People v. Rizzo
| Court | New York Court of Appeals |
| Writing for the Court | CRANE |
| Citation | 158 N.E. 888,246 N.Y. 334 |
| Decision Date | 22 November 1927 |
| Parties | PEOPLE v. RIZZO et al. |
246 N.Y. 334
158 N.E. 888
PEOPLE
v.
RIZZO et al.
Court of Appeals of New York.
Nov. 22, 1927.
Charles Rizzo and others were convicted of an attempt to commit robbery in the first degree. From a judgment of the Appellate Division (211 App. Div. 353,223 N. Y. S. 200) affirming the judgment of conviction on appeal of named defendant only, said defendant appeals.
Reversed, and new trial ordered.
See, also, 220 App. Div. 818, 222 N. Y. S. 877; 200 App. Div. 755,221 N. Y. S. 881.
[246 N.Y. 334]Appeal from Supreme Court, Appellate Division, First department.
James F. Donnelly, Mark Eisner, and Merwin Lewis, all of New York City, for appellant.
CRANE, J.
The police of the city of New York did excellent work in this case by preventing the commission of a serious crime. It is a great satisfaction to realize that we have such wide-awake guardians of our peace. Whether or not the steps which the defendant had taken up to the time of his arrest amounted to the commission of a crime, as defined by our law, is, however, another matter. He has been convicted of an attempt to commit the crime of robbery in the first degree, and sentenced to state's prison. There is no doubt that he had the intention to commit robbery, if he got the chance. An examination, however, of the facts is necessary to determine whether his acts were in preparation to commit the crime if the opportunity offered, or constituted a crime in itself, known to our law as an attempt to commit [246 N.Y. 336]robbery in the first degree. Charles Rizzo, the defendant, appellant, with three others, Anthony J. Dorio, Thomas Milo, and John Thomasello, on January 14th planned to rob one Charles Rao of a pay roll valued at about $1,200 which he was to carry from the bank for the United Lathing Company. These defendants, two of whom had firearms, started out in an automobile, looking for Rao or the man who had the pay roll on that day. 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. 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 various buildings being constructed by the United Lathing Company. At last they came to One Hundred and Eightieth street and Morris Park avenue. By this time they were watched and followed by two police officers. As Rizzo jumped out of the car and ran into the building, all four were arrested. The defendant was taken out from the building in which he was hiding. Neither Rao nor a man named Previti, who was also supposed to carry a pay roll, 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 pay roll 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 pay roll man, whoever he was.
[158 N.E. 889
They were looking for him, but they had not seen or discovered him up to the time they were arrested.
[1] Does this constitute the crime of an attempt to commit robbery in the first degree? The Penal Law, § 2, prescribes:
‘An act, done with intent to commit a crime, and tending but failing to effect its commission, is ‘an attempt to commit that crime.’'
The word ‘tending’ is very indefinite. It is perfectly evident that there will arise differences of opinion as to whether an act in a given case is one tending to commit a crime. ‘Tending’ [246 N.Y. 337]means to exert activity in a particular direction. Any act in preparation to commit a crime may be said to have a tendency towards its accomplishment. The procuring of the automobile, searching the streets looking for the desired victim, were in reality acts tending toward the commission of the proposed crime. The law, however, had recognized that many acts in the...
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United States v. Fay, No. 308
...139, cert. denied, Noia v. People of State of New York, 357 U.S. 905, 78 S. Ct. 1149, 2 L.Ed.2d 1156 (1958). Relying upon People v. Rizzo, 246 N.Y. 334, 339, 158 N.E. 888, 890, 55 A.L.R. 711 (1927), the Court of Appeals held that Noia's failure timely to appeal from his conviction precluded......
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State v. Green, No. 11147
...with the particular crime involved; some crimes may be attempted or executed with greater instantaneity than others. See People v. Rizzo, 246 N.Y. 334, 337-38, 158 N.E. 888 (1927). As Justice Holmes once said: "[P]reparation is not an attempt. But some preparations may amount to an attempt.......
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People v. Bowen, Docket No. 1361
...to leave the premises, the court holding that the commission of an overt act was not made out by the evidence. In People v. Rizzo (1927), 246 N.Y. 334, 338, 158 N.E. 888, 889, 890, 55 A.L.R. 711, the court 'Men would not be guilty of an attempt at burglary if they had planned to break into ......
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People v. Di Stefano
...the revised Penal Law (L.1965, ch. 1030) defining an attempt to commit a crime (Penal Law, § 110.00) changed the rule of People v. Rizzo, 246 N.Y. 334, 337, 158 N.E. 888, 889 that the prosecution must establish that defendant was 'very near to the accomplishment of the intended Following ju......
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United States v. Fay, No. 308
...139, cert. denied, Noia v. People of State of New York, 357 U.S. 905, 78 S. Ct. 1149, 2 L.Ed.2d 1156 (1958). Relying upon People v. Rizzo, 246 N.Y. 334, 339, 158 N.E. 888, 890, 55 A.L.R. 711 (1927), the Court of Appeals held that Noia's failure timely to appeal from his conviction precluded......
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State v. Green, No. 11147
...with the particular crime involved; some crimes may be attempted or executed with greater instantaneity than others. See People v. Rizzo, 246 N.Y. 334, 337-38, 158 N.E. 888 (1927). As Justice Holmes once said: "[P]reparation is not an attempt. But some preparations may amount to an attempt.......
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People v. Bowen, Docket No. 1361
...to leave the premises, the court holding that the commission of an overt act was not made out by the evidence. In People v. Rizzo (1927), 246 N.Y. 334, 338, 158 N.E. 888, 889, 890, 55 A.L.R. 711, the court 'Men would not be guilty of an attempt at burglary if they had planned to break into ......
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People v. Di Stefano
...the revised Penal Law (L.1965, ch. 1030) defining an attempt to commit a crime (Penal Law, § 110.00) changed the rule of People v. Rizzo, 246 N.Y. 334, 337, 158 N.E. 888, 889 that the prosecution must establish that defendant was 'very near to the accomplishment of the intended Following ju......