(dissenting in part). I respectfully dissent in part. Contrary to the view of the majority, I do not believe that the evidence is legally sufficient to support the conviction of attempted murder in the second degree or attempted burglary in the first degree. As the majority correctly notes, section 110.00 of the Penal Law provides that “[a] person is guilty of an attempt to commit a crime when, with intent to commit a crime, he [or she] engages in conduct which tends to effect the commission of such crime.” Although I agree with the majority that the detailed “to-do list” seized from defendant at the scene and his statements following his arrest establish that he planned and intended to commit burglary and murder, “[t]his alone is insufficient ... to establish criminal liability for attempt” (People v Trepanier, 84 AD2d 374, 376 [1982]). As noted, Penal Law § 110.00 also requires proof of conduct tending to effect the commission of the intended crime or crimes. “[I]t must be proven that the defendant acted to carry out his intent. The law does not punish evil thoughts” (People v Bracey, 41 NY2d 296, 300 [1977], rearg denied 41 NY2d 1010 [1977]). Further, the conduct “constituting an attempt [must come] very near to the accomplishment of the crime” (People v Rizzo, 246 NY 334, 337 [1927]) or “dangero0usly near” thereto (id. at 338; see People v Acosta, 80 NY2d 665, 670 [1993]; People v Mahboubian, 74 NY2d 174, 190 [1989]; People v Di Stefano, 38 NY2d 640, 652 [1976]).
Here, defendant’s conduct did not come “very near” or “dangerously near” to the commission of the intended burglary or murders. According to the evidence presented at trial, a witness observed defendant walking in the vicinity of the residence of the intended victims. That witness called 911, and the police officer dispatched to the scene observed defendant some distance *1493away from the driveway leading to the rear of the residence of the intended victims, and defendant’s shotgun was lying on a snowbank 5 to 10 feet away from defendant. There was no evidence that defendant ever set foot on the property of the intended victims, nor was there evidence that he pointed the shotgun at either intended victim. Indeed, defendant was never in the presence of the intended victims and, according to the evidence presented at trial, one of the intended victims was out of town at the time of the incident.
It has been held that evidence of conduct far closer to the accomplishment of a murder, i.e., pointing a loaded pistol at a police officer, is legally insufficient to support a conviction of attempted murder absent further “proof that the defendant had his finger on the trigger . . . , or otherwise came ‘ “very near to the accomplishment of the intended crime” ’ ” (People v Mendez, 197 AD2d 485, 485 [1993], lv denied 83 NY2d 807 [1994], quoting Di Stefano, 38 NY2d at 652; see People v Chandler, 250 AD2d 410 [1998]). Such further proof was presented in People v Acevedo (256 AD2d 162 [1998], lv denied 93 NY2d 921 [1999]), in which the conviction of attempted murder was upheld. Significantly, the Court of Appeals has written that “a man [would not] be guilty of an attempt to commit a murder if he armed himself and started out to find the person whom he had planned to kill but could not find him” (Rizzo, 246 NY at 339; People v Sullivan, 173 NY 122, 135-136 [1903]), and the Court further wrote in Rizzo that “[m]en would not be guilty of an attempt at burglary if they had planned to break into a building and were arrested while they were hunting about the streets for the building not knowing where it was” (id. at 338-339; see Sullivan, 173 NY at 135). I therefore would modify the judgment by reversing those parts convicting defendant of attempted murder in the second degree and attempted burglary in the first degree and dismissing counts one, two and six of the indictment, and I would remit the matter to Supreme Court for proceedings pursuant to CPL 470.45. Present—Scudder, P.J., Centra, Lunn, Fahey and Green, JJ.