Justice Timpone continued in relevant part: The Appellate Division incorrectly ruled that “without evidence of an act by defendant identifying a perpetrator and orchestrating the requisite course of conduct to culminate in the commission of the crime, the State’s proofs fall short.” Indeed, as we found in Perez, the standard for a substantial step is clear and requires only that the accused’s conduct strongly corroborate his or her alleged criminal purpose.
We note that in Urcinoli, the Appellate Division held defendant’s actions — where he promised to pay the actor $5000, proved he had the money by providing a copy of his bank statement, provided detailed descriptions of the intended victim and family, directions to their home, descriptions of their cars, details about the house, and explanations of their daily routines — were all substantial steps toward the attempted crime. And in Fornino, the Appellate Division held that defendant had taken substantial steps when he visited the site where the planned criminal activity was supposed to occur, surveyed a wooded area where the bodies of the murdered victims could be disposed, arranged a meeting with the person he believed was to pay him for his part in the crime, and accepted the agreed upon payment.
We recognize that this case differs from those cases and lies at the outer edges of proofs to support a substantial step for an attempt charge because it relies on the context and import of defendant’s verbal acts. But, we accept the proofs in this case as sufficient to have presented the attempt charge to the jury. Although the Urcinoli and Fornino courts were presented with verbal or physical actions beyond the actual solicitations, all that was considered as part of the totality of the circumstances in making the fact-sensitive determination of whether a substantial step had taken place. The courts did not, however, incorporate those actions into the required showing for a substantial step – that is, they did not set a floor for finding a substantial step.
In light of the Court’s language that “this case lies at the outer edges of proofs to support a substantial step”, it is fair to argue that this case “sets a floor” for finding a substantial step.
One of the stronger points in support of Justice Timpone’s opinion is that the proofs were sufficient to allow the jury to consider an attempted murder charge.
