Chapter 6

Criminal Lawin New York

The NYS Penal Law can be found in its entirety at the link below

http://public.leginfo.state.ny.us/

• Crime – a wrong against society proclaimed in a statute and punishable by imprisonment/and or fines and in some cases death.

• In NYS, called the Penal Law• Since crimes are offenses against society

prosecuted by public official on behalf of

“The People”» District Attorney in each county of NYS is the person responsible for prosecuting crimes committed in their county.

Differences between Civil Trials & Criminal Trials

• Standards of Guilt (or Liability)• Burden of Proof

Civil TrialPreponderance of the evidence: plaintiff must convince the court of their allegation (in the case of a jury, only ¾ must agree)Burden on plaintiff (who initiated claim)

Criminal TrialBeyond a Reasonable Doubt: The state (i.e. prosecutor) must convince the Court the defendant has committed each element of the charged offense AND jury must be unanimous about verdict

Burden on Prosecutor (defendant doesn’t have to do a thing)

Differences between Civil Trials & Criminal Trials

Classification of Crimes in NYS

• Felonies: imprisonment of 1 year or more

• Misdemeanors: A up to 1 year in jail

B up to 90 days in jail

• Violation: up to 15 days in jail – An “offense,” NOT a crime– Ex: Disorderly conduct, Harassment in the 2nd Degree

• Criminal Liability

– Two Elements must exist• the performance of a prohibited act• a specific state of mind on the part of the person–Knowingly–Intentionally–Recklessly: aware of risk, but disregard risk (do it anyway)!–Criminal Negligence: unaware of risk, but should have known

commission vs. omission

“do” the crime vs. fail to perform a legal duty

Types of Crime• Violent – crimes that cause others harm or death– Murder, Sexual Assault, Robbery (taking of cash, personal property or

anything of value with the use of force), Robbery in the 2nd degree (cause physical injury, accomplice, or use of a deadly weapon)

• Property crime– Burglary – trespass + intent to commit a crime– Burglary in the 2nd degree – cause injury, possess deadly weapon,

or threatens dangerous instrument

• Larceny – with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof.

• Grand – more monetary value, >$1000 (felony)• Petit – any stealing of property, generally less

monetary value (misdemeanor)

– Receiving Stolen Goods recipient knows or should have known goods are stolen

– Arson – willful and malicious burning of a building• (can be coupled with larceny – insurance fraud)

– Forgery – fraudulent making or altering of any writing that changes the legal rights and liabilities of another• Signing check• Falsifying records • Counterfeiting

Public Order Crimes

• “victimless crimes” – activities that are considered contrary to public values and morals

– Gambling

– Prostitution

– Illegal drug use

• White Collar Crime

crimes that typically occur in the

business context

– Usually non-violent and committed in the course of a legitimate occupation• Embezzlement – when a person entrusted with

another’s funds or property fraudulently appropriates the funds or property

»not larceny, not robbery

Mail and Wire Fraud Act of 1990 – Federal Crime• Illegal use of mail must include

– mailing or causing someone else to mail a writing (written, printed, photocopied)

– for the purpose of executing a scheme to defraud– contemplated or an organized scheme to defraud by false

pretenses» wire includes radio, phone or television

• Violators – fined up to $1,000, 1 to 5 years of prison or both

– If violation affects a financial institution up to $1,000,000 and/or 30 years of prison.

Bribery– Three types

1. Bribery of public officials (kick backs, payoffs)

2. Commercial bribery (industrial espionage)

3. Bribery of foreign officials (Foreign Corrupt Practices Act, 1977)

– Intentional crime– Crime occurs when the “offer” is made.

»Accepting a bribe is another, different crime!

• Bankruptcy Fraud –

– Creditor files false claim against debtor

– Debtor hides assets

*Theft of Trade Secrets ….IP chapter

• Economic Espionage Act of 1996 – prison for 10 years and/or fines up to $500,000

• Company - $5,000,000• Additionally any property acquired via the act must

be forfeited as well as any property used to commit the act

• Criminalizes the misappropriation of trade secrets (including conspiracy to misappropriate trade secrets) with the knowledge or intent that the theft will benefit a foreign power.

