MBE NY Distinctions Barbri 2014 – Flashcards
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CRIMINAL LAW New York Distinctions
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Sources of Law (MBE)
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Common Law Statutory Model Penal Code
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Sources of Law (NY Essays)
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New York Penal Law
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Defenses (MBE)
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All must be proved beyond a reasonable doubt: 1. insanity 2. voluntary intoxication 3. infancy 4. mistake 5. self-defense 6. neccessity 7. duress 8. entrapment
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Defenses (NY Essays)
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New York divides its defenses into two types: 1. "Defenses" - Prosecution must disprove beyond a reasonable doubt 2. "Affirmative Defenses" - Defendant must prove by a preponderance of the evidence
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Common Law Mental States (MBE)
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1. Specific Intent - crime requires not just the desire to do the act but also the desire to achieve a specific result 2. Malice - when a D acts intentionally or with reckless disregard of an obvious or known risk 3. General Intent - D need only be generally aware of the factors constituting the crime, he need not intend a specific result 4. Strict Liability - when the crime simply requires doing the act; no mental state is needed
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New York Mental States (NY Essays)
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New York no longer uses common law mental states but rather those of the Model Penal Code: 1. Intent (MPC Purpose) 2. Knowledge 3. Reckless 4. Negligence 5. Strict Liability *many states have adopted the MPC mental states so they could show up on the MBE
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NY Mental States: Intent
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the D acts intentionally when it is his conscious desire to achieve a particular result ( its what the D wants to do)
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NY Mental States: Knowledge
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The defendant acts knowingly when he is aware of what he is doing. With respect to a result, the D acts knowingly when he is aware that it is practically certain that his conduct will cause that result
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NY Mental States: Recklessness
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the D acts recklessly when he is aware of a substantial and unjustifiable risk and consciously disregards that risk
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NY Mental States: Negligence
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the D acts negligently when he should have been aware of a substantial and unjustifiable risk
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NY Mental States: Strict Liability
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No mental state required (similar to the common law)
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Common Law Battery (MBE)
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the unlawful, application of force to another, resulting in either bodily injury or an offensive touching
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Common Law Assault (MBE)
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The intentional creation, other than by mere words, of a reasonable apprehension in the mind of the victim, of imminent bodily harm (a fake punch)
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Assault (NY Essays)
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Definition: intentionally causing physical injury to another person First Degree Assault - intentionally causing serious physical injury with a weapon Second Degree Assault - intentionally causing serious physical injury Third Degree Assault - intentionally causing non-serious physical injury
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More on Assault in NY (NY Essays)
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Battery is NOT a separate crime in NY All versions of assault in NY require injury (that is there is no "offensive touching" version of assault in NY as there is in common law Battery) Attempted assault in NY requires intent to assault
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Menacing (NY Essays)
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Merely creating a "reasonable apprehension" (without an intent to actually injure) is NOT assault in NY. It is a different crime called Menacing.
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Felony Murder (MBE)
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ANY killing caused during the commission of or attempt to commit a felony. D must be guilty of the underlying felony (if you have a defense to the felony you have a defense to felony murder) the felony must be inherently dangerous
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Felony Murder in NY (NY Essays)
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NY limits felony murder to certain felonies - BRAKES Burglary Robbery Arson Kidnapping Escape Sexual Assault
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Common Law Burglary (MBE)
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breaking and entering the dwelling of another at night with the intent to commit a felony inside
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Burglary in NY (NY Essays)
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Third Degree: entering or remaining, in a building, unlawfully, with the intent to commit a crime inside (any crime, not just felonies) [note: no requirements re breaking, dwelling, or nighttime] Second Degree: Third degree burglary plus one of the following (1) the building is a dwelling (2) a non participant is injured (3) the D carries a weapon First Degree: the D knows that he is burglarizing a dwelling, plus one of the following (1) a non participant is injured (2) the D carries a weapon [note: the addition of knowledge re the dwelling elements kicks it up from second to first]
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Common Law Arson
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the malicious burning of a building
