People v. Rizzo
Citation: 246 N.Y. 334 (1927)
Facts
Rizzo and three confederates drove around New York City looking for a payroll carrier named Rao, intending to rob him. They never found Rao and were arrested by police before making contact with any target.
Issue
Have defendants committed attempted robbery when they drove around searching for their intended victim but never found him or came in proximity to the crime?
Holding
No. The defendants’ conduct did not constitute attempted robbery because they never came sufficiently close to the completed crime. They were too far removed from the actual commission of the offense.
Rule
Attempt — dangerous proximity test (New York): An attempt requires that the defendant come “dangerously near” to the completed crime — that is, very close to its commission. Mere preparation, however elaborate, is insufficient. The defendant must have taken steps so near the final act that the crime would likely be completed but for timely interference.
Significance
- Classic case teaching the dangerous proximity test for criminal attempt
- Contrasted with the substantial step test (MPC § 5.01): under the MPC, a substantial step “strongly corroborative” of criminal purpose suffices for attempt; Rizzo would likely be convicted under the MPC standard (driving to rob, reconnoitering for victim)
- Illustrates the difficulty in drawing the preparation/attempt line; the two tests produce different results in borderline cases