Master New York’s leading attempt case defining the dangerous proximity test and holding that mere preparation to commit robbery is not an attempt absent proximity to success. with this comprehensive case brief.
People v. Rizzo is a cornerstone in the law of criminal attempt and a staple of first-year Criminal Law courses. Decided by the New York Court of Appeals in 1927, the case articulates and applies the "dangerous proximity to success" test—an approach that draws the line between punishable attempts and mere preparation by asking how close, in time, place, and probability, the defendant came to completing the target offense. The opinion underscores that even strong evidence of criminal intent, detailed planning, and the possession of tools or weapons will not suffice unless the conduct has progressed to a point dangerously near consummation.
The case’s significance transcends New York: it serves as the common-law foil to the Model Penal Code’s "substantial step" framework. Whereas the MPC would often find attempt liability earlier—based on conduct strongly corroborative of criminal purpose—Rizzo preserves a stricter threshold, insisting on immediacy and near-certainty of success but for police intervention or other interruption. For students, Rizzo illuminates the doctrinal tension between public safety and overcriminalization, and it provides a precise vocabulary and set of factors for analyzing attempt problems on exams and in practice.
People v. Rizzo, 246 N.Y. 334, 158 N.E. 888 (N.Y. 1927)
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.
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.
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.
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.
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.
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.
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.
For students and practitioners, Rizzo supplies both a test and a method: count the steps remaining, gauge the immediacy and probability of success, and ask whether intervention thwarted an imminent crime or merely interrupted a plan still in formation. In jurisdictions following Rizzo, the bar for attempt remains high; in MPC jurisdictions, the analysis moves earlier in time, often with a different outcome on similar facts.