Distinctions - Crim Law

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apgiering
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94299
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Distinctions - Crim Law
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2011-07-23 19:15:37
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NY Bar Exam
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NY Bar Exam
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  1. Define "offense."
    Conduct for which a penal sentence is provided by state or local law, or by an order, rule, or regulation of any governmental instrumentality.
  2. Define "crime."
    Misdemeanors and felonies.
  3. Define "traffic infractions."
    Offenses designated by the Vehicle and Traffic Law.
  4. Define "violations."
    Offenses other than traffic infractions which are punishable by no more than 15 days imprisonment.
  5. Define "misdemeanors."
    Offenses other than traffic infractions for which prison sentence exceeds 15 days, but cannot be in excess of one year.
  6. Define "felonies."
    Offenses for which death or a prison sentence of more than one year may be imposed.
  7. Is knowledge of weight of a controlled substance an element of the offense?
    No, e.g., defendant is strictly liable for the weight. Only knowledge of the nature of the substance is required.
  8. What are the elements of criminal facilitation?
    • The facilitator has knowingly aided in the commission of a crime but his culpability does not reach accomplice level;
    • The facilitator need only believe that it was probable that he was rendering aid;
    • The conduct alleged must have aided in the commission of the object felony; and
    • The facilitator may not be convicted on uncorroborated testimony of the person facilitated.
    • NOTE: An affirmative defense exists for a facilitator who takes steps to prevent the felony.
  9. Does an affirmative defense exist for a criminal facilitator who takes steps to prevent the felony?
    Yes.
  10. What action does an accomplice have to take in order to use withdrawal as an affirmative defense to accomplice liability for the substantive offense other than an attempt?
    • Voluntarily and completely renounce his criminal purpose;
    • Withdraw prior to commission of the offense; and
    • Make a substantial effort to prevent the crime.
  11. What factors do not constitute a defense and do not absolve an accomplice of liability?
    • Defenses of the principal;
    • Failure of the state to prosecute the principal; or
    • If the offense is defined so that the accomplice could nto commit the offense in an individual capaciy.
  12. Can a person be convicted solely upon the uncorroborated testimony of an accomplice?
    No, except in police disciplinary hearings.
  13. Is solicitation a separate offense, independent of the substantive crime committed?
    Yes. Conduct that is "necessarily incidental" to the commission of the crime is not solicitation (e.g., receiving a bribe).

    Soliciting a minor to commit a crime is not "necessarily incidental" to and is a separate crime from "endangering the welfare of a minor."
  14. Is soliciting a minor to commit a crime "necessarily incidental" to commission of the crime of "endangering the welfare of a minor"?
    No. It is a separate offense and is considered solicitation.
  15. What are the degrees of solicitation?
    • Fifth degree - 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.
    • Fourth degree - The conduct urged is a felony; or where the defendant is over 18, the other person is under 16, and the conduct urged is a crime.
    • Third degree - The defendant is over 18, the other person is under 16, and the conduct urged is a felony.
    • Second degree - The conduct urged is a class A felony.
    • First degree - The defendant is over 18, the other person is under 16, and the conduct urged is a class A felony.
  16. What action does a defendant have to take in order to use withdrawal as an affirmative defense to solicitation and conspiracy?
    • Voluntary and completely renounce; and
    • Prevent commission of the object crime.
    • NOTE: If the object crime does not occur, the defendant has a defense to the anticipatory crimes only if his efforts prevented the commission of the object crime.
  17. Can a defendant be convicted of solicitation upon testimony of the person solicited?
    Yes. If the person solicited qualifies as an accomplice, then accomplice rules apply.
  18. What are the degrees of conspiracy?
    • Sixth degree - Same as fifth degree solicitation.
    • Fifth degree - Same as fourth degree solicitation.
    • Fourth degree - The conduct urged is a class B or C felony; or where the defendant is over 18, the other person is under 16, and the conduct urged is a felony.
    • Third degree - The defendant is over 18, the other person is under 16, and the conduct urges is a class B or C felony.
    • Second degree - Same as second degree solicitation.
    • First degree - Same as first degree solicitation.
  19. Is there vicarious liability for one who merely conspires and does not participate in committing the offense?
    No.
  20. Can a single defendant be convicted of conspiracy?
    Yes. There is no defense to a conspiracy charge based on a co-conspirator's irresponsibility, incapacity, or failure to have the requisite culpability for a crime (e.g., you can conspire with a police officer).
  21. Can a defendant be convicted of conspiracy upon uncorroborated testimony of a co-conspirator?
    No.
  22. How is an attempt graded by degree?
    Generally, an attempt is graded one step below the completed crime.

