Notes on Attempted Offenses
The following notes were prepared in February, 2000, in connection with revision of GungaWeb 2000 to handle sentencing of attempted offenses.
Unfortunately, the subject is not as simple as just dropping the classification by one degree and plunging ahead.
Quirks and anomalies abound, especially in the following areas:
Lesser Included Offenses
Plea Restrictions
Sentencing
Sentence "Additions"
Attemptible or Not?
Miscellaneous
The following provisions apply specifically to attempted offenses:
- Under CPL 1.20(37), if an attempted offense exists, it is by statute a lesser included offense of the completed offense.
- Under CPL 220.20(1)(f) harassment (PL 240.25(1)) is a statutory lesser included offense, for plea purposes, of attempted assault, in any degree, by the immediate use of physical force.
- Under CPL 220.20(1)(g) upon a charge of felony murder (PL 125.25(3)) based upon a specified underlying attempted felony, the specified attempted felony is a lesser included offense.
The following provisions apply specifically where the charge or contemplated plea is to an attempted offense:
- Under CPL 220.10(5)(a)(i) upon a charge of attempt to commit an Article 220 class A-I felony, the minimum permissible plea is to a class A-II felony or to a class B felony if the defendant is an eligible youth. (This is the same rule as applies where a completed Art 220 class A-I felony is charged.)
- Under CPL 220.10(5)(a)(ii) upon a charge of attempt to commit an Article 220 class A-II felony, the minimum permissible plea is to a class B felony. (Again, this is the same rule as applies where a completed Art 220 class A-II felony is charged.)
- Under CPL 220.02(4)(d)(iii) upon a charge of PL 265.02(4), minimum plea is to the class E violent felony of attempt to commit that crime, unless criteria are met allowing plea to class A misdemeanor of PL 265.01(1).
The following sentencing provisions have specific application where the crime for which sentence is being pronounced is an attempted offense:
- Under CPL 410.91(5), a "specified offense" eligible for a sentence of parole supervision
(the so-called "Willard" sentence) includes any felony-level attempt to commit any of the specifically enumerated felony offenses.
- A specified offense also includes any "class D or class E controlled substance or marihuana felony offense as defined in article two hundred twenty or two hundred twenty-one."
Query whether an attempt to commit such a substance offense qualifies under the definition?
GungaWeb's interpretation is that it does.
- Under CPL 1.20(42), juvenile offender status may apply to persons charged with the attempted crimes of attempted murder in the second degree or attempted kidnapping in the first degree, only.
- Certain attempted crimes that are class C felonies set forth in PL 60.05(4) are subject to mandatory sentencing rules set forth in PL 70.00.
They are attempted violation of PL 105.15, 145.12, 200.04, 200.12, and 230.32.
- Penal Law 60.05(5) also purports to specify mandatory sentencing pursuant to PL 70.00 or 85.00 for the attempted violation of PL 120.10 or 230.30, both specifed to be class D felonies.
However, PL 120.10 has been redesignated a class B felony, and its attempt thus a class C felony. PL 60.05(5) is accordingly in need of amendment.
- PL 60.28 authorizes sentence specification of participation in a graffiti removal program upon conviction of the attempted commission of the crimes set forth in PL 145.60 and 145.65.
PL 60.29 similarly authorizes mandatory participation in a cemetary desecration remedial program upon conviction of the attempted commission of the crimes set forth in PL 145.22 and 145.23.
- PL 70.02(1)(a) categorizes as violent felonies the attempted commission of violent felonies of greater degree.
PL 70.02(2)(c) and (3)(d) provide for certain mandatory sentences for attempted criminal possession a weapon in the third degree in violation of PL 110.00 and 265.02(4) or (5).
- Attempted commission of PL 125.27, 220.21 and 220.43 remains a class A-I felony. Attempted commission of a class A-II felony remains a class A-II felony.
Attempted commission of any other class A-I felony is a class B felony. Attempted commission of another crime is a crime of next lower classification, except that an attempted class B misdemeanor remains a class B misdemeanor.
