People v. Jaffe
He meant to buy stolen cloth. The owners had already recovered it. Why that defeated an attempt conviction—and why New York later changed the rule.
People and parties
Court of Appeals
Select a participant for details.
The cloth was real. The stolen status was gone.
On October 6, 1902, Samuel Jaffe tried to acquire cloth he believed was stolen. The indictment described twenty yards, valued at twenty-five cents a yard, belonging to J. W. Goddard & Son. By the time the cloth reached the proposed buyer, however, its owners had recovered it and authorized the offer. [1] pp. 498–499
That intervening recovery mattered more than Jaffe’s purpose. New York’s highest court reversed his conviction for attempted receipt of stolen property because, on the conceded facts, completing the purchase would not have completed the charged crime. Six judges agreed; Judge Chase dissented. [1] pp. 500–503
The decision became a leading example of legal impossibility. Its result is historical: New York’s revised Penal Law later directed courts to consider the circumstances as the defendant believed them to be. Reading Jaffe alongside that change shows exactly where an attempt analysis can turn. [2] pp. 734–735; [3]
The delivery the owners authorized
Judge Chase’s dissent supplies the transaction’s fullest account. An employee had been stealing from the dry-goods firm and selling to Jaffe. After Jaffe requested more cloth, the employee took a roll of Italian cloth and left it at another store for later delivery. When the employers discovered the thefts and confronted him, he confessed and disclosed the roll’s location. [1] p. 503, Chase, J., dissenting
Another employee recovered the cloth. A delivery was then arranged at police headquarters, and, according to Chase, Jaffe received it and paid about half its value before his arrest. The majority framed the issue in terms of the purchase Jaffe sought to make. Both opinions confronted the same decisive premise: the cloth was back under its owners’ control. [1] pp. 499–501, 503
The prosecutor expressly conceded that the goods had lost their stolen character. The court therefore did not need to determine whether every temporary police recovery or controlled delivery has that effect. The appeal began with the absence of that element already accepted. [1] pp. 499, 501
The transaction, the appeal, the change in law
Transaction alleged in indictment; the owners had recovered the cloth before offering it to Jaffe. [1] pp. 498–499
- Before June 1906
General Sessions convicts of attempt; Appellate Division affirms, relying on cases allowing liability despite unknown obstacles. [1] pp. 499–500, 502
Court of Appeals reverses and discharges Jaffe under this indictment, reserving other possible prosecutions. [1] pp. 502–503
- 1967
Revised Penal Law shifts impossibility analysis to circumstances as the actor believed them. [2] pp. 734–735
Dlugash applies § 110.10 to attempted murder where the victim might already have been dead. [2] pp. 735–738
Could there be an attempt without stolen goods?
The indictment charged receiving stolen property under former Penal Code § 550; the conviction was for an attempt to commit that offense. The question was whether an intended purchase could support attempt liability when the specific property was no longer stolen. The court was deciding the legal sufficiency of that conviction, not whether Jaffe’s purpose was innocent. [1] pp. 498–501
The prosecution: recovery should not erase the attempt
The Appellate Division had relied on cases allowing attempt convictions despite facts unknown to the accused. A pickpocket could attempt larceny even if the pocket was empty. In People v. Gardner, an extortion attempt survived even though the target was a police decoy who did not pay out of fear. On that approach, the owners’ recovery did not erase Jaffe’s criminal objective. The reported opinions supply this account of the prosecution’s theory. [1] pp. 499–500, 503
Jaffe: this purchase could not complete the crime
The majority focused on the particular goods offered. Section 550 required stolen property and knowledge of its stolen character. Jaffe could believe the cloth was stolen, but that belief could not make it so. Even a completed purchase of these recovered goods would lack what the statute required. [1] pp. 500–501
Why six judges found an element missing
Bartlett treated knowledge as more than an incriminating state of mind: it had to concern an existing fact. The cloth’s conceded status made the statutory knowledge impossible. “He may believe it to be so but belief is not enough under this statute.” [1] p. 501
For the majority, the empty-pocket cases involved a contemplated taking that would be criminal if carried out. Jaffe’s contemplated acquisition of the specific recovered cloth, by contrast, would remain outside § 550 even if completed. That distinction supplied the court’s answer to the prosecution’s precedents. [1] pp. 500–502
There is an evident tension in that reasoning. Describe Jaffe’s aim as buying these pieces of cloth and the act appears lawful; describe it as obtaining stolen goods and it resembles the pickpocket’s failed theft. The disagreement turns, in part, on how the intended act is described. Dlugash would later criticize the older factual/legal distinction for giving legal form too much weight. [2] pp. 734–735
Chase’s dissent: the conduct already showed the attempt
