Presentation Transcript

1. THE CRIMINAL LAW SET-UP

   CHARGING THE DEFENDANTS WITH CRIMINAL OFFENSES
2. 1. Based on these facts is there anything Mike Delta and Alfred Camp can be charged with? On September 6, 2011, at approximately 12:30 AM, Police Officers Frank Able and Officer Sal Baker were on road patrol in Queens, when a young woman, Patty (complainant) approached their car. She told them that two men forced their way into her apartment where they beat her and robbed at gun point.
3. 2. Based on these facts is there anything Mike Delta and Alfred Camp can be charged with? Officer Able frisked Mike Delta and discovered that he was wearing an empty shoulder holster... Officer Able asked him where the gun was. Mike Delta nodded in the direction of some empty cartons and responded, “the gun is over there.” Officer Able then went to the boxes and seized a loaded Glock 26 handgun.
4. 3. Based on these facts, is there anything else that the defendants can be charged with? Officers Able and Baker went up to the car and noticed Alfred Camp with a red coat on. They told him to exit the car. While he was exiting, Camp was able to slip out of the coat and the coat remained on the front driver’s seat. ... He reached into the pocket of the coat and removed the gun, a RugerLCP.
5. 4. Based on these facts is there anything Mike Delta and Alfred Camp can be charged with? Officer Camp then went back into the car [of Albert Camp] to look for contraband from the robbery. Under the back seat they found a zippered black bag. They opened it and found women’s jewelry. She was then shown the jewelry found in the car. She said that it belonged to her and jewelry taken from her without her permission.
6. 5. Based on these facts is there anything Mike Delta and Alfred Camp can be charged with? [The officers] opened the glove compartment [of Camp’s car] and ... took the bag out of the and it felt heavy and the shape of what was in the bag was clearly a gun. When he went into the bag, he found the gun and an ounce of cocaine.
7. 6. Based on these facts is there anything Mike Delta and Alfred Camp can be charged with? The physician stated that the complainant had a broken finger on her right hand. They saw that her right eye was swollen shut and black and blue. She was prescribed pain killers.
8. 7. Based on these facts is there anything Mike Delta and Alfred Camp can be charged with? When they looked into the bathroom, they discovered a scale with a white powdery substance. They seized the scale and the white powdery substance.
9. 8. Based on these facts is there anything Mike Delta and Alfred Camp can be charged with? In the second bedroom, they found jewelry. When they showed her jewelry from the bedroom, she stated that the watch was hers, but not the rest of the jewelry

10. THE BASICS

    CRIMINAL LAW
11. The Basics In order to determine which specific crimes anyone can be charged with and in particular which degree, the conduct must match the conduct that is in the criminal statutes. Act committed must be the same as criminal offense in statute (as interpreted by the courts)
12. Formula For Harm The standard formula for criminal offenses where a specific harm is required is: a culpable mental state manifested in an act that causes the prescribed harm. Examples of this type of crime are assault and murder.
13. Formula for Conduct The standard formula for criminal offenses where specific conduct is required is: a culpable mental state that is manifested in a prescribed act. Examples of this type of crime are criminal sale of a controlled substance and criminal possession of stolen property.
14. “CRIMINAL CONDUCT” Criminal conduct requires an act or omission along with the statutorily mandated accompanying culpable mental state (Penal Law § 15.00 [4]). ACT or OMISSION + CULPABLE MENTAL STATE CRIMINAL CONDUCT
15. ACT Some kind of bodily movement (Penal Law § 15.00 [1]). Must be done voluntarily, i.e., done consciously as a result of effort or determination (Penal Law § 15.00 [2]).
16. OMISSION An omission is a failure to perform an act when there is a legal duty of performance (Penal Law § 15.00 [3]). The law imposes a duty to act Defendant fails to act
17. CULPABLE MENTAL STATE Criminal offenses require a culpable mental state. mensrea = “guilty mind.” Almost all offenses require a culpable mental state (CMS). The few that don’t require a CMS are called strict liability offenses.
18. CULPABLE MENTAL STATE A culpable mental state means one of four mental states: intentionally; knowingly; recklessly; or with criminal negligence (Penal Law § 15.00 [6]).
19. Intentionally A person acts intentionally with respect to a result (harm) or to conduct (act) described by the statute defining an offense when his or her conscious objective is to cause that result or to engage in that conduct.
20. Knowingly A person acts knowingly when s/he is aware that his or her conduct is of such nature or that such circumstance exists.
21. Recklessly A person acts recklessly when s/he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists.
22. Recklessly The risk must constitute a gross deviation from the standard of conduct that a reasonable person would observe in the situation.
23. Recklessly A person who creates such a risk but is unaware of it solely by reason of voluntary intoxication acts recklessly.
24. Criminal Negligence A person acts with criminal negligence when she or he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be a gross deviation from the standard of care that a reasonable person would observe in the situation.

