#ABKLaw BLOG by Michael Jaccarino:  What does it mean to ATTEMPT to commit a crime?

In certain situations, an individual intends to commit a crime but falls short.  In other situations, prosecutors charge individuals with attempting to commit a crime that the person had no intention to commit. Either scenario can have drastic consequences for the person charged. 

In general, an attempt to commit a crime tends to be one grade lower of an offense than the original crime and, by definition, carries a lower sentence. Our attorneys at Aidala, Bertuna & Kamins have defended numerous cases in which our client thought they were committing a crime but, because of some unknown fact, the crime could not be committed. Often, while the police charge the actual crime, which cannot be proven, the attempt often can be proven. Also, in certain circumstances when someone does something that would normally be an attempt to commit a crime, it is usually not a winning defense that actually completing the crime would have been impossible.  A common example is when a defendant had a large quantity of what they thought was narcotics, but the narcotics turned out to be some other substance.

Section 110 of the New York Penal Law states that a person 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. Stated differently, an attempt is an act done with an intent to commit some other crime. Even though the accused may have failed in the purpose, the conduct can be treated as a crime in itself if carried far enough to cause a sufficient risk of harm. In order to prove an attempt, it is necessary to establish (1) that the defendant had the intent to commit a specific offense; and (2) that the defendant engaged in some affirmative act to carry out that intent. New York Penal Law 110.10 specifically states that where a person engages in conduct that otherwise constitutes an attempt, it is no defense to a prosecution for such attempt that the crime charged to have been attempted was, under the attendant circumstances, factually or legally impossible of commission, if such crime could have been committed had the attendant circumstances been as such person believed them to be. While a mistake of fact may prevent a conviction on the more serious crime, there may still be criminal liability for the attempt.

In federal court, the rules are different – yet similar.  An attempt offense requires the intent to commit the crime (along with an act towards its commission).  See, United States v. Wesley, 417 F.3d 612 (6th Cir. 2005).  For example, the difference in mens rea between an attempted murder and a murder means that, “although a murder may be committed without an intent to kill, an attempt to commit murder requires a specific intent to kill.” Braxton v. United States, 500 U.S. 344 S.Ct. 1854 (1991).  To prove attempted first degree murder, the government must prove this was a premeditated as opposed to spontaneous act.  See, United States v. Cespedes, 2015 U.S. Dist. LEXIS 99696 (S.D.N.Y. July 30, 2015).  

If you have an ambiguous situation where criminal liability is not clear, contact Michael Jaccarino or one of our criminal defense attorneys at Aidala, Bertuna & Kamins.

Michael Jaccarino, and the criminal defense attorneys at Aidala, Bertuna & Kamins, PC, have decades of experience in dealing with sentencing hearings in federal court.  

For more information or more fact-specific discussions, call our office and ask to speak with attorney Michael Jaccarino.