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Flashcards in Criminal Law Deck (71):


Specific Intent Crimes 

(Common Law)


11 Specific Intent Crimes

(desire to achieve a specific result) 

  1. First degree murder 
  2. Assault 
  3. Larceny 
  4. Burglary 
  5. Robbery 
  6. Forgery
  7. Embezzlement 
  8. False Pretenses 
  9. Solicitation
  10. Conspiracy
  11. Attempt 



General Intent Crimes 

(Common Law) 



Forcible Rape 

False Imprisonment 


  • D is aware of the factors constituting the crime but need not intend a specific result. 



Common Law Malice Crimes 




  • When a defendant acts intentional or with a reckless disregard of an obvious or known risk 



Strict Liability (Common Law) 


Statutory Rape 


Public Welfare Offenses 

  • No mental state required. 
  • NY: Knowledge of weight of controlled substance is not an element; D is strictly liable for weight. 



Defenses and Affirmative Defenses in New York


  • A defense is one that the prosecution must disprove BRD (ex. self-defense) 
  • An affirmative defense is one the defendant must prove by a preponderance of the evidence 



Felonies versus Misdemeanors


  • Felonies are punishable by more than 1 year in prison or death 
  • Misdemeanors are punishable by fine and/or imprisonment for less than 1 year. 
  • NY: "violations" other than traffic offenses are punishable by no more than 15 days imprisonment. 



Physical Acts must be . . . 



  • Involuntary; or 
  • While unconscious; or 
  • A reflex/convulsion 




Criminal liability attaches when . . . 


  1. Legal duty to act (statute, contract such as babysitter/lifeguard, status relationship such as spouse/parent, voluntary assumption of care, or creation of peril). 
  2. Knowledge of facts giving rise to a duty
  3. Ability to help



New York Mental States


Same as MPC 

  1. Intent: conscious desire to achieve particular result 
  2. Knowledge: D's awareness of what he is doing, that it will cause a particular result 
  3. Recklessness: awareness of substantial and unjustifiable risk; consciously disregards risk 
  4. Negligence: should have been aware of substantial and unjustifiable risk 
  5. Strict liability: no mental state. 



Actual Causation 



"But For" Causation 

Cause-in-fact: bad result would not have happened but for defendant's conduct, except for accelerating causes (hastening death = actual cause). 



Proximate Cause 


Bad result = natural and probable consequence of D's conduct, including eggshell victims or those with pre-existing weaknesses. 

Excluding: unforeseeable intervening events. 





  • D must act with requisite mental state at the time of the act (except larceny, intent can arise later). 



Common Law Assault 


Mental State: Specific Intent 

  1. Attempted battery; or
  2. Intentional creation, other than mere words, of a reasonable apprehension of imminent bodily harm. 





Common Law Battery


Mental State: General Intent 

  1. The unlawful application of force; 
  2. Resulting in either bodily injury OR offensive touching 






Intentionally causing physical injury to another. 

Third degree: non-serious physical injury

Second degree: serious injury 

First degree: serious injury + use of a weapon 

* "reasonable apprehension" = different crime of menacing 



Common Law Murder


Causing the death of another with malice aforethought

  1. Intentional killing; 
  2. Intent to inflict serious bodily harm 
  3. Extreme recklessness/indifference to human life (depraved heart)
  4. Intentional commission of dangerous felony (felony murder) 



Felony Murder in New York 



  • Available for "BRAKES" felonies: burglary, robbery, arson, kidnapping, escape, sexual assault. 
  • Proximate cause theory (liability for co-felon's crime), but 
    • Victim must not be a co-felon; and 
    • Killing must be during crime or immediate flight therefrom
  • Conviction of felony murder possible even with acquittal of underlying crime.
  • Non-Slayer Defense: If D did not kill; had no deadly weapon; and no reason to believe the co-felons had deadly weapons or would result in death. (Affirmative defense). 



Felony Murder (Common Law)


  • Vicarious liability: all co-felons guilty even if third party responsible
  • Agency theory: felony murder only if co-felon kills 



First Degree Murder in New York 

  1. Intent 
  2. 18+ 
  3. Aggravating factors, such as 
    • Police doing their duty; 
    • Witness killing; 
    • Murder for hire; 
    • More than 1 intentionally killed; 
    • Intentional felony murder 



Second Degree Murder 


  1. Intent; or 
  2. Reckless/depraved indifference; or 
  3. Felony murder where victim is NOT ce-felon but was killed unintentionally
    • Still possible if acquitted of underlying charge; 
    • BRAKES: burglary, robbery, arson, kidnapping, escape, sexual assault. 
      • Non-slayer defense 



Voluntary Manslaughter 

(Common Law) 


  1. Intentional killing; 
  2. In the heat of passion; 
  3. Upon adequate provocation 
    • Assault & battery; 
    • Witnessing adultery 
    • Objective + subjective elements (D actually provoked, should have been provoked, did not have time to cool, did not actually cool). 





