NY Distinctions

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apgiering
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94918
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NY Distinctions
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2011-07-23 20:36:10
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NY Bar Exam
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NY Bar Exam
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  1. Does New York apply the common law Rule Against Perpetuities?
    Yes, tempered by a reform statute.
  2. Does New York apply the "wait and see" theory?
    Only to powers of appointment.
  3. How does the NY RAP reform legislation address the age contingency problem (where an estate would be invalid because it depends on a person attaining or failing to attain an age in excess of 21 years)?
    The age contingency is reduced in 21 years.
  4. How does the NY RAP reform legislation address the administrative contingency problem (where the duration or vesting of an estate is contingent upon the occurence of a specified event)?
    It is presumed that the creator of the estate intended the contingency to occur, if at all, within 21 years from the effective date of the instrument creating the estate.

    There is a presumption that the creator intended to create a valid interest.
  5. What is the New York Rule Against Suspension of Alienation?
    For a trust to be valid under the suspension rule, there must be persons in being who could join together in a coveyance of the full fee simple title within lives in being plus 21 years. Thus, all pieces of the fee simple title must be held by ascertainable persons in being within lives in being plus 21 years. [The NY Suspension Rule restricts duration of NY trusts to lives in being plus 21 years (unless income beneficiares are given power to transfer their interests - statutory spendthrift exception)].

    An interest can be valid under the suspension rule and invalid under the Rule Against Perpetuities. Conversely, an interest can be invalid under the suspension rule and valid under the Rule Against Perpetuities.
  6. What is the Statutry Spendthrift Exception to the New York Rule Against Suspension of Alienation?
    If income beneficiaires of a trust are given the power to transfer their beneficial interests, the trust can last beyond lives in being plus 21 years provided all interests vest within that period.

    [This is an exception to the Suspension Rule, which restricts duration of NY trusts to lives in being plus 21 years.]
  7. Is the NY Rule Against Suspension of Alienation violated whenever there is a life estate in trust in an unborn person (or in a class that may possibly include unborn persons)?
    Yes.

    Trust income interest in an unborn person is subject to the statutory spendthrift rule and thus is subject to the restriction on transfer.
  8. What concurrent estate does a grant by anyone to a husband and wife result in?
    A tenancy by the entirety unless the grantor expressly provides otherwise.
  9. What concurrent estate does a grant by anyone to unmarried person whom the conveyance describes as "husband and wife" result in?
    A joint tenancy, unless a tenancy in common is xpressly declared.
  10. How can a tenancy by the entirety by terminated?
    Voluntary partition, conveyance signed by both parties, or divorce.

    Dissolution of marriage based on a five-year absence does not terminate a tenancy by the entirety. There is no serverance if one spouse mortgages her interest. The purchaser takes as a tenant in common, subject to the remaining tenant's right of survivorship, and obtains only the right to use or possess the premises.
  11. Can creditors reach a tenancy by the entirety?
    Only joint creditors.
  12. Can either spouse in a tenancy by the entirety sue for waste?
    Yes.
  13. Can a tenant renting a residence assign his lease without the written consent of the owner?
    No, unless provided for in the lease. The landlord may unconditionally withhold consent without cause. The tenant's sole remedy is to seek release from the lease. If the landlord's consent is reasonably withheld, there can be no assignment or release.
  14. Which tenants have the right to sublease?
    A tenant in a residential building having four or more units, suject to the written consent of the landlord. Consent cannot be unreasonably withheld, and, if so, will be deemed a consent (failure to respond to the tenant's notice will also constitute consent).
  15. What is the statute of limitations for adverse possession?
    10 years.

    A tenant in common in exclusive possession who has not ousted his nonpossessory co-tenant can claim title by adverse possession after 20 years.
  16. Who bears the risk of loss in a land sale contract?
    New York has adopted the Uniform Vendor and Purchaser Risk Act, which places the risk on the seller unless the buyer has either legal title or possession at the time of the loss.
  17. Is New York a notice or a race-notice jurisdiction?
    Race-notice.
  18. Is habit evidence admissible in a products liability case?
    Yes, to establish that the plaintiff used a product in a particular way.
  19. Can a withdrawn guilty plea be used as an admission?
    Yes, in a subsequent civil proceeding arising out of the same facts.
  20. Can a character witness testify in criminal cases about the defendant's reputation in the community?
    Yes, but the witness cannot give opinion testimony, and can only testify to those traits that are relevant to the crime involved.
  21. When does New York allow the prosecution to introduce prior convictions to rebut defendant's character evidence?
    When they adversely affect the character trait in issue.
  22. In a sex offense case, what evidence can the defendant introduce relating to the victim's sexual conduct?
    The victim's conviction for prostitution within three years prior to the sex offense that is the subject of the prosecution.
  23. Can a child under age nine or a person who cannot understand the nature of the oath due to mental defect testify in a criminal case without being sworn?
    Yes, provided that the child or mental incompetent has sufficient intelligence to justify reception of the evidence.

