Crim Law

Question 1

NY 6th Amendment

What is the indelible right to counsel?

Answer 1

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 à only in the presence of attorney

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

Question 2

Warrant

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

Answer 2

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

Question 3

NY Waiver

Can a child waive his Miranda rights?

Answer 3

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

Question 4

NY Warrant

What other possible warrantless search exists in NY?

Answer 4

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

Question 5

NY Waiver

What is the NY Arthur-Hobson Rule?

Answer 5

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

Question 6

Warrant

What goes in a valid warrant?

Answer 6

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

Question 7

NY Arrests

What are the NY restrictions on searches incident to arrest?

Answer 7

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.

Question 8

4th Amendment

What is probable cause?

Answer 8

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

Permissible to use hearsay evidence in a PC inquiry

Question 9

Warrant

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

Answer 9

Totality of the Circumstances – affidavit may be sufficient even though reliability & credibility of the informer or his basis for knowledge is not est.

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

need both prongs so if fails one, need further corroboration
Anon = not credible

Question 10

Exclusionary Rule

What is the harmless error doctrine?

Answer 10

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

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

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

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

Question 11

Arrests

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

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

Question 12

Exclusionary Rule

What is the good faith reliance doctrine?

Answer 12

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

3 Exceptions:

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

NY does NOT recognize this à defective warrant = inadmissible evidence

Question 13

NY Warrants

What is necessary for a valid warrant in NY?

Answer 13

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

Question 14

NY Property Crimes

What are the degrees of arson?

Answer 14

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

Question 15

NY Trial Procedures

When can a D waive indictment in NY?

Answer 15

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

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

Question 16

Property Crimes

What is malicious mischief?

Answer 16

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

3rd - $250
2nd - $1,500
1st – 2nd + use of explosive device

émalice - reckless disregard of a known risk

Question 17

NY Property Crimes

What is criminal trespass?

Answer 17

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

Question 18

NY Property Crimes

What are the elements of larceny for a bad check?

Answer 18

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

Question 19

NY Forgery

What is criminal possession of a forged instrument?

Answer 19

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

Does NOT merge with forgery.

Question 20

NY Property Crimes

What are the degrees of larceny?

Answer 20

0-$1k = petty 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

Question 21

CL Property Crimes

Receipt of Stolen Property

Answer 21

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

Possession & larceny do not merge.

Question 22

Inchoate Crimes

Conspiracy

Answer 22

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

é See CHART.

Question 23

Inchoate Crimes

Conspiracy –Differences in NY & CL

Answer 23

Question 24

Inchoate Crimes

Solicitation

Answer 24

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

CL – solicitation ALWAYS merges

ask + person agrees = conspiracy

NY – solicitation does NOT merge

Defenses:

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

Question 25

Inchoate Crimes What are the elements of attempt?

Answer 25

Get dangerously close to commission of the crime and must have specific intent to commit the crime NY – cannot attempt a reckless or negligent crime Defenses: Mistake of law (e.g. attempted arson) Factual impossibility NOT a defense NY – abandonment is A.D. – must manifest a voluntary & complete renunciation of his actions & avoid commission of the crime by abandoning the criminal effort CL – no abandonment

Question 26

NY Defenses: Withdrawal What are the requirements for withdrawal?

Answer 26

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

Question 27

NY Inchoate Crimes What are the degrees of solicitation?

Answer 27

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

Question 28

CL Defenses: Withdrawal What are the requirements for withdrawal?

Answer 28

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”

Question 29

NY Accomplice Liability What is criminal facilitation?

Answer 29

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

Question 30

CL Kidnapping What are the elements of kidnapping?

Answer 30

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

Question 31

CL Inchoate Crimes General Chart

Answer 31

Question 32

CL False Imprisonment What are the elements of false imprisonment?

Answer 32

unlawful confinement of a person w/o his valid consent Consent not valid: coercion threats deception incapacity due to mental illness retardation youth

Question 33

NY Rape What are the different degrees of rape?

Answer 33

Sex w/o V’s consent by force or threat of force or when V is unconscious 1st Degree V is under 11 yrs. old V is physically helpless forcible compulsion 2nd Degree 18+ person has sex w/ person under 14 3rd Degree sex w/ person who cannot consent (other than b/c of age) 21+ person who has sex w/ someone under 17 é Cannot be convicted solely on testimony of V unless forcible rape, sodomy, sexual abuse

Question 34

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

Answer 34

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”

Question 35

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

Answer 35

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

Question 36

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

Answer 36

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 ésuspensions & convictions in other states count

Question 37

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

Answer 37

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

Question 38

NY Crimes: Assault What is assault?

Answer 38

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.

Question 39

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

Answer 39

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

Question 40

CL Crimes: Assault What is assault?

Answer 40

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: w/ a deadly weapon w/ intent to rape or maim

Question 41

NY Homicide: What are the elements of intentional murder?

Answer 41

when a person, with the intent to cause the death of another, causes the death of such person 2 Affirmative Defenses: extreme emotional disturbance (“heat of passion”) aiding a suicide (using duress or deception) é mitigates it to manslaughter

Question 42

Criminal Liability: What are the 4 elements of criminal liability?

Answer 42

Act. Mental State. Causation. Concurrence.

Question 43

CL Crimes: Battery What is battery?

Answer 43

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

Question 44

Mental States: What are the 5 New York mental states?

Answer 44

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

Question 45

Doctrine of Mistake: Mistake of fact in NY?

Answer 45

D may plead mistake of fact to disprove the required mental state. Intentionally, Knowingly, Recklessly – any mistake is a defense Negligently – reasonable mistake Strict liability – no mistake é 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