02 Distinctions CrimLaw

NY has jurisdiction over all persons and criminal acts that occur in NY, including criminals fleeing from NY. In NY, the term "criminal acts" includes: (1) any element of a criminal offense, (2) attempted crimes, and (3) conspiracies and solicitations. The indictment powers lie with the NY county in which the conduct occurred.

NY has jurisdiction over acts that occur outside of NY State when: (1) the result of the offense occurs in NY, (2) the statute was intended to prevent the specific criminal effect from occurring in NY, (3) there was an attempt to commit a crime in NY, or (4) there was a conspiracy to commit a crime in NY.

In NY, felonies are offenses that are punishable by death or imprisonment for more than one year. Misdemeanors are offenses, other than traffic infractions, for which maximum potential imprisonment exceeds 15 days, but is less than one year. Violations are any offenses, other than traffic infractions, that are punishable by no more than 15 days imprisonment.

IN NY criminal cases, insanity is an affirmative defense that a defendant must prove by a preponderance of the evidence. In NY, the defendant must know that, at the time of the conduct, he lacked capacity to either understand the nature and consequences of his act or appreciate the wrongfulness of his conduct. The NY rule falls in between the requirements of the M'Naghten Rule and the Model Penal Code Test. If a defendant is insane at the time of the commission of the crime, then there is an insanity issue. If the defendant is insane at the time of the trial, then he is incompetent, and trial is adjourned until the defendant is competent to stand trial.

In NY, voluntary intoxication is not a defense to crimes with the mens rea of recklessness. Becoming intoxicated is itself the reckless act. NY follows the majority rule on this issue.

Under the NYPL, infancy is a valid defense to criminal responsibility. The defense must notify the prosecutor within 30 days of plea if he intends to use an infancy defense. However, 13-, 14-, and 15-year old children can be prosecuted for second degree murder. 14- and 15-year old children can be prosecuted to the fullest extent of the law for serious offenses against the person. A child defendant between the ages of 7 and 16 is subject to family court jurisdiction, rather than the criminal court except in the abovementioned cases.

(At common law, Ds under the age of 7 could not be criminally liable. Ds between 7 and 14 were presumed to not have criminal capacity, but the presumption could be rebutted by clear proof that the D appreciated the nature and quality of his act. Children of 14 years or older were treated as adults)

In NY, there is a duty to retreat before using deadly force if one knows that he can escape safely. However, retreat is not required if: (1) the imminent threat of deadly force occurs in his dwelling and he is not the aggressor, (2) he is a peace officer, or (3) he reasonably believes the aggressor is committing or attempting to commit kidnapping, forcible rape, forcible sodomy, robbery, burglary, or arson.

In NY, duress is an available defense if the defendant engaged in the proscribed conduct because he was coerced to do so by the use or threatened imminent use of unlawful physical force upon him or a third person, which force or threatened force a person of reasonable firmness in his situation would have been unable to resist. The defense of duress is not available when a person intentionally or recklessly places himself in a situation in which it is probable that he will be subjected to duress. In NY, a D may (at least in theory) raise duress as a defense to murder.

(Under common law, duress requires:

(1) a person issued a specific threat to kill or seriously injure D or a third person if he did not carry out the crime
(2) D reasonably believed that the threat would be carried out
(3) the threat was imminent at the time the crime was committed
(4) there was no reasonable escape from the threat
(5) D did not expose himself to the threat

Under common law, duress is not available as a defense for murder)

Under the NYPL, a person is guilty of felony murder if:

(1) during the commission of
(2) the attempt of, OR
(3) the flight from:

(1) robbery
(2) burglary
(3) kidnapping
(4) arson
(5) rape in the first degree
(6) criminal sexual act in the first degree
(7) sexual abuse in the first degree
(8) aggravated sexual abuse
(9) escape in the first degree or second degree

he causes the death of a person other than one of the co-felons.

Under the NYPL, felony murder can stand even if the D is not convicted of the underlying felony (however, D must be guilty).

(The following common law felonies give rise to murder liability:

(1) mayhem
(2) rape
(3) sodomy
(4) burglary
(5) arson
(6) kidnapping
(7) escape from lawful custody or jail
(8) robbery

Under common law, to be guilty for felony murder ,D must be found guilty of the underlying felony)

Under the NYPL, a co-felon has an affirmative defense to felony murder if: (1) he did not commit the homicidal act or in any way solicit, cause, or aid the commission of the homicidal act, (2) he was not armed with a deadly weapon, (3) he had no reasonable ground to believe that any other participant was armed with a deadly weapon, and (4) he had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious injury.

(Under common law, if multiple criminals commit a felony together, a killing by one (even if accidental) exposes all participants for felony murder)

NY does not follow the common law "Year and a Day" rule. Under the NYPL, if the victim dies at any point after receiving the fatal injury, the D can be charged with murder.

Under the NYPL, murder is classified as either first degree murder or second degree murder.

