- Ordinarily, if you do not have an act, you do not have a crime
- An act is a voluntary bodily movement
- Exceptions to act include sleepwalking, reflex/convulsion, when someone else moves D
- In limited situations, failure to act can create criminal liability. Need (1) legal duty (statute/contract/status relationship/assumption of care/create the peril), (2) with knowledge of facts giving rise to duty, and (3) ability to help (many ways to help!)
ESSENTIAL ELEMENTS OF CRIME: COMMON LAW MENTAL STATES
(1) Specific Intent: Crime requires not just desire to do act but desire to achieve a result. Specific intent crimes are (crime against person) assault, 1st degree murder, (crime against property) larceny, embezzlement, false pretenses, robbery, forgery, burglary, and (inchoate crimes) solicitation, conspiracy, attempt.
(2) Malice: D acts intentionally or with reckless disregard of obvious known risk (murder/arson)
(3) General Intent: D generally aware of factors constituting the crime, need not intend specific result.
(4) Strict Liability: No mental state, just do the act (public welfare or stat rape)
(5) A reasonable mistake a defense to any crime, except strict liability crime. Unreasonable mistake defense only to specific intent crimes.
ESSENTIAL ELEMENTS OF CRIME: MENTAL STATE - MISTAKE OF LAW
- Never a defense unless statutes makes knowledge element of crime, statute was not published, defendant reasonably relied on statute/judicial decision that was declared unconstitutional/overruled, D reasonably relied on official interpretation or advice from someone charged with enforcement, administration, or interpretation of the law.
ESSENTIAL ELEMENTS OF CRIME: NY MENTAL STATES
(1) Intentional/Purposeful - D's conscious object to accomplish particular result
(2) Knowingly - D is aware of what he is doing
(3) Recklessly - D is aware of a substantial and unjustifiable risk and consciously disregards it
(4) Negligently - D should have know about substantial and unjustifiable risk
(5) Strict Liability
- Mistake usually defense for purpose/knowledge/reckless, reasonable mistake for negligence.
ESSENTIAL ELEMENTS OF CRIME: CAUSATION
- Actual Cause: D is actual cause if bad result would not have happened "BUT FOR" D's conduct
- Accelerating cause is actual cause (i.e. shooting wounded person)
- Proximate Cause: If bad result is natural and probable result of D's conduct (consider foreseeability and fairness)
- Egg-shell Doctrine applies
ESSENTIAL ELEMENTS OF CRIME: CONCURRENCE
- D must have the mental state at the same time he engages in the act
- Most frequently at issue with larceny and burglary
CRIMES AGAINST THE PERSON: BATTERY
- The (1) unlawful (2) application of force to another, (3) resulting in either bodily injury or offensive touching.
- General intent required
CRIMES AGAINST THE PERSON: ASSAULT
(1) Version 1: Attempted battery (i.e. swing and miss)
(2) Version 2: (1) The intentional creation, (2) other than by mere words, (3) of a reasonable apprehension in the mind of the victim (4) of imminent harm. (i.e. fake punch)
(3) Need specific intent
CRIMES AGAINST THE PERSON: AGGRAVATED ASSAULT AND BATTERY
- Assault and battery can be punished more if (1) weapon is involved, (2) victim is child or other vulnerable party, or (3) intent to commit robbery.
CRIMES AGAINST THE PERSON: NY 2nd DEGREE ASSAULT
- Intentionally causing serious physical injury
- Battery is not separate crime in NY
- Degree up if weapon, degree down if injury is not serious.
CRIMES AGAINST THE PERSON: THE YEAR AND A DAY RULE
- Common Law Rule: Death must occur w/in a yr and a day of the homicidal act
- NY/Majority rule: Death may occur any time
CRIMES AGAINST THE PERSON: MURDER
- (1) causing death (2) of another person born alive, (3) with malice aforethought.
- Mental State: Malice aforethought means 4 specific things (1) intent to kill, (2) intent to inflict great bodily harm, (3) extreme recklessness (depraved indifference in NY), and (4) felony murder.
