Distinctions - Crim Pro

  1. Does New York have criminal jurisdiction over all persons within the state?
  2. When is criminal jurisdiction obtainable over the person where New York has jurisdiction over the act and the person is not within its physical territory?
    If the defendant is fleeing from justice.
  3. A person may be convicted if the conduct that occured within NY is sufficient to establish:
    • An element of the offense;
    • An attempt to commit the offense; or
    • A conspiracy or criminal solicitation to commit the offense or otherwise estalbish the complicity of at least one of the persons liable therefor.
  4. When can a person be convicted in New York even though none of the conduct constituting the offense may hve occured within New York?
    • The offense committed was a result offense and the result occured within New York;
    • The statute defining the offense is designed to prevent the occurence of a particular effect in the state and the conduct constituting the offense committed was performed with the intent that it would have such effect in New York;
    • The offense was an attempt to commit a crime within New York; of
    • The offense committed was a conspiracy to commit a crime within New York and an overt act in furtherance of the conspiracy occured within New York.
  5. Which county has the power to indict?
    The county within which the conduct has some connection. A court cannot commence an action unless the criminal conduct bears a nexus to the geographical jurisdiction of the court.
  6. Is there a right to indictment by grand jury in New York?
    Yes, but a defendant can waive indictment by grand jury with the prosecutor's approval if the crime charged it not punishable by death or by life imprisonment.
  7. Which crimes require indictment by grand jury (unwaivable)?
    Those punishable by death or by life imprisonment.
  8. Is excessive bail prohibited in New York?
  9. Does New York recognize the good faith exception for defective search warrants?
  10. What constitutes a seizure of the person?
    Police pursuit.
  11. What must an arrest warrant state or contain?
    • The name of the issuing court;
    • The date of issuance of the warrant;
    • The name or title of an offense charged in the underlying accusatory instrument;
    • The name of the defendant to be arrested or description with reasonable certainty if uknown;
    • The police officer(s) to whom the warrant is addressed; and
    • A direction that the police officer arrest the defendant and bring him before the issuing court.
  12. When can a police officer arrest a person without a warrant?
    When he reasonably believes (probable cause) that a felony or misdemeanor has been committed by the offender, whether in the officer's presence or otherwise.
  13. When can a private person make a warrantless arrest?
    • A felony has in fact been committed by the offender; or
    • Any crime has in fact been comitted by the offender in the presence of the arresting private person.
  14. What falls along the "sliding scale of police authority"?
    • Minimal Intrusion/Request for Information;
    • Common Law Right to Inquire;
    • Forcible Stop and Detention and Frisk;
    • Police Pursuit;
    • Automobile Stop; and
    • Arrest.
  15. When can police approach and request information?
    Except on "whim or caprice." The individual's right not to respond and even to run away does not give police probable cause to arrest.
  16. Does the individual's right to respond to a request for information, or even run away, give police probable cause to arrest?
  17. Describe the common law right to inquire.
    Police must have "founded suspicion that criminal activity is afoot." Police can ask questions; detention must be short of seizure. If individual gives explanations, police must release.
  18. What level of police suspicion is required for a 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.
  19. Under the limited "plain feel" doctrine, when can police frisk and what can they seize?
    Police 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).
  20. What level of police suspicion is required for police pursuit?
    Must be based on "reasonable suspicion" that a crime has been, is being, or is about to be committed, since it impedes the individual's freedom of movement.
  21. Can police stop a moving vehicle for "inspection" if they have reason to believe there is a traffic violation based on their observation?
  22. Is an automobile stop valid if it is made pursuant to a roadblock?
    Yes, if passing vehicles are stopped in a uniform and nondiscriminatory manner.
  23. When can police perform a canine sniff of the vehicle's exterior in an automobile stop?
    If they have "founded suspicion" of criminal activity.
  24. Can occupants of a stopped car be questioned during an automobile search?
    Yes, but the questioning cannot escalate to restraint without reasonable suspicion of criminal involvement.
  25. Can the occupants of an automobile be completely searched?
    Only if taken into custody.
  26. What level of police suspicion is required for an arrest?
    Police must have "probable cause" to believe individual has committed a crime.
  27. Do co-defendants travelign in a vehicle have automatic standing to challenge charges of criminal possession of a weapon which arise solely because of the presumption of possession attributed to all passengers when weapons are found in vehicle?
  28. Does the placement of a beeper on a vehicle to follow its movements on public roads constitute a search?
  29. Does attaching a global positioning satellite ("GPS") tracking device to a vehicle constitute a search?
    Yes, under both the Fourth Amendment and the New York Constitution.
  30. Can a police reach into an automobile to move papers to observe the vehicle's identification number?
  31. Can judicial authorization for a search warrant be obtained by telephone or other electronic communication with a judge?
    Yes. The judge must administer the oath, make record of it, and if granted, the applicant must fill out the search warrant.

