Policano v. Herbert

* The Hon. Nicholas G. Garaufis, of the United States
District Court for the Eastern District of New York, sitting by
designation.
04-5518-pr
Policano v. Herbert
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
August Term, 2004 3
(Argued: July 11, 2005 Final Submission: June 4, 2007 4
Decided: September 19, 2007) 5
Docket No. 04-5518-pr 6
------------------------------------- 7
DAVID POLICANO, 8
Petitioner-Appellee, 9
- v - 10
VICTOR T. HERBERT, 11
Respondent-Appellant. 12
------------------------------------- 13
Before: POOLER and SACK, Circuit Judges, and GARAUFIS, District 14
Judge.*
15
The United States District Court for the Eastern 16
District of New York (John Gleeson, Judge) granted the petitioner 17
habeas corpus relief under 28 U.S.C. § 2254 on the ground that 18
the state violated his constitutional right to due process 19
because the evidence of his guilt was insufficient to support his 20
conviction in New York Supreme Court, Kings County for depraved 21

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2
indifference murder under N.Y. Penal Law § 125.25(2). In an 1
earlier opinion, Policano v. Herbert, 430 F.3d 82 (2d Cir. 2005), 2
this panel concluded that the judgment of the district court 3
should be affirmed. In light of the answer of the New York Court 4
of Appeals to a question of law subsequently certified to it by 5
this Court, as well as other factors, that opinion is withdrawn, 6
and the judgment of the district court is: 7
Reversed, and the case remanded. 8
RHEA A. GROB, Assistant 9
District Attorney (Charles J. 10
Hynes, District Attorney Kings 11
County, Leonard Joblove & Ann 12
Bordley, Assistant District 13
Attorneys, of counsel), 14
Brooklyn, NY, for Respondent- 15
Appellant. 16
Richard Ware Levitt, New York, 17
NY, for Petitioner-Appellee. 18
SACK, Circuit Judge: 19
I. 20
David Policano, acting pro se, brought this application 21
for habeas corpus under 28 U.S.C. § 2254 in the United States 22
District Court for the Eastern District of New York. He sought 23
relief from his conviction in New York Supreme Court, Kings 24
County, of depraved indifference murder under N.Y. Penal Law 25
§ 125.25(2). The conviction had been affirmed in the state 26
courts by the Appellate Division. People v. Policano, 277 A.D.2d 27
331, 715 N.Y.S.2d 880 (2d Dep't 2000). His application for 28
permission to appeal that decision to the New York Court of 29

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1 The defendant was referred to as "Palicano" throughout
the trial transcript, until sentencing.
3
Appeals had been denied. People v. Policano, 96 N.Y.2d 786, 749 1
N.E.2d 220, 725 N.Y.S.2d 651 (2001) (Smith, J.). 2
It was undisputed at trial that Policano had threatened 3
to retaliate against one Terry Phillips after Phillips hit 4
Policano in the head with a metal pipe, sending him to the 5
hospital. On the evening of January 27, 1997, just six days 6
after the incident, at a neighborhood bus stop, Phillips was shot 7
at close range, three times in the head and neck, and once in the 8
leg, killing him. One witness to the event, who knew both 9
Policano and Phillips, testified that he saw Policano at the 10
scene and at the time of the shooting. Although the witness 11
could not see Policano's face at the moment of the shooting, he 12
identified Policano on the basis of his presence there and his 13
clothing. Two other witnesses said they saw a person running 14
from the scene carrying a white bag. They described that person 15
as, inter alia, slender and a dark-skinned black man. Policano 16
was neither. Policano testified in his own defense, among other 17
things, that he was elsewhere at the time of the crime. 18
The trial judge charged the jury, inter alia: 19
As you have become aware during the course of 20
this trial a main issue in this trial is the 21
identification of the defendant, David 22
Palicano [sic],1 as the person who committed 23
the crimes of murder second degree on or 24
about January 27, 1997. The People have the 25
burden to prove to your satisfaction beyond a 26
reasonable doubt not only all of the 27
essential element[s] of the crime as I have 28

