What is the Year-and-a-Day Rule? NOTE: NY Distinction
CL (min) rule: death MUST occur w/in a year + a day of the homicidal act
Maj: does NOT follow year-and-a-day rule
NY does NOT follow the Yr + a day rule
Murder:
CL
(elements)
Murder =
- 1) Causing the death;
- 2) of another person
- 3) with “malice aforethought”
CL Murder:
Malice aforethought
(4 types)
-
Intent to kill
- *infer if use deadly weapon
- Intent to cause serious bodily injury
-
Depraved heart murder
- reckless indiferrence to human life
- Commisison of inherently dangerous felony
CL Murder:
For Intent to Kill (form of malice aforethought)-
2 special rules for inferring intent
1) Deadly weapon rule = the intentional use of a deadly weapon creates an INFERENCE of an intent to kill
2) Transferred intent = if a ∆ intends to harm one victim, BUT accidentally harms a DIFFERENT victim instead, the ∆’s intent will TRANSFER from the intended victim to the actual victim
NOTE: Most often applies to (all) homicide, but can also apply to other crimes, such as battery and arson EXCEPTION: transferred intent does NOT APPLY to attempts, only to crimes w/ “completed harms”
CL & NY
Felony murder
(limitations)
Felony murder = ANY killing caused during the commission of OR attempt to commit a felony
6 limitations:
- 1) D must have committed the felony
- (factually, not necessarily charged) of the underlying felony
- Defense to felony = defense to felony murder
- 2) Felony must be inherently dangerous
-
NY list: (brakes)
- battery
- robbery
- arson
- kidnapping
- escape
- sexual assault
-
NY list: (brakes)
- 3) The merger rule: the felony must be INDEPENDENT of the killing
- i.e. aggrevated assault or battery CANNOT be the underlying crime for felony murder
- 4) Killing must take place DURING the felony OR during the immeidate flight from the felony Once D reaches place of temporary safety, the felony ends
- 5) Death must be foreseeable
- 6) Victim must NOT be a co-felon
CL & NY:
Felony Murder:
Vicarious Liability
Maj: Proximate cause theory
- D is liable for death caused by anyone if D’s felony is proximate cause
- ex: police oficer kills
Min: Agency theory
- D is liable only for deaths caused by co-felon
NY: proximate cause thoery
NY felony Murder:
Non-slayer defense
NY: Proximate cause theory for vicarious liability
BUT defense if:
- i) D did not cause the death
- ii) D did not carry deadly weapon
- iii) D had no reaspon to know co-felon was carrying deadly weapon
- iv) D had no reaspon to believe co-felon would do anything likely to result in death
Majority approach:
First degree murder
- i) intentionally killing another
- iii) with premeditation and deliberation
Maj:
2d Degree murder
2d degree murder = all other intentional murders
- 1) Causing the death;
- 2) of another person
- 3) with “malice aforethought”:
- intent to inflict serious bodily harm;
- OR EXTREME recklessness (i.e. reckless indifference to human life a/k/a “depraved heart”)
Battery:
Common Law
Battery =
- 1) the unlawful;
- 2) application of force to another;
- 3) resulting in EITHER bodily injury OR an offensive touching
Mental state = general intent
Assault:
CL elements + mens rea
Version 1 = attempted battery (i.e. a swing/miss)
Version 2 = reasonable apprehension, which reqs…
- 1) The intentional creation;
- 2) Other than by mere words;
- 3) of a reasonable apprehension in the mind of the victim;
- 4) of imminent bodily harm (i.e. a fake punch) Mental state = specific intent
Common Law:
False Imprisonment
False imprisonment =
- 1) the unlawful;
- 2) confinement of a person;
- 3) w/out his consent
- Mental state = general intent
Common law:
Kidnapping
Kidnapping =
- 1) false imprisonment (i.e. unlawful confinement w/o consent);
- 2) that involves either:
- moving the victim
- OR concealing the victim in a secret place
- Mental state = general intent
What are the 2 vicarious liability theories under CL felony murder? NOTE: NY Distinction
1) “Proximate cause” theory (majority rule) = if one of the co-felons proximately causes the victim’s death, then ALL of the other co-felons will be guilty of felony murder, EVEN IF the actual killing is committed by a 3d party (e.g. a bystander, a police officer, etc) NY DISTINCTION: this is the approach followed in NY 2) “Agency” theory = felony murder doctrine applies ONLY IF the killing is committed by one of the co-felons
Common law:
Forcible Rape
Forcible rape =
- 1) sexual intercourse (ANY type of penetration)
- 2) w/o the victim’s consent;
- 3) accomplished by:
- (i) force;
- (ii) threat of force;
- OR (iii) when the victim is unconscious
- Mental state = general intent
What are 2 types of involuntary manslaughter?
