David Policano v. Victor T. Herbert

Summary

The New York Court of Appeals answered three certified questions concerning the law of depraved indifference murder as it stood when David Policano's conviction became final in 2001. It held that under the Register formulation, a jury could have found the elements of depraved indifference murder satisfied, that the elements then required reckless conduct creating a grave risk of death under circumstances evincing depraved indifference, and that the later interpretations in Payne and Gonzalez did not govern at that time. Chief Judge Kaye issued a partial dissent disagreeing with the majority's conclusions.