People v. Dlugash
41 N.Y. 725 (1977)
Rule of Law:
Under New York Penal Law, impossibility is not a defense to an attempt charge if the crime could have been committed had the attendant circumstances been as the defendant believed them to be. A defendant can be guilty of attempted murder for shooting a person who is already dead, provided the defendant believed the victim was alive at the time of the act.
Facts:
- On the night of December 21, 1973, Melvin Dlugash, Joe Bush, and Michael Geller were drinking in Geller's apartment.
- Geller and Bush argued over rent money, during which Bush threatened to shoot Geller.
- Sometime between 3:00 and 3:30 AM, Bush drew a .38 caliber pistol and fired three times at Geller, causing him to fall to the floor.
- Approximately two to five minutes later, Dlugash walked over to Geller, drew his own .25 caliber pistol, and fired five shots into Geller’s head and face.
- Dlugash later stated to police that he thought Geller was already dead when he fired the shots.
- Medical experts testified that either of the chest wounds inflicted by Bush would have been fatal, but they could not determine with medical certainty whether Geller was alive when Dlugash fired.
Procedural Posture:
- Melvin Dlugash was indicted on a single count of murder.
- At trial in the state trial court, the jury was instructed on intentional murder and attempted murder.
- The jury convicted Dlugash of murder.
- Dlugash's post-verdict motion to set aside the verdict was denied by the trial court.
- Dlugash, as appellant, appealed the conviction to the Appellate Division of the New York Supreme Court, an intermediate appellate court.
- The Appellate Division reversed the judgment and dismissed the indictment, finding the prosecution failed to prove the victim was alive when Dlugash shot him.
- The People, as appellant, then appealed the dismissal to the Court of Appeals of New York, the state's highest court.
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Issue:
Does a person commit the crime of attempted murder when they shoot a victim who may have already been killed by another, if the person believed the victim was alive at the time of the shooting?
Opinions:
Majority - Jasen, J.
Yes. A person can be held liable for attempted murder, even if the victim may have already been dead, when the person acts with the intent to kill a living person. New York Penal Law § 110.10 explicitly eliminates the defense of factual or legal impossibility where the crime would have been possible had the circumstances been as the defendant believed them to be. The court found there was sufficient evidence for a jury to conclude that Dlugash believed Geller was alive at the time he fired, despite his self-serving statement to the contrary. Dlugash's actions—firing five shots at a vital part of the body from point-blank range, his consciousness of guilt, and his efforts to conceal the crime—all allowed the jury to infer that his intent was to kill a living person. Therefore, the jury's finding that he intended to kill Geller necessarily included the finding that he believed Geller was alive, satisfying the requirements for an attempt conviction.
Analysis:
This decision solidifies New York's adoption of the Model Penal Code's modern approach to attempt liability, moving away from the often-confusing distinction between 'legal' and 'factual' impossibility. The ruling establishes that the crucial element in an attempt case is the defendant's mental state and criminal purpose, not the external circumstances that may have made the crime impossible to complete. This shifts the focus of the law from what was actually possible to what the defendant intended to do, thereby punishing criminal dangerousness regardless of a fortuitous failure. The case sets a clear precedent that a defendant's subjective belief is paramount in assessing liability for an inchoate crime like attempt.
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