ATTEMPTATTEMPTATTEMPTATTEMPTATTEMPT
(See also, COMPLICITY,
CONSPIRACY, this Digest)
I. INTRODUCTION
The common law concept of criminal attempt is
codified in N.J.S.A. 2C:5-1. It criminalizes conduct
which is designed to culminate in the commission of a
substantive offense but has either failed to do so or has not
yet achieved its culmination because something remains
to be done by the actor or another person.
N.J.S.A. 2C:5-1a provides that a person is guilty of an
attempt to commit a crime if, acting with the kind of
culpability otherwise required for commission of the
crime, he:
- Purposely engages in conduct which would
constitute the crime...; - [w]hen causing a particular result is an element of
the crime, does or omits to do anything with the purpose
of causing such result without further conduct on his
part; or - [p]urposely does or omits to do anything which ...
is an act or omission constituting a substantial step in a
course of conduct planned to culminate in his
commission of the crime.
On its face N.J.S.A. 2C:5-1 creates three separate
categories of attempt, two of which incorporate a
reasonable-person standard — subsections (1) and (3) —
and one of which looks only to defendant’s own purpose
— subsection (2). State v. Smith, 262 N.J. Super. 487,
503 (App. Div. 1993), certif. denied, 134 N.J. 476
(1993).
II. REQUIRED MENTAL STATE
The inchoate crime of attempt requires proof of the
mental state set out in the definition of criminal attempt;
the State must prove the defendant “[p]urposely engages
in conduct which would constitute the crime if the
attendant circumstances were as a reasonable person
would believe them to be.” N.J.S.A. 2C:5-1a(1). An
attempt must be purposeful and no lesser mental state
will suffice even if some other mental state could establish
the underlying crime. State v. Sette, 259 N.J. Super. 156,
190 (App. Div. 1992), certif. denied, 130 N.J. 597
(1992); see also State in the Interest of S.B., 333 N.J.
Super.236, 242 (App. Div. 2000). Attempted murder
thus requires that a “defendant must have purposely
intended to cause the particular result that is the
necessary element of the underlying offense - death.”
State v. Rhett, 127 N.J. 3, 7 (1992).An instruction which stated that defendant could be
convicted of attempted murder if he attempted to
commit a purposeful or knowing murder constituted
reversible error, given that attempted murder requires
that defendant purposely intended to cause death. State
v. Rhett, 124 N.J. 3 (1992); see also State v. Jackmon, 305
N.J. Super. 274, 298-99 (App. Div. 1997), certif. denied,
153 N.J. 49 (1998); State v. Williams, 298 N.J. Super
430, 437-38 (App. Div. 1997), certif. denied, 156 N.J.
407 (1998).III. DEFINITION
A. Generally
An “attempt” to commit a crime is an act done with
intent to commit, beyond mere preparation but falling
short of its actual commission. The overt act or acts must
be such as will apparently result, in the usual and natural
course of events, if not hindered by extraneous causes, in
the commission of the crime itself. State v. Tropiano, 154
N.J. Super. 452 (App. Div. 1977); State v. O’Leary, 31
N.J. Super. 411 (App. Div. 1954).The Code encompasses in its definition of attempt
those situations where the offense, if completed, would
be a crime. There can be no conviction for an attempt to
commit a crime unless the attempt, if completed, would
have constituted a crime. See State v. Weleck, 10 N.J. 355
(1952); State v. Meisch, 86 N.J. Super. 279 (App. Div.
1965), certif. denied, 44 N.J. 583 (1965); State v.
Perlman, 169 N.J. Super. 190 (Law Div. 1979).Attempted passion/provocation manslaughter is
cognizable under the Code as a lesser included offense of
attempted murder. State v. Robinson, 136 N.J. 476, 489
(1994).Attempted robbery is a crime under the Code, and a
robbery conviction can be molded into a lesser included
inchoate crime of criminal attempt to commit robbery.
State v. Farrad, 164 N.J. 247 (2000).Failure to instruct on “attempt” was plain error in a
felony murder prosecution in which the state failed to
offer evidence that the defendant robbed the victim;
although the judge defined “purposeful conduct,” he did