NY Bar Exam 2011: Criminal Law
|Sources of Law|| Multistate: Common law; majority statutory rules; MPC|
NY: New York Penal Law
|Essential elements of crimes|| 1) Act requirement (actus reus)|
2) Mental state (mens rea)
4) Concurrence principle
|Specific crimes|| 1) Crimes against the person|
2) Crimes against property
|Liability for the conduct of others||Accomplice liability|
|Inchoate offenses|| 1) Solicitation|
|Defenses|| 1) Insanity|
2) Voluntary intoxication
|Jurisdiction|| A crime may be prosecuted in any state where: |
1) an act that was part of the crime took place; OR
2) the result of the crime took place
| Burden of proof|
| The prosecution must prove each element of the crime beyond a reasonable doubt. |
**NY: Defenses divided into two types:
1) Defenses: prosecution must disprove beyond a reasonable doubt.
2) Affirmative defenses: the defendant must prove by a preponderance of the evidence.
|Classifying crimes|| Felony: a crime that may be punished by more than one year in prison.|
Misdemeanor: a crime for which the maximum punishment may not exceed one year in prison.
|Actus reus||Culpable acts can be either commissions (physical acts) or omissions (the failure to act).|
|Commissions/physical acts||All bodily movements are physical acts that can be the basis for criminal liability, provided that they are voluntary.|
Involuntary movements that are not considered criminal acts:
1) One that is not the product of the actor's volition (e.g., being pushed)
2) Sleepwalking or otherwise unconscious conduct
3) A reflex or convulsion
|Omissions||A failure to act can also be the basis for criminal liability, provided three requirements are satisfied:|
1) Legal duty exists, which can be created by: statute; contract; status relationship (usually parent-child, spouse-spouse); voluntary assumption of care, or creation of the peril
2) Knowledge of the facts giving rise to the duty
3) Ability to help
|Four common law mental states|| 1) Specific intent|
3) General intent
4) Strict liability (act alone is enough)
|Specific intent||When the crime requires not just the desire to do the act, but also the desire to achieve a specific result. 11 crimes:|
2) First-degree, premeditated murder
5) False pretenses
Defenses available only for specific intent crimes
1) Voluntary intoxication
2) An unreasonable mistake of fact
|Malice|| When a defendant acts intentionally or with reckless disregard of an obvious or known risk. |
|General intent|| Defendant need only be generally aware of the factors constituting the crime; he need not intend a specific result. Jury can usually infer the general intent simply from the doing of the act.|
General intent crimes:
2) Forcible rape
3) False imprisonment
|Strict liability||When the crime requires simply doing the act; no mental state is needed Two types:|
1) Public welfare offenses: regulatory or morality offenses that typically carry small penalties, such as selling alcohol to a minor, selling contaminated food, corrupting the morals of a minor
2) Statutory rape: having sex with someone who is under the age of consent
|NY Mental States||NY uses the five mental states defined by the MPC: |
1) intent (purpose): when it is the defendant's conscious desire to accomplish a particular result, or what the defendant wants to do.
2) Knowledge: Either a) when the defendant is aware of what he is doing OR b) with respect to a result, when the defendant is aware that it's practically certain that his conduct will cause that result.
3) Recklessness: When the defendant is aware of a substantial and unjustifiable risk, and consciously disregards that risk.
4) When the defendant should have been aware of a substantial and unjustifiable risk.
5) Strict liability: no mental state required.
|Actual (or but-for) causation|| A defendant is an actual cause (the "cause-in-fact") if the bad result would not have happened buy for the defendant's conduct. |
BUT an "accelerating cause" is an actual cause.
|Proximate (or legal) causation||A defendant is a proximate cause if the bad result is a natural and probable consequence of the defendant's conduct.|
|Intervening causes||D will not be considered a proximate cause if an unforeseeable intervening event causes the bad result.|
|Eggshell victims||D will be considered a proximate cause even if the victim's preexisting weakness contributed to the bad result.|
|Concurrence||The defendant must have the required mental state at the same time as he engages in the culpable act. Concurrence issues arise most frequently with larceny and burglary.|
| The 1) unlawful|
2) application of force to another,
3) resulting in either bodily injury or offensive touching.
