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September 10, 1979


The opinion of the court was delivered by: NICKERSON


Petitioner Melvin Dlugash applies for a writ of habeas corpus asserting that his conviction in the New York State Courts for attempted murder violated his right to due process under the Fourteenth Amendment.

 Dlugash was indicted on January 9, 1974 in Kings County for the murder of Michael Geller. Although charged with acting in concert with one Joseph Bush, Dlugash was tried alone.

 At the trial the only evidence describing Geller's death was Dlugash's statement to the police. According to that statement he and Bush were at Geller's home on the night of December 21, 1973, all three having been out drinking. During the course of the evening Bush had carried on a heated argument with Geller concerning money and had made frequent threats to shoot him. Finally in the early morning of December 22, 1973, Bush pulled out a pistol and fired three shots into Geller's chest.

 Geller fell to the floor mortally wounded. Within a few minutes, perhaps as many as five, Dlugash went over and fired his own pistol five times into Geller's face. Dlugash told the police that he fired his gun believing Geller already dead and fearing for his own life at Bush's hands.

 Medical experts for both the prosecution and the defense testified that the shots by either Bush or Dlugash would have been fatal. But none of the experts could say whether Geller was still alive when Dlugash fired.

 The trial judge declined to charge the jury that Dlugash could be guilty as an aider and abettor of Bush and presented the case to the jury on two theories, intentional murder and attempted murder.

 Before defining the crime of murder the judge told the jury that "the big contention evidently is whether the deceased was alive at the time that Mr. Dlugash shot him." Record, vol. 2, at 566. He then instructed that "a person is guilty of murder when with intent to cause the death of another person he causes such death." Id. "Intent" he defined as "a doing of an act deliberately, willfully, knowingly, feloniously as distinguished from doing an act by mistake or by accident or by negligence or by carelessness." Id. at 567. After stating that criminal intent could be "inferred from all the facts and circumstances in the case connected with the individual upon whom you are inquiring," the judge charged that "under our law every person is presumed to intend the natural and probable consequences of his acts but this presumption, like all presumptions, may be accepted or rejected by you." Id.

 After completing the instructions as to murder, the judge turned to the charge of attempted murder. He told the jurors they should not consider this crime if they found petitioner guilty of murder. The critical portion of the instructions on attempted murder reads as follows: "Now, ladies and gentlemen, you will please note that even though it was factually or legally impossible to kill the deceased because of his prior death, you would be warranted in convicting this defendant of an attempt to murder if you found beyond a reasonable doubt that at the time the defendant discharged the bullet into the body of the deceased he, the defendant, actually intended to kill the deceased, believing in his own mind that the deceased was living, even though he was dead." Id. at 571-72.

 The jury returned a verdict of guilty of murder and Dlugash was sentenced to fifteen years to life. On appeal the Appellate Division, Second Department, reversed, holding that in the light of the experts' testimony the prosecution had not proven beyond a reasonable doubt that Geller had been alive when Dlugash shot him. The District Attorney, apparently conceding the lack of evidence to convict of murder, asked the court to modify the judgment and enter a judgment of conviction of attempted murder. The Appellate Division declined to do so, finding that there was no proof that Dlugash believed Geller alive. The court accordingly dismissed the indictment. 51 A.D.2d 974, 380 N.Y.S.2d 315 (2d Dept. 1976).

 On the District Attorney's appeal the New York Court of Appeals affirmed the dismissal of the murder charge. But the court ruled that there was sufficient evidence for the jury to find that Dlugash believed Geller alive and held that the Appellate Division should have modified the judgment to reflect a conviction for attempted murder. The court's opinion reasoned that by rendering a guilty verdict as to murder the jury necessarily found intent to kill a live person and that subsumed within this finding was a finding that Dlugash believed Geller alive. Concluding that there was no need for further findings of fact by a jury, the court reversed and remanded. 41 N.Y.2d 725, 395 N.Y.S.2d 419, 363 N.E.2d 1155 (1977).

 The Appellate Division followed the direction of the Court of Appeals and remanded to the trial court for resentence on attempted murder. 59 A.D.2d 745, 398 N.Y.S.2d 560 (2d Dept. 1977). On August 2, 1978, Dlugash was sentenced to up to three years. He appealed again to the Appellate Division, which affirmed. App.Div., 416 N.Y.S.2d 312 (2d Dept. 1979). Leave to appeal to the Court of Appeals was denied. The petition in this court followed. The District Attorney acknowledges that Dlugash has exhausted all state remedies.

 Dlugash contends that the modification of the judgment to convict him of attempted murder denied him due process. He argues, among other things, that, while a belief that the victim is alive is an element of both crimes, murder and attempted murder, the jury instructions permitted, indeed invited, the jurors while considering the crime of murder to "presume" the necessary belief once they found Geller alive. Dlugash therefore says the verdict of murder cannot consistently with due process be the foundation for a conviction of attempted murder which requires a finding that he "actually" believed Geller alive.

 The pertinent part of § 125.25 of the New York Penal Law provides that a person is guilty of murder when "with intent to cause the death of another person, he causes the death of such person." Under § 110.00 of the Penal Law one who "with intent to commit a crime" engages "in conduct which tends to effect the commission of such crime" is guilty of an attempt. Section 110.10 of the Penal Law provides that if a person's conduct otherwise constitutes an attempt, it is no defense to a prosecution for attempt "that the crime charged to have been attempted was, under the attendant circumstances, factually or legally impossible of commission, if such crime could have been committed had the attendant circumstances been as such person believed them ...

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