First degree murder is intentional murder by a D that is at least 18 years old with aggravating circumstances:

(1) intentionally killing a police officer
(2) intentionally killing a witness to a crime
(3) murder for hire
(4) intentional killings during commission of or flight from robbery, burglary, kidnapping, arson, rape, sodomy, sexual abuse, escape, or second degree attempted murder
(5) multiple homicides in the same criminal transaction
(6) if the D had been previously convicted of first or second degree murder or their equivalent in any jurisdiction
(7) torture murders
(8) intentionally killing a judge
(9) acts of terrorism

Specific defenses to first degree murder include:
(1) extreme emotional disturbance (convert into first degree manslaughter)
(2) aiding another person to commit suicide (convert into second degree manslaughter)

(Common law does not have degrees of murder)

Under the NYPL, second degree murder includes

(1) all intentional murders that are not specifically classified as first degree murders
(2) highly reckless murders (a depraved indifference to human life) or reckless engagement in an activity that poses a grave risk or death
(3) felony murder

Specific defenses to second degree murder include:
(1) extreme emotional disturbance (convert into first degree manslaughter)
(2) aiding another person to commit suicide (convert into second degree manslaughter)

First Degree Manslaughter:

(1) intentional serious bodily harm that results in death, even though death was not intended
(2) an intentional killing that would otherwise be murder, but is downgraded to manslaughter because of the killer's "extreme emotional disturbance" (EED)

EED is NY's version of the provocation at common law that turns murder to manslaughter. The D must prove EED as an affirmative defense. The test is whether the D acted under the influence of EED for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the D's situation under the circumstances as the D believed them to be.

Second Degree Manslaughter:

(1) reckless disregard of a substantial risk, which causes the death of another person (intoxication is no defense)
(2) D intentionally causes or aids another person to commit suicide

In NY, a person is guilty of vehicular homicide when he causes the death of another person by drunk driving. Degrees:

(1) vehicular assault - driving while intoxicated resulting in injury
(2) vehicular manslaughter in the 2nd degree - driving while intoxicated resulting in death
(3) vehicular manslaughter in the 1st degree - second degree + an aggravated factor
(4) aggravated vehicular manslaughter - first degree + reckless driving

In NY, a person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person. Note that in NY, this is not a type of manslaughter; it is a distinct, lesser crime.

(At common law, it is involuntary manslaughter. It requires a higher standard of negligence than mere tort liability - a reckless disregard or gross negligence. The contributory negligence of the victim is not a defense)

Misdemeanor Manslaughter does not exist in NY.

Common law battery is known as assault in NY. The NY assault rule requires the victim to have suffered some physical injury, offensive touching is not enough.

In NY, common law assault is called attempted assault.

In NY, a rape victim can be either a man or a woman. The rape statute in NY is also expanded to include sexual acts other than intercourse.

In NY, there is no consent if the victim is: (1) under 17 years old, (2) mentally defective, (3) mentally incapacitated, or (4) physically helpless.

In NY, Megan's Law requires sex offenders to register with the Division of Criminal Justice Services. Relevant information about the crime and the D may be released.

Kidnapping in the second degree requires:

(1) unlawful imprisonment in the second degree (unlawfully restraining someone without their consent and with the knowledge that the restraint is unlawful)
(2) a risk of serious physical injury

Kidnapping in the first degree requires:

(1) kidnapping in the second degree
(2) one of the following factors:
i. asking for ransom
ii. restraining the victim for more than 12 hours with the intent to rape, rob, or injure the victim
iii. the victim dies during the abduction

In NY, there are four common law crimes against property: (1) larceny, (2) larceny by trick, (3) false pretenses, and (4) embezzlement.

In NY, the term "property' for purposes of larceny includes money, personal property, real property, computer data, computer programs, evidence of debt or contract, or anything else of value including gas, steam water, or electricity.

(Under common law, only tangible personal property with some value. Realty, fixtures, and services not included)

Under the NYPL, the following acts are larceny by statute:

(1) common law larceny by trespassory taking
(2) common law larceny by trick
(3) acquiring lost, mislaid, or misdelivered property without taking reasonable measures to return the property to the owner
(4) issuing a bad check to obtain property
(5) false promise (pursuant to a scheme to defraud, a person obtains property by means of a misrepresentation to engage in specific conduct)
(6) extortion (compelling or inducing another to deliver property by instilling fear of physical damage, damage to property, a threat of other crimes, exposing a secret, etc.)

A good faith claim of right to the goods in question is an affirmative defense.

Under the NYPL, it is a crime to issue a bad check, knowing there are insufficient funds to cover the check, with intent or belief that the check will be refused by the drawee, and payment is actually refused by the drawee. A defense to writing a bad check is full satisfaction of the amount of the check within 10 days of dishonor by the drawee.

In NY, a person can be convicted of attempted criminal possession of stolen property; impossibility is not a defense. Possession can be established by showing the D knowingly possessed stolen property; this creates a presumption that the D had the intent to benefit from possession. A broker is presumed to know the nature of the stolen property if he does not make a reasonable inquiry into the origins of such property. Possession of stolen property does not merge into larceny.

