Criminal Law

Question 0

Misdemeanor [MBE]. A misdemeanor is a crime punishable by imprisonment for less than one year or Biafine only. At common-law, crimes not considered felonies were deemed misdemeanors.

Answer 0

Misdemeanor [New York]. Under New York Penal Law section 10, a misdemeanor is it an offense other then a traffic violation that is punishable by 15 days to one year. Those offenses punishable by less than 15 days or only a fine, other than traffic violations, are violation

Question 1

Felony [MBE]. A felony is a crime punishable by death or by imprisonment for more than one year.

Answer 1

Felony [New York]. A felony is an offense for which a sentence to a term of imprisonment in excess of one year may be imposed.

Question 2

Actus Reus [MBE]. Actus reus may be met by either: (1) a voluntary act that causes an unlawful result; or (2) an omission to act where the defendant is under a legal duty to act.

Answer 2

Under NYPL, actus reus maybe satisfied by possession of any item in addition to the traditional forms of actus reus.

Question 3

Mens rea [MBE]. In order to be guilty, a certain mental state must exist after the crime. Mental states are typically classified as intentionally, knowingly, purposely, willfully, and wantonly.

Answer 3

NYPL 15.05 uses for mental states: intentionally, knowingly, recklessly, and criminal negligence. The first two, intentionally and knowingly, mirror the MBE.

Question 4

Mens Rea > Recklessly > New York

Answer 4

Recklessly refers to the awareness and conches disregard of a substantial and unjustifiable risk that results will occur and must be a gross deviation from the reasonable person standard of conduct

Question 5

Mens Rea > Criminal Negligence > New York

Answer 5

Criminal negligence is the failure to perceive a substantial and unjustifiable risk. The failure must be a gross deviation from the reasonable person standard of conduct.

Question 6

Criminal homicide [MBE]. Homicide is classified as murder and first-degree, murder in the second degree, voluntary manslaughter, and involuntary manslaughter.

Answer 6

Criminal Homicide [NY]. New York has five basic levels of homicide. There can be aggravated forms when certain circumstances exist.

Question 7

Criminally Negligent Homicide > New York Distinction

Answer 7

Criminally negligent homicide causes of death through criminal negligence. It is aggravated when the death is that of a police or peace officer working in the course of his duties and the actor should’ve known the victim was an officer.

Question 8

Vehicular Manslaughter > Second-degree

Answer 8

A person is guilty in the second degree when: [1-4] and this operation causes the death of another person.

(1) he causes the death of another person by the operation of a vehicle while impaired; or
(2) by operating a vessel in violation of the navigation law, or
(3) a large vehicle containing flammable materials, or
(4) a snowmobile while intoxicated or impaired

Question 9

Vehicular Manslaughter > First-degree

Answer 9

A person is guilty of the regular’s manslaughter in the first degree when he commits the crime of a killer manslaughter and a second-degree but operation of the vehicle while impaired and while the defendants license is suspended or revoked on the grounds of refusal to submit to a chemical test or four conviction of driving under the influence of drugs or alcohol or causes the death of more than one person or has previously been convicted of a crime under this article of the penal Law and New York other state

Question 10

Manslaughter > Second-degree

Answer 10

One who commits manslaughter and second-degree recklessly causes the death of another, commits an act of a legal abortion resulting in death, or intentionally causes or aids another to commit suicide. It becomes aggravated when the death is that of a police or peace officer working in the course of his duties and the afternoon or should have known the victim was an officer.

Question 11

Manslaughter > First Degree

Answer 11

Manslaughter in the first degree is from the defendant, while intending to cause serious physical injury, actually causes death, causes devil acting under extreme emotional disturbance, commits an act of abortion upon a female after 24 weeks of pregnancy and not within any of the allowable abortion exceptions under which causes her death, or being over 18 years of age, commits an act intended to cause physical injury to a person under 11 years of age creating a grave risk of serious physical injury and resulting in death.

It becomes aggravated when the death is that the police or peace officer working in the course of his duties and the afternoon or should have known that the victim was an officer, or an officer is killed with intent while the defendant is under extreme emotional disturbance.

Question 12

Murder > Second Degree

Answer 12

Murder and second-degree is when the actor:
(1) intent to cause death, does in fact cause the death of the target or another under circumstances evincing to depraved indifference to human life; (2) engages in conduct that creates a grave risk of death and does in fact cause of death; (3) commits felony murder; or (4) being over 18 years of age, engages in conduct that creates a grave risk of serious physical injury to someone under the age 11 and in fact causes death.