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Arson in NY (NY Essays)
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Fourth Degree: reckless burning of a building Third Degree: intentional burning of a building Second Degree: third degree arson, when the D knows or should have known that someone was inside the building First Degree: second degree arson, plus an explosive or incendiary device
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NY Firearms Felonies (NY Essays)
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Criminal Possession of a Firearm - knowingly possessing any firearm Criminal Possession of a Weapon - knowingly possessing a loaded firearm either (1) outside one's home or place of business or (2) with the intent to use it unlawfully against another
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Receipt of Stolen Property (MBE)
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required acts: receiving possession and control of stolen personal property mental state: knowing that the property has been obtained criminally by another party AND with the intent to permanently deprive the owner of his interest in the property
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New York: Criminal Possession of Stolen Property
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The property must really be stolen at the time the defendant recieves it. Property that is recovered by the police and is being used in an undercover sting operation is not considered "stolen"
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Accomplice Liability (MBE)
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The accomplice is guilty of all crimes that he aids or encourages (just as if he did it), AND all other foreseeable crimes committed along with the aided crime mere presence at the scene of the crime does not make someone an accomplice; he or she must actively aid or encourage the principal mere knowledge of the crime does not make someone an accomplice, he must intend to aid or encourage the principal
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Accomplice Liability in NY (NY Essays)
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Like the common law, NY also requires intent for accomplice liability. However, mere knowledge can make someone guilty of the lesser crime of CRIMINAL FACILITATION
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Withdrawal (MBE)
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an accomplice can avoid criminal liability by withdrawing before the crime is committed. What he must do to withdraw depends on how he assisted the principal: encourager - an accomplice who only "encouraged" the principal may withdraw simply by repudiating the encouragement before the crime is committed. aider - an accomplice who actually helped the principal must either nuetralize the assistance or otherwise prevent the crime from happening (by notifying the authorities for example)
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Withdrawal in NY: Renunciation (NY Essays)
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Renunciation: (1) the accomplice must make a substantial effort to prevent the commission of the crime (2) Renunciation is an affirmative defense (burden on D)
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Accessory After the Fact (MBE)
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Common Law Approach: to commit the separate common law offense of being an "accessory after the fact" a defendant must (1) help a principal who has committed a felony (2) with the knowledge that the crime has been commited AND (3) with the intent to help the principal avoid arrest or conviction
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NY Statutory Approach to Accessory After the Fact (NY Essays)
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in many jurisdictions, accessories after the fact at common law now commit statutory crimes such as "obstruction of justice", "harboring a fugitive", or as in NEW YORK - "hindering prosecution"
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Can you have a one person conspiracy? (MBE)
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common law rule - NO, there must be at least 2 guilty minds, both of whom actually agree to accomplish the conspiracy's objectives (bilateral approach) related rule - if all other parties to the agreement are acquitted, the last remaining D cannot be convicted
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Can you have a one person conspiracy? (NY Essays)
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Yes. Under the "unilateral approach" of NY and the MPC, a D may be guilty of conspiracy even if the other parties are acquitted or were just pretending to agree.
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Wharton Rule (MBE and NY)
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when two or more people are necessary for the commission of the substantive offense, there is no conspiracy unless MORE parties participate in the agreement than are necessary for the crime NY follows the Wharton Rule
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Vicarious "Pinkerton" Liability (Conspiracy) (MBE)
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in addition to conspiracy, a D will be liable for other crimes committed by his co-conspirators, so long as those crimes: (1) were committed in furtherance of the conpsiracy's objective AND (2) were foreseeable
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Vicarious "Pinkerton" Liability (Conspiracy) (NY Essays)
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No vicarious liability for one who merely conspires and does not participate in a crime committed by a co-conspirator
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Solicitation, Conspiracy & Attempt in NY (NY Essays)
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Solicitation and Conspiracy: withdrawal is an affirmative defense if the defendant (a) completely and voluntarily renounces AND (b) prevents the commission of the underlying crime Attempt: abandonment is an affirmative defense if the defendant (a) completely and voluntarily renounces AND (b) as a result, does not commit the underlying crime
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Merger Rules for Incohate Offenses (MBE & NY)
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common law - Solicitation and Attempt merge with the completed crime, Conspiracy does not merge (MBE favorite) NY - solicitation does NOT merge
