New York Law Review

Tag: Impossibility Defense

  • People v. Davis, 72 N.Y.2d 32 (1988): Reckless Endangerment Requires Actual Risk, Not Just Intent

    People v. Davis, 72 N.Y.2d 32 (1988)

    Reckless endangerment requires proof that the defendant’s conduct created a grave risk of death to another; factual impossibility that eliminates the risk precludes conviction, even if the defendant intended to create such risk.

    Summary

    Davis was convicted of first-degree reckless endangerment for pointing a gun at police officers and pulling the trigger, even though the gun was jammed and did not fire. The New York Court of Appeals reversed the reckless endangerment conviction, holding that because the gun was inoperable at the time of the incident, the defendant’s actions did not create a “grave risk of death” as required by the statute. The Court distinguished reckless endangerment from attempted intentional acts, where impossibility is not a defense because the offense focuses on the defendant’s intent, not the resulting risk. The court affirmed the conviction for criminal possession of a weapon, finding the indictment was not duplicitous as clarified by the bill of particulars.

    Facts

    Ian Shillingford was confronted by Davis and another man who demanded money from him. A scuffle ensued, and Davis produced a pistol, which he dropped. The gun fired upon hitting the ground. Shillingford escaped to his apartment. Police officers responding to the scene were alerted by a bystander who identified Davis. As the officers approached in their patrol car, Davis pointed the gun at the windshield, assumed a “combat stance,” and pulled the trigger, but the gun did not fire due to a spent shell in the chamber. Davis was apprehended after a foot chase during which he again pointed the gun at the officers; he was shot and wounded by an officer during the chase.

    Procedural History

    Davis was charged with attempted robbery, reckless endangerment, and criminal possession of a weapon. At trial, he moved to dismiss the weapons possession charge as duplicitous. The trial court denied the motion and convicted Davis of reckless endangerment and weapons possession. The Appellate Division modified the judgment, reversing the reckless endangerment conviction but affirming the weapons possession conviction. The People appealed the reversal of the reckless endangerment conviction, and Davis cross-appealed the weapons possession conviction.

    Issue(s)

    1. Whether pointing a gun at another and pulling the trigger constitutes reckless endangerment when a jammed cartridge prevents the gun from firing?

    2. Whether the count in the indictment charging Davis with second-degree criminal possession of a weapon was duplicitous.

    Holding

    1. No, because the conduct did not “create a grave risk of death to another” as required by the reckless endangerment statute.

    2. No, because the indictment, as supplemented by the bill of particulars, charged Davis with only one offense.

    Court’s Reasoning

    The Court reasoned that reckless endangerment requires an objective assessment of the risk created by the defendant’s conduct. While the crime does not require a specific intent to cause harm, it does require the creation of a grave risk of death. In this case, because the gun was jammed and incapable of firing, Davis’s actions could not have created the necessary risk. The Court distinguished this situation from attempted intentional acts, where the focus is on the defendant’s intent, and impossibility is not a defense. The court emphasized that “reckless endangerment is defined in terms of the risk produced by defendant’s conduct, not intent, and factual impossibility eliminates the risk essential to commission of the crime.”

    Regarding the duplicity argument, the Court found that while the indictment might have initially been unclear as to whether Davis was being charged with possession of the weapon during the altercation with Shillingford or during the confrontation with the police, the bill of particulars clarified that the charge related only to the latter incident. Therefore, the indictment was not duplicitous, and the motion to dismiss was properly denied. The Court noted that CPL 200.50 requires an indictment to provide fair notice of the charges against the accused and to establish the defense of double jeopardy.

  • People v. Dlugash, 41 N.Y.2d 725 (1977): Criminal Liability for Attempt When Completion is Impossible

    41 N.Y.2d 725 (1977)

    A defendant can be convicted of attempted murder even if the victim was already dead when the defendant acted, provided the defendant believed the victim was alive at the time of the attempted act.

    Summary

    Melvin Dlugash was convicted of murder. The evidence showed that Dlugash shot Michael Geller multiple times in the head. Dlugash admitted to the shooting, but claimed Geller was already dead from prior gunshot wounds inflicted by another person, Joe Bush. The trial court instructed the jury on intentional murder and attempted murder. The Appellate Division reversed, finding insufficient evidence that Geller was alive when Dlugash shot him. The New York Court of Appeals modified the order, holding that even if Geller was dead, Dlugash could be guilty of attempted murder if he believed Geller was alive. The court reasoned that the Penal Law eliminates impossibility as a defense to attempt if the crime could have been committed had the circumstances been as the defendant believed them to be.

    Facts

    Michael Geller was found dead in his apartment, riddled with bullets. The autopsy revealed multiple gunshot wounds to the head and chest from different caliber weapons. Dlugash confessed to police that he, Geller, and Bush were together the night of the murder. Bush shot Geller after an argument. Dlugash then shot Geller in the head and face with a .25 caliber pistol. Dlugash stated that Geller looked dead at the time of his shots. Bush and Dlugash disposed of the weapons. Ballistics evidence confirmed that different guns were used.

    Procedural History

    Dlugash was indicted for murder by the Grand Jury of Kings County. At trial, the prosecution presented Dlugash’s confession and medical testimony that could not definitively determine if Geller was alive when Dlugash shot him. The defense presented expert testimony suggesting Geller could have died quickly from the initial chest wounds. The trial court declined to charge the jury on aiding and abetting but submitted intentional murder and attempted murder. The jury convicted Dlugash of murder. The Appellate Division reversed the conviction and dismissed the indictment, finding the prosecution failed to prove Geller was alive when Dlugash shot him, and that the uncontradicted evidence showed Dlugash believed Geller was dead. The People appealed to the New York Court of Appeals.

    Issue(s)

    Whether a defendant can be convicted of attempted murder when the target of the attempt may have already been dead, by the hand of another, when the defendant made his felonious attempt, but the defendant believed the target to be alive.

    Holding

    Yes, because under Penal Law § 110.10, it is no defense to a charge of attempt that the crime was factually impossible to commit if the crime could have been committed had the circumstances been as the defendant believed them to be.

    Court’s Reasoning

    The court acknowledged that the prosecution failed to prove beyond a reasonable doubt that Geller was alive when Dlugash shot him. Therefore, a murder conviction could not stand. However, the court analyzed whether Dlugash could be convicted of attempted murder. The court reviewed the historical distinction between factual and legal impossibility as defenses to attempt, noting that New York Penal Law § 110.10 eliminates the defense of impossibility in most situations, reflecting the Model Penal Code’s approach. The statute focuses on the actor’s mental state. The court found sufficient evidence for a jury to conclude Dlugash believed Geller was alive when he shot him. This evidence included the fact that Dlugash fired five shots at Geller’s head from close range, and his actions after the shooting indicated a consciousness of guilt. Dlugash’s admissions, particularly his cooperative actions in disposing of the weapons and providing a false alibi, contradicted his later claim of duress or belief that Geller was dead. While Dlugash argued the jury was bound to accept the exculpatory portions of his admission, the court stated the jury could reject those portions if they were improbable or contradicted by other evidence. The court found the Appellate Division erred in dismissing the indictment instead of modifying the judgment to reflect a conviction for attempted murder, a lesser-included offense. The case was remitted to the Appellate Division for review of the facts and further proceedings regarding the sentence.