    EXCEPTION: In cases of attempted murder in the first degree and criminal possession or sale of a controlled substance, the attempt is classified as agrade A-1 felony, equal to the substantive offense.
  23. What is required for a defendant to show abandonment as an affirmative defense to attempt?
    The defendant must manifest a voluntary and complete renunciation of his actions and avoid the commission of the object crime by abandoning the criminal effort. (If these actions do not avoid the crime, then the defendant must take affirmative steps that prevent the commission therereof.)
  24. Who bears the burden on defenses?
    Must be disproved by the prosecution beyond a reasonable doubt.
  25. Who bears the burden on affirmative defenses?
    Must be raised and proved by the defendant by a preponderance of the evidence.
  26. What are affirmative defenses?
    Insanity, extreme emotional disturbance, entrapment, and duress.
  27. What is the New York insanity (affirmative) defense?
    The New York insanity (affirmative) defense is more lenient than the M'Naghten rule but not as generous as the M.P.C. standard from which it derives. A person is not criminally responsible for conduct if, at the time of the conduct, as a result of mental disease or defect, he lacked substantive capacity to know or appreciate either (i) the nature and consequence of such conduct, or (ii) that such conduct was wrong. Once raised, the defendant may not refuse to submit it to an examination by the prosecution's psychiatrist on Fifth Amendment grounds.
  28. Is the diminished capacity offense available in New York?
    No.
  29. What are the exceptions to the infancy defense?
    • Age 13, 14, or 15 - May be prosecuted for second dgree murder.
    • Age 14 or 15 - Responsible for serious offenses against persons or property.

    Except for the above, a defendant who commits a crime (misdemeanor or felony) is exclusively subject to family court jurisdiction as a juvenile delinquent if he is over age seven but under age 16.
  30. Is justification a defense or an affirmative defense?
    A defense.
  31. When is nondeadly self-defense a valid defense?
    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: (i) with the intent to cause physical injury to another, he provoked the use or imminent use of such force; (ii) he was the initial aggressor; or (iii) the use or imminent use of force is pursuant to an unlawful combat agreement.
  32. When can a person not use deadly force?
    If he can safely retreat.
  33. When is retreat not required before using deadly force?
    • The person is in his dwelling and is not the initial aggressor (NOTE: The doorway of an apartment does not function as "in the dwelling" and the duty to retreat does apply);
    • Is a peace officer or acting under a peace officer's direction;
    • Believes the other person is committing or attempting kidnapping, forcible rape, forcible criminal sexual act, or robbery; or
    • Believes the other person is committing burglary.
  34. Is duress an affirmative defense?
    Yes, to all crimes, including homicide.
  35. When is the defendant entitled to an entrapment charge?
    If a reasonable view of the evidence supports the charge, even if the defendant's testimony is inconsistent and he denis the crime charged.
  36. Is entrapment an affirmative defense?
    Yes. If the defendant raises entrapment, the prosecution may introduce evidence of the defendant's past criminal acts in its direct case.
  37. Is there a crime of battery in New York?
    No. There is only the crime of "assault," which encompasses common law battery. Assault requires the victim to have suffered physical injury, defined as impairment of physical condition or substantial pain. Attempted assault is also possible in NY and is equivalent to common law assault.
  38. What is the crime of assault in New York?
    Assault requires the victim to have suffered physical injury, defined as impairment of physical condition or substantial pain. Attempted assault is also possible in NY and is equivalent to common law assault.
  39. What is attempted assault?
    It is equivalent to common law assault.
  40. Define homicide.
    When a person, with the intent to cause the death of another, causes the death of such person or of a third party (transferred intent).
  41. What affirmative defenses can exculpate the defendant?
    Extreme emtoional disturbance ("heat of passion") and aiding a suicide. These defenses mitigate the crime so that the defendant may stlil be prosecuted for manslaughter.
  42. Define highly reckless murder.
    Demonstrating 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 person. Force directed at the victim but not intended to kill may suffice for conviction. No crime of attempt exists for reckless murder because no intent is involved.
  43. What do you need to know about highly reckless murder?
    • Depraved indifference murder is not a lesser degree of intentional murder
    • Someone who intends to cause serious physical injury does not comitt depraved indifference murder because the intended victim dies and one who acts with conscious intent to cause serious injury, and succeeds in doing so, is guilty only of manslaughter.
    • A depraved indifference murder is one committed in utter disregard for the value of human life and one that reflects wickedness, evil or inhumanity, as manifested by brutal, heinous and despicable acts.
    • Depraved indifference murder can also occur when a defendant, acting with the intent not to kill but to harm, engages in torture or a brutal, prolonged and ultimately fatal course of conduct against a particularly vulnerable victim.
    • A one-on-one shooting or knifing resulting in death is virtually never a depraved indifference murder.
    • So-called "twin-count" indictments where both intentional and depraved murder is charged should be rare, and twin-count submissions to the jury should be even rarer. Prosecutors hsould generally make a choice at the outset whether to pursue intentional or depraved indifference murder, and when they do not, the judge should act as a gatekeeper and generally permit only one of the counts to go to the jury.
    • Where the defendants obviously committed murder, their convictions were reversed because they were found guilty of depraved homicides when they actually acted intentionally.
  44. What is first-degree murder?
    Intentional murder with special circumstances.

