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Definition for depraved heart in NY

"depraved indifference to human life. Worse than recklessness." (I think this is the same as in NY)


What is the difference between EED as expressed in Sec 125.25.(1) and 125.20?

"Charge" Vs affirmative defense


The NYPL rule for EED

1) D must have acted under extreme emotional disturbance (subjective); and
2) There must have been reasonable explanation or excuse for the disturbance (semi objective)- Reasonableness is determined from the viewpoint of a person in D's situation under the circumstances as D believed them to be (statute); however, this stops at the point where the conjecture invokes characteristics that are peculiar to the defendant (precedent)


What types of homicide have the defense of EED in NY?

Murder in the second degree subsection 1 (125.25(1))


Name the intentional killings mentioned?

1) Second degree Murder subsection 1 (125.25(1)); intentional killing
2) First degree manslaughter subsection 2 (125.20(2)); Intentional killing with EED


Name the unintentional killings mentioned?

1) Second degree murder subsection 2 (125.25(2)); depraved indifference
2) Second degree murder subsection 2 (125.25(3)); Felony murder
3) First degree manslaughter subsection subsection 1 (125.25(1)); Serious bodily injury
4) Criminal homicide 125.10


Murder under NYPL

1) Intent
2) depraved heart + reckless3) Felony murder


Second degree manslaughter 1

1) recklessly causes the death of another person


First degree manslaughter 1 & 2

1) - intent to cause serious physical injury- causes death of person or third person
2) - intent to cause death- causes death- is under EED- need not be proven by the prosecution (since its a mitigating circumstance without which the defendant would be accused of murder)


Second degree murder 1 & 2

- Intent to kill
- causes death of person or third person
- EED is an affirmative defense reducing to manslaughter 1
- Aiding suicide is an affirmative defense reducing to manslaughter 1
- depraved indifference to human life
- recklessness
- causes grave risk of death
- which causes death


Criminally negligent homicide

- causing death with criminal negligence
Criminal negligence:
- fail to perceive substantial and unjustifiable risk
- gross deviation from the standard of care that a reasonable person would observe


Summary of homicide statutes

1) 2nd degree murder 1 (125.25.1) : Intent to kill without EED
2) 2nd degree murder 2 (125.25.2): depraved and reckless killing
3) 2nd degree murder 3 (125.25.3): felony murder
3) 1st degree manslaughter 1 (125.20.1): serious physical injury
4) 1st degree manslaughter 2 (125.20.2): intentional killing with EED
5) 2nd degree manslaughter 1 (125.15.1): reckless killing
6) 125.10: Causing death with criminal negligence


Affirmative defense Vs regular defense

- An affirmative defense must be proven by the defense by a preponderance of the evidence. A regular defense leaves the burden on the prosecution to prove beyond a reasonable doubt.
- The D has the burden to raise regular and affirmative defenses


Elements of felony murder in NY

0) Policy: courts don't like felony murder; lacking in deterence
1) Acting alone or with others
2) [S]he commits OR attempts to commit
3) BARRKES and
4) In course of and in furtherance of OR in immeidate flight
5) [S]he OR another participant
6) she/ he or another participant CAUSES the death of a non-participant…(except…)


NY Felony Murder test for end of "imitate flight"

When the offender reach a "place of safety"


Felony murder BARRKES

- Burglary
- Arson
- Robbery
- Rape
- Kidnapping
- Escape
- Sexual Abuse


NYPL Intentionally

1) with respect to a result or conduct
2) when his conscious objective is to cause such a result or conduct


NYPL Knowledge

1) with respect to conduct or circumstance
2) when he is aware that his conduct is of such nature or that such circumstance exist


NYPL Recklessly

1) with respect to a result or circumstance
2) aware of; and
3) consciously disregards
4) a substantial and unjustifiable risk that such a result will occur or that such circumstance exists
5) the risk is of such nature and degree that disregards thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation
6) A person who creates such a risk but is unaware solely by reason of voluntary intoxication also acts recklessly with respect thereto.


NYPL Negligently

1) with respect to a result or to a circumstance
2) when he fails to perceive a substantial and unjustifiable risk that such a result will occur or that such circumstance exists
3) the risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the siuation


Factors for statute interpration

• the whole, the phraseology, the words,
• the law as it prevailed before the statute,
• the mischief to be remedied,
• the remedy,
• the end to be accomplished,
• the statute in pari material (preamble, title, etc.).
• the legislative history, earlier statutes on the same subject, common law at the time of the statute and interpretations of similar statutes.
• Words are not presumed to be redundant.


Strict liability and its factors

- Courts generally do not like strict liability; they feel there should always be a mens rea component;
- Weakness of strict liability: does not necessarily deter, most are smaller crimes with less harsh sentences;

Factors for analyzing strict liability:
- Omits mention of mens rea
- policy (e.g. public welfare offense)- Standard is reasonable and proper to expect people to follow
- Penalty is relatively small
- Crime does not carry a heavy stigma
- Common law treatment of crime
- Statutory interpretation of principles
- attendant circumstance


Transferred Intent in NY

The fact that NYPL statutes explicitly include transferred intent indicates that if a statute excludes it it’s less likely to read it in.

