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In NY, can an irrevocable option be granted without consideration?
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Yes.
By statute, if offer is in writing, signed by the offeror and states that offer is irrevocable, then the offer is not revocable during the time stated or for a reasonable time EVEN IF THE OFFER IS NOT SUPPORTED BY CONSIDERATION.
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In NY, at what point may an offeror of a unilateral contract no longer revoke the offer?
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Offer can be revoked until performance is COMPLETED.
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In NY, can past consideration ever serve as consideration for a current promise?
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Yes. Past consideration is binding if (1) the promise is in writing, (2) the past consideration is expressly stated, (3) the consideration can be proven, and (4) the writing is signed by the promisor.
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Define "consideration" in NY terms.
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Consideration is either a detriment to the promisee or a benefit to the promisor.
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In NY, what is the result if a court makes a finding of mutual mistake?
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Contract is void.
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In NY, there are certain situations in addition to those present in other states in which infants cannot void contracts due to disability. What are they?
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By statute, infants cannot void contracts in the following situations:
(1) 14.5 y/o or older who contracts for life insurance;
(2) educational loans by those 16 or older;
(3) all contracts by 18 y/o;
(4) realty contracts related to marital home; and
(5) contracts involving artistic and athletic services.
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There are four types of contracts included in NY's Statute of Frauds that are not always included elsewhere. Name them.
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(1) Promise to pay a discharged debt;
(2) assignment of insurance policy or promise to name beneficiary of such policy;
(3) contracts to pay commission or finder's fee, unless attorney, auctioneer or licensed real estate broker is involved;
(4) equal dignities rule - in agent/principal relationship, if dealing with "interest in land," agent must be authorized in writing or principal must ratify.
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In NY, can a party to a contract make an irrevocable gratuitous assignment?
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Yes.
A gratuitous assignment is irrevocable if in writing and signed by the assignor.
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In NY, must a partial discharge by modification of contract be accompanied by consideration?
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No. Consideration is not needed if the modification is in writing and signed by the party to be charged, or his agent.
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In NY, what are the elements of the affirmative defense of withdrawal to accomplice liability?
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The accomplice must:
(1) voluntarily and completely renounce his criminal purpose;
(2) withdraw prior to commission of the offense; AND
(3) make a substantial effort to prevent the crime.
NOTE that withdrawal does not serve as an affirmative defense to attempt.
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In NY, may a person be convicted solely on the uncorroborated testimony of an accomplice?
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No. A person may not be convicted solely upon the uncorroborated testimony of an accomplice, except in police disciplinary hearings.
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In NY, what must a criminal defendant do to make out the affirmative defense of withdrawal to charges of solicitation and conspiracy?
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Defendant must:
(1) voluntarily and completely renounce; and
(2) prevent commission of the object crime.
If the object crime does not occur, the defendant has a defense to the anticipatory crimes if and only if (IFF) his efforts prevented the commission of the object crime.
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In NY, may a single defendant be convicted of conspiracy?
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Yes. NY follows the "unilateral theory" of conspiracy, allowing a single defendant to be convicted of conspiracy.
NOTE: there is no defense to a conspiracy charge based on co-conspirator's irresponsbility, incapacity, or failure to have requisite culpability for a crime.
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In NY, can you conspire with a police officer?
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Yes. Stinks, doesn't it?
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In NY, what are the degrees of the crime of conspiracy?
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Six degrees of criminal conspiracy in NY, degrees determined by the seriousness of the contemplated conduct and age of the co-conspirators.
6th Degree conspiracy = 5th degree solicitation.
5th Degree conspiracy = 4th degree solicitation
2nd degree conspiracy = second degree solicitation.
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In NY, what is the distinction between "defenses" and "affirmative defenses"?
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Different standards of proof, burden of which is on different sides. (See next cards)
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In NY, how is a defense defeated?
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Defense must be disproved by the prosecution beyond a reasonable doubt.
