Introduction to Criminal Law

Transcription

1 Winter 2019 Introduction to Criminal Law Recognizing Offenses Shoplifting equals Larceny Criminal possession of stolen property. Punching someone might be Assault; or Harassment; or Menacing Recognizing Offenses Breaking into someone s home and stealing something Burglary Criminal possession of stolen property Breaking into someone s home and punching someone Burglary Assault 1

2 1. Definitions (terms) Offense Crime Petty Offense Felony Misdemeanor Violation Traffic Infraction Offense (Penal Law [1]) Conduct where the there is a statute defining the act and which provides for a sentence (imprisonment or fine) If it is not a criminal offense, it cannot be in a criminal court Supreme Court NYC Criminal Court Crime (Penal Law [6]) A misdemeanor or A felony 2

3 Felony (Penal Law [5]) An offense where the sentence if imprisonment can be over one year. Can be zero (for certain Class E or D felonies) Can be life (for certain murder convictions) Misdemeanor (Penal Law [4]) An offense where the sentence of imprisonment is up to one year Assault in the third degree Criminal possession of a controlled substance in the seventh degree It cannot be a traffic infraction Petty offense (CPL 1.20 [39]) A violation or traffic infraction 3

4 Violation (Penal Law [3]) An offense where the sentence of imprisonment is up to 15 days Disorderly conduct not a traffic infraction Traffic Infraction (Penal Law [2]) An offense in the Vehicle and Traffic Law that is not a misdemeanor or felony (Vehicle and Traffic Law 155) Operating a vehicle while impaired Differences Crime Petty Offenses Level Felonies Misdemeanors Traffic Infractions Violations Possible Sentence More than 1 year Up to 1 year Up to 60 days Up to 30 days 4

5 Classes of Felonies Felony Class A Class B Class C Class D Class E A-I A-II Classes of Misdemeanors Misdemeanors Class A Class B Possess (Penal Law [8]) 1) Physical possession of tangible property or 2) Otherwise to exercise dominion or control over tangible property 5

6 Possession Physical Possession: A person has physical possession of property by Holding it in his or her hand, or By carrying it in their body or person; or By carrying it on his or her body or person. Constructive Possession: A defendant may constructively possess property if he has dominion and control over the drugs as a result of his authority over the person who actually possesses them, rather than through his access to or control over the place where the drugs are kept. Joint Possession Possession of tangible property may be by an individual, or shared jointly by several persons. Physical Injury (Penal Law [9]) 1) Impairment of physical condition; or 2) Substantial pain. 6

7 Impairment Impairment of physical condition NO: blackened eye without any development of its appearance, seriousness, accompanying swelling, or suggestion of pain YES: hit with the barrel of a pistol, resulting in a wound that left a wishbone-shaped scar about one-half inch in diameter over the right eye Substantial Pain Substantial Pain NO: two punches to the face causing red marks, crying, and an unspecified degree of pain YES: Substantial pain need not even be severe or intense to be substantial. burglar, while attempting to escape, bit a finger of the victim, broke his fingernail, and caused him to bleed and feel moderate pain. Physical injury which Serious Physical injury (Penal Law [10]) 1) creates a substantial risk of death, or 2) causes a) death or b) serious and protracted disfigurement, or c) protracted impairment of health or d) protracted loss or impairment of the function of any bodily organ. 7

8 Deadly Weapon (Penal Law [12]) 1) Any loaded weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged, or 2) Other designated weapon: A switchblade knife, gravity knife, pilum ballistic knife, metal knuckle knife, dagger, billy, blackjack, plastic knuckles, or metal knuckles. Dangerous Instrument (Penal Law [13]) Any instrument, article or substance which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury. 2. Criminal Liability (Penal Law 15.10) In order for the defendant to be criminally liable for his or her action, there must be conduct including a voluntary act or omission. voluntary act or omission 8

9 Conduct (Penal Law [4]) Act or omission PLUS Accompanying mental state Act Mental State Act (Penal Law [1]) Actus reus a bodily movement Voluntary Act (Penal Law [2]) Voluntary Act A bodily movement performed consciously as a result of effort or determination, Includes the possession of property if the actor was aware of his physical possession or control of that property for a sufficient period to have been able to terminate it. 9

