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
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 faceup 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
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 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. However, 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
The trial court declined to charge the jury, as requested by the prosecution, that defendant could be guilty of murder on the theory that he had aided and abetted the killing of Geller by Bush. Instead, the court submitted only two theories to the jury: that defendant had either intentionally murdered Geller or had attempted to murder Geller.
The jury found the defendant guilty of murder. The defendant then moved to set the verdict aside. He submitted an affidavit in which he contended that he "was absolutely, unequivocally and positively certain that Michael Geller was dead before [he] shot him.” Further, the defendant averred that he was in fear for his life when he shot Geller. "This fear stemmed from the fact that Joseph Bush, the admitted killer of Geller, was holding a gun on me and telling me, in no uncertain terms, that if I didn’t shoot the dead body I, too, would be killed.” This motion was denied.
On appeal, the Appellate Division reversed the judgment of conviction on the law and dismissed the indictment. The court ruled that "the People failed to prove beyond a reasonable doubt that Geller had been alive at the time he was shot by defendant; defendant’s conviction of murder thus cannot stand.” (
Preliminarily, we state our agreement with the Appellate Division that the evidence did not establish, beyond a reason
Before turning to an analysis of the attempt issue, there is a further point to be made. A person may be criminally liable for the criminal conduct of another person when, "acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct.” (Penal Law, § 20.00.) We believe that the evidence in the record would support a reasonable inference that Dlugash intentionally aided Bush in killing Geller and destroying telltale evidence. However, the trial court refused to permit the jury to consider this theory and the question of accessorial liability is, therefore, out of the case. The court dismissed the murder count insofar as it reflected accessorial liability, an action which may be taken only by a trial order of dismissal. (CPL 300.40; see CPL 290.10.) We have held that the People may not appeal trial orders of dismissal "where retrial of the defendant, or indeed any supplemental fact finding, might result from appellate reversal of the order sought to be appealed.” (People v Brown,
The procedural context of this matter, a nonappealable but erroneous dismissal of the issue of accessorial conduct, contrib
The concept that there could be criminal liability for an attempt, even if ultimately unsuccessful, to commit a crime is comparatively recent. The modern concept of attempt has been said to date from Rex v Scofield (Cald 397), decided in 1784. (Sayre, Criminal Attempts, 41 Harv L Rev 821, 834.) In that case, Lord Mansfield stated that "[t]he intent may make an act, innocent in itself, criminal; nor is the completion of an act, criminal in itself, necessary to constitute criminality. Is it no offence to set fire to a train of gunpowder with intent to burn a house, because by accident, or the interposition of another, the mischief is prevented?” (Cald, at p 400; see, also, Commonwealth v Kennedy, 170 Mass 18 [Holmes, J.].) The Revised Penal Law now provides that a person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime. (Penal Law, § 110.10.) The revised statute clarified confusion in the former provision which, on its face, seemed to state that an attempt was not punishable as an attempt unless it was unsuccessful. (See Hechtman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law, § 110.00, pp 309-310.)
The most intriguing attempt cases are those where the attempt to commit a crime was unsuccessful due to mistakes of fact or law on the part of the would-be criminal. A general rule developed in most American jurisdictions that legal im
On the other hand, factual impossibility was no defense. For example, a man was held liable for attempted murder when he shot into the room in which his target usually slept and, fortuitously, the target was sleeping elsewhere in the house that night. (State v Mitchell, 170 Mo 633.) Although one bullet struck the target’s customary pillow, attainment of the criminal objective was factually impossible. State v Moretti (52 NJ 182, cert den
The New York cases can be parsed out along similar lines. One of the leading cases on legal impossibility is People v Jaffe (
As can be seen from even this abbreviated discussion, the distinction between "factual” and "legal” impossibility was a nice one indeed and the courts tended to place a greater value on legal form than on any substantive danger the defendant’s actions posed for society. The approach of the draftsmen of the Model Penal Code was to eliminate the defense of impossibility in virtually all situations. Under the code provision, to constitute an attempt, it is still necessary that the result intended or desired by the actor constitute a crime. However, the code suggested a fundamental change to shift the locus of analysis to the actor’s mental frame of reference and away from undue dependence upon external considerations. The basic premise of the code provision is that what was in the actor’s own mind should be the standard for determining his dangerousness to society and, hence, his liability for attempted criminal conduct. (Wechsler, Jones and Korn, Treatment of Inchoate Crimes in Model Penal Code of American Law Institute: Attempt, Solicitation and Conspiracy, 61 Col L Rev 571, 578-585; see, also, American Law Institute, Model
In the belief that neither of the two branches of the traditional impossibility arguments detracts from the offender’s moral culpability (see Hechtman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law, § 110.10, p 320), the Legislature substantially carried the code’s treatment of impossibility into the 1967 revision of the Penal Law. (See, also, Note, Proposed Penal Law of New York, 64 Col L Rev 1469, 1520-1521.) Thus, a person is guilty of an attempt when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime. (Penal Law, § 110.00.) It is no defense that, under the attendant circumstances, the crime 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.” (Penal Law, § 110.10.) 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.
