Criminal Law Review

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TheoneandonlyMJ
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93495
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Criminal Law Review
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2011-07-11 15:50:19
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  1. Where may a crime be prosecuted?
    1. Where an ACT that was part of the crime took place

    or

    2. Where the RESULT took place
  2. What is the burden of proof for the prosecution in a criminal case?
    The prosecution must prove each element of the crime beyond a reasonable doubt.
  3. What are the two types of defenses to a crime in New York and the standards for each?
    1. Defenses: Prosecution must disprove beyond a reasonable doubt.

    2. Affirmative Defenses: Defendant must prove by a preponderance of the evidence.
  4. All bodily movements are physical acts that can be the basis for criminal liability, provided they are...
    Voluntary
  5. What are THREE involuntary movements that are not considered criminal acts?
    1. One that is not the product of the actor's VOLITION

    2. Sleepwalking or otherwise UNCONSCIOUS conduct

    3. A REFLEX or CONVULSION
  6. What are the THREE requirements for an omission to be the basis for criminal liability?
    1. Legal duty

    2. Knowledge of the facts giving rise to the duty

    3. Ability to help
  7. What are the FIVE ways that a legal duty can be created such that an omission can be a crime?
    1. By statute

    2. By contract

    3. By status relationship (the two most important for the Bar are "parent-child" and "spouse-spouse")

    4. By voluntary assumption of care

    5. By creation of peril
  8. What are the FOUR common law mental states?
    1. Specific intent

    2. Malice

    3. General intent

    4. Strict liability
  9. What is the definition of specific intent?
    When the crime requires not just the desire to do the act, but also the desire to achieve a specific result
  10. What are ELEVEN specific intent crimes?
    1. Assault

    2. First-degree premeditated murder

    3. Larceny

    4. Embezzlement

    5. False pretenses

    6. Robbery

    7. Forgery

    8. Burglary

    9. Solicitation

    10. Conspiracy

    11. Attempt
  11. What are the two defenses that are available ONLY for specific intent crimes?
    1. Voluntary intoxication

    2. Unreasonable mistake of fact
  12. What is the definition of MALICE?
    When a defendant acts intentionally or with reckless disregard of an obvious or known risk
  13. What are TWO common law malice crimes?
    1. Murder

    2. Arson
  14. What is the definition of GENERAL INTENT?
    The defendant need only be generally aware of the factors constituting the crime; he need not intend a specific result.

    NOTE: the jury can usually infer the general intent simply from the doing of the act.
  15. What are FOUR examples of general intent crimes?
    1. Battery

    2. Forcible rape

    3. False imprisonment

    4. Kidnapping
  16. What is the definition of STRICT LIABILITY?
    When the crime requires simply doing the act; no mental state is needed.
  17. What are TWO types of strict liability crimes? Define each.
    1. Public welfare offenses: regulatory or morality offenses that typically carry small penalties. (e.g., selling alcohol to a minor; selling contaminated food; and corrupting the morals of a minor)

    2. Statutory rape: having sex with someone who is under the age of consent.
  18. What are NY's FIVE mental states (as defined by the Model Penal Code)?
    1. Intent (MPC: "Purpose")

    2. Knowledge

    3. Recklessness

    4. Negligence

    5. Strict Liability
  19. What is the definition of "INTENT"?
    When it is the defendant's CONSCIOUS DESIRE to accomplish a particular result. (In order words, that is what the defendant WANTS to do.)
  20. What is the definition of KNOWLEDGE?
    When the defendant is AWARE of what he is doing. With respect to a result, when the defendant is aware that i's practically certain that his conduct will cause that result.
  21. What is the definition of RECKLESSNESS?
    When the defendant is AWARE of a substantial and unjustifiable risk, and CONSCIOUSLY DISREGARDS that risk.
  22. What is the definition of NEGLIGENCE?
    When the defendant should have been aware of a substantial and unjustifiable risk.
  23. What is the definition of STRICT LIABILITY?
    No mental state required.
  24. What are the two types of CAUSATION required?
    1. Actual ("but for") causation

    2. Proximate ("legal") causation
  25. What is the RULE for actual causation?
    A defendant is an actual cause (the "cause-in-fact") if the bad result would not have happened but for the defendant's conduct.
  26. What is the EXCEPTION to the actual causation rule?
    An "accelerating clause" is an actual cause.
  27. What is the RULE for proximate causation?
    A defendant is a proximate cause if the bad result is a natural and probable consequence of the defendant's conduct.
  28. What are the TWO applications of proximate causation and the respective rules for each?
    1. Intervening causes: D will NOT be considered a proximate cause if an unforeseeable intervening event causes the bad result.

