People v. Dlugash

41 N.Y.2d 725, 363 N.E.2d 1155 (1977)

Purchase the Printed Copy at bsmsphd.com

Nature of the Case

To access this section all you need to do is click here and register.

Facts

Michael Geller, 25 years old, was found shot to death in the bedroom of his Brooklyn apartment. The body was riddled by bullets. Geller had been shot in the face and head no less than seven times. 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 by two heavy caliber bullets. The cause of death was listed as '[multiple] 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. Detectives were lead to D. D 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. D was asked to go to the police station. D confessed his version of the events and said that he, Bush and Geller had been out drinking. Geller several times demanded that Bush pay $100 towards the rent on the apartment. 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 and continued to drink until sometime between 3:00 and 3:30 in the morning. Geller demand rent money again and 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, D walked over to the fallen Geller, drew his .25 caliber pistol, and fired approximately five shots in the victim's head and face. D claimed he was certain Geller was dead. D and Bush then 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 D that he intended to dispose of the weapons. D had thrown the weapons down a sewer two or three blocks away. D eventually claimed he shot Geller because he was afraid of Bush. D did not check for a pulse before he shot. D was indicted on a single count of murder in that, acting in concert with another person actually present, he intentionally caused the death of Michael Geller. The prosecution sought to establish that Geller was still alive at the time D shot at him. Both physicians testified that each of the two chest wounds 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. D produced an expert that stated Geller may have died very rapidly. The trial court declined to charge the jury that D 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 D had either intentionally murdered Geller or had attempted to murder Geller. The jury found D guilty of murder. D moved to set the verdict aside. The motion was denied. 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.' The court held that the judgment could not be modified to reflect a conviction for attempted murder because 'the uncontradicted evidence is that the defendant, at the time he fired the five shots into the body of the decedent, believed him to be dead, and * * * there is not a scintilla of evidence to contradict his assertion in that regard.' P appealed.