Policano v. Herbert

• Decision Date: 16 November 2006
• Parties: David POLICANO, Respondent, v. Victor T. HERBERT, Appellant.
• Court: New York Court of Appeals Court of Appeals

859 N.E.2d 484

7 N.Y.3d 588

David POLICANO, Respondent, v. Victor T. HERBERT, Appellant.

Court of Appeals of New York.

November 16, 2006.

COPYRIGHT MATERIAL OMITTED

Charles J. Hynes, District Attorney, Brooklyn (Leonard Joblove and Rhea A. Grob of counsel), for appellant.

Law Offices of Richard Ware Levitt, New York City (Richard Ware Levitt of counsel), for respondent.

OPINION OF THE COURT

READ, J.

The United States Court of Appeals for the Second Circuit has posed three certified questions that call upon us to address New York law regarding depraved indifference murder at the time defendant David Policano's conviction for this crime became final on June 28, 2001, and to answer related questions. We begin by rehearsing the relevant facts and prior proceedings in this case.

I.

On January 21, 1997, Raphaela Robles was standing in front of her apartment building in Brooklyn, talking with defendant. Upon observing them, her boyfriend, Terry Phillips, became "upset," and he and defendant began "[p]ushing, shoving and talking." As Robles fled upstairs to her third-floor apartment, she turned around and saw Phillips with a pipe. After entering her apartment, she looked out the window and saw defendant bleeding.

Detective Alonzo Hobbs, who was investigating the assault, spoke with defendant in the hospital the same day. Defendant's head was bandaged, and he appeared to be "very angry" and "hurt from the pain." Defendant explained to Detective Hobbs that he and Phillips had argued and fought earlier in the day, and that he had knocked Phillips unconscious. Although defendant initially insisted that he would "take care of" this matter himself and did not want police intervention, he subsequently filed a complaint against Phillips with the police.

Shortly before 8:00 P.M. on January 27, 1997, Jimmy Sprye was in his apartment in Brooklyn, a few blocks away from the intersection of Carlton and Myrtle avenues, when he was visited by his friend Neicy Wright and defendant, whom he had not met before that evening. Defendant and Wright arrived with a "dime bag" of crack, which all three of them smoked. Defendant had bathrobes with him, and he and Wright would leave periodically with bathrobes to sell, and then return to pick up more. Twice, defendant left unaccompanied by Wright. On the first of these two occasions, he appeared nervous when he returned, and told Sprye that someone had been shot on Myrtle Avenue.

That same evening, Phillips and his friend Lonny Stagg arrived at the bus stop at the well-lit corner of Carlton and Myrtle avenues at about 8:40 or 8:45 P.M. Phillips stood at the corner, while Stagg stood within the glass bus shelter, five to seven feet away from Phillips, reading the bus schedule. Stagg then noticed defendant, who was about 20 feet away from him. Defendant was wearing a jacket, which was either navy blue or black with white stripes running down the sleeves.

Seconds later, Stagg heard a gunshot and "took off." After advancing 50 feet, he wheeled around and saw Phillips holding his arm over his face as if to shield himself. Stagg heard two additional shots as he resumed his flight. He could not see the shooter's face, which was obscured by a poster in the bus shelter, but he saw the gun in the right hand of someone wearing the same style and color jacket that he had observed on defendant moments earlier. The gun appeared to be three to five feet away from Phillips. When Stagg reached a nearby pizzeria, he yelled for someone to call 911. He then went back outside, and saw the shooter running down Carlton Avenue.

The subsequent autopsy showed that Phillips had been shot twice in the head, once in the neck, and once in the right thigh. According to the medical examiner, the location of the three gunshot wounds to Phillips's head and neck was consistent with those shots having been fired while Phillips was standing upright and turning. The location of the gunshot wound to Phillips's thigh was consistent with that shot having been fired after Phillips had fallen to the ground, with the shooter standing near Phillips's head and aiming toward his feet. The absence of stippling near any of the gunshot wounds showed that they were fired from a distance greater than 12 to 18 inches.

Defendant was indicted for intentional murder (Penal Law § 125.25[1]) and depraved indifference murder (Penal Law § 125.25[2]) as well as criminal possession of a weapon in the second degree (Penal Law § 265.03) and criminal possession of a weapon in the third degree (Penal Law § 265.02[4]). Testifying in his own defense at trial, defendant protested his innocence and presented an alibi.

