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NY Bar Subjects 2013 > NY Criminal Law and Procedure > Flashcards

NY Criminal Law and Procedure Flashcards

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1
Q

CRIMINAL LIABILITY:
What are the 4 elements of criminal liability?,f

A
  • Act.
  • Mental State.
  • Causation.
  • Concurrence.
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2
Q

MENTAL STATES:
What are the 5 New York
mental states?

A

MENTAL STATES

  • Intentionally – meant to do it
  • Knowingly – aware he’s doing it
  • Recklessly – knows about a substantial & unjustifiable risk & consciously disregards it
  • Negligently – should have known about a substantial & unjustifiable risk
  • Strict liability – absence of mental state
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3
Q

CL CRIMES: BATTERY
What is battery?

A

 Unlawful application of force to another resulting in either bodily injury or offensive touching.

 Misdemeanor

 General intent crime

 Example of Aggravated Battery

  • • battery w/ a deadly weapon
  • • battery resulting in serious bodily harm
  • • battery of a child, woman or police officer
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4
Q

DOCTRINE OF MISTAKE:
Mistake of fact in NY?

A

 D may plead mistake of fact to disprove the required mental state.

o Intentionally, Knowingly, Recklessly – any mistake is a defense
o Negligently – reasonable mistake
o Strict liability – no mistake

➩ if there is an unfamiliar crime, assume knowingly or intentionally b/c if it is reckless or negligent, will usually be in the name of the crime

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5
Q

CL CRIMES: ASSAULT
What is assault?

A

 an attempt to commit a battery OR
 intentionally making the V think you are about to commit a battery

 Specific intent crime.

 Example of Aggravated Assault:
o w/ a deadly weapon
o w/ intent to rape or maim

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6
Q

NY CRIMES: ASSAULT
What is assault?

A

 crime of intentionally injuring another person

 there must be an injury – impairment of physical condition or substantial pain

• Attempted assault = trying to commit a battery

 12 Degrees – TIPS:

  • Add a weapon, add a degree
  • Omit a weapon, omit a degree
  • Add a level of injury, add a degree
  • physical injury – causes substantial pain
  • serious physical injury – causes permanent damage or life-threatening
  • Pay attention to quantity for drugs & property.
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7
Q

NY HOMICIDE:
What are the elements of highly reckless murder?

A

 demonstrating a depraved indifference to human life, a person recklessly engages in conduct that causes a grave risk of death to another person & thereby causes the death of another person
 Must expose multiple people to risk.
 One-on-one killing in only 2 ways:
• excessive brutality like torture
• abandons a vulnerable to certain death

➩ Likely to be tested b/c new. Write “utter disregard for the value of human life”

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8
Q

NY HOMICIDE:
What are the elements of intentional murder?

A

 when a person, with the intent to cause the death of another, causes the death of such person

 2 Affirmative Defenses:
o extreme emotional disturbance (“heat of passion”)
o aiding a suicide (using duress or deception)

➩ mitigates it to manslaughter

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9
Q

NY HOMICIDE:
What are the elements of 2nd degree vehicular homicide?

A

 Person who operates a motor vehicle in violation of DWI laws & as a result operates the car in a manner that causes death to another.

 Assault – “causes serious physical injury to another”

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10
Q

NY HOMICIDE:
What are the elements of 1st degree vehicular homicide?

A

2nd Degree PLUS:
 have a BAC of .18
 know or have reason to know that his license was suspended or revoked for DWI offense or refusal to submit to chemical test
 previous DWI conviction w/in past 10 yrs.
 cause death to more than 1 person
 have been previously convicted of another vehicular assault or homicide

➩suspensions & convictions in other states count

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11
Q

NY HOMICIDE:
What are the elements of Criminally Negligent Homicide?

A

 where one causes the death of another due to the failure to perceive a substantial and unjustifiable risk of death

 D’s conduct must have been culpable (failure to perceive risk not enough) and

 death-producing event foreseeable

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12
Q

NY HOMICIDE:
What are the elements of Aggravated Vehicular Homicide?

