NY Criminal Law Flashcards
• Burden of Proof NY Law
- Defense—Prosecution must disprove beyond a reasonable doubt.
- Affirmative Defenses—Defendant must prove by preponderance of the evidence.
C. Degrees of Crimes in New York: Generally
• 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
New York Mental States (5 of them)
(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
New York Mistake Doctrine w/r/t mistake of fact or law
• 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.
D. New York Assault
• 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.
- Murder
• Mental state: “malice aforethought” means four things
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
- Second Degree Murder in NY
• (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
First degree manslaughter (3 things qualify)
• 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
Second degree manslaughter
• Mental State: Recklessness, i.e., Δ is aware & consciously disregards a substantial, unjustifiable risk of death
- Criminally Negligent Homicide
• Mental State: Negligence, i.e., Δ should have known a substantial and unjustifiable risk of death.
- Other NY Homicide Offenses
• 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.
B. New York Confinement Offenses
- Unlawful Imprisonment
- Kidnapping
Custodial Interference
Endangering the Welfare of a Minor
- Unlawful Imprisonment: degree of crime and def?
• 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.
- Kidnapping: degree of crime and def?
• 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.
Custodial Interference: level of crime and def?
• 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.
Endangering the Welfare of a Minor
• 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.
- Statutory Rape
• NY RULE: Age of consent is 17.
- NY Rape or Criminal Sexual Act – 3 degrees
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.
- NY Sexual Misconduct def
- (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.
NY Corroboration Rule for sexual assault
• 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.
B. New York Theft Cases – 1. Larceny - def and degrees
• 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
B. New York Theft Cases – 2. Robbery degrees
• 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.
• Robbery and Homicide in NY:
o Victim is killed accidentally: murder two
o Victim is killed intentionally: murder one
- Uttering (def of crime)
- (a) Offering as genuine
- (b) A forged instrument
- (c) Mental state: with intent to defraud
NY Corroboration Rule for sexual assault
• 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.