    2. Eggshell victims: D WILL be considered a proximate cause even if the victim's preexisting weakness contributed to the bad result.
  29. What is the RULE for concurrence?
    The defendant must have the required mental state at the same time as he engages in the culpable act.
  30. What are the TWo crimes with which concurrence issues arise most frequently?
    1. Larceny

    2. Burglary
  31. What is the definition of BATTERY?
    The unlawful application of force to another, resulting in either 1) bodily injury or 2) an offensive touching.
  32. What is the mental state for battery?
    General intent
  33. What are the TWO versions of assault?
    1. As an attempted battery ("swing and miss")

    2. The intentional creation other than by words of a reasonable fear in the mind of the victim of an imminent bodily harm.
  34. What is the mental state for assault?
    Specific intent
  35. What is the definition of ASSAULT?
    Intentionally causing physical injury to another person.
  36. What are the three typical factors that make a crime more or less serious?
    1. Weapons

    2. Injury, which come in two levels of seriousness: (a) physical injury (substantial pain); (b) serious physical injury (permanent or life-threatening injury)

    3. Quantity (money or drugs)
  37. What is SECOND DEGREE ASSAULT?
    Intentionally causing non-serious physical injury.
  38. What is FIRST DEGREE ASSAULT?
    Second degree assault, plus a weapon.
  39. What is THIRD DEGREE ASSAULT?
    Intentionally causing non-serious physical injury.
  40. Can an offensive touching be charged as ASSAULT in NY?
    No. All versions of assault in NY require INJURY.
  41. What is MENACING?
    Merely creating a "reasonable apprehension" (without an intent to actually injure).
  42. Is there a time limitation by which death must occur after a homicidal act in NY?
    No. Death may occur at any time.
  43. Is there a time limitation by which death must occur after a homicidal act?
    Yes. Death must occur within a year-and-a-day of the homicidal act.
  44. What is the definition of MURDER?
    Causing the death of another person with malice aforethought.
  45. What are the FOUR mental states that satisfy the "malice aforethought" requirement in murder?
    1. Intent to kill

    2. Intent to inflict serious bodily injury

    3. Extreme recklessness, meaning reckless indifference to human life or having an "abandoned and malignant heart"

    4. Through the intentional commission of a dangerous felony
  46. What are the TWO special rules that apply to the "intent to kill" mental state for murder?
    1. Deadly weapon rule

    2. Transferred intent
  47. What is the DEADLY WEAPON RULE?
    The intentional use of a deadly weapon creates an inference of an intent to kill
  48. What is the TRANSFERRED INTENT RULE and its EXCEPTION?
    RULE: If the defendant intends to harm one victim, but accidentally harms a different victim instead, the defendant's intent will transfer from the intended victim to the actual victim.

    EXCEPTION: Transferred intent does not apply to attempts, only to crimes with completed harms.
  49. What is the definition of FIRST DEGREE MURDER?
    Any killing committed with premeditation and deliberation

    OR

    Felony murder, if the qualifying felonies are enumerated
  50. What are the THREE requirements of FIRST DEGREE MURDER in NY?
    1. An intent to kill

    2. The defendant is more than 18 years old

    3. At least one aggravating factor is present
  51. What are the FIVE aggravating factors possible for first degree murder in NY?
    1. The victim is a LAW ENFORCEMENT OFFICER, engaged in official duties at the time of the killing

    2. The defendant committed a murder for hire

    3. Felony murder, where the victim was intentionally killed

    4. Killing for the purpose of witness intimidation

    5. There was more than 1 victim intentionally killed in the same transaction
  52. What are the THREE types of SECOND DEGREE MURDER in NY?
    1. Intentional killing that does not qualify for first degree ("premeditation and deliberation" is irrelevant in NY)

    2. Highly reckless killing demonstrating depraved indifference to human life by engaging in conduct that creates a grave risk of death, generally involving more than one victim

    3. Felony murder, where the victim is not a co-felon and is killed unintentionally
  53. What is the definition of FELONY MURDER?
    Any killing caused during the commission of or attempt to commit a felony.
  54. What are the SIX limitations on felony murder?
    1. Defendant must be guilty of the underlying felony.

    2. The felony must be inherently dangerous.

    3. The felony must be separate from the killing itself.

    4. The killing must take place during the felony or during immediate flight from the felony. Once the felons reach a place of temporary safety, the felony ends.

