New York Bar Exam Preparation Condensed Revision Notes for Criminal Law

New York Bar Exam Preparation Condensed Revision Notes for Criminal Law

Criminal Law

Sources- common law, majority statutory rules, model penal code

*NY- New York Penal Law (NYPL)

Essential Elements of Crimes: Act, Mental State, causation, concurrence

Specific Crimes- against person and property

Conduct of other- accomplice liability

Inchoate offences: solicitation, conspiracy and attempt

Defenses: insanity (burden = D), voluntary intoxication, infancy, mistake, self-defense (burden = D), necessity (prosecution burden of proof), duress, entrapment

Jurisdiction: prosecuted where - act/result took place

Burden of proof- prosecution prove each element of crime beyond reasonable doubt


Defenses: Prosecution disprove beyond reasonable doubt

Affirmative Defenses: D must prove by preponderance of evidence

Crimes: Felony (death & imprisonment > 1 year) and Misdemenaour (fine & imprisonment <1)


Elements of crime


  • 1 Commission or Omission
  • Commissions: voluntary body movements
  • Involuntary body movements: not actor’s volition, sleepwalking/unconscious, reflex, convulsion.
  • Omissions: failure to act
  • Legal duty to act: statute, contract, status relationship (parent-child, spouse-spouse), voluntary assumption of care, creation of peril.
  • 2 Knowledge
  • 3 Ability to help




4 common law mental states



Specific result not just intent to do act

  • Assault
  • 1st Degree Premeditated Murder
  • Larceny
  • Embezzlement
  • False Pretences
  • Robbery
  • Forgery
  • Burglary
  • Solicitation
  • Conspiracy
  • Attempt



  • Voluntary Intoxication
  • Unreasonable mistake of fact



D acts intentionally/ reckless disregard of an obvious known risk


  • Murder
  • Arson


3 General Intent


D generally aware of factors constituting crime (no specific result intended)

  • Inferred from doing!


  • Battery
  • Forcible rape
  • False imprisonment
  • Kidnapping




No mental state needed (doing the act)

  • Statutory rape



5 mental states


  • Intentionally: D’s conscious desire to accomplish particular result (D wants)
  • Knowingly: D aware of his actions (practically certain that conduct will cause specific result)
  • Recklessly: D aware of substantial and unjustifiable risk & consciously disregards risk
  • Negligently: D should have been aware of substantial and unjustifiable risk
  • Strict Liability: No mental state





2 types- actual and proximate


ACTUAL (but for)

  • Accelarating cause is actual.


  • Cause- natural & probable result of D’s conduct
  • Intervening causes: unforeseeable intervening events- D not proximate cause
  • Eggshell victims: D proximate cause/ victim’s pre-existing weakness



  • D must have mental state & culpable act @ same time
  • Arises in larceny & burglary!





  • Unlawful application of force to another resulting in bodily injury or offensive touching
  • General intent crime


  • Attempted battery
  • Intentional creation other than mere words of a reasonable fear in mind of victim of imminent bodily harm
  • Specific Intent crime


  • Intentionally causing physical injury to another person.
  • First Degree: second degree + weapon
  • Second Degree: Intentionally causing serious physical injury
  • Third Degree: intentionally causing non-serious physical injury

No battery in NY!

Degrees of crimes:

“Add one of these and a degree”

  • Weapons
  • Injury: physical injury (substantial pain) and serious physical injury (permanent or life-threatening)
  • Quantity


Year and a day rule- death must occur within this period

*NY- death may occur at any time


Causing the death of another person with malice aforethought

Malice aforethought= 1) intent to kill, 2) intent to inflict serious bodily harm, 3) extreme recklessness (reckless indifference to human life – “depraved heart murder”), 4) intentional commission of an inherently dangerous felony

  • Intent to kill= use of gun (inference), transferred intent- D intends to harm one victim but harms different victim, intent transferred to actual victim (must be murder of actual victim).
  • Felony Murder: killing caused during commission of felony (or attempt)



  • D must be guilty of underlying felony
  • Felony must be inherently dangerous

*NY: BRAKES- burglary, robbery, arson, kidnapping, escape, sexual assault

- Felony must be independent of killing (“merger rule”)

- res gestae: Killing- during felony or immediate flight from felony, once felon reaches place of temporary safety, felony ends.

