NYLE - Criminal Law and Procedure questions with
verified answers
Accomplice testimony: CPL 60.22 Ans✓✓-A defendant may not be convicted of
any offense upon the testimony of an accomplice unsupported by corroborative
evidence tending to connect the defendant with the commission of the offense
(see Evidence, III.A.).
Affirmative and ordinary defenses:
Justification; defense of self or another: Penal Law art 35 Ans✓✓-In any
prosecution for an offense, justification, as defined in this section of the Penal
Law, is a defense. Conduct that would otherwise constitute an offense is
justifiable when the conduct is authorized by law or is necessary as an emergency
measure to avoid imminent injury.
An actor may use physical force against another person if the actor reasonably
believes it necessary to defend himself or a third person from what he reasonably
believes to be the use or imminent use of unlawful physical force by such other
person. He may not do so if he provoked the other person's conduct with intent
to cause him physical injury or if he was the initial aggressor and has not
effectively withdrawn from the encounter.
However, an actor may not use deadly physical force unless he reasonably
believes the other person is using or about to use deadly physical force and he
cannot retreat with complete safety. There is no duty to retreat if the actor is in
his own home and was not the initial aggressor (Penal Law § 35.15).
In determining whether a defendant acted reasonably in perceiving and
defending against impending harm, New York permits the defendant to introduce
evidence of the victim's prior acts of violence only if such were known to the
,defendant at the time of the incident (Matter of Robert S., 52 NY2d 1046 [1981];
People v Miller, 39 NY2d 543 [1976]).
Affirmative and ordinary defenses: Alibi Ans✓✓-An alibi is not an affirmative or
exculpatory defense which the defendant has the burden of proving (People v
Victor, 62 NY2d 374, 377-378 [1984] [internal citations omitted]). Rather, it is
simply evidence that will require an acquittal if when all the evidence is
considered a reasonable doubt is raised as to defendant's guilt (id.). In order to
avoid confusion and ensure that the jury understands that the People must
always meet their burden of proving that the accused actually committed the
crime, an alibi is treated for practical purposes the same as a statutory defense
even though it is not so defined in the Penal Law. Thus, the People have the
burden of disproving an alibi beyond a reasonable doubt.
Affirmative and ordinary defenses: Burden of proof: Penal Law §25.00 Ans✓✓-
There is a fundamental distinction between an ordinary defense and an
affirmative defense. The People have the burden of disproving an ordinary
defense beyond a reasonable doubt; all that is required is evidence of the
defense, which if credited, is sufficient to raise a reasonable doubt. When an
affirmative defense is raised at trial, the defendant has the more demanding
burden of establishing such a defense by a preponderance of the evidence
(People v Butts, 72 NY2d 746 [1988]).
Affirmative and ordinary defenses: Entrapment: Penal Law § 40.05 Ans✓✓-In any
prosecution for an offense, it is an affirmative defense that the defendant
engaged in the proscribed conduct because he or she was induced or encouraged
to do so by a public servant. Inducement or encouragement requires active
inducement or encouragement; conduct merely affording a person an
opportunity to commit an offense does not constitute entrapment.
, Pursuant to People v Isaacson (44 NY2d 511 [1978]), although an entrapment
defense may fail because of a defendant's predisposition to commit the offense, if
the government's conduct was "so egregious and deprivative" as to constitute a
violation of the due process clause of the New York State Constitution, the
defendant would be entitled to dismissal of the charges.
Affirmative and ordinary defenses: Renunciation: Penal Law § 40.10 Ans✓✓-In
any prosecution for an offense, other than an attempt to commit a crime, in
which the defendant's guilt depends upon his or her criminal liability for the
conduct of another, it is an affirmative defense that the defendant withdrew from
participation in such offense prior to the commission of the offense and made a
substantial effort to prevent the commission of the crime.
Anticipatory offenses: Attempt to commit a crime: Penal Law art 110 Ans✓✓-A
person is guilty of an attempt to commit a crime when, with the intent to commit
a crime, he or she engages in conduct which tends to effect the commission of
such crime (Penal Law 110). New York, unlike the Model Penal Code, requires
"intent" to commit the particular crime. If a specific intent to commit a crime is
inconsistent with the required mental culpability of the crime, New York does not
recognize an "attempt." Thus, a person cannot be charged with an attempt to
commit second-degree (reckless) manslaughter, or depraved indifference murder,
or felony murder, or reckless/criminally negligent assault (see e.g., People v
Martinez, 81 NY2d 810 [1993]; People v Foster, 19 NY2d 150 [1967]; People v
Acevedo, 32 NY2d 807 [1973]; People v Campbell, 72 NY2d 602 [1988]; People v
Hendrix, 56 AD2d 580 [2d Dept 1977]).
Anticipatory offenses: Conspiracy: Penal Law art 105 Ans✓✓-In general, a person
is guilty of some degree of conspiracy when, with intent that conduct constituting
a crime be performed, he or she agrees with one or more persons to engage in or
cause the performance of such conduct. It is essential for a conviction for
conspiracy that there be proof of an overt act committed by one of the
conspirators in furtherance of the conspiracy (Penal Law § 105.20). An overt act
verified answers
Accomplice testimony: CPL 60.22 Ans✓✓-A defendant may not be convicted of
any offense upon the testimony of an accomplice unsupported by corroborative
evidence tending to connect the defendant with the commission of the offense
(see Evidence, III.A.).
