1. Copyright 2007 Thomson Delmar Learning. All Rights Reserved. PEOPLE v. DLUGASH 41 N.Y.2d 725, 363 N.E.2d 1155 (N.Y. 1977) Case Brief

2. Copyright 2007 Thomson Delmar Learning. All Rights Reserved. PEOPLE v. DLUGASH PURPOSE: The case illustrates further problems with attempted crimes and intent.

3. Copyright 2007 Thomson Delmar Learning. All Rights Reserved. PEOPLE v. DLUGASH CAUSE OF ACTION: Murder and attempted murder.

4. Copyright 2007 Thomson Delmar Learning. All Rights Reserved. PEOPLE v. DLUGASH FACTS: Dlugash, Bush, and Geller had been drinking until three o’clock in the morning. Several times Geller, in whose apartment the incident occurred, had demanded that Bush pay $100 toward the rent since Bush had moved in with Geller. Bush threatened to shoot Geller if he would not shut up and on the final demand, Bush fired three shots at Geller, one of which went through Geller’s lung and into his heart. A few minutes later, Dlugash fired several shots into Geller’s head. When the investigating detective asked Dlugash why he did this, he said at first he did not really know, but when asked the third time, Dlugash said, “Well, gee, I guess it must have been because I was afraid of Joe Bush.” (continued)

5. Copyright 2007 Thomson Delmar Learning. All Rights Reserved. PEOPLE v. DLUGASH FACTS (continued): At trial, medical experts testified that the chest wounds would have killed Geller without prompt medical attention but it was not clear whether Geller was still alive when Dlugash fired into his head. Dlugash did not testify at trial, but after the jury found him guilty of murder, he moved to set the verdict aside on the grounds that he was certain Geller was dead before Dlugash shot him and his shots were made because Bush held a gun on him and Bush said he would kill Dlugash if Dlugash did not shoot the body. On appeal to the Appellate Division, it was held that the state failed to prove beyond a reasonable doubt that Geller had been alive at the time Dlugash shot him; and also held him not guilty of attempted murder.

6. Copyright 2007 Thomson Delmar Learning. All Rights Reserved. PEOPLE v. DLUGASH ISSUE: Whether an individual is liable for an attempt to commit a crime when, unknown to him, it was impossible to successfully complete the crime attempted.

7. Copyright 2007 Thomson Delmar Learning. All Rights Reserved. PEOPLE v. DLUGASH HOLDING: Yes. While the evidence did not support a conviction of murder, it did support a conviction of attempted murder. The decision of the Appellate Division was accordingly modified.

8. Copyright 2007 Thomson Delmar Learning. All Rights Reserved. PEOPLE v. DLUGASH REASONING: The 1967 revision of the Penal Law 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 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.” (continued)

9. Copyright 2007 Thomson Delmar Learning. All Rights Reserved. PEOPLE v. DLUGASH REASONING (continued): Although approving the Guffey principle that legal impossibility is a defense, the Court holds that factual impossibility is not. 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. Since the jury convicted the defendant of murder, they necessarily found that defendant intended to kill a live human being. If defendant believed that Geller was alive, he was guilty of attempted murder.

10. Copyright 2007 Thomson Delmar Learning. All Rights Reserved. PEOPLE v. DLUGASH AFTERTHOUGHT: The reasoning of the court is less than crystal clear and there is little consensus nationwide on this subject.