- Victim must not be a co-felon and death must be foreseeable


Vicarious Liability:

“Proximate cause theory”- co-felons liable for murder of other co-felons & 3rd parties

“Agency theory”- killing committed by 1 of co-felons

NY* Non-Slayer Defense:

Affirmative defence of felony murder if D can meet four-part test:

1 D didn’t kill victim

2 D didn’t have deadly weapon

3 D no reason to believe that co-felons had deadly weapons

4 D no reason to believe that his co-felons intended to do anything that was likely to result

In death


Statutory Variations

First Degree Murder (majority): premeditation and deliberation

Second Degree Murder: Intentional murders + depraved heart murder+ intent to do serious

Bodily harm


NY* First Degree murder


Intent to kill and D more than 18 & 1 aggravating factor exists:

  • Victim= law enforcement agent, cop
  • Hire murder
  • Felony murder- victim intentionally killed
  • Killing for w/s intimidation
  • More than one victim intentionally killed in same criminal transaction


Second Degree Murder


  • Intentional killing (doesn’t qualify for first degree)
  • Highly reckless killing demonstrating depraved indifference to human life by engaging in conduct that creates “grave risk” of death
  • Felony murder where victim not co-felon and killed unintentionally



An intentional killing committed in the heat of passion upon adequate provocation

Common Law requirements

  • 1 adequate provocation- objectively adequate/ sudden and intense passion in mind of reasonable person
  • g. assault, battery, presently w/s adultery
  • 2 D actually provoked (subjective)
  • 3 D- no time to cool (objective)
  • 4 D- didn’t cool off between provocation & killing


Intentional killing committed under influence of reasonable and extreme emotional disturbance

Affirmative Defence to 2nd degree murder- D must prove EED by preponderance of the evidence.




Killing committed with criminal negligence OR killing committed during commission of crime to which felony murder doctrine does not apply.]



1st DEGREE: EED manslaughter OR intent to cause serious physical injury

2nd DEGREE: Mental state: reckless killing

D is aware of and consciously disregards a substantial and unjustifiable risk of death.



Mental state: criminal negligence

D should have been aware of a substantial and unjustifiable risk of death.



Victim= police officer killed in line of duty



D (over 18) causes death of child under 14 in especially cruel and wanton manner







The unlawful confinement of a person without his or her consent


Mental Status: general intent crime




2nd DEGREE: unlawfully restraining someone without their consent and with knowledge that restriction is unlawful.


1st DEGREE: Second Degree + risk of serious physical injury


Common Law Kidnapping

False Imprisonment that involves either moving the victim or concealing the victim in a secret place.

Mental State: general intent



2nd DEGREE: Abducting someone

1st DEGREE: 2nd degree kidnapping + 1) ransom or restraint of the victim for more than 12 hours with intent to rape, rob or injure the victim OR 2) the death of the victim


Kidnapping + Homicide in NY

If victim killed accidentally= 2nd DEGREE FELONY MURDER

If victim killed intentionally= 1st DEGREE FELONY MURDER






Sexual intercourse without the victim’s consent accomplished by force OR  threat of force OR victim is UNCONSCIOUS

  • Mental state= general intent




Sexual intercourse with someone under the age of consent

  • Mental State: Strict liability (majority rule)
  • Reasonable mistake of age is a defense (minority/MPC)


*NY- Age of consent= 17 (D must be at least 21 & victim 16 or younger)








Thieves Took Carmens Purse and Isaac’s portfolio


1) Trespassory 2) taking and 3) carrying away the 4) personal property 5) of another with the 6) intent to 7) permanently retain the property


1) Trespassory= wrongful/unlawful

2) taking and 3) carrying away= property must be moved

4) personal property 5) of another= who had lawful custody?

