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 Ruger LCP.

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]). ① The law imposes a duty to act ② Defendant fails to act

17. CULPABLE MENTAL STATE Criminal offenses require a culpable mental state. mens rea = “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: ① intentionally; ② knowingly; ③ recklessly; or ④ 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) 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; or 3.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) 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; or 3.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) 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; or 3.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) 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; or 3.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: 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.

41. WHAT IS THE ACT? Sexual Misconduct (Penal Law § 130.20) 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.

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 ① Get the offense ② find the key words in that offense ③ get additional law that defines any legal key words ④ apply the facts, if any ⑤ put it in a logical order ⑥ use complete sentences ⑦ 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 ① Get the offense ② find the key words in that offense ③ get additional law that defines any legal key words ④ apply the facts, if any ⑤ put it in a logical order ⑥ use complete sentences ⑦ 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 ① knowingly ② unlawfully ③ possesses ④ controlled substance

60. (3) DEFINE KEY WORDS ① 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 ① Knowingly: ② 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 ① Knowingly: ② unlawfully ③ 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 ① Knowingly: ② unlawfully ③ possesses ④ 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 ① First, if you look at Angel the first thing you would notice is that she is possessing something. POSSESSION ② 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 ③ 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 ④ 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 ① POSSESSION ② CONTROLLED SUBSTANCE ③ KNOWINGLY ④ 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 ELEMENTSFACTS The defendant possessed something Angel has a glassine envelop in her hands. The defendant possessed was a controlled substance The envelop contained cocaine, a controlled substance. The defendant knowingly possessed the controlled substance The fact that she had it in her hands allows us to infer that she knowing possessed it. The defendant was not lawfully allowed to possess the controlled substance Unless Angel can prove that she was allowed under the law to possess it (e.g., she has a prescription or is a doctor or pharmacist) is proven.

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 ① what bad acts constitute criminal acts; ② what criminal acts constitute criminal offenses; ③ what the elements for the basic offense in that category of criminal offenses are; ④ what facts there are to support those elements; ⑤ 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? BAD ACTSCRIMINAL ACTS “[H]e was attacked by Jane who punched him in his face. Attack “Jane grabbed the iPhone and ran away” Stealing with force “… found an iPhone... on her” Possession of what is not hers “… found a firearm on her”Possession of a weapon

83. What Criminal Offenses the Criminal Acts Constitute? BAD ACTSCRIMINAL ACTSCRIMINAL OFFENSES “[H]e was attacked by Jane who punched him in his face. AttackAssault “Jane grabbed the iPhone and ran away” Stealing with forceLarceny Robbery “… found an iPhone... on her” Possession of what is not her’s Crim Poss of Stolen Property “… found a firearm on her” Possession of a weapon Crim Poss of a Weapon

84. BASIC CRIMINAL OFFENSES CRIMINAL OFFENSEBASIC CRIMINAL OFFENSE AssaultAssault in the Third Degree LarcenyPetit Larceny RobberyRobbery in the Third Degree Criminal Possession of Stolen Property Criminal Possession of Stolen Property in the Fifth Degree Criminal Possession of a Weapon Criminal Possession of a Weapon in the Fourth Degree

85. ELEMENTS FOR THE CRIMINAL OFFENSES CRIMINAL OFFENSEELEMENTS Assault in the Third Degree (1) Defendant causes physical injury (2) Intent to cause physical injury

86. ELEMENTS FOR THE CRIMINAL OFFENSES CRIMINAL OFFENSEELEMENTS Petit Larceny(1) Defendant wrongfully took property (2) Intent to cause deprive another of the property or to appropriate the property for another

87. ELEMENTS FOR THE CRIMINAL OFFENSES CRIMINAL OFFENSEELEMENTS Robbery in the third degree (1) Defendant forcibly stole property (2) Intent to cause deprive another of the property or to appropriate the property for another

88. ELEMENTS FOR THE CRIMINAL OFFENSES CRIMINAL OFFENSEELEMENTS Criminal Possession of Stolen Property (1) Defendant possessed stolen property (2) defendant did so with the intent to benefit himself/herself or a person other than an owner of such property or to impede the recovery of such property by an owner.