It becomes aggravated when the death is that of a police officer or peace officer, or employee of a correctional institution working in the course of his duties and afternoon or should have known that the victim was an officer or correctional employee. The actor must also be 18 years of age at the time of the offense.

Question 13

Assault > First Degree

Answer 13

Under New York penal law, assault in the first degree is where the defendant has intent to cause serious physical injury to a person and causes injury to another using a dangerous or deadly weapon. This must be proven beyond a reasonable doubt.

A battery into port is intentional act causing harmful or offensive contact to another. In New York issues decided in a criminal proceeding have a preclusive effect in a subsequent civil action if: (

1) there is an identical issue decided in the criminal action and is decisive of the present action; and
(2) the party against whom preclusion is being sought had full and fair opportunity to contest the prior determination.

Question 14

Hot Topics

Answer 14

Topics: homicide burglary arson conspiracy assault

Themes: relaxed common law rules (burglary, no night requirement)

Factors: Age, weapon, who is the victim/defendant?

Question 15

New York > Mental States > Intentionally

Answer 15

Conscious desire to act in a certain way or to cause a certain result.

More than knowing, with the intent to do a certain thing.

Mirrors the MBE Rule

Question 16

New York > Mental States > Knowingly

Answer 16

Conscious and aware of the nature of actions.

Knowing, but lacks intent

Mirrors MBE

Question 17

New York > Mental States > Recklessly

Answer 17

Conscious disregard for the truth

Question 18

New York > Mental States > Criminal Negligence

Answer 18

Failure to perceive; gross deviation from reasonable person; compare to civil negligence

Question 19

Larceny

Answer 19

Under New York penal Law, “larceny” includes the intent to deprive or to appropriate the property to the perpetrators use or third person see us. It includes: wrongful taking, obtaining, or withholding of the property, and specifically includes a crimes, including: common-law larceny; larceny by trick; embezzlement; false pretenses; acquiring loss property; issuing bad checks; false promises; and extortion.

Question 20

Issuing a bad check

Answer 20

In New York, person is guilty dishing a bad check if he either: issues a check or passes another’s check that is not post-dates, knowing that he has insufficient funds to cover the check and believing or intending the payment will be refused, and payment is refused.

Question 21

Robbery > First Degree

Answer 21

In New York, robbery in the first degree is one the defendant or another participant forcibly steals property and one before things occurs:

(1) causes serious physical injury to any person who is not a participant in the crime;
(2) is armed with a deadly weapon;
(3) uses or threatens the immediate use of a dangerous instrument; or
(4) displays what appears to be a firearm.

Question 22

Robbery > Second Degree

Answer 22

In New York, robbery in the second-degree is one the defendant forcibly steals property and does one of two things:

(1) is aided by another person actually present at the crime; or
(2) he or another participant causes physical injury to a nonparticipant or displays what appears to be a firearm.

Question 23

Criminal Possession of Stolen Property

Answer 23

New York, possession of stolen property includes the same activities defined as receiving stolen property under the MBE.

Question 24

Burglary > In General

Answer 24

Under New York penal law, burglary is defined as knowingly entering or remaining in a building with the intent to commit a crime there in.

New York follows the modern trend that expands burglary to any entering [not only at night] and does not limit it to the entering into the dwelling house.

The entry into any building will qualify as burglary

Question 25

Arson > First Degree

Answer 25

In New York, a person is guilty of arson in the first degree when he knows of the presence or the reasonable possibility of the presence of the nonparticipant in the building or vehicle and he intentionally damages a building or vehicle by causing an explosion or a fire and when such explosion or fire causes that:

(1) is caused by an incendiary device that is propelled, thrown or placed inside or near a building or motor vehicle;
(2) is caused by an explosive;
(3) causes serious physical injury to another person other than a participant; or
(4) was caused with the expectation or receipt of financial advantage by the actor.

Question 26

Burglary > First Degree

Answer 26

In New York, the person commits a burglary and first-degree when he knowingly enters or remains unlawfully in a dwelling with intent to commit a crime. And, in affecting entry or while in the dwelling or immediate flight therefrom, she or another participant:

(1) is armed with explosives or a deadly weapon;
(2) causes injury to a nonparticipant;
(3) uses or threatens the immediate use of a dangerous instrument; or
(4) displays what appears to be a firearm.