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4
instructed you, but also that the defendant, 1
David Palicano, is the person who committed 2
them. 3
Trial Tr. at 561. 4
The court, over the objection of the defendant, who had 5
sought dismissal of the depraved indifference count, instructed 6
the jury at some length as to the elements of depraved 7
indifference murder, under the first count in the indictment, 8
concluding: "On [the] other hand, if you find that the People 9
have not proven beyond a reasonable doubt any one or more of 10
those elements, you must find the defendant not guilty of the 11
crime of murder in the second degree as charged in the first 12
count." Id. at 569. The court then instructed the jury on count 13
two, intentional murder in the second degree. Id. at 569-71. 14
After several hours of deliberation, the jury returned 15
a verdict of guilty on count one, depraved indifference. Id. at 16
574-75. The jurors were polled, id. at 575-76, and then excused, 17
id. at 576-77. They did not render a verdict on count two, the 18
intentional murder count. 19
II. 20
After appointing counsel to represent Policano and 21
having received briefing and argument, the district court (John 22
Gleeson, Judge) granted Policano's petition for habeas relief. 23
Policano v. Herbert, 2004 WL 1960203, 2004 U.S. Dist. LEXIS 17785 24
(E.D.N.Y. Sept. 7, 2004) ("Policano I"). In Policano v. Herbert, 25
430 F.3d 82 (2d Cir. 2005) ("Policano II"), an opinion in which 26
we affirmed the judgment of the district court, we summarized: 27

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2 The evidence was contained in testimony elicited in
response to questions by Policano's lawyer during the cross-
examination of witness Jimmy Sprye, in whose Fort Greene
apartment Policano spent part of the evening of the murder.
Q: When they [Policano and a woman] came in, you
started smoking crack?
A: That's what that day [sic], yeah.
Q: How long are you smoking crack before they
5
"The district court concluded that Policano's petition for habeas 1
corpus must be granted because 'according to the evidence, he 2
intentionally committed [Phillips's homicide] if he committed it 3
at all.' We agree." 430 F.3d at 88-89 (quoting Policano I, 2004 4
WL 1960203, at *2, 2004 U.S. Dist. LEXIS 17785, at *4). In doing 5
so, we concluded that under New York State law, 6
the rule that depraved-indifference murder 7
and intentional murder are mutually exclusive 8
crimes was established well before Policano's 9
trial and state appeal. See [People v. 10
Gallagher, 69 N.Y.2d 525, 529, 516 N.Y.S.2d 11
174, 175, 508 N.E.2d 909, 910 (1987)]. 12
Gallagher set forth clearly the standard we 13
apply today, stating in plain language that a 14
defendant has not committed depraved 15
indifference murder if he "acts intentionally 16
in shooting a person to death." Id. 17
430 F.3d at 92. 18
In the course of considering the appeal, we noted that 19
one of the respondent's arguments had been made for the first 20
time before us on appeal -- that the depraved indifference murder 21
charge was buttressed by eyewitness trial testimony to the effect 22
that shortly before the Phillips murder, Policano had shared a 23
"dime [ten dollar] bag" of "crack" cocaine with two other 24
people.2 Applying Gallagher, however, we could not find "any 25

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left?
A: Before they left, I don't know. They had
dimes, dime bag. Three people on a dime bag, how much
can you, I mean, how much can you smoke?
Trial Tr. at 277-78.
6
evidence in the record to justify an inference that such an 1
exposure to drugs would have so intoxicated Policano forty-five 2
minutes or more later that he could have shot Phillips three 3
times in the head at close range without meaning to kill him. We 4
therefore reject[ed] the state's argument in this regard." Id. 5
at 91. 6
The mandate in Policano II never issued. Instead, on 7
June 21, 2006, we certified to the New York Court of Appeals 8
principally the following question: 9
On March 30, 2001 (the date on which 10
petitioner Policano's conviction became 11
final), under the law of the State of New 12
York as established by, inter alia, People v. 13
Gallagher, 69 N.Y.2d 525, 516 N.Y.S.2d 174, 14
508 N.E.2d 909 (1987), where the evidence 15
produced at trial indicated that if the 16
defendant committed the homicide at all, he 17
committed it with the conscious objective of 18
killing the victim, would a jury be permitted 19
to find that the elements of depraved 20
indifference murder were satisfied beyond a 21
reasonable doubt?22

