PEOPLE V. RIZZO, 246 N.Y. 334, 158 N.E. 888 (1927)
The case was heard, and the four defendants were convicted of the crime of an attempt to
commit robbery in the first degree by Bronx County Court.
One of the four defendants, Rizzo, appealed to the Appellate Division of the Supreme Court
in the First Judicial Department, who affirmed his conviction by a divided court, two of the
Rizzo thereafter appealed to the Court of Appeals of New York.
Did the Defendant commit attempted Robbery even though there was preparation and intent
but no physical commission against the intended victim?
For the crime of attempt, the law will consider those acts only as tending to the commission
of the crime, which are so near to its accomplishment that in all reasonable probability, the
crime itself would have been committed but for timely interference.
Charles Rizzo, Anthony J. Dorio, Thomas Milo, and John Thomasell intended to rob a
courier known as Charles Rao carrying payroll. Rizzo was supposed to identify the courier to
the other men, who would commit the actual robbery.
The men, two of whom had guns, drove around town in a car looking for Rao, but they were
never able to find him. The men went to the bank where Rao was supposed to pick up the payroll
and various buildings constructed by the company for which Rao was carrying the payroll. During
the men’s search, nearby police became suspicious and followed the vehicle.
Rizzo jumped out of the car and ran into a building, and police arrested all four men for attempted
robbery. The men never found Rao, and nobody with payroll was located at the buildings where
the men stopped.
The Court has examined the facts of the case and applied the legal rules to those facts.
The Court looked at the Penal Law, Section 2, which prescribes, “an act, done with intent to
commit a crime, and tending but failing to effect its commission, is ‘an attempt to commit
It further defined the word “tending” to mean to exert activity in a particular direction, and
any act in preparation to commit a crime may be said to have a tendency towards its
Robbery is defined in section 2120 of the Penal Law as “the unlawful taking of personal
property, from the person or in the presence of another, against his will, using force, or
violence, or fear of injury, immediate or future, to his person; “and it is made robbery in the
first degree by section 2124 when committed by a person aided by accomplices actually
The Court also addressed itself to the following precedents in finding that the act or acts must
come or advance very near to accomplishing the intended crime to constitute an attempt.
People V. Mills (178 N.Y. 274, 284)
It was stated that “Felonious intent alone is not enough, but there must be an overt act
shown in order to establish even an attempt. An overt act is one done to carry out the
intention, and it must be such as would naturally effect that result, unless prevented by
some extraneous cause.”
Hyde v. U.S. (225 U.S. 347)
It was stated that the act amounts to an attempt when it is so near to the result that the
danger of success is very great. “There must be dangerous proximity to success.”
Halsbury, in his “Laws of England” (Vol. IX, p. 259), says:
“An act, in order to be a criminal attempt, must be immediately, and not remotely,
connected with and directly tending to the commission of an offense.”
Commonwealth v. Peaslee (177 Mass. 267).
It refers to the acts constituting an attempt as coming very near to the accomplishment of
Applying the above rules of immediate nearness to this case and being dangerously near to
taking one’s property. The court found that the defendants were looking for the payroll man
to rob him of his money.
To constitute the crime of robbery, the money must have been taken from Rao using force or
violence or through fear.
The crime of attempt to commit robbery was committed if these defendants did an act tending
to the commission of this robbery.
The defendants were still looking for him, so no attempt to rob him could be made, at least
until he came in sight; he was not in the building, and there was no man there with the payroll
for whom these defendants could rob.
The court finally concluded that, in a word, these defendants had planned to commit a crime
and were looking around the city for an opportunity to commit it, but the opportunity
fortunately never came.
The appellant’s Judgment of conviction was reversed, and a new trial was granted.
The Justices agreed with the Court’s opinion as well as its disposition.
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