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  1. Jurisdiction and general matters

      1. Federal criminal jurisdiction

        1. Power over federally owned or controlled territory

          1. DC, territories, federal enclaves.

        2. Power over conduct occurring within a state

          1. It is limited by the requirement that each statute be founded upon an express or implied constitutional grant of authority.
        3. Power over US nationals abroad
          1. It can reach citizens outside the states.
        4. Over ships and airplanes.
          1. Federal maritime jurisdiction extends to conduct by all persons aboard American ships or aircraft when on or over the high seas or even in foreign waters or ports.
      2. State Criminal jurisdiction
        1. A state acquires jurisdiction if the states where the status of the crime is:
          1. Results
          2. Events/conduct
        2. Crimes of omission: where the act should have been performed.
    1. Sources of Criminal law
      1. Common law crimes
        1. No federal law of crimes
        2. Majority view
          1. Common law crimes retained
        3. Minority view
          1. Common law crimes abolished
      2. Statutory crimes
      3. Constitutional crimes
        1. The crime of treason
      4. Administrative crimes
        1. The legislature may delegate to an agency the power to prescribe rules
      5. The model penal code
    2. Classification of crimes
      1. Felonies and misdemeanors
        1. Felonies
          1. All crimes punished by death or imprisonment exceeding one year
        2. Misdemeanors
          1. All crimes punishable by imprisonment less than one year or by a fine.
      2. At common law,
        1. Felonies
          1. Murder, rape, manslaughter, sodomy, mayhem, robbery, larceny, arson and burglary.
        2. All other crimes were misdemeanors.

    3. Merger

      1. Common Law Rule

        1. MBE:

          1. Solicitation and attempt merge into the substantive offense.

          2. Conspiracy does not merge with the substantive offense.

  2. Essential Elements of crime
    1. An Act: actus reus
      1. The act must be voluntary:
        1. It must be a conscious exercise of the will.
        2. It can be any bodily movement
          1. Three movements do not qualify for criminal liability
            1. An act which is not the product of your own volition
            2. Reflexive or convulsive acts
              1. Epileptic seizure
            3. A act performed while unconscious and asleep
              1. Sleepwalking
              2. Falling asleep at the wheel qualifies for criminal liability
      2. An omission
        1. It arises when there a legal duty to act or one of the 5 following situations
          1. By statute
          2. By contract
          3. Because of the relationship between the parties
            1. Parents/kids
            2. Spouses
          4. Where you have voluntary assumed the duty of care an then failed properly to perform it
          5. Where your conduct created the peril
        2. Knowledge of facts giving rise to the duty
        3. Reasonably possible to perform
      3. Possession as an act
        1. Just control is sufficient.
    2. Mental state: Mens rea
      1. NYD
        1. Knowledge of weight of a controlled substance is not an element of the offense, only knowledge of the nature of the substance is required.
      2. Specific intent
        1. It is when the crime or statute crime requires both the doing and the intent of doing it.
        2. They qualify for additional defenses
        3. List:
          1. The inchoate offenses
            1. Solicitation, conspiracy and attempt
          2. 1st degree murder:
            1. on MBE: the word murder only refers to 2nd degree murder. They have to say it is a first degree murder.
          3. assault
          4. larceny, embezzlement, false pretenses robbery, burglary and forgery.
      3. Malice crimes
        1. Murder: 2nd degree murder
        2. Arson
      4. General intent crimes
        1. All other crimes unless they qualify for strict liability
        2. Transferred intent
          1. Charge with murder for the one who was actually shot and attempt to murder for the one who was missed.
          2. There is no merger because it is NOT the same victim.
      5. Strict liability
        1. On MBE, they give the statute.
        2. The formula
          1. It must concern any administrative, regulatory or a morality area.
        3. Certain defenses are not available such a mistake of fact.
        4. If you don't see adverb such as knowingly, willfully and intentionally, you should think it might be a strict liability.
        5. Any defense negating intention is a bad defense.
        6. Mistake of fact is no defense.
        7. Consent is bad answer usually.

        8. Vicarious liability offenses:

        9. You need the mental state even though you don't need the act of the person!
        10. It is usually limited to regulatory crimes and punishment is limited to fines.
      6. Enterprise liability: liability of corporations and associations
        1. At C.L.: no criminal liability
        2. Modern statutes:
          1. Vicarious criminal liability

