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NY Bar 2014 > Criminal > Flashcards

Flashcards in Criminal Deck (106):
1

Only case of merger?

Solicitation/Attempt and completed crime merge.

2

Multiple punishments for same crime?

2+ statutorily defined offenses
specifically intended by legislature to carry separate punishments, even when they are from the same crime.

3

Elements of Omission Crime

(1) Legal duty to act (statute, contract, status relationship, voluntary assumption of care; creation of peril)
(2) Knowledge of facts giving rise to duty
(3) Reasonably possible to perform duty

4

MR: Specific intent
NY - "Intent"
[desire to act and achieve specific result]

Assault, murder 1;
Larceny, Embezzlement, false pretenses, robbery, forgery, Burglary
Solicitation, conspiracy, attempt

5

MR: Malice
NY - "Recklessness"
[Intentional OR reckless disregard of obvious risk]

Murder, arson

6

MR: General intent
NY - "Negligence"
[Generally aware of factors - no intent for specific result]

Battery, forcible rape, false imprisonment, kidnapping
"fails to be aware of a substantial and unjustifiable risk"

7

MR: Strict
[No mental state]

Public welfare, statutory rape

8

*NY* mens rea levels

Intent: Desire to achieve
Knowledge: Practically certain result
Recklessness: Consciously disregards known risk
Negligence: Should have been aware

9

Causation?

Actual (but for)
AND
Proximate (no intervening cause)

10

Concurrence?

Has mental state at same time as act

11

Battery - CL

Unlawful application of force to another
Resulting in injury or offensive touching
MR: General intent

12

Assault - CL

Attempted battery
OR
Intentional creation of reasonable apprehension
MR: Specific intent

13

Assault - NY

Intentionally causing physical injury to another
(offensive touching not enough)

14

Attempted assault - NY

"Intent" to cause injury.

15

Menacing - NY

Creation of reasonable apprehension

16

Degrees of assault - NY

1st - with weapon
* 2nd - Intentionally causing SERIOUS physical injury
3rd - NON-serious injury

17

Homicide - until when can death occur?

CL (old): 1y+1d
NY and MAJ: any time!

18

Murder - elements

Causing death with malice aforethought.

19

"Malice aforethought" as MR for murder?

Intent to kill
Intent to inflict serious bodily harm
Extreme recklessness / indifference to human life
Intentional inherently dangerous felony

20

"Intent to kill"

Weapon = inference of intent

21

Transferred intent to kill - limitation?

Only for completed crime (no attempted murder if victim doesn't die)

22

"Intentional inherently dangerous felony" - limits?

Guilty of felony.
Felony independent of killing (no merger, not battery)
During felony or immediate flight
Foreseeability!
Victim not co-felon

23

Is escape an inherently dangerous felony?

Only in NY.

24

Co-felons

All guilty by vicarious liability. Even when 3rd party bystander kills.

25

NY non-slayer defense - conditions

Did not kill
Had no deadly weapon
Had no reason to believe co-felon had deadly weapon
Had no reason to believe co-felons would do anything resulting in death

26

Murder - degrees - majority

1st - premeditation + deliberation
2nd - everything else

27

Murder - degrees - NY

1st - Intent to kill + >18 + Aggravating factor (killed cop, murder for hire, felony murder + intentional killing, witness intimidation, multiple victims)
2nd - Intentional killing OR highly reckless murder OR felony murder (with intention to kill, no co-felon)

28

"Highly reckless murder" (2nd NY)

Demonstrating depraved indifference to human life, recklessly engages in conduct that creates a grave risk of death and thereby causes death of another

29

Voluntary manslaughter - CL

Intentional killing
in the heat of passion
with adequate provocation

30

"Adequate provocation" for CL manslaughter?