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Insanity (Affirmative Defense) (MBE)
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the first requirement for insanity defense is that the D must have a mental disease or defect. two major tests used to gauge whether a mental disease or defect renders a D legally insane: (1) M'Naghten Test - D must prove did not know conduct was wrong OR did not understand the nature of his conduct (2) MPC Test - D must establish that he lacked substantial capacity to either appreciate the criminality of his conduct OR confrom his conduct to the requirements of law
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Insanity in NY (NY Essays)
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Cognitive Test: D must prove that he or she lacked substantial capacity to know or appreciate either: (1) the nature and consequences of his conduct OR (2) that his conduct was wrong Notice: D must notify prosecutor of his intention to raise the insanity defense within 30 days of entering a "not guilty" plea
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Voluntary Intoxication (self induced) (MBE)
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*Commonly Tested on MBE* (1) can be a defense to specific intent crimes ONLY (2) CANNOT therefore be a defense to malice, general intent, or strict liability crimes (3) the defense of intoxication generally requires such severe "prostration of the faculties" that the D cannot form the requisite specific intent
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Voluntary Intoxication (NY Essays)
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(1) CAN be a defense to intent crimes and knowledge crimes, if the intoxication prevents the D from forming the required state of mind (2) CANNOT be a defense to crimes of recklessness, negligence or strict liability
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Mistake of Fact (MBE)
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a reasonable mistake of fact will be a defense to ANY crime, except a crime of strict liability an unreasonable mistake of fact will be a defense to ONLY specific intent crimes
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Mistake of Fact (NY Essays)
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In New York, a mistake of fact will be a defense if the mistake negates the required mental state. This means that: (a) for crimes of intent, knowledge or recklessness, ANY mistake of fact (even an unreasonable one) is usually a defense (b) for crimes of negligence, only a reasonable mistake of fact is a defense (c) for strict liability crimes, a mistake of fact is NEVER a defense, no matter how reasonable it is
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Mistake of Law (MBE & NY)
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Mistake of law is generally NOT a defense exception: if the statute specifically makes knowledge of the law an element of the crime (e.g. "selling phony Rolex watches knowing it is unlawful to do so")
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Use of Deadly Force in Self Defense (MBE)
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a D may use deadly force in self-defense if he is facing an imminent threat of death or serious bodily harm. a D may not use deadly force if he is the initial aggressor but the initial aggressor can regain his right to use deadly force in self defense if (a) he withdraws from the fight and communicates that withdrawal OR (b) the victim suddenly esalates a non-deadly fight into a deadly one
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Use of Deadly Force in Self Defense (NY Essays)
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In New York, the initial aggressor must withdrawal before using deadly force in self-defense, even if the other party suddenly escalates a non deadly fight into a deadly one
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Retreat Rule (MBE)
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a D is NOT required to retreat before using deadly force in self defense
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Retreat Rule (NY Essays)
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Retreat is required before using deadly force in self defense unless: (1) D cannot retreat in complete safety OR (2) D is in his home (the "castle exception")
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What happens if D is mistaken about the need to use unlawful force in self-defense?
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reasonable mistake - complete defense unreasonable mistake: NY/Majority Rule - no defense at all minority/MPC rule - mitigates murder to voluntary manslaughter but does not exonerate
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Resisting Arrest (MBE & NY)
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If the D knows or should reasonably know that the person performing the arrest is a police officer: (1) Majority Rule - if the arrest is unlawful, the D may use non-deadly force to resist the arresting officer (2) NY Rule - force may NOT be used to resist an arrest, even an unlawful one, unless the arresting officer uses excessive force
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Necessity (MBE & NY)
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Conduct that is otherwise criminal is justifiable if the defendant reasonably believes that the conduct was necessary to prevent a greater harm called "Justification" in New York
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Duress (MBE & NY)
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If the D was coerced to commit a crime a crime because of a threat, from another person, of imminent death or serious bodily injury to himself or a close family member, his conduct is excused MBE: Duress CANNOT be a defense to homicide NY - Duress is an affirmative defense to ALL crimes including homicide
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Entrapment (MBE & NY)
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*very narrow defense* If a D believes that the government unfairly tempted him to commit a crime, he may claim entrapment. To prevail on the defense, the D must prove that (1) the criminal design originated with the government AND (2) the D was not pre-disposed to commit the crime, which in practice is VERY hard to prove New York: Entrapment is an affirmative defense and the prosecution may introduce evidence of the D's past criminal acts in its direct case.