This is a GENERAL INTENT crime.
**NY does not have a separate battery crime.
| Two versions:|
a) Assault as an attempted battery.
b) 1) The intentional creation
2) other than by mere words
3) of a reasonable fear in the mind of the victim
4) of imminent bodily harm (a fake punch).
This is a SPECIFIC INTENT crime.
|**NY Assault definition|| 1) Intentionally (mental state)|
2) Causing physical injury
3) to another person
|NY degrees of crimes|| Make an educated guess! Three factors that tend to make a crime more or less serious:|
2) injury, coming in two levels of seriousness: physical injury/substantial pain; serious physical injury/permanent or life-threatening injury
3) Quantity (money, drugs)
|Second degree assault in NY|| 1) Intentionally causing|
2) Serious physical injury
|First degree assault in NY|| 1) Second degree assault, plus|
2) a weapon
|Third degree assault in NY|| 1) Intentionally causing|
2) Nonserious physical injury
|Assault in NY, generally|| All versions of assault in NY require injury -- offensive touching is not enough. |
Attempted assault in NY requires the intent to assault. Merely creating a reasonably apprehension without an intent to actually injure is a different crime called menacing.
| Homicide Timing Rules|
| Common law rule: Death must occur within a year-and-a-day of the homicidal act.|
**NY AND MAJORITY Rule: Death may occur at any time.
|Murder (common law murder)|| 1) Causing the death|
2) Of another person
3) With malice aforethought
|Malice aforethought||The required mental state of malice aforethought is satisfied if any of the following are met:|
1) An intent to kill
2) An intent to inflict serious bodily injury
3) Extreme recklessness, meaning reckless indifference to human life or having an "abandoned and malignant heart" ("depraved heart")
4) Intentional commission of a dangerous felony ("felony-murder")
|"Intent to kill" murder: Special rules||Deadly weapon rule: The intentional use of a deadly weapon creates an inference of an intent to kill.|
Transferred intent: If a defendant intends to harm one victim, but accidentally harms a different victim instead, the defendant's intent will transfer from the intended victim to the actual victim. This does not, however, apply to attempts, only complete harms.
|Statutory First degree murder (most states)|| Majority rule:|
1) Any killing committed with premeditation AND Deliberation, OR
2) Felony-murder, if qualifying felonies are enumerated.
|**NY: First degree murder||1) An intent to kill, AND|
2) the defendant is more than 18 years old, AND
3) at least one aggravating factor:
a) the victim is a law-enforcement officer, engaged in official duties at the time of the killing
b) the defendant committed a murder for hire,
c) felony-murder, where the victim was intentionally killed
d) killing for the purpose of witness intimidation
e) there was more than one victim intentionally killed in the same criminal transaction
|**NY: Second degree murder||1) Intentional killing that does not qualify for first degree (premeditation and deliberation is irrelevant in NY)|
2) Highly reckless killing demonstrating depraved indifference to human life by engaging in conduct that creates a grave risk of death, generally involving more than one victim
3) Felony-murder, where the victim is not a co-felon and is killed unintentionally
|Any killing caused during the commission of or attempt to commit a felony that is inherently dangerous. D must be guilty of the underlying felony. The felony must be separate from the killing itself (aggravated assault or battery cannot be the underlying crime). The killing must take place during the felony or during immediate flight from the felony. Once the felons reach a place of temporary safety, the felony ends. The death must be foreseeable. The victim must not be a co-felon.|
**NY: D need not be convicted of the felony, as long as there is sufficient evidence that he committed it.
|NY limits on felony murder|| NY limits felony murder to certain felonies:|
6) Sexual assault
|Vicarious liability||If one of the co-felons causes the death, all of the other co-felons will be guilty of felony murder. This applies even if the actual killing was committed by a third-person, so long as one of the felons is a proximate cause of the death.|
|**NY: Non-slayer defense||NY provides a limited affirmative defense to felony murder if the defendant can prove each of the following four things:|
1) the defendant did not kill the victim
2) the defendant did not have a deadly weapon
3) the defendant had no reason to believe that his co-felons had deadly weapons, and
4) the defendant had no reason to believe that his co-felons intended to do anything that was likely to result in death.
