Whether defendants who armed themselves and searched for an intended payroll victim committed attempted first-degree robbery even though they never found or encountered that victim.
Holding
No. Their conduct was preparation, not an attempt, because it did not come dangerously near to the completed robbery.
Reasoning
New York's attempt statute covered an act done with intent to commit a crime that tends but fails to accomplish it. Intent alone is insufficient, however, and the word "tending" cannot include every preparatory act. Otherwise, virtually any step taken toward a contemplated offense would itself become an attempt.
The Court applied the established proximity rule: an act is an attempt only when it is so near to the completed offense that, in all reasonable probability, the crime would have occurred but for timely interference. Put another way, the defendant's conduct must create a dangerous proximity to success, rather than merely reveal a plan and efforts to locate an opportunity.
The defendants undoubtedly intended to rob a payroll carrier, and obtaining a car, carrying weapons, and searching for Rao all moved in that direction. But they never located Rao, saw him, identified him, or reached his presence. No payroll carrier was at any place they stopped, and apparently no payroll had yet been withdrawn from the bank.
Because robbery requires taking property from the person or presence of another through force, violence, or fear, these defendants could not begin the contemplated holdup until a target carrying the payroll came into view. Their situation was comparable to a planned burglar arrested while still searching the streets for an unknown building, or a would-be murderer who arms himself but cannot find the intended victim. The opportunity to commit the crime had never arisen, so their acts remained too remote to constitute an attempt.