People v. Dlugash

• Decision Date: 12 May 1977
• Citation: 363 N.E.2d 1155,395 N.Y.S.2d 419,41 N.Y.2d 725
• Court: New York Court of Appeals Court of Appeals
• Parties: , 363 N.E.2d 1155 The PEOPLE of the State of New York, Appellant, v. Melvin DLUGASH, Respondent.

Page 419

395 N.Y.S.2d 419

41 N.Y.2d 725, 363 N.E.2d 1155

The PEOPLE of the State of New York, Appellant, v. Melvin DLUGASH, Respondent.

Court of Appeals of New York.

May 12, 1977.

Eugene Gold, Dist. Atty., Brooklyn (Steven W. Fisher and Helman R. Brook, Brooklyn, of counsel), for appellant.

Alan M. Dershowitz, Cambridge, Mass., admitted on motion pro hac vice, and Jeffrey R. Cohen, New York City, for respondent.

JASEN, Judge.

The criminal law is of ancient origin, but criminal liability for attempt to commit a crime is comparatively recent. At the root of the concept of attempt liability are the very aims and purposes of penal law. The ultimate issue is whether an individual's intentions and actions, though failing to achieve a manifest and malevolent criminal purpose, constitute a danger to organized society of sufficient magnitude to warrant the imposition of criminal sanctions. Difficulties in theoretical analysis and concomitant debate over very pragmatic questions of blameworthiness appear dramatically in reference to situations where the criminal attempt failed to achieve its purpose solely because the factual or legal context in which the individual acted was not as the actor supposed them to be. Phrased somewhat differently, the concern centers on whether an individual should be liable for an attempt to commit a crime when, unknown to him, it was impossible to successfully complete the crime attempted. For years, serious studies have been made on the subject in an effort to resolve the continuing controversy when, if at all, the impossibility of successfully completing the criminal act should preclude liability for even making the futile attempt. The 1967 revision of the Penal Law approached the impossibility defense to the inchoate crime of attempt in a novel fashion. The statute 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, under the attendant circumstances, 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." (Penal Law, § 110.10.) This appeal presents to us, for the first time, a case involving the application of the modern statute. We hold that, under the proof presented by the People at trial, defendant Melvin Dlugash may be held for attempted murder, though the target of the attempt may have already been slain, by the hand of another, when Dlugash made his felonious attempt.

On December 22, 1973, Michael Geller, 25 years old, was found shot to death in the bedroom of his Brooklyn apartment. The body, which had literally been riddled by bullets, was found lying face up on the floor. An autopsy revealed that the victim had been shot in the face and head no less than seven times. Powder burns on the face indicated that the shots had been fired from within one foot of the victim. Four small caliber bullets were recovered from the victim's skull. The victim had also been critically wounded in the chest. One heavy caliber bullet passed through the left lung, penetrated the heart chamber, pierced the left ventricle of the heart upon entrance and again upon exit, and lodged in the victim's torso. A second bullet entered the left lung and passed through to the chest, but without reaching the heart area. Although the second bullet was damaged beyond identification, the bullet tracks indicated that these wounds were also inflicted by a bullet of heavy caliber. A tenth bullet, of unknown caliber, passed through the thumb of the victim's left hand. The autopsy report listed the cause of death as "(m)ultiple bullet wounds of head and chest with brain injury and massive bilateral hemothorax with penetration of (the) heart." Subsequent ballistics examination established that the four bullets recovered from the victim's head were .25 caliber bullets and that the heart-piercing bullet was of .38 caliber.