6) intent to 7) permanently retain the property= If D intends to give property back, taking is not larcenous


Erroneous taking rule: taking under a claim of right is NEVER larceny even if D ERRONEOUSLY believes the property is his.


Continuing trespass: if D wrongfully takes property but w/o intent to steal, he will not be guilty of larceny. BUT if D later forms the intent to steal, initial Trespassory taking is considered to have “continued” and he will be guilty of larceny. (exception to “concurrence” principle).




Conversion of the personal property of another by a person already in lawful possession of that property, with the intent to defraud.


Mental State: specific intent to defraud (if D intends to give the exact property in the exact form back then there is no intent to defraud).


*distinguish- key difference from larceny, here we need lawful possession of property before taking can be considered embezzlement.


POSSESSION v. CUSTODY: possession involves more than mere custody. Requires the authority to exercise some discretion over the property.




Obtaining title to the personal property of another by an intentional false statement with the intent to defraud


Distinguish against larceny- larceny= only custody of property false pretences= title meaning ownership


“false statement” – must be of PAST or PRESENT event




If D obtains only custody (not title) as a result of intentional false statement, crime is larceny by trick, not false pretences.




Larceny from another’s person or presence by force or threat of immediate injury.


Mental State= specific intent to steal


“presence” = some location reasonably close to victim

“force” = any amount of force sufficient to overcome resistance

(snatching a chain off a victim, snatching a handbag from a woman, picking a man’s pocket (no!)

“Threat” = immediate injury/ future harm doesn’t qualify




Making or altering a writing so that it is false


Mental state- intent to defraud





Any crime that would be larceny, embezzlement, false pretences, or larceny by trick at common law comes under the umbrella of larceny in NY.


Degrees of larceny in NY


1st DEGREE: More than $1million

2nd DEGREE: More than $50k

3rd DEGREE: more than $3k

4th DEGREE: More than $1k

Petit Larceny: lesser amounts




3rd DEGREE: forcible stealing

2nd DEGREE: forcible stealing + 1) D is aided by another who is actually present OR 2) victim is injured OR 3) a car is stolen

1st DEGREE: Forcible stealing + 1) victim is seriously injured OR 2) D uses or displays a firearm (add a gun, add a degree)

Affirmative defense: if D can prove that gun was unloaded or inoperable, crime reduced to second degree robbery.



If victim killed accidentally= second degree murder, felony murder

If victim is killed intentionally= first degree murder







1) Breaking and 2) entering the 3) dwelling of another at night with the  4)  intent to commit a felony inside


1) “Breaking” creating of enlarging an opening by at least minimal force

Includes: Opening door, breaking window

Does not include: climbing through an already open window, entering with permission

Constructive breaking= entry gained through fraud, threats or intimidation

2) “entering” = some part of D’s body must enter the building

3) dwelling of another at night = cant burglarise own home

4)  intent to commit a felony inside = specific intent crime (steal, rob, assault, rape, kill)


Modern statutory changes: many states have eliminated requirement for “breaking”, “at night”", and “dwelling” elements




3rd DEGREE: entering or remaining in a building unlawfully with the intent to commit a crime inside (any)

No requirement of breaking, dwelling or nighttime

2nd DEGREE: 3rd degree + building is a dwelling OR non-participant injured OR D carries a weapon

1st DEGREE: D knows he is burglarising a dwelling + non-participant injured OR D carries a weapon

Knowledge kicks it up from 2nd degree to 1st




Malicious burning of a building

State of mind: malice


“Burning” = material wasting (charring)



4th DEGREE: reckless burning of a building

3rd DEGREE: Intentional burning of a building

2nd DEGREE: 3rd degree arson [Intentional burning of a building] + D knows or should have known that someone was inside the building

1st DEGRE: 2nd degree [Intentional burning of a building + D knows or should have known that someone was inside the building] + explosive/incendiary device (add an explosive, add a class)


Statutory developments


“Dwelling”= most states extended arson to all buildings

“of another”= D can commit arson on own home






possession”= when statute criminalises possession of contraband (controlled substances, etc.)

