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.
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.
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.
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.
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.
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.
People v. Rizzo draws the doctrinal boundary between intent plus preparation and criminal attempt by insisting on conduct dangerously proximate to the completed offense. The decision underscores that even vivid evidence of intent, detailed planning, and possession of weapons does not suffice unless the actor is in immediate position to accomplish the crime.