OVERVIEW:

Essential Elements of Crimes

• Physical Act
• Mental State
• Causation
• Concurrence

OVERVIEW:

Inchoate ("Incomplete") Offenses

• Solicitation
• Conspiracy
• Attempt

OVERVIEW:

Defenses

• Insanity
• Intoxication
• Infancy
• Self-Defense
• Durres
• Entrapment

JURISDICTION

• TERRITORIAL: Crime may be prosecuted in any state where an act that was part of the crime took place OR any state where the result took place

Burden of Proof

• Elements of a Crime: proseuction must prove each element beyond a reasonable doubt.
• Defenses: Once defense is raised by D, PROSECUTION must disprove each element of the defense beyond a reasonable doubt.
  • CL Exception: Insanity defense must be proven by D by preponderance of evidence.
  • NY Distinctions: NY divides defenses into 2 types
    • Defenses: P must disprove beyond reasonble doubt
    • Affirmative Defenses: D must prove each element by preponderance of evidence

Classification of Crimes

• Felony = crimes that may be punished by more than one year in prison.
  
• Misdemeanor = crime for which maximum imprisonment may not exceed one year in prison

Physical Act Requirement

(essential element of crimes)

• RULE: Ordinarily, if you don't have an act, there is no crime.
  • Act = voluntary bodily movement
    • Involuntary movements =/= act
      • e.g. sleep walking, reflex, convulsion, when someone else moves defendant

Physical Act Requirement

OMISSIONS RULE

• In limited situations, failures to act CAN be basis for criminal liability...
• Three Requirements for Omissions Liability:
  • Legal Duty to Act (created in 1 of 5 ways):
    • by statute, contract, status relationship, voluntary assumption of care, beginning to give assistance, peril created by D
  • Knowledge of the Facts giving rise to duty
  • Ability to help

MENTAL STATES (CL)

(essential element to crimes)

• 4 common law mental states:
  • Specific Intent: crime requires not just desire to do act but also desire to achieve the result
  • Malice: when D acts intentionally or with reckless disregard of an obvious/known risk
  • General Intent (most common): D need only be generally aware of the factors constituting the crime... need not intend a specific result
  • Strict Liability: when crime simply requires doing the act; no mental state needed

CL MENTAL STATES

SPECIFIC INTENT CRIMES

• Assault (result = injury)
• 1st degree murder
• Larceny (result = to steal)
• False Pretenses
• Robbery
• Embezzlement
• Forgery
• Burglary
• Solicitation
• Conspiracy
• Attempt

MENTAL STATES (CL)

MISTAKE of FACT

• Rule: Whether a D's mistake of fact = defense depends on the mental state for the crime and whether the mistake is un/reasonable.
  • Reasonble mistakes = defense to ANY crime EXCEPT strict liability crimes.
  • Unreasonble mistakes are defenses ONLY to specific intent crimes.

MENTAL STATES (CL)

MISTAKE of LAW

• Rule: Mistake of LAW is NEVER a defense to crime.
• Exceptions:
  
  • statute specifically makes knowledge of law an element
  • law not published
  • D's reasonable reliance on statute/judicial decision declared unconsti, official interpretation/advice from someone charged w/ enforcement, administration or interpretation of the law (not private atty)

NY MENTAL STATES

• Intentionally/Purpose: When D's conscious objective = to accomplish a particular result
• Knowingly: D = aware of what he is doing
• Recklessly: D = aware of AND consciously disregards a substantial and unjustifiable risk
• Negligently: D should have known of a substantial and unjustifiable risk
  • totally objective standard

MENTAL STATES

New York MISTAKE of FACT

• Rule: Where mistake of fact negates the required mental state, it is a DEFENSE.
• Applications:
  • Crimes of negligence: only a REASONABLE mistake will be a defense
  • SL crimes: mistake NEVER a defense.