25. Which mental state applies to a particular offense?

    APPLICATION
26. Look at the Criminal Offense “intentionally” or “intent to cause physical injury” “with intent to defraud”
27. Look at the Criminal Offense “knowingly,” or “knowing it to be false”
28. Look at the Criminal Offense The culpable mental state will apply to all elements, unless the statute states otherwise.
29. Look at the Criminal Offense CPCS-5 (§220.02): Possession of a narcotic preparation where the aggregate weight is one-half ounce or more Defendant must know that she is possessing the narcotic substance
30. EXAMPLE: Assault in the Third Degree (Penal Law § 120.00) With intent to cause physical injury to another person, he causes such injury to such person or to a third person; He recklessly causes physical injury to another person; or With criminal negligence, he causes physical injury to another person by means of a deadly weapon or a dangerous instrument.
31. EXAMPLE: Assault in the Third Degree (Penal Law § 120.00) With intent to cause physical injury to another person, he causes such injury to such person or to a third person; He recklessly causes physical injury to another person; or With criminal negligence, he causes physical injury to another person by means of a deadly weapon or a dangerous instrument.
32. EXAMPLE: Assault in the Third Degree (Penal Law § 120.00) With intent to cause physical injury to another person, he causes such injury to such person or to a third person; He recklessly causes physical injury to another person; or With criminal negligence, he causes physical injury to another person by means of a deadly weapon or a dangerous instrument.
33. EXAMPLE: Assault in the Third Degree (Penal Law § 120.00) With intent to cause physical injury to another person, he causes such injury to such person or to a third person; He recklessly causes physical injury to another person; or With criminal negligence, he causes physical injury to another person by means of a deadly weapon or a dangerous instrument.
34. PROVING A MENTAL STATE A jury is required to look at the act and see if that shows the defendant’s state of mind. In other words, what mental state is manifested in that act.
35. PROVING A MENTAL STATE For example, if a defendant is in an argument with another person and the defendant throws a punch, you are likely to think that the defendant intended to hit the person. If the defendant throws a hard punch, then it is likely that the defendant intended to cause physical injury.
36. NO MENTAL STATE IN STATUTE? If there is a legislative intent to impose strict liability, then there is no mental state. This is a strict liability offense. If a person does an act, it doesn’t matter what was on their mind ACT = CRIME EXAMPLE: Statutory Rape
37. ACT Besides a culpable mental state, criminal offenses require some type of act. Under criminal law, the defendant is required to do something.
38. ACT 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).
39. WHAT IS THE ACT? Criminal Possession of a Controlled Substance in the Seventh Degree (Penal Law § 220.03) 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.
40. WHAT IS THE ACT? Sexual Misconduct (Penal Law § 130.20) A person is guilty of sexual misconduct when: He or she engages in sexual intercourse with another person without such person’s consent; or He or she engages in oral sexual conduct or anal sexual conduct with another person without such person’s consent; or He or she engages in sexual conduct with an animal or a dead human body.
41. WHAT IS THE ACT? Sexual Misconduct (Penal Law § 130.20) A person is guilty of sexual misconduct when: He or she engages in sexual intercourse with another person without such person’s consent; or He or she engages in oral sexual conduct or anal sexual conduct with another person without such person’s consent; or He or she engages in sexual conduct with an animal or a dead human body.
42. ACTS IN SEXUAL MISCONDUCT sexual intercourse oral sexual conduct or anal sexual conduct sexual conduct with an animal or a dead human body.
43. Definitions “Sexual intercourse” has its ordinary meaning and occurs upon any penetration, however slight.
44. Definitions “Oral sexual conduct” means conduct between persons consisting of contact between: the mouth and the penis, the mouth and the anus, or the mouth and the vulva or vagina.
45. Definitions “Anal sexual conduct” means conduct between persons consisting of contact between the penis and anus.
46. Definitions “sexual contact” touching of sexual or intimate parts of the body for the purpose of gratifying sexual desire. Sexual or intimate parts? We have to go to case law.
47. 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).
48. What is the harm? Assault in the Third Degree (Penal Law § 120.00 [1]): With intent to cause physical injury to another person, he causes such injury to such person or to a third person (Penal Law § 120.00 [1])
49. What is the Harm? Burglary in the First Degree (Penal Law § 140.30 [2]): he 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
50. What is the Harm? Aggravated Manslaughter in the Second Degree (Penal Law § 125.21): 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
51. HARM AND ACT There are certain statutes that require both a harm done by a specific act.
52. WHAT IS THE HARM AND ACT? Assault in the First Degree (Penal Law § 120.10): 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 § 120.10)

