Policano v. Herbert, Docket No. 04-5518-pr (2d Cir. Nov. 15, 2005) (Pooler, Sack, Garaufis (by designation)): This one is a rare bird indeed — Mr. Policano literally gets away with murder! In this case, the Circuit affirms Judge Gleeson’s grant of habeas based on the insufficiency of the evidence presented at Policano’s New York state trial for murder. Essentially, the evidence showed that Policano, who had a serious beef with the victim, walked up to this unarmed individual, pulled out a 9 mm pistol, and shot him three times in the head and neck at close range. Policano was charged with two counts of second-degree murder under New York law — one charging him with depraved-indifference murder, in violation of N.Y. Penal Law § 125.25(2), and the other charging him with intentional murder, in violation of N.Y. Penal Law § 125.25(1).
At his trial, the judge refused to grant the defense motion to dismiss the depraved-indifference count, and then told the jury that if it convicted on that count, it should not consider the intentional murder count. The jury convicted Policano of the depraved indifference count and did not reach the other count.
Policano eventually filed a § 2254 petition in the E.D.N.Y. arguing that the evidence was insufficient to support his conviction for depraved-indifference murder since, at best, the evidence showed that he intentionally murdered the victim. Judge Gleeson, and now the Circuit, agreed.
An element of depraved-indifference murder is that “the defendant was indifferent to whether his or her acts would result in the victim’s death.” Op. at 16. The defendant must act recklessly and must consciously disregard the substantial risk that death may result from his actions. Here, Policano — at close range — fired a gun four times at the defendant, including three times at his head and neck. In so doing, the court pointed out, “Policano was not recklessly creating a grave risk of death, but was creating a virtual certainty of death born of an intent to kill.” Op. at 14. He acted to cause the victim’s death intentionally, not recklessly. His conviction for depraved-indifference murder therefore could not stand.
Given this decision, and given the Double Jeopardy Clause, see Op. at 23 n.6, Policano will be “set free because he meant to kill his victim.” Op. at 23. A strange result, to be sure, but also the correct one. The “fault,” if any, lies with the state prosecutors and the state judge. Kudos to the Circuit for applying the law despite the unpopular outcome.