- Deadly weapons rule: The intentional use of a deadly weapon creates an inference of an intent to kill
- Transferred Intent applies but only to crimes with completed harms, NOT attempts
- Most states have 1st and 2nd degree, 1st degree includes intentional (pre-med+deliberation) or felony murder. 2nd degree is all others.
CRIMES AGAINST THE PERSON: VOLUNTARY MANSLAUGHTER
- (1) an intentional killing, (2) committed in the heat of passion, (3) after adequate provocation (suddenly intense passion and no time to cool).
CRIMES AGAINST THE PERSON: INVOLUNTARY MANSLAUGHTER
- (1) A killing committed with criminal negligence, OR (2) a killing committed during a crime if it is not a felony murder.
CRIMES AGAINST THE PERSON: FELONY MURDER
- Any death caused during the commission of or attempt to commit a felony. Usually unintentional. If intentional, charge 2nd degree murder
- Limits: (1) D must be guilty of felony, (2) felony inherently dangerous, (3) felony separate from killing itself, (4) killing during the felony or immediate flight from felony, (5) killing in furtherance of felony, (6) death is foreseeable, (7) victim cannot be co-felon.
- Vicarious liability: If one co-felon causes death, all others guilty so long as one of the felons is a prox cause of the death.
CRIMES AGAINST THE PERSON NY: 1st DEGREE MURDER
- Mental state: Intent to kill
- D must be 18+
- At least one aggravating factor: (1) victim is a cop, (2) killing for witness intimidation, (3) murder for hire, (4) 2+ victims, (5) intentional killing during a serious felony
CRIMES AGAINST THE PERSON NY: 2nd DEGREE MURDER (3 FORMS)
(1) Intent to kill
(2) Extreme Recklessness/Depraved Indifference Murder : (a) utter disregard for human life, (b) generally putting more than one person in danger, (c) and cannot be used for 1 on 1 killings unless it involves brutal torture or abandoning helpless victim to almost certain death
(3) Felony Murder (burglary, robbery, arson, kidnapping, escape, sex assault). D need not be convicted of underlying felony.
- Nonslayer defense to Felony murder: (1) D did not do the killing, (2) didn't have deadly weapon, (3) no reason to believe anyone had deadly weapons, AND (4) no reason to believe that the others would do anything likely to result in death.
CRIMES AGAINST THE PERSON NY: FIRST DEGREE MANSLAUGHTER (2 FORMS)
(1) Intent to cause serious physical injury
(2) Extreme Emotional Disturbance ("EED"): An intentional killing committed under the influence of a reasonable extreme emotional disturbance. As a defense to 2nd degree murder, must prove EED by preponderance of the evidence
CRIMES AGAINST THE PERSON NY: 2nd DEGREE MANSLAUGHTER
- Mental State: Recklessness
- D is aware of risk and consciously disregards a substantial and unjustifiable risk of death
CRIMES AGAINST THE PERSON NY: CRIMINALLY NEGLIGENT HOMICIDE
- Mental State: Negligence
- D should have known a substantial and unjustifiable risk of death.
CRIMES AGAINST THE PERSON NY: AGGRAVATED HOMICIDE
- When the victim is a cop and killed in the line of duty
CRIMES AGAINST THE PERSON NY: VEHICULAR HOMICIDE
- Death caused by drunk driving
- DWI: BAC over .08%
- Vehicular Man 2: Death + DWI
- Vehicular Man 1: Vehicular Man 2 + an aggravating factor (BAC over .18% or prior DWI)
- Aggravated Vehicular Man: Vehicular Man 1 + reckless driving.
- NOTE: Any DWI resulting in injury only = vehicular assault.
CRIMES AGAINST THE PERSON: FALSE IMPRISONMENT
- (1) The unlawful (2) confinement of a person (3) without consent.
- Mental State: General Intent
CRIMES AGAINST THE PERSON: KIDNAPPING
- (1) False imprisonment (2) that involves either moving the victim, or concealing victim in secret place.
- Mental State: General intent
- Aggravated if (1) purpose is to collect ransom, (2) commit robbery or rape, OR (3) victim is a child.