Affirmative and ordinary defenses:
Justification; defense of self or another: Penal Law art 35 Ans✓✓-In any
prosecution for an offense, justification, as defined in this section of the Penal
Law, is a defense. Conduct that would otherwise constitute an offense is
justifiable when the conduct is authorized by law or is necessary as an emergency
measure to avoid imminent injury.
An actor may use physical force against another person if the actor reasonably
believes it necessary to defend himself or a third person from what he reasonably
believes to be the use or imminent use of unlawful physical force by such other
person. He may not do so if he provoked the other person's conduct with intent
to cause him physical injury or if he was the initial aggressor and has not
effectively withdrawn from the encounter.
However, an actor may not use deadly physical force unless he reasonably
believes the other person is using or about to use deadly physical force and he
cannot retreat with complete safety. There is no duty to retreat if the actor is in
his own home and was not the initial aggressor (Penal Law § 35.15).
In determining whether a defendant acted reasonably in perceiving and
defending against impending harm, New York permits the defendant to introduce
evidence of the victim's prior acts of violence only if such were known to the
,defendant at the time of the incident (Matter of Robert S., 52 NY2d 1046 [1981];
People v Miller, 39 NY2d 543 [1976]).
Affirmative and ordinary defenses: Alibi Ans✓✓-An alibi is not an affirmative or
exculpatory defense which the defendant has the burden of proving (People v
Victor, 62 NY2d 374, 377-378 [1984] [internal citations omitted]). Rather, it is
simply evidence that will require an acquittal if when all the evidence is
considered a reasonable doubt is raised as to defendant's guilt (id.). In order to
avoid confusion and ensure that the jury understands that the People must
always meet their burden of proving that the accused actually committed the
crime, an alibi is treated for practical purposes the same as a statutory defense
even though it is not so defined in the Penal Law. Thus, the People have the
burden of disproving an alibi beyond a reasonable doubt.
Affirmative and ordinary defenses: Burden of proof: Penal Law §25.00 Ans✓✓-
There is a fundamental distinction between an ordinary defense and an
affirmative defense. The People have the burden of disproving an ordinary
defense beyond a reasonable doubt; all that is required is evidence of the
defense, which if credited, is sufficient to raise a reasonable doubt. When an
affirmative defense is raised at trial, the defendant has the more demanding
burden of establishing such a defense by a preponderance of the evidence
(People v Butts, 72 NY2d 746 [1988]).
Affirmative and ordinary defenses: Entrapment: Penal Law § 40.05 Ans✓✓-In any
prosecution for an offense, it is an affirmative defense that the defendant
engaged in the proscribed conduct because he or she was induced or encouraged
to do so by a public servant. Inducement or encouragement requires active
inducement or encouragement; conduct merely affording a person an
opportunity to commit an offense does not constitute entrapment.
, Pursuant to People v Isaacson (44 NY2d 511 [1978]), although an entrapment
defense may fail because of a defendant's predisposition to commit the offense, if
the government's conduct was "so egregious and deprivative" as to constitute a
violation of the due process clause of the New York State Constitution, the
defendant would be entitled to dismissal of the charges.
Affirmative and ordinary defenses: Renunciation: Penal Law § 40.10 Ans✓✓-In
any prosecution for an offense, other than an attempt to commit a crime, in
which the defendant's guilt depends upon his or her criminal liability for the
conduct of another, it is an affirmative defense that the defendant withdrew from
participation in such offense prior to the commission of the offense and made a
substantial effort to prevent the commission of the crime.
Anticipatory offenses: Attempt to commit a crime: Penal Law art 110 Ans✓✓-A
person is guilty of an attempt to commit a crime when, with the intent to commit
a crime, he or she engages in conduct which tends to effect the commission of
such crime (Penal Law 110). New York, unlike the Model Penal Code, requires
"intent" to commit the particular crime. If a specific intent to commit a crime is
inconsistent with the required mental culpability of the crime, New York does not
recognize an "attempt." Thus, a person cannot be charged with an attempt to
commit second-degree (reckless) manslaughter, or depraved indifference murder,
or felony murder, or reckless/criminally negligent assault (see e.g., People v
Martinez, 81 NY2d 810 [1993]; People v Foster, 19 NY2d 150 [1967]; People v
Acevedo, 32 NY2d 807 [1973]; People v Campbell, 72 NY2d 602 [1988]; People v
Hendrix, 56 AD2d 580 [2d Dept 1977]).
Anticipatory offenses: Conspiracy: Penal Law art 105 Ans✓✓-In general, a person
is guilty of some degree of conspiracy when, with intent that conduct constituting
a crime be performed, he or she agrees with one or more persons to engage in or
cause the performance of such conduct. It is essential for a conviction for
conspiracy that there be proof of an overt act committed by one of the
conspirators in furtherance of the conspiracy (Penal Law § 105.20). An overt act
