NY 6th Amendment
What is the indelible right to counsel?
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
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
What are the add’l requirements for a wiretapping warrant?
4th amend. search so requires a warrant:
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
Can a child waive his Miranda rights?
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
What other possible warrantless search exists in NY?
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
What is the NY Arthur-Hobson Rule?
the length of interrogation and custody are factors in determining voluntariness & confessions
What goes in a valid warrant?
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
What are the NY restrictions on searches incident to arrest?
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.
What is probable cause?
A fair probability that the contraband or evidence will be found in the area searched
Permissible to use hearsay evidence in a PC inquiry
What is the test of validity for a warrant based on an informant’s tip?
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
What is the harmless error doctrine?
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
When can a police officer make an arrest w/o a warrant?
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
What is the good faith reliance doctrine?
If an officer relied on a defective warrrant in good faith then the evidence will be admitted.
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
What is necessary for a valid warrant in NY?
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
NY Property Crimes
What are the degrees of arson?
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
NY Trial Procedures
When can a D waive indictment in NY?
If the crime charged is not punishable by death or life imprisonment à
D can waive indictment by GJ w/ Prosecutor’s approval
What is malicious mischief?
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
NY Property Crimes
What is criminal trespass?
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
NY Property Crimes
What are the elements of larceny for a bad check?
Issuing a bad check to obtain property is larceny.
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
D or another makes good on the check w/in 10 days of it being dishonored, or
D was employee acting for his employer
What is criminal possession of a forged instrument?
Use or possession for use of a forged instrument with fraudulent intent.
Does NOT merge with forgery.
NY Property Crimes
What are the degrees of larceny?
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
appropriating leased/rented items
CL Property Crimes
Receipt of Stolen Property
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.
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.
Impossibility is NOT a defense
Wharton Rule: 2 parties nec. for offense – need 3rd party for conspiracy
é See CHART.
Conspiracy –Differences in NY & CL
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
CL – NO withdrawal
NY – withdrawal affirmative def. if:
D voluntarily renounces and prevents the commission of the crime
What are the elements of attempt?
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
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
NY Defenses: Withdrawal
What are the requirements for withdrawal?
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
NY Inchoate Crimes
What are the degrees of solicitation?
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
CL Defenses: Withdrawal
What are the requirements for withdrawal?
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”
NY Accomplice Liability
What is criminal facilitation?
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
What are the elements of kidnapping?
False imprisonment and moving the V or concealing V in a secret place
Example of Aggravated Kidnapping:
for the purpose of committing other crimes
for offensive purposes
CL Inchoate Crimes
CL False Imprisonment
What are the elements of false imprisonment?
unlawful confinement of a person w/o his valid consent
Consent not valid:
incapacity due to mental illness
What are the different degrees of rape?
Sex w/o V’s consent by force or threat of force or when V is unconscious
V is under 11 yrs. old
V is physically helpless
18+ person has sex w/ person under 14
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
What are the elements of 2nd degree vehicular homicide?
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”
What are the elements of Criminally Negligent Homicide?
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
What are the elements of 1st degree vehicular homicide?
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
What are the elements of Aggravated Vehicular Homicide?
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
NY Crimes: Assault
What is assault?
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.
What are the elements of highly reckless murder?
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”
CL Crimes: Assault
What is assault?
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
What are the elements of intentional murder?
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
What are the 4 elements of criminal liability?
CL Crimes: Battery
What is battery?
Unlawful application of force to another resulting in either bodily injury or offensive touching.
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
What are the 5 New York
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
Doctrine of Mistake:
Mistake of fact in NY?
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