10 Omission (Penal Law [3]) Actus reus a failure to perform an act as to which a duty of performance is imposed by law. Mens rea Culpable mental state (Penal Law [6]; 15.05) Intentionally or Knowingly or Recklessly or With criminal negligence 3. Culpable Mental State Almost all offenses require a culpable mental state. This is more commonly known as mens rea, which is Latin for guilty mind. The few offenses that do not require a culpable mental state are called strict liability offenses. 10

11 Intentionally (Penal Law [1]) A conscious objective or purpose to cause a particular result, or to engage in particular conduct. Factors: the motive for the assault, the nature of the violent act, whether a weapon was used, what part of the body was assaulted, and what type of injury resulted Knowingly (Penal Law [2]) A person is aware that his or her conduct is of the nature described by the offense or that a circumstance described by the offense exists (Penal Law [2]). Used mainly for possessory offenses The act of possession allows for an inference that the possessor knows what he or she possesses, especially, but not exclusively, if it is in his or her hands, person, vehicle, or premises. Recklessly (Penal Law [3]) The person does something. It creates a substantial and unjustifiable risk that the conduct in the statute exists The person is aware of and consciously disregards that risk (Penal Law [3]). The degree of risk must be such that a disregard of the risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation 11

12 Criminal Negligence (Penal Law [4]) The person does something. It creates a substantial and unjustifiable risk that the conduct in the statute exists The person fails to perceive that risk in a situation where the offender has a legal duty of awareness (Penal Law [4]). Only in assault and homicide statutes. Which One Applies? How do you know which mental state applies to a particular offense? The Statute defining the offense will state which mental state applies. Assault In The Third Degree (Penal Law ) DEFINITION 1. With intent to cause physical injury to another person, he causes such injury to such person or to a third person 2. He recklessly causes physical injury to another person 3. With criminal negligence, he causes physical injury to another person by means of a deadly weapon or a dangerous instrument. CULPABLE MENTAL STATE 12

13 Strict Liability (Penal Law 15.10) There are a few offenses where there is no mental state required: If the act is committed, that is enough, no need to prove a mental state. One example is rape in the third degree (Penal Law [2]) This is a type of statutory rape Rape in the Third Degree (Penal Law [2]) A person is guilty of rape in the third degree when Being twenty-one years old or more, he or she engages in sexual intercourse with another person less than seventeen years old[.] Rape in the third degree is a class E felony All that needs to be proven: 1. Defendant is over 21 years old; and 2. He or she had sexual intercourse with another; and 3. The other person is under 17 years old Effect of Ignorance or Mistake Ignorance or Mistake A defendant is still criminal liable for his or her conduct even if the conduct is based on a mistaken belief of fact or law (Penal Law [1], [2]). 13

14 Effect of Intoxication Intoxication Not a defense that the defendant was intoxicated (Penal Law 15.25). However, it can be presented to the jury if the intoxication can negate an element of the offense (id.). There must be sufficient evidence of intoxication such that then jury can consider a doubt as to the element of intent on the basis of the intoxication 4. The Act Besides a culpable mental state, criminal offenses require some type of act. The defendant must do something. In rare instances it is criminal when a certain person fails to act (omission). Omission: Endangering the welfare of a child A parent cannot fail to protect their child from becoming an abused child. A father is guilty of endangering the welfare of a child for allowing his spouse, a drug addict, to live with and have access to their infant child during a period of time when the child is being abused. The court held that the defendant father was guilty in that he failed to exercise reasonable diligence in the control of his child to prevent her from becoming an abused child. Evidence that the mother beat the infant child and broke several bones and caused internal injuries. 14

15 Why: Omission: Endangering the welfare of a child Legislature had properly imposed strict liability upon the parent for any resulting child abuse. Regardless of the fact that the father had no intention of the child becoming abused, and therefore, no mens rea, the fact that he failed to act made him guilty. Act: Assault in the third degree Most of the time, the defendant is required to do some act; that is a bodily movement. Sometimes the act is not specified, but what the act must cause (e.g., harm) is specified. Example: Assault in the third degree requires a physical injury to be caused; it does not state how the physical injury is caused (e.g., hitting, kicking, tackling, shooting a paper clip). Other crimes specifically state how the act must occur. Act: Criminal possession of a controlled substance in the seventh degree A person is guilty of criminal possession of a controlled substance in the seventh degree when s/he knowingly and unlawfully possesses a controlled substance. OFFENSE A person is guilty of criminal possession of a controlled substance in the seventh degree when s/he knowingly and unlawfully possesses a controlled substance. ACT possessing a controlled substance 15