            1. It has to be within the scope of office or employment.

            2. The Superior Agent rule:

              1. Some jurisdictions limit liability to only high-ranking officers of the corporations or the associations.

  3. Accomplice liability

    1. Parties to a crime

      1. Common law:

        1. Principals in the first degree:

          1. they engage in the actual act or omission

        2. Principals in the second degree:

          1. Those who aided, commanded, or encourage the principal and are present in the crime.

        3. Accessories before the fact

        4. Accessories after the fact

      2. Modern statutes:

        1. Most have abolished the C.L. distinctions

        2. Principal:

          1. Actually engages in the act or the omission that causes the criminal result.

        3. Accomplice

          1. Is one who aids, counsels, encourages before or during the crime

        4. Accessory after the fact

          1. Help the felon escape, arrest, trial or conviction.

          2. The crime must be a felony and it must be completed at the time the help is rendered.

      3. NYD
        1. Criminal facilitation
          1. Elements
            1. The facilitator has knowingly aided in the commission of a crime his culpability does not read accomplice level.
            2. Facilitator need only believe that it was probable that he was rendering aid
            3. Conduct alleged must have aided in the commission of the object felony
            4. Facilitator may not be convicted on uncorroborated testimony of the person.
            5. Affirmative defense exists if facilitator takes steps to prevent the felony.

    2. Mental state:

      1. Intent is required.

      2. Most courts would hold that mere knowledge is sufficient to give rise to accomplice liability.

    3. Scope of liability

      1. They are liable for the crime itself and all foreseeable consequences as well.

      2. NYD

        1. An accomplice cannot benefit from the principal's defenses that go to negate mental state.

        2. An accomplice is not absolved of liability even if the principal is acquitted, immune or not prosecuted.

        3. A person may not be convicted solely on uncorroborated testimony of an accomplice.

      3. Withdrawal:

        1. If the person encouraged the commission of a crime, withdrawal requires repudiation

        2. If the person assisted by providing some material to the principal, it requires that the person try to neutralize this assistance.

        3. If none of those are possible, the person may have to notify the authorities.

        4. Withdrawal must be before the crime is committed.

        5. NYD

          1. Withdrawal is an affirmative defense to accomplice liability for the substantive offense, other than an attempt, if the accomplice:
            1. Voluntarily and completely renounces his criminal purpose
            2. Withdraws prior to the commission of the offense; and
            3. Makes a substantial effort to prevent the crime.
          2. Factors not constituting a defense
            1. An accomplice is not absolved of liability
              1. By defenses of the principal
              2. By failure of the state t prosecute the principal; or
              3. Makes a substantial effort to prevent the crime.

  4. Inchoate offenses

    1. They are quite frequently considered felonies.

    2. Definition:

      1. An inchoate offense is one committed prior and in preparation of a more serious offense.
      2. Merger applies except for conspiracy.
    3. Solicitation
      1. A person is asking someone to commit a crime. If the person agrees to do it, it becomes a conspiracy and solicitation merges into conspiracy.
      2. Elements:
        1. Inciting, counseling, advising, inducing, urging, or commanding another to commit the felony with he specific intent that the person solicited commit the crime.
      3. Defenses
        1. Impossibility is NO defense
        2. Withdrawal and renunciation NO defense
        3. Exemption from intended crime is a defense.
      4. NYD
        1. Solicitation is a separate offense, independent of the substantive offense. Conduct that is necessarily incidental is not solicitation
        2. Degrees
          1. 5th degree
            1. with the intent that another person engages in conduct constituting a crime, one solicits, requests, commands, importunes or otherwise attempts to cause the other person to engage in such criminal conduct
          2. 4th degree
            1. conduct urged is a felony
            2. where the defendant is over 18, the other person is under 16 years of age and the conduct urged is a crime
          3. 3rd degree
            1. defendant is over 18, the other is under 16 and the conduct urged is a felony.
          4. 2nd degree
            1. conduct urged is a class A felony.
          5. 1st degree
            1. defendant is over 18, the other person is under 16 and the conduct urged is a class A felony.
        3. Defenses
          1. Withdrawal as a defense
            1. It is an Affirmative defense if defendant
              1. Voluntarily and completely renounced; and
              2. Prevented the commission of the crime
              3. IT only works if defendant did prevent the commission of the crime.
        4. Corroboration
          1. Defendant may be convicted upon testimony of person solicited. If person solicited qualifies as an accomplice then the accomplice rules apply and solicitation merges into substantive crime.
    4. Conspiracy
      1. No merger between it and the completed crime.
      2. The conspirator will be liable for other conspirators' acts:
        1. It usually doesn't amount to accomplice liability however if:
        2. The crimes were committed in furtherance of the objectives of the conspiracy and
        3. The crimes were natural and probable consequence of the conspiracy.
      3. Elements
        1. An agreement between two or more persons
          1. It does not have to be express.
          2. People can be conspirators without knowing each other.
          3. chain relationship:
          4. If there is a series of agreements, all of which are regarded as part of a single large scheme in which all the parties to the subagreements are interested; the situation will be regarded as one large conspiracy involving all of the participants.
          5. Hub and spoke:
          6. One participant may enter into multiple agreements, each involving different persons.
          7. If it is established that they are reasonably independent from each other, then there are different conspiracies.
          8. Wharton Rule
            1. If two or more people are necessary to commit the crime, then to create a conspiracy the rule requires the participation of more than the two.