Only "crimes" may be attempted under PL 110.00, consequently there is no offense consisting of the attempt to commit any violation.
Compare treatment of attempts under the following provisions:
- SORA:
Under Corrections Law 168-a(2), a "sex offense" includes the attempt to commit any of the specified completed offenses.
And, under Corr. Law 168-a(3), a "sexually violent offense" includes the attempt to commit any of the specified completed offenses.
- DNA:
Under Executive Law 995(7), a "designated offender" for purposes of DNA registration includes a person convicted of only two attempted crimes: attempted murder in the first degree (PL 125.27) or attempted burglary in the third degree (PL 140.20).
Attempts are not DNA offenses, except as specified.
And, note that under Exec. Law 995-f, the attempt to tamper with a DNA sample is itself a class E felony, (though a non-Penal Law offense).
- HIV:
CPL 390.15 authorizes administration of a mandatory HIV test at a victim's request only upon conviction of specified offenses "enumerated" in Article 130, or upon a Y.O. adjudications based thereon. It does not by its terms authorized the test upon conviction or adjudication for an attempted offense.
GungaWeb 2000 includes an attempt sentencing function for every covered crime, even those not legally "attemptible."
This is done because a defendant may be allowed to plead to a nonexistent or hypothetical crime, without error (see, People v Foster, 19 NY2d 150).
However, for trial purposes, careful note should be taken of the fact that many "attempts" for which a sentencing function is provided are nonexistent, for one or more of the following reasons:
- First, some offenses are not attemptible by definition and classification. PL Article 110 criminalizes only the attempt to commit a crime; consequently, there is no crime corresponding to the attempt to commit a violation or other noncriminal offense. There is no sentencing function provided for attempted violations.
- Second, many offenses involve the mental states of recklessness or criminal negligence and are thus non-intentional crimes. Because one cannot attempt to commit a crime "predicated upon a reckless act", courts generally hold it is impossible to attempt to commit such a crime (People v McDavis, 97 AD2d 302, 303; see, People v Terry, 104 AD2d 572, 573; People v Williams, 40 AD2d 1023, 1024).
Crimes that require or may involve reckless conduct include:
Crimes that require or may involve criminally negligent conduct include:
- Third, some offenses are not attemptible under prevailing case law, by reason of containing as an element the causation of an unintended result (see People v Campbell, 72 NY2d 602). "Because the very essence of a criminal attempt is the defendant's intention to cause the proscribed result, it follows that there can be no attempt to commit a crime which makes the causing of a certain result criminal even though wholly unintended" (People v Campbell, supra, at 605).
Examples include:
Distinguish from the Campbell-type offense, crimes where an "unintended" element consists not of a "result", but rather of an "aggravating circumstance."
In the latter circumstance, the crime has been held to be attemptible.
Examples include:
- PL 160.15(1) (see People v Miller, 87 NY2d 211.)
- PL 265.02(4) (see People v Saunders, 85 NY2d 339.)
- PL 135.25(3) (see People v Fullan, 92 NY2d 690.)
- Finally, many other offenses explicitly include as an element an "attempt" to bring about a certain result or to engage in certain conduct.
For example all degrees of criminal solicitation include as an element that the defendant
"otherwise attempt" to cause another to engage in conduct constituting a crime. Since conduct sufficient to constitute an attempt to commit such a crime would by definition also constitute the completed crime, it is doubtful whether the attempt can exist as a separate offense under such circumstances.
