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.