“possession” = control for a period of time long enough to have an opportunity to terminate possession

constructive possession”: contraband needn’t be in D’s actual possession so long as close enough for D to exercise dominion and control


Mental State: knowledge of possession and of character of item possessed



Gun must be loaded and operable

Statutory presumption- presence of a gun in vehicle= presumption that all occupants of vehicle possessed the gun




Act: receiving possession and control of stolen personal property

Mental state: know that property obtained criminally by another party AND intent to permanently deprive the owner of his interest in property



Property must be really stolen.

Property recovered or used by permission is not “stolen”.







Principal = person who commits crime

Person who helps = accomplice

Act: aids or encourages the principal with intent that crime be committed


*NY accomplice need not intend that crime be committed- enough to intend to aid principal’s conduct + mental state required for principal’s crime (can be accomplice to negligence/recklessness crime in NY)



Accomplice is guilty of all crimes that he aids or encourages (just as if he did it) AND

All other foreseeable crimes committed along with aided crime


*NY requires intent for accomplice liability but mere knowledge can make someone guilty of lesser crime of criminal facilitation


Victims of crime cannot be accomplices (members of protected class)



Before crime committed


Encourager= repudiating the encouragement before crime committed

Aider= helped principal, must neutralise assistance or prevent crime from happening


*NY Withdrawal


Accomplice must make substantial effort to prevent commission of crime

Renunciation= affirmative defence (burden on D)


Accessory after Fact:

Separate offence


1) Help principal who committed a felony 2) with knowledge that the crime has been committed and 3) with intent to help principal avoid arrest or conviction


*NY Modern statutory approach: accessories after fact in common law, commit crimes such as “obstruction of justice”, “harbouring a fugitive” or “hindering prosecution” (NY)







Asking someone to commit a crime with intent that crime be committed

Mental state: specific intent crime

Completion unnecessary (crime is in asking)




1) An agreement b/w 2 or more people to commit a crime 2) overt act in furtherance of crime

overt act” = any act, can be merely preparatory

Mental state: specific intent to 1) enter into an agreement (proved by conduct (concert of action) towards common goal AND accomplish objectives of conspiracy


Essence of crime is AGREEMENT (not completion)


One person conspiracy?

Common law= NO

“Bilateral approach”= must be 2 guilty minds (who agree to accomplish conspiracy objectives)

“Related rule” = if all other parties to agreement acquitted, last remaining D cannot be convicted.


*NY= yes

“unilateral approach” of NY and MPC, D may be guilty of conspiracy even if other parties acquitted or were pretending to agree.


Wharton Rule:

When 2 or more people are necessary for commission of offense= no conspiracy unless MORE parties participate in agreement than are necessary for crime.

*NY follows Wharton rule.


Vicarious “Pinkerton” Liability:

In addition to conspiracy, D may be liable for OTHER crimes committed by his co-conspirators so long as those crimes committed: in furtherance of conspiracy’s objectives AND were foreseeable

*NY- no vicarious liability for one who merely conspires and does not participate in crime committed by a co-conspirator


Impossibility: never defense to charge of conspiracy




Contrast with conspiracy

Requires an overt act beyond mere preparation

*NY & Common law “Proximity” test (strict): conduct that gets dangerously close to the commission of the crime


MPC/Majority “Substantial step” test (generous) conduct that constitutes a substantial step towards the commission of the crime provided that conduct strongly corroborates actor’s criminal purpose.


Mental state: specific intent to commit underlying crime



Unintentional crimes: cannot intend to do it e.g. recklessness, negligence, felony murder



Factual impossibility never defense to attempt

Legal impossibility: defense at common law

*NY not a defense






Common law: withdrawal not a defense

Exception: once withdraw from conspiracy, no longer liable for crimes of others.

BUT D is guilty of conspiracy & all foreseeable crimes committed by co-conspirators prior to withdrawal.

*NY/MPC renunciation is defense to solicitation, conspiracy and attempt but only if:

D renounces criminal purpose prior to commission of substantive offence & makes sincere and successful steps to prevent commission of crime & renunciation is complete and voluntary (genuine change of heart) not fear.




