430 F.3d 82 (2nd Cir. 2005), 04-5518, Policano v. Herbert

Docket Nº:04-5518-PR.
Citation:430 F.3d 82
Party Name:David POLICANO, Petitioner-Appellee, v. Victor T. HERBERT, Respondent-Appellant.
Case Date:November 15, 2005
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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430 F.3d 82 (2nd Cir. 2005)

David POLICANO, Petitioner-Appellee,


Victor T. HERBERT, Respondent-Appellant.

No. 04-5518-PR.

United States Court of Appeals, Second Circuit.

November 15, 2005

Argued: July 11, 2005.

The petitioner sought habeas corpus relief in the United States District Court for the Eastern District of New York on the grounds that his state conviction violated his constitutional right to due process because the evidence of his guilt was insufficient to support his conviction for depraved-indifference murder under N.Y. Penal Law § 125.25(2) . The petitioner asserted that the evidence adduced at trial showed that if he committed the homicide at all, he did so intentionally, and that the evidence was therefore insufficient to support a conviction for depraved indifference murder. The district court (John Gleeson, Judge) granted the petition. Affirmed.

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RHEA A. GROB, Assistant District Attorney (Charles J. Hynes, District Attorney Kings County, Leonard Joblove & Ann Bordley, Assistant District Attorneys, of counsel), Brooklyn, NY, for Respondent-Appellant .

Richard Ware Levitt, New York, NY, for Petitioner-Appellee.

Before: POOLER and SACK, Circuit Judges, and GARAUFIS, District Judge.[*]

SACK, Circuit Judge:

On January 21, 1997, during a fight, Terry Phillips struck the petitioner, David Policano, in the face with a metal pipe. Policano required fifteen stitches and was hospitalized. While in the hospital, Policano told a police officer that he would "take care of this" himself. Six days later, Policano approached Phillips at a bus stop and shot him at close range, three times in the head and once in the leg, killing him.

Policano was identified by an eyewitness as the perpetrator. He was apprehended and charged with alternative counts of depraved-indifference murder and intentional murder pursuant to N.Y. Penal Law § 125.25. Under New York law, to be guilty of depraved-indifference murder, the defendant must have, inter alia, acted recklessly with respect to causing the victim's death. Id. § 125.25(2). To act recklessly under New York Law, the defendant must have "consciously disregard[ed]" the risk that his actions would cause the victim's death. Id. § 15.05(3).

A Kings County Supreme Court jury found Policano guilty of depraved indifference murder. After exhausting available state appellate remedies, Policano petitioned for a writ of habeas corpus in the United States District Court for the Eastern District of New York. Policano asserted, inter alia, that the evidence supported a single rational inference: that if he murdered Phillips, he did so intentionally. He contended that the evidence was therefore insufficient to support a jury's finding that he had acted recklessly in causing Phillips's death. The district court (John Gleeson, Judge) granted Policano's petition. We now affirm.


On a petition for habeas corpus we "view[] the evidence [in the trial record] in the light most favorable to the prosecution." Wheel v. Robinson, 34 F.3d 60, 66 (2d Cir. 1994), cert. denied, 514 U.S. 1066 (1995) (internal quotation marks and citations omitted). We therefore state the facts underlying this appeal in the light most favorable to the prosecution. Unless otherwise noted, however, the parties do not dispute the relevant facts on appeal.

On January 21, 1997, Policano and Phillips became involved in a violent fight during the course of which Phillips struck Policano in the face with a metal pipe. As a result, Policano required hospitalization and received fifteen stitches.

While he was in the hospital, Policano was interviewed by New York City Detective Alonzo Hobbs. Detective Hobbs testified at trial that Policano informed him that Policano and Phillips had been in another fight earlier that day in which Policano had punched Phillips, causing him to lose consciousness. Hobbs further testified that Policano, who appeared angry and in pain, indicated that he did not want

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police intervention in his dispute with Phillips. He would "take care of" matters himself. Tr. at 240, 250. Subsequently, however, Policano filed a complaint with the police against Phillips.

