Degrees of Assault in NY:

a. 1^st Degree Assault: 2^nd Degree Assault + Dangerous Weapon

b. 2^nd Degree Assault: Intentionally causing serious physical injury

c. 3^rd Degree Assault: Intentional causing physical injury

a. First Degree Murder

i. Intentional  (Premeditation & Deliberation)

ii. Felony murder (murder committed during a felony)

b. Second Degree Murder: All others.

Felony Murder

Def: Any killing caused during the commission of or attempt to commit a felony

Limitations:

1.      D must be guilty of underlying felony

2.      Felony must be inherently dangerous (there are non-dangerous ones)

3.      Felony must be separate from the killing itself (it must have a purpose other than injury to victim; ex: aggravated battery cannot be the underlying crime)

4.      The killing (homicidal act, not nec. death) must be during the felony or during immediate flight of the felony

5.      The killing (homicidal act, not nec. death) must be in furtherance of the felony

6.      The death must be foreseeable (proximate causation!)

7.      Victim must not be a co-felon

Def: Causing the death of another person (note: not a foetus) with malice aforethought

Mental State: “Malice aforethought means”

1.      Intent to kill

2.      Intent to inflict great bodily harm (ie: serious physical injury)

3.      Extreme recklessness

4.      Felony murder

First Degree Murder

[1/3] Mental state: Intentionally (intent to kill)

[2/3] At least 18 years old

[3/3] At least one aggravating factor

+ D intentionally killed law enforcement officer

+ D killed witness for intimidation (to prevent or retaliate for testimony)

+ Murder for hire (both murderer and hirer guilty)

+ D killed > 1 person

+ D intentionally killed during a serious felony (ie: not a felony murder)

NY Murder 2: 3 types w/ defns or requirements

Second Degree Murder (1 of 3 possible)

1. Mental state 1: Intent to kill (not premeditation or deliberation), or

2. Mental state 2: Extreme Recklessness (“depraved indifference”), or

i. Language: Utter disregard for human life

ii. Often, act must put >1 person in danger

iii. Not for 1:1 killings unless

(a)    Brutal torture (even with no intent to kill) or (b) Abandoning a helpless victim

(b)     

3. Felony Murder: Common law rule with 3 differences

∆1: 6 exhaustive underlying felonies (1. Burglary 2. Robbery 3. Arson 4. Kidnapping 5. Escape 6. Sexual Assault ∑: B.R.A.K.E.S.)

∆2: D need not be convicted of an underlying felony (as long as there is sufficient evidence)

∆3: “Non-Slayer” Defense:  Limited affirmative defense available if

[1/4] D did not do the killing

[2/4] D did not have a deadly weapon

[3/4] D had no reason to believe co-felons had a deadly weapon

[4/4] D had no reason to believe co-felons intended to do anything likely to kill

. First Degree Manslaughter

Mental state: Intent to cause serious physical injury

Extreme Emotional Disturbance (EED) (ie: Heat of Passion)

Def: intentional killing under influence of reasonable emotional disturbance

Is a Defense to Second Degree Murder: The D must prove EED by preponderance of evidence

Mental State: Recklessness

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

NY Criminal Negligent Homicide: mental state and defns

Criminal Negligent Homicide

Mental State: Negligence

Def: D should have known about such a substantial and unjustifiable risk of death

Vehicular Homicide: Death by drunk driving

Vehicular Man2: Death +DWI (BAC>0.08%)

Vehicular Man1: Vehicular Man2 + Aggravating factor (BAC>0.18% or Prior DWI conviction)

Vehicular assault: If DWI results in injury only