    NOTE: There is no such thing as an oral search warrant--only oral applications. The warrant itself must be written.
  32. What must a search warrant application based on informant information demonstrate?
    NY applies a more stringent standard than required by the U.S. Constitution. In NY, under the "Aguilar-Spinelli" test, a search warrant application must demonstrate:

    (i) Veracity or reliability of the source of information; and (ii) The basis of informant's knowledge.

    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 crininal activity informed about.
  33. Does violation of the knock and announce rule require exclusion of evidence under New York law?
    The New York Court of Appeals has not yet ruled on the matter, even though federal law does not require exclusion.
  34. What is required for a search incident to an arrest?
    The officer must suspect that the arrested person may be armed to search containers in the "wingspan."

    Furthermore, once an occupant ahs been removed from a car, police may not remove closed containers or bags from the car to look for weapons or other evidence as an incident of the arrest. They may search the car only if they have a warrant or some other exception (e.g., the automobile exception).
  35. Once an occupant ahs been removed from a car, can police remove closed containers or bags from the car to look for weapons or other evidence as an incident of the arrest?
    No, they may search the car only if they have a warrant or some other exception (e.g., the automobile exception).
  36. Is there a common law right to perform blood or chemical tests absent court order?
    No. However, the NY Vehicle and Traffic Law states that "any person who operates a motor vehicle in the state shall be deemed to have given his consent" to such a test.
  37. Is warrantless impoundment and inspection of a person's vehicle valid as an administrative search?
    Yes, under the highly regulated industry if motor vehicle safety.
  38. Is a parolee's right to be free of unreasonable searches and seizures violated when his parole officer makes a warrantless search of the parolee's apartment?
    No, provided the officer's conduct is rationally and reasonably related to the performance of his duty as parole officer.
  39. What is the felony of "eavesdropping"?
    "Eavesdropping" includes both "bugging" and "wiretapping." Both are felonies if there is neither consent nor a properly issued eavesdropping warrant. Evidence obtained from eavesdropping by an unauthorized person is inadmissible except in a civil or criminal proceeding against hte eavesdropping.
  40. Is evidence obtained from eavesdropping by an unauthorized private person admission?
    Only in a civil or criminal proceeding against the eavesdropper.
  41. How long is an eavesdropping warrant valid?
    30 days. WIthin 90 days after the termination of the warrant, the person whose conversations were seized must be informed.
  42. If a wiretapped conversation incriminates a third party, when is it admissible?
    If the third party was not a party to the conversation and his premises or area of privacy was not invaded by the interception. Suppression is by pretrial motion.
  43. When a confession relates to other crimes for which the defendant is not being tried, must the confession be edited to eliminate references to unrelated, and therefore irrelevant, criminal activity?
  44. Are the length of interrogation and custody factors in determining voluntariness of confession?
    Yes, under the Arthur-Hobson Rule.
  45. When does the "indelible" right to counsel attach?
    • When the defendant is in custody, the police are engaging in "activity overwhelming to the layperson," and the defendant requests counsel;
    • At arraignment;
    • Upon the filing of an accusatory instrument; or
    • When there has been any significant judicial activity.
  46. Does a right to counsel exist at investigatory lineups held prior to formal prosecutorial action?
    • No, except when (i) Police are aware that the defendant is represented by counsel on another charge; and
    • 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.

    NOTE: It is not necessary that the officials directly involved with the investigation know that the defendant is represented by counsel as long as they could have known (e.g., in the record).
  47. Can attempts to keep a parent from a child held by police invalidate the child's confession?
    Yes. However, there is no police-made invalidation where the police do not attempt to conceal the child or deceive the family, even if a parent refuses permission to see the child.