• Penalties:

Individuals $500,000 per offense and imprisonment of up to

15 years

Corporations fines of up to $10 million

Economic Espionage

Theft of Trade Secrets

• Criminalizes the misappropriation of trade secrets with the knowledge or intent that the misappropriation will injure the owner of the trade secret.

• Penalties:

– Individuals imprisonment for up to 10 years ** No Fines, just jail **

– Corporations Up to $5 million .

Insider Trading: 1. obtaining private information about the

plans of a publicly traded corporation

AND

2. using that information to facilitate stock trades before the information is available to the general public

Organized Crime• Illegitimate business crime

Racketeering - illegal business activities that involve crimes:

• Gambling, prostitution, illegal drugs, loan sharking, credit card scams, tax evasion

– Money Laundering – using legitimate business to “hide” profits from illegal activities

» Globally $700 billion per year

USUALLY INVOLVES EXTORTIONExtortion – to obtain money, information, etc., from a person by violence, intimidation, or abuse of authority; obtain by force, torture, threat, or the like.

• Racketeer Influenced and Corrupt Organizations Act (RICO) - 1970

• Federal crime • using income obtained from racketeering activity to

purchase interest in an enterprise• acquiring or maintaining an interest in an

enterprise through racketeering activity• conducting or participating in the affairs of an

enterprise through racketeering activity• conspiring to do any of the preceding activities

– In the event of a violation statute permits government to seek civil penalties

– Including the forfeiture of defendant’s interest in the business or dissolution of the business

– Private individuals may recover 3x there losses and attorney’s fees

– Criminal penalties fine of up to $25,000, 20 years imprisonment or both and the forfeiture of any assets that were acquired as a result of the illegal activity

Defenses to Criminal Liability– Infancy – any person who had not yet reached

the age of majority – juvenile courts• Can be charged as an adult if serious crime (14 and

over)

– Intoxication – voluntary vs. involuntary– Was not aware of the alcohol or drugs or was forced to ingest

– Insanity – mental illness

*don’t know right from wrong

*NOT the same as “don’t care”

• Mistake of law– law was not published or made reasonably known to the public

– Defendant relied on an official statement of the law that was wrong

• Mistake of fact – did not know crime was being committed

– Versus Consent

• Duress – wrongful threat of one person induces another person to perform an act that she or he would not otherwise perform.

– threat must be of serious bodily harm or threat

– the harm threatened must be greater than the harm caused by the crime

– threat must be immediate and inescapable

– defendant must have been involved in the situation through no fault of his or her own

• Self–defense

Deadly force – can be used if there is reasonable belief that imminent death or severe bodily harm will occur

Non-deadly force – force that reasonably appears necessary to prevent imminent use of criminal force

• Entrapment – suggestion and pressure that a crime be committed by an undercover agent or police officer

• Statute of Limitations – criminal cases must be prosecuted within a certain number of years (any, 5, 2, 1 year)

• Immunity – state needs information that is protected by the Fifth Amendment, so prosecution makes a deal not to prosecute if the person will testify

Fifth Amendment protection– “nor shall any person be compelled in any criminal case be a witness against himself”

– May be used in “plea bargaining” – immunity from a more serious charge

Constitutional Safeguards &

Criminal Procedures

– Fourth Amendment – protects “the right of the people to be secure in their persons, houses, papers and effects”

– Law enforcement must have a search warrant – issued from a judge or other public official• Search Warrant – must show probable cause

– Trustworthy evidence that would convince a reasonable person that the proposed search and/or seizure is justified

– Exception – car searches – may search without a warrant

• Government Regulation “surprise inspections”

– Not allowed unless highly regulated industry• Guns, mining, liquor• This extends to the rights of workers – random drug

testing

– Fifth Amendment – guarantee that no one can be deprived of “life, liberty to property without due process of law”• “Due Process” = procedural law (the process):

