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*Note: The following opinion was edited by AudioCaseFiles' staff.
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People v. Dlugash
41 N.Y.2d 725, 363 N.E.2d 1155
New York Court of Appeals, 1977

JASEN, J.

. . . The ultimate issue is whether an individual's intentions and actions, though failing to achieve a manifest and malevolent criminal purpose, constitute a danger to organized society of sufficient magnitude to warrant the imposition of criminal sanctions. . . . Phrased somewhat differently, the concern centers on whether an individual should be liable for an attempt to commit a crime when, unknown to him, it was impossible to successfully complete the crime attempted. For years, serious studies have been made on the subject in an effort to resolve the continuing controversy when, if at all, the impossibility of successfully completing the criminal act should preclude liability for even making the futile attempt. The 1967 revision of the Penal Law approached the impossibility defense to the inchoate crime of attempt in a novel fashion. The statute provides that, if a person engages in conduct which would otherwise constitute an attempt to commit a crime, "it is no defense to a prosecution for such attempt that the crime charged to have been attempted was, under the attendant circumstances, factually or legally impossible of commission, if such crime could have been committed had the attendant circumstances been as such person believed them to be." (Penal Law, section 110.10.) This appeal presents to us, for the first time, a case involving the application of the modern statute. We hold that, under the proof presented by the People at trial, defendant Melvin Dlugash may be held for attempted murder, though the target of the attempt may have already been slain, by the hand of another, when Dlugash made his felonious attempt.

On December 22, 1973, Michael Geller, 25 years old, was found shot to death in the bedroom of his Brooklyn apartment. The body, which had literally been riddled by bullets, was found lying faceup on the floor. An autopsy revealed that the victim had been shot in the face and head no less than seven times. . . . The victim had also been critically wounded in the chest. . . . The autopsy report listed the cause of death as "[multiple] bullet wounds of head and chest with brain injury and massive bilateral hemothorax with penetration of [the] heart.". . .

Detective Joseph Carrasquillo of the New York City Police Department was assigned to investigate the homicide. . . . Upon arrival at the police station, Detective Carrasquillo and the defendant went directly into an interview room. Carrasquillo advised the defendant that he had witnesses and information to the effect that as late as 7:00 p.m. on the day before the body was found, defendant had been observed carrying a .25 caliber pistol. . . . Carrasquillo administered the standard preinterrogation statement of rights. The defendant then proceeded to relate his version of the events which culminated in the death of Geller. Defendant stated that, on the night of December 21, 1973, he, Bush and Geller had been out drinking. Bush had been staying at Geller's apartment and, during the course of the evening, Geller several times demanded that Bush pay $ 100 towards the rent on the apartment. According to defendant, Bush rejected these demands, telling Geller that "you better shut up or you're going to get a bullet". All three returned to Geller's apartment at approximately midnight, took seats in the bedroom, and continued to drink until sometime between 3:00 and 3:30 in the morning. When Geller again pressed his demand for rent money, Bush drew his .38 caliber pistol, aimed it at Geller and fired three times. Geller fell to the floor. After the passage of a few minutes, perhaps two, perhaps as much as five, defendant walked over to the fallen Geller, drew his .25 caliber pistol, and fired approximately five shots in the victim's head and face. Defendant contended that, by the time he fired the shots, "it looked like Mike Geller was already dead". After the shots were fired, defendant and Bush walked to the apartment of a female acquaintance. Bush removed his shirt, wrapped the two guns and a knife in it, and left the apartment, telling Dlugash that he intended to dispose of the weapons. . . .

After Carrasquillo had taken the bulk of the statement, he asked the defendant why he would do such a thing. According to Carrasquillo, the defendant said, "gee, I really don't know". Carrasquillo repeated the question 10 minutes later, but received the same response. After a while, Carrasquillo asked the question for a third time and defendant replied, "well, gee, I guess it must have been because I was afraid of Joe Bush.". . .

