## Facts

- Melvin Dlugash, Joe Bush, and Michael Geller were drinking in Geller’s Brooklyn apartment.
- After a rent dispute, Bush shot Geller three times in the chest.
- Minutes later, Dlugash approached Geller as he lay on the floor and fired about five shots into Geller’s head and face from close range.
- Forensic evidence showed at least seven head/face shots with powder burns indicating firing from within one foot; Bush’s chest shot penetrated the heart.
- Medical experts could not determine whether Geller was alive when Dlugash fired; a defense expert suggested Bush’s wounds could have caused very rapid death.
- The jury was instructed on intentional murder (if Geller was alive when Dlugash shot) and, alternatively, attempted murder.
- The jury convicted Dlugash of murder.

## Issues

1. Whether the evidence was sufficient to sustain a murder conviction where it was not proven beyond a reasonable doubt that the victim was alive when the defendant fired.
2. Whether the conviction could be modified to attempted murder as a lesser-included offense.
3. Whether factual or legal impossibility (because the victim may already have been dead) is a defense to attempted murder under New York Penal Law § 110.10.

## Decision

- The court held the murder conviction could not stand because the prosecution did not prove beyond a reasonable doubt that Geller was alive when Dlugash fired.
- The court held the conviction could be reduced to attempted murder as a lesser-included offense.
- The court ruled that, under Penal Law § 110.10, impossibility is not a defense to attempt if the crime could have been committed had the circumstances been as the defendant believed them to be.
- The court concluded Dlugash could be liable for attempted murder even if Geller had already died from Bush’s shots, so long as Dlugash believed Geller was alive and acted with intent to kill.

## Legal Principles

- A homicide conviction requires proof beyond a reasonable doubt that the victim was alive at the time of the defendant’s allegedly lethal act.
- Under New York Penal Law § 110.10, it is no defense to an attempt charge that commission was factually or legally impossible, if the offense could have been committed under the circumstances as the defendant believed them to be.
- Attempt liability turns on the defendant’s intent and conduct toward committing the crime, not on unknown external circumstances that prevent completion.
- A jury’s verdict on the greater offense may supply findings (such as intent to kill a living person) that support entry of judgment on a lesser-included attempt when the completed-result element is not proven.

## Conclusion

The court set aside the murder conviction due to failure to prove the victim was alive when the defendant shot, but sustained liability for attempted murder, holding that impossibility is not a defense where the defendant, believing the victim to be alive, acted with intent to kill under Penal Law § 110.10.


People v. Dlugash, 41 N.Y.2d 725 (N.Y. 1977)