Helens NY law test #2
Terms
undefined, object
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- Felony
- potential punishemtn of more than one year incarceration
- misdemenor
- punishable of up to 1 year in jail
- crimes
- a felony or misdemenor
- violation
- punishabel by up to 15 days incarceration
- persistant felon
- 3 strikes rule
- Class A misdemenor
- up to 1 yr in local jail
- class B misdemenor
- up to 90 days in jail
- Class A felony
- up to life in prison
- Class B felony
- up to 25 years
- Class C felony
- up to 15 years
- Class D felony
- up to 7 years
- Class E felony
- up to 4 years
- aggrivating factor
- that which raises the seriousness of the crime
- examples of aggrivating factors
- 1. amount 2. weapon 3. culpable mental state 4. hate crime 5. age of victim 6. type of building 7. # of times previously convicted
- amount
- agrivating factor commonly found in the larceny and drug offenses
- weapon
- use or the treatened use of this is an aggrivating factor. commonly found in the robbery burglary nd assault statutes
- heiarchy of weapons
- dangerous instsrument -> deadly weapon --> explosive
- culpable mental state
- aggrivating factor commonly found in the homicide and assault offneses. Intentionally- knowingly- recklessly-- with criminal negligence.
- hate crime
- aggrivating factor when the victim is part of a protect group. harassment.
- age of victim
- aggrivating factor commonly found in rape 3rd and sex crime offenses
- type of building
- aggrivating factors commonly found in burglary offenses
- # of times previously convicted
- aggrivating factor commonly found in DWI offenses.
- plea bargaining
- the defendant gets a lesser charge in exchange for a guilty plea.
- why would a DA plea bargain?
- lack of evidence, uncoperative witnesses, defendants aggrement to coperate in finding other criminals.
- white collar crimes
- professionals who commit fraud or emberzzlement in their professional capacity. non-violent, thefts.
- victimless crime
-
no complaining witness. prostitution, drug offenses, gambling
Is society a the victim? - wade hearing
- a pretrail hearing to contest the validity of a prior identifycation proceeding.
- inferior court
- preliminary jurisdiction over felonys and trial jurisidiction over misdemenors
- huntley hearing
- a pretrial hearing used to suppress statements that a defendatn has made to the police in violation of his constitutional rights. contests the validity of a statement
- mapp hearing
- a pretial hearing to determine tha admissibility of physical evidence seized by the goverment. `
- stages in a criminal proceeding
-
1. filing of accusatory instrument
2. arraignment
3. preliminary hearing (FELONYS ONLY***)
4. grand jury
5. arraginment in superior court
6. discovery
7
pretial hearings
8. trial
sentence
appeal - filing an accusatory instrument
- marks the offical start of a criminal prosicution. (felony compalint, misdemenor complaint, prosecutors information)
- arraginment
-
necessary by mandate of the constitution. adivsed:
right to cousel, of the charges against you, bail. at the arraigment after gj action a def. can plea guilty to a felony in superior court - bail
- ensures the defendants timely return to court. necessary for a misdemenor, judicial discretion used on felony) look into any bench warrents
- ROR
- relased on recognisence. insted of bail
- preliminary hearing
- felonys only. provide evidence to prove probable couse and that the defendant committed the crime. within 5-6 days of arrest held in LCC. determines if you can be held in custordy
- grand jury
- chargin agencys. sit for terms of about 30 days. 16-23 people. 12 to indict. if not 12 its a no bill (ADA can try again w/ different jury 1X) true bill is where probable cause is established
- prosecutors information
- grand jury action that tells the DA that there is insufficient evidence to support a felony, but they should file misdemenor charges in LCC
- indictment
- action from the grand jury that confers trial jurisdiction to a superior trial for for a cfelony.
- discovery
- 45 day motion period to clarify factual issues
- challenge for cause
- vior dire challenge. unlimited. attorneys dismiss jurors for vaild reasons that make it impossible for them to be fair/impartail.
- batson v. kentucky
- a peremporty challange can not dimiss a juror purely for racial reasons
- peremptory challenges
- limited by statute. each attorney can dissmiss a certain number of jurors without giving a reason A felony =20 each b/c felony=10 each, other felonies =10
- preliminary instructions
- judge advises jury of appropriate behavior during trial (keep open mind, dont visit scene etc)
- opening statements
- DA must give statement and goes first. the defense can if they want. gives outline of case to jury and must establish all elements of the crimes charged.
- proof
- peoples case in cheif. da has the burden
- summations
- defense goes first. DA goes last and is required to make one. it summerizes the case.
- deliberations
- jury renders a verdict which must be unanamous.
- verdict
- must be unanamious. end product of jurors deliberations. a finding of guilt or innocent.
- steps on a trial
-
jury selection/challenges
2. preliminary instructions
3. opening statemtn
5. proof direct the corss examination
6. summation
final charge
(deliberation then verdict) - types of criminal senences
-
1. fine
2. conditional/unconditional discharge
3. probation
3. incarceration
5. death - fine
- crimainal sentance where money is paid to state. limited in amount by statute
- restitution
- money paid to an indevidual. a condition of probation limite by amount of damage
- condition/unconditional discharge
- def cant get rearrested for a certain time period until case expires, if he does his case will be put back on the courts calander for sentancing. condtions like community service or restitution may apply
- probation
- alternative sentaence. placed under supervison defedent must report on a regular basis so employment or progress can be monitored. if def fails to meet conditions he can be resentenced.