    NOTE: Convictions cannot be had upon such unsworn testimony alone.
  24. Does New York apply general provisions of the Dead Man Act?
    Yes, in civil cases only. New York extends coverage to incompetents.
  25. Is a survivor competent to testify as to facts of negligence or contributory negligence involved in an accident that arose out of the operation or ownership of a mtoor vehicle, aircraft, or vessel?
    Yes. This is so even thoug one or more of the parties is the representative of adeceased or mentally ill person (e.g., the defendant in a wrongful death action may testify that the decedent, not the defendant, was driving at the time of the accident).
  26. Does an admission by the witness on cross-examination taht he has been convicted preclude the cross-examiner from questioning the witness further to ascertain the criminal act that was the basis of the conviction?
    No.
  27. What specific instances of misconduct can be used to impeach a witness's credibility?
    New York adopts a broader standard and allows inquiry into immoral, vicious, or cirminal acts that affect credibility.
  28. Are prior inconsistent statements admissible in civil and criminal cases to impeach a witness's testimony?
    Yes, if they are made in writing and signed or under oath.
  29. Are prior inconsistent statements admissible as substantive evidence in criminal case?
    No.

    Limited authority indicates that in civil cases, prior inconsistent statements are admissible as substantive evidence in establishing a party's case-in-chief.
  30. Are admissions by a party-opponent considered nonhearsay?
    No. This is the FRE rule.

    In New York, admissions by a party-opponent are an exception to the hearsay rule.
  31. When are dying declarations admissible?
    Only in a homicide case and only if they relate to the declarant's death.
  32. Are present sense impressions admissible as a hearsay exception?
    Yes, but corroboration is required.
  33. Are accident reports prepared in the regular course of business operations or practice admissible in New York under the business records exception to the hearsay rule?
    Yes, even if made in anticipation of future litigation.
  34. When is an offer irrevocable notwithstanding that it is not supported by consideration?
    If the ofer is in writing, signed by the offeror, and states that the offer is irrevocable, then it is not revocable for the time stated or for a reasonable time, even if the offer is not supported by consideration.

    NOTE: Under the UCC, there must be consideration for an offer to be irrevocable.
  35. When can a unilateral offer for performance be revoked?
    Until performance is completed.

    NOTE: Under the UCC, a unilateral offer cannot be revoked after part performance.
  36. When is "past" or "moral" consideration binding?
    • The promise is in writing;
    • The past consideration is expressly stated;
    • The past consideration can be proven; and
    • The writing is signed by the promisor.
  37. What additional contracts are also within the Statute of Frauds in New York?
    • A promise to pay a discharged debt;
    • An assignment of an insurance policy or a promise to name a beneficiary of such a policy; and
    • Contracts to pay a commission or finder's fee, unless an attorney, auctioneer, or licensed real estate broker is involved.
  38. What is the equal dignities rule?
    In a principal/agent relationship, when dealing with an "interest in land," the agent must be authorized in writing or the principal must ratify.
  39. When is consideration not required for a partial discharge by modification of contract?
    If the modification is in writing and signed by the party to be charged, or by his agent.
  40. When are gratuitous assignments irrevocable?
    If in writing and signed by the assignor.
  41. When is retreat not required before using deadly force in self-defense?
    • Cannot do so safely;
    • Is in his own dwelling;
    • Is a police officer; or
    • Is a person assisting a police officer.
  42. When are special damages required to prove a libel claim?
    Only when the statement at issue is defamatory only be extrinsic fact and not in one of the slander per se categories.
  43. When are speical damages required to prove a slander claim?
    Always, except when the statement at issue is defamatory on its face and in one of the slander per se categories.
  44. What is the duty of possessor to those on the premises with concern to a dangerous condition on the land?
    The plaintiff's legal status no longer determines the duty owed him. The single standard of reasonable care under the circumstances governs all injuries on the land. The plaintiff's status, while no longer determinative, remains relevant in connection with the forseeability of his presence and the amount and nature of precautions required to meet the standard of reasonable care under the circumstances.
  45. Does tort liability arise out of on-the-job accidents?
    Workers' compensation replaces any tort liability arising out of no-the-job accidents.
  46. What is the collateral source rule?
    In all actions for personal injury, property damage, or wrongful death, courts are required to reduce a successful plaintiff's damage award by the amount of any benefits that the plaintiff has received or will receive from collateral sources (including proceeds received from the plaintiff's own insurance policy).