|Voluntary manslaughter, at common law||1) An intentional killing|
2) Committed in the heat of passion
3) After adequate provocation, where provocation is adequate when:
a) the provocation is objectively adequate, which means it would arouse a sudden, intense passion in the mind of a reasonable person. Examples: serious assault or battery; presently witnessed adultery; unlawful restraint. At common law words alone were not enough, but many states no longer follow this.
b) the defendant was actually provoked,
c) defendant did not have time to cool off,
d) and defendant did not actually cool off between the provocation and the killing.
|**NY: Voluntary manslaughter and extreme emotional disturbance (EED)|| An intentional killing committed under the influence of a reasonable and extreme emotional disturbance. |
Affirmative defense: EED acts as an affirmative defense to second degree murder, which means the defendant must prove EED by a preponderance of the evidence.
|Common law involuntary manslaughter|| 1) A killing committed with criminal negligence OR|
2) a killing that was committed during a crime that does not qualify for felony murder.
|**Manslaughter in NY: First Degree|| 1) EED manslaughter;|
2) an intent to cause serious physical injury
|**Manslaughter in NY: Second Degree|| 1) Mental state of recklessness|
2) Defendant is aware of and consciously disregards a substantial and unjustifiable risk of death.
|**Criminally negligent homicide in NY|| 1) Mental state of criminal negligence|
2) The defendant should have been aware of a substantial and unjustifiable risk of death.
|**Aggravated homicide in NY|| 1) Aggravated homicide: when the victim of the homicide is a policy officer killed in the line of duty|
2) Aggravated murder: when the defendant, over the age of 18, causes the death of a child under 14 in an especially cruel and wanton manner.
|Common law false imprisonment|| 1) The unlawful |
2) Confinement of a person
3) Without his consent
The mental state required is GENERAL INTENT.
|**NY: Unlawful imprisonment in the Second Degree|| 1) Unlawfully|
2) Restraining someone
3) Without their consent, and
4) With knowledge that the restriction is unlawful
|**NY: Unlawful imprisonment in the First Degree||Second degree, plus a risk of serious physical injury|
|Common law kidnapping|| 1) False imprisonment|
2) that involves either moving the victim or concealing the victim in a secret place.
The mental state required is GENERAL INTENT
|**NY: Kidnapping in the second degree||Abducting someone|
|**NY: Kidnapping the first degree|| Second degree kidnapping, plus one of the following:|
1) Ransom, OR
2) Restraint of the victim for more than 12 hours with intent to rape, injure, or rob the victim, or
3) Death of the victim
|Kidnapping and Homicide in NY: Degrees|| 1) if victim is killed accidentally, second degree|
2) if victim is killed intentionally during a kidnapping of the first degree, first-degree murder
|Forcible Rape|| 1) Sexual intercourse|
2) without the victim's consent
3) accomplished either by force, or by threat of force, or when the victim is unconscious
This is a GENERAL INTENT crime
| Statutory Rape|
| 1) Sexual intercourse|
2) with someone under the age of consent
Majority rule: Mental state required is STRICT LIABILITY.
MPC/Minority Rule: A reasonable mistake of age is a defense.