First Degree Manslaughter (New York)


  1. Intentional killing; under reasonable and extreme emotional disturbance; or 
  2. Intent to cause serious physical injury; or 
  3. Abortional act 24+ weeks and death of mother 


(1) is an affirmative defense to second degree murder. 



Second Degree Manslaughter (New York)


  1. Recklessness; aware that conduct consciously disregards a substantial and unjustifiable risk. 
  2. Abortional act causing death of mother unless justified by statute; 
  3. Aiding suicide, unless involving duress or deception (then second degree murder). 



Involuntary Manslaughter 

(Common Law) 


  1. During a crime to which felony murder does not apply; or 
  2. With criminal negligence (gross deviation from standard of care) 






Manslaughter in New York (Other)


Vehicular Manslaughter

  1. First Degree: death while drunk + BAC > 0.18 or more than 1 death
  2. Second Degree: death while drunk 

Criminally Negligent Homicide: negligence (should have been aware of the risk of death). 

Aggravated homicide: applies to all types of homicide if victim is police on duty. 

Aggravated murder: D 18+ kills V<14 cruelly, wantonly

Aggravated vehicular homicide: First degree vehicular manslaughter + reckless driving. 




False Imprisonment 

(Common Law and New York)


  • Common law: the unlawful confinement of a person without his consent (general intent). 
  • New York: "unlawful imprisonment" 
  1. First Degree: unlawfully restraining someone without consent, with knowledge that the restiction is unlawful and risk of serious injury. 
  2. Second Degree: unlawfully restraining someone without their consent with knowledge the restriction is unlawful. 




(Common Law and New York) 


Common law: false imprisonment and moving victim or concealing in a secret place. 

New York:

  • First degree: abducting someone, and 
    • ​Ransom, 
    • Restraint > 12 hours with intent to rape/injure/rob; or 
    • Death of Victim 
  • Second degree: abducting someone 



Forcible Rape 


  • Sexual intercourse without victim's consent, by:
    • Force; 
    • Threat of force; or
    • when victim is unconscious 

(General intent) 



Statutory Rape


  • Sexual intercourse with someone under the age of consent
    • Age of consent is 17 in NY
    • 21 +, victim 16 or younger in NY
  • Mental state = strict liability (majority/NY)

MPC/minority rule: mistake of age, if reasonable, is a defense.  




(Common Law) 


Trespassory Taking and Carrying Away the Personal Property of Another with the Intent to Permanently Retain the Property. 

Specific intent

  • taking under a claim of right is not larceny 
  • continuing trespass created by later on forming intent to deprive owner permanently (exception to concurrence). 




(Common Law) 


  • Conversion of personal property of another by a person already in lawful possession of that property with the intent to defraud. 
    • Possession > custody 
    • Authority to exercise discretion over property (e.g., trustee)
  • Specific intent to defraud (n/a if you intend to return, but must return same items). 



False Pretenses 


  • Obtaining title to the personal property of another by an intentional false statement with the intent to defraud. 
    • Title = ownership
    • Present or past event, not future promise 
    • Specific intent crime



Larceny by Tick 

(Common Law) 


  • Obtaining CUSTODY (not ownership/title) of the personal property of another by an intentional false statement 
    • Past/present, not future, promise 



Common Law Forgery


  • Making or altering a writing so that it is false with the specific intent to defraud 




(Common Law)


  • larceny from a person's person/presence by force or threat of immediate force. 
  • Specific intent to steal 
  • Force must be sufficient to overcome resistance. 
    • E.g., purse snatching from arm, but not pick-pocketing 




(New York)



  • Forcible stealing (use/threatened use of immediate force).


  • Forcible stealing + aided by a person actually present, or injury to the victim, or car is stolen, First Degree & can prove the firearm was unloaded.


  • Forcible stealing + victim is seriously injured, or use/display of loaded firearm (burden on D to show not loaded, knocks to second degree).  





(New York)


  • Any crime that is, at common law, larceny, embezzlement, false pretenses, or larceny by trick: 
  • Degrees 
    • 1st = > 1,000,000
    • 2nd = > 50,000
    • 3rd = > 3,000 
    • 4th = > 1,000
    • Petit = < 1,000 




(New York and Common Law)


  • Breaking and entering the dwelling of another at night with the intent to commit a felony inside. Specific intent crime
    • Breaking is creating/enlarging an opening with minimal force. 
  • New York 
    • ​Third Degree: No dwelling/nighttime requirement, and can be done by remaining inside; crime need not be a felony. 
    • Second Degree: Third degree burglary + dwelling or non-participant is injured or carrying weapon. 
    • First Degree: Third degree burglary + knowledge that it is a dwelling + either non-participant injury, or carrying a weapon. 




