Glossary of NY Bar Exam - criminal law
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- How does a state acquire jurisdiction for a criminal case?
- if that state is the legal situs i.e. conduct happened there or the result happened there.
- where does jurisdiction lie for crimes of omission?
- where the act should have been performed.
- Does the residence of a criminal defendant grant jurisdiction?
- What is the general rule of merger?
- Generally there is no merger in criminal cases
- On the MS - what crimes merge?
- solicitation and attempt merge into the substantive offence (solicitation also merges into an attempt and conspiracy).
- on the MS, does the crime of conspiracy merge?
- no. you can be convicted of conspiracy to do something and of doing it.
- Where there are different victims, can crimes be merged?
- No - Crimes with different victims cannot be merged.
- what are the essential elements of a crime?
- an act and a mental state
- Which three types of acts do not qualify for criminal liability?
- (i) conduct that it is not your own volition, e.g. if you are shoved;
(ii) reflexive or convulsive act, such as an epileptic seizure
(iii) an act performed while unconscious or asleep.
- Omissions - when does a legal duty to act arise?
- I. By statute - e.g. tax return.
II. By contract - e.g. lifeguard
III. Because of relationship between the parties - e.g. parents
IV. Because of voluntarily assuming a duty of care towards someone else - e.g. voluntary rescuer
V. Where your conduct created a peril
- What are the four common law mental states for crime?
- I. Specific intent (qualify for additional defences)
II. Malice (murder and arson)
III. General intent - catch all (e.g. rape and battery).
IV. Strict liability - no intent crimes. any defence that negates intention is irrelevant.
- What are the specific intent crimes?
- • Inchoate offences - solicitation, conspiracy and attempt.
• First degree murder - created by statute
• Assault* - i.e. assault as an attempted battery; and not assault as a threat.
• Big common law felonies against property - larceny, embezzlement, false pretences, robbery, burglary and forgery.
- What are the inchoate offences?
- solicitation, conspiracy and attempt.
- What are the malice crimes?
- Arson & murder
- what are the general Intent Crimes?
- All crimes other than specific intent crimes, malice crimes and strict liability crimes. Note: battery is a general intent crime; not strict liability.
- A attempts to kill B with a gun, but misses and kills C. Does A have the requisite intent to be convicted of murdering C?
- Yes - Intent is transferred in this case.
- A attempts to kill B with a gun, but misses and kills C. What crimes will A be convicted of?
- Attempted murder and murder
No merger here because there were different victims
- Which crimes are strict liability crimes?
- If the crime is in the administrative or regulatory or morality area, and you don't see any adverbs such as knowingly, wilfully and intentionally,
- what mental state is required for strict liabilty crimes?
- you must be conscious that you are committing a proscribed act -- therefore, insanity and involuntary intoxication are a defence to strict liability crimes.
- when is the consent of the victim defence to a crime available?
- almost never.
- what are accomplices liable for?
- Accomplices are liable for the crime itself and all other foreseeable crimes.
- For MS - what must accomplices actually do to face liability?
- accomplices must actively aid, abet or counsel crime. Mere presence is not sufficient, even if by being present they seem to be consenting to the crime or if failing to call the police
- in NY - Can an accomplice benefit from a principal's defence that negates mental state?
- No - (e.g. if person who committed crime was insane, the accomplice is still liable).
- in NY - can an accomplice be liabile for a crime if principal is acquitted or not prosecuted?
- Yes - accomplice is not absolved from liability even if principal is acquitted, immune or not prosecuted.
- Can a person be convicted in New York solely on the testimony of an accomplice?
- No - a person may not be convicted solely on the uncorroborated testimony of an accomplice.
- what is the crime of solicitation?
- asking someone to commit a crime; the crime is complete when you ask them;
- if D asks another person to commit a crime that is then committed, what charges?
- conspiracy only - the solicitation merges into the conspiracy.
- What are the elements of Conspiracy?
- IF pursuing an UNLAWFUL OBJECT,
(i) agreement, (ii) intent to agree, and (iii) an intent to achieve/pursue the unlawful objective.