A

 1st Degree + driver drove recklessly

 Exception: serious physical injury to 1 person & death to another is enough here – do not need death of 2 people

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13
Q

CL KIDNAPPING
What are the elements of kidnapping?

A

 False imprisonment and moving the V or concealing V in a secret place

 Example of Aggravated Kidnapping:
• for ransom
• for the purpose of committing other crimes
• for offensive purposes
• child stealing

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14
Q

CL FALSE IMPRISONMENT
What are the elements of false imprisonment?

A

 unlawful confinement of a person w/o his valid consent

 Consent not valid:
o coercion
o threats
o deception
o incapacity due to mental illness
o retardation
o youth

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15
Q

NY RAPE
What are the different degrees of rape?

A

 Sex w/o V’s consent by force or threat of force or when V is unconscious
 1st Degree
o V is under 11 yrs. old
o V is physically helpless
o forcible compulsion
 2nd Degree
o 18+ person has sex w/ person under 14
 3rd Degree
o sex w/ person who cannot consent (other than b/c of age)
o 21+ person who has sex w/ someone under 17

➩ Cannot be convicted solely on testimony of V unless forcible rape, sodomy, sexual abuse

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16
Q

CL INCHOATE CRIMES
General Chart

A
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17
Q

NY DEFENSES: WITHDRAWAL
What are the requirements for withdrawal?

A

Affirmative Defense to accomplice liability for the substantive offenses, other than an attempt, if:

 Voluntarily & completely renounces criminal purpose
 Withdraws prior to the commission of the crime
 Makes a substantial effort to prevent the crime

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18
Q

CL DEFENSES: WITHDRAWAL
What are the requirements for withdrawal?

A

General rule: a person who effectively withdraws from a crime before it is committed cannot be held guilty as an accomplice.

 Must occur before the crime becomes unstoppable.

Repudiation is sufficient withdrawal for mere encouragement

 Actually helped – must make a “substantial effort to prevent the crime”

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19
Q

NY INCHOATE CRIMES
What are the degrees of solicitation?

A

 5th - ask
 4th – urge felony or D = 18+ yrs & askee under 16 & urges crime
 3rd – D = 18+ yrs & askee under 16 & urges felony
 2nd – urge Class A felony
 1st - D = 18+ yrs & askee under 16 & urges Class A felony

20
Q

NY ACCOMPLICE LIABILITY
What is criminal facilitation?

A

 Knowingly aiding in commission of a crime or knowing it is probable

 Mere knowledge so less than accomplice b/c intent factor is missing.

 conduct alleged must have aided in the commission of the felony

21
Q

INCHOATE CRIMES
Conspiracy

A

 Agmt between 2+ persons, intent to enter the agmt, intent by at least 2 persons to achieve the objective of the agmt, PLUS an overt act.

 NEVER merges

 Impossibility is NOT a defense

 Wharton Rule: 2 parties nec. for offense – need 3rd party for conspiracy

➩ See CHART.

22
Q

INCHOATE CRIMES
Solicitation

A

 Asking someone to commit a crime with the intent that they do.

 CL – solicitation ALWAYS merges
o ask + person agrees = conspiracy
 NY – solicitation does NOT merge

 Defenses:
o CL – NO withdrawal
o NY – withdrawal affirmative def. if:
o D voluntarily renounces and prevents the commission of the crime

23
Q

INCHOATE CRIMES
CONSPIRACY –DIFFERENCES IN NY & CL

A
24
Q

INCHOATE CRIMES
WHAT ARE THE ELEMENTS OF ATTEMPT?

A

 Get dangerously close to commission of the crime and
 must have specific intent to commit the crime

o NY – cannot attempt a reckless or negligent crime

 Defenses:
o Mistake of law (e.g. attempted arson)
o Factual impossibility NOT a defense
o NY – abandonment is A.D. – must manifest a voluntary & complete renunciation of his actions & avoid commission of the crime by abandoning the criminal effort
o CL – no abandonment

25
Q

NY PROPERTY CRIMES
What are the elements of larceny for a bad check?

