246 N.Y. 334, 158 N.E. 888 (1927)
Charles Rizzo, the defendant and appellant, with three others, Anthony J. Dorio, Thomas Milo and John Thomasello, on January 14 planned to rob one Charles Rao of a payroll valued at about $1,200 which he was to carry from the bank for the United Lathing Company.1 These defendants, two of whom had firearms, started out in an automobile looking for Rao or the man who had the payroll on that day.2 Rizzo claimed to be able to identify the man and was to point him out to the others who were to do the actual holding up.3
The four rode about in their car looking for Rao. They went to the bank from which he was supposed to get the money and to buildings being constructed by the United Lathing Company.4 At last they came to One Hundred and Eightieth Street and Morris Park Avenue. By that time they were watched and followed by two police officers.5 As Rizzo jumped out of the car and ran into a building all four were arrested. The defendant was taken out from the building in which he was hiding.6
Neither Rao nor a man named Previti, who was also supposed to carry a payroll, were at the place at the time of the arrest. The defendants had not found or seen the man they intended to rob. No person with a payroll was at any of the places where they had stopped and no one had been pointed out or identified by Rizzo. The four men intended to rob the payroll man, whoever he was. They were looking for him, but they had not seen or discovered him up to the time they were arrested.7
The four defendants were tried together upon the same evidence and jointly convicted and sentenced to State prison for varying terms.8 Rizzo was the only one of the four to appeal to the Appellate Division and to this court. His conviction was affirmed by the Appellate Division by a divided court, two of the justices dissenting.9
Whether the steps which the defendant had taken up to the time of his arrest amounted to the commission of a crime of attempt to commit robbery in the first degree?10
Section 2 of the Penal Law provides that an act done with intent to commit a crime and tending but failing to effect its commission constitutes an attempt.11 The law distinguishes remote preparatory acts from those proximate to consummation, treating as an attempt only those acts so near accomplishment that in all reasonable probability the crime would have been committed but for timely interference, requiring dangerous proximity to success.12
No. The defendants planned the robbery of Rao's payroll, armed themselves, entered an automobile, and drove to the bank and construction sites while searching for the victim.13 They never located Rao or Previti, never saw any person carrying the payroll, and performed no act approaching the use of force or violence against an identified target.14 Their conduct therefore remained mere preparation that had not advanced to the required proximity under the rule.15
The acts did not constitute an attempt to commit robbery in the first degree, so the conviction must be reversed and a new trial ordered.16