           

        2. An intent to enter into an agreement
          1. Intent to agree.
          2. Intent to achieve the objective.
          3. Intent to facilitate a conspiracy.
        3. An intent to achieve the objective of the conspiracy.
        4. Overact.
          1. Majority rule: any little act will do, like showing up at the place you'd agree to rob.
          2. ON MBE:
            1. They will say if it is the majority rule or the minority rule. If they don't say anything apply the majority rule.
      4. The objective of the conspiracy must be unlawful.
      5. If there is an agreement to engage in a course of criminal conduct, there is only one conspiracy.
      6. NYD:
        1. Degrees
          1. 6th degree
            1. 5th degree solicitation
          2. 5th degree
            1. 4th degree solicitation
          3. 4th degree
            1. conduct urged is a B or C felony; or
            2. where the defendant is over 18, the other person is under 16, and the conduct urged is a felony.
          4. 3rd degree
            1. conduct urged is a B or C felony and defendant is over 18 and the person is under 16.
          5. 2nd degree
            1. 2nd degree solicitation
          6. 1st degree
            1. 1st degree solicitation.
        2. No vicarious liability for one who merely conspires and does not participate in committing the offense.
        3. A single defendant may be convicted of conspiracy. There is no defense to a conspiracy charge based on co-conspirator's irresponsibility, incapacity or failure to have requisite culpability for a crime
        4. You need an overtact
        5. You can conspire with a police officer
        6. The defendant can withdraw from liability if he renounces and prevents the commission of the crime.
        7. Defendant cannot be convicted upon uncorroborated testimony of a co-conspirator
        8. Defenses
          1. Withdrawal as a defense
            1. It is an Affirmative defense if defendant
              1. Voluntarily and completely renounced; and
              2. Prevented the commission of the crime
              3. IT only works if defendant did prevent the commission of the crime.
      7. Defenses
        1. Impossibility NO defense
        2. Withdrawal: no defense conspiracy charge
          1. But it is a defense to subsequent crimes committed by co-conspirators.
    5. Attempt
      1. It equals specific intent and a substantial step beyond mere preparation in the direction of the commission of the crime.
      2. Elements:
        1. Intent
        2. Overact
      3. Defenses
        1. Impossibility is NO defense
          1. Factual impossibility is no defense
          2. Legal impossibility IS defense.
        2. Abandonment is not a defense.
      4. NYD:
        1. Generally, an attempt is graded one degree below the completed crime.
        2. In cases of attempted murder in the 1st degree and criminal possession of a controlled substance, the attempt is classified as a grade a-1 felony, equal to the completed offenses
        3. Defenses
          1. Abandonment is an affirmative defense to attempt
          2. D must manifest a voluntarily and complete renunciation of his actions AND
          3. Avoid the commission of the object crime by abandoning the criminal effort
  5. Defenses
    1. Insanity defense
      1. MBE
        1. M'naghten Rule
          1. A disease of the mind
          2. Caused by a defect of reason
          3. Such that the defendant lacked the ability at the time of his actions to either
            1. Know the wrongfulness of his actions or
            2. Understand the nature of and quality of his actions.
        2. Irresistible impulse test
          1. If the proof establishes that because of the illness he was unable to control his actions or to conform his conduct to law.
        3. Durham ( New Hampshire Rule) Test:
          1. If the proof establishes that the crime was the product of mental disease or defect.
            1. The crime would not have been committed BUT FOR the disease.
        4. ALI
          1. If the proof shows that he suffered from a mental illness or defect and as a result lacked substantial capacity to either
            1. Appreciate the criminality of his conduct
            2. Conform his conduct to the requirement of law.
        5. All of those theories exclude Psychopaths
        6. A defendant may refuse an examination if he doesn't put his mental status in issue
          1. If he does not refuse, he has the Miranda warnings for him.
      2. NY rule M'Naghten rule:
        1. At the time of his conduct, D lacked the ability to know the wrongfulness of his actions or understand the nature and quality of his action.
        2. It is a defenses to ALL CRIMES
      3. Post-Acquittal Commitment to mental institution
        1. Committed until cured
        2. Confinement may exceed maximum period of incarceration carried by offense
      4. Mental condition during criminal proceeding.
        1. Incompetency to stand trial
          1. Due Process requires the staying of a proceeding if he is unable either
            1. To understand the nature of the proceeding or
            2. To assist his lawyer in the preparation of the defense.
    2. Infancy
      1. C.L:
        1. Gave rise to three assumptions
        2. Under 7, no criminal liability
        3. Under 14, rebuttable presumption of no criminal liability.
          1. They were incapable of committing the crime of rape.
        4. Over 14, they were considered Adults
      2. Modern Statutes
        1. Some have abolished the presumptions
          1. No kids under 13 or 14 can be convicted of a crime
        2. Juvenile delinquency
          1. Exclusive jurisdiction for kids under a certain age
          2. Concurrent jurisdiction for over that age
          3. When the crime would be deemed criminal if committed by an adult.
      3. N.Y:
        1. Age 13, 14, 15:
          1. They may be prosecuted for second degree murder
        2. Age 14, 15:
          1. Responsible for serious offenses against persons or property
        3. A defendant committing a crime is subject exclusively to family court jurisdiction as a juvenile delinquent if he is over 7 and under 16.
      4. MBE:
        1. Most infancy answers are usually wrong.
    3. Intoxication
      1. Voluntary intoxication
        1. If it is the result if the intentional taking without duress of a substance. The person need not have intended to become intoxicated.
          1. Defense to specific intent crimes
            1. It can be offered into evidence if the crime requires showing of purpose ( intent) or knowledge, to establish that the intoxication prevented the defendant from formulating the requisite intent.
          2. NO defense to crimes requiring malice or recklessness.
        2. NYD
          1. It is available to prove culpable mental state of recklessness.
      2. Involuntary intoxication
        1. It is involuntary if
          1. Without knowledge of its nature
          2. Under direct duress imposed by another or
          3. Pursuant to medical advice while unaware of the substance's intoxicating effect.
        2. It can be considered as a mental illness that warrants for an acquittal if the defendant meets the test that the jurisdiction has adopted for insanity.
        3. It is a defense to al crimes including the no-intent crimes.
  6. Principles of exculpation
    1. Self-defense
      1. Non deadly force
        1. A victim may use nondeadly force every time that victim reasonably believes that force is going to be used on him/her.
        2. NYD
          1. A person may use physical force on another to the extent he reasonably believes such force is necessary to defend himself or another from the use or imminent use of unlawful force unless:
            1. With intent to cause physical injury to another, he provoked the use of force
            2. He was the initial aggressor; or
            3. The use of imminent force is pursuant to an unlawful combat agreement.
      2. Deadly force
        1. Majority Rule:
          1. A victim can use deadly force every time the victim reasonably believes that deadly force is going to be used on her/him
          2. NO duty to retreat
        2. Minority rule/ NY rule
          1. You need to retreat first before using deadly force
          2. 3 exceptions
            1. no retreat in your home
            2. no retreat if robbery or rape
            3. no retreat if it is a police officer who is attacked.
        3. ATTENTION
          1. Do not give back the defense of the self-defense to the 1st aggressor
            1. Exception
              1. If the aggressor withdraws by telling the victim, then he may have the defense of self-defense.
    2. Defense of others
      1. Some jurisdictions requires that there is a relationship with the person aided
      2. The person may use the defense if she reasonably believed the person she assisted had the legal right to use force in his own defense.
    3. Defense of a dwelling
      1. Deadly force may never be used solely for the protection of property.
      2. It can be used where the entry was made or attempted in a riotous, violent, or tumultuous manner
      3. The person reasonably believes that the use of force is necessary to prevent a personal attack upon herself pr another in the dwelling.
    4. Crime prevention:
      1. Nondeadly force
        1. Non deadly force can be used when it reasonably appears necessary to prevent a felony, riot, or other serious breach of the peace.
      2. Deadly force
    5. Duress and necessity.
      1. They are a defense to all crimes except homicide
      2. MBE
        1. Necessity
          1. A criminal conduct is justifiable if, as a result of pressure from physical or natural forces, the defendant reasonably believed that the conduct was necessary to avoid harm to society exceeding the harm caused by the conduct.
          2. The test is objective
            1. A good faith belief.
        2. Duress
          1. A person is not guilty of an offense, other than homicide, if he performs an otherwise criminal act under the threat of imminent infliction of death or great bodily harm, provided that he reasonably believes death or great bodily harm will be inflicted on himself or on a member of his immediate family if he does not perform such conduct.
      3. NYD:
        1. They are a defense to all crimes including HOMICIDE, but it is an affirmative defense.
        2. An affirmative defense must be raised by defendant and proved by him by a preponderance of evidence.
          1. List
            1. Duress
            2. Necessity
            3. Entrapment
            4. Insanity
        3. Simple defenses
          1. Infancy
          2. Self-defense
    6. Other defenses
      1. Mistake of fact
        1. Specific intent crimes
          1. It justifies ANY mistake
        2. General intent crimes and Malice crimes
          1. It justifies only reasonable mistakes
        3. Strict liability
          1. It is NOT a defense
        4. The mistake must negate the required intent
      2. Mistake of law
        1. Generally, it is NO defense
        2. It may negate intent.
          1. It involves ignorance of some aspect of the law other than the existence of the statute making the act criminal.
        3. Exceptions
          1. Statute is not reasonably available.
          2. Reasonable reliance upon statute or judicial decision
            1. That is later overturned or declared unconstitutional.
          3. Reasonable reliance upon official interpretation or advice
          4. IMP
            1. Reliance upon advice of private counsel is NO defense
      3. Consent
        1. It may negate element of offense
          1. Consent to intercourse is a defense of a charge of rape
          2. Consent to travel is a defense of a charge of Kidnapping