    5. The death must be foreseeable.

    6. The victim must not be a co-felon.
  55. What are the NY EXCEPTIONS to the six limitations on felony murder?
    1. As to the majority rule that "D must be guilty of the underlying felony," in NY, D need not be convicted of the felony, as long as there is sufficient evidence that he committed it.

    • 2. As to the majority rule that "the felony must be inherently dangerous," NY limits felony murder to these six felonies (BRAKES):
    • a. Burglary
    • b. Robbery
    • c. Arson
    • d. Kidnapping
    • e. Escape
    • f. Sexual assault
  56. How does VICARIOUS LIABILITY apply to felony murder?
    If one of the co-felons causes the death, all of the other co-felons will be guilty of felony murder. This applies even if the actual killing was committed by a third-person, so long as one of the felons is a "proximate cause" of the death.
  57. What is the NY defense to vicarious liability under felony murder? What are its requirements?
    The "Non-Slayer" Defense.

    This is an AFFIRMATIVE DEFENSE to felony murder if the defendant can prove each of the following FOUR things:

    1. The defendant did not kill the victim

    2. The defendant did not have a deadly weapon

    3. The defendant had no reason to believe that his co-felons had deadly weapons

    4. The defendant had no reason to believe that his co-felons intended to do anything that was likely to result in death
  58. What is the definition of VOLUNTARY MANSLAUGHTER?
    An intentional killing committed in the heat of passion after adequate provocation.
  59. What are the FOUR requirements for an adequate provocation?
    1. The provocation must be objectively adequate (it would arouse a sudden intense passion in the mind of a reasonable person)

    2. The defendant was actually provoked

    3. The defendant did not have time to cool off

    4. The defendant did not actually cool off between the provocation and the killing
  60. What are THREE examples of objectively adequate provocation at common law?
    1. Serious assault or battery

    2. Presently witnessed adultery

    3. Unlawful restraint
  61. What is the definition of EXTREME EMOTIONAL DISTURBANCE?
    An intentional killing committed under the influence of a reasonable and extreme emotional disturbance.
  62. How is EED applied as a defense in NY criminal law?
    EED acts as an AFFIRMATIVE DEFENSE to second degree murder, which means the defendant must prove EED by a PREPONDERANCE OF THE EVIDENCE.
  63. What are the TWO types of INVOLUNTARY MANSLAUGHTER?
    A killing committed with CRIMINAL NEGLIGENCE

    OR

    A killing that was committed during a crime that does not qualify for a felony murder (aka "misdemeanor manslaughter")
  64. What is the standard for criminal negligence?
    Gross deviation of a reasonable standard of care
  65. What are the TWO ways to get FIRST DEGREE MANSLAUGHTER?
    EED manslaughter

    OR

    An intent to cause serious physical injury
  66. What is the definition of SECOND DEGREE MANSLAUGHTER?
    The defendant is aware of and consciously disregards a substantial and unjustifiable risk of death.
  67. What is the mental state for second degree manslaughter?
    Recklessness
  68. What is the definition of CRIMINALLY NEGLIGENT HOMICIDE?
    The defendant should have been aware of a substantial and unjustifiable risk of death.
  69. What is the mental state for criminally negligent homicide?
    Criminal negligence
  70. What is the definition of AGGRAVATED HOMICIDE?
    When the victim of the homicide is a police officer killed in the line of duty
  71. What is the definition of AGGRAVATED MURDER?
    When the defendant, over the age of 18, causes the death of a child under 14 in an especially cruel and wanton manner.
  72. What is the definition of FALSE IMPRISONMENT?
    The unlawful confinement of a person without his consent.
  73. What is the mental state of false imprisonment?
    General intent
  74. What is the definition of SECOND DEGREE UNLAWFUL IMPRISONMENT?
    Unlawfully restraining someone without their consent, and with knowledge that the restriction is unlawful.
  75. What is the definition of FIRST DEGREE UNLAWFUL IMPRISONMENT?
    Second degree, plus a risk of serious physical injury.
  76. What is the definition of KIDNAPPING?
    False imprisonment that involves either moving the victim or concealing the victim in a secret place.
  77. What is the mental state for common law kidnapping?
    General intent
  78. What is the definition of SECOND DEGREE KIDNAPPING in NY?
    Abducting someone.
  79. What is the definition of FIRST DEGREE KIDNAPPING in NY?
    Second degree kidnapping, plus ONE of the following:

    1. Abduct someone for RANSOM, or

    2. Restraint of the victim for more than 12 hours with intent to rape, injure, or rob the victim, or

    3. Death of the victim
  80. In NY, what results if a kidnap victim is killed accidentally?
    Second degree murder
  81. In NY, what happens if the victim is killed intentionally during a kidnapping of the first degree?
    First degree murder
  82. What is the definition of FORCIBLE RAPE?
    Sexual intercourse without the victim's consent accomplished by force, by threat of force, or when the victim is unconscious.
  83. What is the mental state for forcible rape?
    General intent
  84. What is the definition of STATUTORY RAPE?
    Sexual intercourse with someone under the age of consent.
  85. What is the mental state for statutory rape?
    Majority Rule: Strict liability

    MPC/Minority Rule: A reasonable mistake of age is a defense.
  86. What is the mental state for statutory rape?
    Age of consent is 17. Defendant needs to be at least 21.
  87. What is the definition of LARCENY?
    mnemonic: thieves picked charlie's pocket inside the airport terminal.

    • Trespassory
    • Taking and
    • Carrying away the
    • Tangible
    • Personal property of
    • Another, with the
    • Intent to
    • Permanently retain the property
  88. What is the definition of "TRESPASSORY" in the context of larceny?
    Wrongful or unlawful
  89. What does "taking and carrying away" mean in the context of larceny?
    The property must be moved
  90. What is meant by the "tangible personal property of another" in the context of larceny?
    Lawful custody. If D has lawful custody of the property, he CANNOT be guilty of larceny for taking it, even if D doesn't own it. Conversely, D CAN be guilty of larceny for taking his own property, if someone else had lawful custody of the property when D took it.
  91. What is meant by "with the intent to permanently retain the property" in the context of larceny?
    If D intends to give the property back, the taking is not larceny.
  92. What is the ERRONEOUS TAKINGS RULE in the context of larceny?
    A taking under a CLAIM OF RIGHT is never larceny, even if the defendant erroneously believes the property is his.
  93. What is the doctrine of CONTINUING TRESPASS in the context of larceny?
    It is an exception to the CONCURRENCE RULE.

    If a defendant wrongfully takes property, but without the intent to steal, he will not be guilty of larceny. But, if the defendant later forms the intent to steal, the initial trespassory taking is considered to have "continued" and he will be guilty of larceny.
  94. What is the definition of EMBEZZLEMENT?
    Conversion of the personal property of another by a person already in lawful possession of that property, with the intent to defraud.
  95. What is the mental state required for embezzlement?
    Specific intent to defraud.

    Note: if the defendant intends to give the exact property back in the exact form, he will not have the intent to defraud.
  96. What is the key difference between embezzlement and larceny?
    For embezzlement, D must already have lawful possession of the property before a taking.
  97. What is the difference between POSSESSION and CUSTODY?
    Possession involves more than mere custody. It requires the authority to exercise some discretion over the property.
  98. What is the definition of FALSE PRETENSES?
    Obtaining title to the personal property of another by an intentional false statement, with the intent to defraud.
  99. What is the key difference between false pretenses and larceny?
    In larceny, the defendant gets only custody of the property.

    In false pretenses, the defendant gets title, meaning ownership.
  100. How is "false statement" define in the context of false pretenses?
    Must be of a past or present event (not a future promise).
  101. What is the definition of LARCENY BY TRICK?
    If the defendant obtains only custody (NOT TITLE) as a result of the intentional false statement, the crime is larceny by trick, not false pretenses.
  102. What is the definition of ROBBERY?
    A larceny from another's person or presence by force or threat of immediate injury.
  103. What is the mental state required for robbery?
    Specific intent to steal
  104. What is the definition of "presence" in the context of robbery?
    Some location reasonably close to the victim (e.g., rooms in a house other than the room in which the victim is located)
  105. What is the definition of "force" in the context of robbery?
    Any amount of force sufficient to overcome resistance.
  106. What is needed to be there for something to qualify as a "threat" in the context of a robbery?
    threat of immediate injury ("your money or your life")
  107. What is it called when an individual obtains the property of another through oral or written threats of future harm?
    Extortion (or blackmail)
  108. What is the definition of a FORGERY?
    Making or altering a writing so that it is false.
  109. What is the mental state required for a forgery?
    The intent to defraud
  110. What is the definition of LARCENY in NY?
    Any crime that would be larceny, embezzlement, false pretenses or larceny by trick at common law
  111. What are the varying degrees of larceny?
    First degree: more than $1M

    Second degree: more than $50K

    Third degree: more than $3K

    Fourth degree: more than $1K

    Petit larceny: lesser amounts
  112. What is the definition of THIRD DEGREE ROBBERY in NY?
    Forcible stealing
  113. What is the definition of SECOND DEGREE ROBBERY?
    Forcible stealing plus ONE of the following:

