MBE and NY Distinctions (Crim Law) Flashcards Preview

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Flashcards in MBE and NY Distinctions (Crim Law) Deck (67):

Kidnapping in NY

What are the elements of

1st degree kidnapping?

2nd degree kidnapping?

1st Degree Kidnapping:

Abduction PLUS

Restrained  victim with intent to inflict physical injury, OR
V dies.


à  All other kidnapping is 2nd degree;

à  All kidnapping is an enumerated felony    

      for felony murder.


Burglary in NY

What are the elements of

1st degree burglary?

2nd degree burglary?

3rd degree burglary?

3rd Degree Burglary

B or E or remaining behind inside
ANY structure
ANY time of day or night
With intent to commit ANY crime inside


2nd Degree (3rd degree PLUS ANY of the following):

Structure = Dwelling
Injury to non-criminal, OR
Burglars are armed.


1st Degree

Dwelling AND
Injury to non-criminal, OR
Burglars are Armed


Robbery in NY

What are the elements of

1st degree robbery?

2nd degree robbery?

3rd degree robbery?

3rd Degree Robbery: Forcibly Stealing Property

NO physical Injury and NO firearms


2nd Degree Robbery

3rd Degree + ANY of the following

Aided by Another
Cause Physical Injury (NOT Serious)
Display a Firearm


1st Degree Robbery

Armed with a Deadly Weapon OR
Cause Serious Physical Injury



First Degree Manslaughter

What are the elements of

1st degree manslaughter?

1st Degree Manslaughter (NY):

Kill w/ intent to do bodily harm, or
Voluntary manslaughter/provoked Killing (passion);
Unjust abortion (BUT very difficult to define)


Homicide: Negligent Homicide

What are the elements of

negligent homicide?

Negligent Homicide (NY): killing resulting from criminal negligence.



Second Degree Murder

What are the elements of

2nd degree murder?

All murder in NY that is NOT 1st degree murder is 2nd degree murder.


3 Kinds of 2nd Degree Murder in NY:

Intent to Kill w/o Special Circumstances
Highly Reckless Murder (speeding)
Felony Murder



Second Degree Manslaughter

What are the elements of

2nd degree manslaughter?

2nd Degree Manslaughter (NY):

killing resulting from recklessness

(NOT highly reckless)


Defenses: Self Defense

What are the 3 exceptions

to the duty to retreat?

3 Exceptions to NYS Duty to

Retreat as Prerequisite for

Use of Deadly Force in Self Defense


Not Out of Home
Not if V of Rape or Robbery
PD has No Duty


Homicide: First Degree Murder

What are the elements of

1st degree murder in NY?

1st Degree Murder in NY (very narrow)

Intentional Killing + Special Circumstance
Special Circumstances Include

Intended V was PD, court or parole officer;
V was killed b/c judge
Witness/family; influence testimony;
Δ committed murder for hire
V intentionally killed as part of burglary, robbery, rape, kidnapping, arson, escape, or 2nd degree murder;
> 1 person as part of the same criminal  plan.
Serial Murder


Defenses: Self-Defense

What is the rule on V’s

use of deadly force

in self-defense?

NYS Requires Retreat for Deadly Force

(Minority Rule)


V may use deadly force if V reasonably believes that deadly force will imminently be used on them, AND
V has retreated to wall, if safe to do so.


No duty to retreat: (1) home; (2) V of rape or robbery, (3) PD


Defenses: Duress

In NY, for what crimes is duress a defense?

In NY duress is an affirmative defense

to ALL crimes (Δ must raise/prove

by a preponderance of the evidence)



4 NY Distinctions from MBE

4 Important NY Conspiracy Distinctions


Overt Act State: (i) liability, & (ii) overt act.
Unilateral Theory: you can conspire w/ PD
Withdrawal (Δ can withdraw; Must):

Renounce conspiracy
Prevent commission of crime.

Not liable for other conspirators’ subsequent crimes


NY Defenses

Defenses &

Affirmative Defenses


Affirmative Defense: Δ must raise and prove by a preponderance of the evidence.

