What are the facts?
Rizzo and three confederates planned to rob a payroll carrier known to be transporting cash to an employer in the Bronx. Rizzo's role was to identify the intended victim, whom he had never met. Armed and using a car, the group drove around searching for the payroll man, stopping and circling likely locations. They never located the intended victim, never confronted or came into his presence, and never reached the place where the robbery would occur. Before they found him, the police, alerted to their suspicious conduct, stopped and arrested them; a revolver was found in the car. The defendants were charged and convicted of attempted robbery in the first degree. The Appellate Division affirmed. The Court of Appeals granted review.
What is the legal issue?
Whether defendants who intended to rob a payroll carrier, but were arrested before locating or confronting him, committed the crime of attempt where their conduct had not progressed beyond searching for the victim.
What rule applies?
At common law (as applied in New York), attempt requires an act beyond mere preparation that comes "dangerously near" the commission of the substantive offense—i.e., conduct so near to accomplishment that, in all reasonable probability, the crime would have been completed but for timely interference. Proximity is assessed by considering the nearness of the danger, the greatness of the probability of success, and the immediacy of the defendant's ability to commit the crime.
What did the court hold?
No. The defendants' conduct did not constitute an attempt because they had not found or approached the victim and were not in a position to commit the robbery; their acts amounted only to preparation and were not dangerously proximate to success. The convictions were reversed and the indictment dismissed.
What is the reasoning?
The Court emphasized that the law punishes attempts only when the actor's conduct has passed from preparation to execution and has come dangerously near success. Although the defendants clearly intended to commit robbery and had taken steps consistent with that purpose—assembling confederates, arming themselves, and searching for the target—these acts did not place them in immediate reach of the intended crime. They had not located the payroll man, had not come into his presence, and had not reached the place or moment where the robbery would occur. There remained substantial contingencies: finding the victim, approaching him, overcoming possible resistance, and executing the taking by force or fear. Because the defendants lacked an immediate, present ability to carry out the robbery at the time of arrest, the probability that the crime would occur absent police intervention was not sufficiently high. The Court reasoned that extending attempt liability earlier in the sequence of conduct would collapse the distinction between mere preparation and attempt, risking punishment based primarily on intent rather than on dangerously proximate conduct. Thus, the line of criminality is crossed only when the acts are so close to consummation that success would be reasonably certain but for interruption, a threshold not met here.
Why is this case significant?
People v. Rizzo is the leading New York case establishing the dangerous proximity test for attempt. It remains a touchstone in distinguishing preparation from attempt, providing factors—time, place, remaining contingencies, and probability of completion—that guide courts and students in close cases. It stands in deliberate contrast to the Model Penal Code's substantial step test, under which the same facts might more readily support attempt liability. For exam purposes, Rizzo supplies the vocabulary and analytical structure to argue both sides of the preparation/attempt divide, especially in scenarios involving search, surveillance, weapons, and co-conspirators.
What does the dangerous proximity test require?
It requires that the defendant's conduct go beyond planning or preparation and approach the completed offense so closely that, in all reasonable probability, the crime would have occurred but for timely interference. Courts weigh the nearness of the danger, the likelihood of success, and whether the defendant had an immediate ability to commit the offense at the time of intervention.
Would the outcome likely differ under the Model Penal Code's substantial step test?
Possibly. The MPC imposes liability when the defendant takes a substantial step strongly corroborative of criminal purpose. Searching for the victim while armed and en route to the crime can qualify. Many commentators suggest that under the MPC, Rizzo might have been found guilty of attempt, highlighting the doctrinal divergence between the MPC and Rizzo's stricter proximity requirement.
Did impossibility play any role in Rizzo?
No. The intended victim existed and could have been found. The case turned on proximity, not impossibility. The defendants were stopped before locating the victim; there was no factual or legal impossibility defense at issue.
What kinds of acts typically fail the dangerous proximity test as mere preparation?
Common examples include planning and rehearsing the crime, acquiring tools or weapons, driving to or scouting the area, and searching for the victim without having located or confronted them. These acts, standing alone, usually leave multiple contingencies and do not demonstrate immediate ability to consummate the offense.
How should students use Rizzo on exams?
Identify the target offense and list the steps remaining at the time of intervention. Argue proximity by assessing immediacy (time and place), the defendant's present ability, and the probability of success absent interference. Use Rizzo to argue that multiple remaining contingencies keep conduct at the preparation stage; contrast with MPC substantial step if the jurisdictional standard is ambiguous.