89. ELEMENTS FOR THE CRIMINAL OFFENSES CRIMINAL OFFENSEELEMENTS Criminal Possession of a Weapon (1) Defendant possessed a firearm, knife, dangerous or deadly weapon (2) defendant did so knowingly (3) The firearm was operable

90. FACTS TO SUPPORT THE ELEMENTS CRIMINAL OFFENSEELEMENTS FACTS TO SUPPORT ELEMENTS Assault in the Third Degree (1) Defendant causes physical injury Jane who punched him in his face causing him a bloody, and possibly broken nose (impairment) (2) Intent to cause physical injury Jane who punched him in his face: This is clearly an intentional act.

91. FACTS TO SUPPORT THE ELEMENTS CRIMINAL OFFENSEELEMENTS FACTS TO SUPPORT ELEMENTS Petit Larceny (1) Defendant wrongfully took property Jane grabbed the iPhone (2) Intent to cause deprive another of the property or to appropriate the property for another Jane grabbed the iPhone and ran away. The act of grabbing it and running away clearly shows that she intended to deprive him of his iPhone

92. FACTS TO SUPPORT THE ELEMENTS CRIMINAL OFFENSE ELEMENTSFACTS TO SUPPORT ELEMENTS Robbery in the third degree (1) Defendant forcibly stole property Jane who punched him in his face and grabbed the iPhone. (2) Intent to cause deprive another of the property or to appropriate the property for another Jane grabbed the iPhone and ran away. The act of grabbing it and running away clearly shows that she intended to deprive him of his iPhone

93. FACTS TO SUPPORT THE ELEMENTS CRIMINAL OFFENSEELEMENTS FACTS TO SUPPORT ELEMENTS Criminal Possession of Stolen Property (1) Defendant possessed stolen property The iPhone was in her pocket after she took it. (2) defendant did so with the intent to benefit himself/herself or a person other than an owner of such property or to impede the recovery of such property by an owner. Jane grabbed the iPhone and ran away. The act of grabbing it and running away clearly shows that she intended to deprive him of his iPhone

94. FACTS TO SUPPORT THE ELEMENTS CRIMINAL OFFENSE ELEMENTSFACTS TO SUPPORT ELEMENTS Criminal Possession of a Weapon (1) Defendant possessed a firearm, knife, dangerous or deadly weapon Jane had a handgun in her pocket (2) defendant did so knowingly Since it was in her pocket, it is clear that she knew she had it (3) The firearm was operable Testing will have to be done

95. ELEVATORS: What are the elevators for each offense? CRIM OFFELEVATORS Assault If defendant used a weapon or dangerous instrument If physical injury is a serious physical injury If the intent was to cause a serious physical injury If intended victim was a police officer Combination of above Larceny If value of property is over $250, $1000, $3000, $5000, $1 million The type of property (e.g., credit cards, vehicle, secret scientific material If the property is seized through extortion

96. ELEVATORS: What are the elevators for each offense? CRIM OFFELEVATORS Robbery If aided by another person If defendant causes physical injury or serious physical injury If defendant displays firearm or deadly weapon or threatens use If property is a vehicle Criminal Possession of Stolen Property If Motor Vehicle’s value is over $100 If Value of the property is over $1,000, $3,000, $50,000 or $1,000,000 If Property is Credit Card, Debit Card, or Public Benefit Card If Property is Firearms, Rifles, Shotguns

97. ELEVATORS: What are the elevators for each offense? CRIM OFFELEVATORS Criminal Possession of a Weapon If there is a previous conviction if possession of loaded pistol or revolver is outside of the home or place of business if the weapon is a certain type of weapon (e.g., bomb, silencer, disguised gun, assault weapon) if intent is to use it unlawfully if the weapon is defaced if possession is three or more firearms, five or more firearms, or ten or more firearms a combination of the above

98. (2) ELEVATORS: Are there any facts to support any elevator? CRIM OFFELEVATORSFACTS Assault If defendant used a weapon or dangerous instrument If physical injury is a serious physical injury If the intent was to cause a serious physical injury If intended victim was a police officer Combination of above Is the injury to the nose a serious physical injury? Need a medical report.