    1. Defendant is aided by someone actually present;

    2. The victim is injured;

    OR

    3. A car is stolen
  114. What is the definition of FIRST DEGREE ROBBERY?
    Forcible stealing, plus ONE of the following:

    1. The victim is seriously injured, or

    2. The defendant uses or displays a firearm
  115. Is there a defense to FIRST DEGREE ROBBERY?
    Yes. There is an AFFIRMATIVE DEFENSE that states that if the defendant can prove that the gun was unloaded or inoperable, the crime is reduced to second degree robbery.
  116. What happens if a robbery victim is killed accidentally in NY?
    Second degree murder
  117. What happens if a robbery victim is killed intentionally in NY?
    First degree murder
  118. What are the ACT requirements for a possession offense?
    When a statute criminalizes the possession of a contraband, "possession" means:

    1. Control for a period of time long enough to have an

    2. Opportunity to terminate possession
  119. What is "CONSTRUCTIVE POSSESSION"?
    The contraband need not be in the defendant's actual possession, so long as it is close enough for him to exercise dominion and control over it.
  120. What is the mental state required for a possession offense?
    Knowledge (of the possession AND of the character the item possessed)
  121. What are THREE examples of New York Possession Offenses?
    1. Criminal possession of a controlled substance

    2. Criminal possession of a weapon

    3. Criminal possession of stolen property
  122. What are the requirements for CRIMINAL POSSESSION OF A WEAPON?
    The gun must be loaded and operable.

    There is also a statutory presumption that the presence of a gun in a vehicle means that all occupants of the vehicle possessed the gun.
  123. What is the definition of BURGLARY?
    Breaking and entering the dwelling of another at night with the intent to commit a felony inside.
  124. What is the definition of BREAKING in the context of burglary?
    Creating of enlarging an opening by at least minimal force
  125. What does breaking include and not include?
    Includes: breaking a window, opening a window, opening a door

    Does NOT Include: climbing through an already open window, entering with permission
  126. What is "CONSTRUCTIVE" breaking and is it recognized in burglary?
    Constructive breaking means that entry is gained through fraud, threats or intimidation. Yes, breaking can be "constructive."
  127. What is the meaning of "ENTRY" in the context of burglary?
    Some part of the defendant's body must enter the building.
  128. What is the meaning of "DWELLING" in the context of burglary?
    A structure where someone regularly sleeps
  129. What is the meaning of "OF ANOTHER" in the context of burglary?
    You can't burglarize your own house
  130. What is the intent required for burglary?
    Specific intent (to commit a felony inside--steal, rob, rape, assault, kill, etc.)
  131. What are some modern statutory changes to burglary?
    Many states have eliminated the technical requirements of common law burglary (especially the "breaking," "at night," and "dwelling" elements)
  132. What is the definition of THIRD DEGREE BURGLARY in NY?
    Entering or remaining unlawfully in a building with the intent to commit a crime inside.
  133. What is the definition of SECOND DEGREE BURGLARY in NY?
    Third degree burglary plus ONE of the following:

    1. The building is a dwelling

    2. A non-participant is injured

    3. The defendant carries a weapon
  134. What is the definition of FIRST DEGREE BURGLARY in NY?
    The defendant knows that he is burglarizing a dwelling, plus ONE of the following:

    1. A non-participant is injured

    2. The defendant carries a weapon
  135. What is the definition of ARSON?
    The malicious burning of a building.
  136. What is the mental state requirement for arson?
    Malice
  137. What are the TWO requirements of "burning" with respect to arson?
    1. It requires material wasting (scorching is not enough)

    2. It must be the building itself that burns (not just the carpet)
  138. What is the definition of FOURTH DEGREE ARSON in NY?
    Reckless burning of a building
  139. What is the definition of THIRD DEGREE ARSON in NY?
    Intentionally burning of a building
  140. What is the definition of SECOND DEGREE ARSON in NY?
    Third degree arson, when the defendant knows or should have known that someone was inside the building
  141. What is the definition of FIRST DEGREE ARSON in NY?
    Second degree arson, plus an explosive or incendiary device (arson's equivalent to the weapon)
  142. What is the statutory development with respect to "DWELLING" in the context of arson?
    Traditionally, arson was limited to "dwellings," but most states now extended arson to all buildings.
  143. What is the statutory development with respect to "OF ANOTHER" in the context of arson?
    Traditionally, a defendant could not commit arson on his own property; most states have eliminated that restriction.
  144. What is the definition of an ACCOMPLICE?
    A person who aids or encourages the principal with the intent that the crime be committed.
  145. What is the definition of PRINCIPAL?
    The person who commits the crime.
  146. What is the NY mental state requirement for accomplice liability?
    In NY, the accomplice need NOT specifically intend that the crime be committed. It is enough if the accomplice specifically intends to aid the principal's conduct, and otherwise has the mental state required for the principal's crime.