E.g. Insanity, Duress, Entrapment


Defense: once Δ raises, prosecution must disprove beyond a reasonable doubt

E.g. Infancy, Self-Defense


NY Accomplice Liability

In NY, accomplices:

Cannot benefit from Principal’s defense going to mental state (e.g. insanity).
Are not absolved from liability even if Principal is acquitted, immune, or not prosecuted.


BUT, Δ cannot be convicted SOLELY on the uncorroborated testimony of accomplice.


Defenses: Insanity

Standard for Insanity

Defense in NY

NYS insanity rule is more lenient than M’Naughten, but less than MPC.


At the time of conduct, as a result of mental disease or defect, Δ lacked capacity to know or appreciate either:

(1) nature & consequence of such conduct, or (2) that such conduct was wrong.


Affirmative Defense: Δ must raise and prove by a preponderance of the evidence



Approach to

Determining Which Homicide Crime To Apply

Did killing occur during the commission of a crime?

If yes, was crime an enumerated dangerous felony?  If yes, apply felony murder, if no, apply misdemeanor murder.
If no, did Δ intend to kill/inflict serious bodily harm/reckless disregard for life?  If no, did Δ act w/criminal negligence?  If yes, then crim. neg. hom. or invol. manslaughter.
If yes (Δ did intend to kill/inflict S.B.I., or reckless disregard, was there adequate provocation?  If yes, vol. mansl.
If no, apply murder rules.  If intent to kill + specific circumstance (either enumerated or for NY listed), 1st degree murder.


Duty to Act Homicide: omission resulting in death:

C-R-A-P-S: Contract (lifeguard); Relationship (parent); Assumption of duty; Peril (created by D); Statute (health care worker)


Criminally Negligent Homicide: knowledge that conduct creates unreasonable risk of SBI/death


Homicide: Felony Murder

What is NY’s additional defense to felony murder?

NY’s Additional Defense to Felony Murder


Δ did NOT commit or aid in commission of homicidal act
Δ was NOT armed with a deadly weapon
Δ did NOT reasonably believe that co-felons were armed with a deadly weapon.
Δ did NOT reasonably believe that any other participant intended to engage in conduct likely to result in death/serious physical injury.


Defenses: Insanity

Summary of 4 Insanity Rule

Summary of Insanity Rule


M’Naghten: Δ does not know right from wrong.
Irresistible Impulse: impulse that Δ cannot resist
Durham, but for mental illness, Δ would not have done the act.
MPC: combination of M’Naughten and the  irresistible impulse rule: (a) appreciate criminality (right from wrong), and (b) resist impulse and conform conduct to law.


C/L Crimes: Property Crimes

Summary Chart of

Elements of Various

Property Crimes




C/L Property Crimes:


On the MBE, what are the elements of burglary?

Elements of Burglary:


Some force (e.g. even pushing interior door, BUT NOT wide open window)
Constructive: maid using key at 3 am

Dwelling House of Another

Not a Barn

At Night
With Intention of Committing a Felony Inside

Intention must exist at time of B&E

E.g. if you break in for no reason, then once inside decide to commit a felony, that is NOT C/L burglary.


C/L Property Crimes

What are the elements of common law arson?

C/L Arson has 3 Elements

Malicious Burning

requires a material wasting of the fiber of the building;
e.g. burning carpet does NOT count

Of the Dwelling House

NOT a barn or store,

Of another.


C/L Property Crimes:


What are the differences between robbery

and extortion?

2 Differences Between Robbery & Extortion


Don’t have to take from V’s presence.
Future harm, or threat of future harm.


Mental States

Chart of Requisite Intent

for Major Crimes


C/L Property Crimes:


What is embezzlement?

Embezzler always has lawful possession of property, followed by an unlawful conversion.


Does NOT require any carrying away.

Embezzler does NOT have to personally benefit.


C/L Crimes: Robbery

On the MBE what are

the elements of robbery?

