Term
| Burden of proof for affirmative defenses |
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Definition
preponderance of the evidence
(as opposed to MS beyond a reasonable doubt) |
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Term
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Definition
INTENTIONALLY - D has conscious desire to acheive a particular result
KNOWINGLY - when D is aware of what he's doing and practically certain conduct will cause result
RECKLESS - when D is aware of substantial and unjustifiable risk and consciously disregards that risk
NEGLIGENTLY - D should have ben aware of substantial and unjustifiable risk
STRICT LIABILITY - no mental state required |
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Term
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Definition
3 factors that make more or less serious
1) quantity (for $ and drugs)
2) weapon
3) injury seriousness |
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Term
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Definition
INTENTIONALLY causing physical injury to another person
3d - nonserious injury
2d - serious injury
1d - serious injury + weapon
**NO BATTERY IN NY** |
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Term
| Felonies that qualify for felony murder |
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Definition
BRAKES
Burglary, robbery, arson, kidnap, escape, sexual assault |
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Term
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Definition
1d murder - if INTENTIONAL killing during felony
2d murder - if UNINTENTIONAL killing during felony |
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Term
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Definition
(affirmative defense)
Prove 1) D didn't kill V 2) D didn't have deadly weapon 3) D didn't have reason to believe cofelons had deadly weapons 4) D didn't have reason to believe cofelons had intent to do anything likely to cause death |
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Term
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Definition
intent to kill, 18+, and at least one aggravating factor
agg factors: officer engaged in official duties, murder for hire, kill for W intimidation, more than one V intentionally killed during same transaction, intentional killing during felony |
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Term
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Definition
| Intentional killing that doesn't qualify for 1d OR highly reckless killing demonstrating depraved indifference to human life (usually more than one V) OR felony murder where unintentionally kill V |
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Term
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Definition
| intentional killing committed under influence of extreme emotional disturbance OR intent to do serious bodily harm |
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Term
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Definition
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Term
| Criminally negligent homicide |
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Definition
| D should have been aware of substantial risk of death |
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Term
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Definition
2d - Unlawfully restraining someone without their consent and w/knowledge that restriction if unlawful
1d - + risk of serious physical injury |
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Term
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Definition
2d - abducting someone
1d - + ransom, restraint for 12+ hrs w/intent to rape/injure/kill, OR death of V |
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Term
| Statutory rape/age of consent |
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Definition
Age of consent = 17
D must be 21+ and V 16 or younger |
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Term
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Definition
any crime that would be larceny, embezzlement, or false pretenses at CL
Petit - <$1k
4d - $1k-$3k
3d - $3k - $50k
2d - $50k - $1M
1d - $1M+
(need INTENT, i think) |
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Term
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Definition
3d - forcible stealing
2d - + D aided by someone else, V injured, OR car stolen
1d - + V seriously injured OR D uses/displays firearm |
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Term
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Definition
3d - entering or remaining in a building unlawfull with the intent to commit a crime inside
2d - + bldg is dwelling, non-participant injured, OR D carries weapon
1d - D knows it is a dwelling AND nonparticipant injured OR D carries weapon |
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Term
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Definition
3d - intentional burning of a building
2d - + D knew/shouldve known someone was inside
1d - + use of explosive or incendiary device |
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Term
| Criminal possession of weapon |
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Definition
gun must be loaded and operable
presence of gun in car creates presumption it belongs to all occupants |
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Term
| Criminal possession of stolen property |
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Definition
| property that is recovered by police or used with permission is not considered stolen |
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Term
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Definition
Accomplice need not specifically intend that crime be committed, enough to specifically intend to aid principal's conduct AND otherwise have the mental state required for the crime (like recklessness or negligence)
**unlike CL where must have the intent to commit the crime** |
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Term
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Definition
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Term
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Definition
aka withdrawal, an aff defense
Must make a substantial effort to prevent the crime |
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Term
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Definition
| Fine, one person can be convicted even if everyone else acquitted or was only pretending to agree |
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Term
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Definition
| Not in NY- no vicarious liability for a conspirator who doesn't participate |
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Term
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Definition
specific intent to commit crime (thus, no version of reckless or neg crimes) AND overt act beyond mere prep
overt act = "conduct dangerously close to commission" |
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Term
| Legal impossibility a defense? |
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Definition
Not in NY
**remember, factual impossibility not a defense in NY OR CL** |
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Term
| Renunciation for inchoate offenses |
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Definition
ONLY IF
1) renounce criminal purpose prior to commission of substantive offense AND
2) make sincere and successful effort to prevent commission of substantitve offense AND
3) complete and voluntary |
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Term
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Definition
Soliciation doesn't merge!!!