    However, no reduction will be made for life insurance benefits, Social Security benefits, and other benefits for which a lien may be imposed against the plaintiff's award.

    NOTE: All damages in excess of the first $250,000 allocated for compensation for future pain and suffering must be reduced to the present day value by the court, and then paid out over 10 years or the length of the time determined by the juy, whichever is shorter.
  47. Can the plaintiff recover even if the plaintiff's culpable conduct exceeds the defendant's?
    Yes, New York is a pure comparative negligence state.

    However, one injured as a direct result of his own illegal conduct involving risk of physical harm may not recover for his injuries, notwithstanding the comparative fault statute.
  48. What are the provisions of New York's permissive use statute concerning the liability of an automobile owner for a driver?
    • The owner is not vicariously liable for intentionally tortious operation for the driver;
    • Registration is prima facie evidence of ownership--proof of ownership raises a rebuttable presumption that the driver used and operated the vehicle with the owner's consent and permission; and
    • It is not necessary that the person to whom the owner granted permission actually operated the vehicle (mere presence is sufficient).
  49. Are rental and leasing companies considered "owners" for the purposes of the "permissive use" statute?
    A fecently enacted federal state has preempted this New York law. Rental and leasing companies can only be held liable if there was negligence or criminal wrongdoing ont he part of the company.
  50. How are damages distributed when a cause of action owned by the decedent in his lifetime survives and the injury causes death?
    The damages recovered in the action are part of his estate and will be distributed according to his will or by intestacy. Damages are limited to those accruing before death (damages for the death itself are recovered in a wrongful death action). Because the decedent's debts must be paid, the damages are reachable by the decedent's creditors.
  51. What is the statute of limitations for a wrongful death action?
    Two years from time of death. The action usually is consolidated with the surviving action from the decedent's pre-death injuries.
  52. Who bears the burden of proof in a wrongful death action?
    The plaintiff, except as to the decedent's culpable conduct.
  53. Does the death of the beneficiary in a wrongful death action discharge the action?
    No, but pecuniary damages to the beneficiary are computed only up to the date of the beneficiary's death.
  54. Does New York recognize intra-family immunity?
    No. However, a parent does not owe a duty to his child to exerise due care in supervising the child's day-to-day activities; therefore, a child cannot sue his parents for negligent supervision.
  55. Can a child sue his parents for negligent supervision?
    No. A parent does not owe a duty to his child to exercise due care in supervising the child's day-to-day activities.
  56. Does New York recognize the good faith exception for defective search warrants?
    No.
  57. Does police pursuit constitute a seizure of the person?
    Yes.
  58. What is the sliding scale of police authority under the Fourth Amendment?
    Minimal Intrusion/Request for Information-Police can approach and request information except on "whim or caprice." Individual right not to respond and even to run away does not give police probable cause to arrest.

    Common Law Right to Inquire-Police have "founded suspicion that criminal activity is afoot." Can ask questions; detention must be short of seizuire. If individual gives explanations, police must release.

    Forcible Stop and Detention and Frisk-Police have "reasonable suspicion" that individual has committed or is committing a crime. Under the limited "plain feel" doctrine, if police reasonably believe they are in danger, they can frisk in order to see if the suspect is armed. They may make a warrantless seizure of anything reasonably believed to be a weapon that is found during such frisk (e.g., not drugs).

    Police Pursuit-Impedes the individual's freedom of movement, and so must be based on "reasonable suspicion" that a crime has been, is being, or is about to be committed.

    Automobile Stop-The NY Court of Appeals has specifically held that police can stop a moving vehicle for "inspection" if they have reaosn to believe there is a traffic violation based on their observation. A stop is also valid if it is made pursuant to a roadblock at which passing vehicles are stopped in a uniform and nondiscriminatory manner. If police have "founded suspicion" of criminal activity, they may perform a canine sniff of the vehicle's exterior. Occupants of a stopped car can be questioned, but the questioning cannot escalate to restraint without reasonable suspicion of criminal involvement. Occupants can be completely searched only if taken into custody.