NY MENTAL STATES

Mistake of LAW

CAUSATION

(essential element to crimes)

• Actual Causation ("but for" causation): D = the actual cuase IF the bad results would not have happened but for D's conduct
  • Accelerating Causes = actual cause
    • e.g. shooting one who already has a fatal wound = actual cause of death
• Proximate (or legal) Causation: D = proximate cause if bad result is a natural and probable consequence of D's conduct
  • Key Concepts: foreseeability and fairness
  • Eggshell Victim: D = proximate cause even if victim's preexisting weakness contributed to the bad result
  • Intervening Causes: D =/= proximate cause if intervening events cause the bad result
    • BUT: Hospital negligence/malpractice = foreseeable result

CONCURRENCE

(essential element to crimes)

• D must have the required mental state AT THE TIME HE ENGAGES IN THE CRIMINAL ACT
  
• Application: Most frequently arises w/ two crimes - LARCENY and BURGLARY

Crimes against the PERSON

(Assault and Battery)

COMMON LAW

• Battery: Unlawful application of force to another resulting in either bodily injury or offensive touching
  • general intent (to do the touch, not the harm)
• Assault (specific intent): 2 versions
  1. Attempted Battery (i.e. swing and miss)
  2. Intentional creation other than by mere words of a reasonable apprehension in mind of victim of bodily harm
• Aggravated Assault/Battery: assault/battery +
  • use of weapon,
  • victim = child, elderly, handicapped OR
  • intent to commit robbery/rape

Crimes against the PERSON

(Assault )

NEW YORK

• Definition: Intentionally causing physical injury to another person.
• Degrees of Assault:
  
  • 1st degree: 2nd degree assult + weapon
  • 2nd: intentionally causing serious physical injury
  • 3rd: intentionally causing physical injury
• NOTE: Battery not separate crime in NY; all degrees of assault require physical injury

Crimes against the PERSON

(HOMICIDE)

Year and a Day Rule

• CL: Year and a Day Rule: Death must occur w/i a year-and-a-day of the homicidal act for D to be charged w/ homicide.
• NY/Majority: Death may occur at any time.

Crimes against the PERSON

(HOMICIDE)

Common Law / Multistate

• CL Homicide Crimes:
  • Murder
  • Voluntary Manslaughter
  • Involuntary Manslaughter
  • Felony Murder

MURDER

Common Law / Multistate

• Defined: Causing death of another person (born alive) with MALICE aforethought
• Malice Aforethoguht =
  
  • Intent to Kill
    • Use of deadly weapon creates inference of intent to kill
  • Intent to Inflict Great Bodily Harm or Serious Physical Injury
  • Extreme Recklessness or Depraved Indifference Murder; or
  • Felony Murder
• Transferred Intent: If D intends to harm one person but accidentally harms a different victim instead, D's intent is transferred from intended to actual victim.

MURDER: Statutory Variations

Common Law / Multistate

• 1st Degree Murder:  2 variations
  
  • Intentional...
    • Any killing committed with pre-meditation and
      • D previously thought about it
    • deliberation
      
      • (D was cool, calm, collected)
  • Felony Murder:
    • Killing committed during commission of certain enumerated felonies = 1st degree murd.
• 2nd Degree Murder = all other murders
  

VOLUNTARY MANSLAUGHTER

Common Law / Multistate

• DEFINED:
  
  • An intentional killing
  • committed in the heat of passion
  • after adequate provocation
    • provoation that would arouse sudden & intense passion in mind of ordinary person; + lack of time for D to cool off
    • mere words NOT sufficient
    • e.g. finding spouse in bed w/ another

INVOLUNTARY MANSLAUGHTER

Common Law / Multistate

• A killing committed w/ criminal negligence, OR
• A killing committed during a crime if not felony murder ("misdemeanor manslaughter")

FELONY MURDER

Common Law / Multistate

• DEFINED: Any death caused in the commission of or attempt to commit a felony.
• Degree:
  • Intentional Killing = 1st degree murder
  • Unintentional Killing = 2nd degree murder
• Limitaitons:
  
  • D must be guilty of felony...
  • that is inherently dangerous
  • and separate from the killing itself,
  • killing must be during felony or immediate flight from the felony...
  • in furtherance of the felony
  • death must be foreseeable
  • victim must NOT be a CO-FELON
• Vicarious Liability: If one co-felon = proximate cause of a death, all co-felons = guilty of felony murder (even if killing is by 3rd party)

HOMICIDE CRIMES

(New York)

• 1st Degree Murder
• 2nd Degree Murder
• 1st Degree Manslaughter
• 2nd Degree Manslaughter
• Criminally Negligent Homicide

1st Degree MURDER

New York

• Elements:
  • Intent to kill +
  • D = at least 18 years old +
  • At least one aggravating factor:
    • victim = police officer
    • killing for witness intimidation
    • murder-for-hire
    • 2 or more victims
    • intentional killing during serious felony