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In NY, how is an affirmative defense raised and proven?
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Affirmative defense must be raised and proved by the defendant by a preponderance of the evidence.
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State the standard for NY's affirmative defense of INSANITY.
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A person is not criminally responsible for conduct if, at the time of the conduct, as a result of mental disease or defect, he lacked capacity to know or appreciate either the nature and consequence of such conduct or that such conduct was wrong.
NOTE: if you get stuck, remember that NY's affirmative defense is more lenient than the M'Naghten rule but harsher than the MPC.
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In NY, when may a person use non-deadly force in self-defense?
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A person may use physical force on another to the extent he reasonably believes such force is necessary to defend himself or another from the use or imminent use of unlawful force.
There are three exceptions which preclude the use of force in self-defense.
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In NY, when may a person NOT use non-deadly force in self defense?
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(1) With intent to cause physical injury to another, the person provoked the use or imminent use of such force;
(2) the person was the initial aggressor;
(3) the use or imminent use of force is pursuant to an unlawful combat agreement (e.g., Fight Club)
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In regard to use of deadly force in self defense, NY is a "retreat" jurisdiction. What does that mean?
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A person may not use deadly force if he can safely retreat.
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There are four exceptions to the retreat requirement. What are they?
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Retreat is not required if:
(1) the person is in his dwelling and is not the initial aggressor (the "castle" exception)
(2) is a peace officer or is acting under a peace officer's direction;
(3) believes the other person is committing or attempting kidnapping, forcible rape, forcible sodomy or robbery; or
(4) believes the other person is committing burglary or arson.
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Define the elements of the NY crime of "battery."
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Trick question - there is NO crime of "battery" in NY. The crime of assault in NY encompasses common law battery. Assault requires victim to suffer physical injury, defined as impairment of physical condition or substantial pain.
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Is attempted assault possible in NY?
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Yes. It is equivalent to common-law assault.
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Is NY's death penalty statute constitutional?
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No, according to the Court of Appeals.
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Describe in phrase the conditions under which NY's first-degree murder statute will apply.
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"intentional murder with special circumstances"
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There are nine possible "special circumstances" that lead to application of NY's first-degree murder statute. What are the three most important? (see next two cards)
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(1) intended victim was a police officer, court officer, parole officer, probation officer, employee of the division of youth, or corrections employee, engaged in official duties at the time of the killing AND defendant knew or reasonably should have known that the victim was such;
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There are nine possible "special circumstances" that lead to application of NY's first-degree murder statute. What are the three most important? (card two of three)
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(2) defendant committed murder for hire;
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There are nine possible "special circumstances" that lead to application of NY's first-degree murder statute. What are the three most important? (card three of three)
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(3) victim (a non-participant in the crime) was intentionally killed by the defendant during the course of one of the following felonies or immediate flight therefrom:
(a) robbery (any degree)
(b) burglary (first or second degree)
(c) kidnapping
(d) arson
(e) rape
(f) sodomy
(g) sexual abuse
(h) escape
(i) attempted murder in the second degree
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In NY, what are the forms of second degree murder?
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Three forms exist:
(1) intentional murder (other than first degree murder);
(2) highly reckless murder;
(3) felony murder
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Define "intentional murder" in NY.
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When a person, with intent to cuase the death of another, causes the death of such person or of a third party.
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In NY, what are the two affirmative defenses to a charge of intentional murder?
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(1) Extreme emotional disturbance ("heat of passion")
(2) aiding a suicide.
These defenses mitigate the crime so that defendant may still be prosecuted for manslaughter.
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In NY, what are the enumerated felonies during the commission of which a killing is a second degree murder?
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Burglary, robbery, arson, kidnapping, first degree rape or sodomy, sexual abuse or aggravated sexual abuse, first and second degree escape.
NOTE: all participants in an enumerated felony can be convicted of second degree murder if a killing happens in -process.
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In NY, can a defendant be convicted of felony murder despite not being convicted of the underlying felony?