    Arrest-Police have "probable cause" to believe individual has committed a crime.
  59. What must a search warrant application based on informer information demonstrate?
    (i) Veracity or reliability of the source of information; and (ii) The basis of the informant's knowledge.

    This is the Aguilar-Spinelli test. This is a more stringent standard than required by the U.S. Constitution.

    If the informer has not revealed the basis for his knowledge, probable cause for verification can arise only where the observation confirms sufficient details suggestive of or directly related to the criminal activity informed about.
  60. When can the officer search containers in the "wingspan" in the context of a search incident to arrest?
    If the officer suspects that the armed person may be armed.
  61. Once an occupant is removed from a car, can police remove closed containers or bags from the car to look for weapons other evidence as incidence of the arrest?
    No. The police may search the car only if they have a warrant or some other exception (e.g., the automobile exception).
  62. What are factors in determining the voluntariness of confessions under the Arthur-Hobson Rule?
    The length of interrogation and custody.
  63. What is the "indelible" right to counsel?
    New York affords greater protection to the defendant than does the U.S. Constitution.

    The indelible right to counsel attaches: (i) When the defendant is in custody, the police are engaging in "activity overwhelming to the layperson" and the defendant requests counsel; (ii) At arraingment; (iii) Upon the filing of an accusatory instrument; or (iv) When there has been any significant judicial activity.

    Waiver of the indelible right to counsel can only be made in the presence of counsel. (However, if the defendant is released and later arrested on unrelated charges, waiver can be made without the presence of counsel from prior charges.)
  64. Does a right to counsel exist at an investigatory lineup held prior to a formal prosecutorial action?
    No, except when (i) Police are aware that the defendant is represented by counsel on another charge; and (ii) The defendant explicitly requests his attorney.

    Police must then notify counsel and provide an opportunity for counsel to appear before they proceed with the lineup. If defense counsel contacts police to inform them of his intent to appear at lineup, counsel must be given reasonable opportunity to attend.
  65. If a criminal defendant is released and later arrested, can waiver of the rght to counsel be made without hte presence of counsel from prior charges?
    Yes, so long as the later arrest is for unrelated charges.
  66. Can a spontaneous statement made by a defendant without any inducement, provocation, or encouragement by the authorities be adoptted as substantive evidence?
    Yes, even if the statement was made in the absence of counsel. The statement must be "forced" upon the officer.

    NOTE: If the statement is not blurted out and therefore not admissible as a confession, it is still admissible for impeachment.
  67. When can the grand jury indict?
    When the evidence (i) Established all of the elements of the crime; (ii) Is legally sufficient to establish that the accused committed the offense; and (iii) Establishes reasonable cause to believe that the accused committed the crime.
  68. Does the defendant have to notify the prosecution if he is raising insanity as a defense?
    Yes, within 30 days from a "not guilty plea."
  69. Does the defendant have to notify the prosecution of his alibi defense?
    Within 20 days after arraignment, the prosecutor may serve the defendant with demand for the albili defense, and the defendant must reply within eight days.
  70. What is required for crimes to qualify as the "same offense" for purposes of double jeopardy?
    New York follows the transaction test. The defendant has to be charged with all offenses arising from any single transaction except when: (i) The offenses have substantially different elements; (ii) Each contains an element not in the other and is designed to prevent very different harms; (iii) One is criminal possession and the other is criminal use (other than sale); (iv) Each involves death, injury, loss, etc. to different victims; (v) One consists of violation of another jurisdiction's statute, which was terminated by court order in the other jurisdiction for lack of evidence as to an element not in the other New York Crime; or (vi) One offense is NY RICO and hte other is federal RICO.
  71. What are felonies in New York?
    Offenses for which death or a prison sentence of more than one year may be imposed.
  72. When is withdrawal an affirmative defense to accomplice liability for the substantive offense, other than an attempt?
    If the accomplice: (i) Voluntarily and completely renounces his criminal purpose; (ii) Withdraws prior to commissio nof the offense; and (iii) Makes a substnatial effort to prevent the crime.
  73. Can a person be convicted solely on the uncorrobrated testimony of the accomplice?
    No, except in police disciplinary hearings.
  74. When is withdrawal an affirmative defense to solicitation and conspiracy?
    If the defendant: (i) voluntarily and completely renounced; and (ii) prevented commission of the object crime. (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.)
  75. What are the degrees of criminal conspiracy in New York?
    • Sixth degree-Same as fifth degree solicitation;
    • Fifth degree-Same as fourth degree solicitaiton;
    • 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 person-The defendanti is over 18, the other person is under 16, and the conduct urged is a class B or C felony;
    • Second degree-Same as second degree solicitation;
    • First degree-Same as first degree solicitation.
  76. Can a single defendant be convicted of conspiracy in New York?
    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).
  77. Are defenses and afirmative defenses created by statute?
    Yes.
  78. Who bears the burden on defenses?
    Defenses must be disproved by the prosecution beyond a reasonable doubt.
  79. Who bears the burdens on affirmative defenses?
    Affirmative defenses must be raised and proved by the defendant by a preponderane of the evidence (e.g., insanity, extreme emotional disturbance, entrapment, and duress).
  80. What is the New York insanity (affirmative) defense?
    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 to an examination by the prosecution's psychiatrist on Fifth Amendment grounds.
  81. To what extent can a person use physical force on another to defend himself in New York?
    A person may use physical force on another to the extent he reasonably believes such force in necessary to defend himself or another from the use or imminent use of lawful 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.
  82. When can a person not use deadly force?
    If he can safely retreat.