Objectively adequate for sudden/intense reaction
Subjectively provoked
Objectively - no time to cool off
Subjectively - did not cool off
*NY - see 1st manslaiughter / Extreme Emotional Disturbance

31

Involuntary manslaughter - CL

Killing with criminal negligence
OR
Killing during crime (other than felony murder)

32

Manslaughter 1 - NY

Intentional killing under influence of reasonable and extreme emotional disturbance
(like CL voluntary manslaughter)
OR
Intent to cause serious physical injury

33

Manslaughter 2 - NY

Recklessness
(aware of and consciously disregards substantial and unjustifiable risk of death)

34

Criminally negligent homicide - NY

Criminal negligence
(like CL involuntary manslaughter)

35

Aggravated homicide - NY

Police officer /
>18 kills <14 in cruel/wanton manner

36

Felony murder in NY - intentional/accidental distinction:

Intentional - Murder 1
Accidental - Murder 2
[Can convict even if acquitted of underlying felony, so long as there is evidence of the felony!]

37

List of all homicide crimes in NY

Aggravated homicide
Murder 1 (intent + aggravation)
Murder 2 (intent)
Man 1 (Intent + EED / intent to injure)
Man 2 (recklessness)
Criminal negligence homicide

38

False imprisonment - CL

Unlawful confinement of person without consent
which interferes substantially with victim's liberty (no alternative routes).
MR - general intent

39

Unlawful imprisonment - NY

2nd - unlawful restraining without consent
MR: Knowledge that unlawful [legal mistake is a defense!]

1st - same plus risk of serious injury

40

Kidnapping - CL

False imprisonment + moving the victim or concealing in secret place
MR: General intent

41

Kidnapping - NY

2nd - abducting
1st - plus ransom OR >12hr restraint with intent to rape/injure/rob OR death of victim

42

Forcible rape

Sexual intercourse w/o consent
by force / threat of force / when unconscious
MR: General intent

43

Statutory rape - MR distinction?

NY, majority: strict
MPC: except reasonable mistake

44

Larceny - CL

Trespassory taking and carrying away
the personal property of another
with intent to permanently retain property
(TTCPAIP)

45

Larceny + intent to return

Defense!

46

Erroneous takings rule in larceny

Under claim of right - even erroneous ---- not larceny!

47

Concurrence rule.
EXCL Continuing trespass in larceny

** Exception to concurrence rule if he decides to steal while in unlawful possession

48

Embezzlement - CL

Fraudulent conversion
of personal property of another
when already in LAWFUL POSSESSION
MR: specific intent to defraud
"Possession" - authority to exercise discretion, not mere custody

49

False pretenses - CL

Obtaining TITLE to another's property
by intentional FALSE STATEMENT
MR: Intent to defraud

50

Larceny by trick - CL

Obtains CUSTODY by intentional FALSE STATEMENT
(not ownership, that would be false pretenses)

51

Robbery - CL

Taking
of personal property
from another's person/presence
by force or threat of immediate injury (not begging, lying)
MR:with intent to permanently deprive
(not pickpocket)
(not written threat, blackmail, extortion)

52

Forgery - CL

Making/altering a writing
so that it is false
MR: with intent to defraud

53

Theft crimes in NY

Only larceny and robbery (larceny is a catch-all)

54

Larceny NY degrees

1st -- $1m
2nd -- $50k or extortion involving physical injury
* 3rd -- $3k or ATM
4th -- $1k, public records, etc.
"Petit" - any

55

Larceny NY includes these crimes

Everything except robbery:
Larceny by trespassory taking, embezzlement, false pretenses, larceny by trick, issuing bad check to obtain property, extortion?

56

Robbery - NY - degrees

3rd - forcible stealing
2nd - ?aided by another / victim injured / car stolen / unloaded firearm
1st - ? victim seriously injured / uses or displays loaded firearm

57

Burglary - CL
**NARROW**

Breaking and entering (not open window, not with permission)
dwelling of another (someone regularly sleeps there)
at night
with intent to commit felony inside
MR: Specific intent when entering (not after he is inside already!)