          3. Consensual batteries like medical care
        2. Requirements for the consent to be a defense
          1. The consent must be voluntary and freely given
          2. The party was legally capable of consenting
          3. No fraud was involved in obtaining the consent.
      4. Entrapment
        1. It is a very narrow defense
        2. It is almost never available because of the predisposition on the part of the defendant to commit the crime negates entrapment
        3. MBE:
          1. The criminal design must have originated with law enforcement officers.
          2. The defendant must not have been predisposed to commit the crime prior to contact by government.
          3. It is not entrapment if the police officer merely provides opportunity for the commission of the crime.
          4. Inapplicable to private inducements
          5. If the defendant denies her participation in the offense, she cannot raise this defense, she waives it!
        4. NYD
          1. It is an affirmative defense.
          2. Prosecution may introduce defendant's prior act in its case in chief.
  7. Offenses against the person
    1. Battery
      1. It is the unlawful application of force to the person of another resulting in either bodily injury or an offensive touching.
        1. It is a completed assault.
      2. Intent NOT required
        1. It is a general intent crime
      3. Indirect application of force is sufficient
      4. Aggravated battery
        1. Felonies if
          1. A deadly weapon is used
          2. Serious bodily harm is caused or
          3. The victim is a child, woman or a police officer.
      5. Some jurisdictions recognized consent as a defense
    2. Assault
      1. An assault is either:
        1. An attempt to commit battery or
          1. It is a specific intent crime
        2. The intentional creation of a reasonable apprehension in the mind of the victim of imminent bodily harm.
          1. General intent crime
      2. statutory aggravated assault
        1. with a dangerous weapon
        2. with intent to rape, maim, or murder
      3. NYD
        1. There is only the crime of assault,, an assault as an attempted battery is an attempted assault.
    3. Mayhem
      1. C.L
        1. Required dismemberment or disablement of a bodily part
      2. Modern statutes
        1. The trend is to consider it as an aggravated battery.
    4. Homicide
      1. C.L. Murder ( = 2nd Degree murder)
        1. It is the unlawful killing of a HUMAN being with malice aforethought.
          1. Malice
            1. Intent to kill
            2. Intent o inflict great bodily injury
            3. Reckless indifference to an unjustifiably high risk to human life
              1. The depraved heart
            4. Intent to commit a felony
          2. Deadly weapon rule
            1. A permissive inference of intent to kill.
        2. Defenses
          1. The additional defenses (mistake of fact, voluntary intoxication) are not available.
      2. C.L. Manslaughter
        1. Voluntary manslaughter
          1. It is the intentional killing distinguishable from murder by the existence of adequate provocation
          2. Elements of adequate provocation
            1. The provocation must have been one that would arouse sudden and intense passion in the mind of an ordinary person such as to cause him to lose his self-control.
            2. The defendant must have in fact been provoked
            3. There must not have been a sufficient time between the provocation and the killing for the passions of a reasonable person t col.
            4. The defendant did in fact not cool off between the provocation and the killing.
          3. When the provocation is adequate
            1. Being subjected to a serious battery or a threat of deadly force
            2. Discovering one's spouse in bed with another person.
          4. Provocation inadequate as a matter of law.
            1. Mere words
          5. Recent expansion
            1. Imperfect self-defense: a murder can be reduced to manslaughter even though
              1. The defendant was at fault at starting the altercation or
              2. The defendant unreasonably but honestly believed in the necessity or responding with deadly force
        2. Involuntary Manslaughter
          1. Criminal negligence
            1. F death is caused by criminal negligence, the killing is involuntary.
            2. It requires a greater deviation from the reasonable person standard that is required for civil liability.
            3. Ex:
              1. Falling asleep at the wheel and killing someone.
          2. Unlawful act manslaughter
            1. A killing caused by an unlawful act is involuntary manslaughter
            2. Misdemeanor manslaughter rule
              1. A killing in the course of commission of a misdemeanor.
            3. Felonies not included in felony murder.
      3. MURDER: 1st Degree murder on MBE
        1. They will label it as a 1st degree murder
        2. Or give the statute: just read and apply.
        3. Deliberate and premeditated killing
        4. First degree felony murder.
      4. The NY Homicide Statute:
        1. 1st degree
          1. intentional murder with special circumstances
            1. it qualifies for death penalty
          2. intended victim was a police officer, court officer, parole officer, any person engaged in official duties at the time of the killing and the defendant knew or reasonably should have known that the victim was such.
          3. Victim was killed because he was a judge
          4. Intended victim was a witness or a family member of a witness to a crime and the killing was committed to exact retribution for, or to prevent or influence the testimony of the witness.
          5. Defendant committed murder for hire.
          6. The defendant or accomplice during the course of the following felonies or immediate flight, intentionally killed the victim (a non participant in the crime), therefrom.