    Retreat is not required if the person (i) Is in his dwelling and is not the initial aggressor; (ii) Is a peace officer or acting under a peace officer's director; (iii) Believes the other person is committing or attempting kidnapping, forcible rape, forcible criminal sexual act, or roberry; or (iv) Believes the other person is committing burglary.
  83. When is retreat before using deadly force not required in New York?

    When the person:
    • Is in his dwelling and is not the initial aggressor;
    • Is a peace officer or acting under a peace officer's director;
    • Believes the other person is committing or attempting kidnapping, forcible rape, forcible criminal sexual act, or roberry; or
    • Believes the other person is committing burglary.
  84. 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 New York and is equivalent to common law assault.
  85. What is the definition of intentional murder in New York?
    When a person, with the intent to cause the death of another, causes the death of such person or a third party (transferred intent).

    Two affirmative defenses can exculpate the defendant: (i) extreme emotional disturbance ("heat of passion"); and (ii) aiding a suicide. These defenses mitigate the crime so that the defendant may still be prosecuted for manslaughter.
  86. What affirmative defenses can mitigate intentional murder to manslaughter?
    • Extreme emotional disturbance ('heat of passion");
    • Aiding a suicide.
  87. What is highly reckless murder in New York?
    Demonstrating a depraved indifference to human life, a person recklessly engages in conduct that creates a grave risk of 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 ins involved.

    Highly reckless murder is a form of second degree murder.
  88. Does attempted reckless murder exist in New York?
    No, because no intent is involved, only recklessness.
  89. What is first degree murder in New York?
    Intentional muder with special circumstances.

    The defendant must be over 18 years of age 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 correctiosn employee, engaged in official duties at the time of the killing, and the defendant knew or reasonably should have known the victim was such;

    (ii) The 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.
  90. What are the three (3) forms of second degree murder in New York?
    • Intentional murder (other than first degree murder);
    • Highly reckless murder; and
    • Felony murder.
  91. What is second degree felony murder in New York?
    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.

    NOTE: If the defendant committed intentional murder and the felony was robbery, 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, the crime should be classified as first degree (felony) murder.
  92. Is felony murder conviction possible even if the underlying defendant 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.
  93. When does an accomplice have an affirmative defense to a felony murder charge?
    (i) He did not commit or aid in the commission of the homicidal act;

    (ii) He was not armed with a deadly weapon or substance;

    (iii) He had no reasonable grounds to believe others were armed with deadly weapons or substances; and

    (iv) He has no reason to believe any participant intended to engage in conduct likely to result in death.

