bar crim law part II

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Author:
mjabali
ID:
277748
Filename:
bar crim law part II
Updated:
2014-07-13 14:59:31
Tags:
crim law
Folders:
crim law
Description:
theft through arson
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  1. theft crimes: MBE [3]
    • Larceny
    • Embezzlement
    • False Pretense
  2. theft crimes: MBE: larceny [6 elements]
    trespassory taking and carrying away of the personal property of another with the intent to permanently deprive that person of the property. 

    ~larceny crime is complete at the time of the taking
  3. theft crimes: MBE: larceny: trespassory element
    - The property must be taken without the owner's consent.

    * If no consent, but not unlawful because intent to steal not formed at the time of the taking, may be trespassory if intent was formed later [continuing trespass rule]
  4. theft crimes: MBE: larceny: taking element
    Trespassory removal of the owner's property into another's control.
  5. theft crimes: MBE: larceny: carrying away element
    satisfied by even a slight movement (i.e. inches)
  6. theft crimes: MBE: larceny: personal property element
    rule: property must be personal, not real, property. 

    ~utilities from supplier, i.e. gas, electricity, constitute personal property

    ~ D's carrying away of fixtures or real property items do not constitute larceny if the severance occurred immediately before carrying away. BUT larceny if carried away after owner's severance (i.e. apples the owner picked)
  7. theft crimes: MBE: larceny: another's property
    the property must be in the possession of someone other than the defendant

    ~not the D's own property or abandoned property
  8. theft crimes: MBE: larceny: permanently deprive element
    D must have the intent to permanently deprive that person of the property at the time of the taking.
  9. theft crimes: MBE: embezzlement elements [5]
    • 1. fraudulent
    • 2. conversion
    • 3. of the property
    • 4. of another
    • 5. by a person in lawful possession of the property
  10. theft crimes: MBE: larceny by trick definition
    Obtaining possession of another person's property by lying

    ~ note distinction b/w false pretenses, as larceny by trick is for possession, false pretenses is lying to obtain title/ownership.
  11. theft crimes: MBE: key distinction between larceny and embezzlement
    Under embezzlement D has lawful possession of the property; D does not have lawful possession under larceny so the initial taking must be trespassory to be considered larceny.
  12. theft crimes: MBE: embezzlement: conversion element 
    significant interference with the owner's rights to the property

    • ~interference must be significant, so slight carrying away does not qualify, unlike larceny
    • ~ selling, damaging, etc. qualify as significant
  13. theft crimes: MBE: false pretenses: quick definition and long elements
    ~lying to obtain ownership

    ~Obtaining title to property of another person through reliance of that person on a known false representation through a material past or present fact that is made with the intent to defraud
  14. theft crimes: NY: larceny types
    • common law larceny (MBE)
    • larceny by trick
    • embezzlement
    • false pretenses
    • extortion

    • ~ all under the umbrella of larceny
    • ~ distinctions organized by degree
    • ~ 5 degrees of larceny
  15. theft crimes: NY: larceny: 1st degree
    - property over $1 million
  16. theft crimes: NY: larceny: 2nd degree [3]
    • 1. stealing property over $50,000 OR
    • 2. get property by threatening future physical injury
    • 3. Public servant abusing position
  17. theft crimes: NY: larceny: 3rd degree
    stealing property over $3,000
  18. theft crimes: NY: larceny: 4th degree
    • - stealing property over $1,000
    • - stealing certain types of docs/records (i.e. secret scientific material)
    • - theft from victim's body
    • - extortion
  19. theft crimes: NY: larceny: petit larceny
    stealing property $1,000 or less
  20. theft offenses: MBE: robbery: elements
    • all larceny elements + 
    • force or intimidation +
    • from the person or in presence of the victim

    • - force is more than that required to take away
    • - victim must be aware of the taking
  21. theft offenses: NY: robbery: degrees and elements: first
    • - non participant is seriously injured
    • - D armed with a deadly weapon
    • - D threatens immediate use of a dangerous instrument
    • - D displays what appears to be a firearm

    ~ affirmative defense that firearm was unloaded or incapable of inflicting serious bodily injury or death
  22. theft offenses: NY: robbery: 2nd degree
    • - D is aided
    • - victim is injured
    • - D displays what appears to be a firearm
    • - Property taken is a motor vehicle
  23. theft offenses: NY: robbery: 3rd degree
    all other types of robbery in which property is forcibly taken
  24. theft offenses: MBE: burglary
    • breaking and entering of the 
    • dwelling of
    • another
    • at night
    • with the specific intent to commit a felony there-in
  25. theft offenses: MBE:burglary: breaking element- what it's not
    not breaking if going through a wide open door not breaking if owner consents

    can be breaking into another's property if enter with key, if exceed scope of owner's consent
  26. theft offenses: burglary: MBE: "commit a felony" element
    D can be charged with the felony committed and separately for burglary; these two do not merge