53. BREAKING INTO ELEMENTS

    Step by step
54. 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.
55. A METHOD Get the offense find the key words in that offense get additional law that defines any legal key words apply the facts, if any put it in a logical order use complete sentences apply the facts to the elements
56. (1) GET THE OFFENSE Criminal Possession of a Controlled Substance in the Seventh Degree (Penal Law § 220.03) 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
57. A METHOD Get the offense find the key words in that offense get additional law that defines any legal key words apply the facts, if any put it in a logical order use complete sentences apply the facts to the elements
58. (2) KEY WORDS Criminal Possession of a Controlled Substance in the Seventh Degree (Penal Law § 220.03) A person is guilty of criminal possession of a controlled substance in the seventh degree when s/he (1) knowingly and (2) unlawfully (3) possesses a (4) controlled substance
59. (2) KEY WORDS knowingly unlawfully possesses controlled substance
60. (3) DEFINE KEY WORDS Knowingly: STATUTE: Penal Law § 15.05 (2). 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. CASE LAW: “[P]ossession suffices to permit the inference that the possessor know what he [or she] possesses, especially, but not exclusively, if it is in his [or her] hands, on his [or her] person, in his [or her] vehicle, or on his [or her] premises” (People v Reisman, 29 NY2d 278; People v Kirpatrick, 32 NY2d 17).
61. (3) DEFINE KEY WORDS Knowingly: Unlawfully: STATUTE: Penal Law § 220.00 (2). “Unlawfully” means in violation of article thirty- three of the public health law. STATUTE: Public Health Law § 3304 (1) makes it unlawful for a person to possess a controlled substance unless they have a prescription or are a certain type of person (e.g., doctor or pharmacist). It should be noted that this appears to be more of a defense that the defendant has to prove.
62. (3) DEFINE KEY WORDS Knowingly: unlawfully Possesses STATUTE: Penal Law § 10.00 (8). “Possess” means to have physical possession or otherwise to exercise dominion or control over tangible property.
63. (3) DEFINE KEY WORDS Knowingly: unlawfully possesses controlled substance STATUTE: Penal Law § 220.00 (5). “Controlled substance” means any substance listed in Public Health Law § 3306, Schedule I, II, III, IV or V (except marijuana)
64. (4) APPLY FACTS HERE ARE THE FACTS Angel was caught having a glassine envelop of cocaine in his hands.
65. (5) Put it in a logical order Think about how you would see it if you walked into a room where Angel was holding a glassine envelop of cocaine. First, if you look at Angel the first thing you would notice is that she is possessing something. Next, you would go over to Angel and look at what she possessed and notice that it was a controlled substance. Next, you would analyze the situation and determine by the way she possessed it whether she knew that she was possessing a controlled substance. Finally, you would find out about Angel to determine whether she was a person who could lawfully possess a controlled substance.
66. (5) Put it in a logical order First, if you look at Angel the first thing you would notice is that she is possessing something. POSSESSION Next, you would go over to Angel and look at what she possessed and notice that it was a controlled substance. CONTROLLED SUBSTANCE.
67. (5) Put it in a logical order Next, you would analyze the situation and determine by the way she possessed it whether she knew that she was possessing a controlled substance. KNOWINGLY Finally, you would find out about Angel to determine whether she was a person who could lawfully possess a controlled substance. UNLAWFULLY
68. (5) Put it in a logical order POSSESSION CONTROLLED SUBSTANCE KNOWINGLY UNLAWFULLY
69. (6) Use Complete Sentences POSSESSION: CONTROLLED SUBSTANCE: KNOWINGLY: UNLAWFULLY:
70. (6) Use Complete Sentences POSSESSION: The defendant possessed something CONTROLLED SUBSTANCE: The defendant possessed was a controlled substance KNOWINGLY: The defendant knowingly possessed the controlled substance UNLAWFULLY: The defendant was not lawfully allowed to possess the controlled substance
71. (7) APPLY FACTS
72. Drafting of the Accusatory Instrument In order to commence a criminal action, the prosecutor must file with the court an accusatory instrument. The accusatory contains, among other things, the criminal offenses the defendant is being charged with and the facts to support those charges. This task is performed in the complaint room where the arresting officer or the complainant
73. Motion to Dismiss MOTION: In order to do this, the defense counsel will look at the accusations and the facts to support those allegations to determine whether the factual part supports the accusatory part. If the facts are insufficient, defense counsel will make a motion to dismiss on the ground of facial insufficiency.
74. Motion to Dismiss ANSWER: Once the People are served with this motion, they will prepare an answer. In order to do this, they will also look at the factual part to determine whether the facts sufficiently support the accusatory part.
75. Preparation for Trial. The People’s burden at trial is to prove — beyond a reasonable doubt — every element of each offense charged. This requires them to look at each criminal offense charged and determine what the facts are to support the elements. Once they have completed this task, the trial prosecutor will then have to determine which witness will be able to testify to satisfy that element.
76. Preparation for Trial. Defense attorney’s preparation for trial is a little different. They have no burden to prove any element. Their task is to raise a reasonable doubt to at least one element of each offense charged.

