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January 14, 2013 Criminal Law Review Session: Every Wednesday 7:15 on for review Modern Penal Code:

meant to suggest a uniform way of categorizing crimes and attaching punishments to the crimes. Most states have adopted the penal law entirely, NEW YORK HAS ADOPTED IT ENTIRELY. Class No. 1: What is substantive criminal law? What is a crime? Crime: The requirement that there always be a harm to be a crime is not true. There are attempted crimes if they fail. Yet it is still a serious crime. Generally causes harm, but not always: I.e. victimless harms, or attempted harm. Victimless crimes: Corruption (Prostitution?), gambling, banking, consensual harms. Carelessness: When you aware of a conscious risk of harm then that satisfies intent. Indifference: When you are unaware of risk of harm: criminal negligence Three different degrees of mental states: (Mens rea- culpable state of a guilty mind) 1) Intentional 2) Recklessness 3) negligence Some crimes are strict liability crime: to be a strict liability crime, does not mean no required mental state, but one element that does NOT require mental state. Almost all crimes are crimes of mental culpability. Culpable mental state (almost always but not always) Harm qualified by victimless Voluntary act/omission to perform an act which one is capable of performing such act. (Some choice) Previous definition of crime Causal connection: no definition of causation. Mental state causes the act, and then the act causes the harm *double causal relationship and connection. Punishment: to be a criminal has to be connected to a punishment. The US Supreme Court tells us that Criminal law distinctively is connected to punishment in a way that nothing else is. *Absence (negative element) of justification (defenses) [Choice, act, harm, causal connection, connection to punishment, absence of justification*] *Insanity absence of excuse, severe mental retardation, self-defense, duress, entrapment, infancy, etc.

Crimes are misdemeanors and felonies and crimes are defined by the length of punishment you can receive. Punishment: Felonies get an indeterminate term : ABCDE felonies (1/3rd of the term) Life, 25, 15, 7, and 4. A Felony: Max is LIFE in prison B: Max is 25 in prison C: 5-15 years in prison D: 2 1/3rd to 7 years E: 1 1/3rd to 4 years What is law? What is criminal law? And What is substantive criminal law as opposed to criminal procedure. a. Robbery: Forcible stealing. The use or threatened use of physical force.

What makes something a crime: the law against it: no punishment without a previous crime. We cannot punish behavior when it was done legal, but later become illegal. No such thing as retroactive legislation. Has to be previously defined as a crime. January 16, 2013 What is substantive criminal law? What is law? Study of a rule book What is criminal law? 1) Holmes : says: a prediction of what the courts will do from the bad man (when he asks, whats going to happen to me when I commit this crime?) A good lawyer will be able to present a probability distribution of what may happen to the client based upon his/her experience with judges, system, etc. Holmes notion of the prediction of what the courts may do has little reality to do with present day. We need to go way beyond what the courts will do, and focus on what the cops will do, the prosecutor will do, defense, corrections, jury, and to some degree of what the courts will do. Holmesian view needs to be extended to other factors/actors, within the judicial system. Courts may look at their possible decision and ask themselves what will History decide? What future supreme courts will do? Types of law:

1) Analysis of rules 2) Prediction of power 3) Discovery of fundamental rights and distinctions that are not necessarily rules (are the rules themselves just) Rights precede rules Natural law: certain rules and certain acts are illegitimate although inactive, they are not lawful, because they are not consistent with something more primary. (Example: does a state legislature have a right to say we dont want to distinguish between those who kill in the heat of passion vs. those who kill cold bloodedly?) What is criminal law? And What is substantive criminal law? Substantive criminal law vs. criminal procedure: (Ex. Game vs. Sport) (SUBSTANTIVE CRIMINAL LAW) Game: choice of move automatically translates into the execution of the move. (CRIMINAL LAW) Sport: performance component, critical, because its not in the game. Move chosen is never executed exactly how they are chosen because reality comes into play. Game of criminal law, is substantive crim law, that presupposes that the choice of criminal law is translated into that punishment. It is a continuum of the definition of the crime, the detection of the crime, and often times are not necessarily detected that way, once detected, after detection comes prosecution, and then plea bargain, possible no prosecution, conviction, sentencing, and then punishment. Reasons why definition does not translate into punishment, (human error). Sport of criminal law is criminal process. The Game of criminal law is substantive criminal law. Take analytical point of view, reality of crim law (as rule book), assume the move thats chosen by legislature is going to be the move that is made. [Law with the purpose of prevention of harm to society which prescribed punishment for specific offenses. The basic law of rights and...] Kansas v. Hendricks: only if its punishment, would it be crime, and if its crime, would it run afoul of expost facto double jep clause. Neither deterrent nor retribution is meant to be served by legislative statute, and therefore not criminal. 5 Justifications of Punishment: Incapacitation: **Safety Purpose. We punish to render the criminal harmless during the time he she incapacitated. [Safety] Problems: Civil purpose vs. criminal Asking officers, punishment is no part, and goal is safety. Non criminal, civil function. Primary Mission. *Deterrence: General and Specific *Achieved special status. Specific: Focuses on the person who has already been punished. The theory there is that the memory, experience of the punishment will alter the cost benefit analysis of that person, and that will prevent the person from doing the crime. Failure: with this is prison becomes a refuge for others. General: When youre trying to prevent others from not committing a crime. Instilling a fear, by making an example by punishing x, y sees this and does not act. Presupposes people seek pleasure, and avoid pain, presupposes people discount pain by how swift, how severe, how certain it is (Jeremy Bentham). Standard deterrence theory. In order to view regarding cost benefit analysis: punishment has to be made so severe enough that I will

discount the pain by its certainty, severity, and swiftness. Calculate pain that will occur later with a certain certainty, severity, and swiftness. *Retribution: Focuses on the past, what bad has been done? Looks at the crime to establish a punishment. Looks at the Denunciation: In theory, stems from Durkheim: Identified as a separate purpose of punishment. Creates social solidarity, comes the occasion in which we all gather together and distinguish ourselves from criminals. Serves a correlative function; allow hardworking poor in our society to feel inferior to others. So they wont feel like theyre the last person in line. Provides a social glue, and that all classes have something in common: law abiding vs. Criminals. Labels criminals as criminals. Rehabilitation: Create a law abiding productive, citizen upon release. We do that through skills, and values. To come to understand this is all wrong. PROBLEMS: Very rare, wasnt working, committing more crimes and was expensive. Ceased to be a major justification of punishment. Plays a lesser role. [We would be wrong to achieve a zero crime ratecertain level of crime very healthy for society, to have criminals we still feel superior even at the bottom rung of social latter]. Issue: Can Kansas confine Hendricks because he is dangerous? Background: State is enacting a new act after Hendricks fulfilled his sentence. Hendricks admits you stress me out, I will go for children. Kansas barely tried to treat Hendricks while he was fulfilling his sentence. Hendricks: alleges that he is being convicted again. Kansas says that he is a dangerous guy. Says they can confine you, but we are not going to punish you. But we cannot punish you twice because it would be unconstitutional due to double jeopardy and ex post facto. Double Jeopardy: Dual Sovereignty Doctrine: a state and federal government can prosecute you under one act provided you committed two different crimes under the same act. US Constitution only prohibits only in criminal law. But it if its punishment its criminal, it if its confinement then its civil. Retribution is concerned with past. Principal classical strain of retributivist focuses on the intent, the evil will of the actor. The harm is irrelevant the culpable state of mind to act with an intent to harm. First part is the culpable mental state, and the seriousness of the act that were wanted to be committed, and the second part is the harm. Court says, if it were retributive it would have to be in response to the crime. It is not in response to the crime. Kansas is confining Hendricks not because he committed the crime, but they are using the crime as a source of prediction for the future. And retribution is not about the future its about the past. Furthermore, more things that do not indicate it is not retributive. The sentence is also open ended, the moment he is not seemingly dangerous anymore, his sentence is fulfilled. Here the courts are analyzing based upon the future NOT THE PAST. RETRIBUTION IS ABOUT THE PAST!!! Rehabilitation: Through the acquisition of skills and values in order to prepare the criminal for society. *Not emphasizing punishment

*looking for a proportional response to what has happened, looking for a treatment for what may happen *looking at the future, not the past. Not just confined to convicts, also means that you did not commit a similar crime you just have to be dangerous. Also not generally a deterrent. Because of his mental incapacity, and he cannot control himself, in no way can he deter himself. Deterrence: Specific: Focuses on the person who has already been punished. The theory there is that the memory, experience of the punishment will alter the cost benefit analysis of that person, and that will prevent the person from doing the crime. Failure: with this is prison becomes a refuge for others. General: When youre trying to prevent others from not committing a crime. Instilling a fear, by making an example by punishing x, y sees this and does not act. Presupposes people seek pleasure, and avoid pain, presupposes people discount pain by how swift, how severe, how certain it is (Jeremy Bentham). Standard deterrence theory. In order to view regarding cost benefit analysis: punishment has to be made so severe enough that I will discount the pain by its certainty, severity, and swiftness. Calculate pain that will occur later with a certain certainty, severity, and swiftness.

*Kansas is not deterring Hendricks because Hendricks said he would commit again. Kansas argues incapacitation to be a civil commitment however, incapacitation is a principle justification of punishment Other principle justifications of punishment** Kansas v. Crane Retribution: Focuses on the past: ask what bad has been done? What does it take to serve justice??? What does criminal deserve proportionate to their crime? Proportionality from a retributive point of view consists in the culpable mental state of mind. The more heinous the crime, the greater the retribution. NY Penal law does pay attention to the harm. Murder is an A felony. Attempted murder is a B felony. Justifications for punishment: 1) Retribution: 2) Deterrence (Specific/Generalsee above) 3) rehabilitation Through the acquisition of skills and values in order to prepare the criminal for society.

4) Incapacitation: punish to render the criminal harmless (Supreme Court identifies this as a civil purpose). 5) denunciation: theory provides a social glue a social cement and that all classes have something in common in that we are law abiding. It is a labeling of a criminal in a community creates solidarity within the community. Theory of incapacitation: punish to render the criminal harmless (Supreme Court identifies this as a civil purpose) January 23, 2013: People v. Onofre: Facts: Onofre was charged with consensual sodomy in violation of 130.38. Appellate division struck down new yorks consensual sodomy statute that it violated the Due process clause of the 14th Amendment of US constitution and the 6th amendment of the NYS constitution. New York Court of Appeals affirmed, and narrowed the question on whether NYS Court of appeals struck down the state statute on the grounds that it violates the federal constitution Significance of what the court of appeals did: State constitutions can restrict the power of government in ways that the United States constitution cannot. Court of Appeals has the last say in the State. U.S. Supreme Court has no power to say to Court of Appeals incorrectly decided the case. State const. has higher floor, can further restrict state power, in way US states constitution cannot. So that it is OK that US const. to permit state to have state const. prohibiting state citizen from doing. If state permitted to do something that the US const. prohibited, there the US const. TRUMPS state const. A state high court has right to strike down state statute on grounds of unconstitutionality. Rest of federal courts system is creature of congress. Cannot abolish us supreme court. Notion of Supremacy Clause: shall yield. To ensure Const. Supremacy, is to have a judicial system that can strike down contrary statutes that violate constitution. But is state courts final authority? Who is? *Bowers asked same question: can state Georgia punish consensual sodomy, or is that violative of const.? State of Georgia can punish. Bowers v. Hardwick overruled Onofre. US. Const. prohibited a state criminalizing sodomy. US Supreme Court held that US Const. permitted criminalizing. And overruling Onofre. Appellate Division struck down the statute as violating: the constitution of both State and U.S. Constitution Court of Appeals: Affirmed Appellate division in part that it violated the United States Constitution, making no mention of the state constitution. Had they affirmed it in NY State constitution, it would end there. The state can further restrict power within the state. What it cant do is take away the protections that the US constitution provides.

Had the NY Court of Appeals affirmed A.Ds decision re: unconstitutionality in the state, it would have ended there. Bowers v. Hardwick (overrules Onofre) Facts: Charged with sodomy violating Ga. Code s 16-6-2 (1984) Punishment: <1 or <20 years in prison Claim: right to privacy violates the prosecution of consensual sodomy. U.S. Supreme Court held that Issue: is consensual sodomy protected under the right to privacy Law from Holemsian prdediction of power Natural Law: Discovery of rights, [Essence of a reductio ad absurdum argument: (reduction to absurdity)] If you want to establish something, but cannot establish it directly, assume the opposite of what you want to show you, and then demonstrate that how the opposite leads into absurdity or contradiction Powell and the 8th Amendment: One view: only outlaws particular kinds of punishment torture, another: only outlaws disproportionate punishment. Dissenting opinion: (Mill and basic utilitarianism view): It may give pain to another for someone else seeking pleasure, the discomfort that someone feels at the thought that they are happy is secondary. Primary happiness is greater than secondary happiness. Who defines the crime: Legislature Who sets the policy: Legislature Who detects the crime: Executive Who prosecutes the crime: Executive Who applies the law: Judiciary Who sentences: Judiciary Who implements: Executive

Lawrence v. Texas Big difference: Georgia violates any oral and anal vs. Texas outlaws only anal sex with same gendered sex being quite clear in its focused object which is to punish homosexual behavior. OConnors opinion: convictions if upheld, are disqualified, makes homosexuals unequal in the eyes of the law. Disregarding them to not being able to uphold professions, and if they reside in a different state, they must register as a sex offender. Outlawing the right of the state to criminalize, private, adult, noncommercial, consensual sex, however far the case extends, at least in its narrowest interpretation. Class Four: 1/28/13

State constitutions can provide further restrictions on the state power than does the U.S. Supreme Court. Ex. Bowers v. Hardwick: USC permitting Georgia to criminalize consensual sodomy. U.S. v. Moore: Principle questions the court is asked to decide: can a person be held responsible for behavior which is not the product of free will? If Moore does not have free will, can he be punished? Background: Moore arrested in California for being an addict. Californias statute is unconstitutional, because it was cruel and unusual punishment under the 8th amendment. Moore cites Robinson when he uses it for his argument stating it is a criminal offense State may not inflict cruel and unusual punishment without violating the US constitution. US supreme court holds that this statute is outlawed by the 8th amendment. Do so on one of two grounds: 1) outlaws the product of something that is not free will state cannot punish the behavior that is the product of an addiction; and 2) state cannot punish a status. Criminal law may not extend itself to doing something not being something. Robinson: U.S.C. says even one day in prison would be cruel and unusual punishment for spending a day in prison for having a cold. Doesnt only mean certain kinds of punishment thats cruel, it also outlaws grossly disproportionate punishment. Powell v. Texas: Background: Issue: If California cannot prove that hes guilty in California, nevertheless, the court finds on two grounds that : 1) either being addicted to narcotics makes him unable to control his addiction, or 2) being an addict is not punishable. If Robinson extends the right to outlaw public drunkenness, then they would also extend the rule that Under Robinson, if you cannot punish compulsion of alcoholism, then you cannot punish the compulsion to kill. Limit of the criminal law should be from the time you move to the act of status, you cannot punish anyone for being anything. Can only punish someone for doing. If Robinson cannot be convicted in California, and Powell cannot be convicted of being alcoholic in a public place, can Moore be convicted as an addict in public. To establish that moore may be convicted for possessing heroine, although he is an addict. Assume he couldnt be. If Moore cannot be convicted for possessing heroine because he is a heroine addict, it is inescapable If Heroine addict lacks free will, then he also lacks free will to rob the bank to get money to get drugs. If Moore cant be convicted for possession, then the bank robber cannot be convicted for

robbery. That is absurd because the bank robber has to be convicted of robbery, and therefore, Moore can be convicted for possession. Majority is saying that Free will is all about degree. If you allow liability in one degree, you must allow liability to a lesser degree? No. Different mechanism operating between the necessity to obtain and use heroine if youre a heroine addict, and a necessity to rob to get the heroine. Difference of degree. If you are so concerned with free will and it is a requisite and even if by the time he has no more heroine To what degree do we freely will our behavior, and to what degree does it constitute as a crime? Science tells us we are the product of our own deformation. January 30, 2013 Boundary of Criminal Law: Status: only for what you do acts, not what you are. Can omission be the basis of criminal liability and if so, when? A failure to act will not constitute as a legal obligation unless theres some sort of duty. Four general duties: 1) Where statute imposes a duty of care owed to another 2) Where one stands in a certain status relationship to another 3) assuming a contractual duty to another 4) one has voluntary assumed the care for another AND secluded helpless person to prevent others aid. Omission means a failure to perform an act, as when a performance of one is required by law. Penal Law 205.55 260.10 Endangering the Welfare of a child People v. Wong Background: Wongs advertised 24 hour childcare Jiangs child killed after shaken baby syndrome Analysis: Wongs accused of murder BUT one person committed act and other passively watched Two different charges and courts cannot delegate 2 diff sentences and court had to dismiss case. o Contractual affirmative duty to help Failure to act in situations like this can constitute as homicide We do not know whether the non-shaker of the child, actually witnessed the shaker shake the child.