            1. Robbery, burglary ( 1st and 2nd degree), kidnapping, arson, rape, sodomy or sexual abuse, escape or attempted murder in the 2nd degree.
          7. At the time of the killing defendant was in custody or had escaped custody and was serving life sentence.
          8. Defendant committed a torture murder
          9. Defendant intentionally killed more than one person as part of the same transaction or was previously convicted of murder in the first or second degree or another equivalent of law; or
          10. The defendant has committed serial murder.
        2. 2nd degree
          1. intent to kill without special circumstances
          2. depraved heart murder
          3. felony murder
        3. intentional murder
          1. when a person, with intent to cause death of another, causes the death of such person or of a third party
          2. affirmative defenses
            1. extreme emotional disturbance; and
            2. aiding a suicide
            3. they mitigate the crime so that the defendant will be prosecuted for manslaughter.
        4. Highly reckless murder
          1. A depraved indifference to human life, a person recklessly engages in conduct that creates a grave risk of death to another person, and thereby causes the death of another.
          2. Force directed at the victim but not intended to kill may suffice for conviction.
          3. No crime of attempt exists for reckless murder because no intent is involved.
        5. Second degree murder: felony murder
          1. Applies to all participants
          2. Burglary, robbery, arson, kidnapping, first degree rape or sodomy, sexual abuse or aggravated sexual abuse, first and second degree escape
          3. Limitations
            1. Felony murder conviction is possible even if the underlying felony is dismissed or not submitted to the jury
            2. No liability for participants under age 13.
          4. Special accomplice defense
            1. An accomplice has an affirmative defense to a felony murder charge if
              1. He did not commit or aid in the commission of the homicidal act; and
              2. He was not armed with a deadly weapon or substance; and
              3. He had no reasonable grounds to believe that others were armed with deadly weapons or substances; and
              4. He had no reason to believe any participant intended to engage in conduct likely to result in death.
            2. He is still liable for the underlying
          5. NY does not follow the one year and a day rule, death can happen at any time!
        6. manslaughter
          1. 1st degree
            1. the intent to do serious bodily injury
            2. provoked killing
            3. unjustifiable abortional act
          2. 2nd degree
            1. reckless killing
            2. abortional act
            3. aiding a suicide
        7. negligent homicide
          1. where one causes the death of another due to the failure to perceive a substantial and unjustifiable risk of death. Defendant's conduct must have been culpable and the death producing event foreseeable.
      5. Felony murder
        1. It is a killing committed during the course of a felony. Malice is implied from the intent to commit the underlying felony.
        2. The defendant must be guilty of the underlying felony
        3. The felony must be independent from the killing
        4. The death must have been foreseeable
        5. It must be committed during the course of the felony
          1. If the fleeing felon reached a place of safety, then it won't be a felony murder anymore
        6. The red line view
          1. Liability for murder cannot be based upon the death of a co-felon from resistance by the victim or police pursuit
        7. Defenses
          1. If the defendant has defense for the felony, he the defense for the felony murder
        8. NYD
          1. Defenses: affirmative defenses
            1. If the defendant did not commit or aid in the commission of the homicidal act
            2. The defendant was not armed with a deadly weapon
            3. Defendant did not reasonably believed that co-felons were armed with deadly weapon
            4. Defendant did not reasonably believe that any of the participants intended to engage in a conduct likely to result in death or serious physical injury
    5. Kidnapping
      1. NYD
        1. 1st degree ( qualifies for 1st degree murder)
          1. with the intent to compel third person to pay ransom or to act or refrain from acting; or
          2. he restrains the victim for more than 12 hours with intent to inflict physical injury or sexual violation or abuse, accomplish or advance a felony, terrorize the victim or third person, or interfere with performance of a gvtal or political function; or
          3. the victim dies during the abduction or before safe return. Death is presumed if the victim is under 16 or incompetent and has not been seen or heard from and no reliable info indicates that the victim is alive. If the victim is over 18, death is presumed from the victim's failure to communicate with a person with whom contact would have been extremely likely if the victim was able.
        2. 2nd degree
          1. abducting someone by threat of deadly physical force.
        3. Affirmative defense
          1. Where victim was a relative and the defendant's sole purpose was to assume control over the victim.
    6. Custodial interference
      1. Misdemeanor
        1. If a relative of a person under 16 or an incompetent takes that person from his lawful custodian with the intent to wrongfully hold that person permanently or for a protracted period.
      2. Felony
        1. If a person under 16 or an incompetent is exposed to a risk that endangers his safety or materially impairs his health or with the intent to permanently remove the victim from the state, the defendant removes the victim from the state.