77. skills

78. Drafting of the Accusatory Instrument what bad acts constitute criminal acts; what criminal acts constitute criminal offenses; what the elements for the basic offense in that category of criminal offenses are; what facts there are to support those elements; whether there are any additional facts that would elevate the offense.
79. FACTS John was walking down the street on his iPhone when all of a sudden he was attacked by Jane who punched him in his face. While he was stunned, Jane grabbed the iPhone and ran away. An undercover police officer saw this happen from a block away. He chased Jane and with the help of another officer, caught her three blocks away. When they arrested her, they frisk her and found an iPhone and a firearm on her.
80. FACTS When the police turned on the iPhone, it showed a picture of John and someone else. John was then found a block away. His nose was bleeding and it appeared to be broken. John identified the iPhone as his own. When the police asked him what happened, John told the officer that he was walking down the street listening to some songs. All of a sudden he was hit by someone he had never seen before that day and before he knew it, he had his iPhone taken from his pocket. The officer asked him if she ever showed him a gun or told him that she had a gun. John told him “no” to both.
81. What are the Bad Acts in these Facts? What are the bad acts in this story? “[H]e was attacked by Jane who punched him in his face.” “Jane grabbed the iPhone and ran away” … “found an iPhone ... on her” “… found a firearm on her”
82. What are the Criminal Acts are these Bad Acts?
83. What Criminal Offenses the Criminal Acts Constitute?
84. BASIC CRIMINAL OFFENSES
85. ELEMENTS FOR THE CRIMINAL OFFENSES
86. ELEMENTS FOR THE CRIMINAL OFFENSES
87. ELEMENTS FOR THE CRIMINAL OFFENSES
88. ELEMENTS FOR THE CRIMINAL OFFENSES
89. ELEMENTS FOR THE CRIMINAL OFFENSES
90. FACTS TO SUPPORT THE ELEMENTS
91. FACTS TO SUPPORT THE ELEMENTS
92. FACTS TO SUPPORT THE ELEMENTS
93. FACTS TO SUPPORT THE ELEMENTS
94. FACTS TO SUPPORT THE ELEMENTS
95. ELEVATORS: What are the elevators for each offense?
96. ELEVATORS: What are the elevators for each offense?
97. ELEVATORS: What are the elevators for each offense?
98. (2) ELEVATORS: Are there any facts to support any elevator?
99. (2) ELEVATORS: Are there any facts to support any elevator?
100. (2) ELEVATORS: Are there any facts to support any elevator?
101. (2) ELEVATORS: Are there any facts to support any elevator?
102. (2) ELEVATORS: Are there any facts to support any elevator?
103. NO ELEVATORS
104. THERE ARE ELEVATORS
105. Therefore… Jane can be charged with: Assault in the Second Degree (Penal Law § 120.05 [2]) (if it is a serious physical injury); Assault in the Third Degree (Penal Law § 120.00 [1]); Petit Larceny (Penal Law § 155.25); Robbery in the Third Degree (Penal Law § 160.05); …
106. Therefore… … Jane can be charged with: Criminal Possession of Stolen Property in the Fifth Degree (Penal Law § 165.05); Criminal Possession of a Weapon in the Second degree (Penal Law § 265.03 [3]) (if the gun was loaded); and Criminal Possession of a Weapon in the Fourth degree (Penal Law § 265.01 [1]).
107. Drafting of the Accusatory Instrument what bad acts constitute criminal acts; what criminal acts constitute criminal offenses; what the elements for the basic offense in that category of criminal offenses are; what facts there are to support those elements; whether there are any additional facts that would elevate the offense.