**Attempt and conspiracy are same as CL - attempt always merges, conspiracy never does** |
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Term
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Definition
| D lacked substantial capacity to either appreciate the wrongfulness of his conduct or to understand the nature and consequences of his act |
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Term
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Definition
<13 = only juvenile proceedings
13 = 2nd degree murder as adult
14-15 = serious crimes against property and person
16+ = anything |
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Term
| Mistake of fact a defense? |
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Definition
Sure, if it negates the required mental state; unreasonable mistake ok except for negligence
**diff from CL, where unreasonable only for specific intent and reasonable for malice and gen intent** |
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Term
| Self-defense initial aggressor rule |
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Definition
| Even if the V suddenly escalates, D must withdraw and retreat first (unless this is in D's home) |
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Term
| Unreasonable mistake and self-defense |
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Definition
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Term
| Using force to resist arrest |
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Definition
| Only ok if arresting officer uses excessive force |
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Term
| Duress as a defense to homicide |
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Definition
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Term
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Definition
car passengers can challenge possession of weapon if attributed to them
**remember, presumption that gun belongs to everyone in the car, so this makes sense** |
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Term
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Definition
| Aguilar/Spinelli - gov must establish informant's BASIS OF KNOWLEDGE and VERACITY |
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Term
| Good faith to overcome defects in probable cause or partiuclarity in a warrant? |
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Definition
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Term
| Search incident to legal arrest |
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Definition
only ok to search containers if suspect that D is armed
also, if occupant is out of the car you can't search the containers inside the car |
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Term
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Definition
| cannot seize contraband even if recognize it as such without manipulating - can only seize weapons |
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Term
| Police pursuit as a seizure? |
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Definition
| Yes - police pursuit is a seizure in and of itself |
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Term
| Indelible right to counsel |
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Definition
Attaches whenever there is a significant judicial activity before filing of an accusatory instrument such that D may benefit from presence of counsel
Any waiver must take place in front of an atty
Cannot question on ANY charge w/o atty present if aware that represented by atty on any charge
Attaches when 1) person requests counsel 2) entry of counsel on the matter or 3) commencement of prosecution |
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Term
| Miranda waivers and children |
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Definition
| if police use deception or concealment to keep parent away from interrogated kid, kid's waiver can be indeemed invalid |
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Term
| Right to atty at a lineup? |
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Definition
| Yes before formal charging if you are aware that you have counsel and ask that he/she be present |
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Term
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Definition
must establish all the elements of the offense and provide reasonable cause to believe accused committed it
**remember, evidence that may be suppressed during trial due to constituional violation is NOT suppressed in grand jury indictment!** |
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Term
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Definition
Must have 12; can waive and proceed with 11
Must always be unianimous |
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Term
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Definition
Transaction test - D must be charged with ALL OFFENSES arising from any single transaction UNLESS
- offenses have substantially different elements
- each offense contains element not in the other AND prevents different harm
- one is for criminal possession and other is for use
- each offense involved harm to different victim |
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Term
| 5th A exception - grant of immunity |
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Definition
| if granted, bars gov from use of your testimony or aything derived from it, and protects from any TRANSACTION testified about |
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