1) A killing committed w/ criminal negligence (i.e. a GROSS deviation from a reasonable std of care) 2) A killing committed during the commission of a crime to which the felony murder doctrine DOES NOT apply (i.e. “unlawful act” OR misdemeanor manslaughter)
What are the 2 elements of AND the req’d mental state for CL statutory rape? NOTE: NY Distinction
Statutory rape = 1) sexual intercourse (ANY type of penetration); 2) with someone UNDER the age of consent Mental state = strict liability w/ no defense (majority rule) Minority rule = a REASONABLE mistake of age is a defense NY DISTINCTION: age of consent is 17 (i.e. ∆ MUST be at least 21, and the victim 16 or younger)
What are the 3 elements of CL voluntary manslaughter?
Voluntary manslaughter = 1) an intentional killing; 2) committed in the heat of passion; 3) upon adequate provocation Provocation needs to be OBJECTIVELY adequate (e.g. serious assault or battery; presently witnessed adultery; normally NOT words) ∆ was actually provoked (a subjective consideration) ∆ did not have time to “cool off” ∆ did not ACTUALLY cool off b/t the provocation and the killing
In NY, what is 2d degree unlawful imprisonment (as well as 1st degree)?
2d degree unlawful imprisonment = 1) unlawfully; 2) restraining someone; 3) without their consent; AND 4) with knowledge that the restriction is unlawful ————— 1st degree unlawful imprisonment = 1) 2d degree unlawful imprisonment; AND 2) a risk of serious physical injury
In NY, when is a homicide crime elevated to “aggravated”?
1) when the victim of the homicide is a police officer killed in the line of duty, the offense can be… Aggravated Murder Aggravated Man 1 Aggravated Man 2 Aggravated Crim. Negl. Homicide 2) when the ∆, over the age of 18, causes the death of a child UNDER the age of 14 in an especially cruel and wonton manner = aggrevated murder
NY:
Assault
(1st, 2d, 3d degrees)
2d degree assault =
- 1) intentionally causing;
- 2) serious physical injury
1st degree assault =
- 1) 2d degree assault;
- AND 2) a weapon ————
3d degree assault =
- 1) intentionally causing;
- 2) non-serious physical injury ———— NOTE: 1) All versions of assault in NY req INJURY (there is no “offensive touching”) 2) Attempted assault reqs intent to assault 3) Menacing: Merely creating a “reasonable apprehension” (w/o intent to actually injury) is NOT assault (this is a seperate crime, “menacing”) 4) Battery is NOT a separate crime in NY!!
In NY, what are the ONLY 6 felonies that can give rise to felony murder?
“B-R-A-K-E-S” 1) Burglary 2) Robbery 3) Arson 4) Kidnapping 5) Escape 6) Sexual assault
In NY, what is criminally negl. homicide?
The ∆ SHOULD have been aware of a substantial and unjustifiable risk of death Mental state = criminal negl.
In NY, what are the 4 elements for the “non-slayer” defense to felony murder?
NY provides a ltd affirmative defense to felony murder IF the ∆ can prove… 1) the ∆ did not kill the victim; 2) the ∆ did not have a deadly weapon; 3) the ∆ had no reason to believe that his co-felons had a deadly weapon; AND 4) the ∆ had no reason to believe that his co-felons intended to do anything that was likely to result in death
NY
Kidnapping:
(1st, 2d degree)
2d degree kidnapping =
- abducting someone —————
1st degree kidnapping =
- 1) 2d degree kidnapping;
- 2) one of the following:
- (i) seeking ransom;
- (ii) restraint for more than 12 hrs w/ intent to rape/injure/rob;
- OR (iii) death of the victim
- (–> also felony murder- 1st degree murder if intentional. 2d degree if unintentional)
- 2) one of the following:
In NY,
1st degree manslaughter
1st degree manslaughter = (3 forms)
- 1) Extreme Emotional Disturbance (EED) manslaughter;
- i) intentional killing
- ii) committed under the influence of a reasonable and extreme emotional distrubance
- NOTE: EED manslaughter is an affirmative defense to Murder 2, which ∆ must prove by a preponderance of the evidence
- 2) An intent to cause serious physical injury
- (= MS Cl murder)
In NY,
2d degree manslaughter?
2d degree manslaughter = reckless killing
- i) CONSIOUSLY disregards a substantial and unjustifiable risk of death
- (reckless)
- ii) causes death of another
Voluntary intoxiation is not an affirantive defense (b/c mental state= recklessness_
NY:
Highly Reckless Murder
- Person demonstrates depraved indifference to human life through recklessly engaging in conduct that creates a grave risk of death to another
- thereby causing death of another
NY:
Criminally Negligent HOmicide
= one causes death of another due to criminal negligence
- must be morally blameworthy (gross deviation from ordianry standard of care)
- death must be foreseeable
In NY, what are the various types of homicides?