Robbery = larceny + assault



Δ must take something from V or from V’s presence (presence is widely drawn)


Assault = Violence or Threat of Violence

Any small amount of violence is enough

Yanking necklace (BUT NOT picking pocket)

Threat of present imminent harm to V or V’s companion (“your $ or your wife!”)


C/L Property Crimes:


What are the elements of

larceny (stealing)?

Larceny is a specific intent crime; 4 elements:

Unlawful Taking (minimal carrying-away motion, even 6”)
Personal property of another
Without his consent (consent must be voluntary)
With the intent to permanently deprive the owner of his property (this intent must exist at the time of the taking)


If you believe property is yours – mistake of fact – that is a defense to C/L larceny.


Continuing Trespass: if taken with wrongful state of mind, but decision to keep property is made later (e.g. joyride, then riders decide to keep).


C/L Property Crimes:

False Pretenses

What is false pretenses?

False Pretenses: Δ persuades owner of property to convey title by false pretenses


False pretense must be as to a present or past fact; a false promise to do something in the FUTURE is NOT false pretenses.


Must also take title, not just possession.  Just possession = larceny by trick.


Homicide: Felony Murder

On the MBE, what are the

5 defenses to felony murder?

On the MBE, 5 defenses to felony murder:

Δ has defense to underlying felony
Death is not independent of the felony.
Death was unforeseeable.
Δ was no longer fleeing; reached a point of temporary safety.
Δ is not liable for death of co-felon, as a result of his resistance to (1) PD, or (2) V


[Agency Theory: only deaths caused by D or co-felon (agent) qualify.]


C/L Property Crimes

What are the 3

C/L property crimes?

3 C/L Property Crimes:

Larceny (basically stealing)
Embezzlement (lawful possession followed by an illegal conversion)
False Pretenses (conveyance of title under false representation of past or present fact).


All are specific intent: defenses include ANY mistake of fact negating intent AND voluntary intoxication.


Forgery: make/alter w/intent to defraud

Uttering: offer forged instrument w/intent to defraud

Larceny by Trick: victim consents to possession b/c of misrepresentation (“If you give me the $20, I’ll give it to Joe.”


Homicide: Felony Murder

What is felony murder?

Felony Murder Is


Any death caused in the commission of, or attempt to commit, a felony.

Inherently dangerous felonies qualify (e.g. burglary, arson, rape, robbery)


Sex Crimes

Rape & Statutory Rape

Summary of Rape and Sex Crimes

Slightest penetration completes crime.
Statutory Rape: strict liability

Insanity/involuntary intoxication ARE defenses,
Consent/ANY mistake of fact are NOT defenses


Homicide: C/L Murder

What are the 4 intents for C/L (2nd Degree) murder?

C/L Murder: Malice Crime


4 Intents for C/L (2nd Degree) Murder:

Intent to Kill
Intent to do Serious Bodily Harm
Highly Reckless Murder (e.g. 120 mph on Overlook Rd.)
Felony Murder (intent to commit felony; causing death while committing felony)



Involuntary Manslaughter

What is involuntary manslaughter? 

Misdemeanor manslaughter?

Involuntary Manslaughter: killing from criminal negligence


Misdemeanor Manslaughter: killing V while committing (i) misdemeanor, or (ii) unenumerated felony.



Defenses: Specific Intent Crimes

What are the 2 additional

defenses available for specific intent crimes?

2 Additional Defenses

for Specific Intent Crimes


Voluntary Intoxication
Unreasonable Mistake of Fact


These are IN ADDITION to the other defenses which are available for ALL crimes


Also, remember that if a statute is intended to protect members of a limited class from exploitation, this presumptively makes members of that class immune from all criminal liability for that crime.



Voluntary Manslaughter

What are the requirements for voluntary manslaughter?

Voluntary Manslaughter:  (sudden and intense provocation)


4 Requirements:

Adequate Provoking Event, AND
No Time to Cool Off, AND
Did NOT Cool Off (passion), AND
Δ kills.


