692 Part VI.b Excuse Defenses

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1 692 Part VI.b Excuse Defenses THE LAW New York Penal Code (1999) Part 3. Specific Offenses Title H. Offenses Against the Person Involving Physical Injury, Sexual Conduct, Restraint and Intimidation Article 125. Homicide, Abortion and Related Offenses Section Homicide Defined Homicide means conduct which causes the death of a person or an unborn child with which a female has been pregnant for more than twenty-four weeks under circumstances constituting murder, manslaughter in the first degree, manslaughter in the second degree, criminally negligent homicide, abortion in the first degree or self-abortion in the first degree. Section Criminally Negligent Homicide A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person. Criminally negligent homicide is a class E felony. Section Manslaughter in the Second Degree A person is guilty of manslaughter in the second degree when: 1. He recklessly causes the death of another person; ::: Manslaughter in the second degree is a class C felony. Section Manslaughter in the First Degree A person is guilty of manslaughter in the first degree when: 1. With intent to cause serious physical injury to another person, he causes the death of such person or of a third person; or 2. With intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance, as defined in paragraph (a) of subdivision one of section The fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree and need not be proved in any prosecution initiated under this subdivision; ::: Manslaughter in the first degree is a class B felony.

2 Section 22 Insanity 693 Section Murder in the Second Degree 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; or (b) The defendant s conduct consisted of causing or aiding, without the use of duress or deception, another person to commit suicide. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the second degree or any other crime; or 2. 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 thereby causes the death of another person; or 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, sodomy 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 lawabiding 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 4. Under circumstances evincing a depraved indifference to human life, and being eighteen years old or more the defendant recklessly engages in conduct which creates a grave risk of serious physical injury or death to another person less than eleven years old and thereby causes the death of such person. Murder in the second degree is a class A-I felony.

3 694 Part VI.b Excuse Defenses Part 1. General Provisions Title B. Principles of Criminal Liability Article 15. Culpability Section Culpability; Definitions of Terms The following definitions are applicable to this chapter: 1. Act means a bodily movement. 2. Voluntary act means a bodily movement performed consciously as a result of effort or determination, and includes the possession of property if the actor was aware of his physical possession or control thereof for a sufficient period to have been able to terminate it. 3. Omission means a failure to perform an act as to which a duty of performance is imposed by law. 4. Conduct means an act or omission and its accompanying mental state. 5. To act means either to perform an act or to omit to perform an act. 6. Culpable mental state means intentionally or knowingly or recklessly or with criminal negligence, as these terms are defined in section Section Culpability; Definitions of Culpable Mental States The following definitions are applicable to this chapter: 1. Intentionally. A person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct. 2. Knowingly. A person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such circumstance exists. 3. Recklessly. A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect thereto. 4. Criminal negligence. A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.

4 Section 22 Insanity 695 Section Requirements for Criminal Liability in General and for Offenses of Strict Liability and Mental Culpability The minimal requirement for criminal liability is the performance by a person of conduct which includes a voluntary act or the omission to perform an act which he is physically capable of performing. If such conduct is all that is required for commission of a particular offense, or if an offense or some material element thereof does not require a culpable mental state on the part of the actor, such offense is one of strict liability. If a culpable mental state on the part of the actor is required with respect to every material element of an offense, such offense is one of mental culpability. Section 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. Part 1. General Provisions Title C. Defenses Article 25. Defenses in General Section Defenses; Burden of Proof 1. When a defense, other than an affirmative defense, defined by statute is raised at a trial, the people have the burden of disproving such defense beyond a reasonable doubt. 2. When a defense declared by statute to be an affirmative defense is raised at a trial, the defendant has the burden of establishing such defense by a preponderance of the evidence.

5 696 Part VI.b Excuse Defenses Article 40. Other Defenses Involving Lack of Culpability Section Mental Disease or Defect In any prosecution for an offense, it is an affirmative defense that when the defendant engaged in the proscribed conduct, he lacked criminal responsibility by reason of mental disease or defect. Such lack of criminal responsibility means that at the time of such conduct, as a result of mental disease or defect, he lacked substantial capacity to know or appreciate either: 1. The nature and consequences of such conduct; or 2. That such conduct was wrong. Part 2. Sentences Title E. Sentences Article 70. Sentences of Imprisonment Section Sentence of Imprisonment for Felony 1. Indeterminate sentence. Except as provided in subdivisions four, five and six, a sentence of imprisonment for a felony shall be an indeterminate sentence. When such a sentence is imposed, the court shall impose a maximum term in accordance with the provisions of subdivision two of this section and the minimum period of imprisonment shall be as provided in subdivision three of this section. 2. Maximum term of sentence. The maximum term of an indeterminate sentence shall be at least three years and the term shall be fixed as follows: (a) For a class A felony, the term shall be life imprisonment; (b) For a class B felony, the term shall be fixed by the court, and shall not exceed twenty-five years; provided, however, that where the sentence is for a class B felony offense specified in subdivision two of section , the maximum term must be at least six years and must not exceed twenty-five years; (c) For a class C felony, the term shall be fixed by the court, and shall not exceed fifteen years; (d) For a class D felony, the term shall be fixed by the court, and shall not exceed seven years; and (e) For a class E felony, the term shall be fixed by the court, and shall not exceed four years. 3. Minimum period of imprisonment. The minimum period of imprisonment under an indeterminate sentence shall be at least one year and shall be fixed as follows: (a) In the case of a class A felony, the minimum period shall be fixed by the court and specified in the sentence. (i) For a class A-I felony, such minimum period shall not be less than fifteen years nor more than twenty-five years; provided that where a sentence, other than a sentence of death or life imprisonment without parole, is imposed upon a defendant convicted of murder in the first