The matter was a question of law

Diminished Capacity: A Status? Background: Patricia Tempest admitted to drowning son Gregory Emotionally disturbed since adolescence Suffered from depression Argued defense of insufficient mental capacity However court opposed argument since she was able to form intent prior to killing Greg (states in her testimony planned three days prior) and gave reasons why Commonwealth v. Mazza: Defendant accused of murdering man, argues mental retardation People v. Wolff Defendant appeals from Judgment of life in prison for killing mother Defendant opposes arguing insanity Killed mother to fulfill sexual desires Turns himself in Jury found Defendants acts during murder were legally sane: o 1) motive (fulfills sexual desires) o 2) Planned murder (obtaining axe handle) o 3) abortive (1st attempt) o 4) knew he was wrong (hiding weapon) o 5) excuse to mother (renewed concealment) o 6) persistence (pursuit of fleeing mother) o 7) actual infliction o 8) conscious of committing crime (confession to the police) Doctrine of irresistible impulse is not defense Free will is LAW Defendant is guilty Did Wolffs schizophrenia constitute as diminished capacity? Diminished capacity to control yourself, carry out plans, feel, appreciate, know, establish intent. No Defense to Diminished Capacity in NY Not guilty because of PMS? Woman accused of abuse/neglect of child Defense of PMS Court rejects Next Class: Read NY Penal Law: [Homicide 125.00]

February 4, 2013 Class 7: Mens Rea: Intention, Recklessness and Negligence Mens Rea: Subjective reference to the mind of a person bent on legally proscribed harm doing. No Free act of the will in the choice of things/actions Defense: drunkenness, unable to entertain a criminal intention Defining Mens rea: Exclusion and elucidating situations Cannot exclude from minds of different persons Mentes Reae Basic Concepts: Austin: Volitions are desires which are immediately followed by bodily movements. An intention is not volition, and therefore not desires Intention: Expectation: to expect any of acts consequences is to intend those consequences. Intended consequence: not desired always. Intention does not imply will. Knowledge of a possibility is an expectation. Essence of intention. Salmond: one may try to attempt a certain goal even knowing its difficulty to succeed. Salmond/Holmes: Intention: foresight that certain consequences will follow from an act, and wish for consequences working as a motive which induces the act. Intention is foresight of a desired issue, however improbable. Actor desires occurrence of harm, while reckless actor does not desire it. Intention vs. Recklessness: Intention actor chooses, decides, resolves to bring proscribed harm into being. Employs means to end. Reckless: makes no choice. Decision made is ominous one, choosing to increase existing chances that a proscribed harm will occur. Negligence implies inadvertence, defendant was unaware of the dangerousness of his behavior Problem: Deliberate action in a situation known to be dangerous Inadvertnece connotes absence of awareness, rare to have degrees of negligence. Degrees of risk?? *no degree of negligence can ever be recklessness, since recklessness connotes awareness when negligence excludes it. Recklessness is within scope of penal law (degrees?) 3 types of mental states are relevant to subjective mind: mens rea New View of Mind Gives Unconscious an Expanded Role An unconscious mind may understand and respond to meaning, form emotional responses and guide most actions, largely independent of conscious awareness. **Outside awareness Understanding without conscious awareness, form likes and dislikes. Conscious volition or will: brain initiates the act before a person is aware of wanting to do it. When Can ______ Claim Sleepwalking as a Legal Defense? Were people legally culpable for actions? Defendants contend that they were asleep at time and cannot be accountable for actions. Acceptance of it being a disease. Sleep related violence: part of the brain wakes up enough to allow person to perform complex acts while rest remains unconscious with sleep. Most disorders leading to sleep violence is not due to stress. REM disorder: acting from dreams, muscles continue to work No alcoholism, psychiatric disorders, etc.

Marshall, Intention in Law and Society 1-8 scale *first items involve little or no conscious choice and gradually increase to degree of conscious choice. R. Perkins, Criminal Law: What is intent? Intent includes those consequences which (a) represent very purpose for which an act is done (regardless of likelihood of occurrence), or (b) are known to be substantially certain to result (regardless of desire). Intent is conditional/qualified. Model penal code uses culpability: (a) purposely, (b) knowingly, (c) recklessly and (d) negligently. Intentionally: Equaling purposely or knowingly. In class notes: Impossible vs. probable Cognitive route function of expectation and locate it. If you foresee possibility of something happening. One could intend it could happen. Something nearly impossible then you would not try to do it. Ultimate functions of personality. Various possible interpretations of intent: (Salmond) a person could intend to achieve a certain goal but doesn't expect to succeed. But volition is qualified by cognition we don't try to do something unless we thought it possible. 15.05:cognitive "Conscious objective" aware of your own desires. Volitional definition (objective) with a cognitive limitation Not aware of his own desires but he acts to produce his own desired outcome. Must be conscious of his own desires. Continuum of unconscious-conscious behavior Scale 1-8 Neurotic action: frozen into a pattern, under stress. PL 125.25 murder in the second degree (transferred intent) person is guilty of murder in 2nd degree when with intent to cause death of another he causes the death of another person. Transferred conditional intent. When you hope/think that something will happen based on acts but not entirely sure. Conscious objective to cause result. Subconscious goals unconscious goals do not qualify as intent in NY. NY PL 15.05 Recklessness: must be aware of. NY: Intent: volitional term w cognitive modifier. Goal aware of your goal. No requirement of knowing probability. Intentional vs. Recklessness vs. Negligence.

Recklessness: aware of and conscious disregard of the substantial and an unjustifiable risk. Negligence: failure to perceive to dangerousness of the risk Choice involved in negligence and recklessness requires (a) aware of this being risky and (b) taking the risk. Negligence doesn't require awareness and doesn't require you choose to take the risk. Intent and recklessness share an awareness. And share a volition of choice. Recklessness and negligence are alike because the focus is on a risk. Substantial and unjustifiable risk. Risk must be of such a nature and degree that disregard, failure to perceive, constitutes a gross deviation from a standard of care. Reference to a reasonable person* Recklessness: Substantial and unjustifiable and grossly deviant. Aware of and consciously disregards and thereby causes the death. Certain risks are justifiable some aren't. Degrees of recklessness: 1) doesn't believe that the harm will occur 2) indifferent to whether or not it does occur The riskier the worse the recklessness is. The elevations of recklessness could be heightened in two situations: 1) Recklessness may be elevated on the degree of risk. 80% chance of risk vs. a 20% chance of risk. 2) The attitude also affects the degree of risk. Difference is "odds vs not caring" that attitude increases the degree of recklessness. First form of murder: intentional Second form: reckless. But requires heightened elevations in both dimensions of recklessness. Degrees of negligence is recognized in various jurisdictions if it refers to degrees of risks. Controversy. Does negligence belong in criminal law? Is it really a mens rea? (A mental state?) In some way you voluntarily and consciously allow yourselves to go blank. Do you at some point make a decision to ignore? Is it deterrable? Yes it is. But is retributively, is it worse to be reckless than it is to be negligent. And is it bad enough to be negligent to be punishable? Degree of harm may be a function of the attitude.

February 6, 2013 Commonwealth v. Feinberg: Facts: Appellant MF owned operated cigar shop in PA Sold Sterno containers: 1 for home, 1 for industrial. New Sterno has 54% methanol. Identicalacns Imprinted on cans, institutional sterno danger, poison. MF sold 400 cans, and between 12/23-12/30 31 deaths. Involuntary Manslaughter: (PL) A death happening in consequence of an unlawful act, or doing of a lawful act in an unlawful way. Manslaughter elements: when a death results from doing of an act lawful in itself but done in an unlawful manner. (1) conduct must be a departure from behavior of an ordinary and prudent person, (2) evidence a disregard of human life, or indifference to consequences, (3) direct causal relationship between act and death. *Def. giving deceased moonshine containing methanol (drinking resulted in death). Malum prohibitum vs. Malum per se *manufacturing and distribution of moonshine = malum prohibitum Question of negligence? If party knows or should have known of the danger there then appears from his act a recklessness which is indifferent to results. Elements necessary to warrant a conviction for involuntary manslaughter: 1) MF sold sternoknowing that at least some would extract the alcohol for drinking purposes (when purchasing say in code); asked them to conceal sterno when leaving store; 2) MF aware of should have known that sterno was toxic if consumed; 3) when informed of deaths from methanol poisoning told employee to tell any police no sterno sold at store. MF argues that drinking sterno liquid was voluntary and was intervening cause. *Recognized weaknesses of the purchasers of the product and MFs concern with profit than results. (Negligence and demonstrated reckless disregard for those whom he reasonablyassumed to use the sterno for alcoholic purposes). *If seller is aware of alcoholics that purchase, then he has a duty, and is grossly negligent and wantonly reckless if selling it to alcoholic. People v. Boutin Facts: 11/26/1985, D driving truck southbound in right-hand lane of 87 Hit police car parked in right hand lane, and killed people in the vehicle. Guilty of criminally negligent homicide. Appellate division affirmed. Court of appeals reversed. Failure to perceive a risk. The result is grossly unjustifiable. *unanswered question of how defendant failed to perceive blaze of emergency lights ahead 125.10 of PL: criminally negligent homicide when with criminal negligence he causes the death of another person 15.05(4) of PL: Criminal negligence is failure to perceive a substantial and unjustifiable risk that such result will occur. Risk might be of such nature and degree that the failure to perceive it constitutes a gross deviation from standard of care that a reasonable person would observe in situation

*Carelessness required for crim negligence is appreciably more serious than that for ordinary civil negligence, and must be such that its seriousness would be apparent to anyone who shares the communitys general sense of right and wrong *compared to reckless manslaughter: underlying conduct, exclusive of mental element is same. Require risk of homicide. Unless a D has engaged in some blameworthy conduct creating or contributing to a substantial and unjustifiable risk of death, he as not committed crim negligent homicide. NON PERCEPTION of a risk, is NOT ENOUGH *mere carelessness sufficient only to establish liability for civil negligence Case facts: Failuer to see vehicle = fatality. But that could also = civil negligence No culpable risk creating conduct Order reversed. Indictment dismissed. People v. Cabrera Teenager violating driving restrictions, debate on whether or not careless or not. 15.25 Effect of intoxication upon liability. Intoxication is not, as such, a defense to a criminal charge; but in any prosecution for an offense, evidence of intoxication of the defendant may be offered by the defendant whenever it is relevant to negative an element of the crime charged. Manslaughter 1st intent to kill. Manslaughter 2nd recklessness Did Feinberg continue to sell sterno after he knew it was deadly? Why is it his responsibility ? Cabrera: Teenager violating driving restrictions, debate on whether or not careless or not. 4 friends in car. Loses control of car. Kills 3 and injures 1. Convicted of criminally negligent homicide. Issue on appeal: did cabreras conduct constitute not only a failure to perceive a risk of death but also some serious blame worthiness in the conduct that caused it? Failure to passengers of not wearing seatbelt contributed to the risk of death. Morally blameworthy conduct that contributes to the risk of death. Car is a dangerous instrument. People v. Owusu S 120.00 Assault in the third degree. A person is guilty of assault in the third degree when: 1. With intent to cause physical injury to another person, he causes such injury to such person or to a third person; (transferred intent)or 2. He recklessly causes physical injury to another person; or 3. With criminal negligence, he causes physical injury to another person by means of a deadly weapon or a dangerous instrument. Assault in the third degree is a class A misdemeanor. Culpable mental state are interchangeable

A person is guilty of assault in the second degree when: 1. With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person; or , he causes such injury to such person or to a third person by mea 2. With intent to cause physical injury to another perso nns of a deadly weapon or a dangerous instrument; or 3. With intent to prevent a peace officer, a police officer, a rse of performance of duty as such firefighter, an emergency medical firefighter, including a firefighter acting as a paramedic or emergency medical technician administering first aid in the co uservice paramedic or emergency medical service technician, or medical or related personnel in a hospital emergency department, a city marshal, a traffic enforcement ing the actor's intent that the animal obstruct the lawful activity of officer or traffic enforcement agent, from performing a lawful duty, by means including releasing or failing to control an animal under circumstances evin csuch peace officer, police officer, firefighter, paramedic, technician, city marshal, traffic enforcement officer or traffic enforcement agent, he or she causes physical injury to such cement agent; or 4. He recklessly causes serious physical injury to peace officer, police officer, firefighter, paramedic, technician or medical or related personnel in a hospital emergency department, city marshal, traffic enforcement officer or traffic enfo ranother person by means of a deadly weapon or a dangerous instrument; or 5. For a purpose other than lawful medical or therapeutic treatment, he intentionally causes stupor, unconsciousness or other physical attempted commission of a felony, other than a felony defined in a impairment or injury to another person by administering to him, without his consent, a drug, substance or preparation capable of producing the same; or 6. In the course of and in furtherance of the commission or rticle one hundred thirty which requires corroboration for conviction, or of immediate flight therefrom, he, or another participant if there be any, causes physical injury to a person other than one of the participants; or physical injury to another person, he causes such injury to such person 7. Having been charged with or convicted of a crime and while confined in a correctional facility, as defined in subdivision three of section forty of the correction law, pursuant to such charge or conviction, with intent to caus e or to a third person; or 8. Being eighteen years old or more and with intent to cause physical injury to a person less than eleven years old, the defendant recklessly causes serious physical injury to such person; or 9. Being eighteen years old or more and with intent to cause physical hool or public school district; or (b) not being a student of such injury to a person less than seven years old, the defendant causes such injury to such person; or 10. Acting at a place the person knows, or reasonably should know, is on school grounds and with intent to cause physical injury, he or she: (a) causes such injury to an employee of a s cschool or public school district, causes physical injury to another, and such other person is a student of such school who is attending or present for educational purposes. For purposes of this subdivision the term "school grounds" shall have the meaning set forth in subdivision fourteen of section 220.00 of this chapter. cement officer or traffic enforcement agent, he or she causes phys

11. With intent to cause physical injury to a train operator, ticket inspector, conductor, signalperson, bus operator or station agent employed by any transit agency, authority or company, public or private, whose operation is authorized by New York state or any of its political subdivisions, a city marshal, a traffic enfo rical injury to such train operator, ticket inspector, conductor, signalperson, bus operator or station agent, city marshal, traffic enforcement officer or traffic enforcement agent while such employee is performing an assigned duty on, or directly related to, the operation of a train or bus, or such city marshal, traffic enforcement officer or traffic enforcement agent is performing an assigned duty. 12. With intent to cause physical injury to a person who is sixtyfive years of age or older, he or she causes such injury to such person, and the actor is more than ten years younger than such person. Assault in the second degree is a class d felony. Assault in first degree (120.10): A person is guilty of assault in the first degree when: 1. With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a ure another person seriously and permanently, deadly weapon or a dangerous instrument; or 2. With intent to disfi g or to destroy, amputate or disable permanently a member or organ of his Under circumstances evincing a depraved indifference to human life, body, he causes such injury to such person or to a third person; or 3. he recklessly engages in conduct which creates a grave risk of death to person; or 4. In the course of and in furtherance of the commission another person, and thereby causes serious physical injury to another or attempted if there be any, causes serious physical injury to a person other than commission of a felony or of immediate flight therefrom, he, or another participant one of the participants. egree is a class B felony. Assault in the first d People v. Owusu: Dangerous instrument : (PL) 10.00(13): any instrument which under the circumstances in which it is used attempted to be used or threatened to be used is readily capable of chasing death or serious physical injury. All dangerous instruments should be constituted as external objects and not body parts. His "teeth came with him" Oxford dictionary: February 11, 2013:

Darry v. People: Statute says "others." Victim was only one person and therefore contradicts statute. Present New York statute is in the singular. D only endangered one person, whereas that statute said "others" Worry is that a jury will always see a risk as behavior imminently dangerous to others when someone dies because if death is the outcome, something bad must have happened. All manslaughter will become murder. Needs to be a distinction between murder and manslaughter. If what distinguishes them between grave vs substantial, the d's action comes into play. Depraved indifference is not listed in the culpable mental states in the penal law. Result of register? Prosecutors? Gomez: endangerment vs assault vs death Substantial vs grave as it gets closer to certainty Does that evince As risk becomes greater reaches a certain point that evinces an indifference to life. Depravity makes the gravity. Same risk becomes elevated. People v roe 15 year old loads live and dummy shells. Plays polish roulette Two versions of the story as to how he loaded them. When defendant appeals decision in crim, appeals court views prior decision and facts in as light most favorable to the people Gravity makes depravity What is the culpable state of mind at the instant the harm happened. Immediate reaction is what when he sees the result? Focus on the process of proving it not the process proved. Dissents warning is probably right Not an indifference to the risk but indifference to human life Russian roulette is only 1/6 chance People v Davis: Barroom incident, police chase Gun that did not fire is of no moment. Charged of reckless endangerment 1st degree creates a grave risk of death Court reverses decision. No substantial risk because the gun does not fire. Court affirms the decision. No condition of reckless endangerment. Police officer believe there's a great risk of death Defendant believes there's a great risk of death People v Galloway :

People v Chrysler : Menacing: 120.14 A person is guilty of menacing in the second degree when: 1. He or she intentionally places or attempts to place another person in reasonable fear of physical injury, serious physical injury or death be a pistol, revolver, rifle, shotgun, machine gun or other firearm; or by displaying a deadly weapon, dangerous instrument or what appears to 2. He or she repeatedly follows a person or engages in a course of physical injury, serious physical injury or death; or 3. He or sh conduct or repeatedly commits acts over a period of time intentionally placing or attempting to place another person in reasonable fear of e commits the crime of menacing in the third degree in o article eight of the family court act, section 530.12 of the crimi violation of that part of a duly served order of protection, or such order which the defendant has actual knowledge of because he or she was present in court when such order was issued, pursuant tnal procedure law, or an order of protection issued by a court of competent jurisdiction in another state, territorial or tribal jurisdiction, which directed the respondent or defendant to stay away from the person or persons on whose behalf the order was issued. Menacing in the second degree is a class A misdemeanor. Taking Davis seriously. Defendant cocks a loaded gun. Convicted of depraved and indifferent reckless endangerment and therefore no objective risk of dying. Citing Davis and makes a logical conclusion that it is not there 134(d) never a risk under these particular circumstances People v. Tuck: Reckless endangerment? Appellate division reverses decision When gun fired but missed. People v Chrysler : court of appeals : agrees w dissenters that is objective risk. Says a risk is easily distinguished. Depravity: in register, there is a warning that prosecutors are going to know what to do. Juries if given opportunity do not want to find people intentionally killed. Now they have an option. Give person deprived indifference murder it is kind of like a compromise. No extreme emotionally disturbance mitigated. It is just easier to go for it What was warned has happened.

