Property Crimes Flashcards
What are the elements of common law larceny?
Larceny =
1) Trespassory taking and carrying away;
(unlawful moving = asportation)
2) the personal property of another;
(Turns on who had lawful custody - if ∆ has lawful custody of the property, then he CANNOT be guilty of larceny; BUT ∆ CAN be guilty of larceny, EVEN IF he owns the property, if someone else had lawful custody)
3) with the specificintent to permamently retain/steal the property
(If ∆ intends to give the property BACK, then it’s not larceny; the Erroneous Takings Rule: A taking under a claim of right is NEVER larceny, EVEN IF the ∆ erroneously believes the property is his)
NOTE: if a ∆ wrongfully takes property, but w/o the intent to steal, he will NOT be guilty of larceny; BUT, if the ∆ LATER forms the intent to steal, the initial trespassory taking is considered to have “continued” and he WILL be guilty of larceny (an EXCEPTION to the concurrence principle)
What are the elements ofcommon law embezzlement?
Embezzlement =
1) the conversion of personal property of another;
2) by a person ALREADY in lawful possession of that property;
3) with the specificintent to defraud
** Cf. w/ larceny: here the ∆ must ALREADY have lawful possession of the property before a taking can be considered embezzlement
** Cf. w/ false pretenses: here ∆ already has RIGHTFUL possession (there is no inducement by a false stmt like with false pretenses OR larceny by trick)
NOTE: if the ∆ intends to give the EXACT property back in the EXACT form, he does NOT have the intent to defraud
What are the elements ofcommon law false pretenses?
False pretenses =
1) Obtaining title to the personal property of another;
** NOTE: if the ∆ ONLY obtains custody (NOT title), then this is Larceny by trick (NOT false pretenses)
** NOTE: if CASH is transferred without any limitations, then this IS obtaining title!
2) by an intentional false statement (of a present or past fact; not a future promise)
3) with the specific intent to defraud
What are the elements of common law robbery?
Robbery =
1) a larceny (REVIEW!) (specific intent);
2) from another’s person or presence;
**Presence = some location reasonably close to the victim (e.g. rooms in the house other than the room in which the victim is located)
3) by force OR threat of immediate injury
** Force = ANY amount of force that is sufficient to overcome victim’s resistance (e.g. chain snatching; BUT NOT pick pocketing because of no resistance)
** Threats need to be of IMMEDIATE injury
** Threats of future harm = extortion/blackmail, NOT robbery
What are the elements of common law forgery?
Forgery =
1) ∆ acts with the specific intent to defraud;
2) by making OR altering a WRITING;
3) so that it is false
In NY, what is larceny and its degrees?
Larceny = Any crime that would be any of the following at common law:
1) Larceny
2) Embezzlement
3) False pretenses
4) Larceny by trick 5 degrees of larceny: depends on how much property is worth
1st >$1MM
2nd >$50k
3rd >$3k
4th >$1k
5th is Petit larceny
In NY, what is 2nd degree robbery (as well as 1st and 3rd degrees)?
2nd degree robbery =
1) Forcible stealing; AND
2) One of the following:
(i) ∆ is aided by another who’s actually present;
(ii) victim is injured; OR
(iii) a car is stolen (carjacking)
1st degree robbery =
1) Forcible stealing; AND
2) One of the following:
(i) victim is seriously injured; OR
(ii) ∆ uses OR displays a firearm
NOTE: if ∆ can prove that gun was unloaded then it’s an AFFIRMATIVE defense that kicks it down to 2nd degree robbery
3rd degree robbery = Forcible stealing
NOTE: If the victim is ACCIDENTALLY killed, then it’s 2nd degree felony murder
NOTE: If the victim is INTENTIONALLY killed, then it’s 1st degree felony burder
What are the elements of common law burglary?
Burglary =
1) Breaking and entering;
* * Breaking = creating/enlarging an opening by at least minimal force (e.g. opening a window/door; NOT entering an already open window)
* * Constructive “breaking” = when entry is gained through fraud, threats OR intimidation
* * Entry = means SOME part of the ∆’s body must enter the building
2) into the dwelling of another at night;
* * Dwelling = structure where someone regularly sleeps
3) with the specific intent to commit a felony inside Intent to rob, steal, rape, assault, kill, etc
NOTE: doesn’t matter if you ULTIMATELY complete the offense (forming intent alone is enough)
In NY, what is 3rd degree burglary (as well as 1st and 2nd degrees)?
3rd degree burglary =
1) entering or remaining;
2) in a building unlawfully;
3) with the specific intent to commit a crime inside ANY crime, not just felonies
NOTE: NO requirements for breaking, dwelling, or nighttime
2nd degree burglary =
1) 3rd degree burglary; AND
2) one of the following:
(i) the building is a dwelling;
(ii) a non-participant is injured; OR
(iii) the ∆ carries a weapon
1st degree burglary =
1) ∆ KNOWS that he is burglarizing a dwelling; AND
2) one of the following:
(i) a non-participant is injured; OR
(ii) the ∆ carries a weapon
What are elements of common law arson?
Arson =
1) the malicious burning;
* * Malice = intentional burning OR reckless disregard of a substantial and unjustifiable harm
* * Burning requires material wasting (scorching is not enough) of the building (structure, porch, etc)
2) of a dwelling of another
* * Most jurisdictions have changed dwelling to building
In NY, what are the degrees of arson?
4th degree = reckless burning of a building
3rd degree = intentional burning of a building
2nd degree = 3rd degree arson + ∆ knows/should know someone was inside the building
1st degree = 2nd degree arson + explosive/incendiary device
What are the common law possessory offenses and their elements?
1) Possession of contraband (e.g. controlled substances, child porn, etc)
* * Possession = control for a period of time long enough to have an opportunity to terminate possession
* * Constructive possession = the contraband need not be in the ∆’s ACTUAL possession, so long as it is close enough for him to exercise dominion and control over it
2) Receipt of stolen property: 3 elements… -
- Receiving possession and control;
- of knowingly stolen personal property
- w/ intent to permanently deprive the owner of his interest in the property
In NY, what is the requirement for criminal possession of stolen property?
The property must REALLY be stolen
Property that is recovered OR that is used w/ permission is NOT stolen
