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Waste: when do the exceptions to waste apply? Think: When can tenant PURGE the land? Prior use [but exception under open mines doctr]; Repairs; Grant; Exploitation
Differences b/w fee simple determinable and fee simple subject to condition subsequent? FSD: Frank Sinatra; key = clear durational language; when condition is violated-->forfeiture is automatic ("possibility of reverter"). FSSCS: "It's my prerogative"; when condition violated-->right of entry
Difference between vested remainder and contingent remainder? Why do we give a shit? We care b/c there are special rules for contingent remainders [rule in shelley's case, doctr of worthier title; RAP [maybe]]. Vested = ascertainable person AND not subject to condition; Contingent = every other remainder.
What kinds of vested remainders are there? [1] indefeasiblly vested; [2] vested subj to complete defeasance [aka vested subj to divestment]; [3] vested subj to open.
Difference between remainder and executory interest? Exec Int [Dr. Evil] always follows defeasible interests [Rat Pack]. Two types: shifting and springing.
Hillmon dotrine Present state of mind exception [FRE 803]. Insurance co. wanted to introduce in evdnce a note from a dead guy that said "I'm going to crooked creak" to prove that the dead guy was someone else, and NOT Hilmon who was missing]. Ct admitted note.
Murder C/L: Causing the death of another person with malice aforethought. Mental state: "malice aforethought"
Attempt Gen: OVERT act beyond mere preparation. CL/NY: Conduct VERY CLOSE to commission of crime (ie "dangerous proximity). MPC/Maj: SUBSTANTIAL STEP toward commission of crime, provided that conduct STRONGLY CORROBORATES D's crim purpose
Malice Requires merely reckless disregard of an obvious or high risk that the harmful result will occur. Defenses to specific intent crimes do not apply. CL "malice crimes" = murder and arson.
CL Voluntary mangslaughter An intentional killing committed in the heat of passion after adequate provocation. Provocation must 1-arouse a SUDDEN INTENSE PASSION in mind of REASONABLE person, 2-D must have been actually provoked, 3-no time to cool off, 4-no actual cooling off
C/L Burglary Breaking and entering the dwelling of another at night with the intent to commit a felony inside. "Breaking" = minimum force (incl opening window or door; DOES NOT incl climbing through already open window or entering w/ permission).
C/L Arson CL: Malicious burning of a building. "Burning" requires material wasting and it must be the building itself that burns.
False pretenses ?
Conspiracy An agmt b/w two or more people to commit a crime, plus an OVERT ACT in furtherance of the crime. OVERT ACT could be any act, even if merely preparatory. Mental state = SPECIFIC INTENT to accomplish the conspiracy's objective.
Exclusionary rule (In grand jury proceedings) ?
Aiding and abetting [help and intent to have crime take place] "victim limitation on accomplice liability
What is a Terry frisk? Pat down of the body and outer clothing for WEAPONS that is justified by an officer's belief that a suspect if ARMED and DANGEROUS.
When does "jeopardy" attach? When the jury is sworn. In a bench trial, when the first witness is sworn. If a guilty plea, when the ct accepts the defendant's plea UNCONDITIONALLY.
Under the double jeopardy clause, what does not constitute the "same offense"? Fed: EACH offense contains an element that the other offense does NOT. [there has to be one in each]. NY: uses the "transaction test".
"Transaction test" NY test for "same offense" under double-jeopardy. ???
What exceptions to double jeopardy permit retrial? hung jury, mistrial for manifest necessity, successful appeal (unless reversal based on insufficiency of evidence presented by pros) breach of plea agreement
What can be seized in a TERRY frisk? Weapons can always be seized. If officer finds something she recognizes as contraband WITHOUT having to manipulate the object, it can be seized as well. NY: Officers can seize an item ONLY if it feels like a WEAPON.
Common Law mental states Specific Intent, General intent, Malice, Strict liability
MPC mental states Also the NY mental states: Intent (MPC:"Purpose"), Knowledge, Recklessness, Negligence, Strict Liability
C/L specific intent When the crime requires not just the desire to do the act, but the desire to achieve a SPECIFIC RESULT. Two defenses voluntary intoxication and unreasonable mistake of fact.
malice aforethought 1-intent to kill, 2-intent to inflict serious bodily injury, 3-extreme recklessness (aka "depraved heart murder", ie reckless indifference to human life or having an "abandoned and malignant heart", 4-through intentional commission of dangerous felony.
Common examples re: "provocation" in COMMON LAW voluntary manslaughter Serious ASSAULT or battery; PRESENTLY witnessed ADULTERY, unlawful RESTRAINT. Words alone objectively INADEQUATE provocation as a matter of CL (but many states no longer follow this).
NY voluntary manslaughter Intentional killing committed under the influence of a reasonable and extreme emotional disturbance.
Pinkerton liability Vicarious liability in conspiracy cases. CL D will be liable for other crimes committed by his co-conspirators, so long as the crimes were in FURTHERANCE of the conspiracy's objective, and were FORESEEABLE.
manufacturing defect A product that "departs from its intended design"
design defect Where there exists a safer, practical, and cost-effect way to build the product. [P must posit an alternative hypothetical design]
Prod liability defenses Product was altered, changed to tampered. PRESUMPTION that prod was not altered if product moved in ordinary channels of distribution. P must have made a foreseeable use of the product at the time of injury. Comparative fault.