      3. Affirmative defense.
        1. When it is to remove the victim from mistreatment or abuse of was abandoned
    7. Sex offenses
      1. rape: the slightest penetration completes the crime
        1. intercourse accomplished by force
        2. intercourse accomplished by threats
        3. woman incapable of consenting
        4. consent obtained by fraud
          1. fraud as to whether act constitutes sexual intercourse
            1. it will be rape
          2. fraud as to whether defendant is victim's husband
            1. it is usually not rape. Because there would have been consent.
      2. NYD
        1. 1st degree rape or sodomy (qualifies 1st degree murder or felony murder)
          1. committed when any person engages in sexual intercourse or deviate sexual intercourse with any other person:
            1. who is less than 11
            2. who is physically helpless; or
            3. by forcible compulsion
          2. no defense as to victim's age
        2. 2nd degree
          1. a person who is over 18 has intercourse with another person less than 14 to whom he or she is not married
        3. 3rd degree
          1. has sexual intercourse with a person who is incapable of consenting other than because of age and to whom she or he is not married
          2. a 21 person has intercourse with someone less than age 17 to whom he or she is not married
        4. corroboration
          1. defendant may not be convicted solely on the testimony of the victim for any sex crime, or attempt, where lack of consent is an element and such lack of consent results from mental defect or incapacity. Corroborating evidence must tend to:
            1. establish at least an attempt to have intercourse deviate intercourse or sexual conduct with the victim; and
            2. connect the defendant with the commission of the offense or attempted offense
          2. no corroboration needed in case of forcible rape, sodomy or sexual abuse.
      3. Statutory rape:
        1. Victim below the age of consent
          1. Even if the woman was willing, it is rape as consent is NO defense.
          2. Mistake as to age is NO defense.
  8. Property offenses
    1. Larceny
      1. ELEMENTS
        1. A taking
          1. Destruction or movement is not sufficient
        2. And a carrying away
        3. of tangible personal property
        4. of another
          1. possession is all that is needed
        5. by trespass
          1. larceny by trick
            1. if the consent was given due to misrepresentation, the consent is not valid
        6. with the intent permanently to deprive the person of his interest in the property.
          1. Intent to create substantial risk of loss
          2. It has to exist at the time of the taking
          3. Insufficient intent
            1. Intent to borrow
            2. Intent to obtain repayment of debt
      2. Realty and fixtures are not subject of larceny
      3. Services cannot be subject of larceny
      4. Container situations
        1. The question is whether at the time she appropriates the item, does she already have possession
          1. If so, then there is no larceny
        2. It may depend on whether the parties intended to transfer container
          1. If so, the taker is considered as taking immediate possession of both the container and its contents.
      5. NYD
        1. It is an affirmative defense that the person thought that he/she had a claim of right!
        2. Larceny is graded by the value of the property
          1. Petit larceny: misdemeanor
            1. Any property
          2. Grand larceny, fourth degree; felony
            1. Property valued at over $1000; Public record; secret scientific material; property taken from the person of another but not robbery; property taken by extortion; credit cards; firearms; and
            2. A motor vehicle with a value greater than $100
          3. Grand larceny, third degree
            1. Property more than $3000
          4. Grand larceny, 2nd degree
            1. Property more than $50.000, or extortion by fear of:
              1. Physical injury
              2. Damage property; or
              3. Defendant abuse of his powers as public servant
          5. Grand larceny, 1st degree
            1. Property worth more than 1 million.
    2. C.L. Embezzlement
      1. It is the fraudulent
        1. Intent to restore
          1. If the defendant intended to restore the same exact property, it is NOT embezzlement.
          2. But if the defendant intended to restore similar or substantially identical property it is embezzlement
        2. Claim of right
          1. It won't be embezzlement if the conversion is pursuant to a claim of right to the property.
      2. Conversion
        1. Deal with property in a manner inconsistent wit the trust arrangement
      3. Of property of another
        1. Services and real property cannot be embezzled.
      4. By a person in lawful possession of that property
    3. False pretenses
      1. ELEMENTS
        1. Obtaining title
        2. To the property of another
        3. By the intentional ( or knowing) false statement of past or existing fact
          1. The representation must be the cause of obtaining the property.
        4. With intent to defraud the other
      2. To make a false promise to do something in the future is not false pretenses.
      3. Distinguish from larceny by trick
        1. If possession is obtained, it is larceny by trick
        2. If title is obtained, it is false pretenses.
    4. Robbery
      1. It equals larceny + assault
        1. All elements of both must be met.
      2. Elements
        1. A taking
        2. Of personal property of another
        3. From the other's person or presence
          1. It is in his/her presence, if she/he is in the vicinity
        4. By force or intimidation
          1. Threat
            1. Imminent harm
