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Flashcards in Criminal Law Deck (71):
1

 

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 

2

 

General Intent Crimes 

(Common Law) 

 

Battery 

Forcible Rape 

False Imprisonment 

Kidnapping 

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

3

 

Common Law Malice Crimes 

 

Murder 

Arson 

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

4

 

Strict Liability (Common Law) 

 

Statutory Rape 

Bigamy 

Public Welfare Offenses 

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

5

 

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 

6

 

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. 

7

 

Physical Acts must be . . . 

 

VOLUNTARY, NOT 

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

8

 

Omission 

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

9

 

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. 
  6.  

10

 

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). 

11

 

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. 

12

 

Concurrence 

 

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

13

 

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. 

 

 

14

 

Common Law Battery

 

Mental State: General Intent 

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

15

 

NEW YORK ASSAULT 

 

NOTE: THERE IS NO CRIME OF BATTERY IN NY 

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 

16

 

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) 

17

 

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). 

18

 

Felony Murder (Common Law)

 

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

19

 

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 

20

 

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 

21

 

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). 

 

 

22

 

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. 

23

 

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). 

24

 

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) 

25

 

 

26

 

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. 

 

27

 

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. 

28

 

Kidnapping 

(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 

29

 

Forcible Rape 

 

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

(General intent) 

30

 

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.  

31

 

Larceny 

(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). 

32

 

Embezzlement 

(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). 

33

 

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

34

 

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 

35

 

Common Law Forgery

 

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

36

 

Robbery 

(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 

37

 

Robbery 

(New York)

 

THIRD DEGREE. 

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

SECOND DEGREE

  • 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.

FIRST DEGREE 

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

 

38

 

Larceny 

(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 

39

 

Burglary 

(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. 

40

 

Arson 

(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 

41

 

Possession

 

Control for long enough to have opportunity to terminate possession. 

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

42

 

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). 

43

 

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) 

44

 

Vicarious Accomplice Liability 

 

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

45

 

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). 

46

 

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. 

47

 

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. 

48

 

Solicitation 

(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). 

49

 

Conspiracy 

(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. 

 

50

 

Attempt 

(New York & MPC) 

 

OVERT ACT BEYOND MERE PREPARATION.

  • 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. 

51

 

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. 

52

 

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. 

53

 

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. 

54

 

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). 

55

 

Insanity 

(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. 

56

 

Incompetency

 

  • 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. 

57

 

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 

58

 

Infancy 

(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. 

59

 

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

60

 

Mistake of Law

 

Not a defense unless statute calls for knowledge of criminality 

61

 

Use of Non-Deadly Force

 

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

62

 

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. 

63

 

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). 

64

 

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. 

65

 

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 

66

 

Resisting Arrest 

 

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

67

 

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. 

68

 

Necessity 

 

  • 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 

69

 

Duress 

 

  • 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 

70

 

Entrapment 

 

  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. 

71

 

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.