Facts
- Charles Rizzo and three associates agreed to rob Charles Rao, a payroll carrier expected to have about $1,200.
- Two members of the group carried firearms.
- Rizzo’s role was to identify and point out the payroll carrier to the others, who would commit the holdup.
- On January 14, the group drove to places where Rao was expected to appear, including a bank and multiple construction sites.
- Police observed and followed the group; officers arrested all four men after Rizzo ran into a building and hid.
- At the time of arrest, the intended victim (and any payroll carrier) was not present at any location the group visited; the group had not found, seen, or identified the person to be robbed.
Issues
- Whether driving around while armed and searching for an intended robbery victim, without locating or confronting him, constitutes an attempt to commit first-degree robbery under New York Penal Law § 2.
Decision
- The New York Court of Appeals reversed Rizzo’s conviction and ordered a new trial.
- The court held the evidence did not establish an attempted first-degree robbery because the defendants’ conduct had not come sufficiently near to completing the robbery.
Legal Principles
- An attempt requires an act done with intent to commit a crime that “tend[s] but fail[s]” to accomplish it; “tending” demands objective proximity to completion.
- Preparatory acts, even when strongly corroborating criminal intent (including arming oneself and searching), are insufficient if they remain remote from consummation.
- Attempt liability attaches only where the defendant’s acts are so near to accomplishment that, in all reasonable probability, the crime would have occurred but for timely interference.
- When the target of the contemplated crime has not been found or reached, and there is no immediate opportunity to carry out the offense, the conduct is generally treated as preparation rather than attempt.
Conclusion
The court concluded that intent plus armed reconnaissance to locate a payroll carrier did not amount to attempted robbery because the defendants never found or reached the victim and therefore were not dangerously near completing the crime.