    This means that it is possible in NY to be an accomplice to a negligence or recklessness crime.
  147. What is the rule of ACCOMPLICE LIABILITY?
    The accomplice is guilty of all crimes that he aided or encouraged (just as if he did it) and all other foreseeable crimes committed along with the aided crime.
  148. THREE important principles touching on when a person is NOT an accomplice:
    1. MERE PRESENCE at the scene of the crime does not make someone an accomplice; he or she must actively aid or encourage the principal.

    2. MERE KNOWLEDGE of the crime does not make someone an accomplice; he must intend to aid or encourage the principal.

    3. VICTIMS of crime cannot be accomplices, since they are considered members of a protected class (e.g., minors cannot be convicted of "selling alcohol to a minor").
  149. In NY, can the MERE KNOWLEDGE of a crime result in criminal liability?
    Yes, it can make someone guilty of CRIMINAL FACILITATION.
  150. How may an "encourager" WITHDRAW with respect to accomplice liability?
    An accomplice to only "encouraged" the principal may withdraw simply by discouraging the crime (before it is committed).
  151. How may an "aider" WITHDRAW with respect to accomplice liability?
    An accomplice who actually helped the principal must either neutralize the assistance or prevent the crime from happening (including notifying the authorities).
  152. How may an accomplice WITHDRAW in NY?
    Through the affirmative defense of "RENUNCIATION": The accomplice must make a substantial effort to prevent the commission of the crime.
  153. What are the requirements for ACCESSORY AFTER THE FACT?
    A defendant must:

    1. Help a principal who has committed a felony with

    2. Knowledge that the crime has been committed, and with the

    3. Intent to help the principal avoid arrest or conviction.
  154. What are some modern statutory names for the ACCESSORY AFTER THE FACT doctrine? (Including one NY)
    1. Obstruction of justice

    2. Harboring a fugitive

    3. Hindering prosecution
  155. What are the THREE inchoate offenses?
    1. Solicitation

    2. Conspiracy

    3. Vicarious Liability ("Pinkerton")
  156. What is the definition of SOLICITATION?
    Asking someone to commit a crime, with the intent that the crime be committed
  157. What is the mental state required for solicitation?
    Specific intent
  158. Is completion necessary for SOLICITATION?
    No. The crime is in the asking. It doesn't matter whether the other person agrees or whether the crime is actually committed.
  159. What is the definition of CONSPIRACY?
    An agreement between two or more people to commit a crime, plus an OVERT ACT in furtherance of the crime.
  160. What is the definition of an "OVERT ACT" with respect to conspiracy?
    ANY act, even if merely prefatory.
  161. What is the mental state required for conspiracy?
    Specific intent to accomplish the conspiracy's objective.
  162. Is completion necessary for a CONSPIRACY offense?
    No. The "essence" of the crime of conspiracy is the agreement; completion of the conspiratorial objective is unnecessary for conviction.
  163. Can you have a one-person conspiracy? (common law and NY)
    Common Law: No. There must be at least two guilty minds, both of whom actually agree to accomplish the conspiracy's objectives. Thus, if all other parties to the agreement are acquitted, the last remaining defendant cannot be convicted.

    NY: Yes. Under the unilateral approach of NY and the MPC, a defendant may be guilty of conspiracy even if the other parties are acquitted or were just pretending to agree.
  164. What is the WHARTON RULE?
    When two or more people are necessary for the commission of the substantive offense, there is no conspiracy unless more parties participate in the agreement than are necessary for the crime.
  165. Does NY follow the Wharton Rule?
    Yes.
  166. What is the rule for VICARIOUS LIABILITY?
    In addition to conspiracy, a defendant will be liable for other crimes committed by his co-conspirators, so long as those crimes were:

    in furtherance of the conspiracy's objective and

    were foreseeable.
  167. What is the NY rule for VICARIOUS LIABILITY?
    No vicarious liability for one who merely conspires and does not participate in a crime committed by a co-conspirator.
  168. Can IMPOSSIBILITY be a defense to conspiracy?
    Never.
  169. What is the requirement for an ATTEMPT?
    Unlike conspiracy, attempt requires an overt act that must be beyond mere preparation.
  170. What is the NY rule for attempt?
    Conduct that gets VERY CLOSE to the commission of the crime ("dangerous proximity" test) qualifies for attempt.
  171. What is the Majority/MPC rule for attempt?
    Conduct that constitutes a substantial step towards the commission of the crime, provided that conduct strongly corroborates the actor's criminal purpose qualifies for attempt.
  172. What is the mental state required for attempt?
    Specific intent to commit the underlying crime
  173. Can you attempt an unintentional crime? Why or why not?
    NO, because you cannot intend to something unintentional.
  174. Of which THREE crimes are there no attempt versions?
    1. Recklessness crimes