**NY: Age of consent is 17, and D must be at least 21.
|Larceny||Trespassory taking and carrying away the tangible personal property of another, with the intent to permanently retain the property.|
Trespassory: wrongful or unlawful
Taking and carrying away: property must be moved
Tangible personal property of another: did someone else have the lawful custody at the time of the taking? If D has lawful custody, he cannot be guilty of larceny for taking it, but he can be guilty of larceny for taking his own property, if someone else had custody when D took it
Intent to permanently retain: if D intends to give it back, the taking is not larceny
|Erroneous Takings Rule||A taking under a claim of right is never larceny, even if the defendant erroneously believe the property is his.|
|Continuing trespass||If a defendant wrongfully takes property, but without the intent to steal, he will not be guilty of larceny. But, if the defendant later forms the intent to steal, the initial trespassory taking is considered to have "continued" and he will be guilty of larceny.|
|Embezzlement||Conversion of the personal property of another by a person already in lawful possession of that property, with the intent to defraud. The required mental state is SPECIFIC INTENT to defraud.|
|Larceny v. Embezzlement||D must already have lawful possession of the property before a taking can be considered embezzlement.|
|Possession v. Custody||Possession involves more than mere custody. It requires the authority to exercise some discretion over the property.|
|False pretenses|| Obtaining title to the personal property of another by an intentional false statement, with the intent to defraud. |
The false statement must be of a past or present nature.
|False pretenses v. larceny||In larceny, the defendant gets only custody of the property; in false pretenses, the defendant gets title, meaning ownership.|
|Larceny by trick||If the defendant obtains only custody, not title, as a result of an intentional false statement, the crime is larceny by trick, not false pretenses|
|Robbery|| 1) A larceny|
2) From another's person or presence
3) by force or threat of immediate injury.
This crime requires the mental state of SPECIFIC INTENT to steal
|Presence||Some location reasonably close to the victim|
|Force||Any amount of force sufficient to overcome resistance is sufficient|
|Threats|| Need immediate injury|
Under modern statutory law, an individual who obtains the property of another through oral or written threats of future harm does not commit robbery; he commits the crime of extortion, which is also called blackmail.
|Forgery|| 1) Making or altering a writing|
2) So that it is false
3) with the intent to defraud
|**NY: Larceny||Any crime that would be larceny, embezzlement, false pretenses, or larceny by trick at common law is considered larceny in NY.|
|**NY: Larceny degrees|| 1) First degree: more than $1 mil|
2) Second degree: more than $50,000
3) Third degree: more than $3,000
4) Fourth degree: more than $1,000
5) Petit larceny: lesser amounts
|**NY: Robbery in third degree||Forcible stealing|
|**NY: Robbery in the second degree|| Forcible stealing, plus one of:|
1) Defendant is aided by someone actually present
2) Victim is injury OR
3) A car is stolen
|**NY: Robbery in the first degree|| Forcible stealing, plus one of:|
1) The victim is seriously injured, OR
2) Defendant uses or displays a firearm
Affirmative defense: if the D can prove that the gun was unloaded or inoperable, the crime is reduced to second degree robbery.
|**NY: Robbery and homicide|| If the victim is killed accidentally: second-degree murder|
If the victim is killed intentionally: first-degree murder
|Possession|| When a statute criminalizes the possession of contraband, possession means: |
1) Control for a period of time long enough to have an
2) opportunity to terminate possession
The mental state required is KNOWLEDGE (of the possession and of the character the item possessed)
|Constructive possession||The contraband need not be in the defendant's actual possession, so long as it is close enough for him to exercise dominion and control over it.|
|**NY: Possession offenses||1) Drugs: criminal possession of a controlled substance|
2) Firearms: criminal possession of a weapon. The gun must be loaded and operable.
NB: The presence of a gun in a vehicle creates a presumption that all occupants of the vehicle possessed the gun.
3) Stolen property: Criminal possession of stolen property.
|Common law burglary||Breaking and entering the dwelling of another at night with the intent to commit a felony inside.|
|"Breaking"||Creating or enlarging an opening by at least minimal force. This includes breaking a window, opening a window, and opening a door, but does not include entering an already open window or door without permission.|
Breaking can be "constructive"; that is, entry may be gained through fraud, threats, or intimidation.