Defendant was indicted by the Grand Jury of Kings County on a single count of murder in that, acting in concert with another person actually present, he intentionally caused the death of Michael Geller. At the trial, [the prosecution called] two physicians from the office of the New York City Chief Medical Examiner. . . . From the physicians, the prosecution sought to establish that Geller was still alive at the time defendant shot at him. Both physicians testified that each of the two chest wounds, for which defendant alleged Bush to be responsible, would have caused death without prompt medical attention. However, the victim would have remained alive until such time as his chest cavity became fully filled with blood. Depending on the circumstances, it might take 5 to 10 minutes for the chest cavity to fill. Neither prosecution witness could state, with medical certainty, that the victim was still alive when, perhaps five minutes after the initial chest wounds were inflicted, the defendant fired at the victim's head.

The defense produced but a single witness, the former Chief Medical Examiner of New York City. This expert stated that, in his view, Geller might have died of the chest wounds "very rapidly" since, in addition to the bleeding, a large bullet going through a lung and the heart would have other adverse medical effects. ". . . I would say that wounds like that which are described here as having gone through the lungs and the heart would be fatal wounds and in most cases they're rapidly fatal."

The trial court declined to charge the jury, as requested by the prosecution, that defendant could be guilty of murder on the theory that he had aided and abetted the killing of Geller by Bush. Instead, the court submitted only two theories to the jury: that defendant had either intentionally murdered Geller or had attempted to murder Geller.

The jury found the defendant guilty of murder. . . . On appeal, the Appellate Division reversed the judgment of conviction on the law and dismissed the indictment. The court ruled that "the People failed to prove beyond a reasonable doubt that Geller had been alive at the time he was shot by defendant; defendant's conviction of murder thus cannot stand." Further, the court held that the judgment could not be modified to reflect a conviction for attempted murder because "the uncontradicted evidence is that the defendant, at the time he fired the five shots into the body of the decedent, believed him to be dead, and . . . there is not a scintilla of evidence to contradict his assertion in that regard."

Preliminarily, we state our agreement with the Appellate Division that the evidence did not establish, beyond a reasonable doubt, that Geller was alive at the time defendant fired into his body. To sustain a homicide conviction, it must be established, beyond a reasonable doubt, that the defendant caused the death of another person. (Penal Law, section 125.00.) The People were required to establish that the shots fired by defendant Dlugash were a sufficiently direct cause of Geller's death. ( People v. Stewart.) While the defendant admitted firing five shots at the victim approximately two to five minutes after Bush had fired three times, all three medical expert witnesses testified that they could not, with any degree of medical certainty, state whether the victim had been alive at the time the latter shots were fired by the defendant. Thus, the People failed to prove beyond a reasonable doubt that the victim had been alive at the time he was shot by the defendant. Whatever else it may be, it is not murder to shoot a dead body. Man dies but once. . . .

. . . The Revised Penal Law now provides that a person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime. (Penal Law, section 110.10.). . . .

The most intriguing attempt cases are those where the attempt to commit a crime was unsuccessful due to mistakes of fact or law on the part of the would-be criminal. A general rule developed in most American jurisdictions that legal impossibility is a good defense but factual impossibility is not. Thus, for example, it was held that defendants who shot at a stuffed deer did not attempt to take a deer out of season, even though they believed the dummy to be a live animal. The court stated that there was no criminal attempt because it was no crime to "take" a stuffed deer, and it is no crime to attempt to do that which is legal. These cases are illustrative of legal impossibility. . . .

On the other hand, factual impossibility was no defense. For example, a man was held liable for attempted murder when he shot into the room in which his target usually slept and, fortuitously, the target was sleeping elsewhere in the house that night. ( State v. Mitchell.) Although one bullet struck the target's customary pillow, attainment of the criminal objective was factually impossible. State v. Moretti presents a similar instance of factual impossibility. The defendant agreed to perform an abortion, then a criminal act, upon a female undercover police investigator who was not, in fact, pregnant. The court sustained the conviction, ruling that "when the consequences sought by a defendant are forbidden by the law as criminal, it is no defense that the defendant could not succeed in reaching his goal because of circumstance unknown to him." . . .