    2. Negligence crimes

    3. Felony murder
  175. What is the definition of FACTUAL IMPOSSIBILITY?
    It is impossible to complete the crime because of some physical or factual condition unknown to the defendant.
  176. To which crime is factual impossibility never a defense?
    Attempt.
  177. What is the definition of LEGAL IMPOSSIBILITY?
    It is impossible to complete the crime because of some legal circumstance or status that prevents the underlying crime from taking place.
  178. Is legal impossibility a defense to attempt?
    MBE: Yes

    NY: No
  179. What happens when a solicitor, co-conspirator, or attempter changes his mind?
    MBE: Withdrawal is NOT a defense.

    - Exception: Once Defendant withdraws from a CONSPIRACY, he will no longer be vicariously liable for crimes committed by his co-conspirators after he left the conspiracy. However, he is still guilty of conspiracy and of all foreseeable crimes committed by co-conspirators PRIOR to his withdrawal.

    NY: Withdrawal can be a defense, but only if

    (1) the Defendant completely and voluntarily renounces the solicitation, conspiracy, or attempt, AND

    (2) the renunciation is based on a "change of heart," not a fear of failing or being caught
  180. What are the MERGER RULES for inchoate offenses?
    SOLICITATION and ATTEMPT merge with the completed crime, but CONSPIRACY does NOT merge.

    NY: SOLICITATION does NOT merge either.
  181. What is the requirement for the INSANITY DEFENSE?
    MBE: The defendant must have a mental disease or defect.

    NY: Defendant must prove he or she lacked the substantial capacity to either:

    (1) understand the nature of his act, or

    (2) appreciate the wrongfulness of his conduct
  182. What are the THREE most common tests used to gauge whether the mental disease or defect renders the defendant legally insane?
    1. The M'Naghten Test (majority test - purely cognitive)

    2. The Irresistible Impulse Test (volitional test, sometimes combined with M'Naghten)

    3. The MPC Test (used in roughly 25% of the states - cognitive and volitional)
  183. What is the M'Naghten Test?
    Defendant had a mental disease or defect if he either

    (1) did not know that his act was wrong; or

    (2) did not understand the nature of his act
  184. What is the Irresistible Impulse Test?
    Defendant had a mental disease or defect if he either

    (1) was unable to control his actions; or

    (2) was unable to conform his conduct to the law
  185. What is the MPC Test for an Insanity Defense?
    Defendant had a mental disease or defect if he lacked the substantial capacity to either

    (1) appreciate the criminality of his conduct, or

    (2) conform his conduct to the requirements of the law
  186. What is the differences in the ISSUE between INSANITY and INCOMPETENCY?
    The issue in INSANITY is whether D was insane at the time of the crime. If yes, then D is not guilty.

    The issue in INCOMPETENCY is whether D is insane at the time of trial. If yes, then the trial is postponed until D is competent.
  187. What does the defense of VOLUNTARY INTOXICATION require at common law?
    The defense requires such severe "prostration of the faculties" that the defendant cannot form the requisite specific intent.
  188. To what kind of crimes can voluntary intoxication be a defense?
    MBE: specific intent crimes ONLY.

    NY: intent and knowledge crimes, if the intoxication prevents the defendant from forming the required state of mind.
  189. To what kind of crimes can voluntary intoxication NOT be a defense?
    MBE: malice, general intent, or strict liability crimes

    NY: crimes of recklessness, negligence, or strict liability
  190. What is the rule for the defense of INFANCY?
    MBE: If, at the time of crime, the age of the child is:

    - Under 7: prosecution NOT allowed

    - Under 14: rebuttable presumption against prosecution

    - 14 or older: Prosecution allowed.