|"Entry"||Some part of the defendant's body must enter the building.|
|"Dwelling"||A structure where someone regularly sleeps|
|"Of Another"||You can't burglarize your own house|
|"intent to commit a felony inside"||You must have the specific intent to commit such a felony.|
|Modern burglary statutes||Many states have eliminated the technical requirements of common law burglary, particularly the breaking, at night, and dwelling elements|
|**NY: Burglary in third degree|| 1) Entering or remaining |
3) in a building
4) with the intent to commit a crime inside
|**NY: Burglary in the second degree|| Third degree burglary, plus one of the following:|
1) the building is a dwelling, or
2) a non-participant is injured, or
3) the defendant carries a weapon
|**NY: Burglary in the first degree|| The defendant knows that he is burglarizing a dwelling, plus one of the following:|
1) A non-participant is injured, or
2) The defendant carries a weapon
|The malicious burning of a building. The mental state is malice. Burning requires:|
1) Material wasting (scorching not enough) AND
2) It must be the building itself that burns (not just the carpet)
**NY: Fourth degree: Reckless burning of a building
Third degree: Intentional burning of a building
Second degree: Third degree arson, when the defendant knows or should have known that someone was inside the building
First degree: Second degree arson, plus an explosive or incendiary device
|Statutory developments||Olde tyme arson law limited arson to dwellings, and required that the defendant's own house not be the ignited building. This is no longer required.|
| Accomplice liability|
|The person who commits the crime is called the principal. The person who helps is called the accomplice, who|
1) aids or encourages the principal, with
2) the intent that the crime be committed.
**NY: In NY, the accomplice need not specifically intend that the crime be committed. It is enough if the accomplice specifically intends to aids the principal's conduct, and otherwise has the mental state required for the principal's crime. THIS MEANS IT IS POSSIBLE IN NY TO BE AN ACCOMPLICE TO A NEGLIGENCE OR RECKLESSNESS CRIME
|Accomplice Liability: Scope|| The accomplice is guilty of:|
1) all crimes that he aided or encouraged, and
2) all other foreseeable crimes committed along with the aided crime.
| When is a person not an accomplice?|
|1) Mere presence at the scene of the crime does not make someone an accomplice|
2) Mere knowledge of the crime does not make someone an accomplice; he must intend to aid or encourage the principal
**NY: NY requires intent for accomplice liability, but mere knowledge can make someone guilty of criminal facilitation.
3) Victims of a crime cannot be accomplices, since they are considered members of a protected class.
|Withdrawal from the crime||What happens to accomplices who change their minds depends on what they did:|
1) Encourager: An accomplice who only "encouraged" the principal may withdraw simply by discouraging the crime before it is committed.
2) Aider: An accomplice who actually helped the principal must either neutralize the assistance or prevent the crime from happening (including notifying authorities).
|**NY: Renunciation|| The accomplice must make a substantial effort to prevent the commission of the crime.|
In NY, renunciation is an affirmative defense, so the burden of proof is on the defendant.
| Accessory after the fact|
|Common law approach: to commit this separate common law offense, a D must: |
1) Help a principal who has committed a felony
2) with knowledge that the crime has been committed, and
3) with the intent to help the principal avoid arrest or conviction.
Modern statutes typically call this obstruction of justice, harboring a fugitive, (or **NY) hindering prosecution.
|Solicitation|| Asking someone to commit a crime, with the intent that the crime be committed.|
This is a SPECIFIC INTENT crime.
Completion of the criminal act is not necessary: the crime is in the asking.
|Conspiracy||(i) An agreement between two or more people to commit a crime, (ii) an intent to enter into the agreement, (iii) an intent to achieve the objective of the agreement, plus (iv) overt act in furtherance of the crime.|
The overt act may be any act, even if merely preparatory. Completion of the crime of conspiracy is unnecessary: the "essence" of the crime is the agreement.