    A parent or legal guardian of a child may invoke the right to counsel on the child's behalf. However, in order for the right to attach, the invocation of counsel must be unequivocal.
  48. Can a criminal defendant waive the indelible right to counsel?
    Yes, but only in the presence of counsel.
  49. If a defendant is released and later arrested on unrelated charges, can waiver be made without the presence of counsel from prior charges?
  50. Can a spontaneous statement made by a defendant without an inducement, provocation, or encouragement by the authorities properly be admitted?
    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 admisisble for impeachment.
  51. When police are searching for a person who has recently disappeared, can questioning of the suspected kidnapper continue although the right to counsel has attached?
    Yes, under a safety exception.
  52. How many jurors are required for a grand jury?
    Between 16 and 23 persons.
  53. How many votes are needed to indict in a grand jury?
  54. When can a citizen waive indictment by grand jury for a crime?
    • He is being held for grand jury action;
    • The crime is punishable other than by death or life imprisonment; and
    • The district attorney consents.
  55. Does any witness who testifies in a grand jury proceeding automatically receive transactional immunity?
    Yes, unless he has waived immunity or volunteers information not responsive to inquiry, knowing it is not responsive.

    However, a grand jury witness who testifies after pleading guilty and before sentencing receives no immunity.

    NOTE: Every witness in a grand jury proceeding must give any evidence requested even though that evidence may tend to incriminate him (can't take the 5th).
  56. What are the requirements to waive witness immunity?
    Written waiver of immunity, signed by the witness, is required. The waiver must also be sworn to before the jury. The witness has a right to confer with counsel if asked to sign such a waiver. The waiver may be limited to certain subjects or to a certain period of time.
  57. Does a defendant have the right to testify before a grand jury?
    If defendant requests the opportunity to testify before the grand jury, that request must be granted, provided the defendant waives immunity. The district attorney is obliged to give notice of grand jury proceedings to the defendant. The defendant must be given a reasonable time to appear.
  58. Can a witness who has not been granted immunity consult with counsel during grand jury proceedings.
    Yes, but not in the grand jury room
  59. Can a witness who has waived immunity be accompanied into the grand jury room by counsel?
    Yes, but counsel may not take part in the proceeding.
  60. Can a witness to a traumatic crime be accompanied into the grand jury room by a social worker, rape crisis counselor, psychologist, or other professional providing emotional support to the witness?
  61. The grand jury may indict when the evidence:
    • Establishes all of the elements of the crime;
    • Is legally sufficient to establish that the accused committed the offense; and
    • Establishes reasonable cause to believe that the accused committed the crime.
  62. What are the consequences if the grand jury decides not to indict and dismisses the matter?
    • The defendant must be released if being held in custody upon the charge;
    • The matter may not be resubmitted to the same or another grand jury unless the court allows resubmission; and
    • The defendant must be notified within 90 days of the filing of the dismissal, unless resubmission has been allowed or the court, for good cause and in exigent circumstances, postpones giving notice.
  63. Can child witnesses be videotaped in lieu of appearing?
    Yes, if they are 12 years old or younger.
  64. Can a special witness be videotaped in lieu of appearing?
    Yes, if the district attorney makes an ex parte application to the court for an order authorizing the videotaping of an examination of a special witness.

    Special witnessses--A person who cannot attend the proceeding because the person is either (i) Physically ill or incapacitated; or (ii) More than 12 years old but would suffer very severe emotional or mental stress if required to testify in person concerning the crime of incest.
  65. What are the speedy trial periods for felony, Class A misdemeanor, Class B misdemeanor, an violation?
    • Felony - 6 months
    • A misdemeanor - 90 days
    • B misdemeanor - 60 days
    • Violation - 30 days

    • NOTE: There are seven (7) exclusions from these specific time periods:
    • (i) Reasonable delay resulting from other proceedings.
    • (ii) Continuance.
    • (iii) Absence of the defendant, if defendant's absence causes the delay.
    • (iv) Reasonably delay caused by joinder of co-defendant.
    • (v) Delay caused by the defendant's detention in another jurisdiction.
    • (vi) Delay caused by exceptional circumstances.
    • (vii) Period during which action has been adjourned in contemplation of dismissal.
  66. What are the seven (7) exclusions from the specific time periods for a speedy trial?
    • (i) Reasonable delay resulting from other proceedings.
    • (ii) Continuance.
    • (iii) Absence of the defendant, if defendant's absence causes the delay.
    • (iv) Reasonably delay caused by joinder of co-defendant.
    • (v) Delay caused by the defendant's detention in another jurisdiction.
    • (vi) Delay caused by exceptional circumstances.
    • (vii) Period during which action has been adjourned in contemplation of dismissal.
  67. What is the defendant's remedy if the prosecution is not ready for trial at the end of the specific time period for a constitutional right to a speedy trial and the seven (7) excuses/exclusions are inaplicable?
    Either release from custody or dismissal of the charge, depending on the amount of the delay.