In NY, robbery is larceny with
(1) assault (i.e., battery)
(2) attempted assault (i.e., assault)
(3) criminal mischief (malicious mischief at common law) - destroying or damaging someone else's property with intent to defraud

First degree robbery - robbery with a firearm. If D commits robbery with a firearm but can prove that gun was unloaded or inoperable, the crime is reduced to the second degree

In NY, the breaking and entering elements are merged into one element. The specific intent does not have to be a felony; the specific intent to commit any crime is sufficient. There is no requirement that the burgled location is a dwelling and the nighttime requirement does not exist in NY.

In NY, the crime of arson is available for the burning of buildings and motor vehicles.

In NY, attempt is one step below the completed crime in terms of the potential punishment with the following exception. Attempted murder in the first degree and attempted criminal possession are equal in punishment to the substantive offense.

Abandonment is an affirmative defense to attempt; the defendant must: (1) manifestly renounce his actions and (2) prevent the offense from occurring to use the defense.

Under the NYPL, an overt act in furtherance of the agreement is necessary to satisfy the elements of conspiracy.

NY follows the Model Penal Code Rule stating that a single defendant may be convicted of a conspiracy charge regardless of whether the other person intended to commit the crime, as long as the defendant has the specific intent to agree with the other person. Under the NY rule, if a defendant "conspires" with an undercover police officer to commit a crime, the defendant is guilty of conspiracy if he had the specific intent to conspire with the other person.

In NY, there is no vicarious liability for crimes committed by co-conspirators. Vicarious liability does not attach to one who merely conspires, but does not participate in committing an offense.

(Under the Wharton Rule, criminal liability for conspiracy does not attach until another party joins the agreement beyond those necessary to effectuate the substantive crime.

Under the Unilateral Conspiracy Rule, D can be found guilty of conspiracy regardless of whether the other person intended to commit the crime, as long as D has the specific intent to agree with the other person.

Co-conspirators are responsible for foreseeable crimes that the co-conspirators committed in furtherance of the conspiracy)

In NY, withdrawal is an affirmative defense to the crime of conspiracy if the defendant:

(1) voluntarily and completely renounces the criminal endeavor
(2) withdraws prior to commission of the substantive offense
(3) makes at least a substantial effort to prevent the crime

NY rejects Pinkerton liability and generally follows the Model Penal Code rule, except that unlike under the Model Penal Code, in NY, a defendant has a defense to a conspiracy charge even if her "substantial effort" does not actually thwart the crime.

(Under common law, for a co-conspirator to withdraw, he must make an affirmative act that informs his co-conspirators explicitly of the withdrawal and abandonment)

In NY, solicitation merges with attempt and conspiracy. However, solicitation is a separate offense from the substantive crime committed.

To effectively withdraw, the defendant must:

(1) voluntarily and completely renounce the criminal endeavor
(2) prevent the commission of the crime

A defendant can be convicted solely upon the testimony of the person solicited to complete the crime.

(Under common law, solicitation merges into the substantive offense, including attempt and conspiracy)

In NY, the accomplice does not need specifically intend that the crime be committed. It is enough if the accomplice specifically intends to aid the principal's conduct. Therefore, in NY, you can an accomplice to a negligent or reckless crime.

In NY, the following are NOT defenses to accomplice liability:

(1) asserting the defenses of the principal
(2) the principal's escape from prosecution
(3) the offense was impossible for the accomplice to commit alone

A defendant may not be convicted solely upon the uncorroborated testimony of a fellow accomplice (including a co-conspirator)

(Under common law, a person who does not actually commit the underlying crime can be guilty if he aids or encourages another to commit the crime WITH the intent that the crime be committed)

NY has a crime called criminal facilitation (there is no corresponding common law crime). Elements include: (1) the facilitator knowingly aided in the commission of the crime, but less so than full accomplice liability, (2) the facilitator believed it was probable he was rendering aid, and (3) the facilitator's alleged conduct must have aided in the commission of the crime.

An affirmative defense to criminal facilitation exists if the facilitator takes affirmative steps to prevent a felony. Withdrawal is an affirmative defense to accomplice liability if the accomplice: (1) voluntarily and completely renounces criminal endeavor, (2) withdraws prior to commission of the offense, and (3) makes at least one substantial effort to prevent the crime.

In NY, possession is distinguished by the specific contraband that D controls:

(1) possession of drugs - requires criminal possession of a controlled substance
(2) possession of a firearm - must be loaded and operable
(3) possession of stolen property
(4) possession of a forged instrument - uttering

(Under common law, when a statute criminalizes the possession of contraband, possession means control for a period of time long enough to have an opportunity to terminate possession. Constructive possession means that the contraband need not be in D's actual possession, as long as it is close enough for him to exercise dominion and have control over it)

In NY, this is typically known as hindering prosecution.