Crim Barbri

Copyright 2014 by BARBRI, Inc.
CRIMINAL LAW
(with New York distinctions)
Prof. Kip Cornwell
Seton Hall University School of Law

I. INTRODUCTION
A. SOURCES OF LAW FOR THE MULTISTATE BAR EXAMINATION
1. _____________________________________________________________
2. _____________________________________________________________
3. _____________________________________________________________
B. SOURCES OF LAW FOR THE NEW YORK ESSAYS___________________________
C. OVERVIEW: CRIMINAL LAW TOPICS
1. ESSENTIAL ELEMENTS OF CRIMES
a) ___________________________ c) ______________________
b) ___________________________ d) ______________________
2. SPECIFIC CRIMES
a) ___________________________ b) ______________________
3. PARTIES TO CRIME AND LIABILITY FOR THE CONDUCT OF OTHERS
a) ___________________________ b) ______________________
4. INCHOATE (Incomplete) OFFENSES
a) __________________________ c) _____________________
b) __________________________
5. DEFENSES
a) __________________________ e) _____________________
b) __________________________ f) _____________________
c) __________________________ g) _____________________
d) __________________________ h) _____________________
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2. CRIMINAL LAWNEW YORK

D. PRELIMINARY MATTERS
1. JURISDICTION
A crime may be prosecuted in any state where:
a) an ________ that was part of the crime took place; or
b) the ________________________ took place.

2. BURDEN OF PROOF

a) Elements of the crime: In a criminal case, the prosecution must prove each
element of the crime ______________________________________________.
b) Defenses in NEW YORK:
(1) New York divides its defenses into two types:
(a) Defenses: Prosecution must disprove beyond a reasonable doubt.
(b) Affirmative Defenses: The ___________________________ must
prove by a _______________________________ of the evidence.
3. CLASSIFICATION OF CRIMES
a) Felony: A crime that may be punished by _____________ or imprisonment
for more than _______________________.

b) Misdemeanor: A crime punishable by a ___________ and/or imprisonment for
no more than ______________________.
HYPO 1. D, in California, fills out a false insurance claim and mails it to Connecticut. In
which state(s) can D be prosecuted for insurance fraud?

(1) ___________________________, where the _________________ took place; and

(2) ___________________________, where the _________________ took place.
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CRMINAL LAWNEW YORK 3.

II. THE ESSENTIAL ELEMENTS OF CRIME
A. THE ACT REQUIREMENT
Culpable acts can be either commissions (physical acts) or omissions (the
failure to act). We will address both.
1. PHYSICAL ACTS (COMMISSIONS)
a) All bodily movements are physical acts that can be the basis for criminal liability,
provided they are _____________________________ .
b) Involuntary movements that are not considered criminal acts:
(1) one that is not the product of the actors ________________________.
(e.g., being pushed)
(2) _____________________ or otherwise __________________ conduct.
(3) a ____________________ or _________________________________.
2. OMISSIONS: A failure to act can also be the basis for criminal liability, provided
three requirements are satisfied. (Remember: You need all three.)
a) *First and foremost, you need a _____________________________, which can
be created in five different ways:
(1) by _____________________________________
Examples: filing tax returns, professionals reporting child abuse
(2) by _____________________________________
Examples: babysitter, doctor, lifeguard
(3) by the _______________________________between the D and the victim
Most important for the Bar:
(a) ____________________________________
(b) ____________________________________
(4) by the _________________________ assumption of care
Example: If D starts rescuing V, D has a duty to follow through; D cannot
abandon the effort unreasonably, if the rescue effort was undertaken
voluntarily.
(5) by _________________________________________________
Example: If D caused the problem initially, D has a duty to help.
b) Second, you need __________________________ of the facts giving rise to the
duty, and
c) Third, you need the __________________________________________.

B. MENTAL STATES

1. COMMON LAW MENTAL STATES: There are four common law mental states.
a) Mental State #1: ________________________________________________
(1) Definition: When the crime requires not just the desire to do the act, but
also the desire to achieve a _____________________________________.

(2) The 11 Specific Intent Crimes:
(a) _______________________________________
(b) __________________________ (statutory crime)
(c) _______________________________________
(d) _______________________________________
(e) _______________________________________
(f) _______________________________________
(g) _______________________________________
(h) _______________________________________
(i) _______________________________________
(j) _______________________________________
(k) _______________________________________
(3) *Defenses: There are two defenses that available only for specific intent
crimes. They are:
(a) _______________________________________; and
(b) an unreasonable __________________________________ .
Property crimes
Crimes against
the person
Inchoate crimes

b) Mental State #2: ________________________________________________
(1) Definition: When a defendant acts ______________________ or with
_________________________________ of an obvious or known risk.
(2) Malice Crimes:
(a) _________________________
(b) _________________________

c) Mental State #3: ________________________________________________
(1) Definition: The defendant need only be __________________________
______________________ of the factors constituting the crime; he need
not intend a specific result.

(Note: The jury can usually infer the general intent simply from the doing of
the act.)
(2) General Intent Crimes:
(a) ___________________________________
(b) ___________________________________
(c) ___________________________________
(d) ___________________________________
(All four are crimes against the person.)
d) Mental State #4: ________________________________________
(1) Definition: When the crime requires simply doing the act; no mental state is
needed.
(2) Two Types of Strict Liability Crimes
(a) ____________________________ offenses: Regulatory offenses that
implicate public health or safety and typically carry small penalties.
Examples (italicized elements are strict liability):
(i) transferring unregistered firearms
(ii) Selling contaminated food
(iii) Shipping adulterated drugs in interstate commerce
(b) ______________________________________:
Having sex with someone who is under the age of consent.

2. NEW YORK MENTAL STATES: New York no longer uses the common law
mental states; instead, it uses the Model Penal Codes mental states, defined as
follows:
a) Intent (MPC: Purpose): The defendant acts intentionally when it is his
_________________________________________ to achieve a particular result.
(In other words, that is what the defendant _______________ to do.)
b) Knowledge: The defendant acts knowingly when he is _____________ of what
he is doing. With respect to a result, the defendant acts knowingly when he is
aware that it is ________________________________________ that his conduct
will cause that result.
c) Recklessness: The defendant acts recklessly when he is aware of a substantial and
unjustifiable risk and ____________________________________ that risk.
d) Negligence: The defendant acts negligently when he _____________________
__________________________________ of a substantial and unjustifiable risk.
e) Strict Liability: No mental state required (similar to the common law).
*Note: Because a number of states have adopted the Model Penal Codes mental
state categories, you may also encounter them in a hypothetical criminal
statute on the MBE.

C. CAUSATION (Two types You need both.)

1. ACTUAL (OR BUT FOR") CAUSATION
a) The Rule: A defendant is an actual cause (the cause-in-fact) if the bad result
would not have happened ______________________ the defendants conduct.
HYPO 2. Victor is walking quickly down the street when Dudley steps out of a doorway
with a gun and says Stop right there! This is a stick-up. Dudley rummages through
Victors pockets, takes Victors wallet, and runs off. Victor is still standing in the same spot
moments later when he is struck by lightning and killed.

Is Dudley an actual cause of Victors death?
_________. ____________________ the stick-up, Victor would not have been standing
in the spot where lightning struck.

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b) Exception: An accelerating cause is an actual cause.
HYPO 3. Alex stabs Victor in the abdomen, causing a fatal wound that will kill Victor within
five minutes. One minute later, Dudley walks by and shoots Victor in the head, killing him
instantly.

Is Dudley an actual cause of Victors death?

_________. Dudleys conduct is an __________________________ cause of Victors death,
which qualifies as an actual cause.
2. PROXIMATE (OR LEGAL) CAUSATION
a) The Rule: A defendant is a proximate cause if the bad result is a _____________
and ____________________________ consequence of the defendants conduct.
b) Applications:
(1) Intervening causes: D will not be considered a proximate cause if an
_______________________________________ event causes the bad result.
(2) Eggshell Victims: D will be considered a proximate cause even if the
victims ____________________________________________contributed
to the bad result.

HYPO 4. Reconsider HYPO 2, where Victor was killed by lightning shortly after being robbed
by Dudley.

Is Dudley a proximate cause of Victors death? ______. Being struck by lightning is an
__________________________________________________event.
Is Dudley criminally liable for Victors death? ______. Criminal liability requires BOTH
__________________ and ________________________ causation.
HYPO 5. Dudley shoots Victor, but the wound is not fatal. Victor is taken to the hospital,
where a surgeon operates to remove the bullet. As a result of a blood-clotting disorder, Victor
dies on the operating table, due to excessive blood loss.

Is Dudley a proximate cause of Victors death?
___________. It doesnt matter that Victors ______________________________________
contributed to his death.

D. THE CONCURRENCE PRINCIPLE
1. The Rule: The defendant must have the required ___________________________
at the same time as he engages in the _____________________________________.
2. Application: Concurrence issues arise most frequently in two crimes:
a) ________________________; and
b) ________________________.
We will see how and why concurrence issues arise when we discuss these crimes
later in the lecture.