People v. Benedict: Strangle to death. Convicted of depraved mind murder. Court of appeals refused to hear appeal. People v de la rosa: Expresses that he wanted to kill. Acquitted of intentional murder, and convicted of depraved indifferent murder People v Gallagher: Convicted of both intentional and reckless manslaughter. Concurrent sentencing - one act Court of appeals reverse Can't be convicted of simultaneously for reckless and intent. The result is either intended it cannot be simultaneously be both. Guilt of one necessarily negates the other. Reverse and remanded for a me trial. Have to decide cannot be charged for both things. People v Trappier Can a defendant intend to seriously cause injury at the same time the defendant commits a single act on a single victim. Defendant who acts w a consciousness to bring about a certain result cannot be convicted of both. People v Russell. Don't know who fired the fatal shot. Both convicted of depraved indifference of reckless murder for the one who fired the shot, and the one who didn't found for the accomplice. Article 20: accomplice liability. When one person engages in conduct

Criminal Law: Class 9 February 11, 2013 Darry v. The People Facts:

D convicted of murder of wife, sentence to be hung Striking and beating of hands and feet, and chair, and kicking D under influence of alcohol, no evidence of provocation Trial judge gave jury instructions: in order to convict of murder, not necessary to be satisfied that D did not plan, but should find D that if he inflicted injuries as acts as were imminently dangerous to the life of deceased and show a depraved mind, regardless of any premeditation this constitutes as murder

Rule: Sec 4: Murder: killing of human being, by poison, shooting, stabbing or other means equates to murder, manslaughter or excusable or justifiable homicide Sec 5: Killing, unless manslaughter or homicide is murder when: 1. perpetrated from premeditated design to effect death of person killed 2. any act imminently dangerous to others and evincing a depraved mind, regardless of human life, although without premeditated design. (State of mind to accompany act) 3. when perpetrated without design by a person engaged in commission of Analysis: Implied malice vs. express malice vs. malice aforethought: excluded. Implied malice: want of any actual intent to take life is conceded yet law punishes offence as murder, and death produced an recklessness to life Foster says: o Malice: wicked, depraved malignant spirit. Under statute, should be three separate subdivisions for each class of case Intent: a depraved mind, regardless of human life (describing state of mind) accompanying act Homicide: o 1) Particular malice to person killed o 2) malice to one, falls by mistake or accident -deadly intent not necessary to commit murder; from a general malice, or depraved inclination to mischief, fall where it may. (reckless conduct, aimed at no one in particular but endangering lives and resulting in death) act must be unlawful attended with probable serious danger, done with mischievous intent to hurt people although without any premeditated design to effect the death of any particular individual not intended to exclude cases of general deadly intent death produced by acts putting lives of many in jeopardy without being aimed at any one specifically, and have full consciousness of probable consequences (reckless disregard of and indifference to human life) o 3) malice or depraved inclination to mischief Where is the line between murder vs. manslaughter? o Manslaughter has to prove a depraved mind, regardless of human life, imminently dangerous to others o Doesnt a depraved mind also compare with murderer?? The People v. George Poplis Facts: D convicted of murder of Roxanne Felumero (3.5 y.o child of Ds wife) Repeated physical beatings by D, brutal callous and inhuman Resulting injuries produced death

Witnesses incl. wife. Appellant argues : the acts as alleged do not fall within murder statute

Rule: PL 125.25(2): A person is guilty of murder when under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and causes death. *Requires conduct with depraved indifference to life + recklessness *Former 1044(2): Act imminently dangerous to others & evincing a depraved mind, regardless of human life (new PL eliminates psych. Complicated evincing depraved mind) *Embraces dangerous and fatal conduct without homicidal intent but with a depraved kind of wantonness PL 125.12(1): Manslaughter: guilty when he recklessly causes death of another

Analysis: Person with depraved indifference to human life recklessly engages in conduct that creates grave risk of death Murder requires more than recklessly causing death which could happen from carelessness Continued brutality toward a child satisfies recklessness and a depraved indifference to human life Poplis v. Darry v. People: Darry turned on limitation in language of earlier statute, needed to require a threat of danger to more than one person. Was corrected. Order affirmed. Evidence supports conviction.

People v. Register Facts: D appeals from order of app. Div. affirming judgment entered after a jury trial convicted him of murder in 2nd degree and two counts of assault in 1st degree Barroom incident, D shot and killed one man and seriously injured two others D asserts evidence was insufficient to support murder conviction because no consideration of defense of intoxication to negate an element of crime of depraved murder Shootings happened after D was drinking prior to bar. Said was going to kill someone tonight Fight broke out, and defendant shot and missed, then saw someone randomly, and shot without any intention

Jury acquitted defendant of intentional murder but convicted him of depraved mind murder People required to establish defendants act was imminently dangerous and presented high risk of death to other and it was committed under circumstances evidenced a wanton indifference to human life or depravity of mind

PL 15.05(3): person acts recklessly when aware of and consciously disregards a substantial and unjustifiable risk. Precludes evidence of intoxication in defense of reckless crimes because a person creates such a risk but is unaware thereof solely by reason of voluntary intoxication but also acts recklessly. PL 15.05(4): Criminal negligence: a failure to perceive a substantial risk, under circumstances evincing a depraved indifference to human life, defendants conduct converts substantial risk PL 125.25(1): a reckless killing which includes requirement that D disregards substantial risk PL 125.25(2): under circumstances evincing a depraved indifference to human life evincing depraved indifference to human life recklessly engaged in conduct which created a grave risk of death to another person and caused death of another PL. 15.25: Intoxication PL 15.10: Mens Rea: Culpable mental state & Actus reus: voluntary act

Analysis: Depraved murder differs from intentional murder because it results not from a conscious intent to cause death, but an indifference to or disregard of the risks attending defendants conduct. Jurys role to determine if Ds act was of such gravity that it placed the crime upon the same level as taking life premeditated Had to equal in blameworthiness to intentional murder D was aware of and indifferent to risk when entering bar with gun Ds defense of intoxication provides that intoxication provides circumstances that wont negate conscious disregard element but could enforce it, because he voluntary chose to drink knowing of the risks + having a gun in bar Degree of risk in a depraved mind murder, actors conduct must present a grave risk of death whereas manslaughter is less Statutory requirement that homicide result from depraved indifference to human life is an attempt to differentiate between manslaughter Intoxication not a defense or excuse and is viewed as an aggravating circumstance heightening moral culpability Weakening impact of voluntarily consuming alcohol warranted admission of evidence when providing D possessed capacity to commit crime Only permitted in NY to aid in finding motive Element of recklessness encompasses risks created by Ds conduct getting drunk Only purpose is to negate Ds awareness and disregard of risk and it is inconsistent in permitting reckless and aggravating conduct to negate aspect of offence Order affirmed.

Analysis (Dissent): Believes legislature intended that Ds alleged intoxication could be used to negate element of crime D should be allowed to show as a result of drunkenness not aware of what he was doing and risks involved and not competent to consciously disregard those risks. Reckless manslaughter: acts causing death of another when aware of and consciously disregards substantial and unjustifiable risk Intentionally kill: conscious objective is to cause death of victim Depraved murder: engaging in conduct whereby does not intend to kill but is so indifferent to consequences which he knows with substantial certainty results in death of another as to be willing to kill. o Reckless homicide becomes knowing homicide and killing differs so litter from intentional killing o Accused has acted with greater culpability and a wickedness akin to that whose conscious objective is to kill Risk of excessive drinking should be added to and not subtracted from risks created by conduct of drunken D bc no social or penological purpose to be served by a rule that permits one who voluntarily drinks to be exonerated from failing to foresee results of his conduct. People v. Gomez: Facts: D appeals conviction of 2 counts of murder in 2nd degree and 4 counts of reckless endangerment in the 1st degree D drove car several blocks on a busy nyc street and sidewalks killing 2 children and endangering lives of pedestrians D claims evidence was insufficient to support convictions for depraved mind murder

Rule: PL 125.25(2) Depraved mind murder: under circumstances depraved indifference to human life PL 120.25: Reckless endangerment

Analysis: Under circumstances evincing a depraved indifference to human life is not a mens rea element focusing on subjective intent of D but involves objective assessment of degree of risk from Ds conduct Focus on depraved mind murder is to allow trier of fact to discern depravity of mind from circumstances under which an object or instrumentality is used Conduct cannot be excused by social utility used to cause death

Appellate Division order affirmed.

Class 11: February 18, 2013 People v. Hafeez Facts: D and co-D plotted to lure victim out of Queens Bar after victim threw pool ball at Ds eye. D brought with him a knife, and once victim was outside stabbed him in the heart and tossed the handle of the knife into the sewer. Grand jury indicted ds on two counts of second degree murder, with intentional and indifference Jury acquitted of intentional but found guilty of depraved indifference murder App. Division reversed depraved indifference murder, evidence insufficient Can only be guilty of depraved indiff. Murder if he intentionally aided co-d with crime and shared co-ds culpable mental state Analysis: D plotted plan for months Plan culminated of a single deliberate wound to the chest Actions were focused on isolating and intentionally injuring victim Element in depraved indifference was not recklessness but depraved indifference App. Division order reversing conviction for depraved indifference was correct People v. Gonzalez: Facts: D entered barber shop pulled a gun out and shot victim in chest After victim fell to floor, D fired again in the head, and then shot 8 more times in the back of the head Looked at witness and warned him not to say anything Jury acquitted defendant of intentional murder but convicted of depraved indifference murder and possession of weapon App. Div. reversed murder conviction because evidence was legally insufficient to establish depraved indifference and affirmed weapon convictions Analysis: Depraved indifference murder differs from intentional murder because it results not from a specific conscious intent to cause death, but an indifference to or disregard of the risks of ds conduct Unconcerned with consequences Whether d indifferent with whether or not death will result from conduct Ds conduct is specifically designed to cause death of victim Person cannot act both intentionally and recklessly with respect to same result

Depraved indifference: where D does not have conscious objective to cause death but instead is recklessly indifferent if it occurs If D wants to cause death, depravity of circumstances is irrelevant Trial court erred in allowing jury to consider if the jury didnt consider depraved indifference it could have considered intentional

Class 12: February 20, 2013 BREAKS Burglary, Robbery, Escape Law, Arson, Kidnapping & Sex Crimes (NY restricts felony murders only to these) 125.25(3) Acting either alone or with one or more other persons, he commits or attempts to commit robbery, burglary, kidnapping, arson, rape. Focus on the culpable mental state of murder: there is no culpable mental state required. Accidental and or negligent act of murder in the act of burglary, it is elevated to felony murder. 1) Acting w one or more persons 2) Commits or attempts

Attempt of burglary is very difficult to ascertain How serious is an attempt relevant to the attempted crime? An attempt that fails is much less serious. Attempts challenge us to come up with some sort of serious notion

People v. Rizzo: [Every attempt requires intent.] Facts: Charles Rizzo, and others planned to rob Charles Rao, of a pay roll Police were watching these men who planned to rob Could not find Rao with the pay roll, and they go to where the men were expected to be. Police find them, and arrest them (men were armed) Definition of Penal Law 1927 of attempt: An act done with intent to commit a crime, and tending but failing to effect its commission. Definition of Tending: Indefinite: Tending means to exert activity in a particular direction. Any act in preparation to commit a crime may be said to have a tendency toward its accomplishment (Now present day intent includes not only failing But NOW successful)

RULE: Definition of Penal Law 1927 of attempt: An act done with intent to commit a crime, and tending but failing to effect its commission. vs. PL: 110.10: Attempt to commit a crime; no defense: If the conduct in which a person engages otherwise constitutes an attempt to commit a crime pursuant to 110.00 it is no defense to a prosecution for such attempt that the crime charged to have ben attempted was, under attendant circumstances, factually or legally impossible of commission, if such crime could have been committed had attendant circumstances been as such person believed them to be. PL 40.10: Renunciation: In any prosecution for an offense, other than an attempt o commit a crime, in which the Defendants guilt depends upon his criminal liability for the conduct of another person pursuant to section 20.00, it is an affirmative defense that under circumstances manifesting a voluntary and complete renunciation of his criminal purpose

Analysis: Using all reasonable probability the crime itself would have been committed, would have been accomplished, but for timely interference Must be a dangerous proximity to success An act in order to be a criminal attempt must be immediately and not remotely connected with and directly tending to commission of an offense Difficulty of rule of law is its application with the facts: applying rule to immediate nearness Model penal code analysis: Intent is required for every jurisdiction, but the model penal code marks that defendant takes substantial steps to commit crime. Intent doesnt require the objective of recklessness, because of 110.10. Model penal law and Rizzo: two are in conflict

People v. Warren: Facts: Defendants did not come near to accomplishment of intended crime Planned purchase of cocaine was to take place hours later People v. Mahboubian Facts: Defendant accused of staged theft, and planned to recover from insurance proceeds of 18.5M Mahboubian knows that the value of the products are forgeries and very minimal Attempting to steal proceeds of insurance policy Insured 18.5M, rented a vault, hired people to break into vault Is this attempted grand larceny?

o Yes. RULE: PL 110.00: A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect he commission of such crime. PL 110.05: An attempt to commit a crime is a: 1. Class A-I felony when the crime attempted is the A-I felony of murder in the first degree, aggravated murder as defined in subdivision one of section 125.26 of this chapter, criminal possession of a controlled substance in the first degree, criminal sale of a controlled substance in the first degree, criminal possession of a chemical or (attempt AII) biological weapon in the first degree or criminal use of a chemical or biological weapon in the first degree; 2. Class A-II felony when the crime attempted is a class A-II felony; 3. Class B felony when the crime attempted is a class A-I felony except as provided in subdivision one hereof; 4. Class C felony when the crime attempted is a class B felony; 5. Class D felony when the crime attempted is a class C felony; 6. Class E felony when the crime attempted is a class D felony; 7. Class A misdemeanor when the crime attempted is a class E felony; 8. Class B misdemeanor when the crime attempted is a misdemeanor. Analysis: Reaffirmed Rizzo rule: Definition of Penal Intent: 110.00 Strictest possible approach to defining an attempt would be to require that the defendants have engaged in the last proximate act necessary to accomplish the intended crime Ds have not yet taken final step necessary to obtain the insurance money does not mean that the steps they had taken could not constitute an attempt to do so. D did enough where it is enough to have the result be in his power constitute attempt. Is what remains to be done, still an act of volition necessary to have the act complete? People of NY v. Acosta: Facts: Attempted drug deal Court of appeals reverses decision Accepts Rizzos requirement, despite People v. Fair: Issue: did he attempt to escape? Facts: Burrowed a root through basement tunnel system Stuffed his clothes as a dummy of him with newspaper Has rope to lead him out Arrested him when he was outside of his cell

Discovered him in a search Is that attempted escape? Under Rizzo: o Intent manifested? Yes o Did he do acts tending? Yes o Dangerous proximity? Not really o Immediate Nearness? Not really

February 25, 2013 CLASS 13: Inchoate Crimes Greater punishment is attached to a serious crime, if the sole purpose is to deter crime. Attempts at inchoate crimes: solicitation, conspiracy, etc. 125.25 (3) Acting either alone or with one or more other persons, he commits or attempts to commit robbery, burglary, kidnapping, arson, rape in the first degree, criminal sexual act in the first degree, sexual abuse in the first degree, aggravated sexual abuse, escape in the first degree, or escape in the second degree, and, in the course of and in furtherance of such crime or of immediate flight therefrom, he, or another participant, if there be any, causes the death of a person other than one of the participants; except that in any prosecution under this subdivision, in which the defendant was not the only participant in the underlying crime, it is an affirmative defense that the defendant: (a) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (b) Was not armed with a deadly weapon, or any instrument, article or substance readily capable of causing death or serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons; and (c) Had no reasonable ground to believe that any other participant was armed with such a weapon, instrument, article or substance; and (d) Had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury; or ARTICLE 100 of PL: Criminal Solicitation: S 100.00 Criminal solicitation in the fifth degree. A person is guilty of criminal solicitation in the fifth degree when, with intent that another person engage in conduct constituting a crime, he solicits, requests, commands, importunes or otherwise attempts to cause such other person to engage in such conduct. Criminal solicitation in the fifth degree is a violation. S 100.05 Criminal solicitation in the fourth degree.

