State v. Lopez

I cannot concur with the majority opinion in this case. I would hold that the defense of impossibility is available to a defendant charged with an attempt to commit a felony which, under the facts, is impossible to complete. I agree with the opinion of the Court of Appeals that until NMSA 1978, Section 30-28-1, is changed to define attempt as including an attempt to commit an act which if completed would not be a crime, the defense of legal impossibility should not be ruled out.

I therefore respectfully dissent and adopt the Court of Appeals opinion which is attached hereto, in toto, as my…