III. CRIMES AGAINST THE PERSON: ASSAULT AND BATTERY
A. COMMON LAW BATTERY
1. The _____________________________________
2. application of ____________________ to another,
3. resulting in either
a) ___________________________________ or
b) an _________________________________.
4. Mental State: ___________________________
B. COMMON LAW ASSAULT
1. Version #1: ________________________________ (a swing and a miss)
2. Version #2 (reasonable apprehension):
a) The ___________________________________ creation
b) other than by ___________________________
c) of a __________________________________ in the mind of the victim
d) of _______________________________ bodily harm (a fake punch).
3. Mental State: ______________________________________


C. ASSAULT IN NEW YORK
1. ASSAULT Definition:
a) _________________________________________
b) causing ___________________________________
c) to ______________________ person.
2. DEGREES OF CRIMES IN NEW YORK IN GENERAL

a) The simple truth: NEW YORK has created multiple degrees for many crimes.
Attempting to memorize the definition of every degree of every crime covered
would drive you crazy, and I would not recommend it.

b) A better strategy: For each crime, memorize one degree (pick one in the middle)
and make an educated guess as to the others.
c) How to make an educated guess: Know the three typical factors that make a
crime more or less serious:
(1) _____________________ (Add a gun, add a degree.)
(2) ______________________, which come in two levels of seriousness:
(a) Physical injury: ___________________________________.
(b) Serious physical injury: _______________________ or ________
_______________________________.
(3) ____________________________ (money, drugs).

We can now apply this strategy to the crime of assault.
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3. DEGREES OF ASSAULT IN NEW YORK
a) First Degree Assault
(1) Second degree assault, plus
(2) a _____________________.
b) Second Degree Assault
(1) intentionally causing
(2) _________________ physical injury
c) Third Degree Assault
(1) Intentionally causing
(2) ________________________ physical injury.
4. MORE ON ASSAULT IN NEW YORK:
(1) Battery: Battery is not a separate crime in New York!
(2) All versions of assault in New York require ___________________.
(That is, there is no offensive touching version of assault in New York, as
there is with common law battery).
(3) Menacing: Merely creating a ________________________________
(without an intent to actually injure) is not assault. It is a different crime
called menacing.
(4) Attempted assault in New York requires the __________________ to
assault.

Make it less
serious
Make it more
serious
Start
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IV. CRIMES AGAINST THE PERSON: HOMICIDE
A. THE YEAR-AND-A-DAY RULE
1. THE MAJORITY RULE: Death may occur at any time.
2. THE COMMON LAW RULE: Death must occur within a year-and-a-day of the
homicidal act.
B. COMMON LAW HOMICIDE CRIMES
1. MURDER (also called common law murder)
a) Definition
(1) causing the _________________________
(2) of _________________________________
(3) with _______________________________
b) Mental State: The requirement of malice aforethought is satisfied if the
defendant has any of the following four mental states:
(1) the intent to _____________________________
Example: Dudley points a gun at Victor, says: I want to kill you.
He then shoots and kills Victor.
(2) the intent to inflict ______________________________________
Example: Dudley shoots Victor in the leg, intending only to maim him.
Unfortunately, Victor dies from injuries related to the gunshot wound.

(3) __________________________________________, meaning
reckless indifference to _______________________________
(Many states call this type of homicide depraved heart murder.)
Example: Dudley aims his pistol over Victors head and fires, intending to
scare Victor. Unfortunately, the bullet hits Victors head, killing him.

(4) the intentional commission of an __________________________________
____________________________________ (felony murder)
Example: Dudley robs a bank. He points a gun at the teller. The gun
accidentally goes off, killing the teller.

c) Intent to Kill Murder: Special Rules
(1) Deadly Weapon Rule: The intentional use of a deadly weapon creates an
inference of an _______________________________________________.
Note: A deadly weapon is typically defined as any instrument used in a
manner likely to produce death or serious bodily injury.
(2) Transferred Intent (A bar exam favorite): If a defendant intends to harm
one victim, but accidentally harms a different victim instead, the defendants
intent will transfer from the intended victim to the actual victim.
Note: This rule applies most frequently to murder but can also apply to other
crimes, such as battery and arson.

(a) The Exception: Transferred intent does not apply to attempts, only to
crimes with completed harms.

HYPO 6. Dudley shoots at Alex, intending to kill him. Alex ducks, and Dudleys bullet instead
hits Victor, killing him.

6(a) Is Dudley guilty of Victors murder?
________. The intent to kill Alex ___________________ to Victor.
6(b) Is Dudley guilty of any crime with respect to Alex?
________, ______________________________ murder because Dudley
__________________ to kill Alex (two victims, so no merger)

HYPO 7. Dudley shoots at Alex, intending to kill him. Alex ducks, and Dudleys bullet instead
hits Victor. Victor is wounded, but does not die.

7(a) Is Dudley guilty of attempted murder of Alex?
_______. Dudley (still) _________________ to kill Alex.
7(b) Is Dudley guilty of attempted murder of Victor?
_______. Because Victor did not die, the harm was ______________________
as to him; therefore, the intent to kill Alex does not ______________________ to
Victor.


d) Felony Murder
(1) Definition: ______ killing caused during the commission of or attempt to
commit a felony.

(2) Most common limitations on felony murder:
(a) D must be _____________________of the underlying felony.
(If you have a defense to the felony, you have a defense to felony
murder.)

(b) The felony must be ______________________________________.

NEW YORK limits felony murder to certain felonies, which you can
remember by the word BRAKES:

B ________________________
R ________________________
A ________________________
K ________________________
E ________________________
S ________________________

(c) The merger rule: The felony must be _________________________
of the killing.
(Therefore, for example, aggravated assault or battery cannot be the
underlying crime.)

(d) Res gestae principles: The killing must take place _______________
the felony or during _________________________________________
from the felony. Once the felon(s) reach a place of ________________
________________________, the felony ends.
(e) The death must be _________________________________ .
(f) The victim must not be a ___________________________.
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(3) Vicarious Liability:
(a) Proximate Cause theory: In most states, including NEW YORK, if
one of the co-felons proximately causes the victims death, all of the
other co-felons will be guilty of felony murder, even if the actual killing
is committed by a _____________________________ (e.g., a police
officer).
(b) Agency theory: In some states, however, the felony murder doctrine
applies only if the killing is committed by one of the _______________.
(4) The Non-Slayer Defense: NY provides a limited affirmative defense to
felony murder if the defendant can prove each of the following four things:
(a) The defendant did not _______________ the victim;
(b) The defendant did not have a _____________________________;
(c) The defendant had no reason to believe that his _________________
had deadly weapons; and
(d) The defendant had no reason to believe that his co-felons intended to do
anything that was likely to result in ____________________.
HYPO 8. Dumb and Dumber rob a bank. Dumber sits outside in the getaway car, while Dumb
goes into the bank, points a gun at the teller, and says: This is a stick up. In the following
scenarios, indicate who, if anyone, is guilty of felony murder.
8(a) Dumbs gun goes off accidentally and kills the teller. _________________________

8(b) A security guard fires his weapon at Dumb, but the bullet strikes and kills the teller
instead.

Proximate cause theory: ___________________________
Agency theory: ________________ is guilty of felony murder, because the
shooter was not a _________________.
8(c) The teller gives Dumb a bag of money, and Dumb runs outside and jumps into the
getaway car. As Dumber speeds away, he collides with a police car racing to the
scene. Both Dumb and the officer are pronounced dead at the scene from injuries
sustained in the accident.

With respect to the officer? Dumber _______ guilty.
With respect to Dumb? Dumber ________ guilty, because Dumb is a ___________.

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HYPO 8 (contd):

8(d) One hour after arriving at their secret hideout, Dumb drives to Starbucks for
coffee. En route, he runs a red light and kills a pedestrian lawfully crossing the
street.
___________ is guilty of felony murder. Once the felons reach a place of
_________________________________________, the felony ends.

8(e) What if, instead, Dumb and Dumber had agreed to commit the robbery unarmed.
When they enter the bank, Dumber hands the teller a threatening note, while
Dumb stands by the door as a lookout. Suddenly, to Dumbers great surprise,
Dumb pulls out a gun and fires a warning shot into the air. The bullet ricochets
off the ceiling, striking and killing one of the customers. Is Dumber guilty of
felony murder?
Majority rule: ______________
NEW YORK: ______. Dumber would qualify for the ____________________
defense.

e) Statutory Variations
(1) First Degree Murder Majority approach: Most states have created two
degrees of murder by statute:

(a) First Degree Murder: any intentional killing committed with

(i) _____________________________, and
(D thought about it ahead of time)
(ii) _____________________________.
(D was cool, calm, and collected).

(2) Second Degree Murder- Majority approach: All other intentional
murders, as well as depraved heart murder and, where it still exists as a
separate category of homicide, intent-to-inflict-serious-bodily-harm murder.

