People v. Dlugash 41 N.Y.2d 725, 363 N.E.2d 1155 (1977) Bush, Geller and Dlugash were drinking together. They got into an argument. Bush pulled out a gun and shot Geller multiple times, almost certainly killing him. After about five minutes, Dlugash pulled out a gun and shot Geller's body a few more times. Dlugash testified that he did it because he was afraid Bush might shoot him next. Dlugash was arrested and charged with attempted murder and/or first-degree murder. The prosecution had an expert witness testify that Geller might have still been alive when Dlugash shot him. Dlugash had a expert witness who said it was unlikely. All the experts agreed that Geller would have died even if Dlugash didn't shoot him. The Trial Court convicted Dlugash of first-degree murder. He appealed. The Appellate Court overturned the first-degree murder conviction. The prosecutor appealed. The Appellate Court found that it could not be proved beyond a reasonable doubt that Geller was alive when Dlugash shot him. The prosecutor argued that if Dlugash wasn't guilty of murder, he should at least be guilty of attempted murder. The New York Supreme Court modified the conviction and found Dlugash guilty of attempted murder. The New York Supreme Court found that under the common-law, legal impossibility is a defense, but factual impossibility is not a defense. An example of a legal impossibility would be for hunters to shoot at an artificial deer without a license. Since it is not a crime to kill a stuffed animal, it is no crime to attempt to do what is legal. An example of a factual impossibility is when you blow up someone's house in an attempt to kill them, but it turns out they weren't home. There was no chance the attempt could succeed, but if it did succeed, then a crime would have been committed. See People v. Jaffe (78 N.E. 169 (1906)). However, under the Model Penal Code §5.01(1), a person in guilty of attempt when they engage in conduct which tends to effect the commission of such crime. It is no defense that, under the attendant circumstances, the crime was factually or legally impossible, "if such crime could have been committed had the attendant circumstances been as such person believed them to be." So basically, a person is guilty of attempt, if they take actions that they think are a crime, even if it turns out that the actions could not possibly had been a crime for some reason the defendant didn't know about. So in this case, it didn't matter if Geller was dead or not. All that matters was whether Dlugash believed that Geller was still alive when he shot him. Since the jury found Dlugash guilty of murder, they must have found that Dlugash intended to murder Geller, which included a finding that Dlugash believed that Geller was still alive. Therefore the Court can modify the conviction to attempted murder without requiring a new trial.