Example: NYPL 125.25 Murder in the second degree.



A legal mechanism to allocate the burden of proof to a particular party


Inferring intent from the surrounding circumstances

A jury may infer intent from the surrounding circumstances (the ordinary consequences of a person's actions).There is no "presumption" of intent - that would be transferring the burden of proof from the prosecution to the defense, in violation of the due process clause.


Rule for acceleration

Once an injury occurs that will bring about a prohibited result, if the second actor simultaneously or later causes a non-lethal injury that accelerates the prohibited result, the second actor is an actual cause.


But-for test

If the harm would no have occurred but for the defendant's conduct, the defendant is an actual cause


Substantial factor test

When two actors acting independently, commit two separate acts, each of which alone is sufficient to cause the prohibited result


Willfull Blindness

Knowledge of a high probability of something satisfies knowledge of that thing


Requirements for mistake of fact

Intent & Knowledge
- Must be in good faith
Reckless & Negligence
- Must be in good faith and reasonable


What mens term could be read into the a statute when none is provided?

NYPL 15.15.1
Any mens rea: Intentionally, knowingly, recklessly, negligently


Mistake of Law

3 Defenses:
1) Due process violation (felon has to be registered the moment he arrives in the city limits)
-- malum prohibition Vs malum in se?
-- omission crime
-- ordinary law abiding citizen
2) When relying on a government official's interpretation who has a jurisdiction over the that law
3) If the statute requires the knowledge of the statute (e.g. tax law)


Match type of elements to mens rea terms

Intentionally: conduct or result
Knowingly: conduct or circumstance
Recklessly: result or circumstance
Negligently: result or circumstance


Rule for mens rea

1) culpability of the actor's mental state
2) presupposed in crimes unless factors for strict liability for all or part of the statute
3) there are 4 levels of mens rea in NYPL and MPC and
4) 2 levels in common law with little consistency across jurisdictions
5)) prove beyond a reasonable doubt


Events generally considered to be superseding

- Acts of nature
- Independent intentional acts of third parties or the victim
- Gross negligence of third parties


Elements of a results crim

- Actus Reus
- Mens Reus
- Causality


Elements of a conduct crime

- Actus Reus
- Mens ReusException: unless it is a "strict liability" crime in which case Mens Reus is not needed. Example: Selling to alcohol of underage persons


Definition for voluntary act

"bodily movement performed consciously as a result of effort or determination" (NYPL 15.00)


Expo facto law

A law that makes illegal an act that was legal when committed, increases the penalties for an infraction after it has been committed, or changes the rules of evidence to make conviction easier.


Lenity Doctrine

Any ambiguity in the criminal statue should be construed in favor of the defendant.


Does New York employ the Doctrine of Lenity?

No. NYPL 5.0 stipulates that the court should construe statutes in light of the legislature's intent, rather than against the state.


Which texts excludes types of acts from voluntary acts? What are the excluded acts?

MPC 2.01..."
The following are not voluntary acts:
1) a reflex or convulsion
2) a bodily movement during sleep unconscious or sleep
3) conduct during hypnosis or resulting from hypnotic suggestion
4) a bodily movement that otherwise is not a product of the effort or determination of the actor. either conscious or habitual.


5 situation which create legal duty under which an omission satisfies actus reus:

1) where statute imposes a duty
2) where one stands in a certain status relationships to another (parent-child; spousal; teacher-student)
3) where one has assumed a contractual duty to care for another
4) where one has a voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid
5) When a person creates a risk of harm to another (hit run cases)Assume, unless told differently that there are no Good Samaritan laws.


Does habitual or "automatic" acts count as voluntary acts?

E.g. looking in rear view window of a car.


Rule for Actus Reus

1) requirement for criminal conviction
2) must be proven beyond reasonable doubt
3) element 1: Voluntary Actus Reusa) voluntary act; orb) omissions with duty to act
4) element 2: Statutory Actus Reus; which includes
5) Conduct element, attendant circumstances and result element
6) sometimes considered "the social harm" part


Causation rule

1) proving beyond a reasonable doubt that the defendant is the cause of the prohibited result is requirement for any result crime
2) prosecution must prove actual cause and;
3) proximate cause
4) 3 theories for actual cause:
a) but-for test
b) substantial factor
c) acceleration
5) if the but-for test is not successful the other theories expand the prosecution's ability to convict
6) proximate cause is a policy question that asks whether the defendant is so attenuated from the prohibited result that it is unfair to hold them responsible
7) an intervening event that breaks the causative link between the defendant's act and the prohibited result is called a superseding event
8) a coincidental intervening act is superseding if it is unforeseeable
9) a responsive intervening act is superseding if it is unforeeable and abnormal


Responsive vs coincidental intervening acts

- Responsive intervening acts occur in response to defendant's conduct.
- Coincidental intervening acts occur due to the victim being in the wrong place in the wrong time


3 types of superseding intervening acts

1) Acts of nature
2) Independent intentional acts of third parties or the victim
3) Gross negligence of third parties


Actus reus element of attempt

Did they engage in conduct that tendered to effect the commission of the crime?
- dangerously close?
- so close that probably would have happened but for timely interference
- target or object must be in sight


Mens reu element of attempt

Intent to commit the crime