A person is guilty of criminal solicitation in the fourth degree when: 1. with intent that another person engage in conduct constituting a felony, he solicits, requests, commands, importunes or otherwise attempts to cause such other person to engage in such conduct; or 2. being over eighteen years of age, with intent that another person under sixteen years of age engage in conduct that would constitute a crime, he solicits, requests, commands, importunes or otherwise attempts to cause such other person to engage in such conduct. Criminal solicitation in the fourth degree is a class A misdemeanor. S 100.08 Criminal solicitation in the third degree. A person is guilty of criminal solicitation in the third degree when, being over eighteen years of age, with intent that another person under sixteen years of age engage in conduct that would constitute a felony, he solicits, requests, commands, importunes or otherwise attempts to cause such other person to engage in such conduct. Criminal solicitation in the third degree is a class E felony. S 100.10 Criminal solicitation in the second degree. A person is guilty of criminal solicitation in the second degree when, with intent that another person engage in conduct constituting a class A felony, he solicits, requests, commands, importunes or otherwise attempts to cause such other person to engage in such conduct. Criminal solicitation in the second degree is a class D felony. S 100.13 Criminal solicitation in the first degree. A person is guilty of criminal solicitation in the first degree when, being over eighteen years of age, with intent that another person under sixteen years of age engage in conduct that would constitute a class A felony, he solicits, requests, commands, importunes or otherwise attempts to cause such other person to engage in such conduct. Criminal solicitation in the first degree is a class C felony. S 100.15 Criminal solicitation; no defense. It is no defense to a prosecution for criminal solicitation that the person solicited could not be guilty of the crime solicited owing to criminal irresponsibility or other legal incapacity or exemption, or to unawareness of the criminal nature of the conduct solicited or of the defendant`s criminal purpose or to other factors precluding the mental state required for the commission of the crime in question. S 100.20 Criminal solicitation; exemption. A person is not guilty of criminal solicitation when his solicitation constitutes conduct of a kind that is necessarily incidental to the commission of the crime solicited. When under such circumstances the solicitation constitutes an offense other than criminal solicitation which is related to but separate from the crime solicited, the actor is guilty of such related and separate

offense only and not of criminal solicitation. (acting in culpable mental state, where solicits, commands, platoons). **Would much rather be convicted of criminal solicitation than as an accomplice. What distinguishes inchoate crimes? Freedom of speech to have the right to say anything Addressed to a large group not as obvious Conspiracy: has switched faces, can target everybody. People v. Macklowitz: Conspiracy: UNILATERAL APPROACH: 105.00 Conspiracy in the sixth degree. A person is guilty of conspiracy in the sixth degree when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct. Conspiracy in the sixth degree is a class B misdemeanor. S 105.05 Conspiracy in the fifth degree. A person is guilty of conspiracy in the fifth degree when, with intent that conduct constituting: 1. a felony be performed, he agrees with one or more persons to engage in or cause the performance of such conduct; or 2. a crime be performed, he, being over eighteen years of age, agrees with one or more persons under sixteen years of age to engage in or cause the performance of such conduct. Conspiracy in the fifth degree is a class A misdemeanor. S 105.10 Conspiracy in the fourth degree. A person is guilty of conspiracy in the fourth degree when, with intent that conduct constituting: 1. a class B or class C felony be performed, he or she agrees with one or more persons to engage in or cause the performance of such conduct; or 2. a felony be performed, he or she, being over eighteen years of age, agrees with one or more persons under sixteen years of age to engage in or cause the performance of such conduct; or 3. the felony of money laundering in the third degree as defined in section 470.10 of this chapter, be performed, he or she agrees with one or more persons to engage in or cause the performance of such conduct. Conspiracy in the fourth degree is a class E felony. S 105.13 Conspiracy in the third degree. A person is guilty of conspiracy in the third degree when, with intent that conduct constituting a class B or a class C felony be performed,

he, being over eighteen years of age, agrees with one or more persons under sixteen years of age to engage in or cause the performance of such conduct. Conspiracy in the third degree is a class D felony. S 105.15 Conspiracy in the second degree. A person is guilty of conspiracy in the second degree when, with intent that conduct constituting a class A felony be performed, he agrees with one or more persons to engage in or cause the performance of such conduct. Conspiracy in the second degree is a class B felony. S 105.17 Conspiracy in the first degree. A person is guilty of conspiracy in the first degree when, with intent that conduct constituting a class A felony be performed, he, being over eighteen years of age, agrees with one or more persons under sixteen years of age to engage in or cause the performance of such conduct. Conspiracy in the first degree is a class A-I felony. *****105.20 Conspiracy; pleading and proof; necessity of overt act. A person shall not be convicted of conspiracy unless an overt act is alleged and proved to have been committed by one of the conspirators in furtherance of the conspiracy. [Moment there is an overt act by one of the co-conspirators.] An agreement to commit a crime. S 105.25 Conspiracy; jurisdiction and venue. 1. A person may be prosecuted for conspiracy in the county in which he entered into such conspiracy or in any county in which an overt act in furtherance thereof was committed. 2. An agreement made within this state to engage in or cause the performance of conduct in another jurisdiction is punishable herein as a conspiracy only when such conduct would constitute a crime both under the laws of this state if performed herein and under the laws of the other jurisdiction if performed therein. 3. An agreement made in another jurisdiction to engage in or cause the performance of conduct within this state, which would constitute a crime herein, is punishable herein only when an overt act in furtherance of such conspiracy is committed within this state. Under such circumstances, it is no defense to a prosecution for conspiracy that the conduct which is the objective of the conspiracy would not constitute a crime under the laws of the other jurisdiction if performed therein. S 105.30 Conspiracy; no defense. It is no defense to a prosecution for conspiracy that, owing to criminal irresponsibility or other legal incapacity or exemption, or to unawareness of the criminal nature of the agreement or the object

conduct or of the defendant`s criminal purpose or to other factors precluding the mental state required for the commission of conspiracy or the object crime, one or more of the defendant`s co-conspirators could not be guilty of conspiracy or the object crime. S 105.35 Conspiracy; enterprise corruption: applicability. For purposes of this article, conspiracy to commit the crime of enterprise corruption in violation of section 460.20 of this chapter shall not constitute an offense. (Chain link & wheel spoke) Two types When is a person a facilitator? When you can believe it to be probable (autonomy in the community, when you believe your behavior can give aid to the community) Ex. Timothy McVeigh Whether you have a stake in the action and success is one distinguishing factor for when you are an accomplice in a crime. Generally, unless you have a stake in the success (by sharing the gun). Defense is generally not accomplice. Examples of Inchoate Crimes: Solicitation, conspiracy (agreeing to commit a crime, and one party commits an overt act), facilitation, attempt (with intent you do acts tending, reaching the stage of actual nearness), accomplice liability. Renunciation: PL 40.10: covers inchoate crimes. (Affirmative Defense) 1. In any prosecution for an offense, other than an attempt to commit a crime, in which the defendant`s guilt depends upon his criminal liability for the conduct of another person pursuant to section 20.00, it is an affirmative defense that, under circumstances manifesting a voluntary and complete renunciation of his criminal purpose, the defendant withdrew from participation in such offense prior to the commission thereof and made a substantial effort to prevent the commission thereof. 2. In any prosecution for criminal facilitation pursuant to article one hundred fifteen, it is an affirmative defense that, prior to the commission of the felony which he facilitated, the defendant made a substantial effort to prevent the commission of such felony. 3. In any prosecution pursuant to section 110.00 for an attempt to commit a crime, it is an affirmative defense that, under circumstances manifesting a voluntary and complete renunciation of his criminal purpose, the defendant avoided the commission of the crime attempted by abandoning his criminal effort and, if mere abandonment was insufficient to accomplish such avoidance, by taking further and affirmative steps

which prevented the commission thereof. 4. In any prosecution for criminal solicitation pursuant to article one hundred or for conspiracy pursuant to article one hundred five in which the crime solicited or the crime contemplated by the conspiracy was not in fact committed, it is an affirmative defense that, under circumstances manifesting a voluntary and complete renunciation of his criminal purpose, the defendant prevented the commission of such crime. 5. A renunciation is not "voluntary and complete" within the meaning of this section if it is motivated in whole or in part by (a) a belief that circumstances exist which increase the probability of detection or apprehension of the defendant or another participant in the criminal enterprise, or which render more difficult the accomplishment of the criminal purpose, or (b) a decision to postpone the criminal conduct until another time or to transfer the criminal effort to another victim or another but similar objective. People v. Lozano: Facts:

D started four fires in his mothers apartment. Fireman Bub responded, which required heavy equipment and physical labor. Bub collapsed, attempts to resuscitate failed and he died. Autopsy revealed progressive heart disease but opinion was that physical exertion and smoke inhalation contributed to the occurrence and severity of the heart attack.

15.15 Construction of statutes with respect to culpability requirements. 1. When the commission of an offense defined in this chapter, or some element of an offense, requires a particular culpable mental state, such mental state is ordinarily designated in the statute defining the offense by use of the terms "intentionally," "knowingly," "recklessly" or "criminal negligence," or by use of terms, such as "with intent to defraud" and "knowing it to be false," describing a specific kind of intent or knowledge. When one and only one of such terms appears in a statute defining an offense, it is presumed to apply to every element of the offense unless an intent to limit its application clearly appears. 2. Although no culpable mental state is expressly designated in a statute defining an offense, a culpable mental state may nevertheless be required for the commission of such offense, or with respect to some or all of the material elements thereof, if the proscribed conduct necessarily involves such culpable mental state. A statute defining a crime, unless clearly indicating a legislative intent to impose strict liability, should be construed as defining a crime of mental culpability. This subdivision applies to offenses defined both in and outside this chapter.

Inherently dangerous activities. Affirmative Defense to Arson Third: NY restricts it by designating those felonies: The killing has to be committed in the course of, and in furtherance of, OR in immediate flight thereof. Firefighter bub dies in furtherance of the arson? Causation: is there medical evidence beyond a reasonable doubt that causes the death from the felon of a non-felon. A person is guilty of Arson fourth when he recklessly damages o Procedure: D charged with felony murder, filed motion to dismiss. o Issue: Whether one can be charged with murder if he sets a fire and a fireman dies while responding. o Evaluation: Felony murder doesnt require intent to kill. Transferred intent from commission of felony. Limited to eight specific felonies in NY (includes arson) and in furtherance of the felony. o Furtherance- in this case (only felony listed where there is no face-to-face contact), language is meaningless and overkill. Causation o Homicide requires cause of death to be proved

beyond a reasonable doubt. o Felony murder doesnt require Ds actions to be the sole and immediate cause. Rather it is sufficient that Ds conduct forged a direct link in a chain of events which brought about the death. o Holding/Reasoning: Ds Motion to Dismiss was Denied Transferred intent from arson. Interpreting furtherance language strictly would create an absurd result. Egg-shell heart rule rejects pre-existing weakness in victim. Heart attack is foreseeable by responders- direct spatio-temporal nexus between fire and death.

People v. Lewis- NY (1981) Facts: D concedes that he was involved in an armed robbery where they tied up, blind folded and robbed victims in an apartment. Female accomplice shot the unit owner who happened to be her former lover. Surviving victims could not see because they were blindfolded. No testimony from P to dispute Ds version of the facts. o Procedure: D charged with felony murder, files motion to dismiss. o D Argues: Killing was not in furtherance of the robbery, rather 1) private motive; or 2) gratuitous purposes. Killing one witness does not help their cause in escaping robbery. o Evaluation: Only case law is People v. Lozano where court omitted the language pertinent to this case. Some legal relationship had to exist between felony and killing. More than coincidence of time and place. Only time accomplices actions hold the other responsible is if their actions are in pursuance of the unlawful act. Killings caused by accidents, personal motive or by bystanders/police/non-accomplices do not leave all actors liable. o People v. Wood- only those killings committed by one of the criminals in the attempted execution of the unlawful end. o Personal Motiveo Holding/Reasoning: Motion to Dismiss was Denied. Distinction between private motive/gratuitous purpose is critical in this case. o Private Motive- killer takes advantage of felony to carry out personal vendetta which he might have

carried out at any other time. Not within the common plan or execution. o Gratuitous purpose would still be within confines of the felony because there is no private motive which personalizes the actor. Cannot say killing was outside scope of the felony. It may not advance it, but it was logically an integral aspect of it. Ds argument is certainly plausible however there is no evidence. D was an active participant accountable for the principal acts of his accomplices. Not in the COURSE of AND in FURTHERANCE OF. The robbery was already completed. Do what degree of what was committed do we have to give notice of? People v. Gladman- NY - Or immediate flight therefrom o Holding/Reasoning: jury should consider whether killing occurred at the same location as the felony and/or distance separating locations. Other factors: o interval of time between the two o possession of the fruits of the felony o proximity of pursuit o temporary safety o ETC no single factor is controlling, rather a combination of relevant factors. Jerome Hall, General Principles of Criminal Law o Legality- penal statutes must be strictly interpreted AND they must not be given retroactive effect.
o Nulla poena sine lege (Latin: no penalty without a law)

NY Times, Drug D not guilty by Reason of a Misspelling o Legislature misspelled the scientific name for MDMA. Judge acquitted D.
GENERAL RULES OF CONSTRUCTION AND APPLICATION 5.00 Penal law not strictly construed. 5.05 Application of chapter to offenses committed before and after enactment. 5.10 Other limitations on applicability of this chapter. S 5.00 Penal law not strictly construed. The general rule that a penal statute is to be strictly construed does

not apply to this chapter, but the provisions herein must be construed according to the fair import of their terms to promote justice and effect the objects of the law.

People v. Darryl M.- NY (1984) o D charged with Sexual Abuse 3rd Degree o Penal Statutes to be strictly interpreted but also within the plain meaning/fair import of their terms. o Any other lewd acts included rubbing his covered and erect penis on people in public. o Due process does not require the legislature to enumerate every possible proscribed act to assure constitutional merit. This wouldnt be possible. Statute is not constitutionally vague if it defined the prohibited conduct in sufficient detail to give notice to ordinarily intelligent people and to prevent arbitrary enforcement.
S 130.00 Sex offenses; definitions of terms. The following definitions are applicable to this article: 1. "Sexual intercourse" has its ordinary meaning and occurs upon any penetration, however slight. 2. (a) "Oral sexual conduct" means conduct between persons consisting of contact between the mouth and the penis, the mouth and the anus, or the mouth and the vulva or vagina. (b) "Anal sexual conduct" means conduct between persons consisting of contact between the penis and anus. 3. "Sexual contact" means any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party. It includes the touching of the actor by the victim, as well as the touching of the victim by the actor, whether directly or through clothing, as well as the emission of ejaculate by the actor upon any part of the victim, clothed or unclothed. 4. For the purposes of this article "married" means the existence of the relationship between the actor and the victim as spouses which is recognized by law at the time the actor commits an offense proscribed by this article against the victim. 5. "Mentally disabled" means that a person suffers from a mental disease or defect which renders him or her incapable of appraising the nature of his or her conduct. 6. "Mentally incapacitated" means that a person is rendered temporarily incapable of appraising or controlling his conduct owing to the influence of a narcotic or intoxicating substance administered to him without his consent, or to any other act committed upon him without his consent. 7. "Physically helpless" means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act.

8. "Forcible compulsion" means to compel by either: a. use of physical force; or b. a threat, express or implied, which places a person in fear of immediate death or physical injury to himself, herself or another person, or in fear that he, she or another person will immediately be kidnapped. 9. "Foreign object" means any instrument or article which, when inserted in the vagina, urethra, penis, rectum or anus, is capable of causing physical injury. 10. "Sexual conduct" means sexual intercourse, oral sexual conduct, anal sexual conduct, aggravated sexual contact, or sexual contact. 11. "Aggravated sexual contact" means inserting, other than for a valid medical purpose, a foreign object in the vagina, urethra, penis, rectum or anus of a child, thereby causing physical injury to such child. 12. "Health care provider" means any person who is, or is required to be, licensed or registered or holds himself or herself out to be licensed or registered, or provides services as if he or she were licensed or registered in the profession of medicine, chiropractic, dentistry or podiatry under any of the following: article one hundred thirty-one, one hundred thirty-two, one hundred thirty-three, or one hundred forty-one of the education law. 13. "Mental health care provider" shall mean a licensed physician, licensed psychologist, registered professional nurse, licensed clinical social worker or a licensed master social worker under the supervision of a physician, psychologist or licensed clinical social worker.

KIDNAPPING & THE MERGER DOCTRINE People v. Wilsey- NY (1984) o Facts/Evaluation: Merger Doctrine bars kidnapping conviction if abduction is incidental and inseparable from the other crime. D tackled victim on beach and robber her. o restraint merged with robbery Forced her into car and drove until he ran out of gas. Forced her out of car and sexually assaulted her. o conduct up to this point was merged with sexual assault. Continued to restrain her while he purchased gas. Brought her back to his car at which point she escaped. o prolonged restraint not incidental to robbery/sexual assault- NOT merged. o Holding: Merger Doctrine not applicable.