16 Act: Criminal possession of a controlled substance in the seventh degree Possess (Penal Law [8]) to have physical possession or otherwise to exercise dominion or control over tangible property. Therefore in order to act under to act under this offense you must possess (e.g., have physical possession, such as holding the controlled substance). Sexual Misconduct (Penal Law ) A person is guilty of sexual misconduct when: 1) He or she engages in sexual intercourse with another person without such person's consent; or 2) He or she engages in oral sexual conduct or anal sexual conduct with another person without such person s consent; or 3) He or she engages in sexual conduct with an animal or a dead human body. Sexual misconduct is a class A misdemeanor. Acts in Sexual Misconduct 1) He or she engages in sexual intercourse with another person without such person s consent; or 2) He or she engages in oral sexual conduct or anal sexual conduct with another person without such person s consent; or 3) He or she engages in sexual conduct with an animal or a dead human body. 16

17 5. Harm Sometimes the statute requires a specific type of harm, as opposed to an act, to be considered a crime. For example, assault in the third degree requires a physical injury not an act of hitting. Higher degrees of assault require that the harm be a serious physical injury. While we may think of an act of a slap in the face to be an assault, it is not, on its face, a criminal assault unless the harm is an impairment of physical condition or substantial pain (i.e., a physical injury). What is the Harm(s)? Burglary in the First Degree: Defendant knowingly enters or remains unlawfully in a dwelling with intent to commit a crime therein, and when, in effecting entry or while in the dwelling or in immediate flight therefrom, he or another participant in the crime causes physical injury to any person who is not a participant in the crime (Penal Law [2]) Example Aggravated Manslaughter in the Second Degree: he or she recklessly causes the death of a police officer or peace officer where such officer was in the course of performing his or her official duties and the defendant knew or reasonably should have known that such victim was a police officer or peace officer (Penal Law ) Harm? 17

18 Harm and Act STATUTE Assault in the First Degree: 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 deadly weapon or a dangerous instrument (Penal Law ) HARM AND ACT serious physical injury with a deadly weapon or a dangerous instrument 6. Parties Principal Accomplice Criminal liability for conduct of another (Penal Law 20.00) When one person engages in conduct which constitutes an offense, another is criminally liable for such conduct when, acting with the state of mind required for the commission of that offense, he or she solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct. 18

19 Parties: Murder Murder: Principal actor: the one who pulled the trigger. Accomplice: the one who handed him the gun. Robbery: Principal actor: the one who robbed the bank. Accomplice: the one who drove the getaway car. 7. Defenses The Penal Law also provides defenses to criminal offenses. When a defendant pleads not guilty, he or she denies the offense charged. People s Burden at trial: The burden is proving every element of the offense(s) beyond a reasonable doubt. A defense, in basic terms, is the reason why the person who would otherwise be guilty of the offense charged cannot be found guilty of the offense charged. Defenses For example, a person who is charged with assault and can use the defense of justification (commonly known as selfdefense ). What the defendant argues is that he or she assaulted the victim, but was justified in doing so because of he or she was defending him- or herself. If the jury finds that the defendant assaulted the other person, they must, nevertheless, find the defendant not guilty if they believe that the defendant in assaulting the other person was justified in self-defense. 19

20 Defenses 1) Infancy 2) Mental Disease or Defect 3) Justification 4) Duress 5) Entrapment Defense of Infancy Raise The Age The presumptive age of juvenile accountability: Since 10/1/2018: 17 After 10/1/2019: 18 There are exceptions Defense of Infancy A juvenile offender criminally responsible for certain violent felonies year-olds: Murder in the second degree (Penal Law [1], [2]) Murder in the second degree (Penal Law [3]) as a sexually motivated felony (Penal Law ) 20