    The defendant must be over 18 years old and commit murder in one of the following ways: (i) The intended victim was a police officer, court officer, parole officer, probation officer, employee of the division of youth, or corrections employee, engaged in official duties at the time of the killing, and the defendant knew or reasonably should have known that the victim was such; (ii) The intended victim was killed because he was a judge; (iii) The intended victim was a witness or 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; (iv) The defendant committed murder for hire; (v) The victim (a nonparticipant in the crime) was intentionally killed by the defendant during the course of one of the following felonies or immediate flight therefrom: robbery (any degree), burglary (first or second degree), kidnapping (first degree), arson (first or second degree), rape (first degree), criminal sexual act, sexual abuse, escape, or attempted murder in the second degree; (vi) At the time of the killing, the defendant was in custody or had escaped custody and was serving a life sentence; (vii) The defendant committed a torture murder, including the torture murder of a child younger than 14 years old (which is called "aggravated murder of a child"); (viii) The defendant intentionally killed more than one person as part of the same criminal transaction or was previously convicted of murder in the first or second degree or another equivalent law; (ix) The defendant committed serial murder; or (x) The victim was killed in furtherance of an act of terrorism.
  45. What are the three (4) forms of second-degree murder?
    • Intentional muder (other than first degeree murder);
    • Highly reckless murder; and
    • Felony murder.
  46. What is second degree murder-felony murder?
    All participants in the felony may be convicted of felony murder. The enumerated felonies are: burglary, robbery, arson, kidnapping, first degree rape or criminal sexual act, sexual abuse or aggravated sexual abuse, and first and second degree escape.
  47. Is felony murder conviction possible even if the underlying felony is dismissed, the defendant is acquitted, or the charge is not submitted to the jury?
    Yes, where there is sufficient evidence to support the conclusion that the defendant committed the crime.
  48. Is there liability for second degree murder for participants under age 13?
    No.
  49. When does an accomplice have an affirmative defense to a felony murder charge?
    • He did not commit or aid in the commission of the homicidal act;
    • He was not armed with a deadly weapon or substance;
    • He had no reasonable grounds to believe others were armed with deadly weapons or substances; and
    • He had no reason to believe any participant intended to engage in conduct likely to result in death.
  50. If a defendant is innocent of felony murder by affirmative defense, is he still responsible for the underlying felony?
    Yes. However, also examine each party's participation to ascertain whether he had a defense to the underlying felony.
  51. Does New York follow the "year and a day" rule for murder?
    No. Death can occur at any time.
  52. What is first degree manslaughter?
    • Intentionally causing serious bodily harm that results in death. (MS common law murder: Intent to inflict great bodily injury.)
    • Extreme emotional disturbance (heat of passion) - The defendant must raise and prove the affirmative defense of emotional disturbance. (Similar to MS voluntary manslaughter.)
    • Unjustifiable abortional act-Where a person performs an abortional act (including giving drugs) upon a female pregnant for more than 24 weeks and that act causes the death of the female.
  53. What is second degree manslaughter?
    Reckless - Conscious disregard of a substantial risk, which causes the death of another person. Intoxication is not a defense.