(3) First degree murder in NEW YORK:
(a) an ___________________ to kill; and
(b) the defendant is more than _________ years old; and
(c) at least one aggravating factor:
(i) the victim is a _____________________________________ ,
engaged in ________________ duties at the time of the killing;
(ii) the defendant committed a murder for ______________ ;
(iii) ______________ murder, where the victim was intentionally killed;
(iv) killing for the purpose of witness _________________________; or
(v) there was more than one victim ____________________________
killed in the same criminal transaction.
(4) Second degree murder in NEW YORK:
(a) ___________________________ killing that does not qualify for first
degree
(Note: Premeditation and deliberation are irrelevant in NY.)
(b) ____________________________ killing demonstrating
_______________________________ to human life by engaging
in conduct that creates a grave risk of death, generally
to more than one victim.
Note: While intoxicated driving cases generally do not constitute
depraved indifference murder, particularly egregious circumstances
may support this charge in a given case. See, e.g., People v. Heidgen
(NY 2013) (D with .28 blood-alcohol level drove at high rate of speed
on wrong side of highway for 2! miles, disregarding signage and alerts
from other motorists, resulting in two deaths.)

(c) _________________ murder, where the victim
is not a co-felon and is killed unintentionally.
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2. VOLUNTARY MANSLAUGHTER
a) Definition:
(1) A killing committed ______________________________
(2) in the _________________________________________
(3) upon ______________________________________________.
b) Core requirements: To qualify for voluntary manslaughter, an intentional
homicide must satisfy four requirements:
(1) The provocation must be objectively adequate, which means it would arouse
a sudden and intense ____________________________ in the mind of a
reasonable person.
Examples of objectively adequate provocation at common law:
(a) serious ____________________or ____________________
(b) presently witnessed_______________________
(2) The defendant was _______________________________ provoked.
(3) The defendant did not have time to __________________________.
(4) The defendant did not _______________________________________
between the provocation and the killing.

c) The NEW YORK Approach: Extreme Emotional Disturbance (EED)
Manslaughter

(1) Definition: An _____________________ killing committed under the
influence of a _____________________and extreme emotional disturbance.
(2) Affirmative Defense: EED acts as an affirmative defense to second degree
murder, which means the defendant must prove EED by a
________________________________ of the evidence.
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3. COMMON LAW INVOLUNTARY MANSLAUGHTER
a) Two types:
(1) A killing committed during the commission of a _____________________ to
which the felony murder doctrine does not apply.
(This is sometimes called unlawful act manslaughter.)
(2) An unintentional killing committed:
(a) Common Law: with ______________________________;
(i.e., a gross deviation from a reasonable standard of care)
(b) MPC/Modern trend: ____________________________.
4. MANSLAUGHTER IN NEW YORK
a) First degree manslaughter:
(1) ______ manslaughter; or
(2) An intent to cause _____________________ physical injury.
b) Second degree manslaughter:
(1) Mental State: __________________________
(2) Definition: The defendant is aware of and ________________________
__________________________ a substantial and unjustifiable risk of death.
5. VEHICULAR MANSLAUGHTER IN NEW YORK
a) Second degree vehicular manslaughter: Causing the death of another person
as a result of driving while ________________________.
b) First degree vehicular manslaughter: Second degree vehicular manslaughter,
plus an additional aggravating factor, such as:
(1) a blood-alcohol level of ______ or higher; or
(2) the _____________ of more than one victim.
6. CRIMINALLY NEGLIGENT HOMICIDE IN NEW YORK
a) Mental State: ________________________________________
b) Definition: The defendant __________________________________________
of a substantial and unjustifiable risk of death
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HYPO 9. What NEW YORK homicides crime has Dudley committed?

9(a) Dudley walks into a crowded bar, pulls out a gun, shouts everybody
duck, and then begins shooting wildly. Dudley does not intend to kill
anyone; he just thinks it will be funny to see people dive for cover. Victor
is struck by a bullet and killed.

________________ degree murder, on a theory of _________________
________________________________
9(b) Dudley shoots Victor in the leg, hoping to prevent Victor from competing
in a figure skating championship. To Dudleys surprise, Victor dies.

______________ degree ___________________________
(intent to inflict ______________________________________)
9(c) As Victor is cleaning his gun, his friend Dudley sits down next to him.
Although he knows that the barrel of the gun is pointing at Dudley and that
the gun is loaded, Victor continues to clean the firearm. The gun fires
accidentally, killing Dudley.

________________ degree _____________________________
( _________________________ killing)
9(d) Dudley is pointing his gun at Victor while cleaning the gun. Although
Dudley thinks the gun is unloaded, there is in fact one bullet still in the
chamber. The gun fires accidentally, killing Victor.
___________________________________________ homicide

9(e) After a three-martini lunch, Dudley attempts to drive back to his office to
meet a client. En route, he fails to notice a stop sign and proceeds through
an intersection where his vehicle strikes and kills a pedestrian. His blood-
alcohol level registers .09, when tested at the scene.

________________ degree ____________________________________

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7. AGGRAVATED HOMICIDE IN NEW YORK
a) Aggravated Homicide: When the victim of the homicide is a police officer killed
in the _______________________ (i.e., Aggravated Murder, Aggravated Man-1,
Aggravated Man-2, Aggravated Criminally Negligent Homicide).
b) Aggravated Murder added recently: When the defendant, over the age of
_____, causes the death of a child under the age of ___________ in an especially
________________ and __________________ manner.
c) Aggravated Vehicular Homicide: When the defendant commits first degree
vehicular manslaughter and engages in ___________________ driving.
7. REVIEW AND SUMMARY: NEW YORK HOMICIDE OFFENSES
Crime Intentional Unintentional Felony Murder
Murder-1
2. INTENT TO
KILL PLUS
AGGRAVATING
FACTOR
9. INTENTIONAL
KILLING
Murder-2
1. start here
(INTENT TO KILL)
5. DEPRAVED
INDIFFERENCE TO
HUMAN LIFE
8. ACCIDENTAL
KILLING
Man-1
3. INTENT TO
KILL PLUS EED OR
INTENT TO CAUSE
SERIOUS
PHYSICAL INJURY

Man-2
4. RECKLESSNESS

Vehicular
Manslaughter
6. DEATH CAUSED
BY DRIVING WHILE
INTOXICATED

CNH
7. CRIMINAL
NEGLIGENCE

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V. CRIMES AGAINST THE PERSON: CONFINEMENT OFFENSES AND SEX OFFENSES
A. CONFINEMENT OFFENSES
1. COMMON LAW FALSE IMPRISONMENT
a) Elements
(1) The _______________________________
(2) _________________________ of a person
(3) without his or her ___________________.
b) Mental State: ___________________________
2. UNLAWFUL IMPRISONMENT IN NEW YORK
(a) Second Degree:
(1) unlawfully
(2) __________________________someone,
(3) without their ____________________, and
(4) with _________________________ that the restriction is unlawful.
(b) First Degree: Second degree, plus a risk of _______________________ physical
injury.
3. COMMON LAW KIDNAPPING
a) Elements
(1) ___________________________________________________________
(2) that involves either ______________ the victim or __________________ the
victim in a secret place.
b) Mental State: ____________________________
4. KIDNAPPING IN NEW YORK
a) Second Degree: ____________________________ someone.
b) First Degree: Second degree kidnapping, plus one of the following:
(1) ___________________;
(2) ___________________ of the victim for more than _____ hours with intent
to rape, injure, or rob the victim; or
(3) the ______________ of the victim.
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B. SEX OFFENSES
1. FORCIBLE RAPE
a) Required Acts
(1) ________________________________________
(2) without the victims _______________________
(3) accomplished
(a) by _________________________________________, or
(b) by _________________________________________, or
(c) when the victim is _______________________________________.
b) Mental State: _______________________________
2. STATUTORY RAPE
a) Elements
(1) ________________________________________________
(2) with someone under the age of ___________________.
b) Mental State:
(1) Majority/NEW YORK Rule: _______________________________
(2) MPC/Minority Rule: A _________________________ mistake of age is a
defense.
c) NEW YORK: Age of consent is ________.
(Defendant must be at least ______, and the victim ______ or younger.)
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VI. PROPERTY CRIMES: THEFT OFFENSES
A. COMMON LAW THEFT CRIMES
1. LARCENY
a) Definition:
Mnemonic: !hieves !ook "armens #urse $nd %saacs #ortfolio.
T TRESPASSORY
T TAKING and
C CARRYING AWAY the
P PERSONAL PROPERTY
A of ANOTHER, with the
I INTENT to
P PERMANENTLY RETAIN the property.
(1) Trespassory: _____________________or ______________________
(2) Taking and Carrying Away: The property must be _______________.
(the asportation requirement)

(3) The Personal Property of Another: Key question: Who had
_____________________________________ at the time of the taking?
(a) If D has lawful custody of the property, he cannot be guilty of larceny
for taking it (even if D doesnt own it).
(b) Conversely, D can be guilty of larceny for taking his own property, if
someone else had lawful custody of the property when D took it.
(4) With the Intent to Permanently Retain the Property: If the defendant
intends to give the property back, there is no larceny since, in this
circumstance, he lacks the requisite ________________________________.
b) The Erroneous Takings Rule: A taking under a _________________________
is never larceny, even if the defendant ________________________ believes the
property is his.

c) Continuing Trespass: If a defendant wrongfully takes property, but without
the intent to steal, he will not be guilty of larceny. But, if the defendant
_____________ forms the intent to steal, the initial trespassory taking is
considered to have _____________________ and he will be guilty of larceny.
Note: This doctrine creates an exception to the concurrence principle.