People v. Cain- NY (1990) o Facts: Victim is a restaurant owner who Ds robbed at gunpoint demanding $50,000. When dissatisfied with amount of money victim had, Ds went to his house, detaining six family members while searching for money and jewelry. When dissatisfied with what they found there, two Ds stayed and held family hostage while one D brought victim back to the restaurant. Victim escaped from restaurant. o Procedure: Appellant & Co-Ds were charged with Robbery 1st, Kidnapping 2nd, Burglary 1st and six counts of Unlawful Imprisonment 1st. Trial Court denied motion to dismiss on the kidnapping count. o D Argues: Merger Doctrine applies to kidnapping charges. o Evaluation: Merger doctrine is intended to preclude convictions for kidnapping when those acts are so much part of the other substantive crimes that couldnt occur without such acts and thus, the independent criminal responsibility may not be fairly attributed to them. o Issue/Holding/Reasoning: Did trial court err in rejecting Ds motion to dismiss the kidnapping charges? YES- charges should be dismissed based on the merger doctrine. Restraint and transport of the victim was incidental to Ds scheme of stealing $50,000. o Dissent: merger doctrine should not be applied to merge true kidnappings into other less severe crimes if it is independent or separable.

People v. Gonzalez- NY (1992) Merger Doctrine Explained and Applied o Facts: D arranged for car to pick victim up. Jumped into car with her and locked her in vehicle. They drove around as he beat and terrorized her. Took her to empty lot where they beat her. Said they would rape, then knocked her unconscious. She woke up beatenvagina sore and sticky between legs. Thinks she was raped (couldnt prove? rape kit??). o Procedure: D indicted on kidnapping, assault, rape and sexual abuse. o Assault counts dropped because injuries didnt meet statutory req.

o Lesser included offenses were declined by court. D prosecuted for kidnapping and attempted rape. Acquitted on rape but convicted on kidnapping charge. Sentenced 2-6 years. D appealed and kidnapping sentence was overturned based on merger doctrine. Dissent by two (including Rosenblatt) said that majority expanded merger doctrine to lengths that will carry it beyond its purpose and origins. o Issue: Did the Legislature intend to punish the restraint or abduction separately as kidnapping? o Evaluation: Criteria: o If the restraint was so engrained in underlying crime- merger doctrine applies o If restraint immediately preceded rape or robberymerger doctrine applies o If restraint was simultaneous- merger doctrine MAY apply depending on circumstances. o If the manner of detention is egregious (regardless of other considerations)- merger doctrine would not apply. o Holding/Reasoning: Appellate Divisions decision was reversed. Disposition of the underlying crime has no bearing on the issue. Lengthy abduction with a deadly weapon, prolonged terror and physical brutality is the sort of behavior the Legislature intended to proscribe as second degree kidnapping when they revised the law. Abduction constituted a discrete crime, which was already completed before the sexual assault. o Restraint was not the minimal intrusion necessary and integral to another crime nor was it simultaneous and inseparable from another crime.

Class 14: February 26, 2013 If you knowingly substantially restrict someones liberty, still guilty: strict liability because lacks an element or component of mental culpability which exposes victim to risk of serious physical injury.

135.00 Unlawful imprisonment, kidnapping and custodial interference; definitions of terms. The following definitions are applicable to this article: 1. "Restrain" means to restrict a person`s movements intentionally and unlawfully in such manner as to interfere substantially with his liberty by moving him from one place to another, or by confining him either in the place where the restriction commences or in a place to which he has been moved, without consent and with knowledge that the restriction is unlawful. A person is so moved or confined "without consent" when such is accomplished by (a) physical force, intimidation or deception, or (b) any means whatever, including acquiescence of the victim, if he is a child less than sixteen years old or an incompetent person and the parent, guardian or other person or institution having lawful control or custody of him has not acquiesced in the movement or confinement. 2. "Abduct" means to restrain a person with intent to prevent his liberation by either (a) secreting or holding him in a place where he is not likely to be found, or (b) using or threatening to use deadly physical force. Class E Felony. As serious as forcible rape. 3. "Relative" means a parent, ancestor, brother, sister, uncle or aunt. 135.05 Unlawful imprisonment in the second degree. A person is guilty of unlawful imprisonment in the second degree when he restrains another person. Unlawful imprisonment in the second degree is a class A misdemeanor. 135.10 Unlawful imprisonment in the first degree. A person is guilty of unlawful imprisonment in the first degree when he restrains another person under circumstances which expose the latter to a risk of serious physical injury. Unlawful imprisonment in the first degree is a class E felony.

The Merger Doctrine Holds since kidnappings take place in the course of (1) rapes and (2) robberies, then we should be careful that we do not assume kidnapping along with both crimes. The lesser crime merges into the greater crime. Kidnapping is not a lesser crime though to robbery and rape, which both are very serious crimes. To commit rape, doesnt mean you commit kidnapping, and vice versa. People v. Gonzalez Facts: Plaintiff, four months pregnant, was terrorized, and raped. Was not conscious when this happened. Defendants acquitted of rape, and convicted of kidnapping

Defendant appeals to the appellate division, and Appellate Division dismissed the charge, holding kidnapper was precluded from the kidnapping charge. Insufficient evidence of the statutory physical injury requirements (PL 120.05(1)(6)) *concluded majoritys holding was an expansion of the merger doctrine to lengths that carry it well beyond its purpose and origins.

Issue: does kidnapping merge into attempted rape? Analysis: Revised statute of kidnapping distinguishes between the terms and restrain and abduct which lie at heart of rimes Restraint: substantial interference with a persons liberty by either asportation or confinement (135.00(1)) Abduction: either restraint in a place where victim is unlikely to be found, or restraint through the actual or threatened use of deadly physical force Merger doctrine is a means of effectuating the legislatures intent by precluding additional kidnapping sanctions for conduct that, while literally falling within the definition of that crime, was not intended to be separately treated as kidnapping. Prevents multiple convictions. Guiding principle is whether the restraint was so much the part of another substantive crime that the substantive crime could not have been committed without such acts and that independent criminal responsibility may not fairly be attributed to them. People v. Cain Facts: Appellant-Asher Cain + co-ds charged with robbery in 1st degree, kidnapping in 2nd degree, burglary in 1st degree and six counts of unlawful imprisonment in 1st degree Ds held restaurant owner and his family hostage while ransacking house and demanding $50,000. SEX CRIMES: Evolution of the barometer in changing status of women in society: Rape: defined by men, reflecting dominant of male society. There are no sex crimes without consent.

130.00 Sex offenses; definitions of terms. The following definitions are applicable to this article: 1. "Sexual intercourse" has its ordinary meaning and occurs upon any penetration, however slight. 2. (a) "Oral sexual conduct" means conduct between persons consisting of contact between the mouth and the penis, the mouth and the anus, or the mouth and the vulva or vagina. (b) "Anal sexual conduct" means conduct between persons consisting of contact between the penis and anus.

3. "Sexual contact" means any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party. It includes the touching of the actor by the victim, as well as the touching of the victim by the actor, whether directly or through clothing, as well as the emission of ejaculate by the actor upon any part of the victim, clothed or unclothed. 4. For the purposes of this article "married" means the existence of the relationship between the actor and the victim as spouses which is recognized by law at the time the actor commits an offense proscribed by this article against the victim. 5. "Mentally disabled" means that a person suffers from a mental disease or defect which renders him or her incapable of appraising the nature of his or her conduct. 6. "Mentally incapacitated" means that a person is rendered temporarily incapable of appraising or controlling his conduct owing to the influence of a narcotic or intoxicating substance administered to him without his consent, or to any other act committed upon him without his consent. 7. "Physically helpless" means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act. 8. "Forcible compulsion" means to compel by either: a. use of physical force; or b. a threat, express or implied, which places a person in fear of immediate death or physical injury to himself, herself or another person, or in fear that he, she or another person will immediately be kidnapped. 9. "Foreign object" means any instrument or article which, when inserted in the vagina, urethra, penis, rectum or anus, is capable of causing physical injury. 10. "Sexual conduct" means sexual intercourse, oral sexual conduct, anal sexual conduct, aggravated sexual contact, or sexual contact. 11. "Aggravated sexual contact" means inserting, other than for a valid medical purpose, a foreign object in the vagina, urethra, penis, rectum or anus of a child, thereby causing physical injury to such child. 12. "Health care provider" means any person who is, or is required to be, licensed or registered or holds himself or herself out to be licensed or registered, or provides services as if he or she were licensed or registered in the profession of medicine, chiropractic, dentistry or podiatry under any of the following: article one hundred thirty-one, one hundred thirty-two, one hundred thirty-three, or one hundred forty-one of the education law. 13. "Mental health care provider" shall mean a licensed physician, licensed psychologist, registered professional nurse, licensed clinical social worker or a licensed master social worker under the supervision

of a physician, psychologist or licensed clinical social worker. 130.05 Sex offenses; lack of consent. Age of consent is 17. Anything under 17 is strict liability. 1. Whether or not specifically stated, it is an element of every offense defined in this article that the sexual act was committed without consent of the victim. 2. Lack of consent results from: (a) Forcible compulsion; or (b) Incapacity to consent; or (c) Where the offense charged is sexual abuse or forcible touching, any circumstances, in addition to forcible compulsion or incapacity to consent, in which the victim does not expressly or impliedly acquiesce in the actor's conduct; or (d) Where the offense charged is rape in the third degree as defined in subdivision three of section 130.25, or criminal sexual act in the third degree as defined in subdivision three of section 130.40, in addition to forcible compulsion, circumstances under which, at the time of the act of intercourse, oral sexual conduct or anal sexual conduct, the victim clearly expressed that he or she did not consent to engage in such act, and a reasonable person in the actor's situation would have understood such person's words and acts as an expression of lack of consent to such act under all the circumstances. 3. A person is deemed incapable of consent when he or she is: (a) less than seventeen years old; or (b) mentally disabled; or (c) mentally incapacitated; or (d) physically helpless; or (e) committed to the care and custody or supervision of the state department of corrections and community supervision or a hospital, as such term is defined in subdivision two of section four hundred of the correction law, and the actor is an employee who knows or reasonably should know that such person is committed to the care and custody or supervision of such department or hospital. For purposes of this paragraph, "employee" means (i) an employee of the state department of corrections and community supervision who, as part of his or her employment, performs duties: (A) in a state correctional facility in which the victim is confined at the time of the offense consisting of providing custody, medical or mental health services, counseling services, educational programs, vocational training, institutional parole services or direct supervision to inmates; or (B) of supervising persons released on community supervision and supervises the victim at the time of the offense or has supervised the victim and the victim is still under community supervision at the time

of the offense; or (ii) an employee of the office of mental health who, as part of his or her employment, performs duties in a state correctional facility or hospital, as such term is defined in subdivision two of section four hundred of the correction law in which the inmate is confined at the time of the offense, consisting of providing custody, medical or mental health services, or direct supervision to such inmates; or (iii) a person, including a volunteer, providing direct services to inmates in a state correctional facility in which the victim is confined at the time of the offense pursuant to a contractual arrangement with the state department of corrections and community supervision or, in the case of a volunteer, a written agreement with such department, provided that the person received written notice concerning the provisions of this paragraph; or (f) committed to the care and custody of a local correctional facility, as such term is defined in subdivision two of section forty of the correction law, and the actor is an employee, not married to such person, who knows or reasonably should know that such person is committed to the care and custody of such facility. For purposes of this paragraph, "employee" means an employee of the local correctional facility where the person is committed who performs professional duties consisting of providing custody, medical or mental health services, counseling services, educational services, or vocational training for inmates. For purposes of this paragraph, "employee" shall also mean a person, including a volunteer or a government employee of the state department of corrections and community supervision or a local health, education or probation agency, providing direct services to inmates in the local correctional facility in which the victim is confined at the time of the offense pursuant to a contractual arrangement with the local correctional department or, in the case of such a volunteer or government employee, a written agreement with such department, provided that such person received written notice concerning the provisions of this paragraph; or (g) committed to or placed with the office of children and family services and in residential care, and the actor is an employee, not married to such person, who knows or reasonably should know that such person is committed to or placed with such office of children and family services and in residential care. For purposes of this paragraph, "employee" means an employee of the office of children and family services or of a residential facility in which such person is committed to or placed at the time of the offense who, as part of his or her employment, performs duties consisting of providing custody, medical or mental health services, counseling services, educational services, vocational training, or direct supervision to persons committed to or placed in a residential facility operated by the office of children and family services; or

(h) a client or patient and the actor is a health care provider or mental health care provider charged with rape in the third degree as defined in section 130.25, criminal sexual act in the third degree as defined in section 130.40, aggravated sexual abuse in the fourth degree as defined in section 130.65-a, or sexual abuse in the third degree as defined in section 130.55, and the act of sexual conduct occurs during a treatment session, consultation, interview, or examination. 130.25 Rape in the third degree. A person is guilty of rape in the third degree when: 1. He or she engages in sexual intercourse with another person who is incapable of consent by reason of some factor other than being less than seventeen years old; 2. Being twenty-one years old or more, he or she engages in sexual intercourse with another person less than seventeen years old; or 3. He or she engages in sexual intercourse with another person without such person`s consent where such lack of consent is by reason of some factor other than incapacity to consent. Rape in the third degree is a class E felony. 130.30 Rape in the second degree. A person is guilty of rape in the second degree when: 1. being eighteen years old or more, he or she engages in sexual intercourse with another person less than fifteen years old; or 2. he or she engages in sexual intercourse with another person who is incapable of consent by reason of being mentally disabled or mentally incapacitated. It shall be an affirmative defense to the crime of rape in the second degree as defined in subdivision one of this section that the defendant was less than four years older than the victim at the time of the act. Rape in the second degree is a class D felony. 130.35 Rape in the first degree. A person is guilty of rape in the first degree when he or she engages in sexual intercourse with another person: 1. By forcible compulsion; History of forcible compulsion begins with evolution of our society. Physical force which is capable of overcoming earnest resistance or a threat, express or physical injury to himself or another person. Forcible compulsion means: use of physical force (without fear) or a threat, express or implied, placing person in fear of immediate death or physical injury to himself, herself or another person, or in fear that he, she or another person will immediately be kidnapped. or 2. Who is incapable of consent by reason of being physically helpless; or 3. Who is less than eleven years old; or 4. Who is less than thirteen years old and the actor is eighteen years old or more.

Rape in the first degree is a class B felony. *17, 15, 11, 13: People v. Liberta Facts: D forcible raped and sodomized wife in front of 21/2 year old son. Although married, is treated as unmarried because of Fam Court Order. On appeal, contends because of exemption for married men, statutes for rape in 1st degree and sodomy in 1st degree violate equal protection clause of Fed Const. (14th) Contends rape statute violates equal protection because only men and not women can be prosecuted Marital exemption: o Marriage itself consents to a man to have sex with them whenever they want it o Women was property and you cannot rape a thing because she was his wife o Husband and wife are one union, and you cannot rape yourself o Public policy: courts do not want to intrude on the marital union Ds first argument: o I cannot rape her because Im married o And if I am not married to her, the case is discriminatory towards single men D wins on both constitutional arguments Issue: Does this violate the ex post facto no sine pune llege? No. Can start prosecuting married men Now law of state, forcible compulsion is the law but legislature did not change statute If you prosecute someone for rape (husband v. wife), he would have a defense of mistake of law? o PL 15.20: 15.20 Effect of ignorance or mistake upon liability. 1. A person is not relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief of fact, unless: (a) Such factual mistake negatives the culpable mental state required for the commission of an offense; or (b) The statute defining the offense or a statute related thereto expressly provides that such factual mistake constitutes a defense or exemption; or (c) Such factual mistake is of a kind that supports a defense of justification as defined in article thirty-five of this chapter. 2. A person is not relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief that it does not, as a matter of law, constitute an offense, unless such mistaken belief is founded upon an official statement of the law contained in (a) a statute or other enactment, or (b) an administrative order or grant of permission, or (c) a judicial decision of a state or federal court, or (d) an interpretation of the statute or law relating to the offense, officially made or issued by a public servant, agency or body legally

charged or empowered with the responsibility or privilege of administering, enforcing or interpreting such statute or law. 3. Notwithstanding the use of the term "knowingly" in any provision of this chapter defining an offense in which the age of a child is an element thereof, knowledge by the defendant of the age of such child is not an element of any such offense and it is not, unless expressly so provided, a defense to a prosecution therefor that the defendant did not know the age of the child or believed such age to be the same as or greater than that specified in the statute. 4. Notwithstanding the use of the term "knowingly" in any provision of this chapter defining an offense in which the aggregate weight of a controlled substance or marihuana is an element, knowledge by the defendant of the aggregate weight of such controlled substance or marihuana is not an element of any such offense and it is not, unless expressly so provided, a defense to a prosecution therefor that the defendant did not know the aggregate weight of the controlled substance or marihuana. February 27, 2013 CLASS 15 People v. King Facts: Two plain clothes officers see D in front of jewelry store on 5th Ave., at 4:30 AM on Sunday Store was guarded by metal gate that covered entire storefront and prevented access to front door and display cases Several metal bars from gate strewn inside vestibule, leaving hole D convicted of attempted burglary in 3rd degree App Div affirmed Judgment D argues conviction should be reversed because (1) factually impossible to get his body into area, which is legally required for burglary conviction, and (2) evidence insufficient to establish attempted burglary because vestibule does not equal building within PL law, and only had means to put his arm through gate PL 140.20: Burglary in third Degree: a person must knowingly enter or remain unlawfully in a building with intent to commit a crime therein 140.00 (5): Enter or remain unlawfully: Common Law entry: insertion of any part of the body into the premises for the purpose of committing a felony NOW 140.00(5): Statute focuses on unlawful aspect of entry: A person enters or remains unlawfully in or upon premises when he is not licensed or privileged to do so (No matter how slightly with any part of his or her body)

Analysis: D could have reached into vestibule and stole goods after smashing with hammer (which was coincidentally in his pocket) Just because it may have been physically impossible for his body to go through the hole doesnt preclude him from a successful burglary which couldve been accomplished (BY ANY BODY PART) and therefore, attempted burglary was warranted. (2nd contention) that vestibule is not building The security gate, pulled down completely and encloses vestibule from public access, makes the vestibule a part of the rest of the store, and therefore included within the definition of the building. Decision: Appellate Division Order affirmed. People v. Gaines Facts: Early morning of February 2, 1985, D arrested emerging out of a building supply company window He was wearing coveralls and a jacket, the jacket held pens in its pocket bearing company name, and the desks were in disarray Nothing else was missing, and no burglar tools found D testified he left the homeless shelter, and set out to stay with his friend Went to the building supply company pushed in a window and entered for refuge from the cold and snow He claims he did not touch anything, except the clothes he put on Ds counsel requested Jury to be instructed where an unlawful entry, burglary must occur at the time of entry remains unlawfully omitted from charge Ct. told jury it could charge D uilty of burglary if, at time of his knowingly unlawful entry D intended to commit crime Issue: Whether in this case of unlawful entry, jury should have been instructed that they must find Ds intent to commit a crime in the building existed at the time of entry, or whether no such instruction need have been given, because remains unlawfully element of statute means such intent may be formed after Ds unlawful entry?

