Citation. 246 N.Y. 334, 158 N.E. 888 (1927)
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The Defendant, Rizzo and three others (Defendant), were convicted of attempted robbery, despite the fact they were caught by police prior to ever coming within the vicinity of the person they allegedly attempted to rob at gunpoint.
Synopsis of Rule of Law.
An “attempt” to commit a crime is not proven unless a defendant’s actions come very near to the actual accomplishment of the attempted crime.
Facts.
Four individuals, including Defendant, intended to rob a person transporting payroll cash from a bank to a place of business. Defendant was included because he claimed he would be able to identify the man who would be carrying the money. All four got in a car, two of them with firearms and drove to the bank, but could not find the intended victim. They proceeded to a number of locations where they believed he might have gone to until they were apprehended by police who found their conduct suspicious. At no point had they found out where the man with the payroll cash was. In fact, at the time of their arrest, the payroll cash had yet to be withdrawn from the bank.
Issue.
Has a Defendant attempted to commit a crime in the absence of evidence that he came very close to the actual accomplishment of the crime?
Held.
No.
Though Defendant planned to commit the crime of robbery and went around the city looking for an opportunity to commit the crime, the opportunity never in fact presented itself because the intended victim had not been located by the time the police intervened. For an attempted crime to be proven there must be “dangerous proximity to success.” Such proximity was not present in this case because the Defendant had not found the intended victim and the payroll cash had not even been taken from the bank by the time the men were arrested.
Discussion.
This case demonstrates the threshold requirement for an “attempt” crime to be established. The state must show not just an intention to commit a crime, but show that action was taken just short of actually accomplishing the crime itself.