C/L Crimes: Battery


Battery: a completed assault


C/L Crimes: Homicide

What are the 4 general categories of homicide

for the MBE?

4 General Categories of Murder on MBE:


1st Degree Murder (statutory; not in C/L, so unlikely on MBE)
Common Law/2nd Degree Murder (on MBE “murder” means 2nd Degree Murder)
Manslaughter (Voluntary/Involuntary)
Felony Murder


Defenses: Consent/Entrapment

Consent: almost NEVER a valid defense.


Entrapment: almost NEVER valid defense, b/c predisposition of Δ to commit crime negates entrapment.


C/L Crimes: Assault

What are the 2

theories of assault?

Assault as Attempted Battery

Specific Intent (like all attempts)
E.g. Δ swings at V, but misses


Assault as Threat

General Intent


Defenses: Deadly Force

Who and When?

Deadly Force in Self Defense: (1) w/o fault, (2) confronted w/force, (3) threatened w/death or serious bodily harm


Can NEVER be used SOLELY to defend a dwelling (e.g. spring guns that shoot invaders when no one is home).
Can ONLY be used by the original aggressor

If he withdraws (runs for the door), &
Turns full face to original V and clearly communicates withdrawal to V.

CAN be used for defense of others


Defenses: Mistake of Fact

When is mistake of

fact a defense?

Depends on requisite intent for the crime:

Specific Intent: ANY MISTAKE, reasonable or unreasonable.
Malice/General Intent: Reasonable Mistakes ONLY
Strict Liability: NEVER


Defenses: Deadly Force

What is deadly force?

Deadly force is

ANY force that results in death.


Defenses: Duress

MBE: What crimes qualify for the defense of duress?

On the MBE, duress is a defense to all crimes EXCEPT homicide.


Defenses: Intoxication

Voluntary & Involuntary

Voluntary Intoxication (all self-induced, including addicts and alcoholics)

IS a defense to specific intent crimes, BUT
IS NOT a defense to any other kind of crime.


Involuntary Intoxication (form of insanity, includes physical force, or slip in drink)

Defense to ALL crimes (including strict liability; like insanity)


Defenses: Self Defense

When can a V use deadly force?  Non-deadly force?

Non-Deadly Force

V reasonably believes that force will imminently be used on them.


Deadly Force

V reasonably believes that deadly force will imminently be used on them and is w/o fault.


If there is a retreat rule --> applies to both deadly and non-deadly force.


Defenses: Insanity

What are the 4

tests for insanity?

4 Tests for Insanity


M’Naughten: at time of conduct, Δ had mental disease that caused him not to (i) know wrongfulness, or (ii) understand nature & quality
Irresistible Impulse: b/c of mental illness, Δ lacked capacity to control actions/conform them to law.
Durham Rule: Δ’s conduct is the product of mental illness
MP Code: Δ lacked ability to conform conduct to the requirements of law.


Defenses: Infancy

At what age can a Δ claim infancy as a defense?


Under 7: NO criminal liability
Under 14: rebuttable presumption of NO criminal liability


Inchoate Offenses

What are the two

elements of attempt?

Attempt (Specific Intent)

Substantial Step

Beyond mere preparation

w/ Intent to Commit Crime


Defenses: Insanity

For what crimes can

a Δ claim insanity?

Insanity is a defense to ALL crimes,

including strict liability crimes



Inchoate Offenses

Defenses to Conspiracy

Impossibility is never a defense.


On the MBE

Withdrawal, even if adequate, does NOT withdraw Δ from liability for conspiracy itself.

Withdrawal OK for other conspirators’ subsequent crimes.


Defenses: Impossibility

(Factual & Legal)

Factual impossibility: NEVER a defense

I.e. impossible for Δ to accomplish crime
E.g. smoking oregano cigarette thinking it’s pot


Legal impossibility: defense if conduct was not a crime, even if Δ thought it was


Inchoate Offenses


Solicitation: asking someone to commit a crime


Crime ends as soon as you make the ask.
Once person agrees: conspiracy (merges)


Inchoate Offenses

What are the elements

of conspiracy?