- can you have conspiracy between D and a police officer working undercover?
- No - because both persons need to intend to agree and to intend to commit the unlawful act.
- When is a conspirator is liable for the crimes of a co-conspirator?
- Each conspirator is liable for all of the crimes of a co-conspirator if the crimes were committed in furtherance of the conspiracy and were foreseeable.
- can people be in co-conspirators even if they don't know each other?
- Yes - Agreement Does NOT have to be expressed.
- in NY, If people intend to agree, intend to achieve an unlawful objective, and then agree to pursue the unlawful object, what else is required to make them conspirators?
- There must also be some overt act in furtherance of the conspiracy (any little act will do) (NY & Majority rule)
- Are people liable for conspiracy even if the unlawful act they agree to is completely impossible?
- Yes - Impossibility is not a defence to conspiracy.
- what is the effect of a withdrawl from a conspiracy?
- if adequate - in MS can never withdraw liability from the conspiracy itself; can ONLY withdraw liability from the crimes of the co-conspirators
- What is required to withdraw from a conspiracy?
- (1) Renounce the conspiracy; AND (2) Communicate it to the other co-conspirators in tine for them to reconsider and change their mind.
- In NY, is it possible to conspire with a police officer?
- Yes (applying the unilateral approach).
- In NY, is it possible for a conspirator to escape from liability for a conspiracy?
- Yes - if: (1) renounce the conspiracy and (2) prevent the commission of the crime.
- What are the elements of an attempted crime?
- Attempt = specific intent + a substantial step, beyond mere preparation, in the direction of the commission of the crime
- Can a person be liable for attempting a crime even if it is impossible to complete?
- Yes - Impossibility is NO defence to a charge of attempt on the bar exam. One exception: where defendant thinks his act constitutes a crime when in fact it doesn't
- Who bears the burden of proof for regular criminal defenses & what is the standard?
- once raised by the defendant, the prosecution must disprove them beyond a reasonable doubt (e.g. infancy and self-defence).
- Who bears the burden of proof for AFFIRMATIVE criminal defenses & what is the standard?
- the defendant must raise the defence and defendant must prove by a preponderance of the evidence
- What are the affrimative criminal defenses?
- duress, entrapment and insanity.
- In NY, What must a defendant show to succeed with an insanity defense?
- At time of his conduct, defendant lacked substantial capacity to know the wrongfulness of his actions or understand the nature and consequences of his action.
- Insanity is a defense against which categories of crime?
- All crimes, including strict liability.
- What are the two types of intoxication for the purposes of criminal defense?
- voluntary intoxication (i.e. self-induced)
involuntary intoxication (e.g. slip something into your drink without your knowledge). Addicts and alcoholics are voluntarily intoxicated.
- What crimes is involuntary intoxication a defense to?
- Involuntary intoxication is a form of insanity, and like insanity it is a defence against all crimes; even to the no intent crimes of strict liability.
- What crimes is voluntary intoxication a defense to?
- Only specific intent crimes
- what is the minumum age for criminal liability?
- 7 - Under 7 no criminal liability;
- What is the rule for criminal liability for chilren who are over 7?
- under 14, rebuttable presumption of no criminal liability.
- when can a person use non-deadly force in self-defense?
- any time that victim reasonably believes that force is about to be used on him.
- when can a victim use deadly force in self defense?
- majority rule - i) when he is without fault, ii) he is confronted with unlawful force and iii) when he reasonably believes that deadly force is about to be used on him.
In NY - must retreat to the wall first
- What are the three exceptions to NY's duty to retreat before using deadly force in self defense?
- 1. retreat out of your home.
2. victims of a rape or a robbery.
3. Police officers
- when can an original aggressor use the defence of self-defence?
- RARE - if he withdraws and communicates the withdrawal to the victim
- Can deadly force be used solely to defend your dwelling house?
- NO - Deadly force may NEVER be used solely to defend property.
- Duress is a defense to which crimes?
- MS - It is a defence to all crimes except homicide.
NY- Duress is an affirmative defence to all crimes, including homicide.
- for crimes requiring the mental state of specific intent, is mistake of fact a defense?
