Dangerous Proximity Test

Dangerous Proximity Test

The dangerous-proximity test is the traditional common-law answer to the question of where preparation ends and attempt begins, and it measures the defendant's conduct by how near it has come to finishing the target offense. The conduct must come dangerously close to completing the crime, so close that the offense would likely have occurred had nothing interrupted it, and a defendant who stops short of that point has done only preparation, however clear the intent behind the conduct.¹ The first part below states the rule and the reason for its shape, and the second shows how strictly the New York Court of Appeals applied it in People v. Rizzo.²

The Common Law Standard

Under the traditional common-law approach, conduct becomes an attempt only when it comes dangerously close to completing the target offense, and mere preparation, meaning the gathering and positioning that come before a crime, does not suffice.³ The New York Court of Appeals gave the standard its classic wording in People v. Rizzo, treating as attempts only those acts so near to accomplishment of the crime that in all reasonable probability it would have been committed but for timely interference.⁴ That wording is needed because almost every act of preparation tends toward the crime in some loose sense, so the court must measure how far the defendant has actually advanced.⁵ It makes the measurement from the finished crime backward: the court stands at completion and counts what still separates the defendant from it.

A single intended killing shows both poles. A defendant who goes to a store to buy bullets, or who drives to the intended victim's house, has done only preparation, however clear the plan to kill.⁶ A defendant who points a loaded gun at the intended victim and pulls the trigger has satisfied the test.⁷ Intent is the same at both ends, so the fact that moved the answer is how much remained to be done. The purchaser still has to load the weapon, find the victim, aim, and fire, and each of those steps leaves room for the plan to fail or to be abandoned, while the person who has pulled the trigger has nothing left to do but wait for the result.

The two versions differ by the one question the test asks, which is whether the defendant could complete the crime in the very next moment. Under this approach an attempt does not exist unless the actor is positioned to do that, which is why the test sits closest to the old last-act idea, although it stops short of demanding the final act itself.⁸ Justice Holmes's formulation of the same approach adds that the gravity of the offense and the probability that it will be completed bear on how near is near enough, which makes the test a judgment about danger as well as about distance.⁹

Older decisions applied the standard strictly. In Rizzo, four men, two of them armed, rode around the city looking for a payroll messenger and were arrested before they found him, and the court held there was no attempt at robbery because the defendants had not found or reached the presence of the person they meant to rob.¹⁰ In Commonwealth v. Peaslee, a would-be arsonist had arranged combustibles in a building and driven to within a quarter of a mile of it, intending to burn it, but changed his mind, and he was likewise held not guilty of an attempt.¹¹ Armed men with a plan, a car, and a target in mind were still short of the crime in the first case, and a person who had already set up the fire was still short of it in the second. Peaslee also shows the practical effect of drawing the line so late, because the defendant's change of heart came while the crime was still avoidable.

The rule's shape rests on two separate reasons. The first concerns punishment: the closer the conduct comes to the completed crime, the stronger the proof that the defendant meant to go through with it and the stronger the public interest in stopping and punishing the conduct, and the proximity view holds that conduct should be punished only to prevent harm likely to follow from it in the circumstances.¹² Remote steps fit plans that may never be carried out, so a line near completion keeps liability for conduct that reliably signals a real threat. The second reason concerns withdrawal. Requiring conduct dangerously close to the crime leaves the defendant room to turn back before crossing the line, as the defendant did in Peaslee.

The cost of that design is timing. Because the state may convict only once the defendant is near success, police who intervene early may find they have nothing to charge as an attempt, and police who wait risk the harm itself. In Commonwealth v. Bell, a Massachusetts court reversed an attempted-rape conviction where the defendant, following an undercover officer who had offered a fictitious child, had not yet seen the child or paid, and a dissenting opinion objected that officers must then choose between letting the defendant reach the scene of the crime and forfeiting any attempt charge.¹³ Critics add that attempt law exists chiefly to neutralize dangerous individuals, a purpose that a close-to-success requirement serves poorly.¹⁴ That tension explains why many jurisdictions have replaced strict proximity with the Model Penal Code's substantial-step test, which looks at what the defendant has already done and draws the line earlier, as later sections show. The proximity approach has not disappeared, however, since New York still reads its statute as continuing the Rizzo standard and many other jurisdictions apply it, so the next section takes the Rizzo facts apart.¹⁵