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3 The other questions we certified were:
2. At the time Policano's conviction became
final, what were the established elements of
depraved indifference murder?
3. Does the interpretation of N.Y. Penal Law
§ 125.25(1) and (2) set forth in People v.
Payne, 3 N.Y.3d 266, 270, 819 N.E.2d 634, 786
N.Y.S.2d 116, 117 (2004) and People v.
Gonzalez, 1 N.Y.3d 464, 467, 807 N.E.2d 273,
775 N.Y.S.2d 224, 226 (2004), state the
correct interpretation of the law of New York
with respect to the elements of depraved
indifference murder on the date Policano's
conviction became final?
Id.
7
Policano v. Herbert, 453 F.3d 75, 76 (2d Cir. 2006).3 On the 1
same day, based largely on the fact of certification, this Court 2
denied rehearing en banc, Policano v Herbert, 453 F.3d 79 (2d Cir 3
2006) (per curiam), with five judges dissenting from the denial, 4
see id. at 80 (Raggi, J., joined by Walker, C.J., Jacobs, 5
Cabranes, and Wesley, JJ., dissenting); id. at 98 (Wesley, J., 6
joined by Raggi, J., dissenting). 7
III. 8
In Policano v. Herbert, 7 N.Y.3d 588, 859 N.E.2d 484, 9
825 N.Y.S.2d 678 (2006) ("Policano III"), the New York Court of 10
Appeals responded to our certification. The Court explained that 11
our reliance on both Gallagher and the Court's 2004 decision in 12
People v. Gonzalez, 1 N.Y.3d 464, 468, 807 N.E.2d 273, 276, 775 13
N.Y.S.2d 224, 227 (2004), had been mistaken. 14
[At the relevant time,] Gallagher was read as 15
limited to charging procedure. Indeed, we 16
said as much ourselves in [People v. Sanchez, 17
98 N.Y.2d 373, 378, 748 N.Y.S.2d 312, 314, 18

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8
777 N.E.2d 204, 206 (2002)] when we concluded 1
that strong proof of intent did not foreclose 2
the jury from finding recklessness and 3
depraved indifference. Even though the 4
defendant in Sanchez pressed arguments of 5
legal insufficiency based on Gallagher, the 6
Sanchez majority did not mention Gallagher. 7
Id. at 600 (internal citations altered and omitted). At the time 8
the defendant's conviction became final, it was People v. 9
Register, 60 N.Y.2d 270, 457 N.E.2d 704, 469 N.Y.S.2d 599 (1983), 10
cert. denied, 466 U.S. 953 (1984), -- not Gallagher -- that 11
governed the legal sufficiency of the evidence needed to 12
establish guilt for depraved indifference murder. Policano III, 13
7 N.Y.3d at 601. The formulation of the law established by 14
Register "remained static through [the Court's] decision in 15
[Sanchez]." Id. at 595. Sanchez therefore "reaffirmed 16
Register." Id. The Court also explained that by the time of its 17
2004 post-Sanchez decision in Gonzalez, on which we and the 18
district court had relied, the relevant law had begun to change. 19
Id. at 603. Gonzalez, like Gallagher, therefore did not reflect 20
the applicable law for purposes of Policano's petition. 21
The Court of Appeals explained further: 22
[I]t has never been permissible in New York 23
for a jury to convict a defendant of depraved 24
indifference murder "where the evidence 25
produced at trial indicated that if the 26
defendant committed the homicide at all, he 27
committed it with the conscious objective of 28
killing the victim" (in the words of the 29
first [and principal] question). As 30
discussed at some length, however, under 31
Register -- and until we started to recast 32
"under circumstances evincing a depraved 33
indifference to human life" post-Sanchez -- 34
where both intentional and depraved 35

