Attempt Crimes And Substantial Steps (Part 2)

The Court continued in relevant part: Regarding the second element, a jury could reasonably conclude that defendant took a substantial step toward the murder of A.A. when he expressly directed his girlfriend and cousin to contact people to kill A.A., as well as demanding that they post his bail so that he could kill A.A. himself. Specifically, defendant ordered his girlfriend to text an individual named “KG” to inquire as to why A.A. was “still walkin around for?” and that “he gotta down that shit dog,” because “she’s coming to court.” We agree with the State that this conversation allows for a logical inference that defendant’s plan to have A.A. killed was already in motion, but not yet accomplished. Furthermore, the response from defendant’s cousin that she “can’t make them get out there and get busy . . . and do the type of shit that they can do” also bolsters the inference that an order to kill A.A. was already in motion, but his cousin could not force the intended killers to take action immediately, as defendant ordered.

That defendant used other inmates’ assigned PIN numbers to make these phone calls from prison is pertinent. It demonstrates his attempt at covering up his efforts to make A.A. unavailable to testify against him. Given that backdrop, defendant’s conversations with his girlfriend and cousin were much more than just meaningless vents of frustration “wishing” for A.A.’s demise. Defendant knew that phone calls from jail were recorded and, by using other inmates’ PIN numbers, he calculated that his incriminating statements would never be traced back to him.

In all, defendant’s demands here were not mere “hopes” or “wishes” that death befall A.A.; rather, defendant was demanding that someone kill A.A. or at least bail him out so he could take that desired action. Defendant’s insistent verbal demands in the context of these circumstances corroborated the firmness of his purpose to have the crime carried out, and are sufficient to satisfy the substantial step requirement for criminal attempt pursuant to N.J.S.A. 2C:5-1(a).

I sympathize with the Appellate panel that the New Jersey Supreme Court reversed with this decision. The more logical use of another inmate’s pin number in the context of knowing that all conversations are monitored is that the defendant did not have any credit left on his own pin. If he was trying to avoid making incriminating statements, he would not have been speaking in the above-quoted language.