In bizarre cases of justice gone wild, the Daily News has found that even murderers who meant to kill their victims are being put back on the streets.

In a typical case, lawyers for Brooklyn chef David Policano, 47, admitted he was guilty of intentional murder, a second-degree murder rap.

But then they argued he should be freed because he was convicted of a different type of second-degree murder, depraved indifference to human life.

The three-judge federal appeals panel that upheld the appeal acknowledged their own decision was "disturbing," because "the defendant is set free because he meant to kill his victim." The ruling is only the tip of the iceberg.

The News discovered at least four other killers found guilty of depraved-indifference murder - a charge normally applied to crimes like shooting into a crowd - have had convictions overturned.

And dozens more could be set free statewide as hundreds of appeals move through state and federal courts. In Queens alone, prosecutors are fighting to keep a dozen killers behind bars.

The head of the New York State District Attorney's Association said prosecutors must now choose between the two types of second-degree murder from the start of the case if they want convictions to stick.

"Does it make it more difficult for us? Sure it does," said association president Frank Clark. "If I had my druthers, I would rather see us having more bites at the apple, but we're constrained by the law."

Clark said it's disturbing so many guilty people may be off the hook on a technicality, but he added that DA's "know what's at stake" when they decide how to charge.

Ironically, the convictions ripest for reversal are those where the evidence showing the defendant's intent to kill was strongest, experts say.

In such cases, if the jury acquitted the defendant of intentional murder but convicted of depraved, he could easily walk on appeal.

Fordham Law School Prof. Abraham Abramovsky said he expects the public reaction to these reversals will range from confusion to outrage - but prosecutors, not the appeals judges, should bear the blame.

"The court says: 'You're the prosecutor. You had all the evidence. Get it right, and if you can't get it right, you'll bear the consequences,' " he said.

Policano's case is typical of the recent rulings. In 1997, he shot Terry Phillips in a brutal revenge attack. Phillips had smashed Policano in the face with a pipe, leaving a gash that required 15 stitches. Policano, a 6-foot-5, 270-pound hulk, told cops he would "take care of this himself."

Six days later, he did, walking up to Phillips at a bus stop and shooting him three times in the head and neck at close range with a 9-mm. pistol.

Policano was convicted for depraved indifference - and ordered freed by Brooklyn Federal Judge John Gleeson in January after serving eight years.

Gleeson said he should get another trial, but the appeals panel this month said that's double jeopardy - trying him twice for the same crime.

Brooklyn prosecutors are weighing an appeal to the U.S. Supreme Court.

Now back home in Fort Greene, despite his lawyers' admission of his guilt, Policano says he's innocent.

"I am not the killer," he said last week. "I did not do the murder, period. I don't want society to say a killer walked free because an innocent man was set free."

DOUBLE JEOPARDY

The issue:

For years, prose-cutors have been charging defendants with second-degree murder under two competing theories-intentional murder and depraved indifference to human life.

The charges:

To convict of intentional murder, a jury must find the defendant meant to cause the victim's death. Convicting on depraved indifference means the jury found the defendant acted recklessly but did not intend the kill the victim.

The fallout:

Appeals courts have ruled prosecutors misapplied the depraved indifference charge. The result is that stone-cold killers who were tried under both theories and acquitted of intentional murder but convicted of depraved indifference could win get out of jail free cards.

L.I. ex-con was first out of the gate

By TRACY CONNOR
DAILY NEWS STAFF WRITER

When Kenneth Payne walked out of the Five Points Correctional Facility in upstate New York a year ago, he left the gates unlocked for a parade of murderers.

The 48-year-old contractor - convicted of the only slaying in the history of bucolic Shelter Island, L.I. - was the first man to be freed under a challenge to the charge of "depraved indifference" murder.

Thanks to a ruling by the state's highest court, and decisions by other appeals panels, other confessed killers are now poised to rejoin society without doing their time.

Payne, who served six years of a 25-year sentence before being sprung October 2004, makes no apologies.

"I didn't give one thought for any far-reaching effect," he told the Daily News.

"I was not out to change the law, or to change the world. I was out to get myself out of prison. If the state charged people correctly, there wouldn't be this problem."

Payne's role in legal history began unfolding on April 27, 1998, when he grabbed a 12-gauge shotgun and stomped over to neighbor Curtis Cook's home.

Cook, who had complained about Payne's dog, also had been recently arrested for molesting an 8-year-old girl and had allegedly threatened Payne's young daughter and girlfriend.

This much is not in dispute: Payne lifted the 12-gauge elephant gun, pulled the trigger once and shot Cook point-blank in the chest, killing him.

Prosecutors charged him with two theories of second-degree murder: intentional murder and depraved indifference to human life.

In 2000, a jury acquitted Payne of intentional murder but convicted him of the other count, and he was sentenced to the maximum of 25 years to life.

He spent some of his time behind bars educating himself on the law, ultimately tapping out his appeal on an old typewriter.

Four years after his conviction, the Court of Appeals ruled 5-2 that prosecutors had misapplied the depraved indifference charge and threw out the case.

Payne is back on Shelter Island now and said he hasn't followed other prisoners' appeals.

"I studied hard and I wrote that brief and changed New York State law and got me out of prison and back to work," he said.

"Right now, I'm building a deck and I have my country music playing and I'm living a beautiful life."

Originally published on November 26, 2005