    Abortional act - When a person commits an abortional act upon a female which causes her death, unless such act is justifiable by statute.

    Aiding in suicide - If the defendant used duress or deception on the victim, then the crime qualifies as second degree murder.
  54. What crimes can a person be found guilty of if he causes injury or death while driving while intoxicated?
    Vehicular assault of vehicular homicide.
  55. Define "driving while intoxicated"?
    • Driving while imapired by alcohol;
    • With a blood alcohol concentration ("BAC") of .08 (or with a BAC of .18 for certain crimes);
    • While intoxicated;
    • While impaired by drugs; or
    • While imapired by a combination of drugs and alcohol.
  56. Can refusal to submit to a chemical test result in a driver's license suspension?
    Yes.
  57. Can persons under age 21 drive after drinking any quantity of alcohol?
    No.
  58. What is vehicular assault in the second degree?
    A person who operates a motor vehicle in violation of the DWI laws and as a result operates the motor vehicle in a manner that causes a serious physical injury to another.

    NOTE: If it is established that the driver caused the serious physical injury while unlawfully intoxicated or imapired by alcohol or a drug, there is a rebuttable presumption that the person did so as a result of being intoxicated or impaired.
  59. What is vehicular assault in the first degree?
    The requirements for vehicular assault in the second degree, and in addition the person must (i) have a BAC of .18 or more; (ii) know or have reason to know that his license was suspended or revoked for a dWI offense or refusal to submit to a chemical test (suspensions or revocations in other jurisdictions count); (iii) have had a previous DWI conviction within the past 10 years (convictions in other states count); (iv) cause serious physical injury to more than one person; (v) have been previously convicted of a vehicular assault or some other sort of vehicular homicide (convictions in other states count); or (vi) commits such crime while operating a motor vehicle while a child who is 15 years of age or younger is a passenger, and the child suffers a seriouis injury.

    NOTE: If it is established that the driver caused the serious physical injury while unlawfully intoxicated or imapired by alcohol or a drug, there is a rebuttable presumption that the person did so as a result of being intoxicated or impaired.
  60. What is aggravated vehicular assault?
    The elements for aggravated vehicular assault are the same as those for vehicular assault in the first degree, except that it must also be shown that the person drove recklessly.

    NOTE: If it is established that the driver caused the serious physical injury while unlawfully intoxicated or imapired by alcohol or a drug, there is a rebuttable presumption that the person did so as a result of being intoxicated or impaired.
  61. What are vehicular manslaughter and homiide?
    The elements for vehicular manslaughter in the second and first degree and for aggravated vehicular homicide generally correspond to the parallel provisions in the vehicular assault statutes, except that death must result (e.g., vehicular manslaughter in the first degree occurs when the victim is killed and one of the six aggravating circumstances exist). Similar rebuttable presumptions exist.

    Vehicular manslaughter in the first degree can occur when the death of more than one person is caused. However, aggravated vehicular manslaughter can occur when the death of one person and the serious physical injury of another are caused. Two deaths, although sufficient to constitute aggravated vehicular homicide if the other conditions are met, are not necessarily required.
  62. What is criminally negligent homicide?
    Where one causes the death of another due to criminal negligence.