HYPO 10. Is Dudley guilty of larceny?
10(a) Dudley takes Victors cell phone from Victors bag without Victors permission,
planning to return the cell phone once hes finished using it.
_____. Because Dudley plans to give the phone back, he lacks the specific
intent to ________________________ that is necessary for larceny.
10(b) Dudley leases his car to Victor for a one-year term. Two months into the one-
year lease, Dudley has a change of heart and takes the car back without Victors
permission, intentionally violating the lease agreement.
______. At the time Dudley took the car, Victor ________________________
_____________________; therefore, Dudleys taking is _________________,
even though he is the owner. (!)
10(c) Dudley takes Victors laptop, mistakenly believing that the laptop is his.
______. Dudleys _______________________________, negates his
liability, even though it is _________________________.
HYPO 11. Dudley takes Victors cell phone from Victors bag without Victors
permission, planning to return the cell phone once hes finished with it. After using it,
however, Dudley decides that Victors phone is so nice, hes going to keep it. Is Dudley
guilty of larceny?

_____. Dudleys conduct constitutes a _______________________________________
under these circumstances.


2. EMBEZZLEMENT
a) Definition: Conversion of the personal property of another by a person already
in lawful possession of that property, with the intent to defraud.
b) Mental State: specific intent to ______________________________
Note: If the defendant intends to give the exact property back in the exact form,
he will not have the intent to defraud.
c) Key difference from Larceny: To constitute embezzlement, a D must have
__________________________________ of the property that he
misappropriates.
d) Possession vs. Custody: Possession involves more than mere custody. It
requires the authority to exercise some discretion over the property.

HYPO 12. Have the following defendants committed larceny, embezzlement, or neither?

12(a) A trustee siphons off trust money and donates the money to her favorite charity.
This is classic ______________________. (Note: The beneficiary can be a third party.)
12(b) A bank security guard wrongfully takes $1,000 from the banks vault.
___________. The guard lacks the ______________________________________
over the money in the vault that is necessary for _____________________________.
12(c) The curator of an art museum sells a $50,000 painting entrusted to his care without
asking the owners permission. The curator intends to buy the painting back, after
doubling the $50,000 from the sale by playing blackjack in Atlantic City. Unfortunately,
he loses all the money.
_______________. The curators intent to return the painting negates the intent to
__________________ that is necessary for larceny and the intent to _______________
that is necessary for embezzlement.


3. FALSE PRETENSES
a) Definition: Obtaining title to the personal property of another by an intentional
false statement, with the intent to defraud.
b) Key Difference from Larceny: In larceny, the defendant gets only custody of
the property; in false pretenses, the defendant gets _______________________,
meaning ________________________.
c) False Statement: Must be of a ____________________ or ______________
event, not a future promise.

4. LARCENY BY TRICK distinguished: If the defendant obtains only
_____________________ (not title) as a result of the intentional false statement,
the crime is larceny by trick, not false pretenses.
HYPO 14. Is Dudley guilty of larceny by trick or false pretenses?
Dudley says to Victor: If you give me unrestricted use of your cell phone, I will write you a
$500 check on my new checking account. Dudley knows that the checking account is empty.
Victor agrees to the deal and Dudley writes him a check for $500.
________________________________. With respect to the cell phone, Dudley obtained
___________________ only, not ________________.
HYPO 13. Is Dudley guilty of false pretenses?
13(a) Dudley says to Victor: If you give me your cell phone, I will write you a $100
check on my new checking account, which has a balance of $1000 today. Dudley
knows that the checking account is empty. Victor agrees to the deal and gives
Dudley the cell phone in return for a $100 check.
______. Dudley made an intentional false statement with the intent to defraud and
obtained _____________ to the cell phone.
13(b) Dudley says to Victor: If you give me your cell phone, I will give you $100 cash
tomorrow. Dudley has no intention of paying the money. Victor agrees to the deal
and gives Dudley the cell phone.
____. Promises of ______________ conduct are __________________________
for false pretenses.


5. ROBBERY (Larceny + 2)
a) Elements
(1) a _________________________________________________
(2) from someone elses ___________________ or ____________________
(3) by _________________ or threat of ______________________ injury.
b) Mental State: the specific intent to ______________________
c) Presence: Some location reasonably close to the victim, e.g. rooms in a house
other than the room in which the victim is located
d) Force: Any amount of force sufficient to overcome resistance is sufficient.
(1) Snatching a chain off the victims neck? _____________________
(2) Snatching a handbag off a womans extended arm? ____________
(3) Picking a mans pocket? _____ (Pickpocketing is _________________.)
e) Threats: Need immediate injury (Your money or your life)
(1) Under modern statutory law, an individual who obtains the property of
another through oral or written threats of future harm does not commit
robbery; he commits the crime of _____________________________, which
is also called ___________________________.
Example: Give me your money, or Ill post those pictures of you on the
web!

6. FORGERY
a) _____________________ or ____________________ a writing
b) so that it is _____________________
c) Mental State: with the specific intent to _________________________.
HYPO 15. Has Dudley committed forgery?
Needing $100 fast, Dudley takes Victors checkbook, writes out a $100 check to
himself, and signs Victors name to the check.

____. Dudley made a __________writing with the intent to __________________Victor.


B. NEW YORK THEFT CRIMES
1. LARCENY
a) Definition: Any crime that would be larceny, embezzlement, false pretenses,
or larceny by trick at common law is considered larceny in NY.
b) Degrees of Larceny:
(1) First degree: More than $_______________
(2) Second degree: More than $_______________
(3) Third degree: More than $_______________
(4) Fourth degree: More than $_______________
(5) Petit Larceny: lesser amounts.
2. ROBBERY
a) Third Degree: __________________________________
(1) Force may be established by the threatened use of immediate physical force
upon another.
Example: Force was established by Ds impersonating a police officer and
thereby conveying the impression that disobeying his directives would result
in olpimmediate physical injury to the victim. [People v. Smith (NY 2014)]
b) Second Degree: Forcible stealing, plus one of the following:
(1) the defendant is aided by another who is _________________ present; or
(2) the defendant or his accomplice ________________ the victim; or
(3) a _________________________ is stolen.
c) First Degree: Forcible stealing, plus one of the following:
(1) the victim is ____________________ injured; or
(2) the defendant uses or displays what is, or appears to be, a _______________
(Add a gun, add a degree)
Affirmative Defense: If the defendant can prove that the gun was unloaded,
the crime is reduced to second degree robbery.

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Memorize

VII. PROPERTY CRIMES: HABITATION OFFENSES
A. BURGLARY
1. COMMON LAW BURGLARY: Breaking and entering the dwelling of another at
night with the intent to commit a felony inside.
a) Breaking: Creating or enlarging an opening by at least ________________
________________
(1) Includes: breaking a window, opening a window, opening a door
(2) Does not include: climbing through an already open window, entering with
permission
(3) Constructive breaking: Entry is gained through fraud, threats or
intimidation.

Example: A woman obtains the key to an apartment by telling the owner she
will clean it for him while he is on vacation. She actually intends to steal his
television, which she does. Because she gained entry to the apartment by
fraud, this is a constructive breaking.
b) Entry: Some part of the defendants body must enter the building.
c) Dwelling: A structure where someone regularly _______________
d) Of Another: You cant burglarize your own house.
e) At Night: Self-explanatory. (Look for clues: The sun having set )
f) Intent to Commit a Felony Inside: _______________________________
(intent to steal, rob, rape, assault, kill, etc.)
2. MODERN STATUTORY CHANGES: Many states have eliminated the technical
requirements of common law burglary, especially the breaking, dwelling and
nighttime elements.
HYPO 16. Is Dudley guilty of common law burglary?

Dudley covets the new flat-screen television purchased by his neighbor, Victor. Knowing Victor is
a sound sleeper, Dudley breaks into Victors house at midnight to steal the TV.
_____. Dudley broke into and entered Victors home at night to commit the felony of __________.

3. BURGLARY IN NEW YORK
a) Third Degree:
(1) entering or ___________________
(2) in a ______________________
(3) __________________________
(4) with the ___________ to commit a crime inside (any crime, not just felonies).
Note: no requirements re breaking, dwelling or nighttime

b) Second Degree: Third degree burglary, plus one of the following:
(1) The building is a _____________________, or
(2) A non-participant is _______________________, or
(3) The defendant carries a _________________________.
c) First Degree: The defendant ________________ that he is burglarizing a
___________________, plus one of the following:
(1) A non-participant is ___________________, or
(2) The defendant carries a _______________________.
(Note: Addition of knowledge re the dwelling element kicks it up from second
degree to first.)

HYPO 17. Is Dudley guilty of burglary at common law and in NEW YORK?
Dudley is homeless. One frigid night in January, he breaks into Victors home to get warm. As he
is leaving 30 minutes later, Dudley sees Victors laptop and decides to steal it. He hides the laptop
inside his jacket as he exits.
Common law: _______. There is a ___________________________ problem because Dudley
lacked the _____________________________ when he entered the residence. He committed
___________________, but not _____________________.
NEW YORK: __________. The addition of ___________________ to the definition of burglary
eliminates the ______________________________________ problem.