A

 Issuing a bad check to obtain property is larceny.

Elements:
 put check into circulation
 knowing lack of sufficient funds to cover it
 w/ intent or belief payment will be refused by the bank
 payment is actually refused by the bank

Presumption of intent & knowledge if:
 no acct. exists w/ bank
 D has insufficient funds on acct. at time of issuance

Affirmative Defense:
 D or another makes good on the check w/in 10 days of it being dishonored, or
 D was employee acting for his employer

26
Q

NY PROPERTY CRIMES
What are the degrees of larceny?

A

 0-$1k = petit larceny
 $1k + = 4th
 $3k+ = 3rd
 $50k+ = 2nd
 $1 million+ = 1st

Any of the following are larceny:
 acquiring lost or mislaid property
 issuing a bad check
 false promise
 extortion
 appropriating leased/rented items

27
Q

NY FORGERY
What is criminal possession of a forged instrument?

A

 Use or possession for use of a forged instrument with fraudulent intent.

 Does NOT merge with forgery.

28
Q

CL PROPERTY CRIMES
RECEIPT OF STOLEN PROPERTY

A

Possession & control of stolen personal property, known to have been stolen, w/ intent to permanently deprive interest in it.
 Knowingly possessing stolen property → presumption that intends to benefit self. (NY)
 Pawnbroker → presumed to know property is stolen if does not make reasonable inquiry. (NY)
 Stealing stolen property = criminal possession of stolen property.
o Possession & larceny do not merge.

29
Q

NY PROPERTY CRIMES
What are the degrees of arson?

A

 Do not have to be someone else’s building.

4th = reckless burning (AD = D’s sole property)

3rd = intentional (AD = owner’s consent, fire for lawful purpose, no reason to think it would burn another building)

2nd = intentional & the D knew or should have known someone was inside

1st = 2nd degree + an explosive device

30
Q

PROPERTY CRIMES
What is malicious mischief?

A

malicious destruction or damage to the property of another

NY – malice not required – crime is more serious if D is acted intentionally instead of recklessly
o 3rd - $250
o 2nd - $1,500
o 1st – 2nd + use of explosive device

➩malice - reckless disregard of a known risk

31
Q

NY TRIAL PROCEDURES
When can a D waive indictment in NY?

A

 If the crime charged is not punishable by death or life imprisonment →

 D can waive indictment by GJ w/ Prosecutor’s approval

32
Q

NY PROPERTY CRIMES
What is criminal trespass?

A

 3rd – knowingly enters or remains unlawfully in a building or on real estate which is fenced or otherwise enclosed in a way to exclude intruders

 2nd – knowingly enters or remains unlawfully in a dwelling

 1st – 2nd or 3rd + has or knows another person has explosive or deadly weapon

33
Q

EXCLUSIONARY RULE
What is the harmless error doctrine?

A

 If illegal evidence erroneously admitted a trial, resulting conviction should be overturned on appeal UNLESS

o govt. can show beyond a reasonable doubt that the error was harmless

 Denial of rt. to counsel at trial is NEVER just harmless → new trial.

 Habeus – if error had substantial & injurious effect of influence in determining the juries verdict should be released

34
Q

EXCLUSIONARY RULE
What is the good faith reliance doctrine?

A

 If an officer relied on a defective warrrant in good faith then the evidence will be admitted.

3 Exceptions:
o unreasonable to rely on underlying affidavit b/c so lacking PC
o warrant defective on face
o affiant lied/misled magistrate

NY does NOT recognize this → defective warrant = inadmissible evidence

35
Q

ARRESTS
When can a police officer make an arrest w/o a warrant?

A

 Police officer may arrest a person without a warrant when he has PC to believe that a felony has been committed by the offender, whether in the officer’s presence or otherwise.

NY – can even arrest for misdemeanor

36
Q

NY WARRANTS
What is necessary for a valid warrant in NY?

