People v. Rizzo
246 N.Y. 334, 158 N.E. 888 (1927)

  • Rizzo and three other guys had a plan to rob a guy named Rao as he walked to the bank carrying a large amount of cash for payroll.
    • They got guns and made preparations for the robbery.
  • Rizzo and the three guys drove around, but they couldn’t find Rao. Eventually they were spotted by a suspicious policeman and were arrested.
    • Presumably they confessed what they were doing.
  • The Trial Court convicted Rizzo et. al. of attempted robbery. They appealed.
    • Rizzo argued that they had not made an attempt, only a preparation.
  • The New York Supreme Court overturned the convictions.
    • The New York Supreme Court looked to New York law which defined attempted robbery as “An act, done with the intent to commit a crime, and tending but failing to effect its commission is an attempt to commit that crime.”
    • The Court narrowed the scope of the law to “those acts only as tending to the commission of the crimes which are so near to its accomplishment that in all reasonable probability the crime itself would have been committed, but for timely interference.”
      • Aka “There must be dangerous proximity to success.”
    • In this case, the Court found that the robbers never found Roe, and so weren’t in dangerous proximity to committing the crime.
      • There was a real chance that they would never have found Roe at all.
      • On the other hand, if they had found Rao and were drawing their guns when the policeman stopped then, then that would be enough for attempted robbery.
  • This standard is sometimes known as the dangerous proximity test.
  • The term locus penitentiae means “an opportunity to repent.” Courts are reluctant to move the threshold of criminality to an earlier point because there s a desire to preserve the defendant’s opportunity to change their mind and not commit the crime.
    • When a person is charged with attempt it is assumed that they would have committed the crime if they had not been stopped, but is that fair to the defendants? In this case, if the robbers had come upon Rao giving the money to orphans maybe they would have had a change of heart and not robbed him.