This is a SPECIFIC INTENT crime: need SI to accomplish the conspiracy's objective.
| How many people need to conspire?|
|Common law: There must be at least two guilty minds, both of whom actually agree to accomplish the conspiracy's objectives. Relatedly, if all other parties to the agreement are acquitted, the last remaining defendant cannot be convicted. |
**NY: Under the majority/MPC rule followed by NY, a defendant may be guilty of conspiracy even if the other parties are acquitted or were just pretending to agree.
|Wharton Rule||When two or more people are necessary for the commission of the substantive offense, there is no conspiracy unless more parties participate in the agreement than are necessary for the crime.|
| Pinkerton liability|
|Common law: In addition to conspiracy, a defendant will be liable for other crimes committed by his co-conspirators, so long as those crimes were 1) in furtherance of the conspiracy's objective, and 2) were foreseeable.|
**NY: No vicarious liability for one who merely conspires and does not participate in a crime committed by a co-conspirator.
|Impossibility||Impossibility is never a defense to a charge of conspiracy.|
|Unlike conspiracy, attempt requires an overt act beyond mere preparation. At common law, conduct that gets very close to the commission of the crime is enough for attempt ("dangerous proximity" test)|
**NY: Conduct that constitutes a substantial step towards the commission of the crime, provided that conduct strongly corroborates the actor's criminal purpose.
Attempt requires the specific intent to commit the underlying crime. This means you cannot attempt unintentional crimes, since you cannot intend to do something unintentional.
Thus, there are no attempt versions of :
1) recklessness crimes
2) negligence crimes
|Factual: It is impossible to complete the crime because of some physical or factual condition unknown to the defendant. Factual impossibility is never a defense to attempt.|
Legal: It is impossible to complete the crime because of some legal circumstance or status that prevents the underlying crime from taking place. At common law, legal impossibility is a defense to attempt.
**NY: Legal impossibility is not a defense to attempt.
|Common law: Withdrawal is not a defense, EXCEPT that once D withdraws from a conspiracy he will no longer be vicariously liable for crimes committed by his co-conspirators after he left the conspiracy. However, D is still guilty of conspiracy and of all foreseeable cries committed by co-conspirators prior to his withdrawal.|
**NY: Withdrawal can be a defense, but only if 1) the D completely and voluntarily renounces the solicitation, conspiracy, or attempt, AND 2) the renunciation is based on a change of heart, not a fear of failing or being caught.
| Merger rules for inchoate offenses|
| Solicitation, conspiracy and attempt merge with the completed crime. |
**NY: Solicitation does not merge.
|The defendant must show that they have a mental disease or defect, using one of these tests:|
1) M'Naghten Test (majority): If the defendant either a) did not known that his act was wrong or b) did not understand the nature of his act.
2) Irresistible Impulse Test: If the defendant either a) was unable to control his actions or b) was unable to conform his conduct to the law.
3) MPC test (roughly 25% of states): If the defendant lacked the substantial capacity to either a) appreciate the criminality of his conduct, or b) conform his conduct to the requirements of law.
**4) NY: defendant must prove that he or she lacked the substantial capacity to either: a) understand the nature of his act, or b) appreciate the wrongfulness of his conduct
|Insanity v. Incompetency|| Insanity: the issue is whether D was insane at the time of the crime. If yes, then D is not guilty.|
Incapacity: The issue is whether D is insane at time of trial. If yes, then the trial is postponed until D is competent.
| Voluntary intoxication|
|1) Can be a defense to specific intent crimes only|
2) Cannot be a defense to malice, general intent, or strict liability crimes
3) The defense of intoxication requires such severe prostration of the faculties that the defendant cannot form the requisite specific intent
**NY: 1) Can be a defense to intent crimes and knowledge crimes, if the intoxication prevents teh defendant from forming the required state of mind.
2) Cannot be a defense to crimes of recklessness, negligence, or strict liability
|Rule of Sevens|
1) if at the time of crime the age is under 7, prosecution not allowed.
2) if at the time of crime the age is under 14, rebuttable presumption against prosecution
3) If at the time of crime the age is 14 or older, prosecution allowed.