- Yes - can be any mistake, reasonable or unreasonable.
- for crimes requiring the mental state of general intent or malice, is mistake of fact a defense?
- Yes - Reasonable mistakes only.
- for strict liability crimes, is mistake of fact a defense?
- No - Defence only when it negates intention.
- When is the defense of entrapment available?
- almost never available because pre-disposition on part of defendant to commit the crime negates entrapment.
Entrapment is an affirmative defence under New York penal law which means that the defendant must raise it and prove by a preponderance of the evidence.
- What is Battery?
- a completed assault.
A general intent crime, never strict liability crime.
New York calls battery, “assault”.
- What is assault?
- (i) Assault as an attempted battery - like all attempts, is a specific intent crime.
(ii) Assault as a threat - a general intent crime. The elements are intentional creation, other than by mere words, of a reasonable apprehension in the mind of the victim of imminent bodily harm.
New York calls assault, “attempted assault”.
- what are the additional defences for specific intent crimes?
- voluntary intoxication and any mistake of fact
- What makes a homicide a murder?
- At common law, a homicide is murder if you show one of the following intents: 1. intent to kill, 2. intent to do serious bodily harm, 3. highly reckless murder (high reckless indifference), or 4. felony murder - i.e. if perpetrator kills someone while committing a felony
- What is voluntary manslaughter?
- A homicide with passion; it is a killing from passion; it is a provoked killing, usually a fight;
- What is an involuntary manslaughter?
- (a) killings from criminal negligence (b) misdemeanour manslaughter - killing someone while committing a misdemeanour or an unenumerated felony
- What is 1st degree murder in NY?
- intentional killing with one of the following special circumstances:
1. Intended victim was a police officer engaged in official duties at time of killing and defendant knew or reasonably should have known was a police officer;
2. murder for hire;
3. intentional killing of the victim (a non-participant in the crime), by the defendant or accomplice during the course of (or while fleeing) a robbery, burglary, kidnapping, arson, rape, sodomy, sexual abuse, escape or attempted 2nd degree murder.
- what is felony murder in NY?
- a person is guilty of felony murder when he commits an enumerated felony (includes burglary) and in the course of the felony, or in the immediately flight from the felony, he or a co-felon causes the death of a person other than another co-felon
- What is 2d degree murder in NY?
- 2nd degree murder is either:
1. The intent to kill murder, without the special circumstances;
2. The highly reckless murder (highly reckless indifference);
3. The felony murder.
- What is 1st degree manslaughter in NY?
- the intent to do serious bodily injury aka voluntary manslaughter (i.e. killing from passion). Provoked intentional killing.
- What is 2nd degree manslaughter in NY?
- reckless killing.
- What is Negligent homicide in NY?
- killing from criminal negligence (involuntary manslaughter under common law).
- What are the 5 Defences to Felony Murder?
- 1. defence to the underlying felony,
2.if the felony is independent of the killing.
3. If the death is not foreseeable.
4. defendant had reached some point of temporary safety
5. death of a co-felon resulting from resistance by the victim or the police
- What is the additional NY Defence to Felony Murder?
- Affirmative defense - Defendant must show four things:
1. Defendant did not commit or aid in the commission of the homicidal act.
2. Defendant was not armed with a deadly weapon.
3. Defendant did not reasonably believe that co-felons were armed with a deadly weapon.
4. Defendant did not reasonably believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.
- What is 2d degree kidnapping?
- 2nd degree kidnapping is abducting somebody.
Abduction is the restraint of a person with intent to prevent his liberation by secreting or holding him in a place where he is not likely to be found.
- What is 1st degree kidnapping?
- abducting somebody and also either:
i. For ransom;
ii. Restraining them with intention to inflict physical injury; or
iii. The victim dies.
- What is larceny?
- a wrongful taking (i.e. stealing)
AND carrying away (even slightly) of the property of another without his consent with the intent to deprive the owner of the property permanently (or if there is a substantial risk of its loss). Hence this is a specific intent crime.
- What is embezzlement?