    NOTE: The defendant is still responsible for the underlying felony. However, also examine each party's participation to ascertain whether he has a defense to the underlying felony.
  94. What are the three (3) kinds of first degree manslaughter in New York?
    • Intentionally causing serious bodily harm that results in death;
    • Extreme emotional disturbance (heat of passion);
    • Unjustifiable abortional act (female pregnant for more than 24 weeks, causes death of female).
  95. What are the three (3) kinds of second degree manslaughter in New York?
    • Reckless-Conscious disregard of a substantial ris, which causes the death of another person. (Intoxication is not a defense.);
    • Abortional act (if female is pregnant for more than 24 weeks, then first degree manslaughter);
    • Aiding in suicide (if duress or deception on the vicitm, then second degree murder).
  96. What is first degree kidnapping in New York?
    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 (ii) 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 perforamnce of a governmental or political function; or (iii) The victim dies during the abduction or before safe return. Death is presumed if the victim is under 16 or incompetent and has not been seen or heard from and no reliable information indicates that the victim is alive. If the victim is over 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.
  97. What is second degree kidnapping in New York?
    Abducting someone.
  98. What is first degree rape or criminal sexual act in New York?
    Committed when any person engages in sexual intercourse wiht 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.
  99. Is there a defense of mistake as to the victim's age in a first degree rape or criminal sexual assault case?
    No.
  100. Can the defendant be convicted solely on the testimony of the victim for any se crime, or attempt, where lack of consent is an element and such lack of consent results from mental defect or incapacity?
    No. Corroborating testimony must tend to (i) Establish at least an attempt to have intercourse, deviant 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 seual abuse.
  101. Which common law crimes against property are encompassed into New York larceny?
    • Larceny by trespassory taking;
    • Larceny by trick;
    • False pretenses;
    • Embezzlement.
  102. By statute, which specific acts are larceny?
    • Acquiring property known to be lost or mislaid;
    • Issuing a bad check;
    • False promise;
    • Extortion;
    • Embezzlement; and
    • Appropriating leased or rented items.
  103. What are the degrees of larceny in New York?
    Larceny is graded by the value of the property taken and in some instances by the manner in which it is acquired.

    Class A misdemeanor (petit larceny): Any property.

    • Class E felony (grand larceny, fourth degree):
    • (i) Property valued at over $1,000;
    • (ii) Public records;
    • (iii) Secret scientific material;
    • (iv) Propery taken from the person of another but not robbery;
    • (v) Propery taken by extortion;
    • (vi) Credit or debt cards;
    • (vii) Firearms;
    • (viii) A motor vehicle with a value greater than $100; and
    • (ix) Property used or kept at a place of worship and valued at least $100.

    Class D felony (grand larceny, third degree): Property with more than $3,000, or the property is an ATM or the contents of an ATM.

    Class C felony (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 defendant's abuse of her powers as a public servant.

    Class B larceny (grand larceny, first degree): Property worth more than $1 million.
  104. What are the crimes for issuing a bad check and obtaining property with a bad check?
    Issuing a bad check is a class B misdemeanor. If the check is used to obtain property, then it is larceny.
  105. What is first degree robbery in New York?
    • 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. Thevictim must reasonably perceive from the defendant's actions that a gun is present; words alone are not enough.
    • NOTE: An affirmative defense exists when the alleged firearm displayed is not loaded, but this fact only reduces the crime to second degree robbery.
  106. What affirmative defense reduces first degree robbery to second degree robbery?
    The alleged firearm dispalyed is not loaded.
  107. What is second degree robbery in New York?
    • The defendant is aided by another who is actually present;
    • The defendant or another participant physically injures 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.
  108. What is third degree robbery in New York?
    Forcibly stealing property.
  109. How is burglary in New York distinct from common law burglary?
    • Includes remaining unlawfully, as well as entry;
    • Incorporates the element of breaking into entering;
    • Does not limit the "intent" to the commission of a felony, but embraces an intent to commit any crime;
    • Except as to elements for grading purposes, does not require a building to be a dwelling; and
    • Does not require the act to be committed at night.
  110. What is third degree burglary in New York?
    • Knowingly entering or remaining unlawfully;
    • In a building; and
    • With the intent to commit a crime therein.
  111. What is second degree burglary in New York?
    Third degree burglary is aggravated to second degree by: (i) The building being a dwelling; (ii) The defendant injuring a nonparticipant; or (iii) The defendant being armed.
  112. What is first degree burglary in New York?
    Burglary of a dwelling (including motor vehicles) with any of the aggravating factors of second degree burglary (e.g., injuring a nonparticipant; or the defendant being armed).

    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.
  113. When does the defendant have an affirmative defense to first 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.
  114. What is third degree arson in New York?
    (i) Intentionally damaging a building or motor vehicle; (ii) By intentionally starting a fire or causing an explosion.

    An affirmative defense exists of (i) All persons with possessory or proprietary interests in the property consented; (ii) The defendant's intent was to cause damage for a lawful purpose; and (iii) The defendant had no reasonable ground to fear for the safety of another person or to fear damage to another building or motor vehicle.
  115. What is the affirmative defense to third degree arson?
    • All persons with possessory or proprietary interests in the property consented;
    • The defendant'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.
  116. What is second degree arson in New York?
    • 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 circumstances are such that a person's presence therein is a reasonable possibility. The nonparticipants need not be injured.

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