Muldoon, Getz & Reston

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Issues In NY Criminal Law--Vol. 6, #6©

Issue: Attempting Attempts - A Tempting Subject

A crime that has not been completed may be charged as an attempt. If charged by the judge, attempt may be considered by the jury as a lesser included offense. Can a person be charged with attempting a crime whose elements already include attempt?

One example: the language of Resisting Arrest prohibits conduct that “intentionally prevents or attempts to prevent.” (Attempt language also appears in the crimes of Obstructing governmental administration, Jostling, Tampering with a witness, and Intimidating a witness.)

Case law holds that attempting to an attempt may not be charged. People v Jelke, 1 NY2d 321, 152 NYS2d 479, 135 NE2d 213 (1956).

Lesser included offense

The issue may be important for whether a charge down to a lesser included offense at trial is appropriate. Since the attempt crime comes within the crime itself, a lesser included offense is inappropriate. People v Frankel, 129 Misc2d 95, 492 NYSd 671 (City Crim Ct 1985).

Denial of jury trial

The issue may also be important with regards to the right of a jury trial downstate. In New York City, a person charged with a class B misdemeanor is not entitled to a jury trial. See CPL 340.40(2).

A prosecutor’s reducing of a class A misdemeanor to a class B misdemeanor, is improper, where the higher offense includes attempt within its elements. People v Lupinos, 176 Misc2d 852, 674 NYS2d 582 (City Crim Ct 1998); People v Schmidt, 76 Misc2d 976, 352 NYS2d 399 (City Crim Ct 1974); People v Howlett, 76 Misc2d 801, 351 NYS2d 289 (App Term Ct 1973).

Guilty plea

Attempting to attempt is improper for the purpose of prosecuting a case, but it is proper for a plea. A person may plead guilty to a hypothetical crime, including attempting to attempt. People v Daniels, 237 AD2d 298, 654 NYS2d 799 (2d Dept 1997).


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