1) If the age is under 13: prosecution as an adult is not allowed; only "juvenile delinquency" proceedings in Family Court
2)( If the age is 13, criminal prosecution as an adult allowed for second degree murder
3) If the age is 14 or 15, criminal prosecution as an adult allowed for serious crimes against persons or property
4) If the age is 16 or older, criminal prosecution as an adult is allowed for any crime.
|Mistake of Fact, common law||Whether a defendant's mistake of fact will be a defense depends upon the mental state for the crime and whether the mistake is reasonable or unreasonable. So if the mental state is:|
1) specific intent, then any mistake will be a defense
2) malice or general intent, then only a reasonable mistake will be a defense
3) Strict liability, then mistake will never be a defense.
Hence, a reasoanble mistake will be a defense to any crime, except a crime of strict liability. An unreasoanble mistake will be a defense only to specific intent crimes.
The only defenses against SI crimes are voluntary intoxication and unreasonable mistake.
|**Mistake of Fact, NY||A mistake of fact will be a defense if the mistake negates the required mental state. This means that |
1) for crimes of purpose, knowledge or recklessness, any mistake of fact is usually a defense
2) for crimes of negligence, only a reasonable mistake will be a defense.
3) for strict liability crimes, a mistake of fact will never be a defense, no matter how reasonable it is
|Mistake of Law||Mistake of law is generally not a defense. However, if a statutes specifically makes knowledge of the law an element of the crime, then it can be used as a defense.|
|Self-defense: deadly v. nondeadly force|| Nondeadly force: shoves and punches|
Deadly force: guns and knives
|Use of nondeadly force|| A defendant may use nondeadly force in self defense if it is |
1) Reasonably necessary
2) to protect against an immediate use
3) of unlawful force against himself.
|Use of deadly force||A defendant may use deadly force in self-defense, if he is facing an imminent threat of death or serious bodily injury.|
| Initial Aggressor Rule|
|A defendant may not use deadly force if he is the initial aggressor. But, the initial aggressor can regain the right to use deadly force in self-defense if:|
1) he withdraws from the fight and communicates that withdrawal to the other person, OR
2) the victim suddenly escalates the nondeadly fight into a deadly one
**NY: the initial aggressor must withdraw before resorting to deadly self-defense, even if the other party suddenly escalates a nondeadly fight into a deadly fight.
| Retreat Rule|
| Majority: Retreat not required.|
**NY/minority rule: Retreat is required, unless
1) D cannot retreat in complete safety, or
2) D is in his home (the "castle exception")
|Reasonableness and mistake|| 1) Reasonable mistake is a complete defense.|
2) Unreasonable mistake: **NY and common law no defense; minority/MPC rule mitigates liability. Therefore, an unreasonable belief in the need to use deadly force in self defense will mitigate murder to voluntary manslaughter.
|Use of force to prevent a crime|| 1) Nondeadly force may be used if necessary to prevent any crime. |
2) Deadly force may only be used to prevent a felony risking human life.
|Defense of others||D may use force and deadly force to protect others just the same as he could use it to defend himself.|
|Defense of property|| 1) Generally, deadly force may not be used to defend property.|
2) Deadly force may be used to prevent a burglary, if the defendant is inside his or her home.
| Resisting arrest|
|If the defendant knows or reasonably should know that the person performing the arrest is a police officer, by majority rules, if the arrest is unlawful then the defendant may use nondeadly weapons to resist the arresting officer.|
**NY:Force may not be used to resist an arrest, even an unlawful one, unless the arresting officer uses excessive force.
|Use of Deadly Force by Law Enforcement.||An officer may use deadly force only when doing so is reasonable under the circumstances.|
| It is a defense to the criminal conduct if the defendant reasonably believed that his conduct was necessary to prevent a greater harm, EXCEPT that necessity cannot be a defense to homicide.|
**NY: 1) The harm avoided must be greater than the harm caused
2) Necessity can be a defense to homicide.
| It is a defense if the defendant was forced to commit a crime because of a threat, from another person, of imminent death or serious bodily injury to himself or to a close family member. Duress cannot be a defense to homicide.|
**NY: Duress can be a defense to homicide.
|Entrapment|| If the government unfairly tempted the defendant to commit the crime, he may claim entrapment. But this only works if:|
1) the criminal designed originated with the government, and
2) the defendant was not predisposed to commit the crime.