Question 27

Burglary > Third Degree

Answer 27

In New York, the person commits a burglary in the third degree when he knowingly enters or remains unlawfully in a building with the intent to commit a crime therein.

Question 28

Arson > Second Degree

Answer 28

In New York, the person commits arson in the second degree when he:

(1) Intentionally damages the building or motor vehicle by starting a fire;
(2) A nonparticipant is in the building or motor vehicle at that time; and
(3) the defendant knows.

Question 29

Arson > Third Degree

Answer 29

Person commits arson the third degree when he intentionally damages the building a motor vehicle by starting a fire or causing an explosion.

AFFIRMATIVE DEFENSE

It is an affirmative defense at the defendant alone had a possessory or proprietary interest., Or that all others interested had consented to his conduct, that is so intent was to destroy or damage to property for a lawful purpose, and that he had no reasonable grounds to believe that his conduct might endanger the life, safety, or property of another.

Question 30

Arson > Fourth Degree

Answer 30

Person commits arson the fourth degree when he recklessly damages the building on motor vehicle by intentionally starting a fire or causing an explosion.

AFFIRMATIVE DEFENSE

is an affirmative defense that no other person had a possessory or proprietary interest therein.

Question 31

Arson > Fifth Degree

Answer 31

A person is guilty of arson in the fifth degree when he or she intentionally damages property of another without consent of the owner by intentionally starting a fire causing an explosion.

Question 32

Manslaughter > First Degree

Answer 32

Manslaughter in the first degree occurs when Defendant:

(1) while intending to cause serious physical injury actually causes death;
(2) causes death while acting under extreme emotional disturbance (passion or provocation);
(3) commits an act of abortion upon a female after 24 weeks of pregnancy and not within any of the allowable abortion infections which causes her death; or
(4) being over 18 years of age, commits an act intended to cause physical injury to a person under 11 years of age creating a grave risk of serious physical injury and resulting in death.

Question 33

Manslaughter > Second Degree

Answer 33

In New York, one commits manslaughter in the second degree when he or she:

(1) Recklessly causes the death of another;
(2) commits an act of legal abortion resulting in death; or
(3) intentionally causes or is another to commit suicide.

Question 34

Menacing

Answer 34

Occurs when a person puts someone in fear of an immediate battery; equivalent to common-law assault.

Question 35

Assault

Answer 35

In New York, and assault occurs when the actor:

(1) with intent to cause physical injury to another person, causes such injury to the other person or to a third person;
(2) recklessly causes physical injury to another person; or
(3) with criminal negligence, causes physical injury to another person by means of a deadly weapon or a dangerous instrument.

Question 36

Assault > First Degree

Answer 36

In New York, first-degree assault is defined as:

(1) an intentional infliction of serious injury by means of a deadly weapon or dangerous instrument;
(2) intentional infliction of serious injury resulting from intent to disfigure or disable;
(3) An intentional infliction of serious injury resulting from highly reckless conduct; or
(4) unintentional infliction of serious injury resulting from the commission of any felony.

Question 37

Insanity

Answer 37

New York has codified a modified M’Naghten test. Insanity is proved when:

(1) the defendant has a mental disease, defect, or infirmity, and because of this condition, the defendant did not know what he is doing or its consequences; or
(2) although he knew what he was doing, he did not know it was wrong.

Question 38

Necessity Defense

Answer 38

Under New York Penal Law, the necessity defense is defined as justification.

Question 39

Defense > Duress

Answer 39

New York Penal Law allows the duress defense where there is a threat of imminent unlawful physical force that a person of reasonable firmness would be unable to resist.

Duress is available as a defense to all crimes, including homicide.

Question 40

Entrapment

Answer 40

Entrapment is an affirmative defense that the defendant engaged in the proscribed to conduct because he was actively induced or encouraged to do so by a public service seeking to obtain evidence against him for purpose of criminal prosecution, and the methods used to obtain such evidence for such as to create a substantial risk that the offense would be committed by a person not otherwise disposed to commit it.

