NY Criminal Law and Procedure Flashcards

Question

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

Answer 1

 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

Answer 2

 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

Answer 3

 Use or possession for use of a forged instrument with fraudulent intent.  Does NOT merge with forgery.

Answer 4

 **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.

Answer 5

 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

Answer 6

 **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

Answer 7

 If the crime charged is not punishable by death or life imprisonment → ## Footnote  D can waive indictment by GJ w/ Prosecutor’s approval

Answer 8

 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

Answer 9

 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.  H**abeus** – if error had _substantial & injurious effect of influence_ in determining the juries verdict should be released

Answer 10

 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**

Answer 11

 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**

Answer 12

**_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

Answer 13

 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

Answer 14

 A fair probability that the contraband or evidence will be found in the area searched  Permissible to use hearsay evidence in a PC inquiry

Answer 15

 T**otality 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

Answer 16

 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.

Answer 17

**4th amend. search so requires a warrant:**  Probable cause  **name** of persons expected to be overheard  **particularly** describe conversations to be overheard  must have strictl**y 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

Answer 18

**_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

Answer 19

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

Answer 20

**_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

Answer 21

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. *

Answer 22

 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

Answer 23

**_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