- embezzler always has lawful possession (e.g. a trustee engaging in unlawful conversion). The embezzler does not have to benefit herself. The embezzler gets possession only, not title.
There is no need for carrying away.
- What is false pretenses?
- The defendant persuades the owner of property to convey title by false pretence (or representation) relating to a present or past fact. A false promise to do something in the future does not ground liability for false pretences.
- What is Robbery?
- Robbery: = Larceny + Assault.
To be robbery the defendant must take from the person or his presence ("presence" is defined broadly, against his will either by violence (e.g. any small amount of violence) or by putting in fear (a threat of imminent harm;
-- future harm relates to extortion).
- What are the degrees of robbery & their elements?
- 3rd degree: Forcible stealing of property. No physical injury and no firearms.
2nd degree: aggravating factor, i.e. either (1) Aided by another; (2) Caused physical injury; or (3) Threat of immediate use of physical force (e.g. display of firearm).
1st degree: EITHER armed with a deadly weapon OR caused serious physical injury.
- What is the difference between extortion and robbery?
- Extortion is blackmail. There are only two distinctions between extortion and robbery: 1. to be extortion, you don't need to take anything from his person or his presence; 2. the threats are of future harm.
- What are the elements of Common law Burglary?
- A break in -- either actual involving some force however slight, or it can be constructive (i.e. by threats or fraud). if the person pushes open an interior door, there is a break-in.
• Entering: occurs whenever any part of defendant's body enters the house.
• Must be a dwelling house; cannot be a commercial dwelling.
• Must be at night.
• Must have intent to commit a felony inside;
- What are the degrees of NY burglary?
- 3rd degree: Breaking or entering or remaining behind inside; any structure; any time of day; in the intent to commit any type of crime inside.
2nd degree: 3rd degree + any of the following aggravating factors: (1) A dwelling; (2) Injury to a non-participant; or (3) Armed.
1st degree: Has to be a dwelling and either of the other 2 aggravating factors (i.e. injury to non-participant or armed).
- What is CL arson?
- The malicious burning of the dwelling house of another.
there must be a material wasting of the fibre of the building by fire.
- What is arson in NY & degrees?
- New York Rule: Burning, explosions, water damage, smoke damage, to any structure whether owned by defendant or not.
3rd degree: Intentionally damaging, building or motor vehicle, by fire or explosion.
2nd degree: 3rd degree (but only fire, not explosion) + knowing or that there is reasonable possibility a nonparticipant is present (doesn't have to be injured).
1st degree: 2nd degree + fire or explosion using incendiary or explosive device.
- What amount of damage to a building is required for common law arson?
- "Burning" is required, but this does not require significant dmaage to the building. a charring of the combustible material is sufficient.
- If a prosecutor makes a plea bargain with a D and the D pleads guilty, but then intervening circumstances make it clear that the crime was worse than first beleived, and the P increases the sentence recommendation, what is D's recourse?
- D can appeal the sentence, because a defendant who agrees to a plea bargain has a right to have it kept. The court will either specifically enforce the bargain or will give D the opportunity to withdraw his plea.
- Can prosecutors threaten to lay more charges against a D if he refuses to negotiate a plea agreement?
- Yes - as long as there is some legal basis for bringing additional charges.
The state has the power to drive a hard bargain in plea negotiations.
- If D makes a plea bargain and pleads guilty but tells the court that he is really innocent, can the court accept his plea?
- Yes - as long as it is voluntary and intelligent. There is no constitutional requirement of an admission of guilt for imposition of a criminal penalty
- If D is on trial for a crime, the jury has been called and jeopardy has attached, but then the case is dismissed on a technicality, can he be tried again for the same crime?
- Yes. Double jeopardy doesnt bar two trials - it only bars retrial after acquittal on the merits.
- If a person commits a crime in state A, which has victims in State B, and is tried in state A and acquitted, can he then be tried in state B for teh same crime?
- Yes - double jeopardy does not apply to trials by separate sovereigns.
- when does jeopardy attach in a jury trial?
- at the impaneling and swearing in of the jury.
- when does jeopardy attach in a bench trial?
- when the first witness is sworn
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