PL 140.20: Burglary of 3rd degree: when a person knowingly enters or remains unlawfully in a building with intent to commit a crime therein. Common Law: Burglary: Breaking and entering of a dwelling of another, at night, with intent to commit a felony therein. Unless intent to commit a felony existed at the time of breaking and entry, there was no burglary. Former PL: Breaking and entering with no intent to commit a crime was NOT guilty of burglary, though later deciding to commit a crime on premises. PL Revised 140.20: Burglary in third degree: knowingly enters OR REMAINS unlawfully in a building with intent to commit a crime therein.

Analysis: Difference between Burglary v. Trespass Does intent have to occur before/after entering the building? In spite of fact that statute says entering or remaining, it is still not burglary. Remaining unlawfully constitutes as burglary WHEN and only when D enters lawfully. D must commit a crime while unlawfully on premises Burglary is a more serious felony instead of punishing trespass and attempted/consummated crime within a building because of heightened danger posed during unlawful intrusion with someone bent on a criminal end. D does not possess the more culpable mental state justifying the punishment for burglary In order to be guilty of burglary for unlawful remaining: D must have entered legally but remain for purpose of committing a crime after authorization to be on the premises terminates In order to be guilty of burglary for unlawful entry: D must have had intent to commit a crime at time of entry Contemporaneous intent is REQUIRED Jury must have found that he intended to commit a crime at time he entered premises unlawfully If you entered unlawfully without the intent to commit a crime, you do not constitute as remaining unlawfully with intent to commit a crime. Decision: Courts failure to give instruction compels reversal in case. Appellate Divisions order reversed and a new trial ordered. People v. Glanda: Facts: Homicide of woman who was killed and burglarized at her home Burglary of own house due to occupier having exclusive rights to the house because she was his estranged wife

People v. Quattlebaum: Issue: whether a dwelling has been burglarized if a person wrongfully enters the first floor offices of a school, where a fifth floor school office contains a bed that is used for an occasional overnight stay Facts: Building staff cleaning member, defendant has keys to school but was not authorized to go to 2 first floor offices Broke into first floor offices and took various items Analysis: Dwelling v. Building: o Nature of such was adapted for occupancy at the time of wrongful entry: was the fifth floor indicative of a residence? Court says no 20-30x per year that anyone were to stay overnight = not usual A person could have been sleeping in fifth floor was a determinative factor rather than a determination February 27, 2013: Class Notes People v. Williams Background: Mallano Rule excludes evidence of past criminal background

Facts:

Ds convicted of multiple counts of rape and sodomy in 1st degree Victim forced in car and in Ds basement to consent in group sex Victim had once engaged in group sex and consented because she is not a stranger to it Saying she did not consent, even though she may have Intent to act against her will that D had committed forcible rape Court holds intent required to commit the act that is the intent to forcibly make her consent to the act However, it is not necessary for forcible compulsion to be a crime of rape Intent to do it against the victims will

People v. Thomas Facts: Victim at party, smoking weed, drinking, and passes out Wakes up next to cousins friend, and realizing she must have had sex with him D claims she knew, and must have consented PL 130.00(6): Mentally Incapacitated means that a person is rendered temporarily incapable of appraising or controlling his conduct owing to the influence of a narcotic or intoxicating substance administered to him without his consent, or to any other act committed upon him without his consent. OR PL 130.00(7): Physically Helpless: means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act.

People v. Cratsley Facts: 33 yr old mentally retarded woman D charged with rape in the third degree Issue: is Victim less able to understand the scenario PL: 130.25(5): Mentally disabled: means that a person suffers from a mental disease or defect which renders him or her incapable of appraising the nature of his or her conduct. 130.10: Sex offenses; limitation, defenses. 130.20: Sexual Misconduct: A person is guilty of sexual misconduct when: (1) he or she engages in sexual intercourse with another person without such persons consent; or (2) he or she engages in oral sexual conduct; or (3) with an animal or dead body. 130.25: Rape in the Third degree: He or she engages in sexual intercourse with another person who is incapable of consent by reason of some factor other than being less than seventeen years old.

People v. John Z Facts: Female victim who after telling two guy friends stop continued to have sex Issue: Whether a female victim consenting to initial penetration withdraw her consent from fully engaging in full sexual act. March 4, 2013 CLASS 16: LARCENY PL 155.00: Larceny: 1) Property; 5) Owner- thief is the owner of the property; 155.05: Larceny defined: (1) person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof. (2) Larceny includes wrongful taking, obtaining, withholding of anothers property, intent prescribed in subdivision one of this section, and also: (a) by conduct such as trespassory taking by trick, embezzlement, or obtaining property, when he exercises control (d) Larceny by false promise: must prove intent by moral certainty

People v. Collins: Background: D appeals from judgment of grand larceny in 2nd degree [PLL 155.04(1)] Jail 5-15 yrs D repeatedly falsely promised victim (quadriplegic) to marry and take care of him

People v. Norman: Facts: One year lease at old office in Sawmill South Colton, NY Opened business in Watertown & sold kits to those wishing to build homes Ganas- offered opportunity to become dealers 7/9/1990 signed contract for log home kit for $20,000 Called G telling Mikels interested in dealership and would have to pay by 8/9 G obtained a loan and wired $ no delivery Ds bank acct withdrawn and used Gs money to pay bills Similar negative experiences with other customers Background: D had 2 witnesses happy with services D convicted of 2 crimes prior: o Grand theft, and VA felony Rule: 155.05(2)(d): instructed jury of elements of larceny by false promises and special burden of proof associated with crime Trial Background: D guilty of 3rd degree grand larceny 155.05) D appeal app div reversed and dismissed indictment because of insufficient evidence showing cannot prove guilty intent not to keep promise PL 155.05(2)(d) Guilty of civil breach of contract and cannot prove criminal larceny by false promises Historically: Larceny: only dealt with trespassory takings and threat of public peace (FINISH) People v. Jennings: Background: Various counts of larceny and misapplication of property Sentry had an agreement with client Chemical Bank Sentry to pick up bulk deposits from customers Sentry had to find count and deliver to acct with 72 hours Sentry can do this within 24 hours Sentry gained $17,000 in interest after investing for the 48 hours Full amount always returned to owner Rule: Larceny unauthorized taking coupled with intent to deprive another property or to appropriate the same Deprive & Appropriate: Connote a purpose to exert permanent control over property taken or to cause permanent/virtually permanent control over the property taken or to cause permanent or virtually permanent loss to the owner of the possession and use thereof, major portion of economic value is of loss to him. Analysis: Court says there was no intent to deprive them of their money Causation: is there a consistent definition?

March 5, 2013 CLASS 16 (CONT.) People v. Wilson: Fact: D tried to steal boots, when confronted by security, pulls out a box cutter Issue: Holding: Reasoning: If you are the owner you cannot commit robbery. In terms of what property is, even includes the right to occupy an apartment, is something of value, and therefore tenants can own the property in their right, as against the property owner by coercive tactics (forcing to vacate to convert to condos/coops) US v. Delano Facts: D charged with racketeering, indictment detailed acts that alleged larceny by extortion under NYS law D frequently requested either directly or through parks supervisors that they give up lunch breaks, weekends, or personal leave days, and use them to perform various tasks, (landscaping, etc.) Procedural background: 3 month trial, jury found D guilty of extortion in violation of NYs larceny by extortion statute *D appeals, contends that his conduct did not constitute larceny by extortion *Robbery is on the present occasion *Extortion is future (under subdivision i.) Meant to cover blackmail (subdivision iv, v) Analysis: Court says this is not extortion because labor is not considered property and/or value. To be extortion it has to be larceny, to be larceny it has to be property. Instead court says labor = PL 165.15: Theft of services. how much you steal matters Misdemeanor form of larceny: Petit Larceny: Stealing propertymisdemeanor Pleasure is greater, discount pain from Severity, solidity, and certainty ROBBERY: PL 160.00: Forcible stealing. A person forcibly steals property and commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for purpose of: 1) preventing/overcoming resistance to taking of property or retention immediately 2) compelling owner of such property or another person to deliver up CLASS 17: People v. Baskerville: Displays can qualify by appealing to any of the senses. Court of appeals held: (1) must display something that could be reasonably perceived as a weapon; If you say give it up, I have a gun, if you dont give it up, I will use it that does not equal display. There must be SOMETHING; (2) and must actually have to be perceived by victim.

Criminal law class 17-18 March 6, 2013 Robbery: Reid/Riddles Take a property under claim made under good faith is an affirmative defense negatives larceny and since robbery Is a crime in a form of larceny, can it negative robbery? If you saw an identifiable piece of property that you thought was yours, you may give it back and claim it as an affirmative defense. Can a claim of right made under good faith be a valid affirmative defense. Court says yes, and if you do so, robbery/larceny is not committed bc you don't have the intent. Which is an element of larceny or robbery. CLASS 18 Causation Henderson v. Kibbe Brief Fact Summary. Appellants were convicted of robbery and second-degree murder. Appellants argued that an intervening or supervening cause of death occurred and that the jury was not given proper jury instructions regarding this. Synopsis of Rule of Law. To determine whether there is an intervening or supervening force that would be responsible for the death is whether the result was foreseeable to the original actor and whether the victim failed to do something easily within his grasp that would have extricated him from danger. Facts. Appellant Kibbe and his codefendant met Victim at a bar. Victim had been drinking heavily and was severely intoxicated. Appellants decided to rob the inebriated Victim, and took Victim to another bar. Appellant robbed Victim and left him on the side of the road. Later, another individual hit Victim with his car and killed him. Appellants were convicted of robbery and murder in the second degree. Appellants habeas corpus petition was granted on the basis of whether the jury instructions regarding intervening or supervening cause were sufficient. **definition of causation is not defined in PL and not requested. * the ultimate harm is something that should have been foreseen as being reasonably related to the acts of the accused Issue. Whether there was an intervening or supervening force that was responsible for the victims death. Held. Reversed, the jury needs to be given proper instruction regarding intervening/supervening forces. The omission of any direction on the meaning of causation allowed the jury to conclude that the issue was not before them or that causation could be inferred merely from the fact that the death succeeded his abandonment. When death is produced by an intervening force, such as the operation of a car by another, the liability of one who put an antecedent force into action will depend on the difficult determination of whether the intervening force was a sufficiently independent or supervening

cause of death. The ultimate question is whether the ultimate result was foreseeable to the original actor and whether Victim failed to do something easily within his grasp that would have extricated him from danger. Dissent. The dissent argued that the jury instruction was constitutionally mandated and that the jury did not have the issue before them anyways. The dissent stated that the jury was instructed to find whether Appellants conduct was the cause of Victims death. This was sufficient instruction and the dissent further noted that Appellant never submitted a draft instruction on intervening PDiscussion. The Court ruled that the jury was not made aware of the proper jury instruction. Because there was no instruction given with respect to intervening or supervening forces, the Court ruled that the jury did not think they had that issue before them and that they could in effect assume that Appellants actions as long as they contributed to the death were the only cause of Victims death. Even if the jury was aware of the need to determine causation, they did not have the tools to make the proper analysis.

* should have been foreseen as being reasonably related to the acts of the accused Claim that the state by failing to instruct jury on causation was correct. Every element must be found in case Causation was an element of case Causation. Was not defined We know how jury was not instructed because the jury found him reckless. And because he was reckless he was aware and disregarded the risks and therefore includes determination that the ultimate harm was foreseeable. People v. Eulo: Mental state of the doctors grossly negligently or internationally. Could cut off the cause of medmal. It is not necessary that the ultimate harm intended. Ultimate harm is seething that should have been foreseen as something also able to be foreseen. People v. Warner-Lambert: Facts: Manufacturers of chewing gum Dust is above the LEL lower explosion level and the firecode in operation at the time is historically and company ignores it. And the company tells employees to wear a mask and then finally a spark produced and broke off a piece of equipment and ignited the dust. 2 explosions, six dead, 56 injured. Tried and convicted of nothing. Ny court of appeals steps in and stops further process. Ny ct app: no reasonable jury could find that the defendants caused the victims death and injuries.

(Kibbe: causation: ultimate harm is something reasonably foreseen) Cannot establish the precise generating triggering cause of the first explosion, and therefore harm not foreseen. Completely opposite vs Kibbe case. People v. Deitsch: Facts: Fire erupted in6 story building. D charged with manslaughter in 2nd degree and negligent homicide and reckless endangerment in the first degree Court held that by creating the circumstances that lad to death by foreseeable intervening death the ultimate cause of death was the fire (thereby upholding Kibbe case) How far can a felony causation go? 1) street crimes 2) red collar crimes People v. Matos Issue : did d running wrong way cause officers death (fell through shaft trying to catch d) Rules in Kibbe People v. Dacosta: P.o. Running after d, nd tries to climb fence falls off and dies falling into morning rush hour traffic. Rules in Kibbe. Two standards: 1) in corporate liability case: precise generating triggering harm 2) street crimes: acts have to be foreseeable and related to injury Causation in ny depends March 11, 2013 CLASS 19 Evans v. State: The Common Laws Tower of Babel: Felonious homicide has blameworthy mental states Presumptions, inferences, and burden of proof are devices of procedural law. Burden of Proof: o Burden of ultimate persuasion (the burden to establish the fact) o Burden of production some evidence: burden to produce evidence -- (burden to make an issue at issue) I. Burden of Persuasion: o Proof beyond a reasonable doubt (it is almost certain) o Clear and convincing evidence (a little less than more likely than not)

o Preponderance of evidence (more likely than not) o Affirmative defenses: Defendant has to (1) introduce it, (2) and has to make it more likely than not. o Defense: once burden of production has been met, the Defendant just have to put the burden in play (more likely than not) The people have to show that it is more likely than not, to win o Burden of persuasion for affirmative defense: preponderance of the evidence (51%) Burden of production is met when considering evidence for it, assume it is the only evidence in the case, not contradicted, wholly believed, and given its maximum weight, and then if thats all the evidence provided in the case, could it be enough to provide a reasonable doubt. Defendant has the burden of proof of defenses and affirmative defenses Prosecution: Burden of persuasion & must rebut the defense. Once the burden of production has been met, when a defense other than an affirmative defense, the people have the burden of persuading the jury that it is not true. No differentiation to which meaning is attached to the phrase Defendant prefers defenses rather than affirmative because if they have an affirmative defense they have to prove a specific matter of law. II. Presumption: A means by which we move from a fact we can establish, and we use it to establish a fact that we cannot independently establish (Connection between facts that are based on experience) *Must be a commanded REBUTTABLE connection of facts based upon a true experience. o Every standard presumption is of this structure: If you find proven fact, you must find presumed fact, unless) o Every true presumption is a commanded fact based upon experience. o A mere statement as to who has and what is the burden of persuasion Presumption of innocence: (commanded & rebuttable) (properly called the ASSUMPTION of innocence) but fails as a true presumption because not based upon experience Not a presumption at all, another form of expression for a part of accepted rule for burden of proof (the rule that allows prosecution to produce persuasion beyond reasonable doubt) Assume it contrary to the experiencefails as a true presumption An assumption of placing the burden of proof upon anyone who asserts any deviation from socially desirable ideal of good moral conduct Source of confusion Unrealistic when applied to facts that D is charged with the crime and brought to trial Introduction to statement of the burden upon the prosecution, first of producing evidence of the guilt of accused, and 2nd persuading jury his guilt is beyond reasonable doubt

Rule of substantive law: Conclusive presumption: (fails as a true production because based on experience, most people dont do ____, and commanded because it is not rebuttablecontradiction in its own terms) o Never be such thing because if one fact concludes another, opponent becomes precluded from showing evidence that second fact does not exist o Where first fact is shown to exist, rule is providing where first fact exists the second fact is immaterial A permissive inference of fact: fails as a true presumption because although based on experience and based upon experience, it is not commanded Presumption of law (Morgan) or true presumption: imposes the burden of persuasion on the party against whom it operates (shifting the burden of ultimate persuasion and directs jury instruction) In a case of affirmative defense of insanity, where burden of persuasion is on Defendant there is an affect of a defense of Morgan presumption insanity Defenses: Defendant must initiate, but the Prosecution has to score by proving beyond a reasonable doubt there was no defense Presumption of law (Thayer): locates the burden of production something which shifts only the burden of production goring forward with the evidence and which totally disappears from the case once the burden is met Affirmative defense: Every Defendant at the outset of the case is sane, and if the burden of production is met Burden of production: if it operates successfully, the jury will never hear about the issue Operates to negative initially, defenses and affirmative defenses. Affirmative defense: insanity, infancy, duress Defense: Self-Defense No differentiation made chaos inevitable Element of various degrees of blameworthiness lost original meaning Malice: o Act which produces the homicide be intentional; o the act be without justification or excuse; o act be unmitigated Problem: inconsistent interaction of two meanings and functions of burden of proof and 5 meanings and functions of presumption plus three aspects of malice.