Detective Joseph Carrasquillo of the New York City Police Department was assigned to investigate the homicide. On December 27, 1973, five days after the discovery of the body, Detective Carrasquillo and a fellow officer went to the defendant's residence in an effort to locate him. The officers arrived at approximately 6:00 p. m. The defendant answered the door and, when informed that the officers were investigating the death of Michael Geller, a friend of his, defendant invited the officers into the house. Detective Carrasquillo informed defendant that the officers desired any information defendant might have regarding the death of Geller and, since defendant was regarded as a suspect, administered the standard preinterrogation warnings. The defendant told the officers that he and another friend, Joe Bush, had just returned from a four- or five-day trip "upstate someplace" and learned of Geller's death only upon his return. Since Bush was also a suspect in the case and defendant admitted knowing Bush, defendant agreed to accompany the officers to the station house for the purposes of identifying photographs of Bush and of lending assistance to the investigation. Upon arrival at the police station, Detective Carrasquillo and the defendant went directly into an interview room. Carrasquillo advised the defendant that he had witnesses and information to the effect that as late as 7:00 p. m. on the day before the body was found, defendant had been observed carrying a .25 caliber pistol. Once again, Carrasquillo administered the standard preinterrogation statement of rights. The defendant then proceeded to relate his version of the events which culminated in the death of Geller. Defendant stated that, on the night of December 21, 1973, he, Bush and Geller had been out drinking. Bush had been staying at Geller's apartment and, during the course of the evening, Geller several times demanded that Bush pay $100 towards the rent on the apartment. According to defendant, Bush rejected these demands, telling Geller that "you better shut up or you're going to get a bullet". All three returned to Geller's apartment at approximately midnight, took seats in the bedroom, and continued to drink until sometime between 3:00 and 3:30 in the morning. When Geller again pressed his demand for rent money, Bush drew his .38 caliber pistol, aimed it at Geller and fired three times. Geller fell to the floor. After the passage of a few minutes, perhaps two, perhaps as much as five, defendant walked over to the fallen Geller, drew his .25 caliber pistol, and fired approximately five shots in the victim's head and face. Defendant contended that, by the time he fired the shots, "it looked like Mike Geller was already dead". After the shots were fired, defendant and Bush walked to the apartment of a female acquaintance. Bush removed his shirt, wrapped the two guns and a knife in it, and left the apartment, telling Dlugash that he intended to dispose of the weapons. Bush returned 10 or 15 minutes later and stated that he had thrown the weapons down a sewer two or three blocks away.

After Carrasquillo had taken the bulk of the statement, he asked the defendant why he would do such a thing. According to Carrasquillo, the defendant said, "gee, I really don't know". Carrasquillo repeated the question 10 minutes later, but received the same response. After a while, Carrasquillo asked the question for a third time and defendant replied, "well, gee, I guess it must have been because I was afraid of Joe Bush."

At approximately 9:00 p. m., the defendant repeated the substance of his statement to an Assistant District Attorney. Defendant added that at the time he shot at Geller, Geller was not moving and his eyes were closed. While he did not check for a pulse, defendant stated that Geller had not been doing anything to him at the time he shot because "Mike was dead".

Defendant was indicted by the Grand Jury of Kings County on a single count of murder in that, acting in concert with another person actually present, he intentionally caused the death of Michael Geller. At the trial, there were four principal prosecution witnesses: Detective Carrasquillo, the Assistant District Attorney who took the second admission, and two physicians from the office of the New York City Chief Medical Examiner. For proof of defendant's culpability, the prosecution relied upon defendant's own admissions as related by the detective and the prosecutor. From the physicians, the prosecution sought to establish that Geller was still alive at the time defendant shot at him. Both physicians testified that each of the two chest wounds, for which defendant alleged Bush to be responsible, would have caused death without prompt medical attention. Moreover, the victim would have remained alive until such time as his chest cavity became fully filled with blood. Depending on the circumstances, it might take 5 to 10 minutes for the chest cavity to fill. Neither prosecution witness could state, with medical certainty, that the victim was still alive when, perhaps five minutes after the initial chest wounds were inflicted, the defendant fired at the victim's head.

The defense produced but a single witness, the former Chief Medical Examiner of New York City. This expert stated that, in his view, Geller might have died of the chest wounds "very rapidly" since, in addition to the bleeding, a large bullet going through a lung and the heart would have other adverse medical effects. "Those wounds can be almost immediately or rapidly fatal or they may be delayed in there, in the time it would take for death to occur. But I would say that wounds like that which are described here as having gone through the lungs and the heart would be fatal wounds and in most cases they're rapidly fatal."

The trial court declined to charge the jury, as requested by the prosecution, that defendant could be guilty of murder on...