University:
John Jay College of Criminal Justice
Course:
LAW 209 | Criminal Law
Academic year:

2019
Views:

166

Pages:

2
Author:

Maverick Martin

● Rule ○ A defendant may not be convicted of attempt unless the defendant intentionally commits an act tending to the commission of a crime, which is so near to accomplishment of the crime that in all reasonable probability the crime itself would have been committed but for timely interference. ● Facts ○ Charles Rizzo (defendant) and three other men intended to rob Charles Rao of a payroll valued around $1,200. Rizzo was supposed to point out Rao to the other men, who would then commit the actual robbery. The men, two of whom had guns, drove around town in a car looking for Rao, but they were never able to find him. The men drove to the bank where Rao was supposed to pick up the payroll, as well as to various buildings being constructed by the company for which Rao was carrying the payroll. During the men's search, nearby police became suspicious and followed the vehicle. Rizzo jumped out of the car and ran into a building, and police arrested all four men. Although the men never found Rao, and nobody with a payroll was located at the buildings where the men stopped, the men were charged with attempted robbery. After a trial, a jury convicted Rizzo and the others of attempted first-degree robbery. Rizzo appealed. The appellate court affirmed the conviction, and Rizzo appealed to the New York Court of Appeals. ● Issue ○ May a defendant be convicted of the crime of attempt if the defendant has not committed an act tending to the commission of a crime, which is so near to accomplishment of the crime that in all reasonable probability the crime itself would have been committed but for timely interference? ● Holding & Reasoning ○ No. A defendant may not be convicted of attempt unless the defendant intentionally commits an act tending to the commission of a crime, which is so near to accomplishment of the crime that in all reasonable probability the crime itself would have been committed but for timely interference. Attempt is defined by New York statute as “[a]n act, done with intent to commit a crime, and tending but failing to effect its commission. . . .” The word tending is very indefinite. Tending means to exert activity in a particular direction. Any act taken in preparation to commit a crime can be said to be “tending” towards its accomplishment. But only those acts which advance very near to the accomplishment of the intended crime will support an attempt conviction. In other words, the act must have a "dangerous proximity" to successful commission of the crime. Here, Rizzo and the other men were looking for Rao to rob him of the payroll, but they were never able to even locate him. Rizzo and the others had the intent to commit the crime, but they never had the opportunity. Their acts are too remote to support a conviction for attempted first-degree robbery. Accordingly, Rizzo's judgment of conviction is reversed.