Chase emphasized the request for cloth, the employee’s theft, the arranged delivery and the payment. He considered Jaffe’s criminal intention undisputed and found an attempt under former §§ 550 and 34 and the same precedents the majority distinguished. For Chase, the recovery did not undo the attempt shown by Jaffe’s conduct and purpose. [1] p. 503
What Jaffe won—and what he did not
The court reversed the judgments of both lower courts and ordered Jaffe discharged under this indictment. It did not order a new trial to repair the missing element. The majority nevertheless expressly preserved the right to prosecute other similar offenses indicated in the record but not charged here. The reported decision does not establish whether such a prosecution followed. [1] pp. 502–503
New York changed the question
Under current Penal Law § 110.00, attempt requires intent to commit a crime and conduct tending to effect its commission. Section 110.10 then removes factual or legal impossibility as a defense when the crime could have been committed “had the attendant circumstances been as such person believed them to be.” The prosecution still has to prove intent and conduct. [3] [4]
Dlugash explains the change through a more severe factual problem. The prosecution could not prove beyond a reasonable doubt that the victim was still alive when Dlugash shot him after another man had already fired. That defeated the murder theory at issue. It did not defeat attempted murder if Dlugash believed the victim alive and intended to kill him. [2] pp. 731, 735–737
The Court of Appeals found sufficient evidence for that attempt theory and remitted the matter to the Appellate Division for factual review and further sentencing proceedings if the facts were found favorably to the People. Its doctrinal explanation expressly placed Jaffe in the superseded framework and traced the new approach to the 1967 revision. [2] pp. 734–738
Recovered goods still matter to the completed offense
People v. Zaborski brought the issue back to recovered goods in 1983. A second-hand shop owner bought burglary proceeds from a police agent. The Court of Appeals upheld the reduction from completed criminal possession of stolen property to attempt, while ordering a new trial. Any retrial had to be for the attempted offense. [6] p. 865
The court explained that recovery by police had removed the goods’ stolen character even though the owners had not yet been located: the police held the property on their behalf. It cited Jaffe for the old rule and § 110.10 for the change permitting attempt liability. [6] p. 865
That leaves a practical distinction. The revised attempt statute does not turn recovered property back into stolen property. It allows an attempt charge to survive a missing circumstance when the defendant believed that circumstance existed. The completed offense still requires its own elements. [6] p. 865
Change the belief, then check the charge
These are analytical hypotheticals under the current New York provisions, not additional facts from Jaffe:
- A buyer believes recovered cloth is still stolen. If the buyer otherwise satisfies the requirements of attempt, recovery alone does not supply Jaffe’s old impossibility defense: the imagined circumstances would constitute a real crime. [3] [4]
- A buyer knows the cloth is legitimately offered but mistakenly thinks an ordinary purchase is prohibited. Holding those known facts constant supplies no actual crime to attempt. Section 110.10 changes the treatment of believed circumstances; it does not enact the offense the buyer imagines. [2] p. 734; [3] [4]
- A buyer merely wishes to obtain stolen cloth. The no-impossibility rule does not eliminate the separate requirement of conduct tending to effect the offense. [4]
For counsel, the useful sequence is to identify the substantive offense, isolate the missing circumstance, establish what the accused believed, and independently analyze intent and conduct. Jaffe explains why separating those questions matters. Section 110.10 supplies New York’s present answer to the circumstance problem. [1] pp. 500–502; [3] [4]
Sources and further reading
- People v. Jaffe, 185 N.Y. 497 (1906)
Court of Appeals of New York · June 21, 1906 · Majority pp. 498–503; Chase dissent p. 503. Includes the court’s accounts of People v. Moran and People v. Gardner.
- People v. Dlugash, 41 N.Y.2d 725 (1977)
Court of Appeals of New York · May 12, 1977 · Proof of death p. 731; Jaffe and statutory change pp. 734–735; attempt and disposition pp. 735–738.
- New York Penal Law § 110.10
Attempt to commit a crime; no defense · Official current statutory text.
- New York Penal Law § 110.00
Attempt to commit a crime · Intent and conduct requirements.
- Participant illustration references
Bartlett: Bain News Service photograph, Library of Congress, 1913, supplemented by the Historical Society of the New York Courts portrait. New York: Bastique’s public-domain geographic map. The displayed images are generated illustrations, not historical photographs. No verified portrait of Samuel Jaffe was located.
- People v. Zaborski, 59 N.Y.2d 863 (1983)
Court of Appeals of New York · June 14, 1983 · Memorandum opinion reproduced by Midpage; p. 865, recovered goods and attempted possession. The new-trial order left retrial limited to attempt.
Later treatment checked October 6, 2026 against the sources above. This is a focused account of New York law, not comprehensive citator clearance.