99. (2) ELEVATORS: Are there any facts to support any elevator? CRIM OFFELEVATORSFACTS Larceny If value of property is over $250, $1000, $3000, $5000, $1 million The type of property (e.g., credit cards, vehicle, secret scientific material If the property is seized through extortion NOTHING

100. (2) ELEVATORS: Are there any facts to support any elevator? CRIM OFFELEVATORSFACTS Robbery If aided by another person If defendant causes physical injury or serious physical injury If defendant displays firearm or deadly weapon or threatens use If property is a vehicle NOTHING

101. (2) ELEVATORS: Are there any facts to support any elevator? CRIM OFFELEVATORSFACTS Criminal Possession of Stolen Property If Motor Vehicle’s value is over $100 If Value of the property is over $1,000, $3,000, $50,000 or $1,000,000 If Property is Credit Card, Debit Card, or Public Benefit Card If Property is Firearms, Rifles, Shotguns NOTHING

102. (2) ELEVATORS: Are there any facts to support any elevator? CRIM OFFELEVATORSFACTS Criminal Possession of a Weapon If there is a previous conviction if possession of loaded pistol or revolver is outside of the home or place of business if the weapon is a certain type of weapon (e.g., bomb, silencer, disguised gun, assault weapon) if intent is to use it unlawfully if the weapon is defaced if possession is three or more firearms, five or more firearms, or ten or more firearms a combination of the above If the firearm is loaded, then since the firearm was found on her person and she was on the street, it was outside of her home and place of business.

103. NO ELEVATORS CRIMINAL OFFENSEBASE OFFENSE Larceny Petit Larceny (Penal Law § 155.25) Robbery Robbery in the Third Degree (Penal Law § 160.05) Criminal Possession Criminal Possession of Stolen Property in the Fifth Degree (Penal Law § 165.05)

104. THERE ARE ELEVATORS CRIM OFFBASE OFFENSE POSSIBLE ELEVATED OFFENSE Assault Assault in the Third Degree (Penal Law § 120.00 [1]) If it is a serious physical injury: Assault in the Second Degree (Penal Law § 120.05 [2]) Criminal Possession of a Weapon Criminal Possession of a Weapon in the Fourth Degree (Penal Law § 265.01 [1]) If it is loaded: Criminal Possession of a Weapon in the Second degree (Penal Law § 265.03 [3])

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 ① what bad acts constitute criminal acts; ② what criminal acts constitute criminal offenses; ③ what the elements for the basic offense in that category of criminal offenses are; ④ what facts there are to support those elements; ⑤ whether there are any additional facts that would elevate the offense.

108. How Do We Know Which Bad Acts are Possible Criminal Acts? BAD ACTSPOSSIBLE CRIMINAL ACTS BASE CRIME Hitting someone AssaultAssault in the Third Degree (Penal Law § 120.00) Killing someone HomicideMurder in the Second Degree (Penal Law § 125.25) Killing someone with a gun HomicideMurder in the Second Degree (Penal Law § 125.25) Possession of a Firearm Criminal Possession of a Weapon in the Fourth degree (Penal Law § 265.01 [1])

109. How Do We Know Which Bad Acts are Possible Criminal Acts? BAD ACTSPOSSIBLE CRIMINAL ACTS BASE CRIME StealingLarcenyPetit Larceny (Penal Law § 155.25) Robbery (if with force) Robbery in the Third Degree (Penal Law § 160.05) Going into someone’s home TrespassCriminal Trespass in the Second Degree (Penal Law § 140.20) Going into someone’s home with intent to commit a crime BurglaryBurglary in the Third Degree (Penal Law § 140.20)

110. How Do We Know Which Bad Acts are Possible Criminal Acts? BAD ACTSPOSSIBLE CRIMINAL ACTS BASE CRIME Sexual Assault if the sexual assault involves sexual intercourse: Rape or Sexual Misconduct Rape in the Third Degree (Penal Law § 130.25) Sexual Misconduct (Penal Law § 130.20) if the sexual assault involves anal or oral sex: Criminal Sexual Act Criminal Sexual Act in the Third Degree (Penal Law § 130.25) Sexual Misconduct (Penal Law § 130.20) If the sexual assault involves touching of the intimate parts: Forcible Touching or Sexual Abuse Forcible Touching (Penal Law § 130.52) Sexual Abuse in the Third Degree (Penal Law § 130.55)

