NY July 2015 Support Group Forum

[stronitsing]

Barbri Essay Question:

Can someone explain why on NY Evidence Essay Question 4, Part 2(a), why is the charge accomplice liability and not solicitation. In the answer it simply says "Editor's Note: He was not charged with these crimes." I am wondering where it says that? There is nowhere in the fact pattern it says he was charged with "Accomplice" liability, it only says that the individual was charge with 3rd Degree Arson which means all of Conspiracy, Accomplice, and Solicitation could get you there.

I don't have the question in front of me - but only accomplice liability could get you there because you're only liable for the crimes that you aid in.

[sd5289]

Nobody really knows how they score the essays, except that the average is 45-55.I think if you get all 50s on the written portion, ~50% on the NYMC, and like a 130 scaled, you'll JUST scrape by with a pass. If you're getting a 140 scaled, you have more leeway.

Ugh, the NYMC. I'm happy that my MBE's and essays seem to be going well because on the NYCM, I'm just like:

¯\_(ツ)_/¯

[michael2015]

Barbri Essay Question:

Can someone explain why on NY Evidence Essay Question 4, Part 2(a), why is the charge accomplice liability and not solicitation. In the answer it simply says "Editor's Note: He was not charged with these crimes." I am wondering where it says that? There is nowhere in the fact pattern it says he was charged with "Accomplice" liability, it only says that the individual was charge with 3rd Degree Arson which means all of Conspiracy, Accomplice, and Solicitation could get you there.

I don't have the question in front of me - but only accomplice liability could get you there because you're only liable for the crimes that you aid in.

Right but if you solicit someone to commit and crime and they complete that crime, you are held liable for the underlying crime as well (as well as Solicitation in NY because it doesn't merge). I think...

[sd5289]

No, solicitation and conspiracy don't merge in NY.

On the MBE it's only conspiracy that does not merge.

[michael2015]

Right. So why in Evidence Essay 4, couldn't the approach be solicitation instead of accomplice liability (which is how the Answer Key approaches it).

What am I missing why trying to "get him" on Solicitation would be wrong? Like am I just skipping the word that says "he is being prosecuted on a theory of accomplice liability"

[stronitsing]

Right. So why in Evidence Essay 4, couldn't the approach be solicitation instead of accomplice liability (which is how the Answer Key approaches it).

What am I missing why trying to "get him" on Solicitation would be wrong? Like am I just skipping the word that says "he is being prosecuted on a theory of accomplice liability"

Ah - well once you pay somebody, you become an accomplice and not just one who solicits. So solicitation goes out the window. But yeah, if they couldn't prove accomplice they could prosecute on solicitation.

[sd5289]

Right. So why in Evidence Essay 4, couldn't the approach be solicitation instead of accomplice liability (which is how the Answer Key approaches it).

What am I missing why trying to "get him" on Solicitation would be wrong? Like am I just skipping the word that says "he is being prosecuted on a theory of accomplice liability"

Sorry, that I don't know because I'm doing Themis, not Barbri.

However, this is how I keep the three (solicitation, conspiracy, and accomplice) straight:

Solicitation --> D asks someone else to commit crime w/ intent that party commit that crime (even where party refuses or is a cop)
Conspiracy --> where D agrees with someone else to commit crime (can start out as a solicitation/asking, but the other party has to agree)
Accomplice --> no requirement of asking or agreement; instead providing assistance or aid to principal

[michael2015]

Right. So why in Evidence Essay 4, couldn't the approach be solicitation instead of accomplice liability (which is how the Answer Key approaches it).

What am I missing why trying to "get him" on Solicitation would be wrong? Like am I just skipping the word that says "he is being prosecuted on a theory of accomplice liability"

Ah - well once you pay somebody, you become an accomplice and not just one who solicits. So solicitation goes out the window. But yeah, if they couldn't prove accomplice they could prosecute on solicitation.

Oh. Any source w/r/t the "pay someone and become their accomplice."
From the BarBri CrimLaw Distinctions page, both Accomplice Liability and Solicitation use the same phrases of: "solicit, requests, commands, importunes..." And, Solicitation also includes "attempts to cause the other person to engage in such conduct." Which would seem to include payment.