At the close of the defense case, defendant's attorney moved to dismiss the count of depraved indifference murder on the ground that there was no evidence that defendant had acted recklessly or wantonly. The trial judge denied the motion. After summations, defendant's attorney renewed this objection, and the court adhered to its original decision.

The trial judge submitted one count of depraved indifference murder and one count of intentional murder to the jury, but not the weapons charges. Unusually, he instructed the jurors not to consider the count of intentional murder if they first found defendant guilty of depraved indifference murder. After the jury found defendant guilty of depraved indifference murder, the court sentenced him as a second felony offender to a term of imprisonment of 25 years to life.

Defendant appealed, asserting that the evidence was legally insufficient to prove his guilt of depraved indifference murder. The People argued before the Appellate Division that while there was "no question" that defendant fired his gun intentionally rather than accidentally, a rational trier of fact could have concluded that defendant did so with depraved indifference to the risk of death that he created for "Phillips and any bystander in the public place." The People also contested defendant's "claims that multiple gunshot wounds to vital organs necessarily dictate[ ] a verdict of intentional murder and render[ ] a verdict of depraved indifference murder presumptively insufficient." Forcefully, the People argued,

"there was evidence that defendant may have had a motive to shoot the victim. Indeed, there is a reasonable view of the circumstantial evidence that defendant intended to kill the victim when he fired. The jury, however, was called upon to deliberate first upon the alternative count of depraved indifference murder. Because a reasonable trier of fact could easily find that [a] defendant [who] fired his gun in a bus stop on a public street with other people present demonstrated an unmotivated wickedness so great as to be indicative of depravity, the verdict is supported by legally sufficient evidence" (internal quotation marks and citations omitted).

These arguments carried the day. On November 13, 2000, the Appellate Division affirmed defendant's conviction. "Viewing the evidence in the light most favorable to the prosecution," the Court found "that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt" (People v. Policano, 277 A.D.2d 331, 331-332, 715 N.Y.S.2d 880 [2d Dept 2000] [citation omitted]). Exercising its broad factual review power, the Appellate Division further pronounced itself "satisfied that the verdict of guilt was not against the weight of the evidence" (id. at 332, 715 N.Y.S.2d 880).

On March 30, 2001, a Judge of our Court denied defendant's application for leave to appeal (People v. Policano, 96 N.Y.2d 786, 725 N.Y.S.2d 651, 749 N.E.2d 220 [2001]). Defendant's conviction became final 90 days later, on June 28, 2001, when his time for filing a petition for writ of certiorari in the United States Supreme Court expired (see Rules Sup Ct rule 13[1]; Clay v. United States, 537 U.S. 522, 527, 123 S.Ct. 1072, 155 L.Ed.2d 88 [2003]).

Defendant subsequently filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of New York, in which he asserted that the evidence at trial was insufficient to prove his guilt of depraved indifference murder. On March 26, 2004, the District Court Judge heard oral argument at which defendant appeared pro se by telephone. As the Judge explained in his order of the same date:

"At today's oral argument ..., I told the parties that I would deny the petition. Immediately after the argument, however, I learned of a case decided yesterday by the New York Court of Appeals, People v. Gonzalez [1 N.Y.3d 464, 775 N.Y.S.2d 224, 807 N.E.2d 273 (2004)]. In Gonzalez, the Court of Appeals affirmed an opinion by the Appellate Division reversing the defendant's conviction for depraved indifference murder where the jury had acquitted the defendant of intentional murder and the evidence at trial showed that the defendant had shot his victim in the chest from a distance of six to seven feet, shot the victim again in the head as the victim fell, and finally fired eight more shots into the victim's prone back and head."

"In light of Gonzalez," — which, as the Judge noted, we had handed down the day before — he decided to reconsider his position on whether there was sufficient evidence for a jury to find that defendant had acted with depraved indifference. He directed the court's clerk to appoint counsel for defendant, and the parties to brief the issue.

Viewing defendant's case as "largely indistinguishable" from Gonzalez, on September 7, 2004 the District Court concluded that there was insufficient evidence to establish that defendant acted recklessly with respect to Phillips's death, and so granted the habeas petition (Policano v. Herbert, 2004 WL 1960203, *9, 2004 U.S. Dist LEXIS 17785, *25 [E.D.N.Y., Sept. 7, 2004]). The People appealed. Defendant was released from custody following the Second Circuit's denial of a stay pending appeal on December 28, 2004 (Policano v. Herbert, 453 F.3d 75, 78 [2d Cir.200...