    Unexcused delay requires dismissal upon the defendant's motion.

    Whether the defendant is prejudiced by delay is irrelevant.

    The exceptions to dismissal are: (i) homicide, or (ii) sudden unavailabiliy of material evidence.
  68. What are the two (2) exceptions to the right of dismissal on account of unexcused prosecutorial delay?
    (i) Homicide; and (ii) Sudden unavailability of material evidence.

    The defendant is still be entitled to release from custody.
  69. What can the defendant obtain from the prosecution for inspection and copying?
    • His own or a co-defendant's statement to a law enforcement officer, including grand jury testimony;
    • Tapes of bugged conversations intended to be used at trial;
    • Relevant photos or drawings made by police;
    • Reports of physical, mental, or scientific tests or experiments;
    • Any other property obtained from the defendant;
    • The approximate date, time, and place of the offense charged;
    • Anything that the state or federal Constitution requires to be disclosed to the defendant by the prosecutor prior to trial; and
    • All specific instances of the defendant's conduct that the prosecutor intends to use at trial to impeach the defendant's credibility.
  70. Does the prosecutor have to give the defendant any prior written or recorded statements of persons to be called as witnesses?
    Yes, between the time the jury is sworn in and the prosecutor's opening statement, as well as known criminal records of prosecution witnesses.
  71. When must the defendant notify the prosecutor if raising insanity as a defense?
    Within 30 days from a "not guilty plea."
  72. When may the prosecutor serve the defendant with demand for the alibi defense?
    Within 20 days after arraignment. The defendant must reply within 8 days.
  73. What is the defendant's duty of disclosure to the prosecution?
    The defense must make available any relevant prior written or recorded statements by a defense witness. The prosecution may demand physical, mental, or scientific reports, the results of which the defendant intends to introduce at trial.
  74. Is there a continuing duty of disclosure in criminal cases?
    Yes. If a party finds, before or during trial, additional discoverable material, that party must promptly disclose or inform the other side of its refusal to disclsoe or apply for a protective order.
  75. Is failure of the prosecution to call a witness or the failure of any party to introduce previously disclosed material grounds for any sanction or for adverse comment at any point at trial?
    No. There is no penalty for nonproduction.
  76. What is the burden for estalbishing the defendant's competency to stand trial?
    In New York, the prosecution must establish the defendant's competency by a preponderance of the evidence.
  77. Can the prosecutor's opening be waived in a jury trial?
    By statute, no.
  78. Can the defendant waive a trial by jury?
    Yes, unless the indictment charges murder in the first degree.

    Waiver must be (i) in writing; (ii) signed in open court, (iii) in the presence of the judge, and (iv) with the judge's approval.
  79. What are the requirements for a waiver of trial by jury?
    • In writing;
    • Signed in open court;
    • In the presence of the judge, and
    • With the judge's approval.
  80. How many jurors are required for felonies (indictment)?
    12 jurors, with up to 4 alternates, at the discretion of the court. A jury of 12 camn be waived by the defendant in open court, at least when a juror becomes ill, leaving only 11.
  81. How many jurors are required for crimes less than felonies (information)?
    6 jurors, with up to 2 alternates. If the punishment is six months' imprisonment or less, there is no jury.
  82. Is there a right to a jury trial for crimes punishable by six months' imprisonment or less?
  83. For what reasons can a juror be challenged for cause?
    • Lack of qualifications (e.g., less than 18 years of age);
    • Not impartial because of the juror's state of mind;
    • The juror is related within the sixth degree of consanguinity or affinity to the defendant, a person allegedly injured, a prospective witness, or counsel;
    • The juror was a party adverse to a defendant, victim, witness, or counsel in any civil action or was complained against or accused by any such person in a criminal action;
    • The juror was a witness at any preliminary examination or before the grand jury or is to be a witness at the trial, or
    • The juror served on the grand jury or served as a juror in a prior civil or criminal action involving the same conduct charged.
  84. What must a defendant demonstrate to prevail on an ineffective assistance of counsel claim?
    • That the attorney failed to provide "meaningful representation";
    • That a single error can constitute ineffective assistance, but only when the error is "sufficiently egregious and prejudicial as to compromise a defendant's right to a fair trial";
    • The absence of any strategic explanation for the attorney's performance; and
    • If citing inefective assistance for failure to make a motion, the defendant must prove that the motion had a reasonable chance of succeeding.
  85. Can a child witness testify from a separate room via two-way closed-circuit television?
    Yes, by statute, under certain circumstances. This does not violate the defendant's right to confront witnesses.
  86. What instructions should the judge give to a deadlocked jury?
    In addition to reminding the jury of the importance of reaching a verdict, the court should make it clear that the jurors' duty is to decide the case only if they can conscientiously do so.
  87. Can the court permint a defendant to withdraw a plea of guilty to all or part of an indictment?
    Yes, by statute, at any time before imposition of the sentence, at the court's discretion.
  88. New York allows a defendant who pleaded guilty to appeal certain pretrial orders denying motions for suppression of:
    • Confessions;
    • Evidence from illegal searches and seizures; and
    • Identification testimony.
  89. Does the sentencing court have the power to impose a lighter sentence than bargained for?
    Yes. The prosecution can then apply to withdraw consent to the plea if a sentence less severe than negotiated is to be imposed.
  90. What is the remedy if the court breaks a promise on which the defendant relied when pleading?
    To withdraw the plea.
  91. Does the defendant waive his right to appeal the merits of the plea bargain by pleading guitly?
    Yes. The prosecutor can condition the plea on the defendant's waiver of the right to appeal his sentence and/or the right to appeal pretrial proceedings. However, waiver of the right to appeal does not prevent the defendant from withdrawing the plea.
  92. Can the prosecutor condition a guilty plea on the defendant's waiver of the right to appeal his sentence and/or the right to appeal pretrial proceedings?
    Yes. However, waiver of the right to appeal does not prevent the defendant from withdrawing the plea.
  93. Is the following jury instruction constitutional?: "in the event the jury fails to reach unanimous agreement with respect to the death penalty or life in prison without parole, the court will sentence the defendant to a term of imprisonment with a minimum term of between 20 and 25 years and a maximum term of life."