Elements of Conspiracy:

Intentional Agreement to Pursue UNLAWFUL Objective (specific intent)

Parties don’t have to know each other
C/L: at least 2 actual conspirators (no PD)

Overt Act (MBE): mere preparation

showing up at location

If all other conspirators are found not guilty, be careful, because there would be no one to conspire with


Inchoate Offenses

What are the 3

Inchoate offenses?

The 3 Inchoate Offenses




Inchoate Offenses


Conspiracy is an agreement between multiple persons to commit a crime.


Specific intent to enter into the agreement with specific intent to commit the crime
There is NO MERGER: can be convicted of both conspiracy and underlying offense.
Each conspirator is liable for all foreseeable crimes committed in furtherance.
Wharton Crimes: if crime requires 2 people (adultery), then conspiracy requires 3 conspirators.


Mental States:

What is the formula for

strict liability crimes?

Formula for strict liability:

Crime is (1) administrative, (2) regulatory, (3) morality areas.
No adverbs in definition (knowingly, recklessly, intentionally)


Any defense that negates intent is irrelevant

Consent of the V is never a good answer.



Accomplice Liability:

What is a criminal accomplice liable for?

Accomplice (aids or encourages the crime) is liable for:

Crime Itself
All other foreseeable crimes


Inability to be principal NOT a bar to accomplice liability.
BUT mere knowledge is not enough; must have a stake in the venture
Exclusions: (1) member of protected class; (2) withdraw (repudiate/neutralize)


Mental States:

What are the

general intent crimes?

Most crimes are general intent.  If liability

doesn’t require some specific objective for the act (specific intent),
is not murder or arson, and
doesn’t fit formula for specific intent (admin./regulatory/moral + no adverbs),


Then the crime is likely general intent.


Mental States:

What is transferred intent?

Δ liable when she intends the harm that is caused, although the harm is actually imposed on a different V or object

Δ is often both guilty of crime and attempt against original V.





Mental States:

What are the 4 common

law mental states?

4 Mental States at Common Law:

Specific Intent (act w/ particular objective)
Malice: (murder and arson)
General Intent: awareness of acting in proscribed manner (inferred from act)
Strict Liability: intent irrelevant


Mental States:

What are the malice crimes?

There are only 2 Malice Crimes:



Omission Liability:

What are 5 circumstances where failure to act can lead to criminal liability?

5 Circumstances where there IS a legal duty to act (omission liability):

Statute (file tax returns
Contract (life guard/nurse)
Relation Between Parties (spouse/parent)
Voluntary Assumption of Duty to Care (start rescue mission, then abandon)
Your conduct created the peril.



Mental States:

What are the specific

Intent crimes?

Specific Intent Crimes:

All 3 inchoate (solicitation, conspiracy, and attempt)
1st Degree Murder (ONLY)
Assault (as an attempted battery)
C/L Felonies Against Property:

False Pretenses



What is merger?

Merger:  when lesser crime merges into the greater crime, so that completion of the greater crime means that you CANNOT be convicted of the lesser crime.



R You CANNOT be convicted of attempted murder if you are successful: the attempt merges into the actual murder.


R You CAN be convicted of conspiracy to commit murder and of murder of you plan to, and actually do, kill your victim.



What 3 bodily movements do NOT qualify

for criminal liability?

3 Bodily Movements that do NOT qualify for criminal liability:

Not a product of own volition (pushed)
Reflexive/Convulsive Act (seizure)
Unconscious/Asleep (sleep walking)



How does court get jurisdiction in criminal case?

Two Ways Jurisdiction is Bestowed on a Court in a Criminal Case:





R E.g. bullet fired from NJ into NY



Which 2 substantive

crimes DO merge into

the substantive offense?

2 Crimes that Do Merge

into the Substantive Offense:


Solicitation (asking someone to commit a crime).


B/c they merge, a defense to solicitation/attempt is “I did it!”