2nd Degree MURDER

New York

• 3 Forms:
  • Intent to Kill (premediation + deliberation = irrelevant in NY)
  • Extreme Recklessness (Depraved Indifference Murder)
    • "Utter Disregard for Human Life"
    • Genearlly, act must put more than one person in danger.
    • NOT Applicable to one-on-one killings UNLESS involves torture or abandoning helpless victim to almost certain death
  • Felony Murder (similar to CL rule)
    • Underlying Felonies (BRAKES)
      • burglary, robbery, arson, kidnapping, escape, sexual assault
        
    • D need not be convicted of underlying felony (if sufficient evidence he committed the felony)
    • Non-slayer defense: Affirmative defense to felony murder if D can prove by preponderance of evidence...
      • D did not do killing
      • did not have a deadly weapon
      • had no reason to believe his co-felons had deadly weapons, AND
      • no reason to believe co-felons intended to do anything likely to result in death

1st Degree MANSLAUGHTER 

New York

• 2 Forms:
  • Intent to cause serious physical injury, OR
  • Extreme emotional disturbance
    • "intent'l killing committed under influence of reasonable extreme emotional disturbance"
      • Affirmative Defense to 2nd Degree Murder

2nd Degree MANSLAUGHTER 

New York

• RECKLESS act that results in death...
  • D = aware of and consciously disregards a substantial and unjustifiable risk of death

OTHER HOMICIDE OFFENSES 

New York

• Aggravated Homicide: When victim = police officer killed in line of duty, tack "aggravated" to whatever the underlying charge is
• Vehicular Homicide: Death caused by drunk driving (BAC over .08%)
  
  • 1st d. Vehic Mansl: Death + DWI + Aggravating factor (over .18 or past DWI)
  • 2nd d. Vehic Mansl: Death + DWI
  • Agg Vehic Man: 1st d. vehic mansl + reckless driving

CONFINEMENT OFFENSES 

CL/MS

• False Imprisonment: Unlawful confinement of a person w/o consent
  • general intent
• Kidnapping: False imprisonment + either...
  • moving the victim, or
  • concealing the victim in a secret place
• Aggravated Kidnapping: Kidnapping +
  • purpose to collect ransom,
  • purpose to commit rape; or
  • victim = child

CONFINEMENT OFFENSES 

Unlawful Imprisonment

New York

• Unlawful Imprisonment:
  • 2nd Degree: Unlawfully restraining someone + w/o their consent + w/ knowledge that the restriction is unlawful
    • thus, mistake of law IS a DEFENSE
  • 1st Degree: 2nd Degree + risk of serious physical injury

CONFINEMENT OFFENSES 

Kidnapping

New York

• 2nd Degree: Abducting someone
• 1st Degree: 2nd degree PLUS one of the following
  • ransom,
  • restraint of victim for more than 12 hours,
  • death of victim
    • If accidental: 2nd degree felony murder
    • If intentional: 1st degree murder

SEX OFFENSES 

MS + New York

• Forcible Rape:
  
  • Sex w/o consent
  • accomplished by force, threat of force, or victim = unconscious
  • Mental State = general intent
• Statutory Rape:
  • sex w/ someone under age of consent
    • NY: Age of consent = 17
  • Mental State:
    • Majority: Strict Liability
    • MPC/Minority: reasonable mistake of age = defense

CL THEFT CRIMES

LARCENY

• Larceny: Trepassory taking and carrying away of the personal property of another with INTENT to STEAL
  • Trespassory = wrongful/without permission
  • Intent to Steal = keep permanently
  • Erroneous Taking: Taking under a claim of right is NEVER larceny.
  • Continuing Trespass: If D wrongfully takes property but w/o intent to keep permanently but later develops such intent, the initial trespass considered to have continued and D = guilty of larceny

CL THEFT CRIMES

EMBEZZLEMENT

• Embezzlement = Conversion of property of another person already in D's lawful possession w/ INTENT to DEFRAUD.
  • Mental State = Specific Intent
  • Note: If D intends to return the property in same form then no intent to defraud (BUT: money not considered fungible)
  • Possession = more than mere custody, requires authority to exercise discretion over the property

CL THEFT CRIMES

FALSE PRETENSES

• Obtaining title to property of another by an intentional false stmt with INTENT to defraud.
  • Title not just temporary possession.
  • False Stmt must be of a present misstatement of fact (not future promise)

CL THEFT CRIMES

LARCENY BY TRICK

• D obtains ONLY possession as a result of intentional false stmt with intent to defraud.

