Chapter 6
Criminal Law
in 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 Trial
Preponderance 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)
Differences between
Civil Trials & Criminal Trials
Criminal Trial
Beyond 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)
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.
“do” the crime
vs.
omission
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
Economic Espionage
• 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
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 EXTORTION
Extortion – 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
th
5
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 Warning
Does 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 Crimes
CFAA – 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