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B. ARSON
1. COMMON LAW ARSON
a) Definition: The malicious burning of a building.
b) State of Mind: ___________________________________
c) Burning:
(1) Requires ____________________________________; and
(scorching is not enough, but charring is)
(2) It must be the ________________________________ itself that burns.
(not the carpet, for example)
2. ARSON IN NEW YORK
a) Degrees of Arson
(1) Fourth Degree: __________________ burning of a building
(2) Third Degree: ______________________ burning of a building
(3) Second Degree: Third degree arson, when the defendant _____________ or
_______________________________ that someone was inside the building.
(4) First Degree: Second degree arson, plus an _______________________ or
_______________________________ device.
3. STATUTORY DEVELOPMENTS:
a) Dwelling: Traditionally, arson was limited to dwellings, but most states now
extended arson to all buildings.
b) Of Another: Traditionally, a defendant could not commit arson on his own
property; most states have eliminated that restriction.
VIII. PROPERTY CRIMES: POSSESSORY OFFENSES
A. POSSESSION OF CONTRABAND
1. Required Act: When a statute criminalizes the possession of contraband (e.g., drugs,
stolen property, child pornography), possession means ____________________ for
a period of time long enough to have an opportunity to terminate
________________________________.
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a) Constructive Possession: The contraband need not be in the defendants
actual possession, so long as it is close enough for him to exercise
_________________________ and ________________________ over it.
2. Mental State: ____________________________ (of the possession and of the
character the item possessed).
3. NEW YORK Firearms felonies:
a) Criminal Possession of a Firearm: knowingly possessing __________
firearm
b) Criminal Possession of a Weapon: knowingly possessing a loaded firearm
either:
(i) outside ones ___________ or ______________________________; or
(ii) with the intent to use it _____________________ against another.
B. RECEIPT OF STOLEN PROPERTY
1. Required Acts:
a) Receiving _________________________ and _______________________
b) of stolen ________________________ property.
2. Mental State:
a) ___________________ that the property has been obtained criminally by another
party; and

b) with the ___________________ to permanently deprive the owner of his interest
in the property. .
3. NEW YORK: Criminal Possession of Stolen Property
a) The property must really be stolen at the time the defendant receives it. Property
that is ______________________ by the police and is being used in an
undercover sting operation is not considered stolen.
IX. PARTIES TO CRIME AND LIABILITY FOR THE CONDUCT OF OTHERS
A. PARTIES TO CRIME: PRINCIPALS AND THEIR ACCOMPLICES
1. The person who commits the crime is called the _______________________.
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2. The person who helps is called the ____________________________.
a) Act: __________________ or _________________________ the principal
b) Mental State: with the __________________________ that the crime be
committed.
(1) Recklessness and Negligence Crimes: If the principals crime requires a
mental state of recklessness or criminal negligence, most jurisdictions,
including NEW YORK, hold an accomplice liable for intentional conduct
that aids the principal and manifests the required recklessness or negligence.
Example: Foster and his friend Cannon seize Middleton, who they believe
has attacked Fosters girlfriend. Foster wants to bring his girlfriend to the
scene to identify Middleton. Before Foster leaves to find his girlfriend, he
gives Cannon a knife to use in guarding Middleton during his (Fosters)
absence. Cannon and Middleton subsequently get into a fight, during which
Cannon fatally stabs Middleton. HELD: Fosters conviction for criminally
negligent homicide as Cannons accomplice was appropriate since the jury
could reasonably conclude that Foster was criminally negligent in handing
Cannon the knife to prevent Middleton from escaping. [State v. Foster,
(Conn. 1987)]

B. SCOPE OF ACCOMPLICE LIABILITY
1. THE RULE: The accomplice is guilty of:
a) all crimes that he ________________ or ________________________
(just as if he did it), and
b) all other _____________________ crimes committed along with the aided crime.
2. WHEN A PERSON IS NOT AN ACCOMPLICE
Two important principles:
a) _______________________________ at the scene of the crime does not make
someone an accomplice; he or she must actively aid or encourage the principal.

b) ______________________________________________ of the crime does not
make someone an accomplice; he must intend to aid or encourage the principal.
(1) NEW YORK distinction: Like the common law, New York also requires
intent for accomplice liability. However, mere knowledge can make someone
guilty of the (lesser) crime of criminal __________________.

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3. WITHDRAWAL: An accomplice can avoid criminal liability by withdrawing before
the crime is committed. What he must do to withdraw depends on how he assisted the
principal:
a) Encourager: An accomplice who only encouraged the principal may withdraw
simply by ___________________________ the encouragement before the crime
is committed.

b) Aider: An accomplice who actually helped the principal must either
______________________ the assistance or otherwise ___________________
the crime from happening (by notifying the authorities, for example).
c) Withdrawal in NEW YORK: Renunciation
(1) The accomplice must make a _______________________________ to
prevent the commission of the crime.

(2) Renunciation is an ________________________ defense (burden on D).
HYPO 18. Penny complains to her friend Dudley that she is short on money. Dudley responds,
I know just the opportunity for you. The drug dealer who used to operate at the corner of
Center and Main was arrested yesterday. Why dont you set up shop there and start selling
drugs? If Penny takes his advice and starts selling drugs, Dudley will be guilty as Pennys
accomplice. What must Dudley do avoid criminal liability?

Common Law: Since Dudley merely ___________________ Penny to sell drugs, he must
simply ______________________ this encouragement before she starts selling.

NEW YORK: Dudley must do more than _________________________; he must make a
___________________________________ to prevent the crime.

HYPO 19. What if, in addition to advising Penny to sell drugs, Dudley also gave her a supply of
small plastic baggies, a stamp to brand the baggies with a trademark, and an untraceable cell
phone? What must Dudley do now to avoid liability as an accomplice to drug dealing?

Common Law: Dudley has now provided material assistance; therefore, to withdraw he must:
(a) _______________ all three items (the baggies, the stamp and the cell phone) before
Penny starts selling drugs; or
(b) _______________ Penny from committing the crime, e.g., by calling the cops

NEW YORK: ____________, inasmuch as either would constitute a ____________________
______________________________

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C. ACCESSORY AFTER THE FACT
1. THE COMMON LAW APPROACH: To commit the separate common law
offense of being an accessory after the fact, a defendant must:
a) _____________________________ a principal who has committed a felony
b) with _________________________ that the crime has been committed, and
c) with the _________________ to help the principal avoid arrest or conviction.
2. MODERN STATUTORY APPROACH: In many jurisdictions, accessories after the
fact at common law now commit statutory crimes, such as obstruction of justice,
harboring a fugitive, or (as in NEW YORK) hindering prosecution.

D. ENTERPRISE LIABILITY: CORPORATIONS AND THEIR AGENTS
1. GENERAL RULE: When a corporate agent engages in criminal conduct, both the
corporation and the agent may be held criminally liable, provided the agent is acting:
a) _______________________________________ the corporation; and
b) ________________________________________ of his or her office.
2. PUBLIC WELFARE OFFENSES:
When a corporation commits a regulatory offense involving public health or safety, its
agents can also be held criminally liable, provided the agents stand in
____________________________________________ to the situation that created
a public danger.
Example: Where unsanitary conditions persisted at the warehouse of a national food
store chain, it was appropriate to find both the corporation (Acme Markets, Inc.) and
its President criminally responsible for violations of the Federal Food, Drug and
Cosmetic Act. The company President, by virtue of his position, had the authority to
address the situation, i.e., unsanitary conditions that exposed warehoused food to
rodent infestation and other health hazards.
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IX. INCHOATE OFFENSES
A. THE THREE INCHOATE OFFENSES
1. SOLICITATION
a) Definition: ____________________ someone to commit a crime, with the
_________________________________ that the crime be committed.
b) Mental State: ________________________________________________
c) Completion Unnecessary: The crime is in the _________________________.
(Note: It doesnt matter whether the other person agrees or whether the crime is
actually committed.)

2. CONSPIRACY
a) Required Acts: An _________________________ between two or more people
to commit a crime, plus an _____________________ in furtherance of the crime.
(1) Agreement: Need not be express; can be proved by conduct that is, a
_____________________________________ towards a common goal.
(2) Overt Act: Any act, even if merely ____________________________,
performed by any of the co-conspirators. (Traditionally, the common law did
not require an overt act, but most states now do.)
b) Mental State: The specific intent to do two things:
(1) enter into an _________________________ ; and
(2) to accomplish the ________________________ of the conspiracy.
c) Completion Unnecessary: The essence of the crime of conspiracy is the
__________________________; completion of the conspiratorial objective is
unnecessary for conviction.
d) Can You Have a One-Person Conspiracy?
(1) Common law rule: ________.
(a) The Bilateral Approach: There must be at least _____ guilty minds,
both of whom actually agree to accomplish the conspiracys objectives.
(b) Related Rule: If all other parties to the agreement are ______________,
the last remaining defendant cannot be convicted.

