New York Penal Law Section 110.00 establishes that a defendant is guilty of an attempt to commit a crime when, “with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime.” Well, if you are accused of attempting to commit a robbery in Brooklyn, an assault in the Bronx, or a burglary in Manhattan, this definition offers little assurance and even less guidance. That is why you need an experienced criminal defense attorney and former prosecutor to fight for your rights and hold the prosecution to their burden of proof.
While mere preparation, with nothing else, is not enough to establish an attempt to commit a crime, if an individual comes “dangerously close,” courts usually find that that the attempt has gone far enough. To help fully understand when there is an attempt to commit a crime that is “dangerously close” we will deal with attempt in the context of the crime of Attempted Murder.
It is safe to say that pointing a loaded gun at another is not sufficient to satisfy the elements of attempt. Other facts must be provided such as having the finger on the trigger or pulling it. In fact, the First Department in New York has held that there was no attempt to commit the crime of Murder when a defendant pointed a loaded gun at an officer without any evidence that the defendant at least had his finger on the trigger or came very near the accomplishment of the crime. The First Department did find sufficient that there was an attempt to complete a crime, however, when ballistics records showed that the trigger had been pulled, a bullet had been fired, the gun was pointed at the police officer and there were thirteen rounds in the magazine, but none in the chamber.
As recent as last month, the 4th Department held that there was an attempt to commit the crime of Murder when the defendant was found near the home of his intended victims. The defendant was standing near a loaded gun with the trigger lock removed. Additionally, the defendant had a list in his pocket of how he planned on killing his victims. This, the majority argued, was beyond mere preparation and was “dangerously close.”
Obviously, there is no clear cut rule as to how far one must go to attempt a crime. To make sure that the prosecution has the evidence to prove beyond a reasonable doubt that your activities are “dangerously close,” you need an experienced criminal defense attorney to stand up to the prosecution and fight zealously for your rights.