A

Must be subscribed from issuing judge and must state:
 name of issuing court
 date of issuance
 name of offense charged
 name of the D to be arrested or description w/ reasonable certainty if unknown
 PO to whom warrant is addressed
 direction to arrest D & bring him before the court

37
Q

WARRANT
What goes in a valid warrant?

A

 Issued on a showing of PC

 By a neutral & detached magistrate

 Precise on its face – states w/ particularity the place to be searched & the items to be seized

38
Q

4TH AMENDMENT
What is probable cause?

A

 A fair probability that the contraband or evidence will be found in the area searched

 Permissible to use hearsay evidence in a PC inquiry

39
Q

WARRANT
What is the test of validity for a warrant based on an informant’s tip?

A

 Totality of the Circumstances – affidavit may be sufficient even though reliability & credibility of the informer or his basis for knowledge is not est.
o if only based on informant info – police must corroborate enough evidence to show common sense practical determination that PC exists

NY – Anguilar-Spinelli Test –must set forth the basis of informant’s knowledge, and establish reliability & credibility of the informer
o need both prongs so if fails one, need further corroboration
o Anon = not credible

40
Q

NY ARRESTS
What are the NY restrictions on searches incident to arrest?

A

 Officer must suspect that the arrested person may be armed to search containers in the wingspan.

 Once person removed from car, police may not remove closed containers or bags to look for weapons.

41
Q

WARRANT
What are the add’l requirements for a wiretapping warrant?

A

4th amend. search so requires a warrant:
 Probable cause
name of persons expected to be overheard
particularly describe conversations to be overheard
 must have strictly limited time periods

NY – warrant good for 30 days & w/in 90 days of termination, person must be informed

NY – if convo incriminates 3rd party, admissible if he was not a party to convo and his premises or area of privacy was not invaded by the interception

42
Q

NY WARRANT
What other possible warrantless search exists in NY?

A

Emergency exception:
 Police must have reasonable grounds to believe emergency & immediate need for assistance for protection of life or property
 Search may not be motivated by intent to arrest or search
 Must be reasonable basis to associate emergency w/ area/place searched

43
Q

NY WAIVER
What is the NY Arthur-Hobson Rule?

A

 the length of interrogation and custody are factors in determining voluntariness & confessions

44
Q

ENTRAPMENT

A

ENTRAPMENT

  • Entrapment = Affirmative Defense in NY –> pleaded and proved by ∆
  • Proved by* Preponderence* that he lack disposed to commit crime, was induced to commit crime soly by acts of PD or Public Servant
45
Q

NY WAIVER
- MIRANDA

A

For Oral Confession to be Admissible under 5A Privilege a/gst Self-Incrimination, a person in custody must be informed of Miranda Rights PRIOR to INTERROGATION:

  • ∆ must
    • be advised of his rights
    • made waiver of rights before making statement
  • If ∆ makes statement, must be voluntary, knowing and intelligent waiver even if it blurting out
  • BUT, ∆ request counsel precence before statement then Q must cease –> Miranda revocable and written statements excludable + NY-C, *all Qs must stop. *
46
Q

NY WAIVER
Can a child waive his Miranda rights?

A

 Child can waive Miranda rights

 Waiver is invalid if police use deception or concealment to keep a parent away from a child

 Parent/legal guardian may invoke rt. to counsel on child’s behalf – must be unequivocal

47
Q

NY 6TH AMENDMENT
What is the indelible right to counsel?

A

6th amend. Indelible Right to Counsel, attaches:
 when D is in custody & police are engaging in activity overwhelming to the layperson, and the D requests counsel
 at arraignment
 on the filing of an accusatory instrument
 where there has been any significant judicial activity

 Waiver – if actually represented by counsel and known to be represented → only in the presence of attorney

 Pre-charge line-ups → no rt. to counsel unless police are aware D is represented by counsel on another matter and D requests his attorney

NY Bar Subjects 2013 (14 decks)

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