People v. Dlugash
41 N.Y.2d 725, 363 N.E.2d 1155 (1977)
Bush, Geller and Dlugash were
drinking together. They got into an argument. Bush pulled out a gun and
shot Geller multiple times, almost certainly killing him. After about
five minutes, Dlugash pulled out a gun and shot Geller's body a few more
Dlugash testified that he
did it because he was afraid Bush might shoot him next.
Dlugash was arrested and
charged with attempted murder
and/or first-degree murder.
The prosecution had an
expert witness testify that Geller might have still been alive when
Dlugash shot him. Dlugash had a expert witness who said it was unlikely.
All the experts agreed that Geller would have died even if Dlugash
didn't shoot him.
The Trial Court convicted
Dlugash of first-degree murder. He
The Appellate Court overturned
the first-degree murder conviction.
The prosecutor appealed.
The Appellate Court found
that it could not be proved beyond a reasonable doubt that Geller was
alive when Dlugash shot him.
The prosecutor argued that
if Dlugash wasn't guilty of murder, he should at least be guilty of attempted
The New York Supreme Court
modified the conviction and found Dlugash guilty of attempted murder.
The New York Supreme Court
found that under the common-law, legal impossibility is a defense, but factual
impossibility is not a defense.
An example of a legal
impossibility would be for hunters
to shoot at an artificial deer without a license. Since it is not a
crime to kill a stuffed animal, it is no crime to attempt to do what is
An example of a factual
impossibility is when you blow up
someone's house in an attempt to kill them, but it turns out they
weren't home. There was no chance the attempt could succeed, but if it
did succeed, then a crime would have been committed.
See People v. Jaffe (78 N.E. 169 (1906)).
However, under the Model
Penal Code §5.01(1), a person in
guilty of attempt when they engage in conduct which tends
to effect the commission of such crime. It is no defense that, under the
attendant circumstances, the crime was factually or legally impossible,
"if such crime could have been committed had the attendant
circumstances been as such person believed them to be."
So basically, a person is
guilty of attempt, if they take
actions that they think are a crime, even if it turns out that the
actions could not possibly had been a crime for some reason the
defendant didn't know about.
So in this case, it didn't
matter if Geller was dead or not. All that matters was whether Dlugash believed that Geller was still alive when he shot him.
Since the jury found
Dlugash guilty of murder, they
must have found that Dlugash intended to murder Geller, which included a finding
that Dlugash believed
that Geller was still alive. Therefore the Court can modify the
conviction to attempted murder without requiring a new trial.