Turning to the facts of the case before us, we believe that there is sufficient evidence in the record from which the jury could conclude that the defendant believed Geller to be alive at the time defendant fired shots into Geller’s head. Defendant admitted firing five shots at a most vital part of the victim’s anatomy from virtually point blank range. Although defendant contended that the victim had already been grievously wounded by another, from the defendant’s admitted actions, the jury could conclude that the defendant’s purpose and intention was to administer the coup de grace. The jury never learned of defendant’s subsequent allegation that Bush had a gun on him and directed defendant to fire at Geller on the pain of his own life. Defendant did not testify and this statement of duress was made only in a postverdict affidavit, which obviously was never placed before the jury. In his admissions that were related to the jury, defendant never made such a claim. Nor did he offer any explanation for his conduct, except for an offhand aside made casually to Detective Carrasquillo. Any remaining doubt as to the question of duress is dispelled by defendant’s earlier statement that he and Joe Bush had peacefully spent a few days together on vacation in the country. Moreover, defendant admitted to freely assisting Bush in disposing of the weapons after the
Defendant argues that the jury was bound to accept, at face value, the indications in his admissions that he believed Geller dead. Certainly, it is true that the defendant was entitled to have the entirety of the admissions, both the inculpatory and the exculpatory portions, placed in evidence before the trier of facts. (E.g., People v La Belle,
The jury convicted the defendant of murder. Necessarily, they found that defendant intended to kill a live human being. Subsumed within this finding is the conclusion that defendant acted in the belief that Geller was alive. Thus, there is no need for additional fact findings by a jury. Although it was not established beyond a reasonable doubt that Geller was, in fact, alive, such is no defense to attempted murder since a murder would have been committed "had the attendant circumstances been as [defendant] believed them to be.” (Penal Law, § 110.10.) The jury necessarily found that defendant believed Geller to be alive when defendant shot at him.
The Appellate Division erred in not modifying the judgment to reflect a conviction for the lesser included offense of attempted murder. An attempt to commit a murder is a lesser included offense of murder (see CPL 1.20, subd 37) and the Appellate Division has the authority, where the trial evidence is not legally sufficient to establish the offense of which the defendant was convicted, to modify the judgment to one of conviction for a lesser included offense which is legally established by the evidence. (CPL 470.15, subd 2, par [a]; 470.20, subd 4.) Thus, the Appellate Division, by dismissing the indictment, failed to take the appropriate corrective action. Further, questions of law were erroneously determined in favor of
Accordingly, the order of the Appellate Division should be modified and the case remitted to the Appellate Division for its review of the facts pursuant to CPL 470.15 (see CPL 470.25, subd 2, par [d]) and for further proceedings with respect to the sentence (see CPL 470.20, subd 4) in the event that the facts are found favorably to the People. As so modified, the order of the Appellate Division should be affirmed.
Chief Judge Breitel and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.
Order modified and the case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.
Notes
. It should be noted that Joe Bush pleaded guilty to a charge of manslaughter in the first degree. At the time he entered his plea, Bush detailed his version of the homicide. According to Bush, defendant Dlugash was a dealer in narcotic drugs and Dlugash claimed that Geller owed him a large sum of money from drug purchases. Bush was in the kitchen alone when Geller entered and threatened him with a shotgun. Bush pulled out his .38 caliber pistol and fired five times at Geller. Geller slumped to the floor. Dlugash then entered, withdrew his .25 caliber pistol and fired five shots into the deceased’s face. Bush, however, never testified at Dlugash’s trial.
. Notwithstanding the Appellate Division’s implication to the contrary, the record indicates that defendant told the Assistant District Attorney that Bush, after shooting Geller, kept his gun aimed at Geller, and not at Dlugash. As defendant stated, "this was after Joe had his .38 on him, I started shooting on him.”