[AReasonableMan]

Are all 5 of the essays New York law? Just trying to get how to divvy up my time (just doing essay outline from here on out), but figuring out what law to learn

[stronitsing]

Are all 5 of the essays New York law? Just trying to get how to divvy up my time (just doing essay outline from here on out), but figuring out what law to learn

yep

[myrtlewinston]

Does anyone have a sense of what we have to know for Trusts?

I was wondering the same thing. According to Smart Bar Prep frequency thing (http://www.smartbarprep.com/SmartBarPre ... alysis.pdf.), these are the top 3 and the associated percentages of frequency on NY essays:

1. Purchase Money Resulting Trusts (PMRT) - 10%

2. Amendment to a Trust after Execution of a Will with a Pour-over Provision - 7.5%

3. Default Rules for Amending or Terminating a Trust - 7.5%

Besides that, I'm not sure what else we need to know. Not sure how much time I'm going to devote to Trusts since it has appeared on 7% of essays according to the chart at the beginning of that PDF.

Thanks. That lecture was painful.

[myrtlewinston]

I spent a good part of today memorising Tort rules and realised that there are numerous NY distinctions. Ugh.

[stronitsing]

Right. So why in Evidence Essay 4, couldn't the approach be solicitation instead of accomplice liability (which is how the Answer Key approaches it).

What am I missing why trying to "get him" on Solicitation would be wrong? Like am I just skipping the word that says "he is being prosecuted on a theory of accomplice liability"

Ah - well once you pay somebody, you become an accomplice and not just one who solicits. So solicitation goes out the window. But yeah, if they couldn't prove accomplice they could prosecute on solicitation.

Oh. Any source w/r/t the "pay someone and become their accomplice."
From the BarBri CrimLaw Distinctions page, both Accomplice Liability and Solicitation use the same phrases of: "solicit, requests, commands, importunes..." And, Solicitation also includes "attempts to cause the other person to engage in such conduct." Which would seem to include payment.

The crim law essay (maybe evidence 2?) where he gave him a key to his building and also paid him to commit arson. Granted, the key looks more accomplice-like. But accomplice includes encouragement, so I figure money has to fit within that. Right?

[starryski]

Right. So why in Evidence Essay 4, couldn't the approach be solicitation instead of accomplice liability (which is how the Answer Key approaches it).

What am I missing why trying to "get him" on Solicitation would be wrong? Like am I just skipping the word that says "he is being prosecuted on a theory of accomplice liability"

Sorry, that I don't know because I'm doing Themis, not Barbri.

However, this is how I keep the three (solicitation, conspiracy, and accomplice) straight:

Solicitation --> D asks someone else to commit crime w/ intent that party commit that crime (even where party refuses or is a cop)
Conspiracy --> where D agrees with someone else to commit crime (can start out as a solicitation/asking, but the other party has to agree)
Accomplice --> no requirement of asking or agreement; instead providing assistance or aid to principal

also remember in NY conspiracy requires an overt act.

[jamesm722]

Right. So why in Evidence Essay 4, couldn't the approach be solicitation instead of accomplice liability (which is how the Answer Key approaches it).

What am I missing why trying to "get him" on Solicitation would be wrong? Like am I just skipping the word that says "he is being prosecuted on a theory of accomplice liability"

Sorry, that I don't know because I'm doing Themis, not Barbri.

However, this is how I keep the three (solicitation, conspiracy, and accomplice) straight:

Solicitation --> D asks someone else to commit crime w/ intent that party commit that crime (even where party refuses or is a cop)
Conspiracy --> where D agrees with someone else to commit crime (can start out as a solicitation/asking, but the other party has to agree)
Accomplice --> no requirement of asking or agreement; instead providing assistance or aid to principal

also remember in NY conspiracy requires an overt act.

NY also follow unilateral consent for conspiracy.

I'm doing Pieper but it would seem that, from your description - NY holds a Δ criminally responsible for the criminal conduct of another by providing: that when one person engages in conduct constituting an offense, another person is criminally responsible for the same conduct if he had the mental culpability for its commission and he solicits, requests, commands, importunes, or intentionally aids such person in such conduct.