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9
indifference murder were charged in one-on- 1
one shootings or knifings, these counts were 2
submitted to the jury for it to sort out the 3
defendant's state of mind unless there was 4
absolutely no evidence whatsoever that the 5
defendant might have acted unintentionally. 6
That a defendant's acts virtually guaranteed 7
the victim's death did not, in and of itself, 8
preclude a guilty verdict on a theory of 9
depraved indifference. To the contrary and 10
as the dissenters in both Register and 11
Sanchez vociferously protested, under the 12
Register formulation the very facts 13
establishing a risk of death approaching 14
certainty and thus presenting compelling 15
circumstantial evidence of intent -- for 16
example, a point-blank shooting of the victim 17
in the head -- likewise demonstrated depraved 18
indifference. This was the law of the State 19
of New York at the time defendant's 20
conviction became final. 21
Id. at 600-01. 22
The Court of Appeals continued, 23
As the People point out, the jurors heard 24
evidence that defendant ingested crack 25
cocaine approximately 45 minutes before 26
shooting Phillips, and that the final shot to 27
his helplessly prone victim hit his thigh, 28
not a vital organ. Although there was 29
certainly reason to believe that defendant 30
may have borne a grudge against Phillips, 31
there is considerable doubt that he acted 32
with premeditation or sought out Phillips to 33
seek revenge (a factual distinction between 34
this case and Gonzalez bearing on intent); 35
the violence here seems to have erupted 36
spontaneously after a chance encounter on the 37
street. Defendant shot Phillips in the head 38
and neck three times at a range of three to 39
five feet in a public place, an urban bus 40
stop. And most critically of all, we had not 41
yet decided any of our cases cutting back on 42
Register. We had not yet even decided 43
Sanchez, which ratified Register's continued 44
authority. 45

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4 To paraphrase our observation about the district court's
use of post-conviction New York State case law, the Court of
Appeals used Sanchez as a means of understanding the applicable
law as it existed at the time of Policano's trial and appeal.
See Policano II, 430 F.3d at 92.
10
Id. at 601-02.4
1
IV. 2
"[A] federal court is prohibited from granting the 3
[application for habeas corpus] unless the state court's 4
adjudication 'resulted in a decision that was contrary to, or 5
involved an unreasonable application of, clearly established 6
Federal law, as determined by the Supreme Court.'" Brown v. 7
Greiner, 409 F.3d 523, 533 (2d Cir. 2005) (quoting 28 U.S.C. 8
§ 2254(d)). As we have interpreted this standard, "we decide not 9
whether the state court correctly interpreted the doctrine of 10
federal law on which the claim is predicated, but rather whether 11
the state court's interpretation was unreasonable in light of the 12
holdings of the United States Supreme Court at the time." Id. 13
"[I]n a challenge to a state criminal conviction brought under 28 14
U.S.C. § 2254 . . . the applicant is entitled to habeas corpus 15
relief if it is found that upon the record evidence adduced at 16
the trial no rational trier of fact could have found proof of 17
guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 18
307, 324 (1979). The operative Supreme Court holding at the time 19
Policano's conviction became final was In re Winship, 397 U.S. 20
358 (1970), which announced a constitutional rule, as interpreted 21
by Jackson, "that the Due Process Clause of the Fourteenth 22

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11
Amendment protects a defendant in a criminal case against 1
conviction 'except upon proof beyond a reasonable doubt of every 2
fact necessary to constitute the crime with which he is 3
charged.'" Jackson, 443 U.S. at 315 (quoting Winship, 397 U.S. 4
at 364). Our review is therefore to determine whether the state 5
court adjudication is contrary to, or an unreasonable application 6
of, the Winship rule as interpreted by Jackson on a petition for 7
a writ of habeas corpus. "[A] petitioner bears a very heavy 8
burden in convincing a federal habeas court to grant a petition 9
on the grounds of insufficiency of the evidence." Fama v. Comm'r 10
of Corr. Servs., 235 F.3d 804, 811 (2d Cir. 2000). 11
V. 12
If the issue to be decided today were whether, under 13
the facts as we understood them at the time of our decision in 14
Policano II or as the district court understood them at the time 15
of its decision in Policano I, we now would be required, in light 16
of the New York Court of Appeals decision in Policano III, to 17
reverse the district court's grant of Policano's application for 18
habeas relief, the answer, for us, would not be an easy one. We 19
are still not convinced, despite the evidence relating to "crack" 20
ingestion, the shot to the thigh and other circumstances of the 21
crime, that the record as we understood it at the time of 22
Policano II, 430 F.3d at 91, included what amounts to 23
evidence that Policano might have acted unintentionally, Policano 24
III, 7 N.Y.3d at 601. 25