    NY: If the age is:

    - Under 13: Criminal prosecution as an adult not allowed; only "juvenile delinquency" proceedings in Family Court

    - 13: Criminal prosecution as an adult allowed for second degree murder

    - 14 or 15: Criminal prosecution as an adult allowed for serious crimes against persons or property

    - 16 or older: Criminal prosecution as an adult allowed for any crime
  191. What is the common law rule for MISTAKE OF FACT?
    Whether a defendant's mistake of fact will be a defense depends upon the mental state for the crime and whether the mistake is reasonable or unreasonable.
  192. To which crimes will a REASONABLE mistake of fact be a defense?
    Any crime except strict liability.
  193. To which crimes will an unreasonable mistake of fact be a defense?
    ONLY to specific intent crimes
  194. When will a mistake of fact be a defense?
    If the mistake negates the required mental state.

    Thus, for crimes of purpose, knowledge or recklessness, ANY mistake of fact (even an unreasoanble one) is usually a defense.

    For crimes of negligence, only a reasonable mistake of fact will be a defense.

    For strict liability crimes, a mistake of fact will NEVER be a defense, no matter how reasonable it is.
  195. What is the rule for MISTAKE OF LAW in NY?
    Mistake of law is generally NOT a defense.
  196. What is the EXCEPTION to the rule of mistake of law in NY?
    If the statute specifically makes knowledge of the law an element of the crime, then mistake of law MAY be a defense.
  197. When may a defendant use nondeadly force in self-defense?
    When it is reasonable necessary to protect against an immediate use of unlawful force against himself.
  198. When may a defendant use deadly force in self-defense?
    If he is facing an imminent threat of death or serious bodily injury.
  199. What are the TWO complications for the use of deadly force in self-defense?
    1. The initial aggressor rule

    2. The retreat rule
  200. What is the INITIAL AGGRESSOR RULE?
    A defendant may not use deadly force if he is the initial aggressor. But, the initial aggressor can "regain" his right to use deadly force in self-defense if:

    (1) He withdraws from the fight and communicates that withdrawal to the other person; or

    (2) The victim suddenly escalates the nondeadly fight into a deadly one.

    NY: In NY, the initial aggressor must withdraw before resorting to deadly self-defense, even if the other party suddenly escalates a nondeadly fight into a deadly fight.
  201. What is the RETREAT RULE?
    In some states, a defendant is required to retreat before using deadly force in self-defense.
  202. When is retreat required?
    MBE: Retreat is NOT required.

    NY: Retreat is required, unless:

    (1) D cannot retreat in complete safety

    OR

    (2) D is in his home (the "castle exception")
  203. Is "reasonable" mistake of fact a defense?
    Yes, it's a complete defense.
  204. Is "unreasonable" mistake of fact a defense?
    NY: No defendse at al.

    Minority/MPC: mitigate liability. "Imperfect Self-Defense": an unreasonable belief in the need to use deadly force in self-defense will mitigate murder to voluntary manslaughter.
  205. How may force be used to prevent a crime?
    Nondeadly force may be used if necesssary to prevent a crime.

    Deadly force may only be used to prevent a felony risking human life.
  206. When may force be use in the context of defense of others?
    A defendant may use force and deadly force to protect others just the same as he could use it to defend himself.
  207. What is the general rule of defense of property?
    Deadly force may NOT be used to defend property.
  208. What is the BURGLARY RULE for defense of property?
    Deadly force may be used to prevent a burglary, if the defendant is inside his or her home.
  209. Resisting an arrest and force.
    If the defendant knows or reasonably should know that the person performing the arrest is a ofice -

    (1) If the arrest is unlawful then the defendant may use nondeadly force to resist the arresting officer.

    (2) NY: Force may NOT be used to assist an arrest, even an unlawful one, unless the arresing ottver use suve xicessive force.
  210. When may an officer use deadly force?
    When it is reasonable under the circumstances.
  211. What is the rule for NECESSITY?
    It is a defense to criminal conduct if the defendant reasonably believed that his conduct was necessary to prevent a greater harm.
  212. What ist he exception for NECESSITY?
    Necessity cannot be a defense to homicide.
  213. What are the TWO requirements for necessity in NY?
    (1) The harm avoided must be greater than the harm caused

    (2) Necessity CAN be in a defense to homicide
  214. What is the rule for DURESS?
    It is a defense if the defendant was forced to commit a crime because of a threat, from another person, of imminent death or seirous bodily inury to himself or to a clase family member.
  215. What is the exception to the DURESS rule?
    Duress cannot be a defense to homicide.

    NY: Duress CAN be a defense to homicide.
  216. What is the definition of ENTRAPMENT?
    If the government unfairly tempted the defendant to commit the crime, he may claim entrapmnt. This narrow defense words only if--

    (1) the criminal design originated with the government; AND

    (2) the defendant was not predisposed to commit the crime

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