The New York cases can be parsed out along similar lines. One of the leading cases on legal impossibility is People v. Jaffe, in which we held that there was no liability for the attempted receipt of stolen property when the property received by the defendant in the belief that it was stolen was, in fact, under the control of the true owner. Similarly, in People v Teal, a conviction for attempted subornation of perjury was overturned on the theory that the testimony attempted to be suborned was irrelevant to the merits of the case. Since it was not subornation of perjury to solicit false, but irrelevant, testimony, "the person through whose procuration the testimony is given cannot be guilty of subornation of perjury and, by the same rule, an unsuccessful attempt to that which is not a crime when effectuated, cannot be held to be an attempt to commit the crime specified." Factual impossibility, however, was no defense. Thus, a man could be held for attempted grand larceny when he picked an empty pocket. ( People v Moran.)

As can be seen from even this abbreviated discussion, the distinction between "factual" and "legal" impossibility was a nice one indeed and the courts tended to place a greater value on legal form than on any substantive danger the defendant's actions posed for society. The approach of the draftsmen of the Model Penal Code was to eliminate the defense of impossibility in virtually all situations. Under the code provision, to constitute an attempt, it is still necessary that the result intended or desired by the actor constitute a crime. However, the code suggested a fundamental change to shift the locus of analysis to the actor's mental frame of reference and away from undue dependence upon external considerations. The basic premise of the code provision is that what was in the actor's own mind should be the standard for determining his dangerousness to society and, hence, his liability for attempted criminal conduct. (Wechsler, Jones and Korn, Treatment of Inchoate Crimes in Model Penal Code of American Law Institute: Attempt, Solicitation and Conspiracy.)

In the belief that neither of the two branches of the traditional impossibility arguments detracts from the offender's moral culpability, the Legislature substantially carried the code's treatment of impossibility into the 1967 revision of the Penal Law. Thus, a person is guilty of an attempt when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime. (Penal Law, section 110.00.) It is no defense that, under the attendant circumstances, the crime was factually or legally impossible of commission, "if such crime could have been committed had the attendant circumstances been as such person believed them to be." (Penal Law, section 110.10.) Thus, if defendant believed the victim to be alive at the time of the shooting, it is no defense to the charge of attempted murder that the victim may have been dead.

Turning to the facts of the case before us, we believe that there is sufficient evidence in the record from which the jury could conclude that the defendant believed Geller to be alive at the time defendant fired shots into Geller's head. Defendant admitted firing five shots at a most vital part of the victim's anatomy from virtually point blank range. Although defendant contended that the victim had already been grievously wounded by another, from the defendant's admitted actions, the jury could conclude that the defendant's purpose and intention was to administer the coup de grace. . . . Defendant argues that the jury was bound to accept, at face value, the indications in his admissions that he believed Geller dead. . . . [However], in this case, there is ample other evidence to contradict the defendant's assertion that he believed Geller dead. . . .

The jury convicted the defendant of murder. Necessarily, they found that defendant intended to kill a live human being. Subsumed within this finding is the conclusion that defendant acted in the belief that Geller was alive. Thus, there is no need for additional fact findings by a jury. Although it was not established beyond a reasonable doubt that Geller was, in fact, alive, such is no defense to attempted murder since a murder would have been committed "had the attendant circumstances been as [defendant] believed them to be." (Penal Law, section 110.10.) The jury necessarily found that defendant believed Geller to be alive when defendant shot at him.

The Appellate Division erred in not modifying the judgment to reflect a conviction for the lesser included offense of attempted murder. An attempt to commit a murder is a lesser included offense of murder and the Appellate Division has the authority, where the trial evidence is not legally sufficient to establish the offense of which the defendant was convicted, to modify the judgment to one of conviction for a lesser included offense which is legally established by the evidence. . . .

This case is in these books

• Criminal Law and Its Processes: Cases and Materials
• Kadish, Schulhofer
• 8th Edition