so in conjunction with robbery charge, and the court
failed to instruct on the concepts of purposeful conduct
and substantial step. State v. Gonzalez, 318 N.J. Super.
527, (App. Div. 1999), certif. denied, 161 N.J. 148
(1999); compare State v. Smith, 322 N.J. Super. 385, 399-
400 (App. Div. 1999), certif. denied, 162 N.J. 489
(1999) (distinguishing Gonzalez because the judge fully
and accurately instructed the jury on the elements of
attempt, albeit during an explanation of the law relating
to another offense, the attempt to sell a weapon).
B. Preparation Distinguished From Attempt
N.J.S.A. 2C:5-1a(3) sets forth the test to be used in
New Jersey to distinguish mere preparation from the
crime of attempt. New Jersey has rejected other tests, i.e.,
the “probable desistance test,” in favor of the approach
stated in the Code. Under 2C:5-1, an attempt can be
distinguished from preparation by showing (1) the
requisite criminal purpose; (2) the act must be a
“substantial step” in the course of conduct and (3) the act
must be “strongly corroborative” of criminal purpose.
N.J.S.A. 2C:5-1b.
The legislative history of N.J.S.A. 2C:5-1 indicates
that New Jersey follows the minority position that mere
solicitation of criminal conduct, unaccompanied by any
overt act in furtherance, rises to the level of an attempt.
State v. Sunzar, 331 N.J. Super. 248 (Law Div. 1999).
Though mere preparatory steps may constitute
attempt, very remote preparatory acts are excluded from
the definition of attempt. State v. Sharp, 283 N.J. Super.
368, 370 (Law Div. 1993), aff’d 283 N.J. Super. 296
(App. Div. 1995), certif. denied, 142 N.J. 458 (1995); see
also State v. Moretti, 52 N.J. 182 (1968), cert. denied, 313
U.S. 952 (1968)(mere preparation is an inadequate basis
for conviction regardless of intent.
While mere preparation may be an inadequate basis
for conviction, where there is sufficient evidence for the
jury to find that defendant had taken “substantial steps
which were strongly corroborative of the ‘firmness’ of his
purpose” to carry out a plan, then the conviction will
stand. Moreover, it would be improper for the court to
charge the jury that mere preparation is not an attempt.
Some preparation may be sufficient; it is a matter of
degree. State v. Fornino, 223 N.J. Super. 531, 538 (App.
Div. 1988).
IV. SUBSTANTIAL STEP
The Code further provides that:b. Conduct shall not be held to constitute a
substantial step under subsection a.(3) ... unless it is
strongly corroborative of the actor’s criminal purpose.The “substantial step” requirement is satisfied if a
defendant acts in a way that is strongly corroborative of
the firmness of his purpose to carry out the crime. State
v. Farrad, 164 N.J. at 258; see also State v. Sharp, 283 N.J.
Super. 296, 299-300 (App. Div. 1995), certif. denied,
142 N.J. 458 (1995); State v. Fornino, 223 N.J. Super.
531, 538, 540 (App. Div. 1988), certif. denied, 111 N.J.
570 (1988), cert. denied, 488 U.S. 859, 109 S.Ct. 152,
102 L.Ed.2d 123 (1988). Thus, a defendant can be
convicted of robbery, even if the theft is unsuccessful, if
he or she (1) purposely takes a substantial step (2) to
exercise unlawful control over the property of another (3)
while threatening another with, or purposely placing
another in fear of, immediate bodily injury. State v.
Farrad, 164 N.J. at 258.
In the case of witness tampering, where the attempt
is illegal, the criminal act is completed regardless of
whether the result is achieved. Defendant was not
entitled to “substantial step” jury instruction to
supplement the attempt charge in prosecution for
witness tampering, despite his claim that he merely
requested a meeting with witness. Defendant’s request
for a meeting was accompanied by offer of a reward to the
witness if she saw things his way, as defendant made it
clear that if there were meeting and the investigation of
defendant were dropped, then criticisms of the witness
by a citizens’ action organization would stop. A
“substantial step” charge was not necessary here where
the attempted tampering was complete upon the offer of
the quid pro quo. State v. Speth, 323 N.J. Super. 67, 87
(App. Div. 1999).V. INDICTMENT
A defendant may be convicted of attempt even
though he was indicted for the substantive offense. State
v. McCoy, 114 N.J. Super. 479 (App. Div. 1971). Hence,
a trial court may charge attempt as a lesser included
offense. State v. Carlos, 187 N.J. Super. 406, 416 (App.
Div. 1982), certif. denied, 93 N.J. 297 (1983) (theft);
State v. France, 153 N.J. Super. 428 (App. Div. 1977)
(obtaining money by false pretenses).