Is There a Bar to An Attempt Prosecution Where a Crime Is Predicated on Direct Conduct Definition of Crime Containing No 'Result' Component ?
In People v. Saunders (85 NY2d 339 ), the Court of Appeals held that where a crime is predicated on direct conduct, and where the definition of the crime contains no "result" component, there is no bar to an attempt prosecution.
In Saunders, the Court reinstated an indictment charging defendant with attempted weapons possession since the underlying crime was not a result-based offense, but rather, proscribed particular conduct--the act of possessing a firearm.
Similarly, since the underlying endangering charge here has no result component and forbids only particular conduct, that is, a defendant's acting in a manner likely to cause harm to a child, an attempt to commit that crime is not a legal impossibility. (See, People v. Prescott, 263 AD2d 254 [4th Dept 2000] [attempted driving while intoxicated is a legally cognizable crime because the completed crime proscribes particular conduct]; People v. Peterson, 269 AD2d 788 [4th Dept 2000] [attempted criminal possession of a controlled substance in the first degree is not a legal impossibility].)
Lending support to this conclusion is the Court of Appeals decision in People v. Coleman, where the Court upheld the defendant's conviction for attempted promoting prostitution in the second degree. a person is guilty of that crime when he "knowingly ... [a]dvances or profits from prostitution of a person less than sixteen years old." (Penal Law 230.30 .) the Court held that the statute does not make criminal
an unintended result, since the core conduct prohibited by the statute is the defendant's acting to promote prostitution. (Supra, at 385.)
Likewise, since the core conduct prohibited by the endangering statute is defendant's acting in a manner likely to injure the child, the crime is legally cognizable.