CL THEFT CRIMES

ROBBERY

• Larceny..
• from another's person or presence
• by force or threat of immediate injury.
  • Force = sufficient to overcome resistance (e.g. NOT lifting a wallet out of a pocket. ripping a chian off IS sufficient0
  • Threats = of immediate injury... (otherwise, crime = extortion/blackmail)

NY THEFT CRIMES

LARCENY

• DEFINED: Any crime that would be larceny, embezzlement, false pretenses or larceny by trick at CL = larceny in NY.
• Degrees of Larceny:
  
  • 1st: more than $1M
  • 2nd: more than $500k
  • 3rd: more than $3,000
  • 4th: more than $1k
  • Petit Larceny: less than $1000

NY THEFT CRIMES

ROBBERY

• 3rd degree: Forcible stealing (Larceny + Force)
• 2nd degree: forcible stealing + one of...
  • D = aided by another actually present
  • victim is injured
  • car is stolen
• 1st degree: forcible stealing + one of...
  • victim is seriously injured
  • D uses/displays a firearm
    • Affirm defense: If D can prove gun was unloaded/inoperable, crime reduced to 2nd degree

MISCELLANEOUS

THEFT RELATED CRIMES

• FORGERY = making or altering, a writing, so that it is default, w/ INTENT to defraud
• UTTERING = offering as genuine, a forged instrument, w/ INTENT to defraud
• MALICIOUS MISCHIEF = destroyring/damaging someone else's property

POSSESSION OFFENSES

General

• The Act: "Possession"
  • DEFINED: Control for a period of time long enough to have an opportunity to terminate possession.
  • Constructive Possession: contraband need not be in D's actual physical possession so long as close enough for him to exercise dominion and control over it
• Mental State: KNOWLEDGE (of possession AND of the character the item possessed)

HABITATION OFFENSES

CL BURGLARY

• CL: Breaking & entering, dwelling of another, at night, w/ INTENT to commit felony inside
  • Breaking = creating/enlargening an opening by force
  • Entry = any part of D's body entered building
  • Dwelling = bldg where people regularly sleep
  • Specific Intent

HABITATION OFFENSES

NEW YORK BURGLARY

• 3rd degree: entering or remaining, unlawfully, in a building, with intent to commit a crime inside
• 2nd degree: 3rd degree + one of:
  • D carries a weapon
  • Non-participant is injured
  • Building = dwelling
• 1st degree: D knows he is burglarizing a dwelling AND...
  • non-participant injured, OR
  • D carries a weapon

HABITATION OFFENSES

CL ARSON

• Defined: Malicious burning of a building
• Mental staet = malicious (intentional/reckless disregard of a known risk)
• Burning = material wasting of the structure (scorching NOT sufficient)

HABITATION OFFENSES

NEW YORK ARSON

• 4th degree: reckless burning of a building
• 3rd degree: intentional burning of a building
• 2nd degree: 3rd degree + D knows/should know someone was inside the building
• 1st degree: 2nd degree + explosive device

ACCOMPLICE LIABILITY

Act and Mental State Required

• "ACT" Requirement: Aiding or encouraging the principal
  • Mere presence/knowledge does NOT make someone an accomplice
  • NY: mere knowledge can make someone guilty of lesser crime criminal facilitation
• Mental State: With the INTENT that the crime be committed
  • NY: Accomplice need only INTEND to aid P's conduct and share P's mental state
    • Thus, possible in NY to be accomplice to negligent/reckless crime

ACCOMPLICE LIABILITY

SCOPE of Liability

• Accomplice = guilty of...
  • all crimes he aided/encouraged as if he did it
  • all other foreseeable crimes committed along with the aided crime
• UNPROSECUTED P: Accomplice is liable even where P is not prosecuted or has an individual defense (e.g. insanity)

ACCOMPLICE LIABILITY

WITHDRAWAL

• Encourager: Accomplice who only encouraged P may withdraw by discouraging P BEFORE the crime is commmitted
• Aider: Accomplice who actually helped P must EITHER neutralize the assitance OR prevent the crime's commission (e.g. by calling cops)
• NY: RENUNCIATION
  • Affirmative defense to accomplice liability
  • Accomplice must make a subst'l effort to prevent the commisison of the crime

ACCOMPLICE LIABILITY

ACCESSORY AFTER THE FACT

• CL: To commit separate offense of being an accessory D must...
  • assit P who has committed felony,
  • with knowledge the crime has been committed, AND
  • w/ INTENT to help P avoid arrest/conviction
• NY: Called hindering the prosecution
  

Inchoate Offenses:

SOLICITATION

• DEFINED: Asking someone to commit a crime with the intent that it be committed.
  • Mental State: SPECIFIC INTENT
• Completion of the crime = UNNECESSARY for liability... the crime is in the asking/solicitation

Inchoate Offenses:

CONSPIRACY

• Defined: An agreement b/w two or more people to commit a crime PLUS an overt act in furtherance of the crime.
  • Overt act = any act no matter how small
  • Mental State = SPECIFIC INTENT to accomplish conspiracy's objective
• One-Person Conspiracy:
  • NY/MPC: Yes... 1 peson conspiracy = possible... thus D may be guilty even if all co-conspirators acquitted or just pretending to agree
  • CL: NO... need two guilty minds for a conspiracy... thus if other party pretending or acquitted, last remaining D cannot be convicted

Inchoate Offenses:

CONSPIRACY... Vicarious Liability

• Vicarious Liability:
  • CL: In addition to conspiracy, D = liable for OTHER crimes committed by his co-conspirators so long as those crimes...
    • were in furtherance of conspiracy's objectives, AND
    • were foreseeable 
  • NY: No VL for crimes committed by co-conspirators

Inchoate Offenses:

ATTEMPT

• The ACT:
  
  • MPC/Majority: Conduct that is a subst'l stepstrongly corroborative towards the crime and of a crim purpose
  • CL/NY: Conduct that gets dangerously close to the commission of a crime
• Mental State: SPECIFIC INTENT to commit the crime
  • Thus, CANNOT attempt unintentional crimes
  • BUT: Can attempt malice/general intent/ SL crimes... ONLY if D specifically intends to commit the crime

Inchoate Offenses:

ATTEMPT & IMPOSSIBILITY

• Factual Impossibility: NOT a DEFENSE to Attempt
  • Defined: Claim that it was impossible to complete the crime b/c some circumstance was beyond D's control.
  • Test: If facts were as D believed, would he be guilty of a crime? If YES, then D = guilty of attempt.
• Legal Impossibility: Legal Impossibility IS a DEFENSE to attempt.

Inchoate Offenses:

WITHDRAWAL, RENUNCIATION, ABANDONMENT

• NY/MPC: Withdrawal IS a defense but ONLY IF:
  • D voluntarily and completely renounces the solicitation/conspiracy/attempt AND
  • renunciation is based on a change of heart and not mere fear of failing/being caught
• CL: Withdrawal is NEVER a defense
  • BUT once D withdraws, no longer vicariously liable for crimes committed by co-conspirators after he left the conspiracy

Inchoate Offenses:

MERGER

• When can D be convicted of separate crimes for same act?
  • Rule for Lesser Included Offenses
    • Lesser included offenses merge with the greater offenses.
      • Lesser Included Offenses = offense necessarily part of greater offense...
        • offenses where every element is also an element of the greater offense
        • e.g. Larceny = lesser included offense will merge with the greater offense
  • Rule for Inchoate Offenses:
    
    • Attempt: merges w/ complete crime
    • Conspiracy: does NOT merge w/ completed crime
    • Solicitation:
      • CL: Merges
      • NY: Does NOT merge

DEFENSES

The 6 Defenses Listed...

• Insanity
• Intoxication
• Infancy
• Self-Defense
• Duress
• Entrapment

DEFENSES

Capacity Defenses:

INSANITY

• 2 Elements for Insanity Defense:
• D must have a mental disease, AND
• Apply 1 of the following tests to determine if disease renders D legally insane:
• NY: D = insane if lacked the substantial capacity to either:
• understand the nature of his act, OR
• appreciate the wrongfulness of his conduct
• Affirmative Defense
  
• M'Naughten: If D either
  
• did not know his act was wrong, or
  
• did not understand the nature of his act
• Irresistible Impulse Test: If D either
• was unable to control his actions,or
• appreciate the wrongfulness of his conduct.
• MPC (combines previous two)
• If D lacked the subst'l capacity to either..
• appreciate the criminality of his conduct, or
• conform his conduct to the law.
  

DEFENSES

Capacity Defenses:

Distinguishing INSANITY v. INCOMPETENCY

• Insanity: Issue = whether D insane at time of CRIME.
  • If yes: D is NOT GUILTY
• Incompetency: Issue = whether D mentally ill at time of TRIAL.
  • If yes: trial is postponed until D is competent.