Affirmative Defenses
1) Murder 1
2) Murder 2
3) Manslaughter 1
4) Manslaughter 2
5) Criminally Negligent Homicide ————
Affirmative defenses:
- Extreme emotional disturbance (heat of passion)
- Aiding a suicide
NY:
1st Degree Murder
(*** premeditation and deliberation are IRRELEVANT in NY )
1st degree murder =
a ≥ 18 yr old ∆ who…
- intentionally kills
- 2) w/ aggrevating factor
- (i) intended victim is an on-duty cop
- court officer, corrections personnel
- D should have known
- (ii) victim killed b/c he was a judge
- (ii) murder for hire;
- (iii) killing for witness intemidation;
- (iii) ≥ 1 victim is same criminal trxn
- (v) intentional killing during commission of felony
- (vi) more than one victim
- (vii) victim killed in furtherance of terrorist act
*
- (i) intended victim is an on-duty cop
NY:
2nd degree murder
2d degree murder
= a ∆ of ANY age who… (3 forms)
- 1) intentionally kills w/o aggravating factor;
- OR 2) commits highly-reckless killing
- demonstrating depraved indifference to human life (w/ more than one victim);
- (if just ONE victim, you need torture)
- demonstrating depraved indifference to human life (w/ more than one victim);
- 3) commits felony murder where a non-co-felon victim is unintentionally killed
- * all participants in felony may be charged
- *even if felony charges are dismissed, D acquitted
- IF sufficient evidence that D committed/attempted to commit the felony
- felonies:
- burglary
- robbery
- arson
- kidnapping
- first degree rape
- sexual abuse/aggravated sexual abuse
- 1st & 2nd degree escape
NY approach:
What is Voluntary Manslaughter in NY?
Extreme emotional disturbance manslaughter
= a killing:
- i) intentionally committed
- ii) under influence of a reasonable and extreme emotional disturbance
= affirmative defense –>takes murder 2 down to manslaughter
- **D must prove by preponderance of evidence
Majority approach:
Voluntary Manslaughter
= a killing:
- i) intentionally committed
- ii) in the heat of passion
- i) d actually incensed
- ii) did not cool off
- iii) due to adequate provocation
- ii) average person would be provoked
- iv) average person would not have cooled off
Maj: (effect: takes murder 2 down to manslaughter)
NY:
Vehicular Assult
Vehicular Homicide
Vehicular Manslaughter:
- causing the death of another by driving intoxicated (>.08)
- *Aggravated = same, but blood alcohol .18_ OR death of more than one victime
Vehicular Assault:
- causing bodily injury to another by driving intoxicated
NY:
Assault & attempted assault
NY assualt =
- 1) intentionally
- 2) causing injury to another’s person
NY attempted assault =
- 1) intentionally
- 2) putting another in imminent aprehension of imminent bodily injury
NY Felony murder defense:
Affirmative defense to felony-murder:
- he did not commit/aid in commission of homicidal act
- was not armed w/deadly weapon
- no reasonable grounds to believe others were armed
- no reason to beleive any participant intned to engage in conduct likely to result in death
NY Kidnapping Defense
Affirmative defense =
- i) D is relative of the victim
- ii) and only kidnapped to regain control
NY Rape:
1st Degree (qulaifies as first degree murder)
person engages in sexual intergourse with another person who is:
- *by forcible compulsion
- less than 11 years old
- physically helpless
- OR less than 13 & actor is 18 or over
Rape/Sexual misconduct:
Can D be convicted from evidence of v’s testimony alone?
NY:
What if create reasonable apprehension of harm in another?
CL version of assault is NOT a crime in NY.
Attempted assault if intentionally caused
If no intent, “menacing”
- creating a reasponable apprehension” without an intent to actuall unjury
**NO form for offensive touching
CL/Maj:
Involuntary Manslaughter
2 types:
- Killing committed during commission of crime, where felony murder does NOT apply
-
Unintentional killing with:
- Maj/MPC: recklessness
- CL: criminal negligence
NY:
Aggravated Homicide:
(3 ways)
- killing on-duty cop (should have known)
- D, over age 18, causes death of victim under 14 in cruel and wanton manner
- Aggravated vehicular homicide-
1. if blood-alcohol over .18
2. OR engages in reckless driving
- Aggravated vehicular homicide-
NY:
Unlawful Imprisonment
(1st, 2d degree)
Second degree:
- 1) unlawfully
- 2) restraining someone
- 3) w/o their consent
- AND 4) knowledge that the restriction is unlawful
- (mens rea = knowing)
1st degree:
- 1) 2nd degree
- 2) risk of serious physical injury
Common law/NY:
Statutory Rape
Statutory rape =
- 1) sexual intercourse
- 2) w/someone under the age of consent
- Ny: 17 (vic must be 16 or under, D must be 21)
Mens rea =
- Maj: strict liability
- MPC/min: reasonable mistake of age is defense