Court of Appeals of New York
363 N.E.2d 1155 (1977)
Melvin Dlugash (defendant), Michael Geller, and Joe Bush were at Geller’s apartment drinking. Bush had been staying at Geller’s apartment and, during the course of the night, Geller demanded that Bush pay $100 towards the rent. Bush refused. Around 3:30 a.m., Geller again demanded rent money from Bush. Bush withdrew his gun and fired three shots at Geller’s chest. Geller fell to the floor. Approximately 3-5 minutes later, Dlugash stood over Geller, aimed his gun, and fired five shots into Geller’s head and face. Dlugash later told a police officer that he believed Geller was already dead. Dlugash was charged with murder. At trial, the prosecution presented two physicians as expert witnesses. Neither was able to conclusively state that Geller was alive at the time Dlugash fired the shots. The defense produced one witness, a former medical examiner who testified that Geller might have died “very rapidly” from the wounds inflicted by Bush. The trial court submitted two theories to the jury in which to convict Dlugash: (1) that he had either intentionally murdered Geller, or (2) had attempted to murder Geller. The jury found Dlugash guilty of murder and he appealed. The appellate division reversed, concluding that the prosecution failed to prove beyond a reasonable doubt that Geller had been alive at the time he was shot by Dlugash and that the conviction could not be modified to attempted murder because at the time he fired the shots, Dlugash believed Geller to already have been dead. The New York Court of Appeals reviewed the case.
Rule of Law
Holding and Reasoning (Jasen, J.)
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