(Common Law and New York)


  • Common Law: Malicious burning of a building. 
    • State of mind = malice
    • Burning = "material wasting" (charring, not scorching. Must be the building itself that burns). 
    • At common law the building must have been a dwelling of another but most states have eliminated this. 
  • New York 
    • Fourth degree: reckless burning of a building 
    • Third degree: intentional burning of a building 
    • Second degree: third degree arson + knows/should know someone is inside
    • First degree: second degree arson + use of explosive/incendiary device 





Control for long enough to have opportunity to terminate possession. 

Constructive possession = close enough for D to exercise dominion and control over contraband. 



Receipt of Stolen Property 

(Common Law and New York)


Receiving possession & control of stolen personal property. Requires: 

  • Knowledge that property is stolen; 
  • Intent to permanently deprive. 

In NY property must actually be stolen. If recovered by the police and used in a sting operation it is not stolen (but can be charged with attempt). 



Accomplice Liability 


  • Aiding or encouraging the principal of a crime, with the intent that the crime be committed. 
    • For crimes requiring recklessness/negligence, requires intentional conduct that aids principal and the same mental state of recklessness/negligence for commission of crime. 
    • Mere presence is insufficient; 
    • Mere knowledge is insufficient (but = criminal facilitation in NY) 



Vicarious Accomplice Liability 


  • Accomplice is guilty of all crimes that he aids or encourages, &
  • All other foreseeable crimes committed along with aided crime. 



Withdrawal from Accomplice Liability


  • Encourager must repudiate encouragement before crime 
  • Aider must neutralize assistance or otherwise prevent the crime, as by notifying the authorities. 
  • In New York, you must make a substantial effort to prevent the crime (affirmative defense). 



Accessory After the Fact 


  • Often charged with obstruction of justice / harboring a fugitive / hindering prosecution. 
  • Lesser than accomplice liability. 
  • Consists of aiding a principal who has committed a felony, with the knowledge that a crime has been committed and intent to help the principal avoid arrest/conviction. 



Enterprise Liability 


  • Corporation and agent can be held criminally liable when the agent acts on behalf of the corporation and within the scope of his office. 
  • For regulatory offenses involving public safety, agents can be liable if they stnd in "responsible relationship" to the situation creating the public danger. 




(New York and Common Law) 


  • Asking someone to commit a crime with the intent that the crime be committed. Crime complete after the asking. 
  • Merges with the completed offense at common law (but not in New York). 




(Common Law and New York) 

Impossibility is not a defense (unless legal impossibility) 

AGREEMENT to commit a crime, 

- and - 

OVERT ACT in furtherance of crime

(mere preparation insufficient)

Mental State: 

  1. Intent to agree; and
  2. Intent to commit the crime  

Special Rules 

  • Bilateral Conspiracy: At Common Law, no one-person conspiracy. If all parties acquitted, the last D cannot be convicted. 
  • Unilateral Conspiracy: New York/MPC approach, one guilty mind okay. No acquittal if other Ds are not guilty/incompetent to enter into. 
  • Wharton Rule (followed in New York): Need more parties to the conspiracy than are necessary to commit the crime (e.g., dueling). 
  • Vicarious ("Pinkerton) Liability (NOT followed in New York): A co-conspirator can be liable for other crimes, not agreed to, committed by the other conspirators, if those crimes were committed in furtherance of the conspiracy's objective  & were foreseeable. 





(New York & MPC) 



  • NY: "Dangerously close" to commission of the crime 
  • Majority/MPC: "Substantial step" that strongly corroborates criminal purpose. 

This is a specific intent crime. Cannot apply to recklessness/negligence crimes or to felony murder. 



Withdrawing Attempt? 


  • Generally not a defense
  • But in NY, abandonment = affirmative defense if defendant completely and voluntarily renounces, and as a result does not commit underlying crime. 



Withdrawal from Conspiracy

(Common law) 


  • Generally not a defense, but can be a defense to vicarious liability if he clearly leaves the conspiracy and other crimes committed after. 



New York: Withdrawal from Inchoate Crimes


  • Solicitation/conspiracy: affirmative defense if D completely and voluntarily withdraws and prevents the commission of the crime. 
  • Attempt: affirmative defense if defendant completely and voluntarily renounces and as a result does not commit a crime. 