6 Section 22 Insanity 697 degree as defined in section of this chapter, such minimum period shall be not less than twenty years nor more than twenty-five years. (ii) For a class A-II felony, such minimum period shall not be less than three years nor more than eight years four months. (b) Where the sentence is for a class B felony offense specified in subdivision two of section , the minimum period must be fixed by the court at one-third of the maximum term imposed and must be specified in the sentence. Where the sentence is for any other felony, the minimum period shall be fixed by the court and specified in the sentence and shall be not less than one year nor more than one-third of the maximum term imposed. 4. Alternative definite sentence for class D, E, and certain class C felonies. When a person, other than a second or persistent felony offender, is sentenced for a class D or class E felony, or to a class C felony specified in article two hundred twenty or article two hundred twenty-one, and the court, having regard to the nature and circumstances of the crime and to the history and character of the defendant, is of the opinion that a sentence of imprisonment is necessary but that it would be unduly harsh to impose an indeterminate or determinate sentence, the court may impose a definite sentence of imprisonment and fix a term of one year or less. 5. Life imprisonment without parole. Notwithstanding any other provision of law, a defendant sentenced to life imprisonment without parole shall not be or become eligible for parole or conditional release. For purposes of commitment and custody, other than parole and conditional release, such sentence shall be deemed to be an indeterminate sentence. A defendant may be sentenced to life imprisonment without parole only upon conviction for the crime of murder in the first degree as defined in section of this chapter and in accordance with the procedures provided by law for imposing a sentence for such crime. 6. Determinate sentence. Except as provided in subdivision four of this section and subdivisions two and four of section 70.02, when a person is sentenced as a violent felony offender pursuant to section or as a second violent felony offender pursuant to section or as a second felony offender on a conviction for a violent felony offense pursuant to section 70.06, the court must impose a determinate sentence of imprisonment in accordance with the provisions of such sections and such sentence shall include, as a part thereof, a period of postrelease supervision in accordance with section People v. Segal 444 N.Y.S.2d 588, (1981) At a criminal trial the People bear the burden of proof, not only with respect to ordinary defenses which have been codified but more fundamentally they must prove every element of the crime, including intent whenever relevant. Although proof of a mental defect other than insanity may not have acquired the status of a statutory defense, and will not constitute a complete defense in the sense that it

7 698 Part VI.b Excuse Defenses would relieve the defendant of responsibility for all his acts, it may in a particular case negate a specific intent necessary to establish guilt. Model Penal Code (Official Draft 1962) Section Mental Disease or Defect Excluding Responsibility (1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law. (2) As used in this Article, the terms mental disease or defect do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct. Section Evidence of Mental Disease or Defect Admissible When Relevant to Element of the Offense; [Mental Disease or Defect Impairing Capacity as Ground for Mitigation of Punishment in Capital Cases] (1) Evidence that the defendant suffered from a mental disease or defect is admissible whenever it is relevant to prove that the defendant did or did not have a state of mind which is an element of the offense. [(2) Whenever the jury or the Court is authorized to determine or to recommend whether or not the defendant shall be sentenced to death or imprisonment upon conviction, evidence that the capacity of the defendant to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect is admissible in favor of sentence of imprisonment.] OVERVIEW OF INSANITY Notes on the Insanity Defense Negating an Element vs. General Excuse The effects of mental illness can sometimes make it impossible for the state to prove the culpability requirements for an offense. (Recall the discussion at the end of the Section 8 (Homicide Mitigations) Overview materials.) For example, an actor who hallucinates that a knife is a clothes brush may not have the required culpability for homicide if he kills someone thinking that he is brushing lint from the victim s suit. Similarly, mental illness can mitigate murder to manslaughter if the actor killed during an