DEFENSES

Capacity Defenses:

INTOXICATION

• Involuntary Intoxication:
  
  • Defense to ANY crime
  • Treated as a MENTAL ILNESS,
    
    • So, apply insanity test to determine if applicable
  • Key: must be completely INVOLUNTARY
• NY: Voluntary Intoxication
  • CAN be a defense to intent and knowledge crimes, if the intoxication prevents D from forming the required intent
  • CANNOT be a defense to crimes of recklesness, negligence, SL.
• MS: Voluntary Intoxication:
  • CAN be a defense to specific intent crimes, if the intoxication prevents D from forming the specific intent
  • CANNOT be a defense to malice, general intent, SL crimes
  • 
    

DEFENSES

Capacity Defenses:

INFANCY

(New York)

• NY: If age is...
  
  • < 13: Crim prosecution as adult is NOT allowed... only juvenile proceedings in Fam Ct
  • 13+: crim prosecution as adult allowed for 2nd degree murder
  • 14+: crim prosecution as adult allowed for serious crimes against persons/property
  • 16+: crim proseuction as adult allowed for any crime (except 1st degree murder)
  • 18+: crim prosecution as adult for 1st degree murder permitted

DEFENSES

Capacity Defenses:

INFANCY

(CL)

• If age is...
  • < 7: Prosecution NOT allowed
  • < 14: Reputtable presumption against prosecution
  • 14+: Prosecution as adult is permissible

DEFENSES

SELF-DEFENSE

Rule for Non-Deadly Force

• RULE for Non-Deadly Force: D may use non-deadly force in self-defense if it is...
  • reasonably necessary
  • to protect against an imminent use
  • of unlawful force against himself

DEFENSES

SELF-DEFENSE

Rule for Deadly Force

• RULE for Deadly Force: D may use deadly force in self-defense if he is facing an imminent threat of death or serious bodily harm
  • Aggressor Rule: D may NOT use deadly force if he was initial aggressor
    • BUT: D may regain right to use deadly self-defense if
      • the aggressor withdraws AND communicates that withdrawal to the victim, or
      • (MS ONLY): the victim suddenly escalates a non-deadly fight into a deadly fight
  • Retreat Rule:
    • MAJORITY: Retreat NOT required before using deadly self-defense
    • NY/Minority: Retreat IS required, unless D
      
      • cannot retreat in complete safety, or
      • is in his house (castle exception)

DEFENSES

SELF-DEFENSE

Reasonableness & Mistake

• What happens when D is mistaken about need to use self-defense?
  • Reasonable Mistake: Defense still applicable
  • Unreasonble Mistake:
    
    • CL/NY: NO DEFENSE
    • Minority/MPC: Imperfect self-defense (murder reduced to voluntary manslaughter)

DEFENSES

SELF-DEFENSE

Use of Force to Prevent a Crime

• Non-deadly Force may be used if necesary to prevent any crime.
• Deadly force may only be used to prevent a felony risking human life.
  • NY: Deadly force may be used to prevent rape, roberry, arson, kidnapping, burglary; retreat NOT required

DEFENSES

DEFENSE of OTHERS

• D may use force/deadly force to protect others the same as he could use it to defend himself.

DEFENSES

DEFENSE of PROPERTY

• General Rule: Deadly force may NOT be used to defend property.
• Burglary Rule: Deadly force may be used to prevent a burglary if D is inside his own home.

DEFENSES

SELF-DEFENSE

RESISTING ARREST

• If D knows/reasonably should know the person performing the arrest is a police officer...
  • MBE/Maj.: If arrest is unlawful, D MAY use non-deadly force to resist the arresting officer.
  • NY: Force may NOT be used to resist UNLESS arresting officer uses EXCESSIVE force.

DEFENSES

NECESSITY DEFENSE

• CL Rule: It is a defense to criminal conduct if D reasonably believed that conduct was necessary to prevent greater harm.
  • EXCEPTION: Necessity is NEVER a defense to homicide.
• NY: Harm avoided must be greater than harm caused.
  • Necessity CAN be a defense to homicide.

DEFENSES

DURESS

• Rule: It is a defense if D was forced to commit the crime under a threat of death/serious bodily injury.
  • CL Exception: Duress can NOT be a defense to HOMICIDE.
  • NY: Duress CAN be a DEFENSE to HOMICIDE
    • Duress = Affirmative Defense

DEFENSES

ENTRAPMENT

• Defined: G'vt unfairly tempted D to commit the crime
• VERY NARROW
• Only a defense if...
  • criminal design originated w/ gvt, and
  • D was not predisposed to commit the crime
  • NY: Entrapment = affirmative defense.