Merger of Inchoate Crimes 

(Common law and New York)


  • Common Law: attempt/solicitation merge; conspiracy does NOT. 
  • New York: solicitation & conspiracy do not merge (attempt does). 




(M'Naghten v. MPC v. New York) 


  • M'Naghten: Defendant shows either, (a) did not know his conduct was wrong; or (b) did not undertand the nature of his conduct. 


  • MPC: Defendant shows he lacked substantial capacity to (a) appreciate the criminality of his conduct or (b) conform his conduct to the requirements of the law. 


  • New York: Defendant must prove she lacked substantial capacity to know or appreciate either (a) the nature and consequences of his conduct; or (b) that his conduct was wrong. 
    • Notice must be given within 30 days of "not guilty" plea. 





  • Whether, at the time of trial, D can understand the nature of the proceedings against him; and assist his lawyer in the preparation of his defense. 



Voluntary Intoxication Defense


  • Can be a defense to specific intent crimes (assault, pre-meditated murder, false pretenses, embezzlement, larceny, forgery, robbery, burglary, attempt, conspiracy, solicitation). 
  • Not a defense to malice, general intent, or strict liability crimes.
  • New York: 
    • Knowledge and intent crimes, defense available. 
    • Not recklessness, negligence, strict liability 




(Common Law & NY) 


  • Common law rule of sevens: <7, no prosecution; >14, rebuttal presumption against; 14+, prosecution allowed. 


  • Infancy in NY: 
    • ​<13 only juvenile proceedings
    • 13 adult criminal prosecution okay for second degree murder
    • 14–15 adult criminal prosecution only for serious crimes on person/property
    • 16+ adult criminal prosecution allowed for any crime. 



Mistake of Fact 

(New York & Common Law)


  • Common Law: A reasonable mistake is a defense to general intent, specific intent, and malice crimes (but not strict liability). 
    • An unreasonable mistake is only a defense to specific intent crimes. 


  • New York: Mistake of fact defense only if it negates the required mental state. 
    • Unreasonable mistake: defense to intent/knowledge/ recklessness; 
    • Reasonable: negligence 
    • No mistake: strict liability



Mistake of Law


Not a defense unless statute calls for knowledge of criminality 



Use of Non-Deadly Force


  • Must be reasonably necessary to protect against an immediate use of unlawful force against oneself or another. 



Use of Deadly Force 

Retreat Rule


  • Deadly force may be used to protect against imminent threat of death or serious bodily harmBUT 
    • If Initial Aggressor 
      • Majority Rule: can't use if started physical fight, unless (a) WITHDRAWS & COMMUNICATES WITHDRAWAL, or (b) VICTIM SUDDENLY ESCALATES non-deadly to deadly 
      • New York: Must withdraw even if sudden escalation 
    • Retreat Rule 
      • Majority Rule: No retreat 
      • New York: Retreat unless can't in complete safety or D is in his HOME. Stairway/alcove in front of home is NOT home; still must retreat further. 



Mistake and Reasonableness about Lawful Force


  • A reasonable mistake is a complete defense. 
  • An unreasonable mistake 
    • NY/majority rule: no defense
    • Minority/MPC rule: "imperfect self defense" can mitigate (e.g. to manslaughter). 



Use of Force to Prevent Crime


  • Nondeadly force: OK if reasonably necessary to prevent a serious breach of the peace 
  • Deadly: only to prevent felony risking human life. 



Defense of Property


  • Deadly force may not be used, unless the property is your dwelling, and: 
    • 1) Intruder gains entry violently, and 
    • 2) Deadly force reasonably believed to be necessary to prevent a personal attack on self or another in the dwelling 



Resisting Arrest 


  • Majority rule: may use non-deadly force to resist unlawful arrest
  • NY: no force unless P.O. uses excessive force 



Deadly Force by Law Enforcement 


  • When reasonable under the circumstances, to prevent fleeing felon from threatening serious bodily harm or death to others and deadly force is necessary to prevent his escape. 





  • Conduct, otherwise criminal, can be justified if D reasonably believes the conduct is necessary to prevent greater harm. But N/A where: 
    • D causes person's death to protect property; or 
    • D is at fault in creating the danger 





  • If D is coerced to commit crime b/c of threat from another of death or serious injury to himself or close family member. 

Majority: defense N/A to homicide crimes 

New York: defense applicable to any crime including homicide 





  1. Criminal design originated with gov't; and 
  2. Defendant not pre-disposed to commit the crime 

New York: entrapment is aff. defense. Prosecution may introduce prior criminal acts in its direct case to rebut. 



Reckless Endangerment (NY)


First degree: D recklessly engages in conduct that creates grave risk of death to another person

Second degree: D recklessly engages in conduct that creates a substantial risk of serious physical injury to another.