The Labyrinth of Implied Malice (Characteristic mental state of Murder) Mens rea of murder equals implied malice

Series of inferences and rebuttable presumptions grouped under implied malice To understand implied malice, understanding of development of the requirement of a particular mental state Must be done intentionally, depraved indifference recklessness The Mental State Generally: Imposed criminal liability for the killing of a human being (physical element) Homicidal Categories: o Justifiable homicide, killing in pursuit of justice which entitled accused to acquittal o Homicide committed through misadventure or in self-defense or by a child of tender years: pardons consistently given o Murder: (worst kind) punishable by death o All other homicides (felony and capital offense) Royal pardon was not available in 3 and 4 Benefit of clergy was not available because murder was blameworthy Malice aforethought: 3 distinct discriminations *Meant that the killing must not be justified or excused (Ex. Malice was the absence of insanity, or the absence of selfdefense) o Act produces homicide be intentional (excluding any accidents) o The act without justification or excuse o Act is unmitigated Non Malicious Malice and Non-Premeditated Aforethought o lost original meaning o neither malicious or thought of beforehand o Means an intention to commit a criminal act with no hatred or ill will Growth of Implied Malice o Added on mental states to mens rea other than EXPRESS MALICE: intent to kill: Intent to do serious bodily injury murder Felony murder Depraved heart murder o Mental states involved here are today definitely a part of law o Four separate intents each sufficient to constitute mens rea wherever unlawful and unmitigated: 1) Intent to kill (express malice) murder 2) intent to do grievous bodily harm 3) the intent to do a wanton and depraved life endangering act 4) intent to do a dangerous felony o Group under umbrella of implied malice because mechanism: Inferring, implying, presuming

*Malice is (1) express intent to kill; OR (2) IMPLIED; OR (3) the absence of justification; OR (3) the absence of excuse; OR (4) the absence of mitigation.
Mackalleys Case:

Leggs Case: Defendant has the burden of persuasion to mitigate The King v. Oneby: Two men are playing a game Hazard with dice John Rich calls oneby an impertinent puppy Oneby Throws a glass bottle at his head almost knocking off his wig Rich reciprocates Both stand up, reach for their swords: mutual combat Oneby held back and they sit back down and play for another hour Gower makes move to make peace Oneby says now I will have your blood Gower seriously wounded, and as dying says it was a fair fight Issue: Whether Gower is guilty of murder on manslaughter? Procedural History: Unanimous that Oneby found by special verdict that he is guilty of murder Analysis: Mere words cannot constitute provocation of murder Cant be words Other set of jurisdiction holds can be anything Intermediate: *Commonwealth v. Barry: SC says words can but only when they communicate information of the site, and words that are meant to be scandalous and ultimately insulting cannot constitute as provocation Not all passions mitigate murder to manslaughter, only reasonably raised passions can mitigate murder to manslaughter Reasonably provoked passion CAN mitigate murder to manslaughter Unreasonably provoked passion cannot Rule: 125.25(1)(A): A person is guilty of murder in the second degree when: 1. With intent to cause the death of another person, he causes the death of such person or of a third person; except that in any prosecution under this subdivision, it is an affirmative defense that: (a) The defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime; Heat of the moment shows that Oneby had never cooled: continuous passion is his claim Is there any time where it is too long between the time that you are provoked and the action? Court says where a man is killed court cannot presume that when a man is killed it was from a sudden quarrel unless it is proven and therefore upon evidence, if a kills b, no

such quarrel appears, it is murder, and THEREFORE BURDEN OF PROOF IS ON DEFENDANT (Structure of presumptionburden of proof on D) Lord Morley: had to change his shoes: court says this was not heat of passion since he recognized his disadvantage and changed his shoes and then killed, and therefore, not passion, and was murder. Counsel for D says it was a mutual fight and no one knows what happened once the door was shut Its possible a new quarrel arose and which the answer was if A kills B and no sudden Quarrel appears, it is murder, it lies upon party indicted to prove the murder Burden of persuasion on defendant, presumption of malice, presumption of murder, when intentional murder is proven Oneby condemned to die, and commits suicide Commonwealth v. York: Murder trial, jury cannot figure out what to do Sends back to court, to figure out: Issue: who gets benefit of the doubt? Murder or Manslaughter Court instructs jury Rule of law is, when fact of killing is proved to have been committed by the accused, and nothing further is shown, the presumption of law is that it is malicious, and an act of murder Goes up to high court of mass. Opinion by Shaw: o Question to consider: if there was sufficient evidence to raise a reasonable doubt whether the homicide was malicious, or committed in heat of blood in mutual combat, or suddenly, upon adequate provocation, so as to extenuate it to manslaughter, then should they return a verdict of manslaughter? o Effect of the rule: distinguishing characteristic of murder is malice o Malice must be inferred from act of defendant willfully and voluntarily inflicted wound, unless such facts were proved by preponderance of the evidence (presumption of murder) o Fact of killing is prima facie evidence of malice, and unless overcome by the prepondering proof the other way, it must be held murder, and judgment go accordingly o Facts against accused vs. facts in favor o Facts against accused, must be proven beyond a reasonable doubt o Facts in favor: facts duress, insanity, etc. o When one voluntarily kills another without any provocation it is murder, the law presumes it as malicious o All homicide is malicious, and amounts to murder, UNLESS, where justified, excused, or alleviated, it is incumbent upon prisoner to make out satisfaction (presumption, burden of proof)

Bedder v. Director of Public Prosecution: Must be a reasonable excuse for provocation and passion

And there must be a reasonable excuse for the disturbance and the disturbance must have provoked defendant to kill Bedder says you must judge me as a reasonable impotent man, and couldnt maintain an erection Going to a prostitute: needs to be judged To ignore all of Defendants particularities, is to fail the question of a reasonable explanation or excuse. o Do you take account of some, and if so, which ones? Murder v. Manslaughter? People v. Casassa: Upset lover due to nonreciprocation by former lover Extreme emotional disturbance may be based upon a series of events rather than a single precipitating cause Court held that defendant must show that his reaction to such event was reasonable In determining the meaning of PL 125.25 (1)(A): (a) The defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime; Viewing the subjective internal situation in which the defendant found himself and the external circumstances as he perceived them at the time, however inaccurate that perception may be, and his excuse be reasonable, and assess him from that standpoint. SUBJECTIVE claiming it to be OBJECTIVE TEST. pg 322 People v. Walker: Facts: Victim smushed food, defendant killed him Issue: could the court refuse to charge? Anger or embarrassment may serve for emotional purposes. Notes: When passion takes control of reason When judge rules as a matter of law, there is not sufficient evidence to have met the burden of production Judge rules issue is not at issue, so when defendant rules for an instruction People v. White: Though the objective component was met, the subjective component was not met March 13, 2013: CLASS 21 INSANITY: An excuse Verdict for defendant who succeeds with extreme emotional disturbance defense is guilty of manslaughter, punishment is significantly decreased

Judging the mental state of the actor at the time of the act: o Is he capable of standing trial? o Or is he so mentally deficient that he cannot stand at trial? What is his mental state at the time that he did it so that to make him responsible or not?

People v. Serravo: Facts: Serravo thought that he had gone to heaven and been with God, and that God had inspired him to establish a multi-million dollar sports complex called Purely Professionals which would enable him to achieve his goal of teaching people the path to perfection. Some friends supported him, but some inner evil spirits kept raising some questions about how he would deal with his unsupporting wife. After coming home one night and reading the bible, Serravo stabbed his sleeping wife in the back and then told the police that it was an intruder. Later, his wife found letters written by Serravo indicating that he stabbed her to sever the marriage. Deific decree delusion: an exception to the requirement that to be sane, you msust not be suffering from a mental disease or defect that renders your conduct legally or morally wrong. Issue: Whether the phrase incapable of distinguishing right from wrong should be measured by legal wrong or by moral wrong, and if moral wrong, whether that should be a subjective personal moral standard or an objective societal standard. Procedural Posture: Serravo was charged with attempted murder, etc. At trial concerning the issue of his insanity, the trial judge gave an instruction that a person incapable of distinguishing right from wrong includes a person who appreciates that his conduct is legally wrong, but nevertheless thinks that it is morally right. The jury acquitted, and the prosecution appealed claiming that the instruction was improper because it was cast in terms of moral wrong rather than legal wrong. The court of appeals affirmed. Holding: Objective societal standard or moral wrong. Reasoning: The correct standard is moral wrong because a person who is in an extremely psychotic state might be aware that an act is illegal, yet be utterly without the capacity to comprehend that it is immoral. Such a person should not be convicted. a mentally ill person who knows something to be immoral, but does not know that it is illegal, should not escape conviction simply due to ignorance of the law . The ability to knowing something is immoral is not the same as knowing the disability of it being immoral. Is it enough to know that society thinks its immoral? MNaughten Standard: Cardozos view in Schmidt: moral right and wrong test. Standard of moral wrong to be applied was a purely subjective personal standard.

A correct instruction would indicate that it is the objective morality of society that is the correct standard. Also, the concept of deific decree used by the court of appeals is not so much an exception to the right/wrong test as it is another factor in assessing a persons ability to distinguish right from wrong. Cognition (reasonable) vs. Volition (Desire) Insanity Standard: MNaughten standard emphasizes mental disease which renders a person incapable of knowing the nature and consequences of his conduct, or if he did know it, he did not know what he was doing was wrong. Volitional test: Person is insane due to mental disease or defect is uncontrollable in his impulse. Dissent: The product test: Was the Defendants act the product of mental disease or defect? If yes, not guilty, no: not guilty. o Only problem: whoever has the burden of persuasion, loses. Model Penal Code Test: A person is not criminally responsible if at the time of such conduct, as a result of mental disease or defect, he lacks substantial capacity either to appreciate the criminality of his Conduct, or to conform his conduct to the requirements of law. Mental disease or Defect do not include abnormality manifested only by repeated criminal or otherwise antisocial behavior. (Both cognitive and volitional: can be satisfied by impulses) People v. Adams: New York PL Law: [people can have a mere knowledge of something and fail to appreciate it.] o A person is not criminally responsible for conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity to know or appreciate either: (a) the nature and consequence of such conduct; or (b) that such conduct was wrong Clark v. Arizona: Standard: Several possible verdicts such as guilty or insane [Some have guilty, not guilty by insanity, or guilty but mentally ill] Keep cognitive part of Mn test Cognitive incapacity is sufficient for establishing defense of insanity but not necessary Clark says: if D did not know what he was doing when he acted, he could not have known what he was doing was wrong. * (Blecker says thats not true) * Look at syllabus to answer the question for tomorrow.

March 15, 2013 CLASS 22:

Who may have the burden of production, who may have the burden of persuasion, etc. What is left of Leland in Winship? Davis v. United States: Facts: D tried for murder in federal court of western district of Arkansas Sentenced to Death Burden of persuasion lied with Defendant D had to prove himself insane, and he failed Issue: Can the burden of persuasion lie with the Defendant or Plaintiff? Analysis: To prove to the satisfaction of D being insane, jury cannot rebut insanity Can the presumption of insanity but the burden on davis? No. Consistent with the presumption of sanity in the Thayer wigmore, in that it insists a burden of production The accused is bound to produce some evidence that will impair or weaken Cannot require the defendant to score when it comes to insanity, burden or production on him, and presume him to be sane, if no evidence comes from prosecution When defendant please affirmative defense of Insanity, and theres no evidence provided from Prosecution, (impose the burden of production on defendant) that defendant must provide sufficient evidence to bring his sanity at issue. If there is sufficient evidence, it is up to people to prove beyond a reasonable doubt he is sane. Leland v. Oregon: Facts: 20 states put burden of persuasion on defendant to prove he is insane 21 states put the burden of persuasion on the people to prove he is sane Oregon statutes requires people to prove insanity beyond a reasonable doubt and made a morbid propensity If they are 90% sure he is not guilty under Oregon statute, he is guilty. This question will not come up on trial Oregon requires a heavier burden of proof In re Winship: Issue: is a juvenile a delinquent as a result of alleged misconduct on his part, with the consequence of him being committed to a state institution? *is proof beyond a reasonable doubt required among the essentials of due process and fair treatment required during the adjudicatory stage when a juvenile is charged with an act which would constitute a crime if committed by an adult Facts: New York put the burden of defense on the people 12 year old went into womans locker and stole her money Judge relied on 744(b) of NY FCA which provides that any determination at the conclusion of an adjudicatory hearing that a juvenile did an act or acts must be based on a preponderance of the evidence.

3 interests in Winship: loss of Liberty, stigmatism (will be declared a juvenile delinquent), and community confidence that the system is working (were not punishing the innocent) We would much rather convict the guilty than acquit the innocent Proof beyond a reasonable doubt of every fact necessary to constitute the crime charged

LELAND V. WINSHIP? Winship says as to all the facts necessary to constitute the crime charge, the people have the obligation, as to all the collateral facts, the state may put the burden of persuasion Due process clause protects accused against conviction, proof beyond a reasonable doubt of every fact necessary to constitute the crime charge. Did not succeed because jury found beyond a reasonable doubt What is left of the right of ppl to put the burden of persuasion on passion?? *implicated and violated by the Winship decision *Two kinds of error that we face in any trial. We might acquit guilty, and also convict the innocent. CLASS 23 March 18, 2013 Mullaney v. Wilbur (example of how a state court case can be brought up to Ct. App. and then USC) Facts: D charged with murder to prove acted in Heat of passion on sudden provocation (HOPOSP) to reduce charge to manslaughter D- Willbur found guilty of murder fatally assaulted victim Claim to have attacked victim in a provoked frenzy after homosexual advance Argues HOPOSP Issue: Does the rule comport with due process that prosecution must prove beyond a reasonable doubt every fact necessary to constitute crime charged Procedural History: Trial Court instructed jury: 2 kinds of homicide: both share unlawful & intentional element o 1) murder o 2) Manslaughter prosecution required to prove elements beyond reasonable doubt Analysis: Murder Malice Aforethought vs. Manslaughter Heat of passion If homicide intentional and unlawfulMalice Aforethought implied Unless D proved by Preponderance of the evidence that his act was HOPOSP Justifiable Hom: 1. Self defense 2. Soldier

3. Police Intentional Hom: 1. Intended death/ac 2. Calculated 3. Knew reasonable harm would occur No HOP without sudden provocation D no master of his own mind Re Winship: Requires prosecution to prove malice aforethought beyond reasonable doubt cannot rely on presumption of implied malice (requiring D to prove HOP act) Malice A = premeditation o Issue: presence/absence of HOP Clear trend is prosecution proving fact and also trying to move away from aff defense Sometimes you can prove a negative beyond a reasonable doubt Burden of persuasion on defendant is gone here Always been a key fact separating burden of murder and manslaughter Felonious Homicide: o 1) murder o 2) voluntary manslaughter o 3) involuntary manslaughter D must negate malice a by proving by a POE that he acted in HOP Re Winship: requires an analysis that looks to the operation and effect of that law as applied and enforced by the state and interest of both State and D affected by allocation of the burden of proof. ** WHAT DOES THIS EVEN MEAN!!!!! o Societal interests D had 18 mos in prison Societal interests are elevated in this case Here: D faced either a fine or life imprisonment Shifted burden of proof on D This increases further likelihood of erroneous murder conviction Due process clause requires prosecution to prove beyond reasonable doubt the absence of heat of passion on sudden provocation when the issue is properly presented in case Judgment affirmed Malice is a presumption of the absence of passion which imposes the burden of persuasion on the d Can only have premeditation if you have intent You can only have murder with malice In order to have prem must have intent But murder can be malicious and not intentional: felony, depraved indifference, but those dont have intent and therefore you cant have premeditation, and cant be malicious(?) but has to be malicious if its premeditation because it is still constituted as murder Only purpose of concurrence: Leland is still good law.

People v. Balogun Facts:

D charged with attempted murder Pleading Extreme emotional disturbance for manslaughter Supported affirmative defense Extreme emotional disturbance unconstitutional as affirmative defense.

