What Is Attempted Solicitation under New York Law?

Attempted solicitation differs from completed solicitation in timing and outcome. Completed solicitation occurs when a defendant successfully requests or encourages another person to commit a crime, regardless of whether that other person actually commits it. Attempted solicitation, by contrast, describes situations in which the solicitation effort itself fails or is interrupted before the target person agrees or begins to act on the request.

In practice, a defendant might attempt to solicit a crime by sending an incomplete or garbled message, approaching someone who is actually an undercover officer, or being stopped before the full solicitation is communicated. Courts examine whether the defendant's words or conduct were sufficient to constitute a complete request and whether the defendant's intent to solicit was clear. If the communication is ambiguous or the defendant's intent is unclear, a court may find that solicitation was not completed, leaving only the attempt charge viable.

A substantial step is conduct that is strongly corroborative of the defendant's intent to commit the crime. Examples include sending a written message requesting that another person commit a specific crime, offering payment or incentive to someone to commit a crime, providing detailed instructions or planning information, or making direct verbal requests to a specific individual. Courts focus on whether the step taken is more than mere preparation and whether it directly advances the criminal objective.

Mere planning, discussion, or thinking about asking someone to commit a crime does not constitute a substantial step. Similarly, vague or ambiguous overtures may not satisfy the threshold. A defendant who says someone should rob that store to a stranger on the street may not have taken a substantial step, because the statement is not directed at a specific person with clear intent to solicit. By contrast, a defendant who provides a specific person with a weapon, location details, and a time to commit robbery has likely taken a substantial step.

Intent separates criminal conduct from innocent or reckless behavior. A defendant who makes a joke or sarcastic remark about committing a crime, even if another person takes it seriously, may not have the required intent to solicit. Courts examine the totality of circumstances, including the defendant's words, tone, relationship to the other person, and any follow-up actions. This requirement protects individuals from criminal liability for stray comments or misunderstandings while still holding accountable those who genuinely try to enlist others in crime.

The mental state also distinguishes attempted solicitation from related offenses like conspiracy or aiding and abetting. A conspirator agrees with another to commit a crime; a solicitor asks someone else to commit it. The defendant need not succeed in persuading the other person; the attempt itself is the crime. This distinction matters for victims and witnesses because it means that even if the person solicited refuses, rejects, or reports the request, the defendant remains criminally liable for the attempt.

Victims and witnesses should preserve all evidence of the solicitation attempt, including written communications, recordings (where legal), and notes about the timing and content of oral requests. In New York courts, the prosecution bears the burden of proving the defendant's intent and the substantial step beyond reasonable doubt. Victim testimony about what was said, how it was said, and what the defendant appeared to want can be powerful evidence of intent.

Witnesses may be called to testify about the defendant's words or conduct. The defense may challenge the credibility of the witness, the clarity of the communication, or whether the defendant's words actually constituted a request to commit a crime. Victims should be prepared to describe the solicitation in specific terms: what exactly was requested, when and how the request was made, whether the defendant offered anything in return, and what the victim's response was. Courts in New York also consider whether the defendant persisted after rejection or took additional steps to persuade the target.

New York courts apply the standard corroboration rule: certain crimes, including solicitation offenses, may require some independent evidence beyond the testimony of a single witness. The corroborating evidence need not prove the crime beyond reasonable doubt, but it must tend to support the witness's account. Text messages, emails, witness testimony from a third party who overheard the solicitation, or evidence of the defendant's prior conduct can provide corroboration.

Credibility determinations are made by the judge or jury and turn on factors such as the witness's opportunity to observe, consistency of the account, motive to lie, and whether the account is consistent with other evidence. A victim who delays reporting or whose account changes significantly may face credibility challenges. Conversely, a victim who immediately documented the solicitation and reported it promptly generally presents a stronger credibility posture. Courts also consider whether the defendant's conduct fits a pattern of similar behavior.