    Failure to perceive a risk is not enough, by itself, for conviction; the defendant's conduct also must have been culpable or morally blameworthy and the death-producing event forseeable. To be "morally blameworthy," the conduct must constitute a gross deviation from the ordinary standard of care held by those who share the community's general sense of right and wrong. Simple speeding alone is usually not sufficient for conviction.
  63. What is first degree kidnapping?
    • When a person abducts another (i) with the intent to compel a third person to pay ransom or to act or refrain from acting; or
    • He restrains the victim for more than 12 hours with the intent to inflict physical injury or sexual violation or abuse, accomplish or advance a felony, terrorize the victim or a third person, or interfere with the performance of a governmental or political function; or
    • The victim dies during the abduction or before safe return. Death is presumed if the victim is under age 16 or incompetent and has not been seen or heard from and no reliable information indicates that the victim is alive. If the victim is over age 16, 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.
  64. Does first degree kidnapping qualify for first degree murder or felony murder?
    Yes.
  65. What is second degree kidnapping?
    Abducting someone.
  66. When is there an affirmative defense to kidnapping?
    When the victim was a relative and the defendant's sole purpose was to assume control of the victim.
  67. What is misdemeanor custodial interference?
    If a relative of a person under age 16 or an incompetent takes that person from her lawful custodian with the intent to wrongfully hold that person permanently or for a protracted period.
  68. What is felony custodial interference?
    If a person under age 16 or an incompetent is exposed to a risk that endangers her safety or materially impairs her health; or with the intent to permanently remove the victim from the state, the defendant removes the victim from the state.
  69. When is an affirmative defense to custodial interference available?
    If the crime is based on the "removal from the state provision" and the victim has been abandoned or the taking was to protect the victim from abuse or mistreatment.
  70. What is required for guilt of the crime of endangering the welfare of a child?
    • Knowingly acting in a manner that will likely physically, mentally, or morally injure the child (e.g., soliciting a child to commit a crime injures the child's morals);
    • Authorizes the child to engage in a dangerous occupation; or
    • Being legally charged with the care or custody of a child (here defined as a person younger than 18), fails to exercise reasonable diligence in control of the child to prevent her from becoming abused, neglected, a juvenile delinquent, or a person in need of supervision.
  71. What is an element of every sex offense?
    That the sexual act was committed without the consent of the victim. A person who is under age 17, mentally defective, mentally incapacitated, or physically helpless is deemed incapable of consenting.
  72. Does first degree rape or criminal sexual assault qualify for first degree murder or felony murder?
    Yes.
  73. Who is incapable of commiting to a sexual act?
    A person who is under age 17, mentally defective, mentally incapacitated, or physically helpless.
  74. Do marital and gender exemptions to rape exist?
    No, they have been stricken by statute.
  75. What is first degree rape or criminal sexual act?
    Committed when any person engages in sexual intercourse with another person: (i) who is less than 11 years old; (ii) who is physically helpless; (iii) by forcible compulsion; or (iv) who is less than 13 years old and the actor is age 18 or older.

    There is no defense of mistake as to the victim's age.
  76. Is there a defense of mistake as to the vicitm's age in a rape case?
    No.
  77. What is second degree rape or criminal sexual act?
    Occurs when a person age 18 or older has intercourse wiht another person less than age 15.
  78. What is third degree rape or criminal sexual assault?
    • Occurs when a person has sexual intercourse with a person who is incapable of consenting other than being less than 17 years old; or
    • A person age 21 or older has intercourse with someone less than age 17.
  79. What is sexual misconduct?
    Occurs when a person (i) has intercourse with another person without consent; (ii) engages in oral or anal sexual conduct with another person without the latter's sexual consent; or (iii) engages in sexual conduct with an animal or a dead human body.
  80. Can a defendant 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?
    No.
  81. What corroborating evidence is required to convict a defendant 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 (i) establish at least an attempt to have intercourse, deviate intercourse, or sexual contact with the victim; and (ii) connect the defendant with the commission of the offense or attempted offense.