58

Burglary - NY
**BROAD**

Entering/remaining
in building
unlawfully
with intent to commit any crime inside
[no concurrence, no breaking, no dwelling, no nighttime, any crime not just felony]

59

Burglary - NY - degrees

3rd - (above)
2nd - dwelling / injury / weapon
1st - Perp knows it is a dwelling PLUS injured / weapon

60

Arson - CL

Malicious burning of building (material wasting of building itself, not just scorching, not just contents)
MR: Malice

61

Arson - NY - degrees

4th - Reckless damage by intentionally starting fire
3rd - Intentional damage
2nd - Intentional + knows or should know someone is inside or reasonably possible
1st - all that plus incendiary/explosive

62

Possession of contraband

Possession = control for period sufficient for opportunity to terminate control
Constructive possession = close enough to exercise dominion + control
MR: Knowledge of possession and character of item

63

Receipt of stolen property

Receiving possession and control
of stolen personal property
MR: Knowledge that object was OBTAINED CRIMINALLY with intent to permanently deprive owner of interest.
[CHECK STATUS WHEN RECEIVED, IF ALREADY RECOVERED BY POLICE, MAYBE WE ONLY HAVE AN ATTEMPT]

64

Criminal possession of stolen property - NY

Must realy be stolen

65

MR for accomplice liability - NY/MBE

MBE: intent that crime be committed - NOT INCLUDING negligence/recklessness
NY: intent to aid perp's conduct AND mental state for crime - INCLUDES negligence and recklessness!

66

Mere knowledge = accomplice?

MBE: No.
NY: Knowledge = crime of "criminal facilitation" (doesn't reach accomplice level)

67

Accomplice withdrawal defense - NY/MBE

MBE
Encourager - repudiates before crime committed
Aider - must neutralize or prevent crime (call cops)

NY [requires more effort]
Renunciation + withraws prior to commission + substantial effort to prevent

68

Accessory after the fact

Can be convicted of "accessory" crime, not principal crime.
Helps perp
with knowledge of crime
with intent to help AVOID ARREST/CONVICTION
NY - "hindering prosecution"
(There is also an "accessory before the crime" who is not a principal if not present at the crime itself)

69

Inchoate offenses?

Solicitation
Conspiracy
Attempt

70

Solicitation - elements

Asking someone to commit crime
with intent that it be committed
MR: Specific intent
[Not necessary to complete crime]
[NY has 5 degrees re ages and whether crime is a felony]

71

Conspiracy - elements

Agreement and overt act [anything, even preparatory]
in furtherance of crime
MR: Specific intent:
(1) for agreement - "concert of action" +
(2) Accomplish objectives of conspiracy
[NY has 6 degrees re ages and type of crime]

72

How many guilty minds for conspiracy?

CL: Bilateral - 2!
NY/MPC: Unilateral - only 1 - even when others are acquitted or undercover cops

73

Conspiracy - when crime itself needs >1

NY: Need n+1
"Wharton rule"

74

Vicarious liability for co-conspirator crimes?

Furtherance of conspiracy objectives;
foreseeable results;
[NY non-participating co-conspiror not liable]

75

Attempt - elements?

Overt act beyond preparation (much more than conspiracy)
CL/NY - "dangerously close"
MPC/maj: substantial step towards commission, which strongly corroborates crim. Purpose
MR: Intent to commit crime! (Recklessness, negligence, felony murder - not enough!!)

76

Attempt - factual impossibility defense?

Not a defense

77

Attempt - legal impossibility defense?
[When completion of intended acts would not produce crime, but perp thought he would -- "shooting stuffed deer"]

CL: Defense!
NY: Not a defense

78

Inchoate withdrawal defense - NY/MBE

** MBE: Usually not a defence. Elements are fulfilled early. Might relieve vicarious liability for co-conspirators' actions but not for crime of conspiracy.
NY: Only completely renounced + prevented commission!

79

Merger rule for solicitation - NY/MBE

MBE: Merges
NY: Doesn't merge!