111. How Do We Know Which Bad Acts are Possible Criminal Acts? BAD ACTSPOSSIBLE CRIMINAL ACTS BASE CRIME Taking Someone Unlawful Imprisonment Unlawful Imprisonment in the Second Degree (Penal Law § 135.05) Kidnapping (if with force) Kidnapping in the Second Degree (Penal Law § 135.20) Having a firearmCriminal Possession of a Weapon Possession of a Weapon in the Fourth degree (Penal Law § 265.01) Having property that does not belong to the holder Criminal Possession of Stolen Property Criminal Possession of Stolen Property in the Fifth Degree (Penal Law § 165.05)

112. Motion to Dismiss Defense Motion: There is an accusatory instrument that lists the criminal offenses. Task: ① look up the offense, ② break it into elements, and ③ 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: ① look up the offense, ② break it into elements, and ③ 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: ① look at each criminal offense charged and ② determine what the facts are to support the elements ③ 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 CRIMINAL OFFENSE ELEMENTSFACTS TO SUPPORT ELEMENTS WITNESS Assault in the Third Degree (Penal Law § 120.00) (1) Defendant causes physical injury (impairment of physical condition or substantial pain) Jane who punched John in his face causing him a bloody, and possibly broken nose (impairment) John (what happened) and possibly Physician (level of injury) (2) Defendant intended to cause physical injury Jane who punched him in his face: This is clearly an intentional act. John

119. Application CRIMINAL OFFENSEELEMENTS FACTS TO SUPPORT ELEMENTSWITNESS Petit Larceny (Penal Law § 155.25) (1) Defendant wrongfully took property from its owner Jane grabbed the iPhone John or Officer (2) Defendant did so with the intent to deprive another of the property or to appropriate the property for another Jane grabbed the iPhone and ran away. The act of grabbing it and running away clearly shows that she intended to deprive him of his iPhone. John or Officer

120. Application CRIMINAL OFFENSEELEMENTS FACTS TO SUPPORT ELEMENTSWITNESS Robbery in the Third Degree (Penal Law § 160.05) (1) Defendant forcibly stole property for the victim Jane who punched him in his face and grabbed the iPhone. John (2) Defendant did so with the intent to deprive another of the property or to appropriate the property for another Jane grabbed the iPhone and ran away. The act of grabbing it and running away clearly shows that she intended to deprive him of his iPhone. John

121. Application CRIMINAL OFFENSEELEMENTS FACTS TO SUPPORT ELEMENTSWITNESS Criminal Possessio n of Stolen Property in the Fifth Degree (Penal Law § 165.40) (1) Defendant knowingly possessed stolen property The iPhone was in her pocket after she took it. Officer (2) Defendant did so with the intent to benefit himself/ herself or a person other than an owner of such property or to impede the recovery of such property by an owner. Jane grabbed the iPhone and ran away. The act of grabbing it and running away clearly shows that she intended to deprive him of his iPhone. John or Officer

122. Application CRIMINAL OFFENSEELEMENTS FACTS TO SUPPORT ELEMENTSWITNESS Criminal Possessio n of a Weapon in the Fourth Degree (Penal Law § 265.01) (1) Defendant possessed a firearm Jane had a handgun in her pocket. Officer (2) Defendant did so knowingly Since it was in her pocket, it is clear that she knew she had it. Officer (3) The firearm was operable Testing will have to be done Lab Technicia n

123. BASIC OFFENSES, ELEMENTS AND ELEVATORS Assault Homicide Sexual Assaults Kidnapping Burglary Larceny Robbery Controlled Substances Weapons

124. ASSAULT BASIC: Assault in the Third Degree Intent to cause physical injury, defendant causes physical injury ElementsDefendant causes physical injury Defendant intended to cause physical injury Some Elevators If defendant used a weapon or dangerous instrument If physical injury is a serious physical injury If the intent was to cause a serious physical injury If intended victim was a police officer Combination of above