CRIMES AGAINST THE PERSON NY: UNLAWFUL IMPRISONMENT
- Second Degree: (1) unlawfully, (2) restraining someone, (3) w/o their consent, and (4) with knowledge that the restriction is unlawful.
- First Degree: 2nd degree + a risk of serious physical injury
CRIMES AGAINST THE PERSON NY: KIDNAPPING
- 2nd degree: (1) abducting someone
- 1st degree: (1) 2nd degree + (2) one of the following; ransom, or restraint of victim for more than 12 hrs with intent to rape, injure, or rob the victim, or death of the victim.
- Kidnapping and Homicide: If victim is killed accidentally, murder II, intentionally, murder I.
CRIMES AGAINST THE PERSON: FORCIBLE RAPE
- (1) Sex, (2) w/o victim's consent, (3) accomplished by force, threat of force, or when victim is unconscious
- Mental State: General Intent
CRIMES AGAINST THE PERSON: STATUTORY RAPE
- (1) Sex, (2) w/someone under age of consent
- Mental state Majority: Strict liability
- Mental state Minority: A reasonable mistake of age is a defense
- Age of consent in NY is 17.
CRIMES AGAINST PROPERTY: LARCENY
- The trespassory taking and carrying away of the personal property of another with intent to steal
- "of another": key is possession, not legal title
- Specific intent must be permanent. If D plans on giving it back or thinks its his, it will not be larceny.
- If D develops specific permanent intent later, while still possessing property, it will count ("continuing trespass").
CRIMES AGAINST PROPERTY: EMBEZZLEMENT
- Conversion of the personal property of another by a person already in lawful possession of that property, with the intent to defraud.
- Already having property distinguishes it from larceny
CRIMES AGAINST PROPERTY: FALSE PRETENSES
- Obtaining title to personal property of another by an intentional false statement (past/present event, not future promise) with the intent to defraud
- Different from larceny because here, D gets title rather than just possession. If only possession if obtained, "larceny by trick."
CRIMES AGAINST PROPERTY: ROBBERY
- (1) A larceny, (2) from another's person or presence, (3) by force or threat of immediate injury
- Mental State: Intent to steal (specific intent)
- "Force" = sufficient to overcome resistance
- Future injury/embarrassment no good.
NY THEFT CRIMES: LARCENY
- Any crime that would be larceny, embezzlement, false pretenses, or larceny by trick at common law
- 1st degree, more than $1 million, 2nd degree, more than $50,000, 3rd degree more than $3,000, 4th degree, more than $1,000.
NY THEFT CRIMES: ROBBERY
(1) 3rd degree: Larceny + forcible stealing
(2) 2nd degree: Forcible stealing + D is aided by another actually present, the victim is injured, OR a car is stolen
(3) 1st degree: Forcible stealing + the victim is seriously injured or D uses/displays firearm.
(4) Robbery + Homicide: If killed accidentally, murder II, if intentionally, murder I.
CRIMES AGAINST PROPERTY: FORGERY
- (1) making or altering a writing (2) so that it is false
- Mental State: with Intent to defraud
CRIMES AGAINST PROPERTY: UTTERING
- (1) offering as genuine, (2) a forged instrument with intent to defraud
CRIMES AGAINST PROPERTY: MALICIOUS MISCHIEF
- Destroying or damaging someone else's property with intent to defraud (called criminal mischief in NY).
- (1) Control for a period of time long enough to have an (2) opportunity to terminate. Need not be in actual possession so long as he is able to exercise dominion and control over it
- Mental State: Knowledge of BOTH possession and character of item possessed
- Examples: Criminal possession of drugs/firearms/stolen property/forged instrument
CRIMES AGAINST PROPERTY: BURGLARY
- Breaking and entering the dwelling of another at night with the intent to commit a felony inside
- Mental State: Specific intent
- Many states have gotten rid of some of the technical stuff like "at night"
CRIMES AGAINST PROPERTY: NY BURGLARY
(1) 3rd degree: (a) entering or remaining, (b) unlawfully, (c) in a building, (d) with the intent to commit a crime inside
(2) 2nd degree: (a) 3rd degree + (b) building is a dwelling, or a non-participant is injured, or D has a weapon
(3) 1st degree: (a) D knows that he is burglarizing building + (b) non-participant is injured OR D carries a weapon.
