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Attempt under the New Jersey Criminal Code

A person is guilty of attempt under the New Jersey Criminal Code N.J.S.A. 2C: 5-1 in one of three scenarios:

1)      If the person purposefully engages in conduct which would constitute a crime if the circumstances were as a reasonable person would believe them to be,

2)      If causing a certain result is an element of a crime, the person does or omits to do anything with the purpose of causing such element to occur

3)      If the person causes a result that is an element of the crime, or purposefully does or omits to do something which would constitute a “substantial step in course of conduct planned to culminate in the commission of the crime.”

The purpose of N.J.S.A. 2C: 5-1 is to punish a person whose failure to commit a crime is due to chance. Attempt focuses on the intent of the actor rather than the resulting harm. State v. Robinson 136 NJ 476 (1994).

To be guilty of attempt a person must act with purpose. There are no negligent attempts. A vague recollection or inability to recall events could defeat an attempt charge for lack of purpose. A failure for a condition to occur however will not invalidate an attempt charge merely because the condition never occurred. In one case a defendant’s conviction for attempted arson was not invalidated because his intention to cause the burning was contingent on a foreclosure and obtaining insurance.

Under N.J.S.A. 2C: 5-1 in order for someone to be found guilty of an attempt by taking a substantial step toward the commission of the crime, the act must be “strongly corroborative of the actor’s criminal purpose.” So, for example visiting a site where a murder was set to occur and receipt of cash in contemplation of that murder were enough for the state to meet its burden of showing a purpose by demonstrating a substantial step. State v. McCoy 116 NJ 293 (1989). In another case a New Jersey Superior Court held that placing hands on a car the defendant knew was stolen with an intent to enter met the substantial step in course of conduct for attempt to receive a stolen car.

Other than the substantial step, under N.J.S.A. 2C: 5-1 a defendant may be found guilty of attempt if the circumstances were as a reasonable person believed them to be. An example is a gun that the defendant thought was loaded with live ammunition but only had blanks. To meet this section of N.J.S.A. 2C: 5-1 the defendant must complete the act that would have constituted the crime.

An affirmative defense to attempt is renunciation, which requires that defendant voluntarily and permanently abandons criminal conduct. Simply changing the plan because of an unforeseen difficulty or change of circumstances to the crime is not enough to be considered a renunciation. So, for instance in one case a defendant testified that when he entered a truck that he was set to hijack he suddenly changed his mind and told the driver to call the police. This was sufficient to fund a renunciation charge because the withdrawal was fully voluntary and before the crime had been committed.

Another case court did not uphold the renunciation defense when defendant ran after a struggle with the victim. The court emphasized that in order for the renunciation defense to be valid, the withdrawal by the defendant must be voluntary.

Defenses to attempt require careful diligence and preparation. The attorneys of Lubiner, Schmidt & Palumbo are qualified to assist in preparations for defense. Please call us for a consultation.  

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