People v. Dlugash

New York Court of Appeals · 1977 · Criminal Law

41 N.Y. 725 (1977)

Updated August 1, 2026

Criminal Lawattemptimpossibilityattempted murderfactual impossibilitylegal impossibilityPenal Law 110.10belief of attendant circumstances

Facts

Defendant admitted that after Bush shot Geller in the chest with a .38 caliber pistol, defendant walked over a few minutes later and fired about five .25 caliber shots into Geller's head and face from close range. Medical witnesses could not state with medical certainty whether Geller was still alive when defendant fired. Defendant said it looked like Geller was already dead and later said Geller was not moving and his eyes were closed, but he also helped dispose of the weapons, left with Bush, and initially gave police a false exculpatory story. The trial court refused to let the jury consider accessorial liability for Bush's killing.

Issue

Whether defendant could be held liable for attempted murder when the People failed to prove beyond a reasonable doubt that the victim was alive when defendant fired, and the victim may already have been dead. Also, whether the evidence permitted reducing the murder conviction to attempted murder rather than dismissing the indictment.

Rule

Under New York Penal Law sections 110.00 and 110.10, a person is guilty of attempt when, with intent to commit a crime, he engages in conduct tending to effect its commission, and it is no defense that completion was factually or legally impossible if the crime could have been committed had the attendant circumstances been as the defendant believed them to be. The trier of fact may reject exculpatory portions of a defendant's admissions when contradicted by other evidence or so improbable as to be unworthy of belief.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Cleveland, Omar Benton broke into a garage, found Victor Lane lying motionless on the floor, and deliberately fired three shots into Victor's chest from a few feet away. Medical experts later concluded Victor had actually died seconds earlier from a falling steel beam, but Omar said he shot because he wanted to make sure Victor died.

If Omar is charged with attempted murder and the prosecution cannot prove Victor was alive when Omar fired, what is the strongest argument for upholding the attempt charge?

Explanation. Attempt requires intent to commit the crime plus conduct tending to effect its commission. Under the governing rule, impossibility is no defense if the crime could have been committed had the attendant circumstances been as the defendant believed them to be. Thus, if Omar believed Victor was alive and shot to kill him, he may be guilty of attempted murder even if Victor was already dead.