People v. Rizzo

The New York Court of Appeals applied the dangerous-proximity standard to facts that look alarming and still fell short of attempt. In People v. Rizzo, four men planned to rob Charles Rao of a payroll worth about $1,200 that he was to carry from a bank for the United Lathing Company, and two of the four carried firearms.¹⁷ Charles Rizzo claimed he could recognize the messenger and was to point him out to the others, who would do the actual holding up. The four rode around in an automobile looking for Rao, stopping at the bank where the money was supposed to be drawn and at buildings the company was constructing, until they reached 180th Street and Morris Park Avenue. By then two police officers were watching and following them, and when Rizzo jumped out of the car and ran into a building, all four were arrested.¹⁸

The arrest came before the defendants ever saw their target. Neither Rao nor anyone else carrying a payroll was at any place where they had stopped, and Rizzo had not pointed out or identified anyone.¹⁹ The court did not doubt their purpose, observing that Rizzo had the intention to commit robbery if he got the chance.²⁰ The specific-intent element of attempt was therefore satisfied, which left the second element, whether the defendants had gone beyond preparation, as the only contested question.

The New York statute under which Rizzo was convicted defined attempt as an act done with intent to commit a crime that tends but fails to effect its commission.²¹ The court treated the word “tending” as the source of the difficulty, calling it indefinite and explaining that to tend is to exert activity in a particular direction.²² By that measure almost every preparatory step tends toward its crime, and the court conceded that procuring the automobile and searching the streets for the victim were acts tending toward the proposed robbery. If the word were read to cover every such step, preparation would amount to attempt and the line between planning and punishable conduct would disappear. The statute therefore gave no stopping point, and the court had to supply one.

Its answer was practical. The law, the court said, has recognized that many acts in the way of preparation are too remote to be an attempt, and it draws the line between acts that are remote and acts that are proximate and near to consummation.²³ Only those acts count as tending toward the crime that are so near its accomplishment that in all reasonable probability the crime itself would have been committed but for timely interference.²⁴ That formulation asks a counterfactual question: the judge assumes the police had not stepped in and asks whether the robbery would probably have followed. The answer depends on how many steps still stood between the defendants and the crime, and how likely each of those steps was to happen without outside interference.

On Rizzo's facts the answer was no. Robbery requires that property be taken from a person by force or fear, so the crime needs a person to take it from, and Rao was never found.²⁵ The defendants were still looking for him, he had not come into sight, and apparently no money had yet been drawn from the bank for the payroll.²⁶ The court illustrated the point with two comparisons. Men who plan to break into a building and are arrested while hunting the streets for it, not knowing where it is, are not guilty of attempted burglary, and a man who arms himself and sets out to find the person he means to kill, but cannot find that person, is not guilty of attempted murder.²⁷ The defendants were therefore not guilty of attempt when they “had not found or reached the presence of the person they intended to rob.”²⁸

The missing victim carries the holding because it measures how much remained to be done. Before the robbery could occur, the defendants still had to locate the messenger, have Rizzo identify him, confront him, and take the money by force. Every one of those steps left room for the plan to fail or be abandoned, so the court could not say the robbery would probably have happened but for the police. Anchoring liability to an identifiable target also keeps attempt law from reaching people who are only looking for an opportunity, since an opportunity that never arrives leaves no crime close enough to punish. Treatises classify Rizzo as the paradigm of the physical-proximity variant, in which attention falls on what remains to be done and on the time and place the crime was meant to occur.²⁹

That pairing shows what an exam answer must isolate. Armed men with a firm plan and an active search satisfy the intent element, and when there is no victim in sight the conduct still falls on the preparation side of the line. The court was candid that the rule of attempt is well understood and that the difficulty lies in applying it, because the way crimes are committed varies from case to case and “minds differ over proximity and the nearness of the approach.”³⁰ A strong answer therefore lists the steps that remain, as the court did, and says how likely each was to occur without interference, rather than reciting the formula and announcing a conclusion.

New York has since reworded its statute to require conduct that tends to effect the commission of the crime, and its highest court has held that the new language changes nothing, so Rizzo remains the governing standard there, and many other jurisdictions continue to apply it.³¹ The Rizzo facts return later in this chapter under the Model Penal Code, which lists searching for the contemplated victim among the kinds of conduct that can support a substantial step.