- bifercated trial
- required process to make the death penalty legal. 2 prong trial A. establish guilt B. decide punishment. uses the same jury that established guilt
- NYS death penalty
- enacted in 1995, never been used. declared unconsititional and still is.
- when cant you plea?
- if capitol punishment is an option
- who decides if the death penalty is asked for
- the DA must formally request it after arraignment in superior court.
- murder 1
- victim was: on duty police/peace officer. a crime witness/ memboer of a crime witnesses family, killed for money, felony murder, same transaction w/ 2 deaths, torture, 2 or more victims, judge
- rehabilitation
- defendants antisocail behavior is corrected
- specific deterance
- defendant wil not commit cirmew while in prison and dislike the experince so much that he will aviod futher aviod fruther criminal activity
- general deterrance
- making an example. others in the community will choose not to commit this act, fearing the same punishment.
- warehousing
- while the defendant is behind bars, he cannot committ crimes out in society
- people v. ingle
- in order to be pulled over, the cop must have reasonable suspicion that you broke the vehicle and traffic law.
- when can a cop get you out of the car?
- pretty much allways.
- when can you stop and frisk
- reasonable suspicion that criminal activity is afoot.
- 2 ways to convict a DWI
-
common law- look drunk, slur speech, failure of roadside test
BAC- .08 or higher - common law DWI
- abillity to drive is severly imparied.
- what happens if you refuse to take a breathalizer?
- your license can get revoked. you will not get a plea bargain. refusual to take the test will be used against you in court
- commisioners warning
- trigged when defendant refuses a breathalizer
- to get pulled over
- reasonable suspicion that Vehicle and traffic law is violated or probable cause that a crime is being or has been commited
- can you use an attorney to help decide if you should take a breathazlizer?
- police must allow you the opportunity to try and contact your lawyer, but if they cannot be reached in reasonable time, you must make your own decision.
- considerations when asked to take a breathalzier
-
how much have i had?
how will this affect my job?
prior convictions? - Surcharges
- imposed with fine in court. paid to state.
- administrative law
- deals with discrimination
- what do enabling statutes create
- they create commissions
- what do commissions create
- they create regulations and procedures.
- Federal remidys against discrimination
- EEOC (is the agency), equal pay act, title VII, age discrimination in employment act, americans with disabilities acts
- EEOC
- an administrative agnecy. equal employment oppertunity commison, must have 15 employees for jurisdiction
- ALJ
- administrative law judge
- when does a discrimination case go to federal court
- after all the EEOC administrative remedies have been exhasted.
- Human rights law
- ny remedie against discrimination. proscribes discrimination based on age, race, creed, religion, color, national origin, sex, disability or martial status
- DHR
- division of human rights. administative (state) agency that enforces the Human rights law. jurisdiciton of more than 4 employees.
- how does a case get to NYS courts
- after DHRS administrative agencies have exhasted options
- ADEA
- age discrimination in employment act
- ADA
- americans with disablitys act
- Title VII
- civil rights act
- Title IX
- prohibits gender discrimination in college sports
- DHR investigative procedure
-
1. recieve complaint and notify respondents
2. resolve questions of juridiction
3. at request, send copy of complaint to EEOC
4. investigate through appropriate mehtods (confrence, field work etc)
5. attempt to settle matter through conciliation
6. if it cant, Divion will determine if there is probable cause to belive an act of discrimination has occurred. - DHR procedure after investigation
-
1. represented by division attorney
2. notice of hearing is issued at least 1 week in advance
3. ALJ presides over case
4. proposed over is prepared
5. dissimed, or ordered to responded and cease and desist discriminatory behavior. - Compliance investigation
- within one year, the compliance investigation unti checks whether the respondent has compiled with the provisions of the order
- how do courts analyze discrimination cases
-
disparate treatment
disparate impact - disparate treatment
- means that some people claim they were treated less favorably than others b/c of unlawful discrimination. must prove by preponderance that employer intended to discriminate. 1 person?
- disparate impact
- a neutral employment practice has an adverse impact on a protected froup of employees that negativly affects some employees more than others. employer must prove by a preponderacne that practice is busness justified.
- BFOQ
- Bona fide occupational qualfication. discrimiantion is allowable if an employer establishes a lawful job-related reason for the discrimination
- when can you discrimiate on basis of disability
- when it interfers w/ a persons ability to preform their job in a reasonable mannor.
- can you be fired if a disability makes you miss work?
- yes, its not protected by ADA, even when your disability is the result of an on the job injury
- what is sexual harassment
- unwanted sexual adavnces, requrests for sezul favors, or other verbal or physical conduct of sexual nature when 1. submission to conduct explicitly or implicity a term or condtion of an indiviuals employment or 2. submission to or rejection of such conduct by and individual is used as the basis for emoployment decisions affecting individual 3. conduct has the purpose of unreasonable interfering wiht an affected persons work performatnce. or creating a hostile work enviorment.
- what else has discrimination laws?
- credit, housing, theatres, public buidings and transportation
- afirmative actions
- requires employers, schools etc, to take positive steps in reducing present discrimination. lawfully allows prefentail treatment based on clolr, sex, creed, and age.