        5. With the intent permanently to deprive him/her of it.
      3. NYD
        1. All degrees qualify for 1st degree murder.
        2. 1st degree
          1. defendant causes non-participant serious physical injury or
          2. defendant is armed or threatens use of a dangerous instrument or displays what appears to be a firearm. Victim must reasonably perceive from defendant's actions that a gun is present.
            1. Words alone are not sufficient.
          3. Affirmative defense when gun is not loaded, reduces to 2nd degree robbery
        3. 2nd degree
          1. defendant is aided by another who is actually present; or
          2. defendant or another participant physically injures a non-participant; or
          3. there is a threat, whatever its nature, of immediate use of physical force.
        4. 3rd degree
          1. forcibly stealing property.
    5. Extortion
      1. C.L
        1. Collection of unlawful fee
      2. Modern definition: blackmail
        1. Threats need not involve immediate or physical harm
        2. Property need not be in victim's presence.
    6. Receiving stolen goods
      1. Receiving possession or control
        1. Manual possession is not necessary
          1. The thief places the property in a place designated by the defendant
          2. For profit, the defendant arranges for a sale of the property by the thief to a third person.
      2. Of stolen personal property
        1. If the police have recovered the stolen property and use it with the owner permissions, the goods are not stolen anymore.
      3. Known to have been obtained in a manner constituting a criminal offense
      4. By another person
      5. With the intent permanently to deprive the owner of his interest.
      6. NYD
        1. Defendant can be convicted of attempted criminal possession of stolen property.
        2. Impossibility due to attendant circumstances is no defense.
        3. Presumptions:
          1. Knowingly possessing stolen property raises a presumption that the defendant as intent to benefit himself to another
          2. A pawnbroker or other dealer in property is presumed to know property is stolen if he fails to make reasonable inquiry of the person from whom he obtained the property.
        4. Corroboration is necessary only they are accomplices
        5. Possession and larceny do NOT merge.
  9. Offenses against the habitation
    1. Burglary
      1. C.L
        1. Breaking
          1. Actual
            1. Minimal force sufficient
          2. Constructive
            1. Threats or fraud
          3. Breaking to exit insufficient.
        2. Entering
        3. Of the dwelling of another
        4. Occupancy is determinative
        5. At nighttime
        6. With the intent of committing a felony therein
      2. Statutory burglary
        1. Business/ commercial places
        2. In day time
        3. With intent o commit any crime.
      3. NYD
        1. Any degree qualifies for felony murder
        2. It includes remaining unlawfully as well as entry;
        3. Eliminates the element of breaking
        4. Does not limit the intent to the commission of a felony, but embraces an intent t commit any crime
        5. Except as element for grading purposes, does not require a building to be a dwelling; and
        6. Does not require the act to be committed at night
        7. 3rd degree
          1. knowingly entering or remaining unlawfully
          2. in a building; and
          3. with the intent to commit a crime
        8. 2nd degree
          1. 3rd degree aggravated by
            1. the building being a dwelling
            2. defendant injuring a non-participant; or
            3. the defendant is armed.
        9. 1st degree
          1. burglary of a dwelling with any of the aggravated factors of 2nd degree
          2. if display of a firearm is part of the charge, defendant has an affirmative if he can show that the instrument was not a weapon or the weapon was not loaded.
    2. Arson
      1. C.L
        1. The malicious
        2. Burning
        3. Of the dwelling
          1. Material wasting of the fiber of the dwelling
        4. Of another
          1. It cannot be the burning of your own house
        5. State of mind required
          1. Malice
      2. NYD
        1. It can be any places, even if it is yours.
        2. Any degree qualifies for felony murder
        3. 4th degree
          1. recklessly damaging a building or motor vehicle;
          2. by intentionally starting a fire or causing an explosion
          3. affirmative defenses if defendant has sole possessory or proprietary interest in the property.
        4. 3rd degree
          1. intentionally damaging a building or motor vehicle;
          2. by intentionally starting a fire or causing an explosion.
          3. Affirmative defense if:
            1. All persons with possessory or proprietary interest consented; and
            2. The defendant's intent to cause damage for a lawful purpose; and
            3. The defendant had no reasonable ground to fear for safety of another person or to fear damage to another building or motor vehicle.
        5. 2nd degree; 1st degree murder
          1. intentionally damaging a building or a motor vehicle; by intentionally starting a fore;
          2. with knowledge that a non-participant is present in the building or car or circumstances are that a person's presence is a reasonable possibility.
            1. The non-participant need not be injured
        6. 1st degree: 1st degree murder
          1. the defendant causes an explosion or a fire by incendiary or explosive device
  10. Offenses involving judicial procedure
    1. Perjury
      1. It is the taking of a false oath to a material matter in a judicial proceeding.
      2. Materiality
      3. Contradictory statements
    2. Subordination of perjury
      1. Procuring or inducing another to commit perjury
    3. Bribery

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