PEOPLE v. DLUGASH
41 N.Y.2d 725, 363 N.E.2d 1155
(N.Y. 1977)
Case Brief
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PEOPLE v. DLUGASH
• PURPOSE: The case illustrates further
problems with attempted crimes and
intent.
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PEOPLE v. DLUGASH
• CAUSE OF ACTION: Murder and
attempted murder.
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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)
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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.
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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.
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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.
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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)
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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.
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PEOPLE v. DLUGASH
• AFTERTHOUGHT: The reasoning of the
court is less than crystal clear and there is
little consensus nationwide on this subject.
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