80

Merger rule for attempt - NY/MBE

Always merges

81

Merger rule for conspiracy - NY/MBE

NEVER merges

82

Insanity defense - general requirement
[Need to know the following separate tests]

Must have "mental disease of defect"

83

Insanity defense - M'Naughten

"DOESN'T KNOW RIGHT FROM WRONG"
Cognitive:
Didn't know action was WRONG
Didn't understand NATURE of conduct

84

Insanity defense - irresistable impulse

Unable to control actions, or conform actions to law

85

Insanity defense - Durham / New Hampshire

"BUT FOR ILLNESS, WOULDN'T HAVE COMMITTED"
Broad!
Crime was product of mental illness

86

Insanity defense - MPC

"COMBINATION M'NAUGHTEN + IRRESISTABLE"
(COGNITIVE + VOLITIONAL)
As a result of mental disease/defect:
Lacked substantial capacity to either
(a) Appreciate the criminality of conduct [M'Naughten]
OR
(b) conform to requirement of law [Irresistable impulse]

87

Insanity defense - NY

Lacked substantial capacity to know and appreciate EITHER
(a) nature and consequences of conduct
(b) that conduct was wrong

88

Voluntary intoxication - defense to which MR?

CL/MBE: Specific intent only
NY: "Intent" "Knowledge"

89

Infancy defense - CL


14+ - prosecution allowed

90

Infancy defense - NY

<13 Juvie prosecution only
13 Adult for Murder 2
14-15 Adult for serious crimes against person or property
16+ Adult for any crime

91

Mistake defense?

Mistake of law - NEVER unless knowledge of law is element
Only mistake of fact

92

CL mistake of fact

REASONABLE MISTAKE IS DEFENSE FOR EVERYTHING EXCEPT STRICT
Specific intent - any mistake of fact
Malice, general intent - reasonable mistake only
Strict liability - no defense

93

NY mistake of fact

WHEN REQUIRED MENTAL STATE IS NEGATED
REASONABLE MISTAKE IS DEFENSE FOR EVERYTHING EXCEPT STRICT
Intent/knowledge/recklessness - any mistake
Negligence - reasonable mistake only
Strict - no defense

94

Self defense - use of non-deadly force

Reasonably necessary
to protect against immediate use
of unlawful force
NY: Not if he provoked)

95

Self defense - use of deadly force

Faces imminent threat
of death of serious injury

96

Initial aggressor use of deadly force in self defense?

No defense.
EXC1: withdraws and "communicates withdrawal"
EXC2: victim escalates non-deadly fight to deadly fight (+NY withdraws as well)

97

Retreat required before use of deadly force?

MBE: Not required.
NY: Yes EXCEPT if he cannot retreat in complete safety / at home (castle exception) / officer / believes person is committed kidnapping, rape, burglury.

98

Mistake re need to use force?

Reasonable mistake - defense.
Unreasonable:
NY/maj. - no defense.
MPC - mitigates liability - "imperfect self defense"

99

Use of force to prevent crime

Non-deadly - to prevent "serious breach of peace"
Deadly - "to prevent felony risking human life"

100

Defense of others

Resonable belief that other person has legal right to his own defense.
"Reasonable appearance"

101

Deadly force in defense of property?

No, except:
In dwelling +
tumultuous entry +
reasonable belief that necessary to prevent personal attack [not really defense of property anymore]

102

Non-deadly force to resist arrest

Maj. - to resist unlwaful arrest
NY - only to resist excessive force

103

"Necessity defense"

Reasonable belief that force necessary to prevent greater harm.
Objective test only! Good faith belief NOT sufficient.
Doesn't apply:
(a) Deadly force in protecting property
(b) Defendant at fault in creating "choice of evils situation"

104

Civilian making arrest?

Non-deadly force
if crime actually committed
person has reasonable grounds to believe he was the perp.
Deadly force - only if actually guilty (not just belief)

105

Duress defense?

Coerced
by threat of imminent death / serious injury
to himself of close family
MBE - not for homicide.
NY - defense for homicide!

106

Entrapment defense?

[NOT USUALLY GOOD DEFENSE ON MBE]
Criminal design originated with government
AND
D not predisposed to commit (eg. no crim record)