Continuous treatment in med mal? If a Dr. continues to treat the patient for the EXACT SAME medical condition, P gets 2.5 yrs from the end of the continuous treatment.
Foreign object exception in med mal? If Dr. was responsible for introducing a foreign object, P gets longer of 2.5 yrs from date of operation; or 1 yr from date of discovery of the presence of the object.
NY Murder 2 Murder 2: Intentional killing (Premed and deliberation is IRRELEVANT); or HIGHLY RECKLESS killing demonstrating DEPRAVED INDIFFERENCE to human life by engaging in conduct that creates a GRAVE RISK of death.
NY Murder 1 Intentional killing + aggravating factor: [a] law enf ofcr engaged in official duties; murder for hire; felony murder where V was INTENTIONALLY killed; killing for witness intimidation; more than 1 victim intentionally killed in SAME crim transaction
NY Felony Murder Killing caused during felony (or attempt). Unlike C/L, NY D need not be convicted of the underlying felony. Underlying felony must be BRAKES: Burglary, Robbery, Arson, Kidnapping, Escape, Sexual Assault. M2 - unintentional, M1-intentional.
NY Felony Murder Defenses "Non-Slayer" def: Ltd affirm def to felony murder if: 1-D did not kill V; 2-D did not have a deadly weapon; 3-D had no reason to believe co-felons had weapon; 4-D had no reason to believe that co-felons intended to do anything likely to result in death.
Service of Process on Corporations Two trad methods: 1-Personal Delivery (Ofcr, Dir, Designated Agent, or Managing Agent) or 2-Svc on NY Secretary of State. Non-traditional method: Svc by first-class mail + acknowledgement.
Svc on NY Secretary of State If dom corp or foreign corp, deliver 2 copies of process. Sec will fwd 1 copy to corp. Svc of process COMPLETE upon delivery to SEC, regardless of when corp recvs it. If UNLICENSED corp, P mails the 2d copy by cert mail, return receipt requested.
Svc by 1st Class mail PLUS Acknowledgment Mail process to D by first-class mail, encl 2 copies of acknowledgment form. Svc will be effective only IF D signs and returns 1 acknowledgment form to P w/in 30 days after D recvs process. Svc complete upon D's posting of signed form.
Info that must be included on Cert of Inc Corp name (must have inc corp or ltd), address (county in NY of the ofc of corp), NY Sec of St as DESIGNATED AGENT for svc of process, address for fwd-ing process to the corp, name/address of incorporator; Stmt of duration; Corp purpose; Capital structure
Validity of Warrant NY q 77
Insanity Defense in NEW YORK D must prove he lacked the substantial capacity to either UNDERSTAND the NATURE of his act, or APPRECIATE the WRONGFULNESS of his conduct.
Conspiracy when co-conspirators acquitted NY q 77
Recklessness under COMMON LAW (keys to remember) [MBE Rev] 1-Intent OR recklessness will be sufficient; 2-Mistake must be reasonable; 3-Voluntary intoxication is NOT a defense
Merger doctrine SOLICITATION/ATTEMPT merges with the completed crime. NY DIST: Solicitation does not merge. ***Conspiracy DOES NOT merge.
CONSPIRACY (keys to conspiracy questions) 1-CL=AGMT b/w TWO OR MORE ppl to commit unlawful act + OVERT ACT in FURTHERANCE of agmt 2-Pinkerton 3-WITHDRAWAL(WD) will excuse D for all crimes that occur after wd; 4-WD=GIVE UP + COMMUN to all co-cons; 5-D can be guilty of consp + substantive offense
SPECIFIC INTENT (keys to remember) 1-P must prove actual intent. Recklessness or extreme indifference not sufficient. 2-If D asserts MISTAKE, reasonableness is irrelevant. 3-Voluntary intoxication is a defense
Withdrawal on MSE Once D withdraws from CONSPIRACY he will no longer be vic liable for crimes committed by his co-conspirators AFTER he left the conspiracy. But D is STILL GUILTY of CONSPIRACY and all FORESEEABLE crimes committed by co-conspirators PRIOR to his WD.
Withdrawal in NY Unlike common law, NY allows withdrawal to be a defense to solicitation/conspiracy/attempt, but only if D COMPLETELY and VOLUNTARILY RENOUNCES and renunciation is based on "CHANGE OF HEART", NOT a FEAR of failing or being caught.
Three rules on MERGER Solicitation merges w/ conspiracy, attempt, and completed crime; Conspiracy does NOT merge w/ attempt or completed crime; Attempt merges w/ completed crime.
Mistake of fact If SPECIFIC INTENT=mental state, the REASONABLENESS of mistake is IRRELEVANT. If RECKLESSNESS=mens rea, Mistake must be REASONABLE to be a defense.
Exceptions to the warrant requirement ESCAPIST: EXIGENT circumstances; SEARCH incident to arrest; CONSENT; AUTOMOBILE; PLAIN view; INVENTORY; SPECIAL NEEDS; TERRY "stop and frisk".
Search incident to arrest ?
Right to Counsel under 6th Amendment.
Created by: mdiaz367