    D must have the intent to commit the felony when she enters the dwelling
  27. theft offenses: burglary: NY: elements for all degrees
    - knowingly enter or remain in a building with the intent to commit a crime

    • - no breaking element 
    • - no night element
    • - the type of building affects the degree
  28. theft offenses: burglary: NY: elements for 2nd degree
    [like robbery but includes explosives]

    general burglary elements + either D or another person:

    • - armed with explosives or a deadly weapon;
    • - using or threatening to use a dangerous weapon;
    • - injury of a non participant; OR
    • - or displaying what appears to be a firearm

    OR

    -the building is a dwelling
  29. theft offenses: burglary: NY: 1st degree
    one of the 2nd degree elements + building is a dwelling
  30. theft offenses: MBE: receipt of stolen property: elements
    • D must receive stolen property,
    • with knowledge that the property is stolen when he receives it with the intent to
    • permanently deprive the owner of the property
  31. battery: MBE: elements [5]
    • 1) the unlawful
    • 2) application of force
    • 3) to another person
    • 4) that causes bodily harm to that person or constitutes an offensive touching

  32. battery: NY: term for battery, its degrees and its elements,
    battery= assault 

    • 1st degree:
    • i. an intent to cause serious injury by means of a deadly weapon or dangerous instrument OR
    • ii. causing serious injury with depraved indifference to human life or during the course of committing or attempting to commit a felony. 

    - all other assaults are 2nd or 3rd degree
  33. assault: MBE: definition
    • 1) attempted battery or
    • 2) intentionally placing another in apprehension of imminent bodily harm

    - recklessness is not enough, requires intent
  34. assault: NY: menacing and elements
    menacing in NY= assault at common law
  35. NY: reckless endangerment: degrees and its elements
    • 1st: D acts
    • 1) with depraved indifference to human life
    • 2) recklessly engaging in conduct that creates a grave risk of death to another person

    • 2nd:
    • D recklessly engages in conduct that creates a substantial risk of serious physical injury to another person
  36. rape: MBE: elements
    • 1) unlawful
    • 2) sexual intercourse
    • 3) with a female who is not one's wife
    • 4) against her will by force or threat of immediate force

    -most modern statutes do not require force, but define rape as unlawful sexual intercourse without consent
  37. rape: NY: 1st degree
    1st: 

    -sexual intercourse by force OR with an individual who is incapable of consent because of being physically helpless

    - sexual intercourse with an individual under 11

    - sexual intercourse with an individual under 13 if D is 18 or older
  38. rape: NY: 2nd degree
    • - victim under 15, D 18 or over
    • - victim can't consent b/c of mental disability or incapacity
  39. rape: NY: 3rd degree
    • -victim 17 or over and incapable of consent
    • - no consent (excludes incapacity)
    • - victim under 17, D over 21
  40. MBE: kidnapping: elements
    • 1) unlawful
    • 2) confinement
    • 3) against that person's will AND the 
    • 4) hiding or movement of that person

    - not kidnapping if movement was incidental to committing another crime (i.e. moving someone to alley to commit robbery)
  41. kidnapping: NY: 1st degree
    common law kidnapping + 

    - intent to compel the payment of ransom;

    - compel a person to engage or refrain from particular conduct; or

    - restraint of abducted person for more than 12 hours with intent to inflict physical injury, torture, advance commission of felony, or interfere with a government or political function
  42. kidnapping: NY: 2nd degree
    same as common law kidnapping
  43. false imprisonment: MBE: elements [3]
    • 1. unlawful
    • 2. confinement of a person
    • 3. without consent
  44. false imprisonment: NY: 1st degree
    - second degree + risk of serious physical injury to victime
  45. false imprisonment: NY: 2nd degree
    same as common law false imprisonment
  46. what is the key distinction b/w false imprisonment and kidnapping?
    kidnapping requires victim to be moved or hid
  47. arson: MBE: elements [4]
    • 1) malicious
    • 2) burning
    • 3) of the dwelling
    • 4) of another 

    -malice doesn't require specific intent; if D creates a substantial risk of burning, that's enough for arson

    - requires damage to the dwelling structure; smoke damage not enough
  48. arson: NY: fourth degree and affirmative defense:
    • 1) intentionally starting fire AND
    • 2) reckless damage

    AD: D owned property
  49. arson: NY: 3rd degree and affirmative defense
    • 1) intent to start fire
    • 2) intentional damage

    • affirmative defense: 3 requirements
    • - all owners consented AND
    • - Ds sole intent was to destroy for a lawful and proper purpose
    • - no reasonable ground for D to believe conduct would endanger the person or property of another
  50. arson: NY: 2nd degree
    • 1) intentional damage by
    • 2) intentionally starting a fire
    • 3) when a non-participant is present and
    • 4) D knows or has reason to know of the presence of that other person.
  51. arson: NY: 1st degree
    2nd degree + incendiary device to start fire (i.e. bomb)

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