This is accessory before the fact where one orders, solicits, commands something. They're guilty of the crime not solicitation. Ex: hiring a hitman, mob bosses, etc.

[orangecup]

Heh, just tried my hands at a set of 50 NYMC, got 25. Good enough I suppose. 3/13 on NY Civil Practice. Ouch.

I sort of rushed through them though (34 minutes), so maybe I would've done marginally better had I used the full time.

[xlawschoolhopefulx]

Right. So why in Evidence Essay 4, couldn't the approach be solicitation instead of accomplice liability (which is how the Answer Key approaches it).

What am I missing why trying to "get him" on Solicitation would be wrong? Like am I just skipping the word that says "he is being prosecuted on a theory of accomplice liability"

Ah - well once you pay somebody, you become an accomplice and not just one who solicits. So solicitation goes out the window. But yeah, if they couldn't prove accomplice they could prosecute on solicitation.

Solicitation does not merge in NY, so I don't think it 'goes out the window.' BUT I think the reason they talked about accomplice liability and not solicitation or conspiracy is because accomplice liability is not in and of itself a crime. You are not charged with "accomplice," you are charged with having committed the underlying crime due to your role in requesting, commanding, importuning etc. Don't forget, solicitation and conspiracy are inchoate crimes- he would have been charged with the crime of solicitation or the crime of conspiracy. If they ask about the actual underlying crime, then always discuss accomplice.

[sd5289]

Heh, just tried my hands at a set of 50 NYMC, got 25. Good enough I suppose. 3/13 on NY Civil Practice. Ouch.

I sort of rushed through them though (34 minutes), so maybe I would've done marginally better had I used the full time.

The average % correct during the Themis NYMC simulation was 44%. Unlike the essays the MC test the most ridiculously obscure rules.

[orangecup]

Heh, just tried my hands at a set of 50 NYMC, got 25. Good enough I suppose. 3/13 on NY Civil Practice. Ouch.

I sort of rushed through them though (34 minutes), so maybe I would've done marginally better had I used the full time.

The average % correct during the Themis NYMC simulation was 44%. Unlike the essays the MC test the most ridiculously obscure rules.

Good to know! As long as I'm around the average, that's good enough in my opinion. I wish Kaplan offer something similar (avg % correct).

[summeisruined]

Hey

Do you guys think we gonna have an essay about administrative law or we a re going to be lucky such as the guys on feb....

I know it's knew and that they might want to test it but :

-admin will not be tested from july 2016
-i heard that in july, they like to test more traditional topics...

peace.

[stronitsing]

Right. So why in Evidence Essay 4, couldn't the approach be solicitation instead of accomplice liability (which is how the Answer Key approaches it).

What am I missing why trying to "get him" on Solicitation would be wrong? Like am I just skipping the word that says "he is being prosecuted on a theory of accomplice liability"

Ah - well once you pay somebody, you become an accomplice and not just one who solicits. So solicitation goes out the window. But yeah, if they couldn't prove accomplice they could prosecute on solicitation.

Solicitation does not merge in NY, so I don't think it 'goes out the window.' BUT I think the reason they talked about accomplice liability and not solicitation or conspiracy is because accomplice liability is not in and of itself a crime. You are not charged with "accomplice," you are charged with having committed the underlying crime due to your role in requesting, commanding, importuning etc. Don't forget, solicitation and conspiracy are inchoate crimes- he would have been charged with the crime of solicitation or the crime of conspiracy. If they ask about the actual underlying crime, then always discuss accomplice.

you can't be charged as just an accomplice, ever?

[freestallion]

Right. So why in Evidence Essay 4, couldn't the approach be solicitation instead of accomplice liability (which is how the Answer Key approaches it).

What am I missing why trying to "get him" on Solicitation would be wrong? Like am I just skipping the word that says "he is being prosecuted on a theory of accomplice liability"

Ah - well once you pay somebody, you become an accomplice and not just one who solicits. So solicitation goes out the window. But yeah, if they couldn't prove accomplice they could prosecute on solicitation.