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Yes.
Felony murder conviction is possible even if the underlying felony is dismissed, defendant is acquitted or charge is not submitted to the jury, where there is sufficient evidence to support the conclusion that defendant committed the crime.
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NY affords defendants who were accomplices to a felony murder a special affirmative defense. What are its elements?
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An accomplice has an affirmative defense to a felony murder charge if:
(1) he did not commit or aid in the commission of the homicidal act;
(2) he was not armed with a deadly weapon or substance;
(3) he had no reasonable grounds to believe others were armed with deadly weapons or substances; AND
(4) he had no reason to believe any participant intended to engage in conduct likely to result in death.
Defendant is still responsible for the underlying felony.
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What are the elements of first degree manslaughter in NY?
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(1) Serious bodily harm resulting in death
(2) extreme emotional disturbance (defendant must raise and prove the affirmative defense of emotional disturbance;
(3) unjustifiable abortional act
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In NY, what are the three types of second-degree manslaughter?
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(1) Reckless: Conscious disregard of a substantial risk, which causes the death of another person.
((2) Abortional act and (3) aiding in suicide are not asterisked.)
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Define first-degree kidnapping in NY.
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When a person abducts another:
(1) with the intent to compel a third person to pay ransom or to act or refrain from acting.
((2) restraining the victim for more than twelve hours with intent to inflict physical injury and (3) the victim dies are not asterisked.)
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Define second-degree kidnapping in NY.
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Abducting someone.
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Define first-degree rape in NY.
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Committed when any person engages in sexual intercourse or deviate sexual intercourse with any other person:
(1) by forcible compulsion.
NOTE: there is no defense of mistake as to victim's age.
((2) victim is less than 11 years old and (3) victim is physically helpless are not asterisked.)
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In NY, may a defendant charged with a sex crime be convicted solely on the testimony of the victim where lack of consent is an element and it results from mental defect or incapacity?
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No.
Defendant may not be convicted solely on the testimony of the victim for any sex crime or attempt where lack of consent is an element and such lack of consent is an element and such lack of consent results from mental defect or incapacity.
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In NY, are there any sex crimes for which corroboration of the victim's testimony is unnecessary to convict?
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Yes. By staute, NY no longer requires corroboration in cases of forcible rape, sodomy or sexual abuse.
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NY law incorporates four common-law crimes against property, one more often tested and three less often tested. What are they?
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More often tested: larceny by trespassory taking.
Less often tested: larceny by trick; false pretenses; embezzlement
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In NY, by statute, the following acts are larceny. What are they, most commonly tested first?
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* issuing a bad check
acquiring lost or mislaid property; false promise; extortion; embezzlement; appropriating leased or rented items.
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What are the most commonly-tested degrees of larceny in NY?
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Class D felony: grand larceny, third degree; property worth more than $3,000
Class C felony: grand larceny, second degree; property worth more than $50,000 or extortion by fear of phyiscal injury, damage to property, or defendant's abuse of his powers as a public servant.
Class B felony: grand larceny, first degree; property worth more than $1,000,000.
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How is larceny graded in NY?
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Larceny is graded by the value of the property taken and in some instances by the manner in which acquired.
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In NY, what are the elements of first-degree robbery?
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(1) defendant causes a nonparticipant serious physical injury; or
(2) defendant is armed or threatens use of a dangerous instrument or displays what appears to be a firearm. Victim must reasonably perceive from defendant's actions that a gun is present; words alone are not enough.
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In NY, is there an affirmative defense to a charge of first degree robbery?
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Yes; however, it is only available where the alleged firarm displayed is not loaded.
This defense only reduces the crime to second-degree robbery.
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What are the elements of second-degree robbery in NY?
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(1) defendant is aided by another who is actually present; or
(2) defendant or another participant physically injures a non-participant; or
(3) there is a threat, whatever its nature, of immediate use of physical force.
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