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5 Curiously, the respondent never called this testimony to
our attention, or, for that matter, to that of the district court
or the New York Court of Appeals. To our dismay, we did not
discover it except upon further review of the trial transcript
after Policano III was decided. It is for that reason that it is
not reflected in our opinion in Policano II, or, we suppose, in
the opinion of the district court in Policano I, our colleagues'
dissent from denial of en banc review, or the Court of Appeals's
decision in Policano III. We solicited and received supplemental
briefing on the implications, if any, of this evidence on our
deliberations.
We are permitted to consider the other evidence at
trial as to Policano's drug use as part of our de novo review of
"the record evidence adduced at the trial." Jackson, 443 U.S. at
324; see also United States v. Espaillet, 380 F.3d 713, 718 (2d
Cir. 2004) (reversing the district court's judgment of acquittal
notwithstanding the verdict "[a]fter searching the record");
United States v. Walker, 191 F.3d 326, 333 (2d Cir. 1999) ("In
considering [a sufficiency of the evidence] challenge, we review
all of the evidence presented at trial. . . ."), cert. denied,
529 U.S. 1080 (2000).
12
That question, however, is now moot. A rereading of 1
the trial record reveals that in addition to the evidence of 2
Policano's crack usage prior to Phillips's death, Policano 3
himself testified that he had been at a methadone clinic the 4
afternoon of the murder, Trial Tr. at 387; that late the same 5
afternoon or during the evening he "used" "three [or] four" bags 6
of heroin, id. at 390; and that he consumed some alcohol that 7
night, too, id. at 406.5 In light of this testimony, in addition 8
to the well-accepted principle of New York penal law that 9
voluntary intoxication can negate the mens rea of intent but not 10
recklessness, see N.Y. Penal Law § 15.25 ("[E]vidence of 11
intoxication of the defendant may be offered by the defendant 12
whenever it is relevant to negative an element of the crime 13

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13
charged."); see also Register, 60 N.Y.2d at 275 (affirming trial 1
court's decision to instruct the jury as to effect of voluntary 2
intoxication on an intentional murder count but not depraved 3
indifference murder); N.Y. Penal Law 15.05(3) ("A person who 4
creates [a substantial and unjustifiable] risk but is unaware 5
thereof solely by reason of voluntary intoxication also acts 6
recklessly with respect thereto."), we cannot say that no 7
rational juror could have found beyond a reasonable doubt that 8
Policano acted unintentionally. See Jackson, 443 U.S. at 324. A 9
reviewing court "faced with a record of historical facts that 10
supports conflicting inferences must presume -- even if it does 11
not affirmatively appear in the record -- that the trier of fact 12
resolved any such conflicts in favor of the prosecution, and must 13
defer to that resolution." Id., at 326. We therefore vacate our 14
opinion in Policano II and reverse the judgment of the district 15
court. 16
CONCLUSION 17
For the foregoing reasons, the order of the district 18
court granting petitioner's 28 U.S.C. § 2254 habeas corpus 19
application and ordering him released from custody is reversed, 20
and the case is remanded to the district court with instructions 21
that it enter an order denying the petitioner's application for 22
habeas corpus. The order of this court denying a stay with 23
respect to that portion of the district court's order releasing 24

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14
the petitioner from custody shall be vacated forthwith, and the 1
stay as to that portion of the order shall be granted forthwith 2
pending the issuance of the mandate in this appeal. 3

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