Mistake Of Fact And Attempt To Commit A Crime Under New York Law

Our New York City and Westchester criminal defense lawyers have defended numerous cases in which our client thought they were in fact committing a crime, but because of some unknown fact, the crime could not be committed. Often, while the police charge the actual crime, which cannot be proven, the attempt often can be proven. In general an attempt tends to be one grade lower of an offense than the original attempted crime and by definition carries a lower sentence. Where a person engages in conduct that otherwise constitutes an attempt, it is no defense to a prosecution for such attempt that the crime charged to have been attempted was, under the attendant circumstances, factually or legally impossible of commission, if such crime could have been committed had the attendant circumstances been as such person believed them to be

Section 110 of the New York Penal Law states that a person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime. Stated differently, an attempt is an act done with an intent to commit some other crime. Even though the accused may have failed in the purpose, the conduct can be treated as a crime in itself if carried far enough to cause a sufficient risk of harm. In order to prove an attempt, it is necessary to establish (1) that the defendant had the intent to commit a specific offense; and (2) that the defendant engaged in some affirmative act to carry out that intent. New York Penal Law 110.10 specifically states that where a person engages in conduct that otherwise constitutes an attempt, it is no defense to a prosecution for such attempt that the crime charged to have been attempted was, under the attendant circumstances, factually or legally impossible of commission, if such crime could have been committed had the attendant circumstances been as such person believed them to be. While a mistake of fact may prevent a conviction on the more serious crime, there may still be criminal liability for the attempt.

Common examples include where a defendant had a large quantity of what they thought was narcotics, but the narcotics turned out to be some other substance. Another common example is where the age of the victim is a aggravating factor such as promoting prostitution cases where the under cover officer is really over 18, but pretends to be under 16. This scenario often occurs in online sex stings.

If you have an ambiguous situation where criminal liability is not clear, our White Plains criminal defense lawyers offer free consultations to those charged in the Westchester criminal courts including Yonkers, White Plains, New Rochelle, Greenburgh, Mount Vernon, Elmsford, Armonk, Port Chester, Mamaroneck, Tarrytown, Mt. Kisco, Pelham, Mamaroneck, Sleepy Hollow, Ardsley, Mount Pleasant, Hartsdale and Scarsdale. From our Manhattan and Queens offices, our New York City criminal defense lawyers regularly represent those charged with both misdemeanors and felonies in Manhattan, the Bronx and Queens.