21 Defense of Infancy year-olds: kidnapping in the first degree (Penal Law ) arson in the first degree (Penal Law ) assault in the first degree (Penal Law [1], [2]) manslaughter in the first degree (Penal Law ) rape in the first degree (Penal Law [1], [2]) criminal sexual act in the first degree (Penal Law [1], [2]) aggravated sexual abuse in the first degree (Penal Law ) burglary in the first degree and second degree (Penal Law ; [1]) arson in the second degree (Penal Law ) robbery in the first degree and second degree (Penal Law , [2]) Defense of Infancy 16-year-olds (17-year-olds on October 1, 2019) criminally responsible for a felony as an adolescent offender (CPL 1.20 [44]) (Penal Law [3] [a]). Defense of Infancy Possible transfer to Family Court: Juvenile offender and the adolescent offender In Family Court they will be not be subject to criminal liability Subject to adjudication as a juvenile delinquent. If the juvenile offenders and adolescent offenders stay in a criminal court, their case proceeds in a NY Supreme Court youth part. Upon conviction, they may be eligible to be adjudicated a youthful offender. 21

22 Defense of Infancy Upon determining that an eligible youth is a youthful offender, the court must direct that the conviction be deemed vacated and replaced by a youthful offender finding; and the court must sentence the defendant pursuant to Penal Law Misdemeanor: up to six months Felony: up to 1 1/3 to 4 years Defense of Infancy A 16 year old (17-year-old on October 1, 2019) is criminally responsible for a very narrow class of misdemeanors. The rest will go to Family Court Defense of Infancy The misdemeanor must be accompanied by a felony charge that is shown to have been committed as a part of the same criminal transaction as defined in CPL (2), or results from reduction or dismissal in satisfaction of a charge for a felony offense, in accordance with a plea of guilty pursuant to CPL (4) or Is a misdemeanor in the Vehicle and Traffic Law. 22

23 Defense of Mental Disease or Defect Defendant lacked criminal responsibility by reason of mental disease or defect because, he lacked substantial capacity to know or appreciate either: 1) the nature and consequences of such conduct; or 2) that such conduct was wrong. Defense of Justification The justifiable use of physical force defense of oneself or another generally requires a reasonable belief that force is necessary for the defense of oneself or another from unlawful force Justification in the use of force to defend oneself or another renders such conduct entirely lawful. Defense of Justification The degree of justifiable force is geared to the degree reasonably believed to be necessary to defend oneself Use of deadly physical force requires a reasonable belief that the assailant is using or is about to use deadly force. Self-defense is a defense to the use of force NOT a defense to the illegal possession of a weapon 23

24 Defense of Justification: Initial Aggressor Defendant using self-defense cannot be the initial aggressor person who first attacks or threatens to attack Initial aggressor: the first person who uses or threatens the imminent use of offensive physical force. It depends: The actual striking of the first blow or inflicting of the first wound. Defense of Justification: Deadly Force Limitation: Duty to retreat: deadly physical force cannot be used if the actor knows that he or she can retreat in complete safety: Except: In his or her dwelling and not initial aggressor Police officer making an authorized arrest or preventing an escape Defense of Duress Coerced to commit a crime by the use or threatened imminent use of unlawful physical force physical force. 24

25 Defense of Entrapment Defendant was induced or encouraged to commit a crime by a public servant. 1) active inducement or encouragement to commit an offense 2) must come from a government agent seeking to prosecute the defendant 3) defendant must not be predisposed to commit the offense 4) methods used create a substantial risk that such person would commit the crime Defense of Entrapment Just affording a person an opportunity to commit an offense is NOT entrapment. 8. Breaking Criminal Offenses into Elements In order to determine whether a person can be charged with a crime or whether that charge is sufficient, you have to be able to break the crime into elements. Elements are components of a particular law. The culpable mental state is an element. The harm is another element. The act is another element. The People must prove every element of the offense charged beyond a reasonable doubt 25

26 What are elements? Use of elements: 1. Sufficiency of Indictment 2. Sufficiency of Information 3. Criminal Trial Use of elements Sufficiency of Indictment In Grand Jury there must be reasonable cause to believe every element of the offense Sufficiency of Information In the factual part there must be reasonable cause to believe every element of the offense Criminal Trial The People must prove every element of the offense charged beyond a reasonable doubt Getting Elements Elements to almost every criminal offense can be found in the Criminal Jury Instructions put together by the New York Courts. Criminal Jury Instructions can be found on the internet at: Look at Assault in the Third Degree (Penal Law [1]) 26