Lonny Stagg, a friend of Phillips who also was acquainted with Policano, testified at trial that he spent time with Policano on January 24, 1997, three days after the fight. There were two other men present. Stagg testified that Policano remained upset with Phillips and wanted Stagg to pass along a message to Phillips. Stagg refused to do so, not wanting to become embroiled in the conflict.

Three days later, on January 27, 1997, Policano and Phillips crossed paths again. Sometime before 8 p.m., Policano and a friend of Policano's, Neicy Wright, went to the apartment of Jimmy Sprye in the Fort Greene neighborhood of Brooklyn. The apartment was some fifteen-minutes away by foot from the corner of Carlton and Myrtle Avenues. Sprye testified that when Policano and Wright arrived at Sprye's apartment, the three shared a "dime bag" of crack cocaine. Policano and Wright then used Sprye's apartment as a base from which to sell bathrobes at nearby locations. Policano testified at trial that Wright accompanied him on all but one of the many trips he made from the apartment to sell the robes.

Stagg testified at trial that on that same night he and Phillips went for a walk through the neighborhood, eventually arriving at a bus stop on the corner of Myrtle and Carlton Avenues. At around 8:45 p.m., Stagg was reading a bus schedule inside the shelter at the bus stop. Phillips stood at the curb. Stagg looked up from the schedule toward Phillips and saw Policano approaching from across Carlton Avenue. Policano was wearing a dark colored jacket with white stripes on the sleeves. Stagg and Policano did not acknowledge each other. Stagg returned to reading the bus schedule.

Several seconds later, Stagg heard a gun shot. He ran about fifty feet from the shelter before turning to look back. When he did, he saw Phillips with his arms raised in front of his face. Stagg ran a few more feet away and turned again toward the bus stop. He heard a second shot. Stagg could see the right hand of a man wearing what appeared to him to be Policano's jacket pointing a pistol toward Phillips. Stagg ran still further away and heard a third shot. When he looked back this time, Phillips had fallen to the ground. Stagg ran into a nearby pizzeria to call the police.

Phillips sustained two gunshot wounds to his head, one to his neck, and a fourth to his right thigh. A forensics expert later determined the gunshot wounds to his head and neck were consistent with Phillips having been shot while standing.1 The leg wound was consistent with Phillips having been shot while he was lying on the ground.

Later, at Sprye's apartment, Policano told Wright and Sprye that he had witnessed a shooting during his one excursion to sell bathrobes from the apartment without Wright.

Two days later, on January 29, 1997, Stagg went to the local precinct station and identified Policano as the man who had shot Phillips. Policano was arrested and charged with two counts of second degree murder: one count of depraved-indifference murder, N.Y. Penal Law

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§ 125.25(2), and, in the alternative, one count of intentional murder. Id. § 125.25(1).

Beginning on February 19, 1998, Policano was tried on the murder charges in Supreme Court, Kings County. At trial, the defense moved to dismiss the depraved-indifference murder count, both at the end of testimony and after summations. The prosecution opposed both motions, and the court denied them. The court submitted both murder counts to the jury, instructing them that if they convicted Policano of depraved indifference murder, they should not consider the charge of intentional murder. The jury returned a verdict of guilty on the depraved-indifference murder count but did not reach the intentional murder count.

Policano's conviction was affirmed by the Appellate Division, Second Department, in a brief order. People v. Policano, 277 A.D.2d 331, 715 N.Y.S.2d 880 (2d Dep't 2000). His application for permission to appeal the Appellate Division's decision to the New York Court of Appeals was denied. People v. Policano, 96 N.Y.2d 786, 725 N.Y.S.2d 651, 749 N.E.2d 220 (2001) (Smith, J.).

In early 2002, Policano filed a pro se habeas corpus application, under 28 U.S.C. § 2254, in the United States District Court for the Eastern District of New York. Proceedings were stayed to allow Policano to exhaust a claim of ineffective appellate counsel in state court; they reopened in March 2003, after Policano had done so. In his habeas petition, Policano argued, inter alia, that there was insufficient evidence to sustain his conviction for depraved...

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