April 1, 2013 CLASS 26: PERJURY Patterson v. New York: Issue: Constitutionality under 14th Amendments due process clause of burdening Def. in NYS murder trial with proving affirmative defense of extreme emotional disturbance. Background: Estranged marriage D charged with 2nd degree murder of man after witnessing him with his wife Jury instruction that conviction of murder that people established beyond a reasonable doubt that D intended to fire gun and kill Also instructed that D has burden of proving affirmative defense by preponderance of evidence acting under extreme emotional disturbance; charge of manslaughter History: Jury found D guilty of murder App. Div. affirmed Court of appeals affirmed Supreme Court affirmed Holding: Conviction not invalid because nothing was presumed or implied against D. Judgment Affirmed. Analysis: Preventing and dealing with crime is more States business than Federal States power to regulate procedures under laws carried out and producing evidence and persuasion *EED is expanded version of common-law heat of passion defense on sudden provocation and burden of proving rested on D guilty verdict confirms states success of proving crime beyond reasonable doubt EED permits D to show his actions were caused by a mental infirmity not arising to level of insanity and less culpable for having committed them o This constitutes a separate issue on which D is required to carry burden of persuasion *New York Law aff defense of EED: (older concept of) heat of passion; but facts presented by D must establish with sufficient certainty (must be operative) proof beyond reasonable doubt burden on people is risk that guilty will go free rejects adopting a state must disprove beyond a reasonable doubt every fact constituting any and all affirmative defenses relating to culpability on accused

Mullaneys holding: State may not permit blameworthiness of an act or the severity of punishment authorized for its commission to depend on presence or absence of an identified fact without assuming burden of proving the presence or absence of that fact, beyond a reasonable doubt. Operates as a burden of malice. How is this the consideration of a presumption of innocence? o Court accepts Mullaneys holding because a State must prove every ingredient of an offense beyond a reasonable doubt, and it may not shift the burden of proof to the defendant by presuming that ingredient upon proof of the other elements of the offense. o Shifting of burden of persuasion with a fact which the state deems important that it must be either proved or presumed is impermissible under due process clause Malice aforethought was not equal to premeditation and presumption of malice in intentional homicide cases carried no factual meaning regarding premeditation Killing = murder when it resulted from a deliberate cruel act committed by one person against another suddenly without any or without a considerable provocation Malice (absence of provocation) was part of murder definition, and was presumed, and could be rebutted by D by POE

Dissent: No constitutional defect in Mullaney, defect was allocation of burden of persuasion with respect to factor distinguishing murder from manslaughter NY Law aff defense of EED reasonableness determined from viewpoint of a person in the Ds situation under circumstances as D believed them to be. Mitigation allowed when emotional disturbance Aff defense = burden of production + persuasion Society is willing to tolerate far less confidence in NYs factual determinations of same functional issue Diff in societal demands stems from Maine attaching malice aforethought to absence of HOP whereas NY refrained to give a name to absence of EED No conceptual framework for distinguishing abuses from legit legislative adjustments of burden of persuasion Courts responsibility for constitutional adjudication limiting scope of judicial review because assumption legislative bodies will restrain

Hankerson v. North Carolina Issue: Did North Carolina Supreme Court correctly decline retroactive application to Courts decision in Mullaney v. Wilbur? Issue at trial: did D shoot victim out of self-defense Background: D convicted after jury trial of 2nd degree murder, sentenced to 20-25 yrs in prison D killed man by shooting him through heart

Procedural history: Jury instruction: find D guilty of 2nd degree murder from State proving beyond reasonable doubt D intentionally without justification or excuse and with malic shot victim o If satisfied by two presumptions: unlawful + malice, 2nd degree murder ruling Self-defense instruction = excuse for intentional killing D must prove self defense to jury satisfaction Analysis: Unlawfulness essential to crime Under Mullaney charge was erroneous Rule for future cases: if evidence in case of all elements of self defense, mandatory presumption of unlawfulness disappears but logical inferences from facts proved may be weighed against evidence Dealing with constitutional rule was to prevent erroneous conviction of innocent people Mullaney would have devastating effect on present case because murderers would be released SC Sup.Ct. erred in declining to hold retroactive the rule in Mullaney addressing whether decision in re winship, reasonable doubt holding, standard applicable to state juvenile proceedings was to be applied retroactively Holding: Reversed Blackmun Concurring: Emphasis that decision not to consider correctness of NC supreme Court ruling on self defense charge and does not preclude court from reexamining its holding in petitioners case on remand April 1, 2013: CLASS 26 (CONTINUED) Bronston v. United States: Issue: Can a witness be convicted of perjury for an answer, under oath, that is literally true but not responsive to the question asked and somewhat misleading by negative implication? Background: D is sole owner of Samuel Bronston Productions, Inc. D convicted of perjury from answers given by him as a witness at a bankruptcy hearing. When asked if he had any bank accounts in Switzerland he negated but in some respects were truthful Perjury: In order to mislead questioner, D answered 2nd question with literal truthfulness and unresponsively addressed answer to companys asset, not his own, implying he had no personal swiss bank account at the relevant time Statute is a federal statute Rule of Perjury: Involves state of mind of the accused and consists of willfully testifying to the truth of a fact which D does not believe to be true. Procedural history:

Trial court found him guilty Court of appeals affirmed trial courts decision

Analysis: Ds testimony could not be found willfully false unless at time his testimony was given, he fully understood questions, but gave answers knowing them to be false. Perjury statute should be construed broadly This was a testimonial mishap: D may have misunderstood the question (even though more or less he knew what he was hiding) Responsibility of the lawyer to probe interrogation , recognize evasion and bring witness back on mark to flush out whole truth Not jurys responsibility to further examine the testimony Test: Two factors that require application of perjury: unresponsiveness of Ds answer; and Affirmative cast of that answer, with its accompanying negative implication Counsel should be alert to press on Precision with questioning is important as a predicate for offense of perjury Literal truth vs. Pragmatic Truth. Literal: if statement says what the world is, then it cannot be perjury. Pragmatic: statement is true if it puts the listener into the working touch into reality. Decision: Judgment reversed. Any special problems arising from literally true but unresponsive answer are to be remedied through the questioners acuity and not be federal perjury prosecution. U.S. v. Bronston: Issue: Whether an answer under oath which is true, but half true, can constitute perjury? Ruling: Ruling affirmed Analysis: Question posed was too plain to be construed as referring solely to company. Ds non-responsive answer shows he clearly knew what was being asked An answer containing half truth also constitutes a lie by negative implication, when the answer is intentionally given in pace of responsive answer called for by proper question (PERJURY) A half truth containing a lie (interjected by knowledgeable witness) may result in side tracking and is contrary to truth. Here, jury could have inferred D willfully gave false and evasive testimony from proof of existence of personal bank accounts Dissent: Better issue is: whether perjury conviction can stand when the Ds answer to a question under oath is literally truthful but unresponsive. Jury is not entitled to consider whether D hoped a truthful answer to be interpreted People v. Neuman:

Issue: Whether measured by meaning of the words used in the context of the questions asked and answers given, Ds testimony was intentionally false. Facts: D leading supervisor in Prospect Park Zoo Analysis: Defendants statements were literally true, but unresponsive Meaning is to be viewed in the context. Perjury not established from isolating statement from context Rejects Bronstons standard, but adopts article 210: perjury: person swears falsely when he intentionally makes a false statement. (Contextually false, not literal). Significance: Same court of appeals that brought Patterson, rejects Neumans claim, rejects analysis of Bronston, and adopts contextual truth April 2, 2013 CLASS 27 Sandstrom v. Montana: Issue: Whether in a case in which intent is an element of the crime charged, the jury instruction, the law presumes that a person intends the ordinary consequences of his voluntary acts, violates the 14th amendments requirement that the state prove every element of a criminal offense beyond a reasonable doubt. Analysis: Montana Supreme Court conceded that these cases did prohibit shifting the burden of proof to the D by means of a presumption, but did not prohibit allocation of some burden of proof under certain circumstances Jury may have interepreted the instruction ether being a burden shifting presumption like Mullaney, or a conclusive presumption like Morissette because either interpretation would have deprived D of his right to the due process of law Instruction in the case was unconstitutional Reed v. Ross: Claimed lack of malice and self defence Although D appealed conviction on several grounds, he did not challenge constitutionality of instruction Following Mullaney, struck down as violative of due process. Held: Respondent had cause for failing to raise the mullaney issue on appeal from conviction Patterson is wrongly decided Francis v. Franklin: The principle prohibits the state from using evidentiary presumptioneffecting the relief of the State of its burden of persuasion beyond a reasonable doubt of every seential element of crime

Prohibiting will protect the fundamental value determination that to convict an innocent man is worse than letting a guilty man go free Every place you see an affirmative defense it does not violate mullaney Martin v. Ohio: (Back to Self-Defense) Issue: Could Ohio put burden of persuasion on D to prove self-defense Kept burden of persuasion on the defendant to prove by POE to prove the affirmative defense that he acted in self defense Challenged in US Sup. Ct. Court splits 5-4, that YES a court may do put burden of persuasion on Def. to prove selfdefense. Ohio has the authority to put the burden of persuasion on D because of Patterson outcome. If New York can put burden of persuasion to prove aff defense of self defense Dissent: o Ruling of case is that when an affirmative defense does negate an element of the crime, the state may not shift the burden. o However, todays shift the burden of proof for affirmative defenses will be upheld regardless of the relationship between the elements of defense and the elements of the crime. o Patterson allowed burden shifting because evidence of an EED did not negate mens rea of underlying offense o Today, even if proof of defense doesnt negate an element, burden shifting is allowed if jury can reach verdict considering this evidence McMillan v. Pennsylvania: Mandatory minimum of five years if anyone convicted of certain enumerated felonies Increased loss of liberty based on a fact that he has to disprove Act was unconstitutional Burden of Sentencing factor: o Whether you committed the crime, you visibly possessed a firearm = minimum of 5 years Petitioner argues winship and mullaney. Court argues Patterson is controlling. Present case is controlled by Patterson rather Mullaney and Winship because they deal with guilt, not sentencing Punishing (Homicide vs. Manslaughter) categories vs. Guilt (Felonious Murder) Nothing wrong with warranting constitutionalizing burdens of proof at sentencing. Facts in favor is a burden of persuasion can be put on D If a state can easily negate a fact, and put it in the Ds favor, and therefore puts the burden of persuasion on him, whats left of the constitution? Walton v. Arizona: Issue: (May a state impose upon the defendant the burden of persuasion in his life and death decision?) The validity of the death sentence imposed by an Arizona Trial Court after a jury found petitioner Jeffrey Walton guilty of committing first degree murder Decision: Held. Because of the basic principles: So long as the state has proved every element, burden on Defendant Almendarez-Torres v. US

Issue: Whether this latter provision defines a separate crime or authorizes an enhanced penalty? Decision: Mullaney: Sentencing factors should be treated as elements. WHERAS: Patterson says the exact opposite. Jones v. United States (Car jacking) Whoever possesses a firearm carjacking, imprisoned up to five years, but any bodily injury imprisoned greater than 5, serious bodily harm or fatal imprisoned Decision reversed: sentencing consideration should not be associated with finding guilt. Any fact that increases the maximum penalty of a crime, must be submitted, increases the charge, and must be proven a reasonably doubt. (Apprendite). Justice Stevens Concurring: Like justice Scalia, unconstitutional for legislature to remove from jury assessment of facts which could increase penalties. Equally clear that such facts proven beyond a reasonable doubt. Essence of the findings of Winship Mullaney and Patterson. Court moving back to these findings, and strike down Federal Statute. Dissent: Breyer: Courts trying to convince a finding with different cases. Commands of Jones not based on interpretation of congress, or federal supreme court. Aprendi v. New Jersey: Based upon the Guarantee of due process clause, and right to a jury trial. Facts: Fired a 22 firearm several times at the house of an African American family in New Jersey In New Jersey they were the only Af. Am. Family in this town When picked up by the police, says because black and colored he doesnt want them in the neighborhood. But then later retracts Agrees to plea bargain in part for 2nd degree possession of firearm in an unlawful purpose However, reserved right to challenge if they were to bring in the hate crime stattue: provided 10-20 years if Judge finds by POE, that D convicted with a purpose to intimidate D found guilty Ruled it was unconstitutional Holding: Under the due process clause of the fifth A. and the notice and jury trial guarantees of the 6th A, any fact other than prior conviction that increases the maximum penalty for a crime must be charged in an indictment submitted to a jury and proven beyond a reasonable doubt. The 14th a commands same answer in this case involving a state statute. Heat of Passion intent v. Murder (by proving extreme emotional disturbance intent) intent : requiring D to overcome this intent by preponderance of the evidence. Distinguished McMillan: Limited holding that does not involve imposition of sentence more severe than the maximum by the extent of the jurys verdict. (The minimum vs. the maximum) Any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.

Does not matter whether the required finding is characterized as one of intent or of motive, because labels do not afford an acceptable answer. This applies to elements and sentencing factors. Dissent: Mullaney and Patterson are contradictory and Patterson is overruled by the holding in Apprendi. Whether a fact is responsible for an increase or decrease in punishment is in the eye of the beholder The actual principal underlying the courts decision may be that any fact that has the effect, in real terms, of increasing the maximum punishment beyond an otherwise applicable range must be submitted to a jury and proved beyond a reasonable doubt. EXAM NOTES: Given statute- purposes served and undermined, is it constitutional, include the best case against your own position. Two streams of cases completely contrary. 1) Take a principal and argument 2) Argue it against a stream line of cases And must reconcile them Stream of Cases: Leland, Patterson, etc. vs. Davis, Winship, Mullaney, Apprendi April 3, 2013 CLASS 28: Ring v. Arizona: Issue: Facts: Death penalty situation Arizona had the judge decide the facts on which death penalty was based According to Walton, it was okay to have judges decide death penalties Went to US Sup. Ct., and split 6-3. Analysis: If a state makes an increase in a ds authorized punishment contingent on the finding of a fact, that fact no matter how the state labels it must be found by a jury beyond a reasonable doubt. A defendant may not be exposed to a penalty exceeding the maximum he would received if punished according to the facts reflected in the jury verdict alone. All the facts which must exist in order to subject the D to a legally prescribed punishment must be found by the jury. After facts have been found by jury, the judge must weigh the aggravators against the mitigators, and if the judge outweighs the aggravators outweighing the mitigators, then judge decides death Held: **Juries have to decide the facts, on which the death penalty is based, but ultimately the judge can decide but only by looking at aggravating circumstances on which the JURY must have found.

Constitutional Point: Coming out of Apprendi, Ring holds on the basis of Apprendi, judge may only if the state wants the judge to decide this penalty, the judge must base it on aggravating circumstances that the JURY found. Scalia does not find this holding to be accurate. Scalia wants the jury to find this. Blakely v. Washington: Facts: Judge finds kidnapping to be of deliberate cruelty, because he finds it and jury does not Judge calls amendment unconstitutional Statutory maximum for apprendi purposes, maximum imposed based upon the facts the jury found and if additional facts are found, and this can increase the punishment, against the maximum facts and punishment found by the jury is unconstitutional Relevant stat. maximum is not the max sentence a judge may impose after finding additional facts, but max imposed is without any additional findings. When a judge inflicts punishment that jurys verdict alone does not allow, judge has NOT found all facts which law makes essential to punishment and this is unconstitutional. US v. Booker: Affter reviewing winship, jones, apprendi, blakely, strikes down the entire sentencing guidelines position And reaffirms holding in apprendi, any fact prior to conviction, necessary to exceed the maximum punishment, must be admitted by defendant or proved to a jury beyond a reasonable doubt. Clark v. Arizona: Issue: How can you presume D innocent, and prohibit evidence of schizophrenia at his trial in chief? Convicted after knowingly killed a police officer Acknowledging that his schizophrenia can deter his culpable mental state, but the state has the right to prohibit it because if he was allowed to raise it at trial, if it negatives an element, then at long as it raises a reasonable doubt he would unknowingly kill a police officer, and would be acquitted. If he can get acquitted by raising a reasonable doubt and would be clear and convincing evidence Wants to raise insanity defense Court says if he wants a guilty but insane, must raise separate collateral proceeding after guilty verdict has been rendered Clark wants to prove he is a paranoid schizophrenic Did not KNOWINGLY kill a P.O. because he is not capable of it. Trial court did not allow D to introduce evidence to prove schizophrenia defense Guilty but insane? Dissent: Clark had no clue what he was actually doing, if he was really hallucinating, he cannot be guilty of knowing he killed a p.o. Dixon v. US Facts: Purchases firearms falsely providing an incorrect address, and lies about her felony indictment

Claims she did it because bf threatened to kill her if she didnt get him a firearm Claims government should have burden to prove she was under duress And duress negatives the facts implicated in the convicted crime Cited Patterson and Martin v. Ohio: this is collateral duress because she knowingly filled out a false firearm application. Does not negative she knowingly did it. It is a fact that has a definite effect on the punishment she can receive Majority relies on Patterson and Martin v. Ohio: applicability of the reasonable doubt standard has always been dependent Dissent: Cites Mullaney, and dissent in Patterson, and says it violates Winship and Mullaney Oregon v. Ice Consecutive vs. concurrent. Concurrent would be ideal for the convicted. Most important factor for the Ds point of view. Question is whether judges make decision if its consec or concurrent based upon facts THEY find on POE. Or must the JURY decide facts on which judge bases whether to go consec or concurrent. Court splits 5-4, and says Oregon statute is constitutional, because historically judge does sentencing because Judge does not run afoul of Apprendi, because it was to be consecutive, unless Judge found concurrent, and that is okay due to mitigating circumstance. And Ice follows it.