27 Assault in the Third Degree (Class A Misdemeanor) The [COUNT] count is Assault in the Third Degree. Under our law, a person is guilty of Assault in the Third Degree when, with intent to cause physical injury to another person, he or she causes such injury to that person [or to a third person]. Some of the terms used in this definition have their own special meaning in our law. I will now give you the meaning of the following terms: physical injury and intent. PHYSICAL INJURY means impairment of physical condition or substantial pain. INTENT means conscious objective or purpose. Thus, a person acts with intent to cause physical injury to another when that person s conscious objective or purpose is to cause physical injury to another. In order for you to find the defendant guilty of this crime, the People are required to prove, from all the evidence in the case, beyond a reasonable doubt, both of the following two elements: 1) That on or about [DATE], in the county of [COUNTY], the defendant, [DEFENDANT S NAME], caused physical injury to [COMPLAINANT]; and 2) That the defendant did so with the intent to cause physical injury to [COMPLAINANT]. Therefore, if you find that the People have proven beyond a reasonable doubt both of those elements, you must find the defendant guilty of the crime of Assault in the Third Degree as charged in the [COUNT] count. On the other hand, if you find that the People have not proven beyond a reasonable doubt either one or both of those elements, you must find the defendant not guilty of the crime of Assault in the Third Degree as charged in the [COUNT] count 27

28 both of the following two elements: 1) the defendant, caused physical injury to [COMPLAINANT]; and 2) That the defendant did so with the intent to cause physical injury to [COMPLAINANT]. Assault in the Third Degree Elements 1. The defendant caused physical injury 2. The defendant intended to cause physical injury 9. Basic Criminal Offenses 28

29 Assault Basic: Intentional Assault In The Third Degree: A person is guilty of assault in the third degree when with intent to cause physical injury to another person, he causes such injury to such person or to a third person. Physical Injury: impairment of physical condition; or Substantial pain Murder Basic: Murder in the Second Degree: A person is guilty of murder in the second degree when with intent to cause the death of another person, he causes the death of such person or of a third person. Rape Basic: Sexual Misconduct: A person is guilty of sexual misconduct when he or she engages in sexual intercourse with another person without such person s consent (Penal Law [1]) What is sexual intercourse? What is without consent? 29

30 Criminal Sexual Act Basic: Sexual Misconduct: A person is guilty of sexual misconduct when he or she engages in oral sexual conduct or anal sexual conduct with another person without such person s consent (Penal Law [2]) What is oral or anal sexual conduct? What is without consent? Burglary Basic: Burglary in the third degree: A person is guilty of burglary in the third degree when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein. 1. Trespass 2. Intent to commit a crime Larceny Basic: Petit Larceny: A person is guilty of petit larceny when he steals property. What is to steal? What is property? 30

31 Robbery Basic: Robbery in the Third Degree: A person is guilty of robbery in the third degree when he forcibly steals property. What is to steal? What is force? Criminal Possession of a Controlled Substance Basic: Criminal Possession of a Controlled Substance in the Seventh Degree: A person is guilty of criminal possession of a controlled substance in the seventh degree when he or she knowingly and unlawfully possesses a controlled substance What is possession? What is a controlled substance? Criminal Sale of a Controlled Substance Basic: Criminal Sale of a Controlled Substance in the Fifth Degree: A person is guilty of criminal sale of a controlled substance in the fifth degree when he knowingly and unlawfully sells a controlled substance. What is to sell? What is a controlled substance? 31

32 Criminal Possession of a Weapon Basic: Criminal Possession of a Weapon in the Fourth Degree: He or she possesses any firearm (Penal Law [1]) What is possession? What is a firearm? Criminal Possession of a Weapon Basic: Criminal Possession of a Weapon in the Fourth Degree: He possesses any... dangerous or deadly instrument or weapon with intent to use the same unlawfully against another (Penal Law [2]) What is possession? What is a dangerous or deadly instrument or weapon? What is the intent to use it unlawfully? 10. Attempt to commit a crime (Penal Law ) A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he or she engages in conduct which tends to effect the commission of such crime. There is not crime of attempt. Attempt is attached to a crime: Attempted Assault Attempted Murder Attempted Rape 32

33 Attempt to commit a crime (Penal Law ) To be found guilty of an attempted crimes 1. the defendant acted with a specific intent: He or she intended to commit a specific crime 2. the defendant acted to carry out his or her intent. Does not punish evil thoughts Does not consider mere preparation Requires that there be conduct which tends to effect the commission of the crime contemplated defendant must have engaged in conduct that came dangerously near commission of the completed crime. 33