People v. Dlugash, 363 N.E.2d 1155 (N.Y. App. 1977)

  • Facts: ∆ Dlugash, Bush, and Geller were drinking. Geller demanded Bush pay rent. Bush threatened, then shot Geller three times. Five minutes later, ∆ shot Geller five times in the face—claiming it was a "mercy" act because he believed Geller was already dead. The State could not prove whether Geller was alive when ∆ shot him.
  • Issue: Whether ∆ can be convicted of attempted murder where the victim may already have been dead at the time ∆ fired.
  • Rule: Under MPC § 5.01(4), ∆ is guilty of attempt if he "purposefully engages in conduct that would constitute the crime if the attendant circumstances were as he believed them to be." Factual impossibility is no defense; legal impossibility may still be.
  • Analysis: If ∆ believed Geller to be alive, factual impossibility (death already having occurred) does not exonerate. The state must prove ∆'s belief beyond a reasonable doubt. Remand required for fact-finding on what ∆ believed.
  • Judgment: Remanded to the appellate division for review of the facts.

Reading: pp. 284–91. Attempt liability now turns on ∆'s beliefs, not the facts as they were. See Impossibility.