– Fair and impartial trial– Cross examination– Presentation of witnesses

More 5th Amendment• Double Jeopardy – being tried twice for

the same offense

• Self Incrimination – no person “shall be compelled in any criminal case to be a witness against himself”

– “I plead the 5th!”• Does not hold for corporations or partnerships–

only “natural person”• But sole proprietorships are protected

• Sixth Amendment

• right to a speedy trial, a trial by jury, a public trial, the right to confront witnesses and the right to counsel

Miranda – must advise of the right to counsel, right to remain silent and other rights

– Exceptions emergency, public safety

• Failure to correctly administer Miranda WarningDoes not mean charges will be dropped, but statements will not be admissible in court and any information gathered may not be admissable.

• Eighth Amendment – prohibits excessive bails and fines, as well as cruel and unusual punishment

• The exclusionary rule – any information obtained in violation of the amendments is forbidden to be used in court

sometime referred to as “a technicality”

Arrest

Booking

Initial Appearance (Arraignment)

Grand Jury Complaint

Indictment Information

Arraignment

Plea Bargain

Guilty Plea Trial

NYS Criminal Process• Arrest – Police officer takes suspect into custody (search is made)

• The suspect is referred to as the “perp”, short for alleged “perpetrator of the crime”. Victim is referred to as the “complaining witness”, “complainant” or “cw”.

• Booking – suspect is searched, photographed, fingerprinted and allowed at least one phone call. After police booking, charges are reviewed, if they are not dropped, a complaint is filed.

• Complaint – the legal document drafted by the District Attorney’s Office and filed with the local Court that contains the allegations of conduct constituting offenses as defined by the NYS Penal Law or Vehicle & Traffic Law (if categorized as crimes, such as DWI, aggravated unlicensed operation, etc).

• Initial Appearance (Arraignment) – within 24 hours of arrest, the Defendant must appear before a Judge who informs the suspect of the charges and his/her rights. If the Defendant requires a lawyer and cannot afford one, a lawyer is appointed (Gideon v. Wainwright, 372 U.S. 335 (1963))

• Bail – In NYS, purpose of bail is to ensure the Defendant returns to Court on the next date. Bail is set at initial appearance after arrest and considers criminal record or lack thereof, connections to community (job, family, etc.), and financial resources.

• Facial Sufficiency – at Arraignment, Judge will examine if Complaint is “facially sufficient” … meaning if the Complaint contains enough facts to support the charges. May dismiss as defective on the spot, if allegations are too generic.

• Grand Jury OR preliminary hearing• Arraignment – defendant is brought before a court for

the 1st time, informed of the charges and enters a plea• Grand Jury – a jury decides if there is probable cause

to believe the defendant committed the crime. The federal government and about half the states require grand jury indictments (a written document issued by the grand jury to formally charge the suspect with the crime) for at least some felonies.

• Preliminary Hearing – prosecutor presents evidence to a judge and the judge determines if there is probable cause. “Information” is the formal document criminally charging a defendant based on accusations of one or more “complaining witnesses”

• Plea Bargain – a prosecutor’s promise to make concessions in return for a suspect’s guilty plea. Concessions may include a lesser charge or reduced sentence.

• Guilty Plea OR Trial– Guilty plea – plea is accepted and judge sets date for

sentencing– Trial – jury or bench, if verdict is guilty, a date is set for

sentencing

• Cyber Crimes

• ABA • Computer crime – any act that is directed against

computer, computer parts, use of computers as instruments of crime or that involves the abuse of computers

– Cyber Theft– Financial– Identity– Stalking– Hacking– Cyber terrorists

• Prosecuting Cyber CrimesCFAA – Computer Fraud and Abuse Act, 1984

Expanded many times with additional legislation, including: National Information Infrastructure Act, 1996

USA Patriot Act, 2002– Accessing a computer without permission– Taking data

» Felony if value of stolen data exceeds $5,000» Fines and jail up to 20 years

– Other Statutes

– Electronic Fund Transfer Act, 1978

– Anti-counterfeiting Consumer Protection Act, 1996

– National Stolen Property Act, 1988