(2) NEW YORK: ________. Under the unilateral approach of New York
and the Model Penal Code, a defendant may be guilty of conspiracy even if
the other parties are _________________ or were just _________________
to agree.

e) Wharton Rule: When two or more people are necessary for the commission of
the substantive offense, there is no conspiracy unless more parties participate in
the _______________________ than are necessary for the crime.
(NEW YORK continues to follow the Wharton rule.)
HYPO 21. Dudley and Alex agree to meet at dawn to engage in a duel, which is unlawful in this
jurisdiction. Officer Victor finds out about the plan and arrives the next morning just after Dudley
and Alex have begun the duel. They are charged with dueling and conspiracy to engage in a duel.
Do they have a defense to the conspiracy charge?
______. Because the substantive crime of dueling requires two parties (You cant duel yourself!),
the Wharton rule requires at least ____________ participants in the agreement for the conspiracy.
f) Vicarious (Pinkerton) Liability:
In addition to conspiracy, a defendant will be liable for other crimes committed by
his co-conspirators, so long as those crimes:
(1) were committed in __________________________ of the conspiracys
objective, and
(2) were __________________________________.
(3) NEW YORK rule: No vicarious liability for one who merely conspires and
does not participate in a crime committed by a co-conspirator.
HYPO 20. Dudley and Donnie agree to kill Victor, their business partner. Unbeknownst to
Dudley, however, Donnie is actually an undercover FBI agent. Dudley is arrested while he is
preparing to kill Victor. Is Dudley guilty of conspiracy to commit murder?

Common law? _____. Because Donnie is an FBI agent, there are not ______ guilty minds.

NEW YORK? _____. The __________________ approach of the MPC requires only
________ guilty mind for conspiracy.

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HYPO 22. Dudley and Alex agree to rob a bank. As they are making their preparations, Alex
says Ill go steal a gun that we can use when we rob the bank. That night, Alex breaks into
Victors house and steals Victors gun. Dudley and Alex later use the gun to rob the bank. Of
what crimes may Dudley be convicted?

Common Law: Dudley is directly liable for _________________ and __________________
to rob the bank. In addition, Dudley is vicariously liable under Pinkerton for the
________________ (of Victors house) and _________________ (for the taking of the gun).
NEW YORK: Dudley is guilty of _______________________ and _____________________
only, since he did not ____________________________ in Alexs crimes.

g) Impossibility: Impossibility is ___________________ a defense to a charge of
conspiracy.
Example: Dudley and Alex agree to kill Victor. When they arrive at Victors
house, they find that he is already dead. Dudley and Alex can still be convicted
of conspiracy to commit murder.

3. ATTEMPT
a) Required Acts
(1) General Requirement: Unlike conspiracy, attempt requires an overt act
__________________ mere preparation.
(2) NEW YORK/Common Law Proximity Test (better for defendant):
The defendant must engage in conduct that gets ______________________
___________________ to the commission of the crime.
(3) Majority/MPC Substantial Step Test (better for prosecution): The
defendant must engage in conduct that constitutes a ___________________
____________ towards the commission of the crime, provided that conduct
______________________________________ the actors criminal purpose.
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HYPO 23. Dudley wants to kill Victor. His plan is to shoot Victor as Victor is walking home from
work. At what point has Dudley engaged in enough conduct to be guilty of attempted murder?

23(a) Dudley buys an untraceable gun from an illegal gun dealer .
Common Law: No, not _____________________ (too much left to be done)
Majority/MPC: Yes. The jury can find (but they dont have to) that this conduct is a
______________________________________ that _________________________
_______________________ Dudleys criminal purpose.
23(b) Dudley takes the loaded gun and drives along the route that Victor typically uses when he
walks home from work, but he cant find Victor .
Common Law: No, youre not ____________________________ close if you havent
located the victim.
Majority/MPC: same as in 21(a)
23(c) Two days later, Dudley tries again. This time, he sees Victor walking down the street.
As Dudley raises the gun, Officer Alex tackles him, which causes Dudley to lose hold
of the gun.

Common Law: _________
Majority/MPC: Yes (more than enough)
b) Mental State:
(1) The Rule: Attempt requires the __________________________ to commit
the underlying crime.

(2) Unintentional Crimes: You cannot attempt ________________________
crimes, since you cannot ____________________________ do something
unintentional. Practically speaking, this means that there are no attempt
versions of:

(a) ___________________________ crimes, or
(b) ___________________________ crimes , or
(c) _________________________________.

B. INCHOATE OFFENSE DOCTRINES
1. WITHDRAWAL/ABANDONMENT/RENUNCIATION:
What happens when a solicitor, co-conspirator, or attempter changes his mind?
a) General Rule: Withdrawal is _______ a defense.
*(1) Exception: Once a defendant withdraws from a conspiracy he will no
longer be ___________________________________ liable for crimes
committed by his co-conspirators after he left the conspiracy.
*(2) However, the defendant is still guilty of conspiracy and of all foreseeable
crimes committed by his co-conspirators ____________ to his withdrawal.
HYPO 24. Dudley is the trustee of Victors estate. Dudley is arrested after bank managers
discover that he has authorized a fraudulent transfer of $5,000 from the trust to his own account
in the name of Victors daughter. Is Dudley guilty of:
Attempted embezzlement at common law? ______. Embezzlement is a _____________
__________________ crime at common law.
Attempted third degree larceny in NEW YORK? _______. As at common law, larceny in
New York requires an ______________ to steal.
HYPO 25. Wanting to scare Victor, Dudley fires a bullet in his direction, aiming over Victors
head. A poor shot, Dudley misses the target and the bullet strikes Victors shoulder, leaving
him permanently disabled. Is Dudley guilty of:
Attempted involuntary manslaughter at common law? _________. Because common law
involuntary manslaughter requires a mental state of _____________________________
________________________, there is no ___________________ version of this crime.
Attempted manslaughter in NEW YORK? ______. Because this form of manslaughter
requires a mental state of ________________________________, there is likewise no
_______________ liability for it in New York.

NY
NY
NY
NY
NY

NY
NY


b) NEW YORK:
(1) Solicitation and Conspiracy: Withdrawal is an affirmative defense if the
defendant:
(a) completely and voluntarily __________________; and
(b) ______________________ the commission of the underlying crime.
(2) Attempt: Abandonment is an affirmative defense if the defendant
(a) completely and voluntarily _____________________; and
(a) as a result, ________________________________the underlying crime.
HYPO 26. On January 1, Dudley conspires with Victor and Alex to sell drugs to
students at Setonia University. Alex is responsible for obtaining the drugs and distributing
them to Dudley and Victor. They agree that, after all three sell their portions, they will
pool the proceeds and divide them equally. On January 8, Victor sells drugs to Alice, a
Setonia student. On January 12, before he makes his first sale, Dudley tells Victor and
Alex that he has decided not to participate in the conspiratorial plan, and Dudley returns
to Alex the drugs Alex had given him. On January 14, Alex sells drugs to another Setonia
student, Constance. Dudley is arrested on January 21. For what crimes is Dudley
criminally responsible?
Common Law: Dudley is guilty of _______________________ to sell drugs and the sale
of drugs to _________________. He is not responsible for the sale to
___________________ because he had ___________________________ from the
conspiracy two days earlier.
NEW YORK: Dudley is guilty of ___________________. While he
_____________________ his involvement, he did not do so prior to the commission of
the first sale and he made no effort to prevent future sales after he withdrew. Dudley is
not responsible, however, for the sales to Alice and Constance because New York does
not recognize ___________________ liability for co-conspirators crimes, and Dudley
did not participate in those sales.

NY
NY
NY
NY
NY
NY
NY
NY
NY
NY
NY
NY
NY

NY
NY
NY
NY
NY
NY
NY
NY
NY
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2. MERGER RULES FOR INCHOATE OFFENSES:
a) _______________________ and ______________________ merge with
the completed crime;
(1) NEW YORK distinction: ___________________ does not merge.
b) *_______________________ does not merge. (An MBE favorite!)

3. INCHOATE OFFENSES: REVIEW

HYPO 27. Dudley wants to kill Victor but thinks he needs some help. He decides, therefore,
to recruit a partner in crime.
27(a) Is Dudley guilty of a crime? _________________________________
(He hasnt done anything yet!)
Dudley asks his friend Alex to help him kill Victor.
27(b) Dudley is guilty of: _________________________________
Alex says, Sure. Dudley then shows Alex a photo of the gun he wants to use in the killing.
Alex takes the photo and agrees to procure the weapon for Dudley.
27(c) Dudley is guilty of: _________________________________
Armed with the gun Alex has given him, Dudley hides in the bushes outside Victors house
waiting for Victor to come home from work. When Victor arrives, however, he is accompanied
by a bodyguard, so Dudley decides to wait.
27(d) Dudley is guilty of: _________________________________
Dudley returns the next day and kills Victor.
27(e) Dudley is guilty of: _________________________________
27(f) Is Dudley still guilty of solicitation?
At common law? _________________________________
In NEW YORK? _________________________________
27(g) Is Dudley still guilty of attempt? _________________________________
27(h) Is Dudley still guilty of conspiracy? _________________________________

NY
NY

NY
NY


XI. DEFENSES
A. CAPACITY DEFENSES
1. INSANITY (affirmative defense)
a) Indispensable requirement: The first requirement for the insanity defense is that
the defendant must have a ________________________________________.
b) Two major tests: There are two major tests used to gauge whether a mental
disease or defect renders a defendant legally insane:

(1) MNaghten Test (majority test purely cognitive):
The defendant must prove that he either:
(a) did not know that his conduct was ____________________, or
(b) did not understand the ______________________ of his conduct.
(2) MPC Test (used in roughly 25% of the states cognitive or volitional):
Defendant must establish that he lacked the substantial capacity to either:
(a) appreciate the __________________________ of his conduct (cognitive
option), or
(b) _____________________ his conduct to the requirements of law
(volitional option).
c) Insanity in NEW YORK:
(1) Cognitive test: Defendant must prove he or she lacked substantial
capacity to know or appreciate either:
(a) the _________________ and ________________________of his
conduct, or
(b) that his conduct was ____________________.
(2) Notice: A defendant must notify the prosecutor of his intention to raise the
insanity defense within _____ days of entering a not guilty plea.
d) Distinguishing Insanity from Incompetency
(1) Insanity
(a) The issue is whether the D was insane at the time of the ____________.
If he was, the D is _________________________ by reason of insanity.