108. How Do We Know Which Bad Acts are Possible Criminal Acts?
109. How Do We Know Which Bad Acts are Possible Criminal Acts?
110. How Do We Know Which Bad Acts are Possible Criminal Acts?
111. How Do We Know Which Bad Acts are Possible Criminal Acts?
112. Motion to Dismiss Defense Motion: There is an accusatory instrument that lists the criminal offenses. Task: look up the offense, break it into elements, and see if there are facts in the accusatory instrument to support the elements.
113. Motion to Dismiss People’s Answer: There is an accusatory instrument that lists the criminal offenses. Task: look up the offense, break it into elements, and see if there are facts in the accusatory instrument to support the elements.
114. Preparation for Trial The People’s burden at trial is to prove — beyond a reasonable doubt — every element of each offense charged.
115. Preparation for Trial TASK: This requires them to: look at each criminal offense charged and determine what the facts are to support the elements determine which witness will be able to testify to satisfy that element
116. APPLICATION (Fact review [1]) John was walking down the street on his iPhone when all of a sudden he was attacked by Jane who punched him in his face. While he was stunned, Jane grabbed the iPhone and ran away. An undercover police officer saw this happen from a block away. He chased Jane and with the help of another officer, caught her three blocks away. When they arrested her, they frisk her and found an iPhone and a firearm on her. When the police turned on the iPhone, it showed a picture of John and someone else.
117. APPLICATION (Fact review [2]) John was then found a block away. His nose was bleeding and it appeared to be broken. John identified the iPhone as his own. When the police asked him what happened, John told the officer that he was walking down the street listening to some songs. All of a sudden he was hit by someone he had never seen before that day and before he knew it, he had his iPhone taken from his pocket. The officer asked him if she ever showed him a gun or told him that she had a gun. John told him “no” to both.
118. Application
119. Application
120. Application
121. Application
122. Application
123. BASIC OFFENSES, ELEMENTS AND ELEVATORS Assault Homicide Sexual Assaults Kidnapping Burglary Larceny Robbery Controlled Substances Weapons
124. ASSAULT
125. HOMICIDE (INTENTIONAL)
126. SEXUAL ASSAULTS (1)
127. SEXUAL ASSAULTS (2)
128. SEXUAL ASSAULTS (3)
129. BURGLARY
130. LARCENY
131. ROBBERY
132. CONTROLLED SUBSTANCE (POSSESSION)
133. CONTROLLED SUBSTANCE (SALE)
134. CRIMINAL POSSESSION OF A WEAPON

135. THE ASSIGNMENT

     TIME TO GET TO WORK
136. ASSIGNMENT You are all paralegals working in the District Attorney’s Office Work in Groups The Assistant you are assigned to wants the following:
137. WHAT THE ASSISTANT WANTS What are the criminal offenses that Delta and Camp can be charged with? What are the elements for each offense? What are the facts to support those elements? What witnesses can be used to prove those facts? If there are missing facts, what additional information is needed to support those elements?
138. HOW WILL WE DO THAT? MAKE A CHART! If there is additional information needed, make a list of questions for your attorney (an ADA) to ask to get that additional information.