Conn. Crim. Jury Instr. 3.2

General Statutes § 53a-49 defines two ways in which an attempt crime may be

committed: the defendant engages in conduct which would constitute the crime if attendant

circumstances were as he or she believes them to be, or the defendant takes a substantial step

towards the commission of the crime. If the state does not indicate which of the subsections of §

53a-49 (a) it is relying on, the court may wish to clarify this before instructing the jury on

attempt.

“Both § 53a-49 (1) and (2) require that the state prove both intent and conduct to sustain

a conviction. . . . There are two essential elements of an attempt under this statute. They are,

first, that the defendant had a specific intent to commit the crimes as charged, and, second, that

he did some overt act adapted and intended to effectuate that intent. . . . [T]he attempt is

complete and punishable, when an act is done with intent to commit the crime, which is adapted

to the perpetration of it, whether the purpose fails by reason of interruption . . . or for other

extrinsic cause.” (Internal quotation marks omitted.) State v. Perez, 147 Conn. App. 53, 89-90

(2013).

“[A] substantial step must be something more than mere preparation, yet may be less than

the last act necessary before the actual commission of the substantive crime, and thus the finder

of fact may give weight to that which has already been done as well as that which remains to be

accomplished before commission of the substantive crime. . . . In order for behavior to be

punishable as an attempt, it need not be incompatible with innocence, yet it must be necessary to

the consummation of the crime, and be of such a nature that a reasonable observer, viewing it in

context could conclude beyond a reasonable doubt that it was undertaken in accordance with a

design to violate the statute.” State v. Sorabella, 277 Conn. 155, 180-81 (2006).

In State v. Moreno-Hernandez, 317 Conn. 292 (2015), the Supreme Court acknowledged

that its prior decisions, and those of the Appellate Court, were contradictory as to whether the

attendant circumstances subdivision is limited to impossibility situations. Id., 300. It then

undertook a thorough review of the language of the statute and the commentary of the Model

Penal Code sections upon which it was based and concluded that it is not limited to impossibility

situations. Id., 306. It also concluded that “the distinction between the two subdivisions is the

degree of completeness each requires in the course of an actor’s conduct.” Id., 311. “The

substantial step subdivision criminalizes certain conduct that would fall short of violating the

attendant circumstances subdivision. That is, the substantial step subdivision covers situations in

which an individual has not engaged in conduct that would constitute the crime if attendant

circumstances were as he believed them to be, but, rather, only has taken a substantial step

toward committing the crimes that is strongly corroborative of his criminal intent.” Id., 311.