder).
o Victim is killed intentionally: murder one

36
Q
  1. New York Arson (degrees and affirmative defense)
A

o Fourth Degree = reckless burning of a building
o Third Degree = intentional burning
o Second Degree = Third degree + ONE of the following:
• Δ knew someone was inside the building; OR
• Circumstances are such that a person’s presence therein was a reasonable possibility. Nonparticipant need NOT be injured.
o First Degree = Second degree + explosive device
• Affirmative Defense exists if ALL of the following are met:
o (1) All persons with possessory or proprietary interests in the property consented;
o (2) ∆’s intent was to cause damage for a lawful purpose; AND
o (3) ∆ had no reasonable ground to fear for the safety of others or to fear damage to another building or motor vehicle.

37
Q

C. NY Criminal Trespass (define degrees)

A
  • Third degree = Knowingly enters or remains unlawfully in a building or upon real estate which is fenced or otherwise enclosed in a manner to keep out intruders.
  • Second degree = Third degree + building is a dwelling.
  • First degree = Third degree + in a building + deadly weapon
38
Q

NY def of accomplice rule

A

o NY RULE: the accomplice need not specifically intend that the crime be committed. It is enough if the accomplice specifically intends to aid the principal’s conduct, and otherwise has the mental state required for the principal’s crime.

39
Q

• Unprosecuted Principal—if principal is not prosecuted, accomplice is still guilty. –> NY rule re when you’re not absolved of responsibility

A

Accomplice is NOT absolved of liability:
o (i) By defenses of the principal;
o (ii) Unprosecuted principal; or
o (iii) If offense is defined so that the accomplice could not commit the offense in an individual capacity

40
Q

Not an accomplice through mere— (3 items)

A

o Mere presence
o Mere knowledge
o Member of the protected class

41
Q

NY def of withdrawal w/r/t accomplice liability

A

o NY RULE: Withdrawal is an affirmative defense to accomplice liability for the substantive offense, other than an attempt, if the accomplice:
• (i) Voluntarily and completely renounces his criminal purpose;
• (ii) Withdraws prior to commission of the offense; and
• (iii) Makes a substantial effort to prevent the crime.

42
Q

Accessory After the Fact (def - 3 parts)

A

o (a) assist a principal who has commited a felony;
o (b) with knowledge that the crime has been committed, and
o (c) with the intent to help the principal avoid arrest or conviction.

43
Q

Crime of “obstruction of justice, harboring a fugitive” called in NY

A

“hindering prosecution”

44
Q

Corroboration

• NY RULE:

A

• NY RULE: A person may NOT be convicted solely upon the uncorroborated testimony of an accomplice, EXCEPT in police disciplinary hearings.

45
Q

NY Criminal Facilitation (def and elements)

A

• Mere knowledge can make someone guilty of the less serious crime of criminal facilitation—knowingly aiding in the commission or probable commission of a crime.
• Elements:
o (1) Facilitator has knowingly aided in the commission of a crime but his culpability does not reach accomplice level;
o (2) Facilitator need only believe that it was probable that he was rendering aid;
o (3) Conduct alleged must have aided in the commission of the object felony; and
o (4) Corroboration: Facilitator may not be convicted on uncorroborated testimony of the person facilitated.
o Affirmative defense—facilitator took steps to prevent the felony.

46
Q

A. Solicitation in NY wrinkle & degree

A

• NY: Solicitation is a separate offense, independent of the substantive crime being committed. Does NOT merge. (degree probably unnecessary)
• Fifth degree–intent that another person engages in conduct constituting a crime, one solicits, requests or otherwise attempts to cause the other person to engage in such criminal conduct.
• Fourth degree–Fifth degree + ONE of the following:
o Conduct urged is a felony; OR
o ∆ is >18 and the other person is 18 and the other person is <16, and conduct urged is a Class A felony

47
Q

One-Person Conspiracy in NY?

A

YES. Unilateral approach: Δ may be guilty, even if all others were acquitted or were just pretending to agree.

48
Q

Vicarious Liability for conspiracy in NY? • Common law: In addition to conspiracy, Δ will be liable for other crimes committed by his co-conspirators, so long as those crimes were in furtherance of conspiracy objective and were foreseeable.

