At trial, the defendant requested the court to charge attempted robbery in the first degree and attempted robbery in the third degree as a lesser included offense (as charged in counts three and four of the indictment). The trial court granted the defendant's request, and the jury convicted the defendant of attempted robbery under count three of the indictment, acquitting him of all remaining counts.
The defendant appealled. At the appellate court, the defendant successfully argued that attempted robbery in the first degree is a legal impossibility because the law does not recognize an attempt to commit a crime with an unintended result and one of the components of robbery in the first degree is the unintended result of causing serious bodily injury.
The leading New York case concerning the legal impossibility of an attempt charges is People v Campbell, 72 N.Y.2d 602. The statute at issue in that case had two components. The accused must have 1) intended to interfere with a peace officer in completing his lawful duty and 2) caused the officer an injury (intentional or unintentional). N.Y. Penal Law § 120.05 (3) (McKinney's 1987 & Supp. 1996). Thus both components had different requirements regarding the accused's mental state. The first required intentional conduct while the second was a result based strict liability offense. The court explained its approach to charges of attempt involving a strict liability offense.
"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." Id., at 605. The court then identified the core offense of N.Y. Penal Law § 120.05(3) (McKinney's 1987 & Supp. 1996). "[T]he gravamen of a charge under subdivision (3) of N.Y. Penal Law § 120.05 is not . . . the defendant's intention to interfere with the policeman's . . . duties but, rather, the unintended injury to such person while the defendant has the intention of interfering. It is this unintended result for which the statute imposes strict responsibility. The defendant here could not be guilty under subdivision (3) of attempting to inflict an unintended injury " Id., at 606. Once the court characterized the statute as result-based, it logically precluded the possibility that one charge the defendant with attempting that crime.
The Campbell court provided a second rationale for its holding. The court argued that to hold otherwise would result in the attempt crime having an additional element which the core crime did not have. "The higher crime of assault second is one in which a defendant may be held strictly responsible for an injury without proof of intent to injure; the lesser crime, attempted assault second . . . becomes a crime which requires proof of intent to injure -- an element not required for the higher crime" Id., at 606.
The broad proposition that one cannot attempt a crime with a result based element remains the law. The focus in subsequent cases became whether a court could find a penal statute with a result-based strict liability component similar enough to the Campbell statute to disallow an attempt charge. The court could either find the strict liability requirement an essential element, invalidating any charge of attempt, or merely an additional component or aggravating circumstance, allowing charges of attempt to be made.
The Campbelldissent disagreed not with the general legal principles applied by the court but with its statutory interpretation of second degree assault as a strict liability crime. The dissent's characterization of the statute led to a contrary conclusion regarding the availability of the attempt charge attached to it.
The Court of Appeals has only held one other penal statute, N.Y. Penal Law § 125.20(1) (McKinney's 1987 & Supp. 1996), consistent with the Campbell classification. People v Martinez, 81 N.Y.2d 810 (N.Y. 1993) (holding the crime of attempted manslaughter in the first degree a legal impossibility). In a memorandum opinion, the court held that "an element of attempted manslaughter in the first degree as charged is an unintended result that as a matter of law cannot be attempted." Id.. The court found an element of the crime included an unintended result. Once this was determined, Campbell required the conclusion that a charge of attempting first degree manslaughter was a legal impossibility.
The court further illuminated Campbell's holding in People v Coleman, 74 N.Y.2d 381( N.Y. 1989) (affirming defendant's conviction of attempted promotion of prostitution in the second degree). Defendant argued the portion of the statute requiring the intended victim be under the age of sixteen was result based, making irrelevant his belief the intended victim, a twenty-four-year-old undercover police officer, was actually fifteen. The court distinguished Campbell by stating that the crime of assault in the second degree "looks to a certain result and attaches strict liability whenever that result is produced." [Coleman], on the other hand, requires us to consider a statute the strict liability element of which attaches not to the proscribed result of the criminal conduct, the promoting of prostitution, but to an aggravating circumstance that makes the actor's conduct felonious, namely the age of the victim." Id., at 385. This characterization of the strict liability component as an aggravating circumstance prevents that single portion of the statute from defining the core offense as result based. After Coleman, the relevant question became the characterization of a statute with a strict liability component. If the strict liability portion is considered an element, Campbell controls; if it is considered ancillary, Campbell does not.