    RATIONALE: The instruction creates a substantial risk of coercing jurors into sentencing a defendant to death in violation of the Due Process Clause.
  94. From which judgments, sentences, or orders can an appeal to an intermediate appellate court be taken as of right by the defendant?
    • A judgment other than one including a sentence of death, unless the appeal is based solely on the ground that a sentence was harsh or excessive when made on a guilty plea and the sentence did not exceed what the defendant agreed to as a condition of the plea;
    • A sentence other than one of death, if the sentence is either invalid as a matter of law or is harsh or excessivel
    • A sentence including an order of criminal forfeiture; or
    • An order setting aside a sentence other than one of death, upon motion of the prosecution.
  95. From what orders, motions, or sentences can an appeal to an intermediate appellate court be taken as of right by the prosecution?
    • An order dismissing an accusatory instrument or a count thereof;
    • A trial order of dismissal;
    • An order setting aside a verdict;
    • A motion to set aside the verdict before sentencing;
    • A sentence other than one of death (this appeal may only be based on invalidity as a matter of law); or
    • A motion made by the defense to suppress evidence.
  96. What is the rule of double jeopardy in New York?
    A person may not be prosecuted twice for the same offense or separately prosecuted for two offenses based upon the same act or criminal transaction.
  97. When is a person "prosecuted" for an offense for purposes of double jeopardy?
    When he is charged by an accusatory instrument filed in the court of New York or any jurisdiction within the United States and the action either: (i) Terminates in a conviction upon a plea of guilty; or (ii) Proceeds to the trial stage and a jury has been impaneled and sworn in or, in the case of a trial by the court without a jury, a witness is sworn in.
  98. When is a person not deemed to have been "prosecuted" for an offense for purposes of double jeopardy?
    • Such prosecution occured in a court which lacked jurisdiction over the defendant or the offense; or
    • Such prosecution was for a lessor offense that could have been charged under the facts of the case and the prosecution was procured by the defendant, without the knowledge of the appropriate prosecutor, for the purpose of avoiding prosecution for a greater offense.
  99. What test does New York follow for determining what is the "same offense" for purposes of double jeopardy?
    The transaction test.
  100. When does a defendant not have to be charged with all offenses arising from any single transaction (for purposes of double jeopardy)?
    • The offenses have substantially different elements;
    • Each contains an element not in the other and is designed to prevent very different harms;
    • One is criminal possession and the other is criminal use (other than sale);
    • Each involves death, injury, loss, etc., to different victims;
    • 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 int he other NY crime; or
    • One offense is NY RICO and the other is federal RICO.
  101. Does admission of photographs of tattoos on the defendant's body, as evidence of committing a hate crime, violate a defendant's privilege against self-incrimination?
Card Set
Distinctions - Crim Pro
NY Bar Exam