Conduct merely affording a person opportunity to commit an offense does not constitute entrapment

Question 41

Prior bad acts| evidence of uncharged crimes

Answer 41

In New York, evidence Of uncharged crimes or prior bad acts may not be admitted to demonstrate the defendants criminal propensities. Generally, evidence of uncharged crimes or prior bad acts may or may not be admitted to demonstrate the defendant canal propensities. However, such evidence is admissible to rebut an entrapment defense.

Question 42

Defense > Infancy

Answer 42

In New York, generally, a person under 16 may raise the defense of infancy.

However, that defense cannot be raised by:

(1) persons aged 13, 14, or 15 when charged with murder in the second degree, or
(2) by persons aged 14 or 15 when charged with violent felonies.

Question 43

Prosecution of Juveniles > Murder Second-degree & violent crimes

Answer 43

Individual under the age of 16 maybe considered really responsible and the presumption is that he will be tried in the adult court system as a juvenile offender. These cases, however, maybe removed to Family Court and the child would then be tried as a juvenile delinquent on those “designated felonies” which carry alternate sentencing guidelines under the Family Court Act.

Question 44

Prosecution of juveniles > 16 - 19 years of age > no prior felony convictions

Answer 44

An individual 16 or older younger than 19 with no prior felony convictions maybe sentence as a youthful offender and the criminal courts. Thus, the individuals records will not be treated as criminal convictions for purposes of public appointment and licensed professions.

Question 45

Mistake of Fact

Answer 45

New York penal law expands the definition of mistake of fact to those situations where the statute specifically allows for the mistake as a defense or where the mistake would support the defense of justification.

Question 46

Conspiracy

Answer 46

In New York, a conspiracy is formed only when one conspirator has committed an overt act in furtherance of the conspiracy.

Question 47

Conspiracy > Unrecognized Defense

Answer 47

NER, it is not defense to conspiracy that one or more of the defendants co-conspirators cannot be found guilty based on that co-conspirators criminal irresponsibility, legal incapacity or exemption, unawareness of the criminal nature of conspiracy or underlying conduct, or other factors precluding the mental state required for the crime.

Question 48

Criminal Conspiracy

Answer 48

There are 6° of criminal conspiracy New York, based upon the seriousness of the underlying offense and the age of each co-conspirator.

First degree; conduct to be performed is a class a felony, defendant is over 18, and co-conspirator is under 16. Second grade: conduct to be performed is a class a felony. Third degree: conduct to be performed is a class B or class C felony, defendant is over 18, and co-conspirator is under 16. Fourth degree: conduct to be performed is a class B or C felony or a felony where defendant is over 18 and co-conspirator is under 16 or a felony a money laundering and third-degree. This degree: conduct to be performed is a felony; for a crime where defendant is over 18 and co-conspirator is under 16. Sixth Degree: conduct to be performed as a crime.

Question 49

Criminal Conspiracy > Affirmative Defense

Answer 49

The prosecution for conspiracy for a crime that actually committed in New York, it is an affirmative defense that the defendant voluntarily and completely renounced the crime and prevented it’s commission.

Question 50

Criminal possession of a weapon > first degree

Answer 50

In New York, a person is guilty of criminal possession of a weapon in the first degree when such person possesses an explosive substance with intent to use the same unlawfully against the person or property of another possesses 10 or more firearms.

Question 51

Criminal possession of a weapon > second degree

Answer 51

In New York, a person is guilty of criminal possession of a weapon in the second degree when he possesses a machine gun, loaded firearm, or disguise gun, with intend to use the weapon unlawfully against another or such person possesses five or more firearms.

Question 52

Sandoval hearing

Answer 52

New York, before admitting testimony in prior convictions, the court holds the Sandoval hearing during which it weighs the probative value of the conviction on the issue of veracity against the danger of unfair prejudice. A Sandoval hearing is designed to let the accused make an informed choice whether he should take the stand testifying. I Sandoval rolling can apply to cross-examination of defense witnesses as well.

Question 53

Larceny

Answer 53

In New York, one commits larceny by exercising control over property of another that he knows to have been lost, mislead, or delivered under a mistake, without taking reasonable measures to return the property to the owner.

Question 54

Larceny by false pretense

Answer 54

In New York, larceny by false pretense is the obtaining of property by false promise when, pursuant to a scheme to defraud, a person obtains property of another by an express or implied representation that he or third-party will in the future engage in particular conduct, which he does not intend to do or does not believe the third person intends to do.