A
  • NY RULE: No vicarious liability. Would only be guilty of conspiracy.
  • NY RULE: ∆ may NOT be convicted of conspiracy on the uncorroborated testimony of a co-conspirator. Not the case in common law.
49
Q

Test of if there’s an “act” for attempt under NY law? Compare w/ MPC/majority test

A
  • Common Law/NY Test: Conduct that gets dangerously close to the commission of the crime.
  • MPC/Majority Test: Conduct that is a substantial step towards the crime and strongly corroborative of a criminal purpose.
50
Q

Withdrawal/Renunciation/Abandonment of inchoate offenses? Common law vs NY/MPC?

A

• Common Law: Withdrawal is NOT a defense.
o Once Δ withdraws from a conspiracy, he will no longer be vicariously liable for crimes committed by his co-conspirators after he left the conspiracy. He is still guilty of conspiracy.
• NY/MPC: Withdrawal can be a defense ONLY IF:
o (1) Δ voluntarily and completely renounces the solicitation, conspiracy or attempt; AND
o (2) Renunciation is based on a change of heart.

51
Q

Solicitation merger: NY v common law.

A

Common law = merger of solicitation. NY = no merger of solicitation with offense.

52
Q

NY test for insanity? Burden of proof?

A

o New York: Δ lacked the substantial capacity to either
• (a) understand the nature of his act; OR
• (b) appreciate the wrongfulness of his conduct.
• Burden of proof: Insanity is an affirmative defense. Δ must prove by preponderance of the evidence.

53
Q

Voluntary Intoxication: NY – what can it be used against?

A
  • A regular defense to intent crimes and knowledge crimes, if the intoxication prevents Δ from forming the required intent. I.e., used to show that ∆ acted recklessly rather than intentionally.
  • CANNOT be a defense to crimes of recklessness, negligence or strict liability.
54
Q

Def of infancy for NY crim law purposes?

A

New York
• (1) If age is < 13: Criminal prosecution as an adult NOT allowed; only ‘‘juvenile delinquency” proceedings in Family Court.
• (2) If age is ≥ 13: Criminal prosecution as an adult allowed for Murder Two.
• (3) If age is ≥ 14: Criminal prosecution as an adult allowed for serious crimes against persons or property.
• (4) If the age is ≥ 16: Criminal prosecution as an adult is allowed for any crime.

55
Q

Can initial aggressor use self defense?

A

No. Initial aggressor MUST WITHDRAW.

56
Q

Is retreat required in NY?

A
  • NY RULE: Retreat is required UNLESS
  • (i) Δ cannot retreat in complete safety;
  • (ii) Δ is in his own home;
  • (iii) ∆ is a cop or assisting a cop.
57
Q

Is unreasonable mistake in self-defense a defense to crime you committed? In NY? At common law?

A

No, not in NY or at common law.

58
Q

What are BRAKES felonies?

A
  • (i) Burglary
  • (ii) Robbery
  • (iii) Arson
  • (iv) Kidnapping
  • (v) Escape
  • (vi) Sexual Assault
59
Q

May deadly force be used to prevent a crime? Which ones?

A

Yes, can be used to prevent BRAKES felonies.

60
Q

When may you resist arrest lawfully in NY and at comm law?

A

In NY: Force may NOT be used to resist an event, even an unlawful one, unless the arresting officer uses excessive force.
• Majority Rule: If the arrest is unlawful, Δ may use nondeadly force to resist the arresting officer.

61
Q

Necessity defense to criminal conduct if Δ reasonably believed that the conduct was necessary to prevent a greater harm. At common law, allowed except when? In NY, when allowed?

A

At common law, necessity CANNOT be a defense to homicide.
o NY RULE:
• (a) The harm avoided must be greater the harm caused.
• (b) Necessity CAN be a defense to homicide.

62
Q

At common law, It is a defense if Δ was forced to commit a crime under a threat of death or serious bodily harm (except homicide). Compare w/ NY? Proof required?

A

• NY RULE:
o (1) Duress is an affirmative defense for ALL crimes, including homicide.
o (2) Burden: Δ must prove by preponderance of the evidence.

63
Q

Entrapment def generally and what’s required in NY?

A

• If Govt unfairly tempts Δ to commit the crime, he may claim entrapment ONLY IF:
o (1) Criminal design originated with the Govt; AND
o (2) Δ was not predisposed to commit the crime.
• NY RULE: Entrapment is an affirmative defense. Δ must prove by preponderance of the evidence.