bar crim law part II

• Larceny
• Embezzlement
• False Pretense

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

- 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]

Trespassory removal of the owner's property into another's control.

satisfied by even a slight movement (i.e. inches)

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)

the property must be in the possession of someone other than the defendant

~not the D's own property or abandoned property

D must have the intent to permanently deprive that person of the property at the time of the taking.

• 1. fraudulent
• 2. conversion
• 3. of the property
• 4. of another
• 5. by a person in lawful possession of the property

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.

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.

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

~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

• 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

- property over $1 million

• 1. stealing property over $50,000 OR
• 2. get property by threatening future physical injury
• 3. Public servant abusing position

stealing property over $3,000

• - stealing property over $1,000
• - stealing certain types of docs/records (i.e. secret scientific material)
• - theft from victim's body
• - extortion

stealing property $1,000 or less

• 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

• - 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

• - D is aided
• - victim is injured
• - D displays what appears to be a firearm
• - Property taken is a motor vehicle

all other types of robbery in which property is forcibly taken

• breaking and entering of the 
• dwelling of
• another
• at night
• with the specific intent to commit a felony there-in

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

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

- 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

[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

one of the 2nd degree elements + building is a dwelling

• 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

• 1) the unlawful
• 2) application of force
• 3) to another person
• 4) that causes bodily harm to that person or constitutes an offensive touching

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

• 1) attempted battery or
• 2) intentionally placing another in apprehension of imminent bodily harm

- recklessness is not enough, requires intent

menacing in NY= assault at common law

• 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

• 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

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

• - victim under 15, D 18 or over
• - victim can't consent b/c of mental disability or incapacity

• -victim 17 or over and incapable of consent
• - no consent (excludes incapacity)
• - victim under 17, D over 21

• 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)

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

same as common law kidnapping

• 1. unlawful
• 2. confinement of a person
• 3. without consent

- second degree + risk of serious physical injury to victime

same as common law false imprisonment

kidnapping requires victim to be moved or hid

• 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

• 1) intentionally starting fire AND
• 2) reckless damage

AD: D owned property

• 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

• 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.

2nd degree + incendiary device to start fire (i.e. bomb)