125. HOMICIDE (INTENTIONAL) BASIC: Murder in the Second Degree Intent to cause death, defendant causes death ElementsDefendant causes death Defendant intended to cause death Some Elevators If intended victim was a police officer or judge If method used was torture

126. SEXUAL ASSAULTS (1) BASIC: Sexual Misconduct ① Sexual intercourse without consent or ② Oral or anal sexual contact without consent ③ Sexual conduct with an animal or a dead human body. ElementsDefendant engaged in … Defendant did so without consent (except for 3) Elevators:Force Age

127. SEXUAL ASSAULTS (2) BASIC: Rape in the Third Degree Sexual intercourse without consent ElementsDefendant engaged in sexual intercourse Defendant did so without consent Some Elevators If age of victim is under 17, 15, or 13 or 11 and the defendant is over a certain age If force is used.

128. SEXUAL ASSAULTS (3) BASIC: Criminal Sexual Act in the Third Degree Oral or anal sexual conduct without consent ElementsDefendant engaged in oral or anal sexual conduct Defendant did so without consent Some Elevators If age of victim is under 17, 15, or 13 or 11 and the defendant is over a certain age If force is used.

129. BURGLARY BASIC: Burglary in the Second Degree knowingly enters or remains unlawfully (trespass) in a building with intent to commit a crime in that building ElementsDefendant unlawfully entered or remained in a building Defendant did so knowingly Defendant did so with the intent to commit a crime inside the building. Some Elevators defendant displays, threatens the use of a weapon or is armed defendant causes physical injury building is a dwelling Combination of above

130. LARCENY BASIC: Petit Larceny Stealing property ElementsDefendant wrongfully took property from its owner Defendant did so with the intent to deprive another of the property or to appropriate the property for another Some Elevators If value of property is over $250, $1000, $3000, $5000, $1 million The type of property (e.g., credit cards, vehicle, secret scientific material If the property is seized through extortion

131. ROBBERY BASIC: Robbery in the Third Degree Forcibly stealing property Elementsdefendant forcibly stole property defendant did so with the intent to deprive another of property or to appropriate the property to another person Some Elevators If aided by another person If defendant causes physical injury or serious physical injury If defendant displays firearm or deadly weapon or threatens use If property is a vehicle

132. CONTROLLED SUBSTANCE (POSSESSION) BASIC: Crim Poss of a Controlled Substance in the Seventh Degree Defendant knowing and unlawfully possesses a controlled substance Elementsdefendant possessed a controlled substance defendant possessed it unlawfully defendant did so knowingly Some Elevators If defendant intends to sell the controlled substance The type of controlled substance The weight of the controlled substance Combination of above

133. CONTROLLED SUBSTANCE (SALE) BASIC: Crim Sale of a Controlled Substance in the Fifth Degree Defendant knowing and unlawfully sold a controlled substance Elementsdefendant sold a controlled substance defendant sold it unlawfully defendant did so knowingly Some Elevators The type of controlled substance The weight of the controlled substance Combination of above

134. CRIMINAL POSSESSION OF A WEAPON BASIC: Criminal Possession of a Weapon in the Fourth Degree knowingly possesses a firearm, knife, dangerous or deadly weapon Elementsdefendant possessed a firearm, knife, dangerous or deadly weapon defendant did so knowingly If it is a firearm, the firearm was operable Some Elevators Previous conviction The type of weapon Defendant intended to use it

135. THE ASSIGNMENT TIME TO GET TO WORK

136. ASSIGNMENT ① You are all paralegals working in the District Attorney’s Office ② Work in Groups ③ The Assistant you are assigned to wants the following:

137. WHAT THE ASSISTANT WANTS ① What are the criminal offenses that Delta and Camp can be charged with? ② What are the elements for each offense? ③ What are the facts to support those elements? ④ What witnesses can be used to prove those facts? ⑤ If there are missing facts, what additional information is needed to support those elements?

138. HOW WILL WE DO THAT? Criminal OffenseElements Facts to Support ElementsWitness Additional information needed (1) (2) If there is additional information needed, make a list of questions for your attorney (an ADA) to ask to get that additional information. MAKE A CHART!