(4) Burglary + Homicide: victim killed accidentally, Murder II, intentionally, Murder I.
CRIMES AGAINST PROPERTY: ARSON
- The malicious burning of a building
- Mental State: Malice (intent or reckless disregard of obviously known risk)
- Scorching not enough
CRIMES AGAINST PROPERTY: NY ARSON
(1) 4th degree: reckless burning of a building
(2) 3rd degree: intentional burning of building
(3) 2nd degree: 3rd degree, when D knows or should have known someone in building
(4) 1st degree: 2nd degree + explosive device
(5) Arson + Homicide, if victim killed accidentally, Murder II, intentionally, Murder I.
- (1) Act aiding or encouraging the principal (2) with the intent (not needed in NY) that the crime be committed
- Accomplice guilty of all crimes he aided and all other foreseeable crimes committed with aided crime
- Mere presence and mere knowledge does not make one an accomplice
- Withdrawal: If only encouraged, simply discourage. If aided, need to neutralize assistance or prevent crime from happening. In NY, "substantial effort" to prevent crime
- (1) assist a principal who has committed a felony, (2) w/knowledge that the crime has been committed, and (3) w/intent to help the principal avoid arrest or conviction
INCHOATE OFFENSES: ATTEMPT
- MPC/Majority: conduct that is a substantial step towards a crime and specific intent of criminal purposes
- Common Law/NYC: conduct that gets dangerously close to the commission of the crime
- You cannot attempt unintentional crimes (reckless/negligent/felony murder)
- It is possible to attempt malice/gen inten/strict liability crimes, but only if D specifically intends to commit the crime.
- Factual impossibility is not a defense but legal impossibility is.
INCHOATE OFFENSE DOCTRINES: WITHDRAWAL
- What happens when a solicitor, co-conspirator, or attempter changes his mind?
- Common law: Withdrawal not a defense but once withdrawn, not vicariously liable for future crimes
- NY/MPC: Defense only if D voluntarily and completely renounces the crime AND the renunciation is based on a change of heart, not a fear of failing/getting caught
INCHOATE OFFENSE DOCTRINES: MERGER
- When can a D be convicted of multiple crimes for the same conduct?
- Generally, lesser offense merges with the greater offense
- Attempt merges with completed crime
- Conspiracy does NOT merge with completed crime
- Solicitation merges at common law but NOT in NY
- D must have mental disease or defect. If he does, apply one of three tests
(1) M'Naughten test: If D either did not know his act was wrong or did not undertstand the nature of his act
(2) Irresistible Impulse Test: If D either was unable to control his actions or was unable to conform his conduct to the law
(3) MPC Test: If D lacked substantial capacity to either appreciate the criminality of his conduct or conform his conduct to the law.
(4) NY Test: If D lacked substantial capacity to either understand the nature of his act or appreciate the wrongfulness of his conduct
- Involuntary intoxication a defense, voluntary intoxication can ONLY be defense to specific intent crimes
DEFENSES: SELF DEFENSE
- A D may use non-deadly force in self-defense if it is (1) reasonably necessary, (2) to protect against an imminent use (3) of unlawful force against himself
- A D may use deadly force if he is facing imminent threat of death, bodily harm unless he is initial aggressor or if he can retreat (unless not safe or in home)
- Reasonable mistake is allowed, unreasonable mistake is not allowed at common law/NY and created imperfect self defense in Minority/MPC states
- Use of non-deadly force may be used to prevent a crime, deadly force can be used to prevent felony risking human life (i.e. rape).
- Deadly force not OK to defend property unless burglary + in own home
- It is a defense to criminal conduct if the D reasonably believed that the conduct was necessary to prevent greater harm
- Never a defense to homice
- In NY, the harm avoided must be greater than the harm caused and can be defense to homicide
- It is a defense if the D was forced to commit a crime under threat of death or serious bodily harm,
- Not a defense to homicide except in NY
- If gov't unfairly tempted D to commit the crime. Very narrow defense. (1) The criminal design originated with gov't, (2) and D was not predisposed to commit the crime