Such offenses include crimes defined in the following Penal Law sections:
- PL 100.00, 100.05, 100.08, 100.10, 100.13 ("attempts to cause")
- PL 120.13, 120.14(1), (2); 120.15 ("attempts to place")
- PL 120.55(4) ("attempting to place")
- PL 125.25(3) (attempts to commit specified crime; causes death)
- PL 125.27(1)(a)(vii) (attempts to commit specified crime; causes death)
- PL 165.15(1)-(4),(6),(9),(11) ("attempts" to "obtain", "induce" or "avoid")
- PL 176.15 (attempts to wrongfully take)
- PL 176.20 (attempts to wrongfully take)
- PL 176.25 (attempts to wrongfully take)
- PL 176.30 (attempts to wrongfully take)
- PL 195.05 ("or attempts to prevent a public servant from performing an official function")
- PL 195.07 ("or attempts to prevent a public servant from performing an official function")
- PL 205.30 ("attempts to prevent" authorized arrest)
- PL 215.10(a) (attempts to induce)
- PL 215.11(1),(2) (attempts to compel)
- PL 215.15(1) (attempts to compel)
- PL 215.51(b)(i),(ii),(iii),(vi) (attempts to place person in fear)
- PL 215.51(b)(v) (attempts to subject person to physical contact)
- PL 240.26(1) (attempts or threatens to subject person to physical contact)
- PL 240.30(3) (attempts or threatens to subject person to physical contact)
- PL 240.31(2) (attempts or threatens to subject person to physical contact)
- PL 240.32 (inmate attempts to cause contact with specified bodily substance)
- PL 240.37(2) (attempts to stop or engage passers-by in conversation. NB: In any case, a violation, not a crime, and thus not an attemptible offense.)
- PL 240.70(1)(a),(b),(c) (attempts to injure, intimidate or interfere with)
- PL 240.70(1)(d) (attempts to damage property)
- PL 250.25(3) (attempts to obtain contents of telephonic communication from telephone company employee)
- PL 250.30 (attempts to obtain telephone information from telephone company employee)
- PL 265.17 (attempts to purchase firearm, rifle or shotgun) Effective 11/1/00
Distinguish the following offenses which, despite reference to attempted conduct, do appear to be attemptible offenses:
- PL 135.65(2)(a) (compels the attempt to commit a felony)
- PL 135.65(2)(b) (compels the attempt to inflict physical injury)
- PL 165.17 (in course of "attempting to obtain" property or service, uses a revoked credit card)
- PL 190.42 (prior conviction of attempted criminal usury an aggravating circumstance elevating subsequent offense to first degree. Thus second attempt would be attempted criminal usury first degree.)
- PL 200.04 (bribery influences investigation of attempted class A drug felony)
- PL 200.12 (bribery influences investigation of attempted class A drug felony)
- PL 200.22 (bribery influences investigation of attempted class A drug felony)
- PL 200.27 (bribery influences investigation of attempted class A drug felony)
- PL 220.06(7) (previous conviction attempt to possess ketamine)
- PL 220.09(13) (previous conviction attempted commission of "any such" [phencyclidine?] offense)
- PL 220.16(2) (previous conviction of any attempted drug offense)
- PL 220.34(6) (previous conviction of any attempted drug offense)
- PL 220.39(2) (previous conviction of any attempted drug offense)
Distinguish also the following offenses which include merely the intent to attempt to engage in conduct:
- PL 156.10(1) (uses computer without authorization with intent to commit or attempt to commit or further the commission of a felony)
- PL 156.25(1) (commits computer tampering 4th degree with intent to commit or attempt to commit or further the commission of a felony)
- PL 156.30(2) (copies computer data or program without right with intent to commit or attempt to commit or further the commission of a felony)
(Actually, use of the verb "attempt" here adds nothing; the "intent" required for a culpable "attempt" to commit a felony is the very same intent required for its complete commission.)
Corroboration is required for conviction of the attempted commission of any sex crime where incapacity to consent arises because of the victim's mental defect
or mental incapacity (PL 130.16).
Note on the commonly known "felony assault" statute PL 120.05(6) requiring physical injury caused
"in the course of and in furtherance of the commission or attempted commission of a felony": the "attempted felony" might be a misdemeanor.
And Compare:
- PL 460.10(1): A "criminal act" includes attempted commission of any of the specified felonies (even class E felonies such as PL 130.25, as to which the attempt is a class A misdemeanor).
- PL 480.00(1): A "felony offense" includes attempted Article 220 felonies, but only if the attempt is itself a felony.