hds2388 wrote:So, silly question for NYBE people because it was on the bar last year, but the sample answers butchered the analysis, so I wanted to seek out the answer for my own edification.
If you shoot someone, they go into a coma, you are convicted of attempted murder, and they subsequently die (from the gunshot), obviously you can be tried for and convicted of murder (right?).
My question is, under the NY rule for DJ, is this justified by the substantially different elements prong? Attempted murder and murder don't seem to have substantially different elements t me. Can someone explain?
Pursuant to the Blockburger test, you cannot be tried for a crime subsequently to the first trial that shares all the elements with the previous charge. Thus if the first charge was A B C and the subsequent one was B C, you cannot be tried for it. Because attempted murder doesn't require proof that the victim died, or that the defendant's conduct caused the death, the motion to dismiss should be denied.
Further, New York does not have the "year and a day" rule, therefore anytime the death occurs a defendant can be criminally liable for murder.