Melvin Dlugash was convicted of murder in Kings County. He appealed and the Supreme Court, Appellate Division, reversed and dismissed the indictment.

The People appealed and the Court of Appeals of New York affirmed as modified and remitted.

The criminal law is of ancient origin, but criminal liability for attempt to commit a crime is comparatively recent. At the root of the concept of attempt liability are the very aims and purposes of penal law. 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.

Difficulties in theoretical analysis and concomitant debate over very pragmatic questions of blameworthiness appear dramatically in reference to situations where the criminal attempt failed to achieve its purpose solely because the factual or legal context in which the individual acted was not as the actor supposed them to be. 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 . . . 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 face up on the floor . . . The autopsy report listed the cause of death as “(m)ultiple bullet wounds of head and chest with brain injury and massive bilateral hemothorax with penetration of (the) heart.” Subsequent ballistics examination established that the four bullets recovered from the victim’s head were .25 caliber bullets and that the heart-piercing bullet was of .38 caliber.

. . . 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”.

. . . 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 . . . 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. “Those wounds can be almost immediately or rapidly fatal or they may be delayed in there, in the time it would take for death to occur. But 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 jury found the defendant guilty of murder. The defendant then moved to set the verdict aside. He submitted an affidavit in which he contended that he “was absolutely, unequivocally and positively certain that Michael Geller was dead before (he) shot him.” . . . his motion was denied.

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 that 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. The People were required to establish that the shots fired by defendant Dlugash were a sufficiently direct cause of Geller’s death. 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 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. A further example is Francis Wharton’s classic hypothetical involving Lady Eldon and her French lace. Lady Eldon, traveling in Europe, purchased a quantity of French lace at a high price, intending to smuggle it into England without payment of the duty. When discovered in a customs search, the lace turned out to be of English origin, of little value and not subject to duty. The traditional view is that Lady Eldon is not liable for an attempt to smuggle.

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. Although one bullet struck the target’s customary pillow, attainment of the criminal objective was factually impossible. State v. Moretti, 52 N.J. 182, 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 circumstances unknown to him.” On the same view, it was held that men who had sexual intercourse with a woman, with the belief that she was alive and did not consent to the intercourse, could be charged for attempted rape when the woman had, in fact, died from an unrelated ailment prior to the acts of intercourse.

. . . In the belief that neither of the two branches of the traditional impossibility arguments detracts from the offender’s moral culpability . . . 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. 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, s 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.

. . . 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, s 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 . . . Accordingly, the order of the Appellate Division should be modified and the case remitted to the Appellate Division for its review of the facts . . . As so modified, the order of the Appellate Division should be affirmed.

Questions:-

1. Explain the defendant’s argument as to why he should not be criminally responsible for the victim’s death.
2. What is the mens rea requirement of attempted murder? Do you believe that the defendant had the requisite mens rea?
3. What type of impossibility is at issue in this case? Explain.