In People v Saunders the court limited Campbell to "result-based" crimes rather than any general strict liability charge. People v Saunders, 85 N.Y.2d 339 (N.Y. 1995) (holding that defendant may be found guilty of attempted criminal possession of a weapon in the third degree notwithstanding strict liability nature of offense). Defendant argued the additional element of the weapons possession crime, that the fire-arm be operable, made the charge of attempt impossible. The court specifically addressed Campbell and distinguished it. "The 'result-based' culpability crime at issue in Campbell, and the kinds of 'result' crimes to which its analysis pertains, are not at issue here. The weapons possession crime in the instant case is not such a result-based crime --its definition contains no 'result' component. Rather, the underlying weapons possession crime here proscribes particular conduct -- the act of possessing an operable firearm. Campbell does not support the broader proposition defendant presents -- namely, that the strict liability nature of a crime, per se, precludes an attempt prosecution." Id., at 343. This unanimous opinion was joined by each of the sitting judges in Miller, including Miller's lone dissenter, Judge Simons.
The Court distinguishes N.Y. Penal Law § 160.15 (McKinney's 1988 & Supp. 1996). from the statute in Campbell. The common factor in all degrees of robbery is the forcible taking of another's property, therefore, the court reasons that the core element of each individual charge is the misappropriation of property -- this is the result that the criminal charge is based upon. The other factors unique to each separate degree are merely aggravating factors. Thus, defendant may be convicted of attempted first degree robbery, a charge elevated by the unintended result of a severe injury inflicted upon the robbery victim. "Because strict liability attaches to an aggravating circumstance rather than the proscribed result, it is not the case that a robber charged with attempted robbery in the first degree is being punished for an unintended criminal act."
The court's holding is consistent with the second rationale expressed in Campbell although this issue is not addressed. Since the lesser attempt charge required no higher degree of intent than the higher robbery charge, there was no additional element required for conviction of attempt than for the main offense. This difference further distinguishes the statute in Miller from the one in Campbell.
Few of these cases have touched on the issue in Miller, namely whether the crime of attempted first degree robbery requires that the defendant have intended the harm. The silence on this issue coupled with the substantial number of convictions for that crime might indicate that courts have implicitly decided that defendants need not have intended the harm.
At least one case seems to require a showing that the defendant intended to bring about the circumstances required for the aggravated charge, but the court ruled that such intent was evident. See, State v. Montgomery, 575 N.E.2d 167, 172 (Ohio 1991) ("Appellant also suggests that there is insufficient evidence to show that he purposely caused Ogle's death while committing or attempting to commit aggravated robbery. Again, we disagree.")
Viewed more generally, Miller could be compared to a number of cases where courts and commentators have debated whether the requisite mental state of a crime applies to all elements of that crime, including attendant circumstances. See, e.g., 2 LaFave and Scott, supra, § 6.2, at 29. Although there is scant discussion of this matter, some commentators have argued that intent need only be shown for "the event or series of events which is the principal constituent of the crime." Smith, Two Problems in Criminal Attempts, 70 Harv. L. Rev. 422, 434 (1957); 2 LaFave and Scott, supra, § 6.2, at 29. However, it has also been noted that not all laws can be easily broken down into "consequences and attendant circumstances." 2 LaFave and Scott, Substantive Criminal Law, § 6.2, at 3 (Supp. 1995).
Few cases in other jurisdictions answer whether the requisite mental state needs to be shown for each listed element in the prosecution for an attempt of a crime. One case in Utah held that the state could not prosecute for attempted depraved indifference homicide. That court noted that the state's attempt statute required proof of intent to commit the offense, but the depraved indifference homicide statute merely required proof of a "knowing" mental state. State v. Virgil, 842 P.2d 843, 844 (Utah 1992). This ruling has the effect of "limit[ing] the attempt statute to offenses with a mental state of intent." Id., at 845. The court went on to note that the attempt statute did not require that intent be shown for all elements of the crime. For example, the attempt charge would be available where the crime included attendant circumstances with a lesser mental state. Id. This implicit distinction between the core element of the crime and the attendant circumstances is in line with New York and the commentators.
Colorado seems to have taken the opposite approach. In reviewing a conviction for attempted robbery, the court noted that the requisite mental state, knowingly, needed to be shown for "conduct . . . circumstance . . . and result." People v. Derrerra, 667 P.2d 1363, 1368 (Colo. 1983). The court elaborated, noting that a conviction for attempted robbery requires a showing that the defendant "was aware . . . that the circumstance exists. Id. The case appears to be in consistent with prior case law in Colorado. See, People v. Curtis, 627 P.2d 734 (Colo. 1981); People v. Mason, 643 P.2d 745 (Colo. 1982).
The dissent also questions the need to charge attempted first degree robbery when N.Y. Penal Law § 120.10(4)(McKinney's 1987 & Supp. 1996) is available and provides the charge of felony assault in the first degree for similar conduct.