NY
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(2) Incompetency
(a) The issue is whether, at the time of ____________, the D cannot either:
(i) __________________ the nature of the proceedings against him; or
(ii) __________________ his lawyer in the preparation of his defense.
(b) If either (i) or (ii) is established, trial is _________________________
until the D regains competency.
2. VOLUNTARY INTOXICATION (self-induced) (commonly tested on MBE)
a) Common Law approach
(1) Can be a defense to ______________________________________ only.
(2) Cannot, therefore, be a defense to malice, general intent, or strict liability
crimes.
(3) The defense of intoxication generally requires such severe prostration of the
faculties that the defendant cannot form the requisite specific intent.
b) NEW YORK:
(1) Can be a defense to ____________ crimes and _____________________
crimes, if the intoxication prevents the defendant from forming the required
state of mind.

(2) Cannot be a defense to crimes of recklessness, negligence, or strict liability.

NY
NY
NY
NY
NY

HYPO 28. Dudley and his friend, Pyro, are sitting around drinking beer one night at Dudleys
house. After polishing off their fourth six-pack, they decide that it would be fun to create a big
bonfire by torching the empty barn next door. They grab some lighter fluid and matches from
the garage and stumble out the door. One hour later, the duo is arrested as they stare transfixed
at the towering inferno they created.

Can Dudley and Pyro plead intoxication as a defense to the following crimes?

Conspiracy to commit arson?
Common law: ____. Conspiracy is a ___________________________ crime.
NEW YORK: _____. Conspiracy requires _____________.
Arson at common law; third degree arson in NEW YORK?
Common law: _____. At common law, arson is a _________________ crime.
NEW YORK: _____. Third degree arson requires an _____________________ burning,
so the defense is available.

NY
NY

NY
NY


3. INFANCY
a) Common Law (Rule of Sevens)
(1) If, at the time of crime, the Ds age is less than ______________,
prosecution is not allowed.
(2) If, at the time of crime, the Ds age is less than _______________,
there is a rebuttable presumption against prosecution.
(3) If, at the time of crime, the Ds age is ________________or older,
prosecution is allowed.
b) NEW YORK
(1) If the defendant is under _____, criminal prosecution as an adult not allowed;
only juvenile delinquency proceedings in Family Court.
(2) If the defendant is _____, criminal prosecution as an adult allowed for second
degree murder.
(3) If the defendant is ____ or ____, criminal prosecution as an adult allowed for
serious crimes against persons or property.
(4) If the defendant is ____ or older, criminal prosecution as an adult allowed for
any crime.
B. OTHER DEFENSES
1. MISTAKE
a) Mistake of Fact
(1) Common Law Approach: Whether a defendants mistake of fact will be a
defense depends upon the mental state for the crime and whether the mistake
is reasonable or unreasonable.
Accordingly, if the mental state for the crime is:
(a) ________________________________, any mistake of fact
(even an unreasonable one) will be a defense.
(b) ______________________or _________________________________,
only a reasonable mistake of fact will be a defense.
(c) ______________________________, mistake of fact will never be a
defense.
NY
NY
NY
NY
NY
NY
NY
NY
NY
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NY
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NY
NY

(2) Common Law redux: Therefore:
(a) A ____________________________ mistake of fact will be a defense to
any crime, except a crime of strict liability.
(b) An ___________________________ mistake of fact will be a defense
only to specific intent crimes.
(3) NEW YORK Rule: In New York, a mistake of fact will be a defense if the
mistake negates the required mental state. This means that
(a) for crimes of intent, knowledge or recklessness, _______ mistake of fact
(even an unreasonable one) is usually a defense.
(b) for crimes of negligence, only a ___________________ mistake of fact
is a defense.
(c) for strict liability crimes, a mistake of fact is _____________ a defense,
no matter how reasonable it is.
b) Mistake of Law: Common Law and NEW YORK
(2) The Rule: Mistake of law is generally _________ a defense.
(a) Exception: If the statute specifically makes knowledge of the law an
element of the crime (e.g., selling phony Rolex watches knowing it is
unlawful to do so).
2. SELF-DEFENSE (JUSTIFICATION in NEW YORK)
a) Deadly vs. Nondeadly Force
(1) Common examples of nondeadly force:
_____________________________________________
(2) Common examples of deadly force:
_____________________________________________
b) The Rule for Use of Nondeadly Force: A defendant may use nondeadly force in
self-defense if it is
(1) ____________________________________________
(2) to protect against an _____________________________ use
(3) of ______________________________ force against himself.
NY
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c) The Rule for Use of Deadly Force: A defendant may use deadly force in self-
defense, if he is facing an imminent threat of ___________________ or
_______________________________________________.
*There are two complications for the use of deadly force:
(1) The Initial Aggressor Rule: A defendant may not use deadly force if he is
the initial aggressor that is, the person who ___________________ the
fight. But, the initial aggressor can regain his right to use deadly force in
self-defense if:
(a) He _____________________ from the fight and __________________
that withdrawal to the other person; or
(b) the victim suddenly __________________________ a nondeadly fight
into a deadly one.
(i) NEW YORK distinction: In New York, the initial aggressor must
withdraw before using deadly force in self-defense, even if the other
party suddenly escalates a nondeadly fight into a deadly fight.

(2) The Retreat Rule: In some states, a defendant is required to retreat before
using deadly force in self-defense.
(a) Majority Rule: Retreat is __________ required.
(b) NEW YORK/Minority Rule: Retreat is required, unless:
(i) D cannot retreat in ____________________________, or
(ii) D is in his ____________ (the castle exception).

HYPO 29. Dudley punches Victor in the nose. In response, Victor pulls out a knife and runs
at Dudley. Just before Victor is able to stab Dudley, Dudley pulls out a gun and shoots Victor,
killing him. Is Dudley guilty of a homicide offense?

Common Law: ______. Although Dudley was the initial aggressor, he was using
___________________ force. Victor __________________the fight into a deadly one. In so
doing, Victor allowed Dudley to ______________ the right to use deadly force in self-defense.

NEW YORK: _____. Dudley would be guilty of _____________ because New York does not
recognize the __________________________________ exception to the initial aggressor rule.

NY
NY
NY
NY
NY
NY
NY

NY
NY
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d) Reasonableness and Mistake: What happens if D is mistaken about the need to
use unlawful force in self-defense?
(1) Reasonable mistake: _________________________________
(2) Unreasonable mistake:
(a) NEW YORK/Majority Rule: _______________________________
(b) Minority/MPC Rule: ____________________________________
(i) Imperfect Self-Defense: An unreasonable belief in the need to
use deadly force in self-defense will mitigate murder to (voluntary)
manslaughter.

e) Use of Force to Prevent a Crime
(1) Nondeadly force may be used, if reasonably necessary, to prevent any
serious ____________________________________.
(2) Deadly force may only be used to prevent a felony risking
_________________________________.
f) Defense of Others: A defendant may use force, even deadly force, to protect
others just the same as he could use it to defend himself.
HYPO 30. Dudley is walking down a dark street, late at night, by himself. Suddenly, Victor
appears out of a doorway and walks quickly toward Dudley. Dudley starts to get nervous and
asks Victor what he wants. Victor doesnt respond but, instead, reaches for his waistband.
Dudley is afraid that Victor is about to pull out a gun; therefore, Dudley pulls out his own gun
and fires, killing Victor. It turns out that Victor was just reaching for his wallet.

30(a) Is Dudley guilty of a homicide offense? _______________________.
If the jury finds that Dudleys belief in the need to use deadly force was
__________________, he is not guilty of homicide. If the jury finds his belief in
the need to use deadly force ______________________, he will be guilty of a
homicide offense.
30(b) If so, which one?
Majority/NEW YORK rule: ___________________________ (no defense)
Minority/MPC rule: ___________________________ (partial defense)
NY
NY

NY
NY


g) Defense of Property:
(1) General Rule: Deadly force may __________ be used to defend property.
(2) Dwellings: An occupant may use deadly force inside her dwelling when:
(a) an intruder has gained entry in a ________________________ manner;
and
(b) the occupant reasonably believes that the use of deadly force is necessary
to prevent a _______________________________ on herself or
someone else in the dwelling.
h) Resisting Arrest: If the defendant knows or reasonably should know that the
person performing the arrest is a police officer
(1) Majority Rule: If the arrest is unlawful, the defendant may use
_______________________ force to resist the arresting officer.
(2) NEW YORK Rule: Force may not be used to resist an arrest, even an
unlawful one, unless the arresting officer uses _____________________
________________.

i) Use of Deadly Force by Law Enforcement:
An officer may use deadly force only when doing so is ____________________
under the circumstances.

