This section contains the nature of the case and procedural background.

D, with three others, Anthony J. Dorio, Thomas Milo, and John Thomasello, planned to rob one Charles Rao of a payroll valued at about $1,200 which he was to carry from the bank for the United Lathing Company. Two of the Ds had firearms, and the four would be robbers rode about in their car looking for Rao. Ds eventually were watched and followed by two police officers. As D jumped out of the car and ran into the building where the money was supposed to be all four were arrested. The payroll was not at the place they were at the place at the time of the arrest. Ds had not found or seen the man they intended to rob; no person with a payroll was at any of the places where they had stopped and no one had been pointed out or identified by D. The four men intended to rob the payroll man, whoever he was. Ds were looking for him, but they had not seen or discovered him up to the time they were arrested. D was convicted of attempt to commit robbery in the first degree. D appealed, claiming that his conduct was not enough to support a conviction for attempt.

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