Solicitation does not merge in NY, so I don't think it 'goes out the window.' BUT I think the reason they talked about accomplice liability and not solicitation or conspiracy is because accomplice liability is not in and of itself a crime. You are not charged with "accomplice," you are charged with having committed the underlying crime due to your role in requesting, commanding, importuning etc. Don't forget, solicitation and conspiracy are inchoate crimes- he would have been charged with the crime of solicitation or the crime of conspiracy. If they ask about the actual underlying crime, then always discuss accomplice.

you can't be charged as just an accomplice, ever?

No, being an 'accomplice' in itself is not a crime on its own. You are charged with 1) the underlying offense you aided/abetted, plus 2) any other crimes that are reasonably foreseeable that are committed by the principal.

[freestallion]

Also, I'm finding it very hard to distinguish between (keep straight in my head) the inchoate crimes in common law and in NY, especially withdrawal. Am I right in saying that for: attempt, conspiracy, AND solicitation in NY, to withdraw successfully you must: 1) have a complete and voluntary renunciation (it must be voluntary from a change of heart, not escaping because you fear you will be caught), AND 2) take an action that successfully *prevents* the crime (not just attempt to prevent, but actually prevent)?
And for accomplice liability, to withdraw in NY, you need: only complete and voluntary renunciation plus make a *substantial effort* to prevent the crime (meaning: you don't have to succeed in preventing the crime)??

Bit confusing here...

[xlawschoolhopefulx]

Also, I'm finding it very hard to distinguish between (keep straight in my head) the inchoate crimes in common law and in NY, especially withdrawal. Am I right in saying that for: attempt, conspiracy, AND solicitation in NY, to withdraw successfully you must: 1) have a complete and voluntary renunciation (it must be voluntary from a change of heart, not escaping because you fear you will be caught), AND 2) take an action that successfully *prevents* the crime (not just attempt to prevent, but actually prevent)?
And for accomplice liability, to withdraw in NY, you need: only complete and voluntary renunciation plus make a *substantial effort* to prevent the crime (meaning: you don't have to succeed in preventing the crime)??

Bit confusing here...

Yup, that's right.

Withdrawal ("renunciation" in NY) for accomplice liability requires renunciation of the criminal purpose and making a substantial effort to prevent the commission of the crime. Withdrawal for conspiracy or solicitation, on the other hand, requires that you prevent the crime from occurring. It kind of makes sense because conspiracy and solicitation are inchoate crimes -- the crime is in the asking/preparing. So, the only way you aren't liable for the asking/preparing is if the crime itself doesn't happen, since otherwise your role in making it happen was the reason the crime was able to occur. If that makes sense...

[stronitsing]

Right. So why in Evidence Essay 4, couldn't the approach be solicitation instead of accomplice liability (which is how the Answer Key approaches it).

What am I missing why trying to "get him" on Solicitation would be wrong? Like am I just skipping the word that says "he is being prosecuted on a theory of accomplice liability"

Ah - well once you pay somebody, you become an accomplice and not just one who solicits. So solicitation goes out the window. But yeah, if they couldn't prove accomplice they could prosecute on solicitation.

Solicitation does not merge in NY, so I don't think it 'goes out the window.' BUT I think the reason they talked about accomplice liability and not solicitation or conspiracy is because accomplice liability is not in and of itself a crime. You are not charged with "accomplice," you are charged with having committed the underlying crime due to your role in requesting, commanding, importuning etc. Don't forget, solicitation and conspiracy are inchoate crimes- he would have been charged with the crime of solicitation or the crime of conspiracy. If they ask about the actual underlying crime, then always discuss accomplice.

you can't be charged as just an accomplice, ever?

No, being an 'accomplice' in itself is not a crime on its own. You are charged with 1) the underlying offense you aided/abetted, plus 2) any other crimes that are reasonably foreseeable that are committed by the principal.

Ah I didn't realize this. I appreciate it.

Does anyone have a good way of keeping the two assumption of risk theories straight? So one forbids recovery despite comparative negligence rules, and the other just limits it?

Same thing with keeping the two theories of NIED straight. Bystander NY NIED requires zone of danger/observation/close family/emotional distress, and if under a close call theory it only requires breach/zone of danger/emotional distress. Doesn't D's breach, typically at least, occur under bystander anyway liability? So it's almost identical but without the requirements of observation/close family?