    However, by statute New York no longer requires corroboration in cases of forcible rape, criminal sexual act, or sexual abuse.
  82. What are the requirements of Megan's Law?
    Megan's Law requires sex offenders to register with the Division of Criminal Justice Services. The law authorizes the release of relevant information concerning the sex offender.
  83. What common law crimes does New York larceny incorporate?
    • Larceny by trespassory taking;
    • Larceny by trick (same definition as MS);
    • False pretenses (same definition as MS); and
    • Embezzlement (same definition as MS).
  84. By statute, which acts are larceny?
    • Acquiring property known to be lost or mislaid;
    • Issuing a bad check;
    • False promises;
    • Extortion (same definition as MS);
    • Embezzlement; and
    • Appropriating leased or rented items.
  85. Will a person usually be guilty of larceny if she converts goods of which she has lawful possession?
    Yes.
  86. How is larceny graded (degrees)?
    By the value of the property taken and in some instances by the manner in which it is acquired.
  87. What property must be taken to qualify as the Class A misdemeanor of petit larceny?
    Any property.
  88. What property must be taken to qualify as the Class E felony of grand larceny, fourth degree?
    • Property valued at over $1,000;
    • Public records;
    • Secret scientific material;
    • Property taken from the person of another but not robbery;
    • Property taken by extortion;
    • Credit or debt cards;
    • Firearms;
    • A motor vehicle with a value greater than $100; and
    • Property used for or kept at a plce or worship and valued at least $100.
  89. What property must be taken to qualify as the Class D felony of grand larceny, third degree?
    Property worth more than $3,000, or the property is an ATM or contents of an ATM.
  90. What property must be taken to qualify as the Class C felony of grand larceny, second degree?
    Property worth more than $50,000 or extortion by fear of: (i) physical injury; (ii) damage to property, or (iii) the defendnat's abuse of her powers as a public servant.
  91. What property must be taken to qualify as the Class B felony of grand larceny, first degree?
    Property worth more than $1 million.
  92. What is property worth if its value cannot satisfactorily be ascertained?
    Less than $250.
  93. What is the value of property?
    Market value at the time of the taking. Retail price governs if the object is stolen from a store.
  94. Can civil liability be imposed for larceny?
    Civil liability is imposed on any adult or emancipated minor, and parents or legal guardians of a minor, who commits larceny against the property of a merchant. The obligation is to repay the full retail value of the merchandise if it is not recovered in a merchantable condition, plus a penalty not to exceed $500.
  95. Is issuing a bad check a crime?
    Yes, it is a class B misdemeanor (false pretenses). If the check is used to obtain property, then it is a larceny.
  96. What are the necessary elements of issuing a bad check (false pretenses)?
    • A person as drawer or agent puts a check into circulation;
    • Knowing that he does not have sufficient funds to cover it;
    • With the intent or belief that payment will be refused by the drawee; and
    • Payment is refused by the drawee.
  97. When are knowledge and intent of the drawer to issue a bad check (false pretenses) presumed?
    • No account exists with the drawee; or
    • He has insufficient funds on account at the time of issuance and presentation. (Check must be presented within 30 days of issuance.)
  98. When does an affirmative defense exist to issuing a bad check (false pretenses)?
    • The defendant or another makes good the check within 10 days of it being dishonored; or
    • The defendant was an employee acting at the direction of his employer and not for his own benefit.
  99. Does any degree of robbery qualify for first degree murder or felony murder?
    Yes.
  100. What other offenses does robbery involve?
    Larceny plus either criminal mischief, attempted assault, or assault.
  101. What property must be taken for robbery to apply?
    The kind subject to larceny, including real property.
  102. Does the taking of property need to be in the presence of a third party to qualify as robbery?
    No, e.g., assaulting another some distance from the property and then taking the property is robbery.
  103. What are the elements of first degree robbery?
    • The defendant causes a nonparticipant serious physical injury; or
    • THe defendant is armed or threatens use of a dangerous instrument or displays what appears to be a firearm. The victim must reasonably perceive from the defendant's actions that a gun is present; words alone are not enough.
  104. When does an affirmative defense to first degree robbery exist?
    Wherre the alleged firearm displayed is not loaded. This fact reduces the crime to second degree robbery.
  105. What are the elements of second degree robbery?
    • The defendant is aided by another who is actually present;
    • The defendant or another participant physically inujures a non-participant; or
    • There is a threat, whatever its nature, of immediate use of physical force (e.g., display of a weapon);
    • NOTE: "Carjacking" (forcibly taking a car) is second degree robbery.
  106. What are the elements of third degree robbery?
    Forcibly stealing property.
  107. Can a defendant be convicted of attempted criminal possession of stolen property?
    Yes. Impossibility due to attendant circumstnaces is not a defense (e.g., stealing stolen property = criminal possession of stolen property).
  108. What are the presumptions set by New York statute with regard to criminal possession of stolen property?
    • Knowingly possessing stolen property raises a presumption that the defendant has the intent to benefit himself or another.
    • A pawnbroker or other dealer in property is presumed to know that property is stolen if he fails to make a reasonable inquiry of the person from whom he obtained the property.
  109. Is corroboration of a witness's tesitmony necessary for a receipt of stolen property case?
    No, unless the witness and defendant were accomplices.
  110. Do possession and larceny merge?
    No.
  111. What is criminal possession of a forged instrument?
    The use or possession for use of a forged instrument with fraudulent intent.

