People v. Rizzo, 246 N.Y. 334, 158 N.E. 888 (N.Y. 1927)
People v. Rizzo is a cornerstone in the law of criminal attempt and a staple of first-year Criminal Law courses.
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.
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.