Compare:
It was unreasonable for an officer to shoot a fleeing burglar who had disobeyed
an order to halt since the officer lacked probable cause to believe that the suspect
was armed or otherwise posed an immediate physical threat to the officer or
others. (Tennessee v. Garner, 471 U.S. 1 (1985))

Because the suspects conduct posed an immediate threat to his own life and that
of innocent bystanders, it was reasonable for an officer to end a high-speed chase
by bumping the rear of the suspects vehicle and thereby causing the suspects car
to crash. (Scott v. Harris, 550 U.S. 372 (2007))

NY
NY
NY


3. NECESSITY (JUSTIFICATION in NEW YORK):
a) The Rule: Conduct that is otherwise criminal is justifiable if the defendant
_______________________________________ that the conduct was necessary
to prevent a _________________________________.
Example: Dudley creates a firewall to prevent rapidly approaching wildfires from
consuming an apartment building that houses physically disabled persons. In so
doing, he redirects the fire to an empty warehouse, which burns to the ground.
Necessity provides a complete defense to Dudleys criminal responsibility for the
destruction of property that resulted from his actions.

b) Limitations: The necessity defense is unavailable if:
(1) D causes the death of another person to protect ___________________; or
(2) D is ________________ in creating a situation that creates a choice of evils.
4. DURESS
a) The Rule: If the defendant was _________________ to commit a crime because
of a threat, from another person, of ____________________ death or serious
bodily injury to himself or a close family member, his conduct is excused.
Example: Dudley jumps into Alices car, points a gun at her head and tells her
that he will kill her unless she helps him rob the bank across the street. If Alice
helps Dudley rob the bank, duress provides a complete defense to any robbery
charges filed against her.

b) Limitation: Duress cannot be a defense to ____________________.
(1) NEW YORK: Duress is an affirmative defense to _______ crimes,
including homicide.

5. ENTRAPMENT (very narrow defense)
If a defendant believes that the government unfairly tempted him to commit a crime, he
may claim entrapment. To prevail on the defense, the defendant must prove that:
a) the criminal design ________________________ with the government, and
b) *the defendant was not __________________________ to commit the crime.
(1) NEW YORK: Entrapment is an affirmative defense, and the prosecution
may introduce evidence of the defendants ___________________________
in its direct case.
NY
NY


NEW YORK CRIMINAL LAW LECTURE OUTLINE
Professor Kip Cornwell
I. INTRODUCTION ................................................................................................................... 1
A. SOURCES OF LAW (MBE) ............................................................................................. 1
B. SOURCES OF LAW (NEW YORK ESSAYS) ........................................................................ 1
C. OVERVIEW: CRIMINAL LAW TOPICS .............................................................................. 1
D. PRELIMINARY MATTERS ................................................................................................ 2
1. JURISDICTION ...................................................................................................... 2
2. BURDEN OF PROOF ............................................................................................. 2
3. CLASSIFICATION OF CRIMES ............................................................................ 2
II. THE ESSENTIAL ELEMENTS OF CRIME ............................................................................... 3
A. THE ACT REQUIREMENT ................................................................................................ 3
1. PHYSICAL ACTS ................................................................................................... 3
2. OMISSIONS ........................................................................................................ 3
B. MENTAL STATES ........................................................................................................... 4
1. COMMON LAW MENTAL STATES ..................................................................... 4
2. NEW YORK MENTAL STATES ............................................................................ 6
C. CAUSATION ................................................................................................................... 6
1. ACTUAL CAUSATION ......................................................................................... 6
2. PROXIMATE CAUSATION .................................................................................. 7
D. THE CONCURRENCE PRINCIPLE ...................................................................................... 8
III. CRIMES AGAINST THE PERSON: ASSAULT AND BATTERY .................................................. 8
A. COMMON LAW BATTERY ............................................................................................... 8
B. COMMON LAW ASSAULT ............................................................................................... 8
C. ASSAULT IN NEW YORK ................................................................................................ 9
1. DEFINITION OF ASSAULT ................................................................................... 9
2. DEGREES OF CRIME IN NEW YORK IN GENERAL ........................................... 9
3. DEGREES OF ASSAULT IN NEW YORK ............................................................10
4. MORE ON ASSAULT IN NEW YORK ..................................................................10
IV. CRIMES AGAINST THE PERSON: HOMICIDE ......................................................................11
A. THE YEAR-AND-A-DAY RULE.......................................................................................11
1. NEW YORK/MAJORITY RULE ...........................................................................11
2. COMMON LAW RULE .........................................................................................11
B. COMMON LAW HOMICIDE CRIMES ...............................................................................11
1. MURDER ...............................................................................................................11
2. VOLUNTARY MANSLAUGHTER .......................................................................17
3. COMMON LAW INVOLUNTARY MANSLAUGHTER .......................................18

4. MANSLAUGHTER IN NEW YORK .....................................................................18
5. VEHICULAR MANSLAUGHTER IN NEW YORK ..............................................18
6. CRIMINALLY NEGLIGENT HOMICIDE IN NEW YORK ..................................18
7. AGGRAVATED HOMICIDE IN NEW YORK ......................................................20
8. REVIEW AND SUMMARY: NEW YORK HOMICIDE OFFENSES ....................20
V. CRIMES AGAINST THE PERSON: CONFINEMENT OFFENSES AND SEX OFFENSES ..............21
A. CONFINEMENT OFFENSES .............................................................................................21
1. COMMON LAW FALSE IMPRISONMENT .........................................................21
2. UNLAWFUL IMPRISONMENT IN NEW YORK ..............................................21
3. COMMON LAW KIDNAPPING ............................................................................21
4. KIDNAPPING IN NEW YORK .............................................................................21
B. SEX OFFENSES .............................................................................................................22
1. FORCIBLE RAPE ..................................................................................................22
2. STATUTORY RAPE ..............................................................................................22
VI. PROPERTY CRIMES: THEFT OFFENSES .............................................................................23
A. COMMON LAW THEFT CRIMES......................................................................................23
1. LARCENY .............................................................................................................23
2. EMBEZZLEMENT ................................................................................................25
3. FALSE PRETENSES .............................................................................................26
4. LARCENY BY TRICK ..........................................................................................26
5. ROBBERY .............................................................................................................27
6. FORGERY .............................................................................................................27

B. NEW YORK THEFT CRIMES ...........................................................................................28
1. LARCENY .............................................................................................................28
2. ROBBERY .............................................................................................................28
VII. PROPERTY CRIMES: HABITATION OFFENSES ...................................................................29
A. BURGLARY...................................................................................................................29
1. COMMON LAW BURGLARY ..............................................................................29
2. MODERN STATUTORY CHANGES ....................................................................29
3. BURGLARY IN NEW YORK ................................................................................30
B. ARSON .........................................................................................................................31
1. COMMON LAW ARSON ......................................................................................31
2. ARSON IN NEW YORK ........................................................................................31
3. STATUTORY DEVELOPMENTS .........................................................................31
VIII. PROPERTY CRIMES: POSSESSORY OFFENSES ................................................................31
A. POSSESSION OF CONTRABAND ......................................................................................31
B. RECEIPT OF STOLEN PROPERTY .....................................................................................32


IX. LIABILITY FOR THE CONDUCT OF OTHERS: ACCOMPLICE LIABILITY .............................32
A. PARTIES TO CRIME: PRINCIPALS AND THEIR ACCOMPLICES ...........................................32
B. SCOPE OF ACCOMPLICE LIABILITY ................................................................................33
1. THE RULE ............................................................................................................33
2. WHEN A PERSON IS NOT AN ACCOMPLICE ...................................................33
3. WITHDRAWAL ....................................................................................................34
C. ACCESSORY AFTER THE FACT .......................................................................................35
1. THE COMMON LAW APPROACH ......................................................................35
2. MODERN STATUTORY APPROACH .................................................................35
D. ENTERPRISE LIABILITY: CORPORATIONS AND THEIR AGENTS ........................................35
1. GENERAL RULE ...................................................................................................35
2. PUBLIC WELFARE OFFENSES ........................................................................35
X. INCHOATE OFFENSES ........................................................................................................36
A. THE THREE INCHOATE OFFENSES..................................................................................36
1. SOLICITATION ....................................................................................................36
2. CONSPIRACY .......................................................................................................36
3. ATTEMPT .............................................................................................................38
B. INCHOATE OFFENSE DOCTRINES ...................................................................................40
1. WITHDRAWAL/RENUNCIATION/ABANDONMENT ........................................40
2. MERGER RULES FOR INCHOATE OFFENSES .................................................42
3. INCHOATE OFFENSES: REVIEW .......................................................................42
XI. DEFENSES ..........................................................................................................................43
A. CAPACITY DEFENSES ....................................................................................................43
1. INSANITY .............................................................................................................43
2. VOLUNTARY INTOXICATION ...........................................................................44
3. INFANCY ..............................................................................................................45
B. OTHER DEFENSES .........................................................................................................45
1. MISTAKE ..............................................................................................................45
2. SELF-DEFENSE (JUSTIFICATION).....................................................................46
3. NECESSITY ..........................................................................................................50
4. DURESS ................................................................................................................50
5. ENTRAPMENT ....................................................................................................50

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