    NOTE: This crime does not merge with forgery.
  112. What is criminal mischief?
    Generally, a person commits "criminal mischief" when, without a reasonable belief int he right to do so, he recklessly or intentionally damages the property of another. "Property of another" includes property jointly owned by the person and another.
  113. What are the elements of fourth degree criminal mischief?
    • The intentional damage of another's property;
    • The reckless damage (exceeding $250) of another's property;
    • The participation in the destruction of an abandoned building; or
    • The intentional disabling of any telephone device while it is being used to call for help.
  114. What are the elements of third degree criminal mischief?
    • The intentional damage (exceeding $250) of another's property; or
    • Breaking into another's motor vehicle with the intent to steal property, but the defendant must have three or more previous convictions for criminal mischief in the previous 10 years.
  115. What are the elements of second degree criminal mischief?
    The intentional damage (exceeding $1,500) of another's property.
  116. What are the elements of first degree criminal mischief?
    The intentional damage of another's property by means of explosion.
  117. What is criminal tampering?
    Without reasonable belief in a right to do so, a person tampers with another's property with the intent to cause substantial inconvenience, or regardless of intent, tampers wiht the property of a utility company.
  118. Does any degree of burglary qualify for felony murder?
    Yes.

    First or second degree burglary qualify for first-degree murder.
  119. What are New York distinctions from common law burglary?
    • Includes remaining unlawfully, as well as entry;
    • Incorporates the element of breaking into entering;
    • Does int olimit the "intent" to the commission of a felony, but embraces an intent to commit any crime;
    • Except as an element for grading purposes, does not require a building to be a dwelling; and
    • Does not require the act to be committed at night.
  120. What are the elements of third degree burglary?
    • Knowingly entering or remaining unlawfully
    • In a building; and
    • With the intent to commit a crime therein.
  121. What factors aggravate third degree burglary to second degree burglary?
    • The building being a dwelling;
    • The defendant injuring a nonparticipant; or
    • The defendant being armed.
  122. What is first degree burglary?
    Burglary of a dwelling (including motor vehicles) with any of the aggrvating factors of second degree burglary.

    If display of a firearm is part of the charge, the defendant has an affirmative defense if he can show that the instrument was not a weapon or that the weapon was not loaded.
  123. Does any degree of arson qualify for felony murder?
    Yes.
  124. What are the elements of fourth degree arson?
    • Recklessly damaging a building or motor vehicle,
    • By intentionally starting a fire or causing an explosion.
  125. When does an affirmative defense to fourth degree arson exist?
    If the defendant has sole possessory or proprietary interest in the property.
  126. What are the elements of third degree arson?
    • Intentionally damaging a building or motor vehicle,
    • By intentionally starting a fire or causing an explosion.
  127. When does an affirmative defense to third degree arson exist?
    • All persons with possessory or proprietary interests in the property consented;
    • The defendat's intent was to cause damage for a lawful purpose; and
    • The defendant had no reasonable ground to fear for the safety of another person or to fear damage to another building or motor vehicle.
  128. What are the elements of second degree arson?
    • Intentionally damaging a building or motor vehicle,
    • By intentionally starting a fire,
    • With knowledge that a nonparticipant is present in the building or motor vehicle or circumstnaces are such taht a person's presence therein is a reasonable possibility. The nonparticipant need not be injured.
  129. What are the elements of first degree arson?
    Same circumstances as second degree arson except the defendant causes an explosion or a fire by incendiary or explosive device.
  130. What are the elements of third degree criminal trespass?
    Knowingly enters or remains unlawfully in a building or upon real estate which is fenced or otherwise enclosed in a manner designed to exclude intruders.
  131. What are the elements of second degree criminal trespass?
    Knowingly enters or remains unlawfully in a dwelling.
  132. What are the elements of first degree criminal trespass?
    Knowingly enters or remains unlawfully in a building and possesses or knows that another participant has an explosive or deadly weapon.

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