Solicitation and attempt merge with completed crime

*NY solicitation doesn’t merge

Conspiracy does not merge***








D must have a mental disease or defect

3 tests:


M’Naghten Test (majority test- purely cognitive): D must prove that he either didn’t know that his conduct was WRONG or didn’t understand NATURE of his conduct.


Irresistible Impulse Test (volitional test) D was either  unable to CONTROL his actions or CONFORM his conduct to requirements of law.


MPC Test (cognitive & volitional) D lacked substantial capacity to either appreciate CRIMINALITY of his conduct OR CONFORM his conduct to requirements of law.


*INSANITY IN NY: D must prove he lacked substantial capacity to either understand the NATURE of his act OR appreciate the WRONGFULNESS of his conduct


If D insane, not guilty of crime.



Whether at the time of trial D cannot either UNDERSTAND the nature of proceedings against him OR ASSIST his lawyer with the preparation of the defence


If yes, trial postponed until D regains competency.




Defence to specific intent crimes only.

Not to malice, general intent or strict liability crimes.


“severe frustration of faculties”- D cannot form requisite intent


*NY Defense to intent crimes and knowledge crimes if intoxication prevents D from forming required state of mind

Not defense to crimes of recklessness, negligence or strict liability


  1. Defence to arson in NY as requires “intentional burning” but not at common law as arson is malice crime.




D less than 7 = prosecution not allowed

D less than 14 = rebuttable presumption against prosecution

D age = 14+ prosecution allowed.



D under 13 = criminal prosecution as adult not allowed (proceedings in family court)

D is 13 = criminal prosecution as adult allowed for second degree murder

D 14 or 15 = criminal prosecution as an adult allowed for serious crimes

D 16+ = criminal prosecution as adult allowed for any crime




Mistake of Fact:


Common law: depends on mental state of crime AND whether mistake reasonable or unreasonable


Specific Intent = ANY mistake of fact

Malice/general intent = reasonable mistake of fact

Strict liability= mistake of fact NEVER a defense


*NY mistake of fact defense if mistake negates the required mental state


Crimes of purpose, knowledge or recklessness = ANY mistake of fact is defense

Crimes of negligence = REASONABLE mistake

Strict liability= NEVER a defense


NY & Common law= mistake of law NOT a defense




Deadly v non-deadly


Nondeadly = shoves and punches

Deadly = guns and weapons


D may use non-deadly force in self-defense if reasonably necessary to protect against an immediate use of unlawful force against himself


D may use deadly force in self-defense if facing imminent threat of death or serious bodily harm

Deadly force:

“Initial Aggressor Rule” – May not use deadly force if initial aggressor but can regain right to use deadly force if: 1) withdraws from fight and communicates withdrawal to others OR victim suddenly ESCALATES non-deadly fight into deadly one.


*NY Initial aggressor must withdraw before using deadly force


Some states require D to retreat before using deadly force

Majority rule: retreat not required

NY= retreat required unless D cannot retreat in complete safety OR D is at home


Reasonable mistake in need to use deadly force = complete defence

Unreasonable mistake = *NY no defense / Minority/MPC mitigate but not exonerate (voluntary manslaughter)


Use of force to prevent a crime

Nondeadly force ok (serious breach of peace)

Deadly force to prevent felony risking human life

Defense of property:

Deadly force may NOT be used.

Dwellings- occupant may use deadly force inside dwelling when intruder gained entry tumultuously AND occupant reasonably believes that use of deadly force is necessary to prevent a personal attack,


Resisting arrest:

If arrest unlawful, D may use non-deadly force to resist arresting officer

*NY Only if arresting officer uses excessive force, otherwise NO

NECESSITY “Choice of Evils”:

Defense if D reasonably believes that conduct was necessary to prevent a greater harm

Defense not available if D causes death of another to protect property OR D @ fault in creating situation that creates this choice of evils




D was coerced to commit a crime b/c of threat from another person of imminent death or serious bodily injury to himself/close family member

Not defense to homicide

*NY – duress defense to homicide

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