People v. Dlugash

Facts

According to Dlugash's later statement to police, on December 21, 1973, he, Joe Bush, and Michael Geller went drinking. Bush had been staying at Geller's Brooklyn apartment, and Geller several times demanded that Bush pay $100 toward the rent. Bush refused and threatened Geller with a bullet. Around midnight, they returned to the apartment and drank in the bedroom until between 3:00 and 3:30 in the morning. When Geller again demanded rent, Bush drew a .38 caliber pistol and fired at Geller three times. A few minutes later, Dlugash walked over to Geller, drew a .25 caliber pistol, and fired approximately five shots into Geller's head and face. Dlugash said that Geller looked already dead. Dlugash and Bush then walked to an acquaintance's apartment. Bush wrapped the guns and a knife in his shirt, left, and returned saying he had thrown them down a sewer. On December 22, 1973, Geller was found shot to death. The autopsy found four .25 caliber bullets in his skull and two heavy caliber chest wounds, one through the heart. Five days after the body was found, police went to Dlugash's home. He first claimed he had been away upstate. At the station he admitted shooting Geller but said Geller looked dead, and later guessed he had acted because he was afraid of Bush. Medical experts could not say with medical certainty whether Geller was alive when Dlugash fired.

Issues

1. Can a defendant be convicted of attempted murder under Penal Law § 110.10 for shooting a person who may already be dead, if the defendant believed the victim was alive at the time of the shooting?
2. Did the evidence permit the jury to find that the defendant believed the victim was alive when he fired, despite his statements that the victim appeared dead?

Holding

Although the State failed to prove beyond a reasonable doubt that Geller was alive when Dlugash shot him, Dlugash may be convicted of attempted murder because the jury could properly find he believed Geller was alive. Attempted murder is a lesser included offense of murder, so the Appellate Division erred in dismissing the indictment rather than modifying the judgment.