41 N.Y.2d 725, 363 N.E.2d 1155 (1977)
On the night of December 21, 1973, Melvin Dlugash, Joe Bush, and Michael Geller spent time drinking together in Geller's Brooklyn apartment.1 Geller demanded rent money from Bush, after which Bush drew a .38 caliber pistol and fired three shots at Geller.2 Dlugash then approached the fallen Geller two to five minutes later and fired approximately five shots from a .25 caliber pistol into Geller's head and face.3
Geller's body was discovered the next day on December 22, 1973, lying face up on the bedroom floor with multiple bullet wounds.4 An autopsy revealed seven .25 caliber shots to the head and face along with two .38 caliber chest wounds that passed through the lungs and heart.5 Ballistics testing later confirmed the different calibers of the recovered bullets.6
Five days after the body was found, Detective Joseph Carrasquillo brought Dlugash to the station for questioning.7 Dlugash stated that Geller appeared already dead when he fired the head shots and that he had acted out of fear of Bush.8 Dlugash repeated the account to an Assistant District Attorney, adding that Geller was not moving and had his eyes closed at the time.9
At trial, two prosecution physicians testified that the chest wounds could have allowed survival for five to ten minutes while the chest cavity filled with blood.10 The defense medical expert testified that such wounds could have been rapidly fatal.11 The jury convicted Dlugash of murder, but the Appellate Division reversed the judgment on the law and dismissed the indictment.12
Whether the prosecution proved beyond a reasonable doubt that Michael Geller was alive when Melvin Dlugash fired shots into his head?13
To sustain a homicide conviction it must be established beyond a reasonable doubt that the defendant caused the death of another person. (Penal Law, § 125.00; CPL 70.20.) The People were required to prove that the shots fired by Dlugash were a sufficiently direct cause of Geller's death.14
No. The prosecution relied principally on Dlugash's admissions together with medical testimony from two physicians from the Chief Medical Examiner's office.15 Those physicians testified that each of the two chest wounds could cause death without prompt medical attention.16 The victim would remain alive until the chest cavity became filled with blood.17 Neither prosecution witness could state whether the victim was still alive when Dlugash fired at the victim's head approximately two to five minutes later.18
The defense medical expert testified that the chest wounds could have been rapidly fatal.19 The autopsy confirmed two .38 caliber chest wounds from Bush's pistol that passed through the lungs and heart.20 Dlugash's five .25 caliber head shots occurred after the interval during which survival could not be medically confirmed.21
The prosecution failed to prove beyond a reasonable doubt that Geller was alive when Dlugash fired the head shots.22
Whether Melvin Dlugash could be convicted of attempted murder when the victim may already have been dead at the time of the shooting?23
The Revised Penal Law defines attempt as when, with intent to commit a crime, one engages in conduct tending to effect its commission.24 Penal Law § 110.10 provides that it is no defense to attempt that the crime was factually or legally impossible of commission. This holds if the crime could have been committed had the attendant circumstances been as the actor believed them to be. Thus, if defendant believed the victim to be alive at the time of the shooting, the fact that the victim may in truth have been dead is not a defense to attempted murder.25
Yes. Although the evidence did not establish beyond a reasonable doubt that Geller was alive, there is sufficient evidence from which the jury could conclude that Dlugash believed Geller to be alive when he fired into Geller's head.26 Dlugash admitted firing five shots at a most vital part of the victim's anatomy at virtually point-blank range, from which the jury could infer an intent to administer the coup de grâce.27 Dlugash's conduct after the shooting, including assisting in disposing of the weapons, making no attempt to flee, and initially relating a false story to the police, indicated a consciousness of guilt inconsistent with a sincere belief that Geller was already dead.28
The jury was entitled to disbelieve the exculpatory portions of Dlugash's admissions.29 They were disputed by other evidence and were inherently improbable in light of the precise head shots and the medical testimony that the victim may have been alive.30
Dlugash may be convicted of attempted murder because Penal Law § 110.10 makes the possible death of the victim no defense when Dlugash believed the circumstances to be such that murder could be accomplished.31
Whether the Appellate Division should have modified the judgment to attempted murder rather than dismissing the indictment?32
Attempted murder is a lesser included offense of murder.33 Where trial evidence is legally insufficient to establish the greater offense, the Appellate Division may modify the judgment to convict of the lesser offense established by the evidence. (CPL 470.15[2][a]; CPL 470.20[4].)34 The jury's verdict of murder necessarily found that defendant intended to kill a live human being.35 Subsumed within that finding is that he believed Geller was alive.36
Yes. The jury's verdict of murder necessarily found that Dlugash intended to kill a live human being and therefore believed Geller was alive when he shot him.37 It was not proved beyond a reasonable doubt that Geller actually was alive.38 Penal Law § 110.10 makes that no defense to attempted murder where Dlugash believed the circumstances to be such that murder could be accomplished.39
By dismissing the indictment the Appellate Division failed to take appropriate corrective action when the evidence supported conviction of the lesser included offense of attempted murder.40
The Appellate Division erred in dismissing the indictment without modifying the judgment to reflect a conviction for the lesser included offense of attempted murder.41